# Petition — Whitt v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 833

## Text

Office- Supreme Court. U.S.
8 ; * F ae Rs
-2123 If
23 } JUN 15 1981
No. 14 :
ALBXAND «ix „EVS,
IN THE

— *

Supreme Court of the United States

October Term, 1980

—

JOHN LEE WHIT T,
Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA

ROBERT N. CLARKE
Attorney for Petitioner
231 North Main Street

Washington, Pennsylvania 15301
(412) 228-5000

Of Counsel:
M. Scot CuRRAN
231 North Main Street
Washington, Pennsylvania 15301
(412) 228-5000

Batavia Times Publishing Co. 1
Pittsburgh, Pa. (412) 881-7463

Questions Presented for Review

Petitioner’s jury trial on charges of murder, et al. com-
menced April 10, 1980 and continued on April 11, 1980.
On the evening of April 11, the trial judge became ill
with the “flu’’ and was unable to preside at trial the
following week. On April 17, 1980, a hearing was held
before the Honorable Thomas J. Terputac, wherein the
Court determined the trial judge’s illness would continue
through the next day (Friday) and perhaps through
Monday (J. T.). Based upon this finding and over Peti-
tioner’s objection, the Court ruled that manifest
necessity” required the declaration of a mistrial. On May
1, 1980, the Petitioner filed a Motion to Quash the
Indictment on the basis that the Petitioner’s retrial
would violate the Fifth and Fourteenth Amendments of
the United States Constitution. The Motion was denied
by the Court of Common Pleas of Washington County,
Pennsylvania, on May 12, 1980. The Supreme Court of
Pennsylvania affirmed the determination of the Court of
Common Pleas on April 15, 1981.

The questions presented for review are:

(1) Whether the Supreme Court of Pennsylvania erred
in intentionally, willfully, recklessly or negligently dis-
regarding the decision of the Supreme Court of the
United States in Arizona v. Washington, 434 U.S. 497,
98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)?

(2) Whether the trial judge abused his discretion in
finding that manifest necessity required the declara-
tion of a mistrial so as not to bar Petitioner’s subsequent
prosecution?

II.

TABLE OF CONTENTS.

ria. Bune 3
Questions Presented for Revieee x.. i
Cases and Statutes Cite ꝗq iii
n ei ²—0 bene eee 1
ee lee 2
Constitutional Provisions Involved ............... 2
DAE —B—W bbb dl 2
Reasons for Granting Writ of Certior arri. 4
A ee „„ 4

Point I. The Supreme Court of Pennsylvania err-
ed in intentionally, willfully, recklessly or
negligently disregarding the decision of the
Supreme Court of the United States in Arizona
v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54
Ecce WEAR Ü— 9 W“ h—;ſwſͥ·a oor 4

Point II. The trial Judge abused his discretion in
finding that manifest necessity required the
declaration of a mistrial so as not to bar the

petitioner’s subsequent prosecution........... 5
„%% ͤ P 0 10
Appendix A- Opinion of Court of Common Pleas on

Motion to Quash Indictment (June 11, 1980) la

Appendix B—Memorandum--Order of Supreme
Court of Pennsylvania Affirming Denial of Motion
to Quash Indictment (April 15, 1981)........... lla

Appendix C—Constitutional Provisions Involved. 12a

III.

Page
CASES CITED.
Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824,
O46 Ly BG. BE ULE CAGIS) Sicicvcccdccsvvtone 4,5,6,7,8,9
Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056,
e 5
Carsey v. United States, 129 U.S. App. D. C. 205,
eee 7
Commonwealth v. Ferguson, 446 Pa. 24, 285 A. 2d
, / ·•‚ havens 9
Commonwealth v. Robson, 461 Pa. 615, 337 A. 2d
/ ̃ TA ̃⁵˙iUñLͤͤ ˙AÄW EC Lp ees 6
Downum v. United States, 372 U.S. 734, 83 S. Ct.
rr pic ced eis iccssicondas ee 8
Green v. United States, 355 U.S. 184, 78 S. Ct. 221,
e 7
Illinois v. Sommerville, 410 U.S. 458, 93 S. Ct.
1066, 35 L. Ed. 2d 425 (1973ꝶꝗ .. 7
Roberts v. Louisiana, 431 U.S. 633, 97 S. Ct. 1993,
nenen. ccasew sore visi 5
Simmons v. United States, 142 U.S. 148, 12 S. Ct.
% ⁰·)/“hô'õm 8. 8
State v. Linscott, Me. , 416 A. 2d 255
R » . ²ůã⁴in e 4
Thompson v. United States, 155 U.S. 271, 15 S. Ct.
re 8
United States v. Dimitz, 424 U.S. 600, 96 S. Ct.
r !, //... e 8
United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547,
en 5.6.7.8
Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L.
/ mA ͤ d;. dax... 7
STATUTES CITED.
Pennsylvania Crimes Code:

Title 18, Sections 2501 and 2502 ............... 2

IN THE

Supreme Court of the United States

October Term, 1980

No.

