# Petition for Writ of Certiorari — Murphy v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2825%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 823 ## Text / ew las Office - Supreme Court, Us. ? + 83-1858 N | FILED O. FEB 2T 84 ALEXANDER L. STEVAS. CLERK e — IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 JAMES M. MURPHY, Petitioner, Vv. THE STATE OF TEXAS, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS RICHARD H. PARSONS 609 Lehmann Bldg. Peoria, Ill. 61602 309-674-6013 ATTORNEY FOR PETITIONER . : ie * ; 7 é { / y . , - - ~ - “ a : oon —_— . 7 % - or . E i ° aie ° ~ . — } . 4 - P - ~ - . oe - 2 i ! - NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 JAMES M. MURPHY, Petitioner, Vv. THE STATE OF TEXAS, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS RICHARD H. PARSONS 609 Lehmann Bldg. Peoria, Ill. 61602 309-674-6013 ATTORNEY FOR PETITIONER . ~~ . . was ave —_ Sacer F ‘ a+ sapere x . ee ; : + sia ee Sd 2 A ss. Tr; i QUESTIONS PRESENTED i. Whether the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment, is applicable to state criminal contempt pro- ceedings. r 2. If so, were Petitioner's rights against double jeopardy violated where he was adjudged in contempt without a hearing, imprisoned, and once again tried and convicted for the same offenses. a eanel? , PPRAOSE sol deta “ons a oh fence ‘tonecrwot ern fw te aoe O42 ot dedtiogs. aba _Sietomaat eu Se Seal on eye ‘- ord ote : Sst hs we Se ‘xq Jgme2ne> .tenimtu othre . aa zs goens2I0 emee “ena—203 | . : ” Pe . { : f - Ae naa ’ . * ; ‘ 2 on -- | e a; . ‘ =*s F : ; : | - % ? : 7 , co > : « : ; P - - e - am : : : ii TABLE OF CONTENTS OPINIONS BELOW... .cccccccccccccccccee 2 JURISDICTION. .......22208. ee cccccccs 2 CONSTITUTIONAL AND STATUTORY PROVISIONS dl are ok STATEMENT OF THE CASE........2..2222- 3-6 ARGUMENT AND REASONS FOR ALLOWANCE OF THE WRIT.........2.2222- 7-17 WHETHER THE DOUBLE JEOPARDY CLAUSE OF THB FIFTH AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT, IS ‘APPLICABLE TO STATE CRIMINAL CONTEMPT PROCEEDINGS........... 7-10 WERE PETITIONER'S RIGHTS AGAINST DOUBLE JEOPARDY VIOLATED WHERE HE WAS ADJUDGED IN CONTEMPT, WITHOUT A HEARING, _— IMPRISONED, AND ONCE AGAIN TRIED AND CONVICTED FOR THE SAME OFFENSES......22ccceeeeee- 11-16 (A) DID JEOPARDY ATTACH? 11-13 % (B) WAS JEOPARDY WAIVED? 13-16 REASONS FOR ALLOWANCE OF THE Dh 6 64S SS OHbBOSEE KO OES BOO HERS 16-17 / I oo ae iii TABLE OF CONTENTS a (continued) ; * 6 Er ee arr eee | PROOF OF Ee ee a de iv TABLE OF AUTHORITIES pages BENTON V. MARYLAND, 395 U.S. 784 (1969)... 7,16 BLACKLEDGE V. PERRY,417 U.S. 21 (1974)... 15 DOWNUM V. UNITED STATES, 372 U.S. 734 Femeelccsccecttetdts ‘pepe Perem + Eanes 12 FINCH V. UNITED STATES, 433 U.S. 676 (1977) “eee ee eee eee eee eee eeeeeeeeeeeeneenee 13 GREEN V. UNITED STATES, 355 U.S. 184 pA aR g emt yea EO a ae 12 ILLINOIS V. SOMERVILLE, 410 U.S. 458 (1973) see eeeee eee eee eee eee eeeeeenee “ee 12 MENNA V. NEW YORK, 423 U.S. 61 (1975).:.. 8,10 15,17 NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969) eee eee eoeeeeeeeeeeceeeeeeeeeeeeeeeee 9,16 17 SERFASS V. UNITED STATES, 420 U.S. 377 et). ) er ref © © oe frteeeneeeeeee#er*.eee#ee#keee#ee#85qe#ee#e#*#e#*#* # « 12,13 17 TAYLOR V. HAYES, 418 U.S. 488 (1974)..... 10,16 UNITED STATES V. BALL, 163 U.S. 662 (1896)....... eeccces eee ecccccccccccce cocce 16 ‘ Bs on vce | no. ¥. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 JAMES M. MURPHY, Petitioner, ¥. THE STATE O” TEXAS, . Respondent. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS Petitioner, James M. Murphy, respectfully requests that a writ of.certiorari be issued “to review the judgment and opinion of the Court of Criminal Appeals of Texas, affirming a judgment of contempt against Petitioner rendered by the 297th Judicial District Court of Tarrant County, Texas. A petition for rehearing was denied on January 18, 1984, a and on January 20, 1984, the Court of Criminal Appeals. granted a stay of the mandate for a period of thirty days, or until February 21, 1984. OPINIONS BELOW The opinion of the Court of Criminal Appeals of Texas, delivered December 14, 1983 (Ex Parte James M. Murphy, No. 69,205) appears as Appendix A to this Petition. The motion for rehearing was denied without opinion. JURISDICTION The judgment and opinion of the Court of Criminal Appeals of Texas was delivered On December 14, 1983. A timely petition for rehearing was denied on January 18, 1984. This petition is filed within 60 days of | that date and is therefore timely. This Court's jurisdiction is invoked under 28 . U.S.C. §1257(3). CONSTITUTIONAL AND STATUTORY PROVISLONS INVOLVED 1. United States Constitution, Amendment = Five, which provides " ..