Petition — Attorney General of New York v. Mizell

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j Supreme Court, U, S,

FILE D

} JAN 96 1979

— [_miciae. ronan, JR., CLERK

Supreme Court of the United States

| OCTOBER TERM, 1978

No. 16-8 = ll 70

Tue AtTTroRNEY GENERAL OF THE STATE OF NEw York,

Petitioner,

against

JAMES MIZELL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Rospert ABRAMS

Attorney General of the

State of New York

Attorney for Petitioner

Office & P.O. Address

Two World Trade Center

New York, New York 10047

GerorcE D, ZucKERMAN

Assistant Solicitor General

Joxun M. Farrar

Assistant Attorney General

of Counsel

tg eae

i SovCli we 2 ea

So a Oe

awe

TABLE OF CONTENTS

le gang ae od bs hae e500

UIE oT lg RE a aN

es Sle aclaae’ 6466 E be

ee 1 os bwin ae w Mie

A. Proceedings in State Courts ...............

B. Legal Context of Respondent’s Double Jeop-

ardy Claim Prior to Application for Federal

pe ee errr rr

C. Opinion of the United States District Court

for the Eastern District of New York on Re-

spondent’s Federal Habeas Corpus Claim ...

D. Decisions of this Court Subsequent to the

Opinion of the United States District Court

Ee ee nase cae e ke Keke ees he

EK. Opinion Below of the United States Court of

Appeals for the Second Circuit ............

Pornt I—The determination below that Crist v. Bretz

is fully retroactive deals a grave blow to funda-

mental principles of Federalism; to the concur-

rent jurisdiction of state courts of last resort to

decide federal] constitutional questions in absence

of a clear decision of this Court, and to the right

of state trial judges to rely on such precedent ..

Port 1I—The failure of the Court below to recog-

nize the manifest necessity of the state judge’s

discharge of the sworn jury in furtherance of

the legitimate state policies of clearing calendar

congestion and affording other accuseds a speedy

trial creates a license for unwarranted interfer-

ence by federal courts in the administration of

criminal justice by the states ..................

ii TABLE OF AUTHORITIES

| PAGE

Pornt. I1I—The relief suggested by the Court below

ordering the expungement of the conviction from

state records is improper, where the respondent

is no longer in state custody at the time of the

judgment and the state officials who have charge

of such records are not parties to the habeas pro-

IR as Sd ws «hehe ook xc da kdb ceetak treks 19

CAE tides conn traccch uveeenebedins 22

SEN RPI Be pn erc nsw MUN ae kl 4 bees Eva la

BE PIO vn nh awccdids o cas pace ces anne 15a

SEE SPI i ica 6a cc dade Selieuues + bees 25a

TABLE OF AUTHORITIES

Cases:

Arizona v. Washington, 434 U.S. 497 (1978) ........ 8,18

Ashe v. Swenson, 397 U.S. 436 (1970) .............. 14

Benton v. Maryland, 395 U.S. 784 (1969) ..... 6, 8, 9, 11, 12

Biggs v. Ward, 212 F. 2d 209 (7th Cir. 1954) ........ 20

In re Blake, 175 U.S. 114 (1889) ......... ccc uence 20

Matter of Biand v. Supreme Court, 20 N.Y. 2d 552,

, of TF fe): 3 ee ere 6, 7, 12, 13, 18

Brown v. Buchkoe, 244 F. 2d 865 (6th Cir. 1957) .... 21

Carafas v. LaVallee, 391 U.S. 234 (1968) ........ 19, 20, 22

Chimel v. California, 395 U.S. 752 (1969) .......... 16

Claflin v. Houseman, 93 U.S. 180 (1876) ............ 12

Clark v. State of Washington, 366 F. 2d 678 (9th Cir.

ESA Se Rie parent eer yee ere ee 20

TABLE OF AUTHORITIES lil

PAGE

Commission of Investigation v. Lombardoz, 7 A.D.

2d 48, 180 N.Y. Supp. 2d 701 (N.Y.A.D. 1st Dept.

1958), affirmed 5 N.Y. 2d 1026, 158 N.E. 2d 250

(1959), motion granted 6 N.Y. 2d 753, 159 N.E. 2d

201 (1959), motion granted 6 N.Y. 2d 878, 160

N.E. 2d 125 (1959), cert. den. 360 U.S. 930

(1959), app. dism. 361 U.S. 10 (1959) .......... 13

Crist v. Bretz, 437 U.S. 28 (1978) ............ 2, 8, 9, 11, 12,

13, 14, 15

Desist v. United States, 394 U.S. 244 (1969) ........ 9,14

Downum v. United States, 372 U.S. 734 (1963) ....6, 11, 12

Edelman v. Jordan, 415 U.S. 651 (1974) ............ 21

Escobedo v. Illinois, 378 U.S. 478 (1964) ............ 16

Franks v. Delaware, —— U.S. ——, 98 S.Ct. 2674

SE Het aiica eet Oseb A hEseR i tne v's DeKENS do 9a 12

Gately v. Sutton, 310 F. 2d 107 (10th Cir. 1962) ..... 20

In re Green, 141 U.S. 325 (1891) .. ww ccc ede e cence 20

Haggard v. State of Tennessee, 421 F. 2d 1384 (6th

SE LLG SCT Gla el eK Ne Sheet ede anes 20

Illinois v. Somerville, 410 U.S. 458 (1973) ........ 7,17,18

Johnson v. Lowisiana, 406 U.S. 356 (1972) ......... 12

Johnson v. New Jersey, 384 U.S. 719 (1966) ........ 13

Klopfer v. North Carolina, 386 U.S. 213 (1967) ... .6, 16, 17

Lamar v. 118th Judicial District Court of Texas, 440

ee So eee. ee eee 20

Lemon v. Kurtzman, 411 U.S, 192 (1973) .......... 15, 19

Linkletter v. Walker, 381 U.S. 618 (1965) ....... 9, 13, 15

Mapp v. Ohio, 367 U.S. 643 (1961) ...........0000e. 16

Michigan v. Payne, 412 U.S. 47 (1973) ..........4.. 15

iv TABLE OF AUTHORITIES

3 PAGE

Milliken v. Bradley, 433 U.S. 267 (1977) ........... 21

Mizell v. Attorney General, 442 F. Supp. 868 (EDNY

BOGS) in coe peeks Fhe Ciccone ccys os 8

Moye vy. Clerk, DeKalb County Superior Court, 474

ee 20, 21

North Carolina v. Pearce, 395 U.S. 711 (1969) ...... 14,15

O’Shea v. Littleton, 414 U.S. 488 (1974) ............ 19

Palko v. Connecticut, 302 U.S. 319 (1937) .......... 6, 7

People v. Mizell, 41 AD2d 701 (2nd Dept. 1973) ..... )

Perez v. Ledesma, 401 U.S. 82 (1971) .............. 18, 19

Reid v. Covert, 354 U.S. 1 (1956) ................. 14

Robinson vy. Neil, 409 U.S. 505 (1973) ....7,9, 11, 12, 13, 14

State of Oregon ex rel. Sherwood v. Gladden, 240

ee 21

United States v. Burr, 8 U.S. 281, 4 Cranch 470

(16007) ..<ss00n5eeees Ey Sel ocak SOU ea 13

United States v. Schnitzer, 567 F2d 536 (2nd Cir.

TOUT) cknp ee TEE Seca cecn cess. 21

United States v. Wade, 388 U.S. 218 (1967) ......... 3, 16

United States v. White, 401 U.S. 745 (1971) ......... 13

Waller v. Florida, 397 U.S. 387 (1970) ............ 14

Williams v. Florida, 399 U.S. 78 (1970) ............ 12

Ex Parte Young, 209 U.S. 123 (1908) ............. - 21

Younger v. Harris, 401 U.S. 37 (1971) .............. [ 18

Stavutes, Rules and Regulations:

28 UBC. 9 Ree sea eeeees rast tekecssaes.- 2

3 UBC. Fie ce Cee eh ays oe axes 21

TABLE OF AUTHORITIES Vv

PAGE

Pe EE os peaks Ea Ghbcs Si cease etede sdawkes 20

Rule 2(d), Rules Governing § 2254 Cases, foll. 28

Ne OE ek XH ey alee eck ge OOKaN CR hiens 21

Rule 41(b), Federal Rules of Appellate Procedure .. 1

N.Y. Criminal Procedure Law § 30.20 ............-. 17

N.Y. Criminal Procedure Law §40.20(1) ..........

N.Y. Criminal Procedure Law § 40.30(1) ..........

N.Y. Criminal Procedure Law § 160.50 ............. 21

N.Y. Criminal Procedure Law § 160.60 ............. 21

N.Y. Criminal Procedure Law §170.30(e) ......... 17

N.Y. Criminal Procedure Law § 210.20(g) ......... 17

Constitution:

U.S. Constitution, Amendment V ..............++. 6, 7

U.S. Constitution, Amendment VI ................. 12

U.S. Constitution, Amendment X .............05055 22

U.S. Constitution, Amendment XI ................. 22

U.S. Constitution, Amendment XIV ................ 6

Treatises and Commentaries:

Denzer, Practise Commentary to N.Y. Crim. Proc.

Law § 30.20, 11 A McKinney’s Crim. Proe., L., 77

ES odio ok oh edn CROs ROWE LCR ed ae e's 17

The Federalist No. 82 (A. Hamilton) ............... 12

Friendly, Js Innocence Irrelevant? Collateral Attack

on Criminal Judgments, 38 U. Chi. L. Rev. 142

SS pte e skh a ya ain se bis bane OKN ve 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

) Pee a

THe ATTORNEY GENERAL OF THE STATE oF NEw York,

Petitioner,

against

JaMES MIZELL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner, the Attorney General of the State of New

York prays that a writ of certiorari issue to review the

decision of the United States Court of Appeals for the

Second Circuit in the case of James Mizell v. Attorney

General of the State of New York, and ano,* entered on

October 30, 1978.

