State v. Fletcher

• Decision Date: 15 May 1968
• Docket Number: No. 86216,86216
• Citation: 240 N.E.2d 905,15 Ohio Misc. 336
• Parties: , 44 O.O.2d 498 STATE v. FLETCHER et al.
• Court: Ohio Court of Common Pleas

Page 336

15 Ohio Misc. 336

240 N.E.2d 905, 44 O.O.2d 498

STATE v. FLETCHER et al.

No. 86216.

Court of Common Pleas of Ohio, Cuyahoga County.

May 15, 1968.

Michael H. Farrin, Asst. County Prosecutor, for the state.

Henry S. Golland, Cleveland, for defendant Michael Fletcher.

Elmer A. Giuliani, Cleveland, for defendant Willie Walker.

MANOS, Judge.

On the 10th of February, 1967, the defendants were indicted by a federal grand jury for a violation of Title 18, Section 2113, for the armed robbery of a federally insured banking institution. Defendant Fletcher entered a plea of guilty to this charge, but defendant Walker pleaded not guilty.

On the 1st day of May, 1967, a duly impanelled jury sitting in the Northern District of Ohio, Eastern Division, returned a verdict of 'not guilty' to the above indictment as to defendant Walker. The defendants were also indicted by the Cuyahoga County Grand Jury for the same alleged offense. The facts recited in that indictment were substantially identical to those contained in the prior federal indictment. After the defendant Walker successfully defended the charge in federal court, the prosecutor immediately pressed for trial on the state court indictment as against both defendants. The defendants entered a plea of former jeopardy and moved that the indictment be quashed. The state has responded by stating that the offense contained in the state indictment is an affront to the peace and dignity of the state of Ohio and is an offense separate from that for which the defendant was tried by the United States government. This court is therefore called upon to decide whether an accused who has been brought to trial and acquitted or convicted on a plea of guilty of a federal crime in a federal court may thereafter be prosecuted by state authorities in a state court for the same offense, if such offense is, in fact, a violation of state as well as federal law.

Although both the Fifth Amendment to the Constitution of the United States and Article I, Section 10 of the Ohio Constitution contain express prohibitions against subjecting any person to 'be twice put in jeopardy for the same offense,' prosecutions for the same offense in turn by both federal and state authorities are, by the decided case law in Ohio and the United States Supreme Court, permissible. State v. Shimman (1930), 122 Ohio St. 522, 172 N.E. 367, 73 A.L.R. 1502; Bartkus v. People of State of Illinois (1959), 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684.

It would appear, therefore, to be but a simple matter to reject the plea of double jeopardy of these defendants out of hand and proceed to trial against them again, this time in a state court, for offenses for which they have already been subjected to the risk of trial in a federal court. It would be a simple matter to do so but for the fact that this court for reasons which will be set out in detail below, is convinced that time and circumstance have so eroded the Bartkus decision, that that case is no longer a binding authority upon this court, that its dissenting opinions represent the current constitutional philosophy of a majority of the United States Supreme Court, and that, as the case at bar moves through its appellate stages, that court will so rule ultimately, thereby striking down, as a matter of fundamental due process, the Ohio case authority on the subject. So convinced, the court is faced with the grave question of whether its independent judicial function at the trial level would best be served (1) by adhering narrowly and precisely to one holding in Bartkus, thereby compelling these defendants to stand trial again and to seek relief from the constraints of the Bartkus rule elsewhere than in this court, or (2) by anticipating the overruling of Bartkus upon appellate review and sustaining the validity of the plea of former jeopardy here and now. In the former instance, these defendants would be required to undergo the stress of a second trial before the ultimate fate of the Bartkus rule is known; in the latter instance, they would be subjected to the rigors of a trial again only, if and when, this court's notions of the weakness of Bartkus as binding constitutional doctrine have been laid to rest by specific contrary holding of appellate courts to whose authority this court is subject and whose power to reverse or alter trial court decisions is readily admitted.

