IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI STATE OF MISSISSIPPIVS. CAUSE NUMBER DEFENDANT RULE 5(a) PETITION FOR PERMISSION TO APPEAL ORDER DENYING MOTION TO BAR REPROSECUTION UNDER DOUBLE JEOPARDY CLAUSE COMES NOW, , by counsel, and moves this Court to
bar his pending retrial, as to either guilt or penalty or both,
on grounds of double jeopardy, or to issue a writ of habeas
corpus ordering the State to cease this illegal prosecution.
's motion is predicated on the Fourth, Fifth, Sixth, Eighth
and Fourteenth Amendments of the United States Constitution, as
well as Article 3, Section 22, of the Mississippi Constitution.
In support of his petition, states as follows:1. Petitioner, , hereby applies to this Court
under Miss. Sup. Ct. R. 5(a) for permission to appeal the Order
of the Circuit Court of County denying his motion to bar
trial under the double jeopardy clauses of the Federal and State
Constitutions. Circuit Judge , while denying this motion,
certified it for interlocutory review by order dated
, (Order attached as Exhibit "A" to this Petition).
2.As recognized by by his act of certification of
this question, only through interlocutory review can be
protected from the substantial and irreparable injury of a
second trial barred by the prohibition against double jeopardy,
Simon v. State , Order of August 24, 1990 at page 11; see Abney
v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d
651 (1977); Harden v. State, 460 So.2d 1194 (Miss. 1984).
Circuit Judge Edmonds did not stay further proceedings pending
this interlocutory appeal, and the second, unconstitutional
trial is currently set for October 8, 1990.
INTRODUCTION 3. "Double jeopardy . . . is the right to be free
from a second prosecution, not merely a second punishment. . .
." Fain v. Duff, 488 F.2d 218, 224 (5th Cir. 1973) (emphasis in
original); accord United States v. Sneed , 705 F.2d 745, 747
(5th Cir. 1983). A claim predicated under the double jeopardy
clause "contest[s] the very authority of the Government to hale
him into court to face trial on the charge against him." Abney
v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 52 L. Ed.
2d 651 (1977).
4. While it has long been clear that the double jeop-
ardy clause may bar retrial on the issue of culpability, it is
now clear that the same principles apply to the penalty phase of
a capital trial: Once a sentence of life imprison ment has been
imposed there may be no "second bite at the apple" to try to
secure a death sentence. See Bullington v. Missouri, 451 U.S.
430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1980); Dycus v. State,
440 So. 2d 246 (Miss. 1983); Odom v. State , 483 So. 2d 343
(Miss. 1986); Ex Parte Bell, 511 So. 2d 519 (Ala. Crim. App.
1987).
5. Applying these principles to the pending
reprosecution of , it is apparent that he can be neither
prosecuted on other charges arising out of the same incident,
nor can the state seek to impose a death sentence again in this
case.A. THE FACTS.6. , has been previously tried and convicted of
capital murder predicated on acts taking place in County.
Four persons were killed in the course of the crime charged, and
the State indicted separately for each homicide. The
State did this so that it could have four bites at the execution
apple: If at first the State did not succeed, they could try,
try and try again. The long and the short of it is that the
State is now hoist on the petard of this unconstitutional
strategy.7. A review of the decisions taken by the prosecution
in this case is critical to an understanding of how the prosecu -
tion has brought themselves into their current procedural
logjam. The state initially sought and secured four separate
indictments. The first charged him with the Capital Murder (in
the course of arson), Sexual Battery and Kidnapping of .
See State of Mississippi v. John CLIENT, No. (Lapin Co.
March 12, 1990). The second charged him with the Capital Murder
(in the course of arson), Robbery and Kidnapping of Edward
Roberts, and Burglary of Mr. Roberts' dwelling. See State of
Mississippi v. John CLIENT, Jr. , No. 5107 (Lapin Co. March 12,
1990). The third charged him with the Capital Murder (in the
course of arson) and Kidnapping of William Roberts. See State of
Mississippi v. John CLIENT, No. 5109 (Lapin Co. March 12, 1990).
Finally, the fourth indictment charged with the Capital
Murder (in the course of arson) and robbery of Lily Roberts. See
State of Mississippi v. John CLIENT, No. 5111 (Lapin Co. March
12, 1990).
