Thomas v. Beasley, 73-1628.
| Citation | 491 F.2d 507 |
| Decision Date | 05 February 1974 |
| Docket Number | No. 73-1628.,73-1628. |
| Parties | Fate THOMAS, Sheriff, Nashville Metropolitan Jail, Appellant, v. Mark Jerome BEASLEY, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
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.
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 capacity had signed the arrest warrants for the defendants. Due to this discovery, the trial judge stated that his only alternative was to declare a mistrial and requested defense counsel to consent thereto. Three defendants agreed to a mistrial, but Beasley objected.
Instead of proceeding with the trial of Beasley before the jury which already had heard a substantial part of the testimony of the prosecutrix, the State trial judge declared a mistrial as to Beasley over his objection, denied Beasley's motion for a severance, and reset the case for trial at a later date. When the case was called again for trial, Beasley entered a plea of double jeopardy and renewed his motion to dismiss for lack of a speedy trial. The State trial judge overruled both the plea of double jeopardy and the motion to dismiss for lack of a speedy trial. Thereafter, he also dismissed Beasley's petition for rehearing.
Thereupon Beasley filed a petition for certiorari and supersedeas in the Tennessee Court of Criminal Appeals, raising his defense of double jeopardy. The Court of Criminal Appeals dismissed the petition and the Supreme Court of Tennessee denied certiorari in unpublished decisions.
At the time the writ of habeas corpus was granted by the District Court on February 9, 1973, Beasley had been confined in jail continuously since November, 1971.
We agree with the District Court that jeopardy attached at the first trial and that Beasley's plea of double jeopardy is a conclusive bar to retrial. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).
The prohibition of the Double Jeopardy Clause "is not against being twice punished, but against being twice put in jeopardy ...." United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896).
We are unwilling to hold that Beasley must be returned to jail and be confined there pending a second trial, which clearly would be barred by his double jeopardy plea. As District Judge Morton said,
The State contends that the writ was granted prematurely because Beasley has not exhausted his State remedies. It is argued that he should be subjected to a second trial, where his plea of double jeopardy again would be entered; and that if Beasley should be convicted at the second trial, the appellate courts of Tennessee ought to be afforded an opportunity to pass upon the plea on its merits.1
The exhaustion of remedies contention is answered conclusively...
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