Buffington v. Copeland

• Citation: 687 F. Supp. 1089
• Decision Date: 13 May 1988
• Docket Number: Civ. A. No. SA-86-CA-988.
• Parties: James G. BUFFINGTON, Petitioner, v. Harlan COPELAND, Sheriff of Bexar County, Respondent.
• Court: U.S. District Court — Western District of Texas

687 F. Supp. 1089

James G. BUFFINGTON, Petitioner, v. Harlan COPELAND, Sheriff of Bexar County, Respondent.

Civ. A. No. SA-86-CA-988.

United States District Court, W.D. Texas, San Antonio Division.

May 13, 1988.

Mark Stevens and John Hrncir, San Antonio, Tex., for petitioner.

Charles Palmer, Asst. Atty. Gen., Austin, Tex., for respondent.

ORDER

PRADO, District Judge.

The matter before the Court is the Findings and Recommendation of United States Magistrate Robert B. O'Connor, filed December 4, 1986. Owing to the novelty and difficulty of the legal issue raised by this habeas corpus petition, the Court heard oral arguments from the parties on March 15, 1988. After carefully reviewing the arguments of counsel and the relevant case law, the court is of the opinion that the Magistrate's recommendation should be ADOPTED and Petitioner's request for relief DENIED.

Judge O'Connor correctly framed the issue as requiring the Court to resolve whether prosecutorial misconduct, although not resulting in mistrial and not discovered until after the defendant was convicted, bars retrial of Petitioner under the Double Jeopardy Clause of the Fifth Amendment. Petitioner, James Buffington, was found guilty of capital murder and sentenced to death by a Bexar County jury. His conviction was reversed by the Texas Court of Criminal Appeals on the ground that the trial court erred in excluding two jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776 (1968); Buffington v. State, 652 S.W.2d 394 (Tex.Crim.App.1983). It is well settled that a Witherspoon error does not implicate the Double Jeopardy Clause, See Id. 391 U.S. at 521 n. 21, 88 S.Ct. at 1777 n. 21; Alderman v. Austin, 695 F.2d 124, 128 (5th Cir.1983), and Petitioner has not claimed that his retrial would be barred under Witherspoon. Although three judges on the en banc court in Buffington would have reversed the conviction on the grounds of prosecutorial misconduct and barred retrial, the majority decision was based only on the Witherspoon error.

In 1982 the United States Supreme Court decided Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416. The Kennedy decision narrowed the standard enunciated in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), which allowed a defendant to escape retrial where prosecutorial "overreaching" implicated constitutional rights protected under the Double Jeopardy Clause. Instead, the Kennedy standard focuses on the intent of the prosecutor:

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant's motion for a mistrial constitutes a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact. United States v. Scott, 437 U.S. 82, 93 98 S.Ct. 2187, 2195, 57 L.Ed. 2d 65 ... (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, the important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error. United States v. Dinitz, supra, 424 U.S., at 609 96 S.Ct. at 1080 ... Only where the government conduct in question is intended to goad the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

The facts in Kennedy differed significantly from the facts in the present case,¹ and courts and commentators have struggled with the question of whether the Kennedy standard applies to cases where there is no motion for mistrial and the prosecutorial misconduct is not discovered until after the verdict. See, e.g., United States v. Singer, 785 F.2d 228, 238-39 (8th Cir.1986); Ponsoldt, When Guilt Should Be Irrelevant: Government Overreaching as a Bar to Prosecution Under the Double Jeopardy Clause After Oregon v. Kennedy, 69 Cornell L.Rev. 76, 78 n. 11 (1983). There are at least three plausible interpretations of Kennedy's applicability to Petitioner's circumstances. The State argues that Kennedy establishes a per se rule that only bars retrial in the narrow circumstances where a mistrial has actually occurred and the prosecutor has goaded the defendant into making the motion. A second possibility is that the rationale behind Kennedy must be applied to Petitioner's circumstances and the reviewing court must ask whether the prosecutor's conduct was motivated by an intent to goad a mistrial or deny the defendant of his double jeopardy protections. A third possibility advanced by Petitioner is that a new test is required and he proposes the "Buffington" test whereby the Double Jeopardy Clause would bar retrial if (1) the prosecutor's conduct was sufficiently egregious; and (2) a sufficient likelihood existed that the first trial would have proceeded to acquittal absent the prosecutorial misconduct.