Respondent’s motion pursuant to Rule 41(b) Federal

Rules of Appellate Procedure to stay the Court of Appeals’

mandate to the District Court for 30 days was granted by

the Court of Appeals on November 27, 1978. A second

motion for a second thirty day stay of the mandate was,

however, denied on or about December 22, 1978 and on

January 5, 1979, although respondent had not applied for

* The other party defendant and appellant in the proceedings

below was the Warden, Brooklyn House of Detention.

relief as directed by the Court of Appeals,* an order on re-

mand was entered by the United States District Court for

the Eastern District of New York vacating the conviction

in issue and directing all references to it to be expunged

from petitioner’s records. On January 15, 1979 judgment

on said order was entered.**

Decisions Below

The decision of the Court of Appeals is unreported as

yet, and reproduced in Appendix A. The decision of the

District Court is reported at 442 F. Supp. 868 and repro-

duced in Appendix B. The order of the District Court

upon remand from the Court of Appeals is reproduced in

Appendix C.

Jurisdiction

__ Jurisdiction of the Court is invoked pursuant to Title 28,

United States Code § 1254(1).

Questions Presented

1. Should this Court’s holding in Crist v. Bretz, 437

U.S. 28 (1978) that the federal rule regarding when jeop-

ardy attaches is an integral part of the constitutional guar-

antee against double jeopardy and permits no less stringent

standard in state criminal jury proceedings be retroac-

tively applied to void all prior state court judgments of

conviction in which the state courts, in the absence of a

clear and explicit ruling of this Court to the contrary, per-

mitted application of a less stringent rule regarding when

jeopardy attaches?

2. Is the manifest necessity of the discharge of a sworn

jury demonstrated where said discharge occurred in the

* Appendix A, pg. 12a,

** An application to vacate said judgment and/or stay enforce-

ment pending certiorari is scheduled in the United States District

Court, Eastern District of New York on January 23, 1979.

furtherance of state policy to clear calendar congestion and

to provide a speedy trial to other accuseds, and no negli-

gence or misconduct of the prosecutor is demonstrated by

the record?

3. Where the respondent was in state custody at the

time of his petition but is no longer in state custody at the

time a judgment in his favor is to be rendered, may the

lower federal courts properly order the expungement of

the conviction from state records when the persons respon-

sible for such records are not parties to the habeas proceed-

ing, the habeas petition did not ask for such relief, and

such an order has the effect of mandamus?

Statement

A. Proceedings in State Courts

Respondent was arrested on November 5, 1970 and

charged, along with one James Love, with the crimes of

robbery in the first degree, assault in the first degree, pos-

session of a weapon as a felony and petit larceny, by

indictment 5031/70 (Kings County, New York).

On Wednesday, March 24, 1971 a jury was impaneled

and sworn. The trial was to begin the following day,

Thursday, March 25. However, a Wade (Umted States v.

Wade, 388 U.S. 218 [1967]) hearing was requested by re-

spondent and his co-defendant at that time. At the close

of the State’s case on the Wade hearing, counsel for the

co-defendant Love requested a continuance so as to be able

to present a witness he had incorrectly assumed would be

called by the prosecution. The Court asked whether Love’s

counsel was also moving for the withdrawal of a juror

and Love’s counsel replied in the negative, whereupon the

Court denied Love’s motion.

Counsel for respondent rested on the State’s case. The

trial court ruled that the in-court identification of defend-

ants was admissible.

Thereafter, on the same afternoon, the prosecutor was

informed by a detective that two witnesses who had been

personally served with subpoenas, and who promised to be

present to testify at the trial, were unavailable to testify,

one because of a death in the family, and the other, who

had been seen leaving his house that morning with sub-

poena in hand, for no apparent reason. The prosecutor,

who had instituted a search for the second witness, moved

for a continuance:

“. . . Because of these facts and circumstances the

people would ask for a continuance in this trial.

The Court: Until when?

Mr. Turner: Monday, your Honor.

The Court: What am I going to de with that jury,

Mr. Turner?

Mr. Turner: Your Honor, since the jurors are serv-

ing 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 f the matter of

Roy Bland (phonetic) and also the matter of William

Maury (phonetic), which is decided in 20 New York

2nd, page 552.

All right, bring in the jury. Discharge them.”

Respondent’s counsel, without elaboration, noted an ex-

ception to the ruling. The jurors were then returned to the

central jury room.

Subsequently, on the following Monday, March 29, 1971,

the prosecutor moved for trial.

The attorney for the co-defendant moved for a severance

on the ground that respondent intended to call co-defendant

as a witness, according to information then given by re-

spondent’s trial counsel. The motion was granted. Another

panel was brought into the courtroom. In explaining that

the voir dire would be conducted by him, the Court stated

to the prospective jurors: “Now, the reason we’re selecting

in this manner and the Court is selecting, is that this has

been instituted since January 3, 1971, and it’s in an effort

to attempt to clear calendar congestion.”

Thereafter the second panel was discharged after the

voir dire was partially completed, because of the presence

of a.juror on the second panel who stated he had been

selected for the first jury which had been discharged, which

statement and circumstance the trial judge considered as

possibly prejudicial to respondent.

A new jury was impaneled and sworn. On April 1, 1970,

the jury was unable to reach a verdict and a mistrial was

declared.

On June 21, 1971, a new trial began. The jury found the

respondent guilty as charged and he was sentenced on Sep-

tember 10, 1971. At the sentencing, respondent’s trial coun-

sel moved to set aside the verdict on the ground of former

jeopardy. This motion was denied.

The judgment of conviction was affirmed without opinion

by the New York Appellate Division, Second Department,

on February 26, 1973. People v. Mizell, 41 AD2d 701 (2d

Dept. 1973). On April 6, 1973, respondent’s application

for leave to appeal was denied by the Hon. Sol Wachtler,

Judge of the New York Court of Appeals.

B. Legal Context of Respondent’s Double Jeopardy Claim

Prior to Application for Federal Habeas Corpus Relief

In 1931 this Court held, in Palko v. Connecticut, 302

U.S. 319, that the protection of the I'ifth Amendment of

ihe Federal Constitution against putting an individual

twice in jeopardy for the same offense was not applicable

through the Due Process Clause of the Fourteenth Amend-

ment to the state of Connecticut, where a state statute

permitted appeal by the state after a conviction, and re-

trial of the defendant for a crime in a higher degree than

that for which he was originally convicted.

In 1963, this Court held in Downum vy. United States,

372 U.S. 734, that in a federal prosecution, where a jury

had been sworn and the prosecutor, whose negligence in

failing to subpoena witnesses had caused their unavail-

ability, requested a discharge of the jury before the first

witness was sworn, a plea of double jeopardy under the

Fifth Amendment would be sustained upon the impanelling

of the second jury.

In March 1967, this Court held in Klopfer v. North Caro-

lina, 386 U.S. 213, that a defendant’s right to a speedy trial

is fundamental and is imposed upon the States by the Due

Process Clause of the Fourteenth Amendment.

In November 1967, the New York Court of Appeals,

three judges dissenting, held in Matter of Bland, 20 N Y 2d

552, 232 N E 2d 633, that the ‘‘time honored’’ rule then

extant in New York that jeopardy attached in jury trials

when a witness was sworn, was not incompatible with the

federal rule or federal constitutional standards. No ap-

peal to this Court from that decision was undertaken.

In 1969, this Court held in Benton v. Maryland, 395 U.S.

784, that where a defendant in a state trial was acquitted

after trial of a crime charged, but convicted of another

crime jointly charged, and the conviction was reversed, the

guarantee against double jeopardy prevented his retrial on

the crime for which he was acquitted. Palko v. Connecti-

cut, swpra was overruled, This Court held that the con-

cept of double jeopardy was fundamental and that the

Fifth Amendment prohibition was applicable to the States

through the Fourteenth Amendmeut.

In 1970, the New York Legislature incorporated the rule

of Matter of Bland, supra into New York Criminal Pro-

cedure Law §§ 40.20(1), 40.30(1), effective September 1,

1971.

In January 1973, nearly two years after the original

jury was discharged in the instant case, this Court stated

in Robinson v. Neil, 409 U.S. 505, 508:

«| Although the Court has not handed down a

fully reasoned opinion on the retroactivity of Benton

v. Maryland, it has indicated that it is retroactive

without examination of the Linkletter [Limkletter v.

Walker, 381 U.S. 618 (1965) ] eriteria.’’

In February 1973, this Court stated in Illinois v. Somer-

ville, 410 U.S. 458, 469, that federal courts should not be

too quick to interfere with a state trial judge’s ‘‘rational

determination designed to implement a legitimate state

policy’? where there is ‘‘no suggestion’? that such deter-

mination could be ‘‘manipulated . . . to prejudice the

defendant.’’

In 1974, the New York Legislature amended N.Y. Crimi-

nal Procedure Law § 40.30(1) to provide that in a jury

trial jeopardy attaches when a jury has been impanelled

and sworn.

C. Opinion of the United States District Court for the

Eastern District of New York on Respondent’s Federal

Habeas Corpus Claim

On December 30, 1977, the United States District Court

for the Eastern District of New York (Nickerson, J.),

rendered an opinion in the instant proceeding granting

the writ of habeas corpus—the only relief sought by re-

spondent in his petition filed in 1976—although respondent

had been released from state custody prior to the date of

said opinion. See Mizell v. Attorney General, 442 F. Supp.

868 (E.D.N.Y. 1977), Appendix B. The District Court

held that the federal rule, that jeopardy attaches once the

jury is sworn, was ipso facto applicable to the 1971 pro-

ceedings in issue by virtue of Benton v. Maryland, supra.

The District Court further held that there was no manifest

necessity for the discharge of the jury under the cireum-

stances of this case.

