The opinion of the court was delivered by: (Judge Kosik)
This matter is presently before us on the application of Barry Gibbs, filed on May 10, 2005, seeking his release in accord with this court's November 18, 2004 order directing the Commonwealth of Pennsylvania "to either release Petitioner or retry him within 120 days."; claiming that the Commonwealth failed to try him expeditiously and has deliberately acted in a manner that made it impossible for a timely retrial to take place.*fn1 The application has been briefed, argued and re-briefed.
This court's order of November 18, 2004 resulted from a decision of the United States Court of Appeals for the Third Circuit filed on October 14, 2004, to "Barry Gibbs v. Frederick K. Frank; District Attorney of Pike County; Attorney General of Pennsylvania," 387 F.3d 268 (3d Cir. 2004). The decision remanded the cause to the District Court for it to grant Gibbs' petition for a writ of habeas corpus and "require the State to either release Gibbs or retry him within a specified time period."*fn2
The gist of the appellate decision is that Gibbs' constitutional privilege against self-incrimination was violated in his second trial for murder when Dr. Robert Sadoff, a Commonwealth psychiatrist from the first trial, was allowed to offer inculpatory statements made by the defendant during his compelled examination by the doctor who gave him the Miranda warnings. While Dr. Sadoff was offered at the first trial in response to a defense claim of mental infirmity, that trial was reversed for unrelated reasons. In the second trial, the defense did not pursue a mental infirmity defense, but the prosecution was permitted to elicit the inculpatory statements made to Dr. Sadoff as part of their case-in-chief.
On November 23, 2004, the Commonwealth filed a motion for reconsideration of our Order. In addition, on December 4, 2004, the Commonwealth sought to have the appellate court recall its judgment in lieu of a mandate. This was opposed by Gibbs' appellate counsel on December 13, 2004. The stay was in part based on the stated intent of the Commonwealth to seek certiorari in the U.S. Supreme Court. The stays were denied and the certiorari route was abandoned.
During the appellate stages of his case, Gibbs had an attorney, Mark A. Berman, of Newark, New Jersey, who was appointed by the appellate court to represent him. After our Order of November 18, 2004, Berman wrote to this court on November 29, 2004 indicating his commitment to Gibbs. He expressed his interest in an appointment if there was to be any further federal litigation without the necessity of filing a petition. In the next year on May 2, 2005, an associate of Ronald M. Bugoj, Esquire, wrote to this court that she and Mr. Bugoj of Honesdale, Pennsylvania, were appointed to represent Gibbs in the state retrial. The associate, Ronnie Fischer, stated that Gibbs wished to file an application for release based on a perceived violation of our November 18th Order, but their state representation was limited to the state proceeding. As a result, on May 9, 2005, this court appointed Mark A. Berman, Esquire, Gibbs' appellate counsel, who subsequently filed the present application before us on May 27, 2005.
This court was out of the loop with respect to any state court proceedings after its Order of November 18, 2004 until the letter from Mr. Bugoj on May 2, 2005. This was followed by the present application. In response to the application before us, respondents filed a memorandum and exhibits in opposition, claiming that in response to our November 18th Order, this case was placed on the March 2005 trial list in Pike County, Pennsylvania, with the trial to begin on March 7, 2005 and the first pre-trial conference was scheduled for February 8, 2005. Respondents claim the defense tactics with the present application for release were intended to "run out the clock" on the court's Order to frustrate the trial from taking place by March 18, 2005, in order to secure the release of Gibbs. Of course, as we noted earlier, petitioner attributes similar motives to the respondents' intent on delaying a re-trial in 120 days.
On July 6, 2005, after the retrial and conviction of Gibbs on June 30, 2005, counsel Berman in this matter wrote to the court representing that in the retrial, the Commonwealth introduced the testimony from the defense psychiatrist expert in the earlier trial, Dr. Turchetti, despite the fact that Gibbs did not pursue a mental infirmity defense.*fn3 Counsel had added this issue to the present application claiming this event as a flagrant disregard of the Third Circuit's holding dealing with Dr. Sadoff's testimony in the second trial.
We will address the issues presented.
We initially noted that the matter before us had its genesis in a conditional writ of habeas corpus issued on remand from the appellate court; conditional in the sense that Gibbs was to be retried or released. The United States Supreme Court has held that "habeas corpus is, at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 863 (1995). This indicates that a court has broad discretion in conditioning a judgment. In Gilmore v. Bertrand, 301 F.3d 581, 582-583 (7th Cir. 2002), the court held that this discretion includes affording the state additional time beyond the period prescribed in a conditional writ to cure a constitutional deficiency. We should note that the state did not request additional time, presumably because the state court scheduled retrial for March 7, 2005, well within the March 18, 2005 timetable, and before the defense found it necessary to seek a continuance of the trial date compelled by events wholly attributable to the circumstances making it impossible to adhere to the March 7th trial date.
Unaware if this Circuit has ever addressed the nature of habeas corpus as an equitable remedy in the context of our case, we look to Gilmore again for its holding that the court's discretion in issuing conditional writs does not mean the court must release a prisoner if the state fails to act in a timely manner, at p.583, alluding to Phifer v. Warden, U.S. Penitentiary, Terre Haute, 53 F.3d 859, 864-865 (7th Cir. ...