JOHN LEE WHITT,
Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA

John Lee Whitt prays that a Writ of Certiorari issue to
review a judgment of the Supreme Court of Pennsyl-
vania, entered on April 15, 1981, which affirmed an
Order denying a Motion to Quash the Indictment which
was previously entered against Petitioner in the Court of
Common Pleas of Washington County, Pennsylvania, on
May 12, 1980.

Opinions Below

Following the entry of the Order in the Court of Com-
mon Pleas, the Petitioner appealed to the Pennsylvania
Supreme Court. The per curiam affirmance of the Penn-

2

sylvania Supreme Court and the Opinion of the Court are
set forth in Appendices A and B (la- IIa).

Jurisdiction

The jurisdiction of this Court is invoked under 28
U.S.C. §1257(3).

Constitutional Provisions Involved

This case involves Article 3, Section 1 (regarding the
power of courts); Article 3, Section 2 (Appellate jurisdic-
tion); The Fifth Amendment (due process of law and
right not to be put in jeopardy of life or limb more than
once); and Fourteenth Amendment (due process of law as
applied to the States).

These Constitutional provisions are reproduced in Ap-
pendix C hereto.

Statement of Facts

On September 24, 1979, the defendant was charged
with the crimes of Criminal Homicide and Murder, §2501
and 52502 of the Pennsylvania Crimes Code. On Tues-
day, April 8, 1980, jury selection commenced before the
Honorable John F. Bell. Jury selection continued
through Wednesday, April 9, 1980.

The following abbreviations are used in the petition:

nis a reference to the Petitioner s Appendix which appears
following the conclusion of the petition: The Ay pendix contains
the opinion of the Court of Common Pleas of Washington Coun-
ty (Appendix A); the decision of the Supreme Court of Pennsyl-
vania (Appendix B), and the applicable Constitutional Provi-
sions involved.

“J” is a reference to the Record submitted to the Supreme
Court of Pennsylvania which contains all the relevant matters
of record.

3

On Thursday, April 10, 1980, and for one-half a day on
Friday, April 11, 1980, the Commonwealth presented
substantially all of its case before the judge and jury.
The only remaining prosecution witnesses left to call
were several State Police Troopers.

On Monday, April 14, 1980, the defendant and his
counsel were advised that Judge Bell was ill and would
not be able to perform his duties on that day. The
Honorable Thomas J. Terputac ordered a continuance of
the trial on a day to day basis, pending Judge Bell's
return. On Thursday, April 17, 1980, after stating that
he talked to Judge Bell and over the objection of the
defendant's attorney, Judge Terputac, stating that he
believed Judge Bell's illness would continue for at least
one more day and possibly through the weekend,
declared a mistrial and discharged the jury.

On May 1, 1980, the defendant presented a Motion to
Quash the Indictment in this matter for the reason that
a retrial of the defendant would be violative of the Fifth
Amendment to the Constitution of the United States by
subjecting him to double jeopardy.

On May 5. 1980, c tule issued upon the District At-
torney to show cause why the Motion should not be
granted and the charges dismissed. By Order dated May
12, 1980, the defendant's Motion to Quash the informa-
tion and the Motion to Dismiss were denied by Order of
the Honorable Thomas J. Terputac.

On May 12, 1980, the defendant appealed to the
Supreme Court of Pennsylvania which, by Order dated
April 15, 1981, affirmed the decision of the Court of
Common Pleas of Washington County, Pennsylvania, in
a per curiam decision.