D. Decisions of this Court Subsequent to the Opinion of the

United States District Court Below

In February, 1978 this Court stated in Arizona v.

Washmgton, 434 U.S. 497, 506, that the phrase “manifest

necessity” does “not describe a standard that can be ap-

plied mechanically or without attention to the particular

problem confronting the trial judge.”

On June 14, 1978, this Court rendered its opinion in

Crist v, Bretz, 437 U.S. 28 (1978). In striking down the

Montana statute, which, as the New York law in 1971, held

to the rule that jeopardy attached when a witness was

sworn in criminal jury trials, this Court said:

“Today we explicitly hold . . . The federal rule that

jeopardy attaches when the jury is empanelled and

sworn is an integral part of the constitutional guar-

antee against double jeopardy.” (437 U.S. 28, 38).

Except as to the appellee therein, this Court did not

specifically address the issue of the retroactivity of its

holding to state convictions in criminal jury trials which

had theretofore become final, and which were obtained

after a sworn jury had been dismissed, but before a wit-

ness was sworn. Further, appellant therein specifically

waived any challenge to the Ninth Cireuit’s ruling that

there was no manifest necessity for the discharge of the

jury, and this Court expressed no view on the correctness

of that ruling (437 U.S. 28, 31, fn. 5). This Court further

stated that the rule when jeopardy attaches was an

‘‘aspect’’ of the constitutional guarantee against double

jeopardy (437 U.S. 28, 29).

E. Opinion Below of the United States Court of Appeals

for the Second Circuit

The United States Court of Appeals for the Second Cir-

cuit held that but for the mootness of the relief granted by

the judgment as prayed for in the petition—a circumstance

created by respondent’s release from custody—it would

have affirmed the holding of the District Court that ‘‘the

federal rule set forth in Downum had been made applicable

to the states in Benton’’. The Court below concluded that

Crist v. Bretz ‘‘rejected as unconstitutional the Montana

rule which like the former New York law, provided that

jeopardy attaches only after a witness is sworn’’. It

relied on Robinson v. Neil, 409 U.S. 505 (1973), which con-

strued Benton v. Maryland, supra, in holding Crist v.

Bretz fully retroactive, and in further holding the criteria

regarding retroactivity set forth in Linkletter v. Walker,

381 U.S. 613 (1965) and Desist v. United States, 394 U.S.

244, 249 (1969), inapplicable to the case at bar.

The Court below dismissed the State’s claim that con-

gested calendar conditions and the right of other accuseds

to the services of the discharged jurors made it manifestly

necessary for the trial judge to discharge them in the

furtherance of a legitimate state policy, stating:

“The only reason given by the court for failure to

grant a continuance was the convenience of the jury.”

Finally, the Court of Appeals concluded that the judg-

ment of the District Court should be vacated and remanded

for consideration of a new judgment affording appropriate

relief :

“ at the time of the district court’s order, Mizell was

no longer in custody and his prayer for relief of re-

lease was therefore moot. Were Parker v. Ellis, 362

U.S. 574 (1960), still good law, we would be required

to dismiss this appeal as moot. Parker v. Ellis, how-

ever, is not good law, having been overruled by Carafas

v. LaVallee, 391 U.S. 234 (1968). Since Mizell was in

state custody at the time he filed his application in the

district court (November 29, 1976), federal jurisdiction

‘is not defeated by the release of the petitioner prior

to completion of proceedings . . .’ Carafas v. LaVallee,

391 U.S. at 238. The basis for the Carafas holding

is that:

the statute does not limit the relief that may be

granted to discharge of the applicant from physi-

cal custody. Its mandate is broad with respect to

the relief that may be granted. It provides that

‘[t]he court shall... dispose of the matter as law

and justice require.’ (28 U.S.C. § 2243, 391 U.S.

at 239.

The Supreme Court then notes that amendments in

1966 to the habeas corpus statutes (for example, 28

U.S.C. § 2244[b]) ‘seem specifically to contemplate the

possibility of relief other than immediate release from

physical custody .. .’391 U.S. at 239.”

Noting that the precedents were few, the Court of Ap-

peals left to the District Court the fashioning of appro-

priate relief and suggested:

“the possibility of a declaration that the September 10,

1971 conviction is void and of an order to the respon-

dent Attorney General to apply in the New York courts

for a vacatur of the conviction and for an order ex-

punging it and all references to it from the records.”

Judge Friendly, concurring “dubitante”, opined, in the

context of the permissable limit of interference by federal

courts in the administration of justice by the states:

“«.. 1 believe we have here gone to the very verge and

perhaps beyond it.”

POINT I

The determination below that Crist v. Bretz is fully

retroactive deals a grave blow to fundamental prin-

ciples of Federalism; to the concurrent jurisdiction

of state courts of last resort to decide federal con-

stitutional questions in absence of a clear decision

of this Court, and to the right of state trial judges

to rely on such precedent.

As underlined by the opinion of Judge Friendly, con-

curring dubitante, the issues in this case are truly of wide

import under the Constitution with regard to fundamental

principles of Federalism and merit the grant of certiorari.

Until Crist v. Bretz, 437 U.S. 28 (1978) was decided,

the states were not on notice that the federal rule regard-

ing when jeopardy attaches, expounded in Downum v.

United States, 372 U.S. 734 (1963), was a part of the con-

stitutional guarantee against double jeopardy; nor were

the states on notice that the Downum rule was prophy-

lactic. In holding Crist fully retroactive as a matter of

first impression, the Court below exhibited a cavalier dis-

regard for the doctrines of concurrent jurisdiction and stare

decisis.

In Robinson v. Neil, 409 U.S. 505, 508 (1973), this Court

acknowledged it had ‘‘not handed down a fully reasoned

opinion on the retroactivity of Benton v. Maryland’’. Thus,

this Court’s prior decisions in Downum v. United States,

supra and Benton v. Maryland, 395 U.S. 784 (1969), couid

not possibly be sufficient to put the state trial judge on

notice that the federal rule regarding when jeopardy at-

taches was applicable to the State of New York in 1971.

In his concurring opinion below, Judge Friendly aptly

points out that the trial judge cannot be faulted for lack-

ing the prescience in 1971 to conclude that Benton v. Mary-

land made Downum v. United States applicable to the

states when this conclusion was possible only in the ‘‘lumi-

nous hindsight of Crist v. Brete . . . and Robinson v.

Neil.’’ No state trial judge and no state court should be

subjected, under these circumstances, to the inequitable

imposition of the ‘‘sporting theory of justice’’ to retro-

spectively void a state conviction which has long since

become final, and which is otherwise unassailable.

Robinson v. Neil was decided two years after the state

trial judge herein discharged the sworn jury. Crist v.

Bretz was decided seven years after the discharge of the

jury. Clearly, therefore, the lower state trial courts were

entitled to act on the basis of the rule announced by the

highest court of the State of New York in Matter of Bland

v. Supreme Court, 20 N Y 2d 552, 232 N.E. 2d 633 (1967),

even if that rule was less stringent than the related federal

rule. See Johnson v. Lowisiana, 406 U.S. 356 (1972),

where a state law permitting less than unanimous jury

verdicts in criminal cases was held not violative of federal

Due Process standards, and Williams v. Florida, 399 U.S.

78 (1970), where trial by a jury of less than twelve in

state criminal cases was held not violative of the Sixth

Amendment.

The holding of the New York Court of Appeals in Mat-

ter of Bland, swpra, was made under principles of con-

current jurisdiction permitting state courts of last resort

to rule on federal constitutional questions where necessary,

in absence of a contrary ruling of this Court. See Claflin

v. Houseman, 93 U.S. 130, 136-140 (1876); The Federalist

No. 82 (A. Hamilton); compare Franks v. Delaware,

US. , 98S. Ct. 2674, 2680 (1978). The reliance on

Matter of Bland, supra, by the state trial judge was made

under principles of stare decisis, permitting lower state

court judges to rely on opinions of state courts cf last

resort. Commission of Investigation v. Lombardoz, 7

A D 2d 48, 180 N.Y. Supp. 2d 701 (N.Y.A.D. 1st Dept.

1958), affd. 5 N Y 2d 1026, 158 N.E. 2d 250 (1959), mot.

granted 6 N Y 2d 753, 159 N.E. 2d 201 (1959), mot. granted

6 N Y 2d 878, 160 N.E. 2d 125 (1959), cert. den. 360 U.S.

930 (1959), app. dism. 361 U.S. 10 (1959).

In United States v. Burr, 8 U.S. 281, 4 Cranch 470

(1807), Mr. Chief Justice Marshall admonished that ‘‘an

opinion which is to overrule all former precedents and

establish a principle never before recognized should be

expressed in plain and explicit terms’’ (8 U.S. at 290;

4 Cranch at 481). In light of this admonition, this Court,

in ‘‘explicitly’’ holding in Crist v. Bretz, supra, that the

federal rule as to when jeopardy attaches was an integral

part of the constitutional guarantee against double jeop-

ardy, and therefore prophylactic, made a tacit admission

that the former precedent of the New York Court of

Appeals in Matter of Bland, supra, was viable and con-

trolling in 1971 in the absence, then, of a clear decision

of this Court to the contrary, Umted States v. Burr, supra;

cf. United States v. White, 401 U.S. 745, 754 (1971).

Although the impact of the decision below has the effect

of retroactively voiding every state criminal conviction

which had become final wherein the “Montana” rule was

relied on by a state judge to discharge a sworn jury before

a witness was sworn, the court below did not apply the

test of the “impact upon the administration of justice”,

Johnson v. New Jersey, 384 U.S. 719, 728 (1966), or any

of the other criteria set forth in Linkletter v. Walker, 38]

U.S. 618 (1965) regarding retroactive application of ‘“con-

stitutional” rules of criminal procedure, in deciding

whether Crist v. Bretz should be retroactively applied in

the instant proceeding.