8. All these indictments were multi-count
indictments, as permitted by our law: (1) Two (2) or more offenses which are triable in the same
court may be charged in the same indictment with a separate
count for each offense if: (a) the offenses are based on the
same act or transaction; or (b) the offenses are based on two
(2) or more acts or transactions connected together or
constituting parts of a common scheme or plan. (2) Where two (2) or more offenses are properly charged in
separate counts of a sin gle indictment, all such charges may be
tried in a single proceeding.Miss. Code Ann. § 99-7-2 (Supp. 1989). Nothing prohibited all
the crimes from being charged in the same indictment. It was
simply the prosecution's decision to give themselves four
separate shots at conviction, and four separate shots at a death
sentence. Surely, the reasoning went, the defense would be
sufficiently worn down, and the odds multiplied by four rolls of
the dice, to assure 's execution. This is, however,
precisely the kind of strategy which the Double Jeopardy Clause
was designed to prohibit. 9. The prosecution chose first to pursue the
indictment charging the capital murder of Cynthia Roberts. The
reasoning underlying this decision is fairly obvious: The
tragedy of young Cynthia Roberts' death is enhanced by the
emotional impact of the evidence that she may have been sexually
assaulted, followed by her three-time shooting, and the evidence
that she may have died of asphyxiation.10. This case was set for trial on June 18, 1990. On
May 29, 1990, the United States Supreme Court decided Grady v.
Corbin, U.S. , 110 S. Ct. 2084, 109 L. Ed. 2d 548
(1990), which expanded on the test for double jeopardy first set
forth Blockburger v. United States, 284 U.S. 299, 304 (1932).
Grady v. Corbin made explicit what was already rather obvious:
That the prosecution's "wear-them-down" strategy in this case
was unconstitutional.
11. On , , the prosecution filed a
Motion to Consolidate the four indictments against .
Revealingly, the prosecution argued as follows:
[I]n a United States Supreme Court case decided May 29, 1990,
styled William V. Grady, District Attorney of Dutchess County
petitioner v. Thomas J. Corbin, No. 88-474, the court under
circumstances of that case [sic], held that that [sic] the
prosecution was barred from a subsequent prosecution if an
essential element of the first was required in proving conduct
in the second crime. * * * The prosecution in this case has
only now become aware of this recent decision of the Supreme
Court and is unsure of its consequences, but would be
irreparably harmed in its subse quent prosecutions after the
first prosecution should the above case be applicable to these
cases.
Motion to Consolidate at paras. 2-3 (Motion attached as Exhibit
"B" to this Petition). This motion was heard shortly before the
trial date, and was denied by the trial court. The prosecution
could have sought immediate interlocutory review of this
decision from this Court, in light of their apparent certainty
in the Motion to Consolidate that they would be "irreparably
harmed" by the adverse ruling. See Miss. Sup. Ct. Rule 5. The
prosecution chose not to do so.
12. The case went to trial, and was convicted
of Capital Murder, Sexual Battery and Kidnapping. At the
penalty phase, the prosecution failed to prove their case for
the death penalty, and the jury did not impose it. Therefore,
as required by law, the trial court imposed a sentence of life
imprisonment.
13. Having failed in their first effort to obtain a
death sentence, the prosecution then sought to nolle prosequi
the three remaining indictments. Orders granting the motion as
to each indictment were entered on July 6, 1990. In the
meantime, two days after the initial life sentence, the
prosecution had sought another indictment charging three counts
of capital murder. See State of Mississippi v. John CLIENT,
No. 5114 (Lapin Co. June 27, 1990). This charged with the
Capital Murders of Edward Roberts (in the course of an armed
robbery), of William Roberts (in the course of a kidnapping),
and Lily Roberts (in the course of a burglary).
14. This case has now been set for trial on October
8, 1990, and the State apparently intends to seek the death
penalty anew. The planned proceedings fall squarely within the
proscription of the Double Jeopardy Clause. B. THE STATE IS BARRED BY PRINCIPLES OF DOUBLE
JEOPARDY FROM REPROSECUTING JOHN CLIENT, FOR CAPITAL
MURDER ARISING OUT OF THIS SERIES OF EVENTS. 15. When the prosecution read Grady v. Corbin, there
was good reason to wonder whether the Double Jeopardy Clause
would preclude successive prosecutions under the same facts in
an effort to wear down the indigent defendant and his appointed
counsel in this case. However, it is not as if Grady v. Corbin
stated anything new, for ten years before,
[i]n Illinois v. Vitale, 447 U.S. 410 (1980), [the United
States Supreme Court] suggest ed that even if two successive
prosecutions were not barred by the Blockburger test, the second
prosecution would be barred if the prosecution sought to
establish an essential element of the second crime by proving
conduct for which the defendant was convicted in the first
prosecution.
