APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-532)
Before SEITZ, Chief Judge, ROSENN and WEIS, Circuit Judges.
This case is before us on appeal from the district court's denial of a petition for habeas corpus relief based on the Double Jeopardy provision of the 5th Amendment.
On March 18, 1961, appellant (hereafter "defendant") was convicted in the Pennsylvania Court of Common Pleas of the murder of his wife. In State post conviction proceedings, the Pennsylvania Supreme Court, on October 4, 1972, reversed defendant's 1961 conviction and ordered a new trial. The court based its decision on the ground that the trial court had erred in 1961 when it denied defendant's motion for withdrawal of a juror even though apprised of the fact that defendant's father-in-law was on the panel of jurors from which the jury that subsequently convicted defendant was selected.
On April 9, 1973, defendant's case was again called for trial. After the jury had been selected and impanelled, the trial judge was informed by the prosecutor that defendant's father-in-law was employed as a tipstaff during the current term of the Court of Common Pleas. As a tipstaff, it was his sworn duty to attend to the needs of and to care for the panel of jurors serving during the term. Defendant's trial had been set for the first day of the second week of the court's term. The Common Pleas Judge noted that defendant's father-in-law had consequently been "exercising... his sworn duty of attending to the needs and care and so forth of the panel of jurors," for over a week.
The court reconvened shortly after the judge was apprised of this information, and defendant and his counsel were informed of this turn of events. At that time, the judge asked defendant's counsel whether he had any motions to make. After consultation with his client, defense counsel indicated that defendant did not desire to make any motions, and, upon being asked whether he wished to proceed with the trial, defendant responded in the affirmative. Thereupon the judge declared a mistrial sua sponte. The question on this appeal is whether the trial judge acted within his discretion in declaring a mistrial.
Preliminarily, we are satisfied that defendant met his burden of exhaustion of state remedies before presenting his double jeopardy claim by way of a petition for a writ of habeas corpus in the federal court. See United States ex rel. Keith Webb v. Court of Common Pleas, 516 F.2d 1034 (3d Cir. 1975); United States ex rel. Russo v. Superior Court of New Jersey, 483 F.2d 7 (3d Cir. 1973), cert. denied, 414 U.S. 1023, 94 S. Ct. 447, 38 L. Ed. 2d 315 (1973). On April 12, 1973, defendant filed a petition for a writ of habeas corpus raising the double jeopardy issue with the state trial court. Upon appeal from the trial court's denial of habeas corpus relief, the Pennsylvania Supreme Court gave full consideration on the merits to defendant's double jeopardy claim, and affirmed the trial court's denial of his petition. Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616 (1974). Under similar circumstances, the Fifth Circuit has stated:
In this case, the courts of Florida have had an opportunity to promulgate a final, definitive ruling on the question involved. The Florida Supreme Court has authoritatively stated in the context of this case that in its opinion reprosecution of the petitioner will not violate his right not to be twice placed in jeopardy [Citation ommitted]. There is nothing more for the courts of Florida to say on this issue. Fain v. Duff, 488 F.2d 218 (5th Cir. 1973), cert. denied, 421 U.S. 999, 95 S. Ct. 2396, 44 L. Ed. 2d 666 (1975).
At least where the double jeopardy issue would be a complete defense to a retrial, the defendant is not required to await the second trial to assert the defense. U.S. ex rel. Webb, supra. In accordance with Webb and Russo, we find that this defendant sufficiently exhausted state remedies in the case before us to permit the district court to entertain his petition for a writ of habeas corpus. We now turn to the merits of the double jeopardy defense.
The rule of law that controls here was enunciated by the Supreme Court in United States v. Josef Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824). There the Court held that discharge of a jury was a discretionary act of the trial judge and was proper when, given all the circumstances of the case, there was "manifest necessity for the act, or the ends of public justice would otherwise be defeated." Id. Under Perez, in the absence of manifest necessity, discharge of the first jury would bar a subsequent retrial pursuant to the Double Jeopardy Clause of the Fifth Amendment.*fn1 Our task, then, is to determine whether there was manifest necessity for the discharge of the jury in this case or whether discharge was required to prevent the defeat of "public justice." In doing so, we are sensitive to the statement of the Supreme Court in United States v. Jorn, 400 U.S. 470, 486, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971), that, "in the final analysis, the 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."*fn2 This consideration is particularly important in the case at bar where defendant's "confrontation" has spanned fourteen years.
But we are also aware of the overreaching importance in our system of justice, of preserving the impartiality and even the appearance of impartiality of the jury. In Simmons v. United States, 142 U.S. 148, 35 L. Ed. 968, 12 S. Ct. 171 (1891), the Supreme Court stated:
There can be no condition of things in which the necessity for the exercise of this power [to discharge the jury] is more manifest, in order to prevent the defeat of the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of ...