# Tommy McNeal v. William Hollowell, Superintendent, Mississippi State Penitentiary > Court of Appeals for the Fifth Circuit · November 23, 1973 · 481 F.2d 1145 URL: https://www.frixlaw.com/law-library/cases/9459675 ## Case - **Full name:** Tommy McNEAL, Petitioner-Appellant, v. William HOLLOWELL, Superintendent, Mississippi State Penitentiary, Respondent-Appellee - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** November 23, 1973 - **Citations:** 481 F.2d 1145; 1973 U.S. App. LEXIS 6881 - **Precedential status:** Published - **Opinion:** Dissent by Coleman - **Judges:** Brown, Coleman, Dyer - **Cited by:** 50 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459675 ## How later opinions describe it (automated extraction) - holding that a trial judge’s decision to grant State’s request for a mistrial in order to allow the State an opportunity to shore up weaknesses in its case against the defendant did not meet the manifest-necessity requirement - holding double jeopardy 40 protections applied when government's case lacked proof after witness, who had participated in the crime, invoked his Fifth Amendment protection against self- incrimination without government seeking an agreement to secure testimony - holding double jeopardy protections applied when government's case lacked proof after witness, who had participated in the crime, invoked his Fifth Amendment protection against self-incrimination without government seeking an agreement to secure testimony ## Opinion text COLEMAN, Circuit Judge (dissenting) : As he invariably does, my Brother Dyer has written a perfectly constructed opinion, distinguished for its clarity. I agree with its splendid exposition of constitutional principles generally applicable to double jeopardy. The problem is that I do not agree with the majority’s application of those principles to McNeal’s case. When James Bogan Weems went to work on March 9, 1968 there was no reason to anticipate that before the day was out he would be a corpse, made so by an armed robber, who escaped to Chicago, where he was later apprehended and extradited. Nevertheless, all persons, including killers, are entitled to certain specified protections vouchsafed by the Constitution of the United States. On post-conviction collateral attack, however, we should be certain that the Constitution requires it before we set free a convicted murderer. We could readily rely on the able reported opinion of the United States District Judge, who held that McNeal was entitled to no relief, McNeal v. Collier, 353 F.Supp. 485 (N.D., Miss., 1972). I must, however, make some observations of my own. McNeal’s conviction was affirmed on appeal, McNeal v. State, 231 So.2d 491 (Miss.1970). The question of double jeopardy was not raised either in the trial court or on appeal. After the State Supreme Court had affirmed the conviction, petitioner retained new counsel for the purpose of launching a collateral attack. Leave to file a petition for writ of error coram nobis was denied, § 1992.5 Mississippi Code of 1942. The federal habeas corpus proceedings followed. Almost from the beginning it has been held that the defense of double jeopardy must be raised at the trial, else it is waived, United States v. Wilson, 32 U.S. 150 , 8 L.Ed. 640 (1833). This principle has been reiterated in numerous cases. As recently as 1967, the Fifth Circuit reaffirmed it, Grogan v. United States, 5 Cir., 1967, 394 F.2d 287 , cert. denied 393 U.S. 830 , 89 S.Ct. 97 , 21 L.Ed.2d 100 . See also, Brady v. United States, 8 Cir., 1928, 24 F.2d 399 , cert. denied 278 U.S. 603 , 49 S.Ct. 10 , 73 L.Ed. 531 ; McGinley v. Hudspeth, 10 Cir., 1941, 120 F.2d 523 ; Barker v. State of Ohio, 6 Cir., 1964, 328 F.2d 582 ; Haddad v. United States, 9 Cir., 1965, 349 F.2d 511 , cert. denied 382 U.S. 896 , 86 S.Ct. 193 , 15 L.Ed.2d 153 ; United States v. Buonomo, 7 Cir., 1971, 441 F.2d 922 , cert. denied 404 U.S. 845 , 92 S.Ct. 146 , 30 L.Ed.2d 81 ; United States v. Scott, 1972, 150 U.S.App.D.C. 323 , 464 F.2d 832 ; Rule 12(b)(2), Fed.R.Crim.P. The District Court held that since McNeal was not informed by his attorney or anyone else that he could not for the same offense constitutionally be twice placed in jeopardy he did not waive his right subsequently to raise the claim, citing Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) and Winters v. Cook, 5 Cir., 1972, 466 F.2d 1393 [now on submission en banc]. Hard and fast waiver rules are beginning to meet with exceptions, as witnessed by Davis v. United States, 1973, 411 U.S. 233 , 93 S.Ct. 1577 , 36 L.Ed.2d 216 and Tollett v. Henderson, 1973, 411 U.S. 258 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 . The question now is whether McNeal, even in the absence of a waiver, is entitled to habeas corpus relief on the collaterally raised plea of double jeopardy. I would respond in the negative. I refer to the findings of the District Court, 353 F.Supp. at 488 : “Banks’ attorney had previously assured both the sheriff and the district *1154 attorney that Banks would waive his right to invoke the privilege against self-incrimination. This assurance was made despite a pending indictment because, as the attorney later testified, after a review of the case he was convinced that the state’s evidence was not sufficient to convict, and he thought he could arrange with the prosecuting officials for a light charge or favorable treatment for his client. On the morning of trial, the district attorney held a conference with Banks, and reviewed his testimony. On the same day, his attorney again indicated that Banks would testify. “When Banks, the final witness, was called to the stand, McNeal’s attorney asked for a recess to talk with Banks and confer with his counsel, who was present in the courtroom. The request was honored, and after a conference both attorneys returned to the courtroom to announce that Banks would not be permitted to testify. Aware that the privilege may only be invoked by those who claim its protection, the trial judge called Banks as a witness and interrogated him. On the advice of counsel, Banks refused to testify. “During the evidentiary hearing, Banks’ attorney summarized the event which prompted his abrupt decision: Q. Now, at what point did you change your mind not to let Banks testify? A. When I was in the anteroom with my client and (McNeal’s attorney) ... I