4

Reasons fer Granting Writ of Certiorari

This petition raises substantial and important ques-
tions involving a State Court’s failure to act in accor-
dance with the decision of the Supreme Court of the
United States in Arizona v. Washington, 434 U.S. 497,
98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). The Writ, therefore,
should be issued to protect the integrity of the Court’s
decision. Assuming the decision of the Supreme Court of
Pennsylvania is not squarely controlled by the said case,
the decision was made in a way probably not in accord
with the applicable decisions of this Court and conflicts,
or probably conflicts with the decisions of another State
Court of last resort. See State v. Linscott, Me.
116 A. 2d 255 (1980).

ARGUMENT
POINT I

The Supreme Court of Pennsylvania erred in inten-
tionally, willfully, recklessly or negligently disregarding
the decision of the Supreme Court of the United States
in Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54
L. Ed. 2d 717 (1978).

As will be demonstrated, infra, the very essence of the
decision in Arizona v. Washington, 434 U.S. 497, 98 S.
Ct. 824, 54 L. Ed. 2d 717 (1978) is that a declaration of a
mistrial for reasons of manifest necessity” can only be
properly made after the integrity of the fact finding pro-
cess has been impugned. If the defendant objects to the
declaration of a mistrial, the prosecution has the burden
of proving that a danger to the integrity of the fact find-
ing process exists.

In the present case, no such showing is possible. After
trial had been delayed for only three days and, faced

5

with a delay of only one and (perhaps) two more business
days, the Judge temporarily assigned to the case
declared a mistrial. No jurors were questioned as to
whether their ability to render a decision had been im-
paired. No other alternatives, such as _ substituting
another Judge, were considered.

In this light, it is respectfully submitted that the deci-
sion of the Supreme Court of Pennsylvania squarely con-
flicts with the decision of this Court in Arizona v.
Washington, supra, and requires reversal. Roberts v.
Louisiana, 431 U.S. 633, 97 S. Ct. 1993, 52 L. Ed. 2d 637
(1977).

POINT II

The trial Judge abused his discretion in finding that
„manifest necessity” required the declaration of a mistrial
so as not to bar the petitioner’s subsequent prosecution.

The question requires the application of law to fact.

The law is clear that retrial of a defendant on criminal
charges is improper unless the previous trial was aborted
on motion of the defendant or manifest necessity’’ man-
dates the declaration of a mistrial. United States v. Jorn,
400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). This
Fifth Amendment standard is applicable to State prosecu-
tions. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056,
23 L. Ed. 2d 707 (1969).

In determining whether manifest necessity” requires
a declaration of a mistrial, the trial Judge must exercise
his discretion, taking into account all the circumstances
of the case. An abuse of that discretion will bar a retrial
of the defendant. Any doubt should be resolved in favor
of the liberty of the citizens; any other rule would result
in an unlimited, uncertain and arbitrary judicial discre-
tion. United States v. Jorn, supra; Arizona v.
Washington, supra.

Although no hard and fast rules for determining when
“manifest necessity” to declare a mistrial exist, certain
guidelines must be followed by the trial Judge. The
power to declare a mistrial should be used with the
greatest caution, under urgent circumstances, and should
be limited to very plain and obvious cases. In capital
cases particularly, the trial Judge should be hesitant in
interfering with any chance of liberty in favor of the
defendant. United States v. Jorn, supra; Commonwealth
v. Robson, 461 Pa. 615, 337 A.2d 573 (1975). It is the
burden of the prosecution to establish manifest necessi-
ty” for justifying a declaration of a mistrial to avoid the
double jeopardy bar. United States v. Jorn, supra;
Arizona v. Washington, supra.

The defendant respectfully submits that the case of
Arizona v. Washington, supra, is controlling and man-
dates the dismissal of the charges presently pending
against the defendant. In that case, this Court outlined
the factors to be considered in determining the scope of
the double. jeopardy clause’s protection by establishing a
balancing test. This balancing test consists of weighing
the public interest in having a just judgment reached by
an impartial tribunal against the defendant’s right not to
suffer a subsequent prosecution. Arizona v. Washington,
supra. This Court explicating the reasons for the bar
upon subsequent prosecutions, has stated:

