Fill and Sign the People of the State of Illinois Appeal from the Form

1 IN THE CIRCUIT COURT OF_________ COUNTY, ____________ NAME OF PLAINTIFF) )) V. )NO.))NAME OF 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 ______, Section _________, of the __________ 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 2 Petition). 2.As recognized by Judge Edmonds 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 __________ __, ____ 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 __________ did not stay further proceedings pending this interlocutory appeal, and the second, unconstitutional trial is currently set for __________ __, ____. 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 jeopardy 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 imprisonment 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). 3 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 strate gy.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. _____ (_________ Co. __________ __, ____). The second charged him with the Capital Murder (in the course of arson), Robbery and Kidnapping of __________, and Burglary of Mr. __________ dwelling. See State of Mississippi v. John CLIENT, Jr. , No. 5107 (__________ Co. __________ __, ____). The third charged him with the Capital Murder (in the course of arson) and Kidnapping of __________. See State of Mississippi v. John CLIENT, No. 5109 (__________ Co. __________ __, ____). Finally, the fourth indictment charged ________________ with the Capital Murder (in the course of arson) and robbery of __________. See State of Mississippi v. John CLIENT, No. 5111 (__________ 4 Co. __________ __, ____). 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 single 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 __________s. The reasoning underlying this decision is fairly obvious: The tragedy of young __________ 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 5 have died of asphyxiation.10. This case was set for trial on __________ __, ____. On __________ __, ____, 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 unconsti tutional. 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 __________ __, ____, 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 subsequent 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 6 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 __________ __, ____. 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 (__________ Co. __________ __, ____). This charged __________________ with the Capital Murders of __________ (in the course of an armed robbery), of __________ (in the course of a kidnapping), and __________ (in the course of a burglary). 14. This case has now been set for trial on ________ __, ____, and the State apparently intends to seek the 7 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 __________, 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] suggested 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 8 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 __________ 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 __________ rather than __________. 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. 9 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 eviden tiary 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 10 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 . . . [the 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 11 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 convic- tion 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 Blockberger test and its logical conclusions, see Order at 5, 12 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, ___________'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 antecedent, 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 13 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 __________ 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 14 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 requires 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 principle 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. 15 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 __________ 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 proof] by a preponderance 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). 16 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 pro priety 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). 17 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 18 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 __________ 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 prosecut ed. For, such a grave constitutional violation would be one of those exceptional circum- stances 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 19 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 interlocu - tory 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 20 ____________________'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 _____________, _____ ________________________________________