Appeal from an order entered in United States District Court for the Eastern District of New York, Thomas C. Platt, J., denying petitioner's application for a writ of habeas corpus. Affirmed.
Before Kaufman, Chief Judge, and Smith and Van Graafeiland, Circuit Judges.
In this worrisome case, a state trial judge's clumsy effort at comedy, which took the form of a practical joke played on defense counsel at a crucial stage in a criminal proceeding, led the attorney to move for a mistrial. The motion was granted. The defendant now claims that he cannot be retried because the judge's outlandish conduct deprived him of the opportunity of going to the jury. Regrettably, we are required to hold that the law prevents us from invoking the double jeopardy clause to bar a second trial in the absence of proof that the judge acted in bad faith, causing actual prejudice to the defendant.
Rudolph Drayton was apprehended on March 13, 1977, and charged with having robbed the owner of a laundromat in Brooklyn seven months earlier. He was tried*fn1 before Justice Gerald S. Held in New York State Supreme Court. The only witness for the prosecution was the victim of the crime, Fritz Pierre Pierre, whose identification of Drayton on the street precipitated his arrest.
Drayton presented an alibi defense worthy of the creator of the "locked room" mystery genre.*fn2 He could not have been the culprit, he contended, because on the day of the robbery, he was in a secure observation ward at the Creedmoor Psychiatric Center in Queens, having attempted suicide the day before. He produced medical records from Creedmoor that substantiated this assertion, along with two witnesses who provided further corroboration. Robert Ragland, a minister and probation officer, stated that he had persuaded Drayton not to jump off a 26th floor ledge and had taken him to Queens General Hospital. Dr. Rudolpho Varias, the psychiatrist in charge of the locked ward at Creedmoor to which Drayton had been transferred, testified that hospital records indicated that Drayton was admitted on August 18, 1976, and released on August 27, nine days later.
The success or failure of this alibi defense turned on the ability of the State to cast doubt on its validity through rebuttal witnesses, and hence the availability of such witnesses became a central issue at trial. Frank Markus, Drayton's attorney, had notified the State in advance of his intent to present alibi evidence, as required by New York's criminal discovery provision.*fn3
The assistant district attorney, Kenneth Ramseur, did not give the timely notice required by the same statute of his intention to produce rebuttal witnesses. Eventually, however, he did advise both the Court and defense counsel that he proposed to call only one such witness, a television newsman who had reported on the inadequacy of the security measures at Creedmoor two years earlier. On the fourth day of trial, Justice Held, having ruled this testimony inadmissible as irrelevant and immaterial, suggested that the State communicate with a personal friend of his who worked for the Department of Mental Hygiene, with a view to securing alternative rebuttal evidence. To allow Mr. Ramseur sufficient time to prove that Drayton could have escaped from the putatively secure facility, the judge adjourned the trial until 11:00 the next morning. This expedient proved unavailing, however, for early the following day, Ramseur informed Markus that no further rebuttal witnesses had been uncovered. Markus, who had conscientiously spent the previous night preparing surrebuttal witnesses, accordingly turned his attention to his closing statement.
At 10:00 a. m., before the jury entered the courtroom, Ramseur advised Justice Held that the State would rest without presenting any rebuttal testimony. The following extraordinary colloquy then took place:
Justice Held: Ken (Ramseur) do me a favor, go along with this just for fun, Frank Markus likes to talk. When Markus comes back in here, I want you to tell him that you're going to call rebuttal witnesses.
Ramseur: Do you think we ought to? I've already told him I wasn't going to call anybody.
After further coaxing from the judge, however, the prosecutor overcame his reluctance and agreed to participate in the hoax. Markus soon arrived in the courtroom, and the stage was set. As the court reporter who was evidently advised that the charade was to be off the record pretended to record the "proceedings," Ramseur made a special application to call five members of the Creedmoor professional staff as rebuttal witnesses that afternoon. As can readily be imagined, Markus immediately rose to object, and argued for several minutes that this eleventh hour request should be denied because of the prosecutor's bad faith. Justice Held then interrupted him, advising him to "sit down and relax", because the application was a "put-on".
The jury returned to the courtroom several minutes later, and Held directed Markus to deliver his closing argument. Defense counsel did not ask for an adjournment, or in any other way indicate that the unseemly practical joke had upset him. Rather, he delivered the summation to the jury. It was only after the luncheon recess and further reflection that Markus moved for a mistrial on the basis of judicial and prosecutorial misconduct. Markus argued that the hoax played upon him at a critical juncture of the trial had completely unnerved him, thus making it difficult for him to deliver an effective summation to the jury. He further contended that the judge had openly read a newspaper during his summation, conveying to the jury the impression that he believed the defense arguments were frivolous.*fn4
The judge, despite his expression of "amazement" at the request, stated that he would grant the motion for a mistrial "to avoid the appearance of wrongdoing", but denied the defense motion that he ...