Because jeo attaches before the judgment
becomes final, the Constitutional protection also em-
braces the rr sg “valued right to have his
trial completed by a particular tribunal. The
reasons why this “valued right merits Con-
stitutional protection are worthy of repetition. Even
if the first trial is not completed, a second prosecu-
tion may be grossly unfair. It increases the financial
and emotional burden on the accused, prolongs the

period in which he is stigmatized by an unresolved

7

accusation of wrongdoing and may even enhance the
risk that an innocent defendant may be convicted.
The danger of such unfairness to the defendant ex-
ists whenever trial is aborted before it is completed.
Consequently, as a general rule, the prosecution is
entitled to one, and only one, opportunity to require
an accused to stand trial. Arizona v. Washington,
supra, at U.S. 503 504, 8. Ct.
at 829 - 830 (footnotes omitted citing United States
v. Jorn, supra; Illinois v. Sommerville, 410 U.S. 458,
93 S. Ct. 1066, 35 L. Ed. 2d 425; Wade v. Hunter,
336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974; Green v.
United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed.
2d 799; Carsey v. United States, 129 U.S. App. D.
C. 205, 392 F.2d 810 (1967)).

Using this approach, the essence of this Court’s deci-
sion in Arizona v. Washington, supra, immediately ap-
pears. Only when the integrity of the fact finding process
has been somehow impugned or threatened may a mis-
trial be declared. This conclusion is inevitable if a close
analysis of the Court’s opinion is made.

First, it must be noted that the Court’s basic premise
in deciding the case was that the defense counsel’s open-
ing remark to the jury was improper and may have af-
fected the jury’s impartiality. “We therefore start from
the premise that defense counsel’s comment was im-
proper and may have affected the impartiality of the
jury.” Arizona v. Washington, supra, at US. 511,
1 CE. 838,

Second, the Court’s opinion makes plain that the
primary purpose of the decision is to maintain the in-
tegrity of the fact finding process. Thus, in discussing
the “hung jury” situation which would justify the
declaration of a mistrial for reasons of ‘‘manifest necessi-
ty,” the Court notes:

8

.. there exists a significant risk that a verdict may
result from pressures inherent in the situation rather
than the considered judgment of all the jurors. If re-
trial of the defendant were barred whenever an Ap-
pellate Court views the “necessity” for mistrial dif-
ferently from the trial Judge, there would be a
danger that the latter, cognizant of the serious
societal consequences of an erroneous ruling, would
employ coercive means to break the apparent dead-
lock. Arizona v. Washington, supra, U. S. at
509-510, S. Ct. at 832.

The other examples used by this Court, by way of il-
lustration, reinforce this view. In discussing Thompson
v. United States, 155 U.S. 271, 15 S. Ct. 73, 39 L. Ed.
146, this Court noted “the possibility of bias justified
the mistrial.” Arizona v. Washington, supra, at
U.S. 512, S. Ct. 834. In discussing United States
v. Dimitz, 424 U.S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267:

(the double jeopardy clause) bars retrial where bad
faith conduct by Judge or prosecutor ... threatens
the harassment of an accused by successive prosecu-
tions or declaration of a mistrial so as to afford the

prosecution a more favorable opportunity to convict
the defendant. Thus, the strictest scrutiny is ap-
propriate when the basis for this mistrial is the
unavailability of prosecution evidence or where there
is reason to believe that the prosecutor is using the
superior resources of the State to harass or achieve
a tactical advantage over the accused (footnotes
omitted, citing Downum v. United States, 372 U.S.
734, 83 S. Ct. 1033, 10 L. Ed. 2d 100; United States
v. Jorn, supra).

In discussing Simmons v. United States, 142 U. S. 148,
12 S. Ct. 171, 35 L. Ed. 968, this Court noted a mistrial
was justified because “it (was) impossible for the jury
to act with the independence and freedom on the part of
each juror requisite to a fair trial of the issue between
the parties.” Arizona v. Washington, supra. U.S.
at 512, 8. Ct. at 833-834.

9

Finally, after this Court’s discussion of the cases noted
above, the decision reinforced the analysis used herein by
stating: ‘Neither party has the right to have his case
decided by a jury which may be tainted by bias; in these
circumstances ‘the public’s interest in fair trial designed
to end injust judgments’ must prevail over the defen-
dant’s ‘valued right’ to have his trial concluded before
the first jury impaneled.” Arizona v. Washington, supra,
at US. 516, S. Ct. 835-836.

In the present case, it is respectfully submitted that no
threat to the integrity of fact finding process has been
demonstrated. Having continued the case for only three
days (the equivalent of a holiday weekend) and faced
with the absence of the trial Judge for only two more ac-
tual business days (at most) before the trial could be
reconvened, the Order granting a mistrial for reasons of
“manifest necessity’ plainly constituted an abuse of
discretion and effectively stripped the defendant of his
right to have his case heard by his chosen tribunal. As
has been stated by the Supreme Court of Pennsylvania:
“Consequently, if the Commonwealth wished to over-
come these de Its and to persuade the trial Court to
engage in such an extraordinary exercise of the discre-
tion, it should have offered more substantial evidence of
the “manifest necessity” required for such exercise.”
Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189
(1971).

