[Sthitch]

No, it is not double jeopardy. The appeals court ruled against a piece of evidence, and said to retry it without that evidence. Prosecutors are very limited (close to prohibited) in the new evidence that they can bringing to appeal, however, they can start from scratch at a new trial. This is the risk that someone takes if they appeal.

Think about it this way, a person is convicted of killing someone based on the testimony of a witness that should have been thrown out, the accused is convicted of manslaughter. The murderer appeals the case based on that tainted evidence, and an appeals court sends the case back to a lower court for retrial without the testimony from the witness. However in the mean time, the prosecution finds the gun, a video of the murder, and an unimpeachable witness saying that the accused planned the murder for weeks. The prosecution can now use this to seek first degree murder charges, something that they could not have done if the appeal by the defendant were not successful.

[wolfpat]

You are probably right, but I'd like to hear what Judge Napolitano has to say about it.