The Court rejects the Attorney General's suggested interpretation of Kennedy as overly narrow. The State's interpretation of the Kennedy decision would summarily reject Petitioner's claim solely on the grounds that the prosecutorial misconduct was not discovered until after a conviction. Several courts and commentators have observed that the applicability of the Double Jeopardy Clause should not turn on what stage in the proceedings error is discovered. E.g., Robinson v. Wade, 686 F.2d 298, 306-7 (5th Cir.1982); Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918, 921 (1978); Comment, Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983), 22 Duquesne L.Rev. 549, 564 (1984). The Court agrees that the Double Jeopardy Clause should not be so mechanically applied and therefore rejects the State's position.

The Court must also reject the interpretation of Kennedy offered by Petitioner's counsel. At oral argument counsel was quite candid in admitting that his proposed two pronged standard required an extension of existing case law. In light of the Kennedy court's retreat from the overreaching standard which governed prosecutorial misconduct under Dinitz, this Court is constrained to deny Petitioner's interpretation. The Court finds that the spirit of Kennedy, if not the letter, precludes a double jeopardy test which examines the egregiousness of the prosecutor's misconduct.

Rejection of these two conflicting interpretations of Kennedy leaves the middle ground of attempting to apply the Kennedy test outside the context of a successful motion for mistrial. Despite the Court's reservations about the wisdom of applying this test where no mistrial is involved,² and the Court's appreciation of Justice Stevens' criticism of an intent based test, see, 456 U.S. at 688-690, 102 S.Ct. at 2096-97, the Court will nevertheless attempt to apply Kennedy to the facts of this case.

Notwithstanding this Court's reservations about applying the Kennedy test to a factual situation where no mistrial motion was made, or quite possibly could have been made, the Court will attempt to apply the Kennedy test in light of two subsequent decisions from the Fifth Circuit Court of Appeals. This Court has once before analyzed the significance of Robinson v. Wade, 686 F.2d 298 (1982), and will not reiterate the facts of that case. The Robinson court did not resolve the particularly thorny question of whether the Kennedy test applied to situations where a mistrial was not declared. Instead, the Court declined to resolve the reach of the reprosecution bar because it found that the type of prosecutorial misconduct involved in Robinson was not the same type of overreaching preclusive of retrial under Oregon v. Kennedy. The Robinson court held:

Though uncertainty reigns elsewhere, the principles governing examination of a claim of prosecutorial overreaching are in the wake of Kennedy clear. Double jeopardy will bar reprosecution only if analysis of objective facts and circumstances, Kennedy 102 S.Ct. at 2089, shows that the conduct in question was intended to provoke a motion for mistrial, Kennedy 102 S.Ct. at 2091. A finding that the Government's acts do not amount to intentional misconduct is a finding of fact; ... as such, it will not be set aside unless shown to have been clearly erroneous. ... And only if overreaching is found will inquiry into whether the defendant suffered prejudice be made ... Hard blows, intended to improve the chances of obtaining a conviction, do not demand the remedy designed for foul ones to provoke a retrial. United States v. Fine, 644 F.2d 1018, 1023 (5th Cir.1981), cert. denied, 454 U.S. 1097 102 S.Ct. 669, 70 L.Ed.2d 638 (1982).... On the facts here presented there occurred no prosecutorial overreaching sufficient to bar Robinson's retrial. His plea of preclusion under the double jeopardy clause must be denied.

The Court interprets this passage from Robinson as establishing a two-prong test to determine whether prosecutorial misconduct will bar retrial under the Double Jeopardy Clause. First, the Court must determine whether the prosecutorial misconduct is of the type prohibited by Oregon v. Kennedy. Second, if the prosecutorial overreaching is of the same kind, the Court must then determine whether the defendant was prejudiced by the misconduct.

Although the Court directed Judge O'Connor to make a finding regarding the sufficiency of the evidence to support Mr. Buffington's first conviction absent the prosecutional misconduct and whether the misconduct therefore had an implication for Petitioner's guilt or innocence, upon reflection, this Court now considers that inquiry as only relevant to the second prong of the Robinson test. It is therefore unnecessary for this Court to review the contested finding of the Magistrate...