No evidence indicating a threat to the integrity of the
fact finding process having been introduced by the State
or appearing on the record, the defendant respectfully re-
quests this Honorable Court to grant the Petition for the
Writ of Certiorari and to reverse and remand this matter
to the Supreme Court of Pennsylvania for a decision con-
sistent with this Honorable Court’s decision in Arizona
v. Washington, supra.

10

Conclusion

For these and all the aforementioned reasons, the
defendant respectfully requests this Honorable Court to
enter an Order granting the petitioner’s request for Writ
of Certiorari and to reverse the decision of the Supreme
Court of Pennsylvania.

Respectfully submitted,

ROBERT N. CLARKE
Attorney for Petitioner,

John Lee Whitt
231 North Main Street
Washington, Pennsylvania 15301
(412) 228-5000

APPENDIX A

Opinion of Court of Common Pleas on
Motion to Quash Indictment (June 11, 1980).

IN THE COURT OF COMMON PLEAS
of Washington County, Pennsylvania

CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
Plaintiff,
vs.
JOHN LEE WHITT,
Defendant.

No. 602 (a,b,c,d,e) of 1979
No. 1104 of 1979

APPEARANCES:

Herman J. Bigi, Esq., District Attorney, and James N.
Brady, Esq., Assistant District Attorney, representing
the Commonwealth.

John C. Pettit, Esq. and John T. Olshock, Esq., of the
firm of Patrono, Ceisler, Edwards and Pettit, rep-
resenting the Defendant. ~

2a

Appendix A—Opinion of Court of
Common Pleas.

OPINION

Terputac, J.
June 11, 1980.

On April 17, 1980, this court entered an order declar-
ing a mistrial in the case of Commonwealth v. John Lee
Whitt and directing that the case be retried in the May
Term of Criminal Court. The defendant led a Motion to
Quash Indictment (sic) on May 1, 1980, on double jeopar-
dy grounds to which the Commonwealth filed its
Answer. After argument thereon, the court denied the
motions to quash and to dismiss from which the defen-
dant took an appeal to the Supreme Court of Pennsyl-
vania. This opinion is written in support of our denial of
such motions.

On September 24, 1979, the defendant, John Lee
Whitt, was charged with the crimes of criminal homicide
and murder. 18 Pa.C.S. 2501 and 2502 respectively, and
counts of recklessly endangering (2507), aggravated
assault (2702), and terroristic threats (2706). Jury selec-
tion began on Tuesday, April 8, 1980, before the
Honorable John F. Bell, and continued through Wednes-
day, April 9th. The trial itself began with the taking of
testimony on April 10th and a half day on Friday, April
11th.

On Friday evening, April 11th, Judge Bell became ill.
Except for two out-patient visits to the hospital, he was
confined to his home until Saturday, April 19th. Having
been in contact with Judge Bell by telephone, Judge
Thomas J. Terputac on Monday, April 14th, informed
the jury and counsel that Judge Bell was ill and would
not be available to try the case that day and that the
jurors would be notified by phone when Judge Bell was

3a

Appendix A—Opinion of Court of
Common Pleas.

able to proceed.' At that time Judge Terputac was of the
opinion that Judge Bell might be able to resume trying
the case in a day or two. Day to day continuances were
directed.

At the hearing on Thursday, April 17th, Judge Ter-
putac determined that Judge Bell was too ill to resume
trying the case and made a finding of manifest necessity,
thereby declaring a mistrial and rescheduling the trial for
the May Term of Criminal Court, the first day of which
would have been Monday, May 12th. Counsel for the
defendant objected to the retrial, stating that a retrial
would be costly to his client and that the Commonwealth
would have the advantage and “opportunity to present
its case again, and hopefully, to correct any errors or
weak spots that may have been the result of the trial up
to this point. N. T. April 17, 1980, hearing, p. 4. Claim-
ing double jeopardy through the Fifth and Fourteenth
Amendments, counsel asked that the charges be dis-
missed and the defendant discharged.

