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7.0.14 Portable.RAR.PUP.ZIP. to the core the most essential function of a prosecutor is to prove the defendant guilty beyond a reasonable doubt. Indeed, we note that in this case, the state conceded that Donohue had a “valid claim of self-defense.” A mistrial, therefore, prevented the state from trying Donohue for murder in the second degree. Had the trial judge been dissatisfied with the government’s concession of self-defense, he could have dismissed the first count on that basis. Instead, the court declared a mistrial, and the government prosecuted Donohue for the second count, which did not involve any question of self-defense.

We have little difficulty in concluding that the above actions by the trial judge cannot be considered as mere gratuitous exercises of the court’s discretion. Indeed, the whole course of the state’s prosecution of Donohue is so unambiguous as to justify the conclusion that the assistant district attorney in charge of the case was overruled. Donohue’s defense was not that he had “confronted” Cunnane and it was not that “he acted in self-defense.” The defense was that Donohue had “confronted” Cunnane, and that he had shot Cunnane in self-defense, as a result of Donohue’s fears that Cunnane might gun him down. The state’s concession of self-defense indicates that it was willing to proceed upon that basis, but


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