[nJlor shall any person be subject for the same offense to be twice put in jeopardy." 2. United States Constitution, Amendment Fourteen. STATEMENT OF THE CASE Petitioner is an attorney licensed to practice law in the State of Texas. He was held to be in -and was adjudged guilty of direct contempt of the 297th District Court of Tarrant County, Texas, without hearing for failing to appear at a pre-trial and trial setting regarding a e¢riminal case in which he was counsel for the defendant. Petitioner was arrested and confined in jail pursuant to the finding of guilt by the judge of said court. Pursuant to Texas state law a motion was filed by Petitioner seeking his release on personal recognizance and a hearing before another district judge, | which motion was granted. Petitioner was ' released from custody. Another judge was appointed to conduct a hearing on the judgment atthe of contempt, which judge cited Petitioner to appear before the court on the Leantions charges for which Petitioner had been adjudged guilty by the presiding judge of the 297th District Court. Petitioner, oe to the hearing, mov to dismiss the citation on the ground that he had previously been placed in jeopardy for the same offense, which motion was denied. Petitioner, with leave of court first obtained, filed an original proceeding in the Court of Criminal Appeals of Texas -by writ of habeas corpus, contending, among other matters, that his rights under _ the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution had been violated. The Court of Criminal Appeals, while recognizing that Petitioner's rights of due process were violated, dismissed the double jeopardy claim as not being properly before the court. The court also asserted, by footnote, that Petitioner “should not 5 be heard to complain of a violation of his nial seainiaia aati aT Sod =~ Fifth Amendment rights- erated simultaneously apne ee suant to Art. 1911a, supra." —A-timely motion for rehearing was denied on January 18, 1984, and the Court of Criminal Appeals stayed the mandate for a period of 30 days, or until February 21, 1984 (inasmuch as the 30 day period of time expired on a weekend followed by a heliday, February 20, 1984), to permit the filing of this petition. A copy of the “Commitment Order" finding Petitioner guilty of contempt and assessing punishment without .a hearing appears as App- endix B to this petition. The warrant of arrest, and return of the sheriff executing same, appears as Append- ix C tq. this petition. A copy of the “Notice to Appear and Show Cause" order issued by the appointed juage appears as Exhibit D to this petition. The “Judgment" entered by the appointed judge once again finding Petitioner guilty of contempt appears as Appendix E to this Paes ee) ———_4 wipe o ae petition. ay The portion of the record where Petition- er's double jeopardy claim was raised in the first instance appears as Appendix F Q to this petition. Pp tie oe eee 8 @- 2 © 8 @ a Pas ARGUMENT AND REASONS FOR ALLOWANCE OF THE WRIT i WHETHER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT IS APPLICABLE TO STATE CRIMINAL CONTEMPT PROCEEDINGS. In Benton v. Maryland, 395 U.S. 784 (1969), this Court held that the Double Jeo+ pardy Clause of the Fifth Amendment is ap- plicable to the States through the Fourteenth Amendment. The right against doible jeopardy, as this Court said in Benton, is clearly fundamental to the American scheme of justice. The Court of Criminal Appeals of Texas, in its opinion below, assumed arguendo that the provisions of the Double Jeopardy Clause applied to this case, but withheld ruling on the claim because it was not perfected by verified motion under provisions of the Texas Code of Criminal Procedure, Articles . Oe ee eee ee re OO AAO tne -_ 27.05 and 27.06. Further, the court noted that Petitioner should not be heard to claim a double jeopardy violation while. requesting and receiving _.a second trial pursuant to the Texas stdte statute governing contempts against officers of the court. Art. 191la, Tex. Rev. Civ. St. Thus, the Court of Crim- inal Appeals did not dispose of Petitioner's claim on its easits. In Menna v. New York, 423 U.S. 61 (1975), this Court reversed a holding of the New York Court of Appeals affirming a conviction while? declining to address the double jeopardy claim. Menna was: held in contempt for failure to testify before a grand jury and was sent- enced to a flat 30-day's confinement.