The double jeopardy clause of the Fifth Amendment of
the Constitution of the United States is applicable to the
states through the Fourteenth Amendment. Benton u.
Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056
(1969). It is clear that a constitutionally protected in-
terest is inevitably affected by any mistrial decision.
Arizona v. Washington, 434 U.S. 497, 54 L.Ed.2d 717, 98
The April Term for court trials began on Monday, April 7, 1980, and
would terminate on Friday, April 18th. President Judge Sweet handl-
ed civil cases, and Judges Gladden, Bell and Rodgers were assigned

to criminal cases. Judge Terputac for the year was assigned Orphans’
Court and Juvenile matters.

Although the illness of Judge Bell was originally thought to be in-
fluenza, the ultimate diagnosis of Crobn's disease, a gastro-intestinal
disorder, was not medically determined until April 23, 1980.

4a

Appendix A—Opinion of Court of
Common Pleas.

S.Ct. 824 (1978). The right of the accused to have his
trial completed by a particular tribunal is based on im-
portant considerations such as the financial and emo-
tional burden on the accused, the period of uncertainty
which is prolonged by the prospect of retrial, and the
possible enhancement of the risk that an innocent person
may be convicted in such event. Illinois v. Somerville,
410 U.S. 458, 35 L.Ed.2d 425, 93 S.Ct. 1066 (1973);
Green v. United States, 355 U.S. 184, 2 L.Ed.2d 199, 78
S.Ct. 221 (1957). See 61 A.L.R.2d 1119. In assessing the
scope of the double jeopardy problem, the United States
Supreme Court has evolved the concept that the pro-
secutor must demonstrate manifest necessity for any
mistrial over the objection of the defendant. United
States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824).
Although at times the words manifest necessity”, evi-
dent necessity”, or “imperious necessity” have been
employed, the meaning appears to be the same. See
Downum v. United States, 372 U.S. 734, 10 L.Ed.2d 100,
83 S.Ct. 1033 (1963). Although no mechanical formula
has been espoused, Illinois v. Somerville, supra, a literal
interpretation of the word “necessity” is not required;
rather there are degrees of necessity by which the court
is admonished to ascertain that a high degree of such
necessity is reached before a mistrial is appropriate.
Arizona v. Washington, supra. However, it is not the
declaration of a mistria) which offends the rights of the
defendant, it is the subsequent prosecution for the same
offense which runs afoul of the Fifth and Fourteenth
Amendments. Commonwealth v. Carson, 259 Pa.
Superior Ct. 183, 393 A.2d 778 (1978).

5a

Appendix A—Opinion of Court of
Common Pleas.

The concept of manifest necessity has been incor-
porated into Pennsylvania law through the rules of
criminal procedure. Pa. R. Crim. P. 1118(b) provides:

When an event prejudicial to the defendant oc-
curs during trial only the defendant may move for a
mistrial; the motion shall be made when the event is
disclosed. Otherwise, the trial judge may declare a
mistrial only for reasons of manifest necessity.”

Fundamentally the issue before the court is whether or
not there was a manifest necessity for the declaration of
the mistrial. Where the court has conducted an inquiry
into the matter prior to the declaration of mistrial and
has considered the circumstances, no abuse of discretion
has occurred and reprosecution is permissible. Com-
monwealth v. Bycer, 254 Pa. Superior Ct. 336, 385 A.2d
1367 (1978). The defendant has relied principally upon
Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189
(1971). In that case during the trial on one of the robbery
charges, one of the victims became ill and was not
available to testify. The District Attorney advised the
trial court that Goldberg was a necessary witness on
identification on all three indictments. Having contacted
the attending physician for Goldberg, the District At-
torney informed the court that the doctor could not say
what Goldberg’s condition was and he did not give a
diagnosis. That same day the court granted the
Commonwealth’s motion to withdraw a juror—the
equivalent of a mistrial under modern practice—and the
case was later retried. Speaking for the Court, Mr.
Justice O’Brien held that the facts in the case did not
justify the granting of the mistrial.

6a

Appendix A—Opinion of Court of
Common Pleas.

