Brady v. Samaha

• Decision Date: 18 December 1981
• Docket Number: No. 81-1406,81-1406
• Parties: Eileen M. BRADY, Martha Brickett, Robert R. Cushing, Jr., Kristie Conrad, Eleanor B. Mullaley, and Kirk M. Stone, Petitioners-Appellants, v. Unwar J. SAMAHA, Clerk, Rockingham County Superior Court, Respondent-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 224

667 F.2d 224

Eileen M. BRADY, Martha Brickett, Robert R. Cushing, Jr.,

Kristie Conrad, Eleanor B. Mullaley, and Kirk M.

Stone, Petitioners-Appellants, v. Unwar J. SAMAHA, Clerk, Rockingham County Superior Court,

Respondent-Appellee.

No. 81-1406.

United States Court of Appeals, First Circuit.

Argued Oct. 9, 1981.

Decided Dec. 18, 1981.

Benjamin Hiller, Cambridge, Mass., with whom Goldstein, Pressman & Stern, and Penn S. Moulton, Cambridge, Mass., were on brief, for appellants.

Brian T. Tucker, Atty., Criminal Justice Division, Concord, N.H., with whom Gregory H. Smith, Atty. Gen., New York City, was on brief, for appellees.

Before BOWNES and BREYER, Circuit Judges, and WYZANSKI, ^* Senior District Judge.

BOWNES, Circuit Judge.

Defendants-appellants ^** were prosecuted in state court on charges of criminal trespass stemming from their arrests at a demonstration at the construction site of the Seabrook nuclear power plant, Seabrook, New Hampshire. The joint trial of the six defendants ¹ began on May 8, 1979, and was terminated on May 11 by the trial judge's sua sponte declaration of a mistrial. In November, 1979, when their retrial was scheduled, the defendants moved to dismiss based on double jeopardy. After the motion was denied, they appealed to the New Hampshire Supreme Court, which upheld the trial court's mistrial order and found no bar to a second prosecution. State v. Brady, 120 N.H. 899, 424 A.2d 407 (1980). Their petition for habeas corpus was denied by the District Court for the District of New Hampshire and they now seek federal appellate relief. Since the disposition of this case depends on a careful review of the trial record, we set out the facts in some detail.

The defendants chose to represent themselves at their jury trial. The judge agreed at the outset that the objections of any one of them would be deemed to be the objections of all. The trial, which lasted three days before the judge terminated it, consisted of the state's case in chief and one day's testimony by defense witnesses.

It was clear throughout their cross-examination of the state's witnesses that the defendants intended to inject the issue of the dangers of nuclear power into the case. Their theory apparently was that their motives in going onto the construction site-publicizing the hazards of nuclear power and acting according to conscience and political beliefs-were relevant to the mental element of trespass, i.e., knowledge that they lacked a license or privilege to be there. N.H.Rev.Stat.Ann. ch. 635, § 2. All of the defendants in their cross-examinations made reference to the potential dangers of nuclear energy. An illustrative example is the following question asked by defendant Conrad: "Are you aware that death and acute illness from nuclear accident would occur in an area 20 miles around the plant, causing thyroid illness, and plant and water contamination?" Defendant Brady asked one of the security guards from the plant, "Do you have any reason to believe that the defendants were present at the site for any other reason than that they believed nuclear power to be dangerous?" ²

The heart of the defense was the competing harms doctrine, N.H.Rev.Stat.Ann. ch. 627, § 3, which provides in pertinent part: "Conduct which the actor believes to be necessary to avoid harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged."

It first became apparent that this defense theory would be used during cross-examination by defendant Mullaley, when she explicitly referred to the competing harms statute. The judge ruled at that time that he would not allow evidence with reference to competing harms because the New Hampshire Supreme Court had held the doctrine inapplicable in another Seabrook plant trespass case, State v. Dorsey, 118 N.H. 844, 395 A.2d 855 (1978). Evidently undeterred, Mullaley asked one more question about competing harms, to which the judge sustained an objection.

