“ Reversal for trial error "incorrect receipt or rejection of evidence, incorrect instructions, . . . prosecutorial misconduct" or the like-"does not constitute a decision . . . that the government has failed to prove its case," but only "that a defendant has been convicted through a judicial process which is defective." Burks v. United States, 437 U.S., at 15, 98 S.Ct., at 2149 (emphasis added) .
Under these principles, there should be no serious question that petitioner's conviction in Parker I was reversed for insufficiency of the evidence, not trial error. ”

“ Nonetheless, the Arkansas Supreme Court concluded in this case that reversal for failure to prove an essential element of one statutory formulation of capital murder poses no bar to reprosecution under another statutory formulation of the same offense, because the State's decision to prosecute a defendant under the "wrong" murder statute is mere "trial error." Because I believe that this conclusion reflects a profound misreading of our double jeopardy precedents, I would grant the petition.
* Petitioner was twice tried, convicted, and sentenced to death for murdering James and Sandra Warren. ”

“ The unmistakable teaching of our double jeopardy jurisprudence is that the State may not avail itself of a second trial to remedy its mistake when it prosecutes a defendant for an offense that it is unable to prove. ”