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Love v. Morton

May 5, 1997





Appeal from the United States District Court for the District of New Jersey

(D.C. No. 95-cv-06309)

Before: SLOVITER, Chief Judge, STAPLETON and ALDISERT, Circuit Judges.

ALDISERT, Circuit Judge

Filed May 5, 1997

Argued: Tuesday, March 25, 1997



This appeal by the State of New Jersey from a judgment of the district court granting Harold Love's 28 U.S.C. Section(s) 2254 petition for writ of habeas corpus requires us to decide whether the court properly ruled that Petitioner had been placed in former jeopardy prior to his trial and conviction for robbery in state court.

Love defended in two state court trials on charges of robbery and armed robbery. At the close of testimony on the first day of his first trial, the trial judge declared a mistrial for personal reasons. The next day, a second trial began before another judge and a second jury. The new trial judge denied Love's motion to dismiss the indictment on grounds of double jeopardy. Following his conviction and sentencing, Love unsuccessfully appealed to the state appellate court on the double jeopardy issue. State v. Love, 282 N.J. Super. 590, 660 A.2d 1246 (App. Div. 1995) (per curiam). Love then filed a habeas corpus petition in district court. After conducting an evidentiary hearing, the district court ruled that Love's first trial was terminated without his consent and without manifest necessity. The court granted Love's petition on the basis of double jeopardy. Love v. Morton, 944 F. Supp. 379 (D.N.J. 1996). The State of New Jersey has appealed.

At stake here are protections assured by the Double Jeopardy Clause of the Fifth Amendment, which provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ." As the Supreme Court teaches:

The constitutional protection against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:

". . . the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence."

Green v. United States, 355 U.S. 184, 187 (1957) (citing 4 William Blackstone, Commentaries 335).

The Double Jeopardy Clause not only ensures the finality of criminal judgments, but also protects a defendant's "valued right to have his trial completed by a particular tribunal." Arizona v. Washington, 434 U.S. 497, 503 (1978) (quoting United States v. Jorn, 400 U.S. 470, 484 (1971)). As urged by New Jersey, however, this "valued right . . . must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689 (1949). Accordingly, the Supreme Court has crafted certain exceptions to the literal language of the Clause. New Jersey presented two of these exceptions to the district court and urges them upon us here.

Mistrials declared with the defendants' consent do not bar a later prosecution. United States v. Dinitz, 424 U.S. 600, 607 (1976). Even without their consent, defendants may be retried when, "taking all the circumstances into consideration, there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated." *fn1 United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824) (Justice Story coining the phrase "manifest necessity"). Our task is to decide whether there was manifest necessity for declaring the mistrial and whether Petitioner expressly or impliedly consented to the mistrial. New Jersey also argues that the court erred in conducting an evidentiary hearing in the Section(s) 2254 proceeding. The district court had jurisdiction under 28 U.S.C. Section(s) 2254. We have jurisdiction under 28 U.S.C. Section(s) 1291. The appeal was timely filed under Rule 4, Federal Rules of Appellate Procedure.

Where a district court holds an evidentiary hearing in a habeas proceeding, this court reviews the district court's findings of fact for clear error. Lesko v. Owens, 881 F.2d 44, 50-51 (3d Cir. 1989). We exercise plenary review over the district court's legal conclusions. Yohn v. Love, 76 F.3d 508 (3d Cir. 1996).


Love stood trial in the Atlantic County, New Jersey Superior Court in two trials before two juries on charges of robbery and armed robbery. The first jury was sworn and testimony began on the morning of June 15, 1993. During the testimony of the State's fourth witness, the jury was excused so that counsel could argue an issue relating to "chain of custody." Counsel and the trial judge, James Citta, repaired to chambers to discuss the matter. At about 3:30 p.m., the judge received a telephone call from his wife, who was exceedingly upset because her mother had died unexpectedly. The judge later testified that he was close to his mother-in-law and was upset not only at her untimely passing, but also at his inability to be immediately available to comfort his wife. The prosecuting attorney testified that Judge Citta was "very upset" and "visibly shaken." Judge Citta called the presiding criminal judge, Judge Braithwaite, and briefly discussed the situation.

The prosecutor has described the events that took place in Judge Citta's chambers after the call from the judge's wife:

We waited for him to get off the telephone, and he explained to us that, as I indicated, his wife was very distraught that her--her mother had died suddenly and unexpectedly and she had been unable to reach anyone. He further indicated that he was an hour away from home and that he had to leave. He had to get out of here and go home and so forth, and it was apparent there was stress on his face and in his demeanor and his voice and so forth that he--there was an urgency to his need to leave the courthouse. He said that `I don't know what I'm going to do about this case. I don't know if we'll mistry it or not. I'm not sure what the procedure should be. I'm going to call Judge Braithwaite,['] which is what he did. He phoned Judge Braithwaite in our presence. He discussed the situation with Judge Braithwaite including the fact of the State's witnesses having just arrived from Canada yesterday afternoon and then--that there being some wish on the part of the State that the case proceed, whether that could be effected through the assignment of another judge to pick up the case from that point on or to start the case anew, whatever; but he discussed the matter with Judge Braithwaite; and after he got off the telephone, he advised us that he was going to mistry the case. Now, needless to say, counsel and I in that position were in the situation where we both had an interest in the case proceeding from that point on, but neither of us was in a situation where we could tell Judge Citta `Forget your wife and forget your mother-in-law's death. Let's get on with this trial.' I mean there was an urgency and an emergent situation here that none of us had previously encountered.

State v. Love, 660 A.2d at 1248-1249.

Judge Citta testified at the evidentiary hearing in the district court that he did not remember asking counsel for their ...

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