The reason for this was the language in Robinson v. Neil,

supra, to the effect that Benton v. Maryland was entitled

to retroactive application “without examination of the

Linkletter criteria” (409 U.S. 505, 508). However, Benton

v. Maryland, supra, Robinson v. Neil, swpra, and the cases

relied on in Robinson vy. Neil, namely North Carolina v.

Pearce, 395 U.S. 711 (1969), Ashe v. Swenson, 397 U. S. 436

(1970) and Waller v. Florida, 397 U.S. 387 (1970) were

decided in the completely different and more traditional

factual context of a retrial after a prior full trial, at which

evidence was introduced and witnesses had testified, and

resulted in a verdict and judgment of conviction or ac-

quittal.

We respectfully submit that the precedential effect of

Robinson v. Neil, supra, must yield to the impact of facts

not foreseen by or encompassed in that decision; see

FRANKFURTER, J., concurring in Reid v. Covert, 354 U.S. 1,

50-51 (1956).

Mr. Justice Harlan stated in his dissent in Desist v.

United States, 394 U.S. 244 (1969) :

“. .. given the fundamental place of federalism in the

traditional conception of constitutional adjudication,

it could certainly be strongly argued that the lower

courts could properly follow the traditional due proc-

ess approach until the time this Court made it clear

. that a particuler Bill of Rights guarantee had been

incorporated.” (394 U.S. 244, 267.)

Since this Court stated in Crist v. Bretz that the rule re-

garding when jeopardy attaches is an “aspect of the consti-

tutional guarantee against being twice put in jeopardy”

(437 U.S. 28, 29) and since this Court also stated in Crist

that “Today we explicitly hold ... the federal rule is an

integral part of the constitutional guarantee...” (437 U.S.

28, 38), we submit that Mr. Justice Harlan’s language

quoted above should be read to permit lower state courts

to follow contrary precedent set by state courts of last

resort, until such time as this Court makes it clear that the

procedural aspect of the guarantee against double jeopardy

regarding when jeopardy attaches has been incorporated.

As this incorporation was by no means clear until Crist v.

Bretz, the prophylactic rule therein established should not

be retroactively applied. Compare Michigan v. Payne, 412

U.S. 47 (1973), which held that the resentencing aspect of

North Carolina vy. Pearce, supra, was prophylactic and

under Linkletter analysis, should be applied prospectively

only.

Stare Decisis is a keystone principle, absolutely funda-

mental to the very concept of the orderly adminis‘ration of

justice. See Lemon v. Kurtzman, 411 U.S. 192, 198-199

(1973). The dangerous precedent of the decision below

contradicts this principle, and inequitably impedes the right

of a state trial judge to rely on the viable precedent set by

his superiors on federal constitutional questions. For the

reasons stated above, we respectfully submit that certiorari

must be granted on the question of the retroactivity of

Crist v. Bretz.

POINT II

The failure of the Court below to recognize the

manifest necessity of the state judge’s discharge of

the sworn jury in furtherance of the legitimate state

policies of clearing calendar congestion and affording

other accuseds a speedy trial creates a license for un-

warranted interference by federal courts in the ad-

ministration of criminal justice by the states.

The decision below ignores the dilemma faced by a

front-line state trial judge confronted with congested

calendar conditions in a busy criminal trial part, attempt-

ing to comply with the directives of his superiors and at

the same time insure the constitutional rights of this re-

spondent, and other accuseds.

Since the rendering of such landmark opinions of this

Court as Mapp v. Ohio, 367 U.S. 643 (1961), Escobedo v.

Illinois, 378 U.S. 478 (1964); United States v. Wade, 388

U.S. 218 (1967), and Chimel v. California, 395 U.S. 752

(1969), the procedural rights of the criminally accused in

state courts have been greatly expanded. This rapid ex-

pansion of the criminally accused has resulted in in-

creasingly time consuming litigation in all criminal courts

and has caused increasingly heavy calendar conditions.

This congestion is nowhere more graphically demonstrated

than in the Criminal Courts of the State of New York. By

1968, just three years before the instant case went to trial,

New York City alone had a backlog of more than 520,000

non-traffic criminal cases. Friendly, Js Innocence Irrele-

vant? Collateral Attack On Criminal Judgments 38 U.

Chi. L. Rev. 142, 149, fn. 27 (1970).

Moreover, as the instant case demonstrates, this expan-

sion of the rights of the criminally accused often requires

that state courts resolve conflicting constitutional prin-

ciples such as the protection against double jeopardy and

the right to a speedy trial. Klopfer v. North Carolina,

supra. While we do not deny respondent’s interest in

retaining a chosen jury, other accuseds also had an interest

in the availability of the fourteen jurors involved here.

Holding these jurors, even for a day and a half as requested

by the prosecutor, meant that even for that day and a half

they were unavailable for use in other criminal trials.

The record in this case demonstrates that the trial judge

was aware of this conflict, and attempted to exercise his

discretion in a way which would best resolve it. In ex-

plaining that the voir dire would be conducted by him, the

trial judge stated to the prospective jurors on the second

panel: ‘‘Now, the reason we’re selecting in this manner

and the Court is selecting, is that this has been instituted

since January 3, 1971, and it’s in an effort to attempt to

clear calendar congestion.” It is thus obvious that, at the

time of the discharge of the first jury herein the im-

plementation of the state policy of clearing calendar con-

gestion was a major consideration taken into ‘account by

the trial judge, as was the state policy, implemented pur-

suant to Klopfer v. North Carolina, 386 U.S. 213 (1967),

of insuring a speedy trial to all persons accused of crimes.

See N.Y. Crim. Proc. L. §$§ 30.20, 170.30(e); 210.20(g) ;

Denzer, Practise Commentary to N.Y. Crim. Proc. Law

§ 30.20, 11 A MeKinneys Crim. Proe. L., 77 (1971).

The case at bar is unique in that there is no evidence of

prosecutorial negligence. On the contrary, the prosecutor

acted with diligence to insure the presence of the witness.

In Illinois v. Somerville, 410 U.S. 458 (1973), this Court

held manifestly necessary the trial court’s discretionary

discharge of a jury in order to permit the amendment of a

jurisdictionally defective indictment. Surely, the presence

of the prosecution witnesses is at least as important to the

obtaining of a conviction, and is a sufficient basis for dec-

laration of a mistrial when the prosecutor is in no way at

fault for their failure to appear.

Judge Friendly was deeply troubled by this situation:

“| , It differs from Downum v. United States, 372

U.S. 734 (1963), and Cornero v. Umted States, 48 F. 2d

69 (9 Cir. 1931), which was cited with approval in

Downum, in that in those cases the prosecutor had been

negligent (see Downum, 372 U.S. at 737, and Mr. Jus-

tice Clark’s discussion of Cornero, 372 U.S. at 739 n."*),

whereas here he did everything humanly possible to

assure the presence of the witnesses short of actually

having them in the courthouse before impaneling a

jury, often a time consuming process in the New York

courts, and holding the witnesses in custody—a course

which no one could reasonably advocate. The prose-

cutor initially sought a continuance; he asked for a

discharge of the jury only when the court’s refusal of

this left him no alternative. Moreover, the court’s re-

fusal to grant a continuance was not solely or, as I read

the record, even preponderantly for ‘the convenience

of the jury’; after discharging the jurors, the court

directed them to report back to the central jury room,

where they would be available for other important

duties...”

Further

“. . . defense counsel contributed nothing to enlighten

him save for noting an unelaborated exception. If a

double jeopardy claim had been clearly articulated, the

judge might well have acted otherwise . . .”

An additional and ironic circumstance is that not only

did the respondent’s trial counsel fail at the critical time

to attempt to demonstrate to the trial judge that his reli-

ance on Matter of Bland, supra, was erroneous, but he also

waited until the following Monday to announce that re-

spondent intended to call ‘his co-defendant as a witness.

Had he done so on the prior Thursday and had the sever-

ance requested by co-defendant then been granted, there

would have been no argument that the discharge of the

sworn jury, theretofore addressed by each attorney for

jointly indicted defendants, was not manifestly necessary.

At the worst, the error, if any, would have been harmless.

This Court has indicated its reluctance to interfere with

the rational determination of a state officer made to imple-

ment a legitimate state policy in a variety of contexts in-

cluding the question of what constitutes manifest neces-

sity for purposes of double jeopardy. See Illinois v. Somer-

vile, supra, 410 U.S. at 469 (1973) and Arizona v.

Washington, 434 U.S. 497, 506 (1978). See also Y ounger v.

Harris, 401 U.S. 37 (1971); Perez v. Ledesma, 401 U.S. 82

(1971) ; O’Shea v. Littleton, 414 U.S. 488 (1974); Lemon v.

Kurtzman, 411 U.S. 192, 208-209 (1973).

The doctrine of manifest necessity, excusing the pre-

mature termination of a criminal proceeding after jeop-

ardy has attached, is peculiarly applicable in the factual

situation herein presented. The trial judge had to decide

how to best accommodate two conflicting principles of

constitutional dimension. He rationally and in good faith

resolved the conflict, without the assistance of respondent’s

trial counsel who articulated no alternative. The failure

of the court below to take into account the context of these

circumstances in deciding that there was no manifest ne-

cessity for the jury’s discharge, puts it in the position of

retroactively passing judgment on the determinations of

state judges in the course of administering justice in state

courts.

The clear conflict of this interference with the reluctance

of this Court to interfere with the state judicial process

mandates the grant of certiorari on the question of mani-

fest necessity.

POINT III

The relief suggested by the Court below of ordering

the expungement of the conviction from state records

is improper, where the respondent is no longer in state

custody at the time of the judgment and the state offi-

cials who have charge of such records are not parties

to the habeas proceeding.