Grady v. Corbin, 109 L. Ed. 2d 548, 557 (1990) (emphasis
supplied); see also Fugate v. New Mexico, 470 U.S. 904 (1985)
(affirming by equally-divided vote on Vitale issue); Thigpen v.
Roberts, 468 U.S. 27 (1984) (deciding case on alternative
grounds). In Grady, the Supreme Court explicitly adopted the
rule set forth in Illinois v. Vitale:
As we suggested in Vitale, the Double Jeopardy Clause bars any
subsequent prosecution in which the government, to establish an
essential element of an offense charged in that prosecution,
will prove conduct that constitutes an offense for which the
defendant has already been prosecuted.
Id., 109 L.Ed.2d 557 (emphasis supplied). 17. In this case, the prosecution has already argued
's case for him in their Motion to Consolidate: There would be only minimal testimonial and evidentiary
differences in the trial or the trials of each case and the
trial of the cases consolidated. The defense in not [sic] way
could be prejudiced in the proof or in the preparation in this
case.
Id. at para. 4. This was indeed true of the trial where the
State's theory was killed all of the Roberts family. The
facts produced before the jury to support the initial conviction
were therefore identical to the facts which would be introduced
at the subsequent trials. 18. There are other independent reasons to dismiss
the current indictment on double jeopardy grounds. has
already been convicted of kidnapping, arising out of this event.
It makes no difference that he was convicted of the kidnapping
of Cynthia Roberts rather than William Roberts. Ashe v.
Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970),
takes care of any notion that such a contention would be
relevant.
19. In Ashe , the accused was charged in six separate
indictments with the armed robbery of six individuals at a card
game. The Supreme Court held that the first prosecution barred
any attempt to bring the other five cases because of the
doctrine of collateral estoppel "embodied in the Fifth Amendment
guarantee against double jeopardy," and concluded:
For whatever else that constitutional guarantee may embrace,
North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2076, it
surely protects a man who has been acquitted from having to 'run
the gauntlet' a second time. Green v. United States, 355 U.S.
184, 78 S.Ct. 221, 225.
Ashe v. Swenson, 90 S. Ct. at 1195. Therefore, Count II of the
new indictment is explicitly barred.
20. Similar defects taint Counts I and III. Count I
charges robbery, while Count III charges burglary--which is
defined as breaking into the dwelling with intent to steal goods
from within. Obviously, these two crimes are not distinct, for
the purposes of Grady v. Corbin. 21. Grady v. Corbin made indisputable what was
already obvious: The State should not be allowed to take a
single criminal transaction and divide it up into several
trials, to hone down the evidentiary presentation, and enhance
the chances of conviction and a sentence of death. As the Court
held:
The underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the State
with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of
anxiety and insecurity. . . .Id., 109 L. Ed. 2d at 562 (quoting Green v. United States, 355
U.S. 184, 187 (1957)). The Clause "prevents the State from
honing its trial strategies and perfecting its evidence through
successive attempts at conviction." Id. (quoting, Tibbs v.
Florida, 457 U.S. 31, 41 (1982)). The same is true of multiple
prosecutions even after conviction. Id. at 561 (citing North
Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The same is true
where the successive efforts are aimed at securing a death
sentence. Bullington v. Missouri, 451 U.S. 430 (1980).
22. The rule in Grady v. Corbin is founded in common
sense, and is directly applicable to this case. If, as there,
the State could try [the accused] in four consecutive trials .
. . [t]he State could improve its presentation of proof with
each trial, assessing which witnesses gave the most persuasive
testimony, which documents had the greatest impact, which
opening and closing arguments most persuaded the jurors. [The
accused] would be forced either to contest each of these trials
or to plead guilty to avoid the harassment and expense.Id., 109 L. Ed. 2d at 564. In short, Grady v. Corbin left the
prosecution hoist on its own unprincipled plan for assuring a
death penalty.
23. And there is nothing unfair about that. Indeed,
in Grady v. Corbin the double jeopardy bar was erected because
the prosecution was "overworked and [did] not . . . have time to
monitor seemingly minor cases. . . ." Grady , 109 L. Ed. 2d at
566. In this case, the prosecution knew very well what they
were up to, but simply misjudged by fabricating a basically
unfair strategy to secure 's execution. Under Article 3, §
22, of the Mississippi Constitution, there is even more cause to
hold the second trial barred, since the provision provides that:
No person's life or liberty shall be twice placed in jeopardy
for the same offense: but there must be an actual acquittal or
conviction on the merits to bar another prosecution.
