491 F.2d 507 (6th Cir. 1974), 73-1628, Thomas v. Beasley

Docket Nº:73-1628.
Citation:491 F.2d 507
Party Name:Fate THOMAS, Sheriff, Nashville Metropolitan Jail, Appellant, v. Mark Jerome BEASLEY, Appellee.
Case Date:February 05, 1974
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 507

491 F.2d 507 (6th Cir. 1974)

Fate THOMAS, Sheriff, Nashville Metropolitan Jail, Appellant,

v.

Mark Jerome BEASLEY, Appellee.

No. 73-1628.

United States Court of Appeals, Sixth Circuit.

February 5, 1974

Argued Dec. 3, 1973.

Page 508

W. Henry Haile, Asst. Atty. Gen., of Tennessee, Nashville, Tenn., on brief, for appellant; David M. Pack, Atty. Gen., of Tennessee, of counsel.

Harold D. Hardin (Court-appointed) Nashville, Tenn., on brief, for appellee.

Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.

PHILLIPS, Chief Judge.

District Judge L. Clure Morton granted Mark Jerome Beasley's application for a writ of habeas corpus. The decision of the District Court was based upon a finding that Beasley already had been put in jeopardy for the offense for which he was being held in custody awaiting trial, in violation of the Fifth Amendment to the Constitution of the United States. The Fifth Amendment is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 793, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

The State of Tennessee appeals. We affirm.

Beasley was arrested and jailed in November 1971. Along with three others he was indicted for armed robbery in January 1972 and trial was set for June 1972. Beasley was represented by an attorney in the office of the Public Defender of Davidson County, Tennessee. On the day of the trial the Public Defender announced that he had a serious conflict of interest and could not represent both Beasley and one of his co-defendants. Thereupon an attorney in private practice was appointed by the State trial court to represent Beasley. The case was continued again on September 18, 1972, because the chief prosecution witness was observing a religious holiday. At that time Beasley's motion to dismiss for lack of a speedy trial was denied.

The case came to trial on September 19, 1972. A jury was impaneled and sworn and testimony commenced. The State's first witness, the prosecutrix, had completed a substantial portion of her testimony before the court recessed for lunch. During the lunch recess, the State trial judge learned that counsel for two of the other defendants (but not including Beasley) had served previously as special night judge of the Court of General Sessions of the Metropolitan Government of Nashville and Davidson County, and in that...

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