ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA C.A. No. 74-1624.
Adams, Rosenn and Weis, Circuit Judges. Weis, Circuit Judge, dissenting.
This appeal from a denial of a writ of habeas corpus presents the question whether the constitutional command against exposing one to double jeopardy precludes the Commonwealth of Pennsylvania from again trying Keith Webb on the same charges emanating from a robbery. At either one or both of two previous trials on those charges, Webb asserts, the trial judges prematurely or improperly determined that the juries were unable to reach unanimous verdicts and declared mistrials, thereby depriving Webb of his constitutional right to secure a verdict from those specific juries.
A brief summary of the facts will provide sufficient background for the issue presently before the Court.
At approximately 11:00 P.M. on Sunday, November 26, 1972, several persons robbed a rectory and three clergymen who resided therein. Webb was charged with having participated in the robbery. His first trial on the allegations involving that incident began before a jury in the Court of Common Pleas in Philadelphia County on May 23, 1973. The presentation of the case continued until noon on June 3, 1973, at which time the jury began its deliberations. The jury deliberated for the remainder of the day on June 4th and all day June 5th. At the jurors' request certain testimony was re-read to them on June 5th. The jury recommenced their consideration of the case at 9:00 A.M. on June 6th.
At noon that day the trial judge summoned the jury back to the courtroom. The court asked the jurors whether they were close to a verdict; whether they felt that given additional time they would be able to reach a verdict; and whether they felt themselves hopelessly deadlocked. The judge specifically advised the panelists that his questions were addressed to each of them, and he received from each of them an affirmative indication that they agreed with the foreman's statement that they were not close to a verdict and were hopelessly deadlocked. The trial judge then, over the objection of Webb's counsel, declared a mistrial on the ground of a hung jury.
Webb was brought to trial a second time on the same charges on September 19, 1973, again before a jury in Philadelphia Common Pleas Court. At the second trial Webb was identified as one of the robbers by two of the clergymen who had been in the rectory during the robbery. Webb, on the other hand, presented testimony that he had spent the evening in question eating dinner and watching television until 11:00 P.M. at the apartment of friends. He had then, he claimed, crossed the hall to his own apartment, where he stayed with his wife and children, for the remainder of the night.
The second trial lasted from September 19th to September 25th. On the latter date the trial judge charged the jury, and that body commenced deliberations at 10:37 A.M. At 2:13 P.M. the panel interrupted its discussions in order to obtain additional instructions and a re-reading of certain testimony. The jury was excused from the courtroom at 2:35 P.M. in order to continue its deliberations.
At 5:43 P.M. the judge on his own initiative, without receiving a request from counsel or from the jury, asked the jury to return to the courtroom. The jury had deliberated for approximately six and one-half hours.*fn1 The following is the entire colloquy which then took place between the court and the foreman of the jury:
The Court: Mr. Foreman, is there any hope of arriving at a verdict?
The Foreman: I don't believe so, sir.
The Court: Do you believe that further deliberation might be fruitful?
The Foreman: No, I do not.
The Court: Do you feel that your positions are so adamant that you couldn't possibly arrive at a unanimous verdict? Is that what you're telling me?
The Foreman: Yes, sir, I do believe that.
The Court: All right. I discharge you from further consideration of the case. You may report to the jury room tomorrow morning.
The record does not reflect that the trial judge at any time solicited or received the views of any members of the jury other than the foreman regarding the progress of their deliberations or the prospects for a unanimous verdict within a reasonable time. Webb's counsel promptly objected to the declaration of a mistrial. The court, however, discharged the jury. The entire proceedings from the jury's return to the courtroom to the adjournment of the court, including the noting of defendant's objection and an interchange between the crier and the court regarding future service by the jurors, consumed only seven minutes.
Following the second mistrial Webb moved to dismiss the indictment on double jeopardy grounds.*fn2 The court of common pleas denied the motion, but ordered the district attorney "to review the case to make a determination whether its evidence warrants further prosecution, in view of the inability of two prior juries to reach a unanimous verdict."
By the time the district attorney indicated his intention to re-try Webb, the period for requesting a certificate for an interlocutory appeal from the decision of the common pleas court had elapsed.*fn3 Webb, however, sought a writ of prohibition from the Pennsylvania Supreme Court on the ground of double jeopardy. The writ was denied without an opinion. Webb proceeded to petition the district court for a writ of habeas corpus so as to prevent the Commonwealth from re-trying ...