(emphasis supplied). 24.The learned trial judge, however, failed to apply
Grady v. Corbin to the case at bar, despite the fact that the
defense explicitly argued same. Instead, the Circuit Court
applied a "same evidence" test, see Circuit Court Order at 4,
which was disavowed by the Supreme Court in Grady: "Commentators
and judges alike have referred to the Blockburger test as a
'same evidence' test. . . . This is a misnomer." Grady, 109 L.
Ed. 2d at 564 n.12. Additionally, the Court below focused
exclusively on the Blockber ger test and its logical conclusions,
see Order at 5, whereas the Supreme Court in Grady expressly
stated that "a subsequent prosecution must do more than merely
survive the Blockburger test." Grady, 109 L. Ed. 2d at 564.
Finally, the Circuit Court objected several times to 's
position on grounds that "'The words 'same offense' means same
offense, not the same transaction, not the same acts, not the
same circumstances or same situation,'" Circuit Court Order at
8-9 (quoting Burton v. State, 226 Miss. 31, 79 So.2d 242
(1955)). This was the position taken by the dissent in Grady.
Indeed, Justice Scalia's dissent makes clear that the Circuit
Judge's logic fails to survive Grady:
[The Double Jeopardy Clause] guarantees only the right not to
be put in jeopardy for the same offense, and has been
interpreted since its inception, as was its common-law anteced-
ent, to permit a prosecution based upon the same acts but for a
different crime. The Court today holds otherwise. . . .Grady, 109 L. Ed. 2d at 568 (Scalia, J., dissenting) (emphasis
by underlining supplied; boldface emphasis in original).
25. In short, the reprosecution of ______________ is
barred by the Double Jeopardy Clause as interpreted by Grady v.
Corbin. The Circuit Judge did not apply Grady or its principles
in his decision. ____________ should not face a second
reprosecution for capital murder, or run the gauntlet of a
second capital sentencing proceeding, without some Court
squarely facing the double jeopardy issue in light of Grady. If
this Court does so, ___________________ is convinced that the
reprosecution will be barred.
C. AT THE VERY LEAST, THE STATE IS BARRED BY DOUBLE
JEOPARDY FROM SEEKING TO IMPOSE THE DEATH PENALTY FOR
ANY CRIME CONNECTED WITH THIS SERIES OF EVENTS. 26. Turning to the State's desire to continue to
pursue the death penalty in these cases, it is clear that that
effort is also barred. That this is a distinct question cannot
be gainsaid. See Bullington v. Missouri, 451 U.S. 430, 101 S.
Ct. 1852, 68 L. Ed. 2d 270 (1980); Dycus v. State , 440 So. 2d
246 (Miss. 1983); Odom v. State, 483 So. 2d 343 (Miss. 1986);
Ex Parte Bell, 511 So. 2d 519 (Ala. Crim. App. 1987).
27. As the prosecution has conceded in the Motion to
Consolidate, and as was apparent from the trial in this matter,
the jury was aware of all the four alleged murders, and did not
feel that the crimes deserved the death penalty. Indeed, the
prosecution chose to pursue the sexual battery, kidnapping and
murder of little Cynthia Roberts first because, if there was any
distinction between the cases, this emotional crime was the one
most likely to tip the scales towards death.
28. It was clear long before Grady v. Corbin that, in
reviewing the verdict from the first trial, this Court should
look for the general intent of the sentencer:
The disposition of this case is controlled by the Ashe
"rational jury" test, which is what a rational jury could and
could not have decided based upon an examination of what was
presented and argued to the jury. As stated in Ashe,
Where a previous judgment . . . was based on a general
verdict, as is usually the case, this approach re-
quires a court to examine the record of a prior
proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, and
conclude whether a rational jury could have grounded
its verdict on an issue other than that which the
defendant seeks to foreclose from consideration.
Griffin v. State, 545 So.2d 729, 734 (Miss. 1989) (quoting Ashe
v. Swenson, 397 U.S. at 444).
