Where juror has psychiatric episode after several days of jurors' deliberations and two notes indicate inability to reach a verdict, was there a "manifest necessity" for declaring a mistrial, even though alternates were available and a statute, N.Y. Crim. Prac. Law § 270.35, stated that an alternate "must" be seated with defendants' consent? The determination of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, that there was such a manifest necessity and hence no double jeopardy on a retrial is affirmed.
Before: LUMBARD, OAKES, and PRATT, Circuit Judges.
This appeal from the district court's denial of appellants' habeas corpus petition presents the familiar question whether a state trial court's declaration of mistrial was prompted by a "manifest necessity" sufficient to render a retrial constitutionally permissible. In this case, however, the familiar is framed in an unfamiliar context. In appellants' criminal trial, after the case had gone to the jury and the jury had received an Allen charge, one of the jurors suffered a psychiatric episode that rendered her unfit for further deliberations. When this occurred, the appellants requested that the trial judge substitute an available alternate juror, pursuant to a state statutory provision suggesting that the court must substitute such an alternate. The court refused appellant's request and instead declared a mistrial.
Appellants then brought an Article 78 proceeding*fn1 in the Appellate Division of the Supreme Court of New York, Second Department, seeking a dismissal of their indictments. When that action proved unsuccessful, appellants brought this petition under 28 U.S.C. § 2254 (1982) for a writ of habeas corpus in the United States District Court for the Eastern District of New York. The district court, Judge Thomas C. Platt, found that a "manifest necessity"*fn2 to declare a mistrial was apparent under the circumstances recounted below, finding hence that the United States Constitution, through the double jeopardy clause of the Fifth Amendment, as incorporated in the Fourteenth Amendment, poses no bar to a retrial of appellants. We affirm.
In 1982, Basheer Hameed, formerly James Dixon York, and Abdul Majid, formerly Anthony LaBorde, were tried by a jury in the Supreme Court of New York, Queens County, on charges of attempted murder in the second degree, in violation of N.Y. Penal Law §§ 110.00, 125.25 (McKinney 1975), attempted murder in the first degree, in violation of N.Y. Penal Law §§ 110.00, 125.27 assault in the first degree, in violation of N.Y. Penal Law § 120.10, and murder in the second degree, in violation of N.Y. Penal Law § 125.25. Both men were convicted of attempted murder in the second degree, but acquitted of attempted murder in the first degree ad assault in the first degree. The jury in that trial, however, could not reach a verdict on the charge of murder in the second degree. It is on the retrial of that charge before Justice Cornelius O'Brien that the events set forth below took place.
After a lengthy jury selection process and a trial lasting several weeks, the jury retired to deliberate on September 29, 1983, with three alternates separated and sequestered (except for transcript readbacks) but not dismissed. Deliberations continued, punctuated by numerous readbacks, on September 30 and October 1, but not on Sunday, October 2. Before lunch on October 3, the jury announced that it was deadlocked, but the court directed it to continue deliberations. Deliberations took place on October 3, October 4, and October 5, and were again punctuated by numerous readbacks. On October 6, the sixth day of deliberations, at approximately 3:15 p.m., the jury sent a second note to Justice O'Brien, which read, "We, the jury, cannot reach a verdict. We have York, not guilty, eight; guilty, four. LaBorde, not guilty, eight; guilty, four. We are a hung jury. Sincerely, Mrs. Greer."
Defense counsel responded to this note by requesting that the judge deliver an Allen charge.*fn3 The judge granted the request, delivering a standard version of an Allen charge that concluded at 4:20 p.m. that afternoon. Following the Allen charge, counsel for Majid at side bar requested that "the Court follow the practice it followed last night, which is to keep them beyond the usual hour, in, perhaps, the hope that [if] they stay, by eleven tonight, they won't have to come back tomorrow morning." The judge replied, "I intended to stay later on tonight."
At about 7:00 p.m., all attorneys were called to a conference in chambers. A juror, "Ms. Jane Doe," had requested that she not have to eat with the rest of the jurors and that she be allowed to contact her psychiatrist. The court also informed the parties that "her husband has been contacted, and I believe that her husband has conveyed to Mr. Kenny [the court clerk] the information that Dr. Vivik has advised that she call him." In the discussion that followed, Hameed's counsel suggested that the court substitute an alternate juror for Ms. Doe, pursuant to People v. Ryan,*fn4 but the court cautioned:
You have to remember that we have had the jury out for all these days, since last Thursday. The jury has been hung for most of that time, until today. There is no guarantee whatsoever that if an alternate replaces Miss [Doe] there is going to be any change.
What I would like to do, and I think it's more proper, is to have Miss [Doe] speak to the doctor to determine whether or not the doctor says that she can continue.
After the judge indicated his belief that "other jurors" were "having difficulties also," the prosecutor suggested that the court inquire of the jurors whether they wanted to go to dinner (and therefore to continue deliberations) and that if all agreed there was no point to it, everyone's problems would be solved. The judge rejected the suggestion, adding that he had "hop[ed] to go beyond" the mere three hours of deliberation that had occurred following the Allen charge but that he was "not intending to go much beyond tonight." It was then agreed by all concerned that, given certain precautions, the doctor should speak to Ms. Doe while the rest of the jurors ate.
After a recess, following instructions to the other jurors not to deliberate during dinner, the judge said in a chamber conference, "I spoke to Miss [Doe]. Miss [Doe], beyond any doubt, is in a state where she is absolutely unfit to continue." He recounted his telephone conversation with her doctor, who advised him that Ms. Doe had suffered a psychotic episode, "a nervous breakdown," the year before. The judge informed the parties that he had then put Ms. Doe on the telephone to her doctor, and evaluated that conversation as follows:
She spoke in general terms to coin a phrase, pretty bad shape. I didn't know what she was talking about, except for a few words.
She just indicated that it was the same as last year. I just couldn't understand her.
When she got off the phone, I asked her to leave the room, and the doctor said that she was on the brink of a psychotic episode, and could not continue.
Now, I contacted her husband. He is here. I have spoken to him, and, of course, we have a great concern, that is the press is going to get her name. I have made arrangements that she is to be taken to see the doctor at 9:30, and we are running beyond that.
But I am going to call the doctor, and have her call him in a few minutes.
I am going to discharge the jury.
At this point defense counsel requested, pursuant to N.Y. Crim. Proc. Law § 270.35 (McKinney 1982), that she be replaced with an alternate.*fn5 Counsel argued vigorously and at some length that the rule of substitution in § 270.35 was mandatory,*fn6 that the defendants had a real interest in not being subject to yet another trial, and that there had been only two or so hours of deliberation after the Allen charge. The court's response reflects an amalgam of concerns and considerations:
I was within a matter of a couple of hours of discharging the jury, in any event, before this unfortunate incident.
It came on with extreme suddenness.
What occurred is that I believe it was Saturday, she became a little overwrought. But that's common.
I paid very little attention to it.
If you recal, Miss McCaffrey, at one point, was also crying and ...