In vacating the judgment and remanding the matter to

the District Court for entry of an appropriate judgment

after appropriate application by respondent, the Court of

Appeals left to the District Court the determination of

what relief should be granted. The Court of Appeals noted

that there are few precedents, but that the basis for the

holding of this Court in Carafas v. La Vallee, 391 U.S. 234

(1968), was that 28 U.S.C. § 2243 provided for relief “as

law and justice require”.

We submit that the order issuing on remand, declaring

the conviction null and void and directing its expunge-

ment from state records, is improper since it is in effect,

a mandamus order on state courts and state officials who

were not parties to this proceeding.

In In re Green, 141 U.S. 325 (1891), this Court held

that it could not issue a writ of mandamus to the judges

of a state supreme court directing them to restore to office

an attorney and counsellor whom that court disbarred and

to vacate the order of disbarment. In Jn re Blake, 175

U.S. 114 (1899), this court noted, in referring to a state

court, that “the writ of mandamus cannot be issued to

compel a judicial tribunal to decide a matter within its

discretion in a particular way”, 175 U.S. at 117.

These views have been affirmed by recent decisions in

various Cireuits. In Clark v. State of Washington, 366

F, 2d 678 (9th Cir. 1966), an action was brought to set

aside in federal court a state disbarment proceeding. The

Ninth Cireuit found that it.was not possible for a federal

court to restore the plaintiff's name to the state list

of active bar members because “the federal courts are with-

out power to issue writs of mandamus to direct state courts

or their judicial officers in the performance of their duties.”

366 F, 2d at 681. See, also Gately v. Sutton, 310 F. 2d 107

(10th Cir, 1962) (disbarment proceedings) ; Lamar v. 118th

Judicial District Court of Texas, 440 F. 2d 383 (5th Cir.

1971) (order directing state court to act on pending state

habeas corpus petition); Haggard v. State of Tennessee,

421 F., 2d 1384 (6th Cir. 1970) (mandamus action to com-

pel state court to supply records relating to petitioner’s

conviction used as basis of imposition of sentence as

habitual offender) ; Biggs v. Ward, 212 F. 2d 209 (7th Cir.

1954) (mandamus to compel judge of Superior Court to

assign case to judge not elected in Cook County, Illinois) ;

Moye v. Clerk DeKalb County Superior Court, 474 F. 2d

1275 (5th Cir. 1978) (prisoner of state seeking produc-

tion of transcript and other documents).

See also State of Oregon ex rel. Sherwood vy. Gladden,

240 F’. 2d 910 (9th Cir. 1957) (federal court had no juris-

diction to issue a writ of mandamus otherwise than in aid

of its appellate jurisdiction where state prisoner sought

to compel state warden to permit him access to law books

and other legal materials so that he could make a petition

for habeas corpus), and Brown v. Buchkoe, 244 F. 2d 865

(6th Cir, 1957) (federal court could not order state court

to furnish petitioner a transcript of the testimony at his

trial without charge).

Compare, however, Ex parte Young, 209 U.S. 123;

Edelman v. Jordan, 415 U.S. 651 (1974) and Milliken v.

Bradley, 433 U.S. 267 (1977).

Further, the issue of appropriateness of remedy was

raised for the first time in and by the Court of Appeals.

Respondent has not yet amended his petition or otherwise

sought or specified “appropriate” relief as directed by the

Court below, 28 U.S.C. § 2242; Rule 2(d), Rules governing

§ 2254 cases, foll. 28 U.S.C. § 2254, and petitioner has not

had the opportunity to plead or demonstrate that the

equities favor the state and the interests of justice require

retention of the record of petitioner’s conviction, at least

until this Court acts on the instant petition and otherwise

resolves the issues herein presented. Compare United

States v. Schnitzer, 567 F2d 536, 539 (2d Cir. 1977); N. Y.

Crim. Proce. L. §§ 160.50, 160.60 (McKinney Supp. 1978).

Petitioner has also not yet had the opportunity to argue,

in the context of the remedy to be afforded, the failure of

respondent to exhaust the state remedy provided by N. Y.

Crim. Proce. L. $§ 160.50, 160.60, supra.*

* The relief provided under New York law is actually broader

in scope than the remedy suggested by the Court below.

Thus, even if this Court finds in favor of respondent on

Points I and II, infra, the nature of the relief granted by

the District Court here raises important questions of the

possible conflict of such relief with the Tenth and Eleventh

Amendments and warrants at minimum a re-examination

of Carafas v. LaVallee, supra, for the purpose of instruct-

ing lower federal courts in the proper remedies to be ap-

plied where a habeas petitioner is no longer in custody

at the time of the rendering of a judgment in his favor.

CONCLUSION

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

Dated: New York, New York

January 22, 1979

Respectfully submitted,

Ropert ABRAMS

Attorney General of the

State of New York

Attorney for Petitioners

By Joun M. Farrar

Assistant Attorney General

Member of the Bar of the Supreme

Court of the United States

Georce D, ZuckERMAN

Assistant Solicitor General

Joun M. Farrar

Assistant Attorney General

of Counsel

APPENDIX A

Order.

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

No. 227—August Term 1978

(Argued September 27,1978 Decided October 30, 1978.)

Docket No. 78-2059

JAMES Mi1zELL,

Petitioner-Appellee,

—against—

Tue ATTORNEY GENERAL OF THE STATE

or New York and ano.,

Respondents-A ppellants.

Before:

FRIENDLY and Mu.uican, Circuit Judges,

and Wyatt, District Judge.*

Appeal from an order entered in the United States Dis-

trict Court for the Eastern District of New York, Eugene

H. Nickerson, Judge, granting a writ of habeas corpus fol-

lowing the conviction of James Mizell in New York

Supreme Court, Kings County, for robbery, petty larceny,

assault and possession of a dangerous weapon.

*United States District Judge for the Southern District of

New York, sitting by designation.

Appendix A.

Judgment vacated; remanded for consideration of new

judgment for appropriate relief.

Steven Luioyp Barrett, New York, New York

(The Legal Aid Society, Federal Defender

Services Unit, New York), for Petitioner-

Appellee.

Joun M. Farrar, Assistant Attorney General

(Louis J. Lefkowitz, Attorney General of

the State of New York, Samuel A. Hirsho-

witz, First Assistant Attorney General,

Robert Schonfeld, Assistant Attorney Gen-

eral, of Counsel), for Respondents-Appel-

lants.

Mutuican, 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 ad-

journed the case to the following morning. Mizell’s coun-

sel requested a Wade hearing to determine the admissi-

bility 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 As-

sistant 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 appear-

ance. The Assistant District Attorney requested a con-

tinuance until the following Monday.

Appendia A.

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 serv-

ice. 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 (phonetic), which is decided in 20 New

York 2nd, Page 552. 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 ca e 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 sentenc-

ing on September 10, 1971, Mizell’s counsel moved to dis-

miss the indictment on the ground of double jeopardy.

The motion was denied. On appeal to the Appellate Divi-

sion of the Supreme Court, the State of New York, Second

Appendia A.

Department, the judgment of conviction was affirmed with-

out 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 wit-

ness was sworn."

In a memorandum and order filed on December 30, 1977?

Hon. Eugene H. Nickerson, United States District Judge,

Eastern District of New York, issued a writ of habeas

*In 1970, this rule was incorporated by the New York State

Legislature into N.Y. Crim. Proce. L. §§ 40.20(1), 40.30(1) (Me-

Kinney 1971); L. 1970, ce. 996, § 1, and became effective on Septem-

ber 1, 1971. The statute was subsequently amended ir 1974 to

provide that in a jury trial jeopardy attaches when a jury has

been empaneled and sworn. N.Y. Crim. Proe. L. § 40.30(1) MeKin-

ney Supp. 1977).

*The judgment granting the writ was entered on January 3,

1978 but respondents failed to file timely notice of appeal since

despite the terms of the order filed on December 30, 1977 requiring

the clerk to make copies of the order and to serve the parties,

such service was not made. Under F.R.A.P. 4(a) the State’s time

to appeal expired on February 2, 1978, thirty days after the

judgment was entered. F.R.A.P. 4(a) further provides that the

State could have applied for an extension not to exceed thirty

days from the expiration of the first thirty day period, to wit,

until March 4, 1978. Respondents did not learn of the decision

until it appeared in the advance sheets of the Federal Supplement

dated March 6, 1978. A motion was made by the respondents

pursuant to Rule 60(b)(6) of the Federal Rules of Civil Pro-

cedure for an order vacating the judgment and directing entry of

a new judgment granting the same relief. Judge Nickerson, find-

ing that no service had apparently been made and that the re-

(footnote continued on following page)

‘

Appendix A.

corpus finding that under Benton v. Maryland, 395 US.

784 (1969), the states were bound to follow the rule of

Downum v. United States, 372 U.S. 734 (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.’’ Illinots

v. Somerville, 410 U.S. 458, 468 (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.

(footnote continued from preceding page)

spondents had acted diligently and expeditiously, granted the

motion, vacated the prior judgment and directed the entry of a

new judgment granting the petition for the writ.

F.R. Civ. P. 77(d) states:

Lack of notice of the entry by the clerk does not affect the

time to appeal or relieve or authorize the court to relieve a

party for failure to appeal within the time allowed, except

as permitted in Rule 4(a) of the Federal Rules of Appellate

Procedure.

The district court’s grant of relief under Rule 60(b) (6) in effect

extends the time to appeal for more than the sixty days permitted

by F.R.A.P. 4(a). Several circuits have established an exception

under special circumstances to F.R. Civ. P. 77(d) and have up-

held the vacating and re-entry of judgment under Rule 60(b) (6)

where the sixty days to appeal under F.R.A.P. 4(a) has expired.

These cases, however, have required a showing of more than the

mere failure to notify the parties that judgment has been entered.

Rather, the courts have insisted on a showing that counsel has

diligently attempted to discharge the duty implict in Fed. R. Civ.