29. Here, the prosecution has conceded in its Motion
to Consolidate that the evidence presented to the jury was
effectively identical with respect to the cases tried together,
and the cases tried separately. Quod erat demonstrandum. The
prosecution failed to prove that _______________ deserved to
die. It is now collaterally estopped from trying to prove it
anew. As stated in Ashe v. Swenson,
"Collateral estoppel" is an awkward phrase, but it stands for
an extremely important prin ciple in our adversary system of
justice. It means simply that when a issue of ultimate fact has
once been determined by a valid and final judgement, that issue
cannot again be litigated between the same parties in any future
lawsuit.
Ashe, 90 S. Ct. at 1194. Thus, as a jury has already passed on
the issue of whether ________________ should be put to death or,
instead, serve a sentence of life imprisonment for the crime
that took place in Lapin County, the State is collaterally
estopped from trying that issue over and possibly over again.
D. THE STATE BEARS THE BURDEN OF PROVING THAT THE
DOUBLE JEOPARDY CLAUSE DOES NOT BAR RETRIAL ON THESE
MATTERS. 30. When the accused places the question of double
jeopardy in issue, "the burden shifts to the government. . . ."
United States v. Ragins, 840 F.2d 1184, 1192 (4th Cir. 1988)
(citing cases). At this point, in order to show that
reprosecution is permitted, the State bears "the burden of
pro[of] by a prepon derance of the evidence. . . ." United
States v. Futch , 637 F.2d 386, 388 (5th Cir. Unit B, 1981);
accord United States v. Strickl in, 591 F.2d 1112, 1118 (5th Cir.
1979), cert. denied, 444 U.S. 963, 100 S. Ct. 449, 62 L. Ed. 2d
375 (1979); United States v. Mallah, 503 F.2d 971, 985-86 (2d
Cir. 1974), cert. denied, 420 U.S. 995, 95 S. Ct. 1425, 43 L.
Ed. 2d 671 (1975); United States v. Inmon , 568 F.2d 326, 329-30
(3d Cir. 1977). In light of the constitutional implications of
the double jeopardy clause, this "burden rests heavily upon the
Government. . . ." United States v. Pinto, 486 F.Supp. 578, 580
(E.D. Pa. 1980).
31. As this Court considers the elements of the
double jeopardy bar discussed above, it should be borne in mind
that the prosecution bears the burden of proof. E. SINCE THE DOUBLE JEOPARDY CLAUSE PROTECTS JOHN
CLIENT FROM BEING SUBJECTED TO ANY PROCEEDINGS ON A
RETRIAL, THE SUPREME COURTS OF MISSISSIPPI AND THE
UNITED STATES HAVE HELD THAT AUTOMATIC REVIEW MUST BE
ALLOWED PRE-TRIAL IF A PLEA IN BAR IS OVERRULED. 32. It is well-settled that the right to freedom from
double jeopardy protects the accused against multiple
prosecutions, as well as multiple convictions and punishments.
The United States Supreme Court explained this principle in
Abney v. United States, 431 U.S. 651 (1977):
[T]his Court has long recognized that the Double Jeopardy
Clause protects an individual against more than being subjected
to double punishments . . . it assures an individual that . . .
he will not be forced . . . to endure the personal strain,
public embarrassment, and expense of a criminal trial more than
once the for same offense. It thus protects interests wholly
unrelated to the propriety of any subsequent conviction.Id. at 600-61; see also Justice of Boston Municipal Court v.
Lydon, 466 U.S. 294, 303 (1984); Fain v. Duff, 488 F.2d 218,
224 (5th Cir. 1973). The harm created by successive trials if
heightened when the accused faces the possibility of being
executed at the end of the trial. See Bullington v. Missouri,
451 U.S. 430, 445 (1981).
33. The double jeopardy clause therefore includes the
right to final disposition of any plea in bar before any other
litigation in the trial court, and before any trial proceedings.
This was made explicitly clear in Abney: [T]he protections [of the Double Jeopardy Clause] would be
lost if the accused were forced to "run the gauntlet" a second
time before an appeal could be taken: even if the accused is
acquitted, or if convicted, has his conviction ultimately
reversed on double jeopardy grounds, he has still been forced to
endure a trial that the Double Jeopardy Clause was designed to
prohibit. Consequently, if a criminal defendant is to avoid
exposure to double jeopardy and thereby enjoy the full
protection of the Clause, his double jeopardy challenge to the
indictment must be reviewable before that subsequent exposure
occurs.
Id. at 662 (emphasis supplied in part); accord United States v.
Hollywood Motor Car Co., 458 U.S. 263, 266 (1982); United
States v. Alessi , 536 F.2d 978, 980 (2d Cir. 1976); United
States v. McQuilken, 673 F.2d 681, 685 (3d Cir. 1982); United
States v. Jelsma, 630 F.2d 778, 779 (10th Cir. 1980).
