486 F.2d 1118 (4th Cir. 1973), 73-1498, Whitfield v. Warden of Maryland House of Correction

Docket Nº:73-1498.
Citation:486 F.2d 1118
Party Name:Conrad WHITFIELD, Appellee, v. WARDEN OF the MARYLAND HOUSE OF CORRECTION, Appellant.
Case Date:November 08, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 1118

486 F.2d 1118 (4th Cir. 1973)

Conrad WHITFIELD, Appellee,



No. 73-1498.

United States Court of Appeals, Fourth Circuit.

November 8, 1973

Argued Oct. 1, 1973.

Page 1119

Josef E. Rosenblatt, Asst. Atty. Gen., of Md. (Francis B. Burch, Atty. Gen., of Md. and Edward F. Borgerding and John P. Stafford, Jr., Asst. Attys. Gen., on brief) for appellant.

Morton Guth, Baltimore, Md., for appellee.

Before BUTZNER, RUSSELL and FIELD, Circuit Judges.

BUTZNER, Circuit Judge:

The State of Maryland appeals from a judgment of the district court sustaining Conrad Whitfield's claim of double

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jeopardy and consequently barring his retrial for murder and conspiracy to commit murder. Influenced in part by recent decisions not available to the district judge, we reverse. 1

The factual background is not complex. 2 The Circuit Court of Carroll County, Maryland, impaneled a jury to try Whitfield and Paul C. Baker jointly. At the close of the prosecution's case, the jury recessed for lunch, and the court heard motions for judgments of acquittal. During the argument on the motions, one of the jurors entered the courtroom from an adjacent jury room. The trial judge noted this apparently inadvertent intrusion and consulted with counsel for both defendants to determine if the trial should continue. From his position in the courtroom, the judge was unable to see the door to the jury room from which the juror had come, but counsel, who were facing the judge, could see it. The judge knew, however, that if the door had been ajar the juror could have heard the argument for acquittal made by Whitfield's counsel and the judge's response to certain parts of the argument. Whitfield's counsel told the court that from his vantage point he thought the door was closed, and he believed that the juror could have heard nothing. Baker's counsel insisted that the door was open and objected to continuing with the trial. The court then suggested that when the juror returned from his luncheon recess, he should be asked whether he had heard anything. This was agreeable to Whitfield's counsel, but not to Baker's. The court then declared a mistrial.

Subsequently, Whitfield's counsel moved for the dismissal of both charges on the ground that another trial would subject him to double jeopardy. The trial judge denied the motion, and the Court of Special Appeals affirmed, with one judge dissenting. 3 The Maryland Court of Appeals declined to review the case. Having exhausted his state remedies, Whitfield applied to the district court for a writ of habeas corpus, and the district judge granted relief. 4

The starting point for interpreting the double jeopardy clause of the fifth amendment 5 as it applies to the declaration of a mistrial over a defendant's objection is United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). Holding that a hung jury did not bar a retrial, Mr. Justice Story set forth broad principles, which have been followed ever since in determining whether reprosecution constitutes double jeopardy:

"We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the

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act, or the ends of public justice whould otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office." 22 U.S. (9 Wheat.) at 580.

In applying the Perez standards to the facts of this case, we must determine whether in the light of all the circumstances the trial court exercised sound discretion in concluding that a mistrial was warranted by manifest necessity or by the ends of public justice. Obviously, there was no manifest necessity in the sense that it was clearly evident that mistrial was unavoidable, as it is, for example, when the jury is unable to agree or a juror becomes incapacitated. See e. g., United States v. Perez, supra; United States v. Potash, 118 F.2d 54 (2d Cir.), cert. denied, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540 (1941). 6 But the Court has never held that the Perez doctrine of manifest necessity implies an absolute need. Instead, it has read the requirement of manifest necessity in the light of the Perez concept of public justice. See Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Perez's public justice policy embraces two components, "a defendant's valued right to have his trial completed by a particular tribunal," and "the public's interest in fair trials designed to end in just...

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