“ He was then indicted for his refusal to answer questions before the grand jury. Menna, after unsuccessfully asserting his Double Jeopardy claim, pleaded guilty. The — Court of Appeals of New York affirmed, holding that he had waived his double jeopardy claim ‘by his plea of guilty. This Court remanded ‘ Pe ee ea OE ee SS ‘, *, Lif dete, RR MMS ibis. Nebo RS CCR Pe PE ra S| eR ec ’ ‘ - ‘ - Ok Nate iit IR Mint! LAS ee aa ttn the case to the Court of Appeals for a det- ermination of Menna's double jeopardy claim on the merits, without expressing an opinion of that claim. The Court did note, however, that the state had conceded that Petitioner's — jeopardy claim was a strong one on the merits. The guarantee against double jeopardy protects against a second prosecution toe the same offense after conviction, and it protects against multiple punishments’ for the same offense. North Carolina v. Pearce, 395 U.S. 711 (1969), and cases cited therein. In Pearce, it was noted that it is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice, aoa: Usb. OO. Fea. In this case, the contempt ' power of the judge of the 297th District 7 Court was utilized to hold and find Petitioner \ guilty of criminal contempt without heering and thereupon imprison Petitioner without the protections of due process of law, Taylor a DS ABST RM tltlyRLENCRR N BND arc, i li Saad sae Bild nd ae CBE week sweet Det. POI rata ee, ee ee ag Pane ‘ i v. Hayes, 418 U.S. 488 (1974), which forced Petitioner to resort to his only remedy to contest that power and denial of due process. The proceedings against Petitioner were crim- inal in nature, Menna v. New York, supra, and thus the provisions of the Double Jeopardy Clause of the Fifth Amendment should be made applicable thereto. See, Taylor v. Hayes, supra, wherein this Court described contempt as a “petty criminal offense" for purposes of the right to trial by jury. x*keererker®erkerk i Sos LE -ll- / Il. WERE PETITIONER'S RIGHTS AGAINST DOUBLE JEOPARDY VIOLATED WHERE HE WAS ADJUDGED IN CONTEMPT WITHOUT A HEARING, IMPRISONED, AND ONCE AGAIN TRIED AND CONVICTED . FOR THE SAME OFFENSES. (A) Did Jeopardy Attach?” On August 23, 1983, the judge of the 297th Judicial District Court, without notice and hearing, adjudged Petitioner in direct contempt of court for failing to appear at a pre-trial docket call on August 12, 1983, and trial docket call on August 22, 1983, assessed punishment at 72 hours in the Tarrant County Jail and a fine of $500.00, and issued a warrant for 2 SE arrest. On August 26, 1983, Petitioner was arrested and confined on such warrant. Petitioner was released on his own recognizance. Petitioner asserts that at the point when he was adjudged guilty of contempt, without notice and opportunity to be heard, jeopardy “attached" for Fifth Amendment purposes. Be OL Nel cA AN thi Bt ie Wie PO ie ne re Petree -12- =~ It is generally held that in a jury trial jeopardy attaches when the jury is empaneled and sworn. Downum v. United States, 372 U.S. 734 (1963); Illinois-v. Somerville, 410 U.S. 458 (1973). In a non-jury trial, jeopardy attaches when the court begins to hear evidence. Serfass-v. United States, 420 U.83e- 377 t(adisr ° —-——- EX PARTE: IN THE DISTRICT COURT OF TARRANT COUNTY, TEXAS JAMES M. MURPHY 297TH DISTRICT ee ee eee ee ee eee COURT JUDGMENT WHEREAS, on the 26th day of August, 1983, the Honorable Charles Dickens, Judge of this Court, found the Respondent, JAMES M. MURPHY, in contempt for failure to appear at a pretrial hearing on August 22, 1983, each in’ Cause No. 210495D, entitled State of Texas vs. Alfred Vernell Ray, than pending before this Court; and WHEREAS, said JAMES Me MURPHY was an officer of the Court; and WHEREAS, under the provision of Article 19lla, R.C.S. of Texas the said «Respondent filed his motion for a determination of his guilt or innocence by a Judge of a District Court other than the offended Court; and WHEREAS, the undersigned District MURPHY 5 Judge being duly assigned to the 213th Judi- cial District Court of Texas was appointed by the Presiding Judge of the Eighth Adminis- trative Judicial District, the Honorable Charles J. Murray, for the purpose of hear- ing and determining the guilt or innocence of the Respondent herein; and WHEREAS, on September 26, “1983, came on to be heard the above entitled and numbered cause and it appears that Respondent was duly cited by scire facias to appear here and show cause why he should now be held in contempt of this Court and that he did appear and answer hare din: ie And the Court having heard all evidence introduced and abducted by both parties herein is of the opinion and finds that: On the 12th day of August, 1983, Cause No. 210495D, entitled, State of Texas vs... Alfred Varied Ray was pending in this