P. 77(d) by making inquiries to discover the status of the case.

Buckeye Cellulose Corp. v. Braggs Electric Construction Co., 569

F.2d 1036 (8th Cir. 1978); Fidelity and Deposit Co. of Maryland

v. Usaform Hail Pool, Inc., 523 F.2d 744 (5th Cir. 1975), cert.

denied, 425 U.S. 950 (1976); In re Morrow, 502 F.2d 520, 523

(5th Cir. 1974) (“To permit an appeal where there is failure to

notify, without more, would be opposed to the clear wording and

intent of Rule 77(d).”).

(footnote continued on following page)

Appendia A.

In Downuwm v. United States, swpra, it became estab-

lished 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 (1968). Under Palko

v. Connecticut, 302 U.S. 319, 328 (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 un-

less he was subjected to a “hardship so acute and shocking

that our polity [would] not endure it.” However, in

(footnote continued from preceding page)

In granting the Rule 60(b)(6) motion in the instant case, the

district court relied on Expeditions Unlimited Aquatic Enter-

prises, Inc. v. Smithsonian Inst., 500 F.2d 808 (D.C. Cir. 1974),

which held that a trial court may vacate and re-enter a judgment

under Rule 60(b) to allow a timely appea' upon a showing that

neither party had actual notice of the entry of judgment, the

winning party is not prejudiced by the appeal, and the losing

party moves to vacate the judgment within a reasonable time after

he learns of its entry. Id. at 810. We do not feel that this

view would be accepted here. Although this circuit has not

squarely addressed the issue (compare International Controls

Corp. v. Vesco, 556 F.2d 665 (2d Cir. 1977), cert. denied, 434

U.S. 1014 (1978) ), prior decisions indicate that a Rule 60(b) (6)

motion may not be granted absent some showing of diligent effort

by counsel to ascertain the status of the case. In Radack vy. Nor-

wegian America Line Agency, Inc., 318 F.2d 538, 542 (2d Cir.

1963), we stated :

[Ljack of notice does not ipso facto mean that a judgment

must, can or should be reopened . . . [Rule 60(b) (6)]

cannot be used to circumvent the 1946 amendment to Rule

77(d) dealing with the effect of lack of notice on the running

of the time for appeal.

See also Wagner v. United States, 316 F.2d 871 (2d Cir. 1963).

If Mizell had appealed the district court’s order vacating his

earlier judgment, we would be bound to reverse. However, since

Mizell did not take such an appeal, we do no more than note

the error here.

Appendix A.

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 stand-

ards apply against both the State and Federal Govern-

ments.’’? 395 U.S. at 795. In his opinion below Judge

Nickerson rejected the State’s contention that the differ-

ence between the federal and New York rules concerning

when jeopardy attaches was merely technical or mechani-

eal. Rather, Judge Nickerson found that “[t]he composi-

tion 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, 871-2 (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, 98 S. Ct. 2156 (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 in-

conclusively, the precise point at which jeopardy does

attach in a jury trial might have been open to argu-

ment before this Court’s decision in Downum v. United

States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.E.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 proposi-

tion that jeopardy attaches when the jury is empaneled

Appendia A.

and sworn (citations and footnote omitted). 98 S.Ct.

at 2160.

It is evident that the Supreme Court in Urist 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 con-

venience.’ Even if we were to accept the position of the

State, that Crist has established new and overruling prin-

ciples 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, 391 U.S. 618 (1965), as the appropriate test of

retroactivity.* However, that contention ignores Robinson

v. Neil, 409 U.S. 505 (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 signifi-

cantly different from procedural guarantees held in the

Linkleiter line of cases to have prospective effect only.

* Downum constitutionalized the rule that jeopardy attaches as

soon as the jury is sworn by recognizing its source to be the double

jeopardy clause of the Fifth Amendment. See, e.g., United States

v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977); Serfass

v. United States, 420 U.S. 377, 388 (1975); Illinois v Somerville,

410 U.S, 458, 467 (1973); id. at 471 (White, J., dissenting) ;

United States ex rel, Bland v. Nanna, 282 F.Supp. 754 (S.D.N.Y.)

aff'd, 393 F.2d 416 (2d Cir.), cert. denied, 392 U.S. 941 (1968).

*Since Linkletter, the Supreme Court has viewed the retro-

activity of a new constitutional rule affecting criminal trials as a

function of three factors: “(a) the purpose to be served by the

new standards, (b) the extent of the reliance by law enforcement

authorities on the old standards and (c) the effect on the admin-

istration of justice of a retroactive application of the new stand-

ards.” Desist v. United States, 394 U.S, 244, 249 (1969) ; Linkletter

v. Walker, 381 U.S. 618, 629 (1965).

’

Appendia A.

While this guarantee, like the others, is a constitu-

tional 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 col-

lateral purposes such as the deterrence of unlawful

police conduct, Mapp v. Ohio, supra [367 U.S. 642

‘((1961)]. In Waller [397 U.S. 387 (1970)], however,

the Court’s ruling was squarely directed to the preven-

tion 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.

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 lynch-

pin 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 de-

cided that the federal rule set forth in Downum had been

made applicable to the states by Benton. In any event, we

believe Crist should be applied retroactively.

The only question remaining is whether the discharge

of the first jury was necessitated by manifest necessity.

Illinois v. Somerville, swpra, at 467-68. We again agree

with the district court that no such circumstance existed

here, The prosecutor asked for a continuance until Mon-

day. There was no indication that either of the two wit-

nesses would be unavailable by Monday. In fact, the

request would indicate that the State could reasonably pre-

10a

Appendia A.

dict their attendance at that time. Moreover, the fact that

on Monday the prosecutor moved for trial indicates that

the witnesses were not irretrievably lost. The only reason

given by the court for the failure to grant a continuance

was the convenience of the jury. The jury, however, had

not been sequestered and a continuance would not have re-

quired them to serve beyond their appointed term. This

fact is of special significance since “[t]he discretion to dis-

charge the jury before it has reached a verdict is to be

exercised ‘only in very extraordinary and striking circum-

stances’. . . .’”? Downum v. United States, supra, at 736,

quoting United States v. Coolidge, 25 Fed. Cas. 622, 623

(Cir. Ct., D. Mass. 1815). Under these circumstances

neither the “ends of public justice” nor “manifest neces-

sity” required a mistrial. A continuance should have been

granted. See Downum v. United States, supra; Cornero v.

United States, 48 F.2d 69, 71 (9th Cir. 1931).

While we are in agreement with the reasoning and the

conclusion of the district court, the relief there granted

was in the circumstances not. appropriate. We are, ac-

cordingly, unable to affirm. We must vacate the judg-

ment below and remand for consideration of a new judg-

ment affording appropriate relief,

It developed at oral argument that Mizell had been re-

leased from custody at the expiration of his sentence.

After argument, we were advised that the date of release

was September 19, 1977, well before entry of the judgment

below. There is some indication that this was made known

to Judge Nickerson, but he was evidently not conscious of

the fact when he made his decision. The award of relief

was as follows: “The petition for a writ of habeas corpus

is granted.”

The award of relief was somewhat inexact since the

writ of habeas corpus, historically and under the statute

(28 U.S.C. § 2243), is simply a means of securing the peti-

lla

Appendia A.

tioner’s body for a hearing. After the hearing, if deten-

tion is found to be unlawful, the relief awarded is an order

that petitioner be released. If detention is found to be

lawful, the decision is to deny the relief requested in the

petition. In either case, the writ itself issues (if at all)

before the hearing; by the time of the decision, the func-

tion of the writ has been exhausted. Sokol, Federal Habeas

Corpus 36-37 (2d ed. 1969).

The granting of the writ by the district court in the

case at bar can only be interpreted as an order that Mizell

be released. “As a sort of shorthand, lawyers and judges

frequently use the expression ‘granting the writ’ as if it

were equivalent to granting the relief requested.” Sokol,

supra, at 37. Mizell in his petition had asked for release

from custody, and nothing more.

But at the time of the district court’s order, Mizell was

no longer in custody and his prayer for the relief of re-

lease was therefore moot. Were Parker v. Ellis, 362 U.S.

574 (1960), still good law, we would be required to dismiss

this appeal as moot. Parker v. Ellis, however, is not good

law, having been overruled by Carafas v. LaVallee, 391

U.S. 234 (1968). Since Mizell was in state custody at the

time he filed his application in the district court (November

29, 1976), federal jurisdiction “is not defeated by the re-

lease of the petitioner prior to completion of proceed-

ings. .” Carafas v. LaVallee, 391 U.S. at 238. The basis

for the Carafas holding is that:

The statute does not limit the relief that may be

granted to discharge of the applicant from physical

custody. Its mandate is broad with respect to the relief

that may be granted. It provides that “[t]he court

shall . . . dispose of the matter as law and justice

require.” 28 U.S.C. § 2243.

391 U.S. at 239. The Supreme Court then notes that

amendments in 1966 to the habeas corpus statutes (for

l2a

Appendix A,

example, 28 U.S.C. § 2244(b)) “seem specifically to contem-

plate the possibility of relief other than immediate release

from physical custody.’’ 391 U.S. at 239.

Mizell may wish to ask for such other relief. The con-

viction of September 10, 1971, may subject him to ‘‘dis-

abilities or burdens’? (Fiswick v. United States, 329 U.S.

211, 222 (1946)) and to “collateral consequences” (Gims-

berg v. New York, 390 U.S. 629, 633-34 n.2 (1968)). The

judgment below must be vacated so that Mizell may apply

for such other relief. We leave it to the district court to

determine what relief should be granted. We note the pos-

sibility of a declaration that the September 10, 1971 con-

viction is void and of an order to the respondent Attorney

General to apply in the New York courts for a vacatur

of the conviction and for an order expunging it and all

references to it from the records. There are few prec-

edents. The problem seems to have arisen in the following

cases: North Carolina v. Rice, 404 U.S. 244 (1971), vacat-

ing and remanding 434 F.2d 297 (4th Cir. 1970); Pinnell

v. Cauthron, 540 F.2d 938 (8th Cir. 1976); Grandison v.