Despite the judge's prior rulings on competing harms, the opening statements of all six defendants, made at the close of the state's case, referred to the dangers of nuclear power. ³ Then, during his examination of one witness, defendant Stone, again ignoring the court's rulings, attempted to question the witness about the competing harms statute. The judge sustained objections to numerous questions by defendant Cushing relative to nuclear power, sentences in trespass cases, the American judicial system and similar irrelevant topics. Some of these rulings prompted Cushing to argue with the court. The following colloquy is the last such argument in the presence of the jury and, as we read the record, the most extreme:

Q. (by defendant Cushing): Chuck, do you know anything about the potential for catastrophe at the nuclear power plant?

Mr. McFarlane: I object.

The Court: Sustained. Mr. Cushing, another ruling, this courtroom is not going to be a forum to discuss nuclear power, its dangers, its safety, its necessity or any other issue related to it. That is the order of this trial. Your exception may be noted.

Defendant Cushing: Your honor, the charge says, the charge mentions the word Seabrook nuclear site.

The Court: That does not put the issue of nuclear power before this Court. There will be no further interrogation with reference to nuclear power. That is an order of the Court and the law of the trial.

Defendant Cushing: Do you think we went to the site for some reason other than nuclear power?

The Court: Don't argue with the Court, Mr. Cushing.

Defendant Cushing: I am just asking for justice. I am asking to have speech. I am asking to be allowed to present my case before a jury, that is all.

The Court: In the case of State v. Dorsey was very clear this type of evidence is not admissible.

Defendant Cushing: That was before Three Mile Island went.

The Court: It is still the law of the State. It will be strictly enforced by this Court. The jury will be excused. I will see you at 9:30 tomorrow morning. The defendants will remain in the courtroom.

After the jury had been sent out, the judge explained his rulings on the inadmissibility of certain evidence since "apparently there (had been) some misunderstanding...." He then advised the defendants to read a case concerning the punishment for contempt ⁴ and asked if his order was clear. Defendant Stone proceeded to argue with the court regarding its rulings, and the other defendants indicated that they did not understand the order, since they had expected to be able to present a competing harms defense. The judge then stated that in order to prevent misunderstanding he would provide them with a written order the following morning to govern the conduct of the balance of the trial, and adverted to his contempt powers to enforce it.

The next morning, after the defendants had been given copies of the order, the court appointed standby counsel and heard the defendants with regard to the order outside the presence of the jury. When the court stated that one reason for the order was that defendant Cushing had refused to abide by previous oral rulings, defendant Conrad objected, arguing that all six of them had been asking the same kinds of questions and calling the judge arbitrary for singling out Cushing. When it was Cushing's turn to speak, he accused the court of being "personally embroiled" in the case, of setting the defendants up for "a kangaroo court type situation," called the order illegal and the trial a disgrace, and generally vented his anger and frustration at the judge. Later, in a shorter monologue, defendant Stone called the trial a farce and stated that he no longer believed in the American judicial system. At this point, the judge enumerated Cushing's statements, said that he found them all contemptuous, and then declared a mistrial, stating:

Just a moment. The Court finds that those comments are contemptuous. The Court further finds that the actions of Mr. Cushing during the course of this trial would render the continuance of it unfair to the remaining defendants. The Court finds that the defendant Cushing is in contempt of Court and sentences him to fifteen days at the House of Corrections. And the remaining cases, ⁵ the Court orders a mistrial. Clear the courtroom.

As the above indicates, the mistrial decision was made quickly and without consultation with either standby counsel for the defendants or the prosecutor. Several hours later, the court vacated its contempt order.

The constitutional protection against double jeopardy does more than merely prohibit a second trial after a defendant has been acquitted; it "also embraces the defendant's 'valued right to have his trial completed by a particular tribunal.' " Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978) (footnote omitted), quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The principle behind this protection

is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

While recognizing the importance of the defendant's right to have his trial completed by a particular tribunal, the Supreme Court has determined that certain circumstances present in the first trial may justify subordinating that right "to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Arizona v. Washington, 434 U.S. at 505, 98 S.Ct....