If this court is to perform its responsibility to protect the rights of the accused and integrity of the judicial process, it must not oppress these defendants with immediate risk of criminal conviction from which it regards them to be constitutionally immune, until the ultimate appellate authority has ruled otherwise. Presumably the law enforcement authorities in Cuyahoga County will seek appellate reversal of this trial court decision, and its author invites them to do so. If their vigorous and effective appellate presentation should persuade a superior court that this inferior court's view of Bartkus as a historic pile of rubble is in error, then and, only then, will this court permit the retrial of these defendants in an Ohio court. If their appellate arguments are unsuccessful, these defendants will not have been subjected needlessly to the rigors of standing trial before a second governmental authority for the same offense.

Accordingly, this court rules that the plea of former jeopardy of defendants Fletcher and Walker is well taken; that their motion to quash the indictments against them are granted; and that, to the extent that Bartkus v. People of State of Illinois and State v. Shimman are inconsistent with this ruling, those decisions are deemed not to be binding authority upon this court.

We turn to consideration of this court's reasons for holding that the majority opinion in Bartkus is no longer precedent which this court is bound to follow.

In Bartkus, after a federal acquittal of a charge of robbery of a federally insured savings and loan association, the accused was tried in a state court for armed robbery and as a habitual criminal. Both state and federal prosecutions arose out of the same acts. The defense plea of double jeopardy was rejected and the accused was convicted of the state charge in the state court. After the state conviction had been affirmed by the state appellate courts, the United States Supreme Court granted certiorari and, in a 5-4 decision, once again affirmed the conviction.

The majority, testing successive federal and state prosecutions against the standards of the Fourteenth Amendment due process for the first time, ¹ held that, even though double jeopardy was explicitly prohibited by the Fifth Amendment to the United States Constitution, the defendant's exposure to both federal and state prosecution for the same offense was not constitutionally offensive.

The grounds upon which the majority upheld the double prosecution were (1) that neither the double jeopardy provision of the Fifth Amendment nor any of the other provisions of the first eight amendments to the Constitution of the United States were applicable to the states by operation of the Due Process Clause of the Fourteenth Amendment, 359 U.S. 121, 124-127, 79 S.Ct. 676; and (2) that the appropriate function of our federal sytem requires the application of the 'two sovereignty' principle, ² id. at 134, 79 S.Ct. 676, to defeat claims of double jeopardy arising out of successive prosecutions in federal and state jurisdictions, 359 U.S. 121, 129-139, 79 S.Ct. 676.

Were this a matter of first impression, this court would be persuaded by neither of these arguments. For '(f)ear and abhorence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times.' Bartkus v. People of State of Illinois (1959), 359 U.S. 121, 151, 79 S.Ct. 676, 696, (dissenting opinion). 'Few principles have been more deeply 'rooted in the traditions and conscience of our people" Id. at 155, 79 S.Ct. at 697. If double jeopardy is so basic a requirement of justice, it follows that '(i)t is just as much an affront to human dignity and just as dangerous to human freedom for a man to be punished twice for the same offense, once by a state and once by the United States, as it would be for one of these two governments to throw him in prison twice for the same offense.' Abbate v. United States (1959), 359 U.S. 187, 203, 79 S.Ct. 666, 675, (dissenting opinion). For this court is not convinced 'that a State and the Nation can be considered two wholly separate sovereignties for the purpose of allowing them to do together what, generally, neither can do separately.' Ibid. Accordingly, freed of the fetters of stare decisis, this court would unhesitatingly reject such arguments in the name of dual sovereignty and technical federalism as antithetical to our entire national purpose and to that very federalism to which they pay lip service. And it would do so resolutely whether its authority for so ruling rested upon the Double Jeopardy Clause of the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment, the Double Jeopardy Clause of the Constitution of this state, or any combination of such constitutional authorities.

But this is not an open question. Bartkus v. People of State of Illinois, on almost identical facts to those in issue here, reached a different conclusion, and must be dealt with.

Fortunately, however, the bare majority decision in Bartkus was neither so compellingly logical at the time it was written, nor has it stood so well the test of time in the scant nine years since it was decided as to require this court's blind adherence to such a pernicious doctrine. For it is apparent that the flesh and muscle of both of Bartkus' supporting arguments have so withered away that the bare bones of the illogic of that decision stand exposed to the entire jurisprudential community, leaving that...