Warden, 423 F.Supp. 112 (D. Md. 1976) ; Bentley v. Florida,

285 F.Supp. 494 (S.D. Fla. 1968). See also Sokol, supra,

at 78-80. ;

Judgment appealed from vacated. The cause is re-

manded to the district court for consideration of a new

judgment affording appropriate relief.

Frienviy, Circuit Judge, concurring dubitante:

I concur on the basis that our holding is only that since

the indications were that the two prosecution witnesses

who were absent on Thursday would be available on Mon-

day, the judge should have granted the continuance which

the prosecutor requested and should not have discharged

the jury. Even as so limited this seems to me an exceed-

ingly close case. It differs from Downum v. United States,

l3a

Appendia A.

372 U.S. 734 (1963), and Cornero v. United States, 48 F.2d

69 (9 Cir. 1931), which was cited with approval in Dow-

num, in that in those cases the prosecutor had been negli-

gent (see Downum, 372 U.S. at 737, and Mr. Justice Clark’s

discussion of Cornero, 372 U.S. at 739 n.*), whereas here

he did everything humanly possible to assure the presence

of the witnesses short of actually having them in the

courthouse before impaneling a jury, often a time consum-

ing process in the New York courts, and holding the wit-

nesses in custody—a course which no one could reason-

ably advocate. The prosecutor initially sought a continu-

ance; he asked for a discharge of the jury only when the

court’s refusal of this left him no alternative. Moreover,

the court’s refusal to grant a continuance was not solely

or, as I read the record, even preponderantly for ‘‘the con-

venience of the jury’’; after discharging the jurors, the

court directed them to report back to the central jury

room, where they would be available for other important

duties. Furthermore, while in the luminous hindsight of

Crist v. Bretz, 98 S. Ct. 2156 (1978), and Robinson v. Neil,

409 U.S. 505 (1973), we now know that the New York

rule with respect to the attachment of jeopardy had been

displaced by the combined working of Downum and Ben-

ton v. Maryland, 395 U.S. 784 (1969), the busy state trial

judge can hardly be faulted for lacking such prescience,

especially when defense counsel contributed nothing to en-

lighten him save for noting an unelaborated exception. If

a double jeopardy claim had been clearly articulated, the

judge might well have acted otherwise. The same Court

that decided the cases cited by my brother Mulligan has

warned federal courts against being too quick to interfere

with a state trial judge’s ‘‘rational determination designed

to implement a legitimate state policy’’ when there is ‘‘no

suggestion that the implementation of that policy” by dec-

laration of a mistrial ‘‘could be manipulated so as to

l4a

Appendia A.

prejudice defendant,’’ Illinois v. Somerville, 410 U.S. 458,

469 (1973), and has instructed that the words ‘‘manifest

necessity’’ ‘‘do not describe a standard that can be ap-

plied mechanically or without attention to the particular

problem confronting the trial judge’’, Arizona v. Wash-

ington, 434 U.S. 497, 506 (1978), see also id. at 516 fn. 35.

The especially drastic characteristic of a double jeopardy

determination in a case like this, namely, that the defend-

ant is entitled not simply to a new trial but to be relieved

of any, requires an appellate court to proceed with caution,

particularly when, as here, there is no suggestion of prose-

cutorial or judicial abuse. I suspect my brothers might

feel differently about this case if Mizell were serving the

first year of a life sentence for murder rather than being

at liberty after having completed his sentence; yet in strict

theory the test should be the same. In short I believe we

have here gone to the very verge and perhaps beyond it.

lda

APPENDIX B

Opinion.

UNITED STATES DISTRICT COURT

Eastern Districr or New YorkK

76 C 2161

ind

JAMES Mi1zELL,

Petitioner,

Tue ATTORNEY GENERAL OF THE StaTE OF New YorkK

and The Warden, Brooklyn House of Detention,

Respondents.

James Mizell, pro. se.

Louis J. Lefkowitz, Atty. Gen., New York City (Robert

S. Hammer and John M. Farrar, New York City, of

counsel), for respondents.

MEMORANDUM AND ORDER

Nickerson, District Judge.

Petitioner, convicted on September 10, 1971 in New York

Supreme Court, Kings County, of robbery, petty larceny,

assault, and possession of a dangerous weapon, has applied

for a writ of habeas corpus, alleging that his conviction

violated the double jeopardy clause of the Fifth Amend-

ment, applicable “to the States through the Fourteenth

Amendment.” Benton v. Maryland, 395 U.S. 784, 794

1969).

The transcripts of the state court proceedings against

petitioner and another defendant reveal the following facts.

16a

Late in the day on Wednesday, March 24, 1971, a jury of

twelve plus two alternates was duly impaneled and sworn.

After giving preliminary instructions the judge adjourned

the case until the following morning. On that day peti-

tioner’s attorney requested a hearing to determine whether

identification testimony by the complaining witness was

admissible under United States v. Wade, 388 U.S. 218

(1967). A hearing was held, and the judge ruled that al-

though previous identifications of the defendants were

tainted, the identification made in court could be presented

to the jury. The Assistant District Attorney then in-

formed the court that two of the witnesses for the prose-

cution were not available—one had left for North Carolina

because of a death in his family, the other had simply

not appeared. Both witnesses had been subpoenaed, and

apparently the Assistant District Attorney did not learn

of their unavailability until after the jury had been sworn.

Because of the absence of the witnesses the Assistant

District Attorney requested a continuance until Monday,

March 29. The following colloquy then ensued:

“The Court: What im 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. How-

ever, 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

17a

Appendix B.

Court is basing its ruling the case of the matter of

Roy Bland (phonetic) and also the matter of William

Maury (phonetic), which is decided in 20 New York

2nd, Page 552. All right, bring in the jury. Discharge

them.”.

After the atorneys for both defendants noted their excep-

tion, the judge discharged the jury. The case was called

for trial again on Tuesday, March 30, 1971. The new jury

heard evidence for two days and began its deliberations

around noon on April 1. At 9:35 that evening, the jury

informed the judge, for the second time, that it was dead-

locked. The judge thereupon declared a second mistrial.

A third trial of petitioner, before a third jury, began on

June 21, 1971, and on this occasion he was found guilty.

The Fifth Amendment to the Constitution provides, in

relevant part, that no person shall “be subject for the

same offense to be twice put in jeopardy of life or limb.”

Petitioner contends that under this clause,.made appli-

eable to the State through the Fourteenth Amendment,

further proceedings against him were barred after the

discharge of the first jury. He so contended in the State

Court and on appeal to Appellate Division, Second De-

partment, which affirmed without opinion. The Court of

Appeals denied leave to appeal. Respondents acknowl-

edge that petitioner raised the double jeopardy issue in

his state appeals. Petitioner having exhausted his state

remedies, this court may hear his claim.

[1] When petitioner was tried in 1971, the New York

Criminal Procedure Law as it then stood provided that:

‘A person may not be twice prosecuted for the

same offense.

18a

Appendia B.

‘‘[A] person ‘is prosecuted’ for an offense . . . when

he is charged therewith by an accusatory instrument

filed in a court of this state . . . and when the action

. . . [p]roceeds to the trial stage and a witness is

sworn.” (McKinney’s N. Y. Criminal Procedure Law

§§ 40.20(1), 40.30(1); L. 1970, c. 996 §1) (emphasis

supplied).

Those provisions simply codified the rule adopted by the

New York Court of Appeals in Bland v. Supreme Court,

County of New York, 20 N.Y.2d 552 (1967), that jeopardy

attaches only after a witness has been sworn. In the pres-

ent case, since the court discharged the jury before a wit-

ness had been sworn, the court held petitioner had not

been ‘‘prosecuted”’ and his retrial was not barred.

It seems clear that had the proceedings occurred in a

Federal court petitioner would prevail. In Downum v.

v. United States, 372 U.S. 734, 736 (1963), the Supreme

Court held that discretion to discharge a sworn jury over

a defendant’s objection and before verdict is to be exercised

“only in very extraordinary and striking circumstances’’

and that the fact that a key witness, who had not been

subpoenaed, was absent did not justify discharge of the

jury. The Downum case established that under the double

jeopardy ciause of the Fifth Amendment a defendant is

placed in jeopardy, that is, jeopardy “attaches”, as soon

as a jury is sworn. See Illinois v. Somerville, 410 U.S. 458

(1973) ; United States v. Jorn, 400 U.S. 470 (1971) ; United

States ex rel. Bland v. Nenna, 282 F.Supp. 754 (S.D.N.Y.

1968) (Frankel, J.), aff’d 393 F.2d 416 (2d Cir. 1968), cert.

den. 392 U.S. 941 (1968).

This petition presents as the initial question whether the

New York statutory rule in effect in 1971, that jeopardy

does not attach until a witness is sworn,’ is consistent with

*New York amended § 40.30 of the Criminal Procedure Law

in 1974 to provide that a person “is prosecuted” when the ease

“proceeds to the trial stage and a jury has been emnaneled and

sworn.” L.1974, e. 80, §1.

a RET RA SEN NS NO

+ Ne ween et

19a

Appendia B.

the double jeopardy clause of the Fifth Amendment made

applicable to the States by the Fourteenth Amendment.

Prior to the Supreme Court’s decision in Benton v.

Maryland, supra, 395 U.S. 784 (1969), the double jeopardy

clause of the Fifth Amendment had not been thought to be

incorporated in terms into the due process clause of the

Fourteenth Amendment. In Palko v. Connecticut, 302

U.S: 319 (1937), the Court had held that Federal double

jeopardy standards were not applicable against the States

and that the Fourteenth Amendment did not protect the

defendant against double jeopardy unless he were sub-

jected to “a hardship so acute and shocking that our polity

will not endure it.” 302 U.S. at 328.