Court and having been duly set for pretrial hearings, was called by the Court and Respondent, MURPHY | 3 JAMES M. MURPHY, the attorney of record for said Defendant RAY, although having been duly notified by the Court to appear for said pre- trial hearing at 10:00 a.m., August 12, 1983, failed and refused to appear at that time or any other time on that date and such failure to appear was calculated to abstruct and impede the administration of justice and to inter- fere with the orderly expeditious conduct of proceedings before this Court. IT IS THEREFORE, ORDERED, ADJUDGED and DECREED that Respondent, JAMES M. MURPHY, is in contempt of this Court for such failure and refusal to appear on August 22, 1963, and it is anteeee that a fine of ONE HUNDRED FIFTY AND NO/ 100 DOLLARS ($150.00) and for so doing, this Judgment and Order and shall be sufficient warrant and authority to said Sheriff. And further the Court having heard all évidence introduced and abducted by both part- ies herein is of the opinion and finds that on MURPHY as the 22nd day of August, 1983, Cause No. 210- 495D, entitled State of Texas vs. Alfred Ver- nell Ray, was pending in this Court, having been duly set for trial on that date, was called to trial. Respondent, JAMES M. MURPHY, was the attorney of record for Defendant RAY and, although having been notified by the Court to appear for said trial at 9:000'- clock a.m. on August 22, 1983, failed and refused to appear at that time on any other time on that date and such failure to appear was calculated to abstruct and impede the administration of - justice and to 'interfere with the orderly expeditious conduct of pro- ceedings before this Court. IT IS THEREFORE, ORDERED, ADJUDGED and DECREED that Respondent, JAMES M. MURPHY, is in contempt of this Court for such failure and refusal to appear on August, 22, 1983, and it is ordered that JAMES M. MURPHY is hereby punished for such contempt of this MURPHY 3 5 Court by confinement in the Jail of Tarrant County, Texas, for a period of one (1) day and in addition, a fine of THREE HUNDRED AND NO/100 DOLLARS ($300.00) be assessed against JAMES M. MURPHY as punishment for such contempt, and the Clerk of this Court will issue a Writ commanding the Sheriff of this County to take the said JAMES M. MURPHY into his custody and restrain him in his custody until JAMES M. MURPHY has served the period of confinement herein imposed and until payment of said fine of THREE HUNDRED AND NO/100 DOLLARS ($300.00) and for so doing this Judgment and Order shall be sufficient warrant. and authority to said Sheriff. SIGNED this the 28 day of September, 1983. JUDGE PRESIDING APPENDIX F RECORD EXERPTS P20 € 8 & Ds 8. @ S& THE COURT: Are you James M. Murphy? MR. MURPHY: Yes, Your Honor. THE COURT: The Court has before it at this time, Cause No. C-54, entitled Ex parte: James M. Murphy. I understand that you have been served with a Show Cause Order in this matter, is that right? MR. MURPHY: That's correct, Your Honor. THE COURT: Is the State and every- body ready to proceed? MR. WORLEY: Yes, Your Honor. We are ready. THE COURT: I don't know who starts first. I guess the State does. MR. BURNS: By leave of the Court, if I could, I would like to enter an es Motion at this time. THE COURT: All right. MR. BURNS: To Dismiss the Show Cause on the basis that the commitment order is on it's face, void, in tnat it alleges a direct contempt and the allegations in the commitment order clearly show that if there was any contempt at all, that it was cons- tructive, and further, we would move to dis- miss on the grounds that pursuant to said commitment order, Mr. Murphy was placed in the Tarrant County Jail‘as the Court can see, in that the warrant was executed and there is a Sheriff's return which is a violation of Article %19.11, and that Mr. Murphy has already been placed in jeopardy pursuant to the allegations in the commitment. order, and we would move to dismiss on those grounds. THE COURT: You may or May not 0obe correct about whether it was direct or in- direct, but you saw fit to ask to appeal the matter for a trial ‘before another Judge, and that was granted, and a Show Cause Order has been issued, and you have been given ample time to prepare to go to trial, and we are going to have a hearing. This is a trial De Novo as far as I'm concerned. De mented on “7 S MR. BURNS: I do have another pro- blem. I have a witness that's coming over here, and I don't see him here yet. THE COURT: We'll go ahead and we'll o MR. WORLEY: Your Honor, we would call --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2825%3A1. Public record. Not legal advice.