Jones v. Hogg

• Decision Date: 12 April 1984
• Docket Number: No. 83-5529,83-5529
• Citation: 732 F.2d 53
• Parties: Elhannon JONES, Jr., Petitioner-Appellant, v. F. Byrd HOGG, Special Judge, Perry Circuit Court, Hazard, Kentucky, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 53

732 F.2d 53

Elhannon JONES, Jr., Petitioner-Appellant, v. F. Byrd HOGG, Special Judge, Perry Circuit Court, Hazard, Kentucky, Respondent-Appellee.

No. 83-5529.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 6, 1983.

Decided April 12, 1984.

William M. Scalf, Carolyn Geisler, argued, Lexington, Ky., for petitioner-appellant.

James M. Ringo, Asst. Atty. Gen., argued, Frankfort, Ky., for respondent-appellee.

Before MARTIN and KRUPANSKY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Elhannon Jones, Jr. appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Secs. 2241 and 2254.

Jones has been prosecuted three times by the Commonwealth of Kentucky for the offense of murder, KRS 507.020(1)(a). Each trial ended in a hung jury. After each trial, a mistrial was declared. Each of the three trials was presided over by a different trial judge and prosecuted by a different Commonwealth attorney. Each trial appears to have lasted only one day. The record reveals little else, making an informed decision as to what influenced the declaration of each mistrial very difficult.

When a fourth trial date was set, Jones moved to dismiss the indictment, and for relief from the Kentucky Court of Appeals. His motion to dismiss was denied, as well as his request for appellate relief. The decision was upheld by the Kentucky Supreme Court. Jones v. Hogg, Ky., 639 S.W.2d 543 (1982).

After exhausting his remedies in the state courts, Jones sought a writ of habeas corpus in the district court claiming that a fourth prosecution was barred by the double jeopardy clause of the fifth amendment. In concluding that a fourth prosecution was not barred by the Constitution, the district court stated that "since the jury was unable to reach a unanimous verdict in this case, it was within the [trial] court's discretion to discharge the jury and declare a mistrial." Furthermore, because Jones had failed to allege any bad faith conduct by the trial judge or prosecutor, or show an abuse of discretion in the mistrial declaration and setting the case for a fourth trial, the district court held that "any allegation that [Jones'] Fifth Amendment rights have been violated is without merit."

On appeal, Jones contends that the double jeopardy clause prohibits the state from prosecuting him a fourth time. Because we find the record below wholly inadequate to render a proper disposition on the constitutional claims raised in Jones' petition, we reverse the district court's order denying Jones' petition for a writ of habeas corpus.

The Constitution directs that no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const. Amend. V. This was made applicable to the states in Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). The double jeopardy clause, however, is not an absolute bar to retrial in every case. A defendant may be retried where a "manifest necessity" exists to declare a mistrial in his initial prosecution. A deadlocked jury is a classic example of manifest necessity. United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824); Arizona v. Washington, 434 U.S. 497, 505-506, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17 (1976) (per curiam); United States v. Brown, 677 F.2d 26, 27 (6th Cir.1982); United States v. Sisk, 629 F.2d 1174, 1178 (6th Cir.1980).

At the same time however, the Supreme Court has recognized that the fifth amendment's prohibition against placing a defendant twice in jeopardy reflects a constitutional policy of finality for the defendant's benefit in all criminal proceedings, and is "fundamental to the American scheme of justice." United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion); Benton v. Maryland, supra, 395 U.S. at 796, 89 S.Ct. at 2063. As stated in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957);

The underlying idea, one that is deeply ingrained in the Anglo-American system of jurisprudence, 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, 355 U.S. at 187-188, 78 S.Ct. at 223. See also Jorn, 400 U.S. at 479, 91 S.Ct. at

554. The Court has stated that the Double Jeopardy Clause grants a defendant a "valued right to have his trial completed by a particular tribunal." Jorn, 400 U.S. at 484, 91 S.Ct. at 556, quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); see also Arizona v. Washington, supra, 434 U.S. at 503, n. 11, 98 S.Ct. at 829, n. 11. A state is not free to engage in oppressive practices which subject an accused to repeated prosecutions in an attempt to gain a criminal conviction. See Swisher v. Brady, 438 U.S. 204, 215-216, 98 S.Ct. 2699, 2706, 57 L.Ed.2d 705 (1978); United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976). A contrary rule would violate the notions of fair play and substantial justice associated with our constitutional criminal justice system, State v. Witt, 572 S.W.2d 913, 917 (Tenn.1978), and greatly increase the risk that innocent individuals will be found guilty, Carsey v. United States, 392 F.2d 810, 813-814 (D.C.Cir.1967).

Ultimately, as is the case here, courts are left with a crucial question: When is a retrial of a defendant prohibited by the fifth amendment because earlier prosecutions have been terminated before a jury verdict has been reached? In answering this question the courts have correctly avoided drawing any per se rules in balancing the competing interests. Arizona v. Washington, supra, 434 U.S. at 506-507, 98 S.Ct. at 830-31; Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973); Sisk, supra, 629 F.2d at 1177. Instead, the courts have recognized that each claim must be analyzed according to the facts of the particular case. Whitfield v. Warden of Maryland House of Correction, 486 F.2d 1118, 1121-22 (4th Cir.1973), cert. denied, 419 U.S. 876, 95 S.Ct. 139, 42 L.Ed.2d 116 (1974); State v. Williams, 51 N.C.App. 613, 277 S.E.2d 546, 549 (1981). But the courts have not been without direction on this point. In United States v. Perez, supra, Justice Story set forth the standard for determining when a retrial of a defendant is permissible after a mistrial, where there is no consent of the accused.

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

Perez, 22 U.S. (9 Wheat) at 580. The Perez court held a defendant could be retried even after the trial judge had, without the consent of the defendant, discharged the jury because of its inability to reach a verdict. The manifest necessity test of Perez has been consistently followed. Arizona v. Washington, supra; Jorn, supra; United States v. Sanford, supra; Wade v. Hunter, supra; Keerl v. Montana, 213 U.S. 135, 137, 29 S.Ct. 469, 470, 53 L.Ed. 734 (1909); Hamm v. Jabe, 706 F.2d 765, 767 (6th Cir.1983). Manifest necessity does not mean absolute necessity, but rather a "high degree" of necessity before a mistrial can be properly invoked. Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. at 831.

However, the trial court's power to exercise discretion is not without limits. "[D]iscretion does not equal license; the Fifth Amendment's guarantee against double jeopardy would be a sham if trial judges' declarations of 'necessary' mistrials were in fact to go unreviewed." Sisk, 629 F.2d at 1178. The Supreme Court has further stated that "the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's [valued right to have his trial completed by a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings." Jorn, 400 U.S. at 485, 91 S.Ct. at 557; Cherry v. Director, State Bd. of Corrections, 635 F.2d 414, 418 (5th Cir.1981); id. at 422 (concurring opinion). Well aware of the important constitutional interests at stake, several circuits have required that trial courts permit the accused an opportunity to oppose a mistrial order and consider all possible alternatives before declaring a mistrial. Harris v. Young, 607 F.2d 1081, 1085 (4th Cir.1979); United States v. MacQueen, 596 F.2d 76, 82-83 (2d Cir.1979); United States v. Pierce, 593 F.2d 415, 417 (1st Cir.1979); United States v. Sanders, 591 F.2d 1293, 1299 (9th Cir.1979); United States v. McKoy, 591 F.2d 218, 222 (3d Cir.1979); United States v. Starling, 571 F.2d 934, 941 (5th Cir.1978). ¹

In determining whether sound discretion...