Measured by the standard of the Palko decision, what

took place in this case could hardly be thought to have

violated the Fourteenth Amendment. Palko, though in-

dicted for first degree murder, had been convicted of

murder in the second degree after a jury trial and sen-

tenced to life imprisonment. The state appealed, a re-

versal was obtained, and Palko was convicted after a sec-

ond jury trial of first degree murder and sentenced to

death. If that was not a result sufficiently “acute and

shocking” to be deemed prohibited by the due process

clause, then surely the discharge of a first jury and a sub-

sequent trial and conviction would not be improper. The

New York Court of Appeals in Bland v. Supreme Court,

County of New York, supra, and Judge Marvin Frankel in

United States ex rel. Bland v. Nenna, supra, so held prior

to Benton v. Maryland, supra. In fact the majority in the

New York Court of Appeals was of the opinion that “it

makes little difference’? whether the Federal rule or the

then New York rule applied. 20 N.Y.2d at 555.

But thereafter Benton v. Maryland, supra, changed the

standards applicable to the States, decided that the double

jeopardy clause was ‘‘fundamental to the American scheme

of justice”, and held that “the same constitutional stand-

20a

Appendix B.

ards apply against both the State and Federal Govern-

ments’’, 395 U.S. at 795. The Court said that a state con-

viction “must be judged, not by the watered-down standard

enunciated in Palko, but under this Court’s interpretations

of the Fifth Amendment double jeopardy provision.” 395

U.S. at 796, 89 S.Ct. at 2063.

Since the Benton case it has been consistently either

held or assumed that the Federal test of when jeopardy

attaches is to be applied to State prosecution. See, e. g.,

Illinois v. Somerville, supra, at 467, 1066; Bretz v. Crist,

546 F.2d 1336 (9 Cir. 1976), app. pending sub nom. Crist

v. Cline, 430 U.S. 982 (Docket No. 76-1200); McNeal v.

Hollowell, 481 F.2d 1145, 1149 (5 Cir. 1973); Smith v.

State of Mississippi, 478 F.2d 88 (5 Cir. 1973), cert. den.

414 U.S. 1113; People v. Davis, 79 Mise.2d 137 (Niagara

County Sup.Ct. 1974).

The State argues that the Benton case “left open’’ the

question of when jeopardy is to attach in the State courts

and that the time when jeopardy attaches “does not aspire

to the constitutional level, but is merely a mechanical or

arbitrary ‘cutoff point’.”. But to accept this argument

would be to acquiesce in a reversion, at least in part, to

“the watered-down standard enunciated in Palko’’, to use

the words of the Benton opinion, and to reject the Supreme

Court’s “interpretations of the Fifth Amendment double

jeopardy provision.”

I do not agree that “it makes little difference” whether

the New York or the Federal rule applies or that the dif-

ference is merely “technical’’, as the New York Court of

Appeals said in Bland v. Supreme Court, County of New

York, swpra, or “mechanical’’, as the State argues. A rule

which permits a duly sworn jury to be discharged on mo-

tion of the prosecution does not protect a defendant’s

“valued right to have his trial completed by a particular

tribunal.” United States v. Jorn, 400 U.S. 470, 484 (1971).

At petitioner’s first trial, that tribunal had been chosen,

~ a i a A RT I I ETT

is eS re nn

21a

Appendia B.

and petitioner was prepared to have his guilt or innocence

determined by the twelve individuals selected. The next

day over his objection he was abruptly deprived of that

right. Those twelve people were lost to him, and twelve

others seated in their places.

The Supreme Court decisions make it clear that the

double jeopardy clause protects a defendant’s affirmative

right to be tried by a particular jury as much as it pro-

tects a defendant against prosecutorial overreaching once

the trial is well underway.

“T]he interest of the defendant in having his fate

determined by the jury first impaneled is itself a

weighty one . . . [T]he lack of demonstrable addi-

tional prejudice [will not] preclude the defendant’s

invocation of the double jeopardy bar in the absence

of some important countervailing interest of proper

judicial administration.’’ Illinois v. Somerville, 410

U.S. 458, 471 (1973).

As any experienced trial lawyer knows, jurors are not

fungible, and the juries are not interchangeable. If they

were there would be no provision for peremptory chal-

lenges of jurors not dischargeable for cause and a criminal

defendant would have no interest, ‘‘weighty’’ or other-

wise, in a particular jury. But just as each individual

is unique so is each jury, composed as it is of different

individuals.

In formulating proposed voir dire questions, challenging

jurors for cause, and exercising peremptory challenges,

counsel in a criminal case focus on the individual candi-

dates for service on the jury. And it is not surprising

that veteran defense counsel believe that the outcome often

depends on the jury selection process. I. Mendelsohn,

Defending Criminal Cases 61 (1967).

Jurors do not diseard their individuality upon entering

the jury box, but use their ‘‘basie experience with causal

22a

Appendix B.

relationships and probabilities’ in serving as fact-finders.

‘‘Note, Community Hostility and the Right to an Impartial

Jury’’, 60 Colum.L.Rev. 349, 349-50 (1960). Particular

juries also differ as representatives of the community.

The panels from which juries are selected must reflect a

cross-section of the community, TJ'aylor v. Louisiana, 419

U.S. 522, 526-531 (1975), and the number of jurors on a

petit jury must be sufficiently large to provide a “fair pos-

sibility” for obtaining such a cross-section. Williams v.

Florida, 399 U.S. 78, 100 (1970). However, so long

as no systematic exclusion of jurors has occurred, a crimi-

nal defendant has no right to a jury on which all sectors

of the community are represented. Cf. Apodaca v. Oregon,

406 U.S. 404 (1972). A prosecutor may even go so far as

to use peremptory challenges to exclude certain groups

from a particular jury. Swain v. Alabama, 380 U.S. 202

(1965).

The composition of a particular jury is crucial, then,

to the jury’s role as fact-finder, moral voice, and com-

munity representative. The replacement of one jury by

another may well determine the outcome of a trial’ and,

if beyond the scope of protections of the double jeopardy

clause, can become a powerful weapon for prosecutorial

abuse.

‘‘If the prosecutor disliked the jury, or some of

them . . . he might, at any time, attain his end, if,

by solely alleging the want of proof after a jury were

sworn, he could get rid of them.’’ People v. Barrett,

2 Caines 304, 308-09 (1805).

“It is not without significance that one of the juries which

heard the case against petitioner failed to convict him, While

petitioner can do no more than speculate, it is not wholly un-

reasonable for him to believe that the first jury might have ac-

quitted him.

nt NRE EE ee ee

ES A te Dis Tse

23a

Appendix B.

I hold ‘that the double jeopardy clause guarantees to

defendants in State criminal proceedings, no less than to

defendants tried in the federal courts, the protection af-

forded by the rule that jeopardy attaches when a jury

has been sworn.

[2] Because ‘‘the conclusion that jeopardy has attached

begins, rather than ends, the inquiry as to whether the

double jeopardy clause bars retrial’’ Illinois v. Somerville,

supra, 410 U.S. at 467, I must consider whether the dis-

charge of the jury “was required by ‘manifest necessity’

or the ‘ends of public justice’.”’ Jd. at 408. The double

jeopardy clause requires

‘‘trial judges not to foreclose the defendant’s option

[to proceed before a particular tribunal] until a seru-

pulous exercise of judicial discretion leads to the con-

clusion that the ends of public justice would not be

served by a continuation of the proceedings .

[T]he judge must always temper the decision whether

or not to abort the trial by considering the importance

to the defendant of being able, once and for all, to

conclude his confrontation with society through the

verdict of a tribunal he might believe to be favorably

disposed to his fate.’’ Umited States v. Jorn, 400

U.S. 470, 485-86 (1971).

Here, the trial court gave no consideration to defend-

ant’s interests whatsoever. The prosecutor informed the

court of its inabiilty to proceed on a Thursday, and asked

for a continuance until Monday. The court refused, for

no reason other than an inconvenience to the jury sworn

the previous evening. The court had not sequestered the

jury, and a continuance would not have required the jurors

to serve beyond iheir appointed term. <A continuance

IES

24a

Appendix B.

would have served as well as a discharge. Under the

circumstances, the ‘‘ends of public justice’’ did not re-

quire a mistrial, and there plainly was no ‘‘manifest nec-

essity’’ to discharge the jury.

The petition for a writ of habeas corpus is granted.

So ordered.

Dated: Brooklyn, New York

December 29, 1977

Kvucene H. Nickerson

Eugene H. Nickerson, U.S.D.J.

The Clerk shall make copies of this Order and serve

them upon the parties.

a ae aca

~ SR ee em a Oe

25a

APPENDIX C

Order.

UNITED STATES DISTRICT COURT

Eastern District or New York

76 C 2161

James MizEL1,

Plaintiff,

—against—

THe ATTORNEY GENERAL OF THE STATE

or New York, and ano.,

Defendants.

THe Leaat Ai Soctetry

(Steven L. Barrett, Esq., of counsel)

for plaintiff

Rosert Asprams, Attorney General of the

State of New York

(John M. Farrar, Esq., of counsel)

for defendant

Nickerson, District Judge

A mandate issued from the Court of Appeals on October

30, 1978 vacating the judgment entered on January 3, 1978

in the above captioned matter and remanding for appro-

priate relief.

For the reasons expressed in the prior memorandum and

order of this court dated December 30, 1977, plaintiff’s

conviction in New York Supreme Court, Kings County, is

26a

Appendix C.

totally null and void. The conviction is vacated, and it and

all references to it shall be expunged from petitioner’s

records.

Dated: Brooklyn, New York

January 3, 1979

Eugene H. Nickerson

Evueene H. Nickerson, U.S.D.J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.