UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeals from the United States District Court for the District of Columbia (D.C. Criminal 994-71).
Tamm, Leventhal and Robinson, Circuit Judges. Opinion for the Court filed by Circuit Judge Leventhal. Dissenting statement filed by Circuit Judge Tamm.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
This appeal from a carnal knowledge conviction presents the question whether a retrial should be permitted when a previous conviction was reversed for error in denying a motion for judgment of acquittal.
An alleged assault on twelve-year-old Maxine Lewis resulted in a trial of appellant David A. Wiley and conviction on the count charging carnal knowledge, in violation of 22 D.C. Code § 2801 (1973). *fn1 On appeal, this court held that there was insufficient corroboration of the corpus delicti. *fn2 This court reversed the conviction, without either directing the District Court to dismiss the indictment or authorizing it to retry Wiley. In an effort to avoid retrial, appellant both petitioned this court to clarify its mandate and filed a motion to dismiss the indictment in the District Court. *fn3 Both of these motions were denied and Wiley was retried and again convicted of carnal knowledge. *fn4
With several important exceptions noted in the margin, the evidence introduced at the second trial closely paralleled that described in Judge Wisdom's opinion reversing appellant's first conviction. *fn5 We shall refer to those matters pertinent to present issues at appropriate points in this opinion.
Appellant's primary contention is that he should not have been subjected to a second trial. He also claims violation of his constitutional rights -- to a speedy trial, to effective assistance of counsel. Finally, he protests the failure to instruct the jury on the issue of identification.
We hold that only in a narrow set of circumstances are retrials permitted in the interest of justice following reversals based on the insufficiency of the evidence to withstand the defendant's motion for judgment of acquittal. After a careful review of the record, we find that appellant's conviction must be reversed and remanded for entry of a judgment of acquittal because the insufficiency of the evidence at the first trial was attributable to the prosecution and the case does not present a justification for a second trial, such as may be found in situations of manifest necessity. I. Prior Panel Opinion
This court's prior decision is not determinative of the retrial question posed by this appeal. The previous panel's conclusion that it "need not consider" appellant's speedy trial claim in view of its reversal for insufficient corroboration *fn6 might suggest that no retrial was contemplated. But its denial of appellant's motion to clarify the mandate so as to preclude retrial leaves its intention open to speculation. The court may have regarded the speedy trial question as difficult and perhaps unnecessary to decide, since the Government might not have sought a retrial. II. General Rule Against Retrials Following Reversals for Insufficiency
A fundamental principle of American jurisprudence assures an accused that he will not be subject to a second trial on a criminal charge. The rule is subject to exceptions. We shall sketch the contours of the doctrine, including the exceptions, before considering how they apply to the case at bar.
The doctrine against retrials is the core of the Double Jeopardy Clause of the Constitution. *fn7 This guarantee was as recently as forty years ago believed to be applicable only to the Federal Government, and in Justice Cardozo's words to be outside the requirements of "ordered liberty" fully applicable to the states. *fn8 But the last four decades have witnessed a reappraisal of that view. Today it is not only clear that the Double Jeopardy Clause is fully applicable to the states, *fn9 but it is also apparent that there has been a strong judicial commitment to fundamental protection against multiple trials guaranteed by the Clause. *fn10
The courts have made it clear that the prosecution must proceed not only reasonably but with diligence. A prosecutor who announces ready for trial and has a jury sworn cannot gain another jury and a second trial because of the absence of a material witness, no matter how reasonable his belief that the witness was available and at hand. *fn11 The balance is struck to give dominant weight to the interest of the accused in having his trial before the duly selected jury without being subject to overhanging burdens of delay and doubt. *fn12 In the words of Justice Black:
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 ...