34. An accused who has raised a double jeopardy
"claim would be irreparably harmed if the trial court were
allowed to proceed to trial prior to the appellate court's
disposition of the claim. . . ." United States v. Claiborne,
727 F.2d 842, 851 (9th Cir. 1984). Indeed, so important is this
constitutional right that "federal courts would have the power
to enjoin state criminal proceedings that would constitute
double jeopardy. . . ." Davis v. Herring, 800 F.2d 513, 515-16
(5th Cir. 1986) (emphasis supplied); accord Allen v. Johnstone,
575 F. Supp. 935, 938 (S.D. Iowa 1983) ("appropriate . . .
relief is to stay temporarily the state court criminal trial to
give [the defendant] the opportunity to present the issue to the
[appellate court]"). 35. The Mississippi Supreme Court has also recognized
the criminal defendant's right to immediate interlocutory review
of a double jeopardy claim, where it is denied by the trial
court. In Harden v. State , 460 So. 2d 1194 (Miss. 1984), the
accused appealed the trial court's denial of his double jeopardy
claim. The Supreme Court stated in no uncertain terms:
[Where the defendant] has presented us with a double jeopardy
violation in his habeas corpus petition . . . it is our duty to
interfere and tell the state he cannot be prosecuted . For, such
a grave constitutional violation would be one of those
exceptional circumstances obligating this Court to abort trial
proceedings.
Id. at 1200-01 (emphasis supplied); see also In the interest of
W.R.A., 481 So. 2d 280, 288 (Miss. 1985); State v. Caldwell,
492 So. 2d 575 (Miss. 1986); Griffin v. State, 545 So. 2d 729
(Miss. 1989). Relying on Abney v. United States, our sister
states have likewise uniformly ruled that a double jeopardy
claim must be subject to pre-trial appellate review: "the
rights conferred by a criminal accused by the Double Jeopardy
clause would be signifi cantly undermined if appellate review of
double jeopardy claims were postponed. . . ." Patterson v.
State, 248 Ga. 875, 287 S.E. 2d 7, 8 (1982); see also County
Court of El Paso v. Ruth , 575 P. 2d 1, 3-4 (Colo. 1978); State
v. Ambrose, 598 P. 2d 354, 357 (Utah 1979); State ex rel. Dowdy
v. Robinson, 257 S.E. 2d 167, 168 (W. Va. 1979); Application of
Berkowitz, 602 P. 2d 99, 103 (Ky 1979); State v. Thomas, 400
N.E. 2d 897 (Pa. 1980); State v. Mestas, 605 P. 2d 1164, 1166
(N.M. 1980); Wiley v. Altman, 420 N.E. 2d 371 (N.Y. 1981);
State v. Cagle, 626 S.W. 2d 719 (Tenn. 1981); Ex Parte
Robinson, 641 S.W. 2d 552, 555 (Tex. 1982); State v. Sundel,
460 A. 2d 939, 942 (R.I. 1983); In the Interest of R.R. , 464 A.
2d 348, 353 (Pa. 1983); Sigma Reproductive Health Center v.
State, 467 A. 2d 483 (Md. 1983); Stamper v. State, 672 P. 2d
106 (Wyo. 1983); State v. Keel, 512 N.E. 2d 420 (Ind. 1987).
36.Therefore, the Circuit Judge's certification of
this issue for interlocutory review was correct. However, for
these same reasons, it is clear that any proceedings aimed at a
second trial in this cause should be stayed under Miss. Sup. Ct.
R. 5 (e) pending resolution of the weighty issues raised in this
interlocutory appeal. The vindication of _________________'s
right to be free from multiple prosecutions will be hollow
indeed if further hearings, and a second trial, takes place
while this Court decides the question on the merits. A stay
must be granted to preserve ____________________'s right to be
free from double jeopardy.
_____________________ therefore prays this Court to
grant his motion for interlocutory review under Rule 5(a), to
stay further proceedings in the trial Court pursuant to Rule
5(e) pending interlocutory review, and, upon such review, to bar
the State from retrying ________________ on these capital
charges. Respectfully submitted,**By:_________________________ ** CERTIFICATE OF SERVICE I, ________________, attorney for _______________, do
hereby certify that I have on this day mailed, postage prepaid,
a true and correct copy of the foregoing Motion to This the ____ day of _____________, 19___ _____________________________ ** **