decided then . I told (McNeal’s attorney) that I had changed my mind and I was not going to permit him to testify, because I thought it was to his best interest not to testify. I am referring there to Banks. Q. Was this decision prompted by anything that was said by anyone? A. No, sir. I realized there when (McNeal’s attorney) and I were talking over the matter that I had not received a definite commitment, that I might be making a terrible mistake. ... It was my sole decision, because my client was a young black boy. . McNeal’s attorney also recalled the episode : A. I had several conversations with (Banks’ attorney) during the day ... I don’t remember how many. . . . During the course of my defense of Mr. McNeal, I of course, as I remember, was trying to prevail upon (Banks’ attorney) not to let him testify. . And I believe I did have one final conversation with the court’s permission immediately prior to his being called to testify. Q. What occurred in that conversation . . . ? A. . . . I am certain that I must have tried to prevail upon (him) not to allow (Banks) to testify. I am sure that I, myself, tried to convince (him) that it would be to his client Banks’ interest that he not testify. And my recollection is that (he) must have agreed because he didn’t allow him to testify.” It must be emphasized that this is not a case in which the District Attorney began a trial and thereafter with no supervening event simply decided to nol pros in the hope of doing better on another day. Such a course would be indefensible, would clearly amount to jeopardy, and would warrant the most severe condemnation. The facts here are exactly the opposite. As found by the District Court, McNeal’s attorney testified that during his representation of the defendant he had been trying to “prevail” on Banks’ attorney not to let him testify. Despite these efforts, that attorney had assured both the sheriff and the district attorney that his client would waive the right to invoke the privilege against self-incrimination. On the very day that Banks was called to the witness stand, these assurances were repeated. The defense had never placed Banks under sub *1155 poena as a witness. Yet, when Banks, with no objection from him or from his lawyer, was about to take the witness stand, defense counsel, was then allowed to take him off the stand for a conference, which included his attorney. Experienced trial lawyers will instantly recognize this, directed toward an unsubpoenaed opposing witness, as a most bizarre, if not wholly unknown, procedure. It is quite evident that defense counsel wished to make one last effort to “prevail” on Banks’ lawyer not to let him take the stand. As the majority opinion states, “a vociferous exchange” followed, but the last ditch effort worked. Banks’ counsel completely reversed the position theretofore steadfastly maintained against all efforts to the contrary. At the brink of the Bubicon, contrary to all expectation, Banks refused to testify. Advising a man of his constitutional rights is certainly not an impermissible act. Efforts to “prevail” on him not to testify, importunities at the last minute, calling one off the witness stand who is neither one’s witness nor his client, are matters of an entirely different character, especially within the setting of this case. Even if one lawyer is justified in cajoling another lawyer’s client to violate agreements previously given, which I greatly doubt, Banks was not “advised” to stay off the witness stand. He was importuned, persuaded, and prevailed upon to stay off. This is the face of repeated assurances of his availability. Defense counsel knew all this. I do not castigate defense counsel (now deceased) for doing what he could to save his client. I do think that his activities must objectively be judged and that under any minimal code of professional ethics assurances from one member of the Bar to another are worth at least enough to justify counsel in making the crucial decision to put a defendant to trial. To further extend the thought, when the State is deprived of its ease while unsuspectingly relying upon such assurances, there ought to be another day. I think the district attorney in this case was met with an event no less unexpected than if a juror had discussed the case with a witness, or some like event. Of inescapable importance, this situation was deliberately precipitated solely by the defense. Banks, with no objection from him or his counsel, was in the very act of taking the stand when the defense, contrary to all customary precedent, called him off for the “vociferous exchange”. This was the last frantic struggle to head off the testimony of the one and only witness who knew the facts necessary to a conviction of an armed robbery murder. It is not enough to say that the district attorney was simply disappointed. The inept handling of Banks’ immunity status should be none of McNeal’s concern. He was neither the beneficiary nor the victim of that phase of the case. The fundamental issue was McNeal’s guilt or innocence, not how Banks was being handled. Banks was not McNeal’s witness and McNeal’s lawyer was not Banks’ lawyer. A death knell stratagem which causes a witness and his lawyer to welsh on assurances repeatedly given, assurances upon which the district attorney had every reason to rely up to and even after he called the case to trial, should not be allowed to abort justice. Under the circumstances of this collateral attack, I do not believe that the Constitution requires a belated plea of prior jeopardy to produce an injustice of the most critical gravity. In the words of Perez, cited in the majority opinion, the nol pros was mandated by a “manifest necessity”, not caused by the prosecution but procured by the defense, and it was necessary to prevent the “defeat of public justice”. With deference, I should think that this Court should firmly plant its judicial fee upon the solid ground, after a jury is sworn to try the issue, that mere prosecution-induced abandonments of the trial will not be tolerated; but, on the other hand, eleventh hour defense stratagems in violation of all prior assurances leading to the suppression of *1156 indispensably necessary evidence will inexorably meet the same fate. I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459675. Public record. Not legal advice.