Jackson v. Walker

Decision Date04 December 1978
Docket NumberNo. 77-2278,77-2278
PartiesHarriet Marie JACKSON, Plaintiff-Appellee, v. Victor G. WALKER, Warden, Louisiana Correctional Institute for Women, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

W. C. Falkenheiner, Dist. Atty., Vidalia, La., for defendant-appellant.

Ronald J. Rakosky, Gregory Pechukas, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before COWEN *, Senior Judge of U.S. Court of Claims, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

This is an appeal by the government from the district court's ruling granting the appellee's petition for a writ of habeas corpus.

I.

On July 16, 1973, two men, armed and wearing disguises, entered the home of the Magee family in Concordia Parish, Louisiana. They tied up Mrs. Magee, took money and weapons from her purse, and then seized her 10-month-old daughter. The men attempted an escape in the Magees' car, but were chased and stopped by police. The child was recovered unharmed.

The appellee, Harriet Marie Jackson, was indicted for allegedly participating in this criminal enterprise. Jackson, a domestic worker for the Magees, allegedly helped plan and perpetrate the robbery and kidnapping. Evidence at her trial indicated that she knew the two men, helped plan the burglary and kidnapping in this case, allowed the men to enter and "case" the house on two prior occasions, helped them hide in a guest house on the premises on the day of the crime, and left a certain side door unlocked as planned for the men to enter the house.

On August 21, 1973, a grand jury indicted Jackson for aggravated kidnapping, armed robbery, and conspiracy to kidnap. The charges carried maximum sentences of life imprisonment, 99 years, and 20 years, respectively.

The state first tried Jackson for aggravated kidnapping. 1 The jury convicted her of the lesser included offense of simple kidnapping. The trial judge imposed the maximum sentence of five years imprisonment and a fine of $2,000. The Louisiana Supreme Court reversed on the ground that a statement the defendant made to police was inadmissible under the 6th Amendment. State of Louisiana v. Jackson, 303 So.2d 734 (1974).

Five months later, on April 9, 1975, Jackson was indicted again, this time for the crimes of aggravated burglary, armed robbery and aggravated kidnapping. 2 She was tried on the aggravated burglary charge. The jury convicted her on this charge, which carried a maximum sentence of 30 years. The judge sentenced Jackson to twelve years, with credit for time served. The conviction was affirmed by the Louisiana Supreme Court, State of Louisiana v. Jackson, 332 So.2d 755 (1976).

In September, 1976, Jackson filed a petition for federal habeas corpus alleging that the second indictment and trial were the result of prosecutorial vindictiveness, a violation of due process under Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The district court found that the second prosecution, coming after Jackson's successful appeal of a related conviction, created the reasonable apprehension of prosecutorial vindictiveness and thus constituted a per se violation of Jackson's constitutional right to due process. Three months later we decided Hardwick v. Doolittle 558 F.2d 292 (5th Cir. 1977). Hardwick, which interpreted Blackledge and related cases, makes it clear that in some cases the apprehension of vindictiveness is sufficient only to establish a prima facie showing of unconstitutional vindictiveness. Upon this showing, the burden shifts to the state to demonstrate that the reason for the increase in charging was other than to retaliate against the defendant for the exercise of her legal rights. If the state fails to meet this burden, the court must find actual vindictiveness 3 and a violation of the due process clause.

II.
A. Prosecutorial Vindictiveness after Blackledge and Hardwick.

In Blackledge the Supreme Court made clear that a prosecutor's discretion to reindict a defendant is limited by the due process clause. 4 In that case the defendant, convicted of an assault misdemeanor in a state court, claimed his right to a trial De novo in a higher court. The prosecutor then obtained a superseding indictment charging the defendant with a felony, assault with intent to kill, based on the same act as the earlier charge.

The Supreme Court held that the second indictment violated the due process clause. It said:

A person convicted of an offense is entitled to pursue his statutory right to a trial De novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's two-tiered appellate process.

417 U.S. at 28-29, 94 S.Ct. at 2103.

Significantly, the Court stated that it saw

no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment . . ., however, (is) not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, . . . 'since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the (prosecutor).'

417 U.S. at 28, 94 S.Ct. at 2102, quoting North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 5.

In effect Blackledge sets up a per se rule for some situations. It lays down the principle that in some situations a due process violation can be established by a showing that defendants might have a reasonable apprehension of prosecutorial vindictiveness, without a showing that the prosecutor actually had a vindictive or retaliatory motive to deter appeals.

There are at least two reasons for such a per se rule. First, it is difficult to prove in court the actual state of mind of a prosecutor during his exercise of discretion. And second, reindictments that look vindictive, even though they are not, may still make future defendants so apprehensive about the vindictiveness of prosecutors that they will be deterred from appealing their convictions.

However, these policies should not result in an unlimited per se rule. The due process policy must be reconciled with the countervailing policy of allowing the prosecutor broad discretion to control the decision to prosecute. Hardwick, 558 F.2d 292, 301. 6 See also U. S. v. Cox, 342 F.2d 167 (5th Cir.) (en banc), Cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).

In reconciling these two policies, Hardwick established a framework for the necessary limitation of Blackledge's per se rule.

In Hardwick, the defendant was originally indicted for robbing a bank and assaulting policemen during the robbery. After Hardwick's appeal, but before his retrial, a new prosecutor obtained a superseding indictment which charged Hardwick with two additional, relatively distinct criminal actions committed during the robbery episode robbery of a bank customer, and assault on a person whom Hardwick used as a shield in the gun battle with police.

In considering Hardwick's claims that the addition of the two new charges constituted prosecutorial vindictiveness, the court in Hardwick concluded that the showing of the reasonable apprehension of vindictiveness in its case established only prima facie proof of a due process violation. The court held that the showing transferred the burden onto the state to show that the prosecutor's motive was not actually vindictive. The court said, "the prosecutor may rebut this prima facie proof by establishing his reasons for adding the two new charges were other than to punish a pesky defendant for exercising his legal rights." 558 F.2d at 301.

The Hardwick court distinguished Blackledge on the ground that

"Blackledge involves the substitution of a more serious charge and not the making of a decision to initiate prosecution for alleged criminal activity."

The court continued:

Though these latter two events (the robbery of the bank customer and the assault on the bystander used as a shield) occurred in the same overall time interval as the acts covered by the first two indictments, they were different and distinct activities and thus were the subjects of discretionary prosecutorial decisions which up to then had not been made. These charges were not harsher variations of the same original decision to prosecute as in Blackledge. Under this court's decision in Cox, the court is not to interfere with the "free exercise of the discretionary powers of attorneys of the United States in their control of criminal prosecutions." 342 F.2d at 171. A fortiori, the discretion of a State prosecuting officer in making the decision to prosecute crime may not be controlled by a court unless it be established that his motives are in fact vindictive.

The apprehension of vindictiveness which controlled the decision in Blackledge had no effect on prosecutorial discretion because there the decision to prosecute Perry for this very assault on his fellow prisoner had already been made. On the other hand, if we were to adopt apprehension of vindictiveness as opposed to vindictiveness in fact to be the standard by which we judge whether new prosecutions for different criminal activities may be initiated, we would render the prosecutor's discretion meaningless in every case in which a defendant is initially indicted for less than all the violations his alleged spree of activity would permit. In such a situation, it is enough that a prosecutor, who decides to add charges to a prior indictment, prove that he did not in...

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