We believe that the instant case differs materially from
Ferguson. In Ferguson, the jury could have been sent
home early for that day until more information could be
elicited concerning Goldberg’s health. The decision to
declare the mistrial involved the health of a person
unknown to the court and apparently to the District At-
torney. In the instant matter the court held a short hear-
ing on the Monday morning after the Friday evening
when Judge Bell first became ill. After the court inform-
ed the attorneys that Judge Bell was ill and would not
be available for that day, counsel for the defendant
responded: “Your Honor, on behalf of the Defendant, we
do not in any way question the illness of Judge Bell and
we will enter into any stipulation Your Honor might
recommend as to his illness.” N.T. April 14, 1980, Tran-
script, p. 2. On April 16th, in chambers Judge Terputac
held a meeting which was placed on the record. Having
notified the parties about Judge Bell’s continued illness,
the court inquired whether counsel had any comments.
Defense counsel stated he had no comment. Moreover, on
that occasion the court advised counsel that the possibili-
ty of a mistrial was under consideration. On the next
day, April 17th, the court declared a mistrial despite the
objections of the defendant.

At no point in the proceedings did counsel for the
defendant suggest or demand that the court secure a
medical opinion of any sort. In fact, he admitted to the
illness. For the first time, in the motion to dismiss,
counsel argued that there was no “medical testimony as
to the seriousness of the illness of Judge Bell” and that
it cannot be determined from the record whether Judge
Terputac consulted with Judge Bell’s attending physi-

7a

Appendix A- Opinion of Court of
Common Pleas.

cian. Paragraphs 12 and 13 of the Motion to Quash In-
dictment (sic).

Not only does the requirement of manifest necessity
apply to the prosecutor but also it applies to the court.
The court should not act hastily and should accord both
to the prosecutor and to defense counsel full opportuni-
ty to explain their positions on the propriety of the
mistrial. Arizona u. Washington, supra, 54 L.Ed.2d at
734. We believe that abundant precautions were taken in
the instant matter. The court monitored Judge Bell’s
condition each day. We warned both counsel that a
mistrial was a likelihood if the illness persisted. In fact,
on the day prior to the actual declaration of mistrial, we
cautioned both sides that a mistrial was more than like-
ly. At the time of the hearing on April 17th, the court
permitted both counsel to advance reasons and factors
which the court should take into consideration respecting
the granting of a mistrial. Although the medical
diagnosis was made much later, the court had before it
such information of a substantial nature which permitted
us to conclude that the illness would continue and that
Judge Bell was unable to try the case. Unlike Com-
monwealth v. Dull, 257 Pa. Superior Ct. 192, 390 A.2d
777 (1978), the court did not act precipitously and
declare the mistrial the same day upon which the illness
became apparent.

In objecting to the proposed mistrial during the hear-
ing of April 17th, defense counsel posited his reasons
therefor on two bases: (1) that a retrial would be finan-
cially detrimental to his client, and (2) that the Com-
monwealth might be in a more advantageous position in
being permitted to resubmit its case to the jury. Rather

8a

Appendix A—Opinion of Court of
Common Pleas.

than declaring a mistrial on Monday, April 14th, the
court waited several days until Thursday, April 17th, at
which time it was evident that Judge Bell would be
unable to proceed with the trial in the foreseeable future.
At no time did defense counsel ask or demand medical
proof either by way of testimony or a medical report.’ As
a matter of fact, Judge Bell’s condition deteriorated and
he was compelled to undergo hospitalization in
Washington Hospital from Saturday, April 19th, through
April 27th. He returned to his judicial duties on April 28,
29 and 30th. He became ill again on April 30th and was
hospitalized from May Ist to May 8th. By April 17th, it
was physically impossible for Judge Bell to try the case
and both counsel and this court knew it. In view of this
state of affairs, defense counsel chose to focus his
reasons for objecting to the declaration of mistrial on the
two reasons explicitly stated on the record at the hearing
of April 17th, N.T. 3, 4, and did not point to any reason
based on lack of medical information respecting the
precise medical condition of Judge Bell.

One of the two claims by defense counsel advanced at
the hearing on the mistrial was that the Commonwealth
may be able to prepare its case for retrial with greater ef-
ficacy. We find that this argument has no support in the
record. The prosecutor has done nothing to delay the
case or to prevent it from going to the jury. Nothing in
the trial testimony would lead to any conclusion that the
Commonwealth was attempting by some devious means
* At the hearing on April 17th, N. T. p. 4, defense counsel said: I do
not question whether Judge Bell is sick or not. On behalf of the
Defendant, we are willing to accept the statement of Your Honor that
Judge Bell is sick. To what degree of seriousness or the length or

duration of his illness, we know nothing other than what this Court
has stated.

