Mizell v. Attorney General of State of N. Y., 227

• Decision Date: 30 October 1978
• Docket Number: No. 227,D,227
• Citation: 586 F.2d 942
• Parties: James MIZELL, Petitioner-Appellee, v. The ATTORNEY GENERAL OF the STATE OF NEW YORK and ano., Respondents-Appellants. ocket 78-2059.
• Court: U.S. Court of Appeals — Second Circuit

Page 942

586 F.2d 942

James MIZELL, Petitioner-Appellee, v. The ATTORNEY GENERAL OF the STATE OF NEW YORK and ano Respondents-Appellants.

No. 227, Docket 78-2059.

United States Court of Appeals Second Circuit.

Argued Sept. 27, 1978.

Decided Oct. 30, 1978.

Steven Lloyd Barrett, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City), for petitioner-appellee.

John M. Farrar, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., Robert L. Schonfeld, Asst. Atty. Gen., New York City, of counsel), for respondents-appellants.

Before FRIENDLY and MULLIGAN, Circuit Judges, and WYATT, District Judge. ^*

MULLIGAN, Circuit Judge:

James Mizell was convicted on September 10, 1971 in New York Supreme Court, Kings County, of robbery, petty larceny, assault and possession of a dangerous weapon. The record in the state court indicated that a jury of twelve plus two alternates was duly impaneled and sworn late in the afternoon of Wednesday, March 24, 1971. The state court judge gave the jury preliminary instructions and adjourned the case to the following morning. Mizell's counsel requested a Wade hearing to determine the admissibility of certain identification testimony. A hearing was held and the court found that the testimony was admissible. At this point (2:45 p. m. on Thursday, March 25) the Assistant District Attorney advised the court that two state witnesses who had been subpoenaed had failed to appear. One had gone to North Carolina because of a death in the family and the other had simply failed to make an appearance. The Assistant District Attorney requested a continuance until the following Monday.

At that point the following colloquy took place:

The Court: What am I going to do with that jury, Mr. Turner?

Mr. Turner (Assistant District Attorney): Your Honor, since the jurors are serving their first week this week, they would be serving next week as well. I don't think it would be a hardship on those jurors because we wouldn't be holding them past their service. However, if the Court feels that it would be a hardship on the jury, then the people would have to move at this time for a discharge of the jury.

The Court: Are you so moving?

Mr. Turner: Well, I would first ask that the Court rule on my application to keep the jury.

The Court: Denied.

Mr. Turner: Then in that case, your Honor, the people would have to move for a discharge of the jury.

The Court: All right, that motion is granted. The Court is basing its ruling (on) the case of the matter of Roy Bland (phonetic) and also the matter of William Maury (Murray) (phonetic), which is decided in 20 New York 2nd, Page 552 (285 N.Y.S.2d 597, 232 N.E.2d 633). All right, bring in the jury. Discharge them.

Mr. Albert (Petitioner's Counsel): If your Honor please, I'd like to note my exception.

The Court: You have an exception.

The case was called for trial again before a new jury on Tuesday, March 30, 1971 but a mistrial was subsequently declared when the jury failed to agree on a verdict. Mizell was eventually found guilty by another jury. At sentencing on September 10, 1971, Mizell's counsel moved to dismiss the indictment on the ground of double jeopardy. The motion was denied. On appeal to the Appellate Division of the Supreme Court, the State of New York, Second Department, the judgment of conviction was affirmed without opinion on February 26, 1973. Leave to appeal to the Court of Appeals was denied on April 6, 1973. The State concedes that Mizell has fully exhausted his state remedies.

On November 29, 1976 Mizell filed a pro se application for a writ of habeas corpus in the United States District Court for the Eastern District of New York raising the issue that jeopardy had attached when the first jury was sworn in on March 24, 1971. The State contended that under the "New York rule" at the time of Mizell's three trials a defendant was not placed in jeopardy until a witness was sworn. ¹

In a memorandum and order filed on December 30, 1977 ² Hon. Eugene H Nickerson, United States District Judge, Eastern District of New York, issued a writ of habeas corpus finding that under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the states were bound to follow the rule of Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) that jeopardy attaches as soon as a jury is sworn. He further found that the discharge of the jury was not required by "manifest necessity" or the "ends of public justice." Illinois v. Somerville,410 U.S. 458, 468, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973). We agree with the District Judge but, since Mizell has been released from custody, we vacate the judgment appealed from and remand to the District Court for consideration of a new judgment containing an appropriate remedy.

In Downum v. United States, supra, it became established law that if a defendant were tried in a federal court, jeopardy would attach as soon as the jury was sworn. See Illinois v. Somerville, supra; United States ex rel. Bland v. Nenna, 282 F.Supp. 754 (S.D.N.Y.), aff'd, 393 F.2d 416 (2d Cir.), cert. denied, 392 U.S. 941, 88 S.Ct. 2323, 20 L.Ed.2d 1403 (1968). Under Palko v. Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed.2d 288 (1937) it was reasonably clear that federal double jeopardy standards did not apply to the states and that the Fourteenth Amendment did not protect the defendant against a double jeopardy claim unless he was subjected to a "hardship so acute and shocking that our policy (would) not endure it." However, in Benton v. Maryland, supra, Palko was overruled and the double jeopardy clause was held to be so fundamental to our scheme of justice that "the same constitutional standards apply against both the State and Federal Governments." 395 U.S. at 795, 89 S.Ct. at 2063. In his opinion below Judge Nickerson rejected the State's contention that the difference between the federal and New York rules concerning when jeopardy attaches was merely technical or mechanical. Rather, Judge Nickerson found that "(t)he composition of a particular jury is crucial" to the defendant's interest, and that the double jeopardy clause protects the defendant's "valued right to have his trial completed by a particular tribunal." Mizell v. Attorney General of the State of New York, 442 F.Supp. 868, 871-72 (E.D.N.Y.1977). We fully subscribe to the reasoning articulated in the district court and see no reason to repeat it here. In fact, after the filing of the opinion below, the Supreme Court in Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), rejected as unconstitutional the Montana rule which, like the former New York law, provided that jeopardy attaches only after a witness is sworn. The Court stated:

Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court's decision in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial that jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn (citations and footnote omitted). 98 S.Ct. at 2160.

It is evident that the Supreme Court in Crist considered that the rule which was formulated by Downum in 1963 was made applicable to the states by Benton in 1969 and was not simply a mechanical or arbitrary rule of convenience. ³ Even if we were to accept the position of the State, that Crist has established new and overruling principles of law an argument which we reject it is our view that Crist should be fully applied retroactively.

The State relies on the three-pronged test of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) as the appropriate test of retroactivity. ⁴ However, that contention ignores Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) in which the Court stated:

The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. . . .

The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct. Mapp v. Ohio, supra (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). In Waller (Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970)), however, the Court's ruling was squarely directed to the prevention of the second trial's taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant.

409 U.S. at 508-09, 93 S.Ct. at 878.

Crist makes clear that the rule that jeopardy attaches as soon as the jury is sworn is not simply an arbitrary exercise in line drawing but rather "serves as the lynchpin for all double jeopardy jurisprudence" and is "an integral part of the constitutional guarantee against double jeopardy." 98 S.Ct. at 2162.

In sum, we conclude that Judge Nickerson properly decided that the...