9a

Appendix A—Opinion of Court of
Common Pleas.

to retry the case. We conclude that this claim on behalf
of the accused is nothing but pure speculation lacking
any merit in the resolution of the issues. The second
argument advanced at the mistrial hearing concerns the
issue of the burden of additional expense. Such a situa-
tion is always prevalent where private counsel has been
retained. In this case, defendant Whitt has been free on
bond and has been working at his regular employment.
For three of the four days during which the case was
continued due to the illness of the trial judge, defendant
was at work and was not required to appear in court. To
this extent the financial burden has been mitigated.
Nevertheless, we must view all the circumstances of the
occasion for retrial, weighing the public interest against
the rights of the accused. Unlike the situation in which
the trial has ended in an acquittal or conviction, retrial is
not automatically barred when a criminal proceeding is
terminated without finally resolving the merits of the
charges against the accused. Because of the variety of
circumstances that may make it necessary to discharge a
jury before a trial is concluded, and because those cir-
cumstances do not invariably create unfairness to the ac-
cused, his valued right to have the trial concluded by a
particular tribunal is sometimes subordinate to the
public interest in affording the prosecutor one full and
fair opportunity to present his evidence to an impartial
jury.“ Arizona u. Washington, 53 L.Ed.2d at 728.

There is sufficient authority to indicate that the illness
of the trial judge justifies the discharge of the jury and
such event does not bar a further prosecution of the
defendant. 21 Am.Jur.2d, Criminal Law Sec. 197. Mis-
trials triggered by illness of the defendant, defense
counsel, or the trial judge have been upheld even without

10a

Appendix A—Opinion of Court of
Common Pleas.

the defendant’s consent. These mistrials were accepted
uncritically as ‘necessary’ even though possibilities for a
continuance, replacement of trial counsel, or replacement
of the judge had not been explored at the trial.” 125
University of Pennsylvania Law Review, Jeopardy and
Mistrials, pp. 477, 478 (1977). In Commonwealth v. Rob-
son, 461 Pa. 615, 337 A.2d 573 (1975), cert. denied, 423
U. S. 934, 46 L.Ed.2d 265, 96 S. Ct. 290, the Supreme
Court held that the illness of the trial judge constituted
manifest necessity for the declaration of a mistrial.‘

For the reasons herein stated, and having considered
all the circumstances attending the illness of Judge Bell,
we believe that the finding of manifest necessity for the
declaration of the mistrial was proper.

THOMAS J. TERPUTAC
Judge

lla

‘ APPENDIX B

Memorandum—Order of Supreme Court of
Pennsylvania Affirming Denial of Motion
to Quash Indictment (April 15, 1981)

SUPREME COURT OF PENNSYLVANIA
Western District

COMMONWEALTH OF PENNSYLVANIA,
v.

JOHN LEE WHIT T.
Appellant.

No. 80-1-104
ARGUED: March 2, 1981

Appeal from the Order of the Court of Common Pleas
of Washington County, Criminal, at
Nos. 602 and 1104 of 1979.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here
ordered and adjudged by this Court that the judgment of
the Court of COMMON PLEAS OF WASHINGTON
COUNTY, be, and the same is hereby affirmed.

BY THE COURT:

CARL RICE, Esquire
Prothonotary

Dated: April 15, 1981

12a

APPENDIX C
Constitutional Provisions Involved
United States Constitution
Article III, Section 1

The judicial Power of the United States, shall be vest-
ed in one Supreme Court, and in such inferior Courts as
the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behavious,
and shall, at stated times, receive for their Service, a
Compensation, which shall not be diminished during
their Continuance in Office.

Article IIT, Section 2

The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws of
the United States, and Treaties made, or which shall be
made, under their Authority;—to all Cases affecting Am-
bassadors, other public Ministers and Consuls;—to all
Cases of admiralty and maritime Jurisdiction;—to Con-
troversies to which the United States shall be a
Party;—to Controversies between two or more
States;—between a State and Citizens of another
State;—between Citizens of different States;—between
Citizens of the same State claiming Lands under Grants
of different States, and between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.

AMENDMENT V

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or in-
dictment of a Grand Jury, except in cases arising in the
land or navel forces, or in the Militia, when in actual ser-

13a
Appendix C—Constitutional Provisions Involved.

vice in time of War or public danger; nor shall any per-
son be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.

AMENDMENT XIV

Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due pro-
cess of law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2293%3A1. Public record. Not legal advice.