Opinion
CIVIL ACTION NO. 02-758 SECTION "C"
June 3, 2002
ORDER AND REASONS
This matter comes before the Court on objection to magistrate's ruling on jurisdiction and motion to amend filed by the defendant. By this objection and motion, the defendant argues that he should not have to brief the merits of the double jeopardy/sufficiency of the evidence issue as ordered by the magistrate judge. The defendant argues for dismissal of the writ because double jeopardy has not been implicated and this Court is precluded from enjoining the state from retrying the petitioner for capital murder on the basis that the evidence at the first trial was insufficient. Having reviewed the record, the memoranda of counsel and the law, the Court grants the objection and motion for the following reasons.
The parties apparently agree with the Magistrate Judge's determination that this Court has jurisdiction under 28 U.S.C. § 2241.
The petitioner, Lawrence Jacobs ("Jacobs") was previously convicted and sentenced to death for his alleged involvement in a double murder. The conviction and sentence were overturned by the Louisiana Supreme Court because of the trial court's wrongful denial of for-cause challenges of jurors at trial. State v. Jacobs, 789 So.2d 1280 (La. 2001). Jacobs is awaiting retrial for capital murder. He has filed a motion in state court to bar retrial based on double jeopardy and the insufficiency of the evidence at his first trial. That motion has been denied through the Louisiana Supreme Court.
The petitioner's co-defendant, Roy Bridgewater ("Bridgewater") was separately tried, convicted and sentenced to death. Prior to filing this writ, the Louisiana Supreme Court had overturned Bridgewater's conviction for first degree murder because of insufficient evidence, entering a conviction of second degree murder instead. State v. Bridgewater, 2002 WL 47169 (La.) . However, counsel advise that the decision has been reheard and is awaiting decision by the Louisiana Supreme Court on rehearing.
The petitioner argues that since the Louisiana Supreme Court inBridgewater, supra, found that the evidence against that defendant was insufficient, the evidence in his case must also be declared insufficient by virtue of a comparison between the evidence offered in the two trials. This argument is better directed at the prosecuting authorities who must decide in their discretion whether to pursue a first degree murder charge against this defendant. The Court also has difficulty with the petitioner's reliance on Bridgewater. While the separately filed dissent, at 2002 WL 89468 (La), opined that Bridgewater was the "leader" of the murders, the majority opinion, prior to rehearing indicates that Jacobs committed the double homicide and Bridgewater was guilty for failing to prevent the murders.
The petitioner's underlying argument is that the state courts' failure to evaluate the sufficiency of the evidence in his case subjects him to double jeopardy if he is retried on the same charge. The parties agree that a finding of trial error and that evidence is insufficient to sustain a conviction is a bar to retrial on the same charge under the double jeopardy clause. See Burks v. United States, 437 U.S. 1 (1978)
Louisiana courts favor the review of sufficiency of evidence when raised. "When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence." State v. Hearold, 603 So.2d 731, 734 (La. 1992). See also State v. Walker, 681 So.2d 1023,1028 (La.App. 2d Cir. 1296); State v. Huff, 660 So.2d 529,533 (La.App. 2d Cir. 1995)
The Fifth Circuit jurisprudence is in agreement with the Louisiana courts on the wisdom of this procedure. However, it holds that double jeopardy is not violated if sufficiency of evidence was not actually addressed by the reviewing court. "Although not mandated by the double jeopardy clause, it is accordingly clearly the better practice for the appellate court on an initial appeal to dispose of any claim properly presented to it that the evidence at trial was legally insufficient to warrant the thus challenged conviction." United States v. Miller, 952 F.2d 866,874 (5th Cir.), cert. denied, 505 U.S. 1220 1992). See alsoUnited States v. Stevens, 38 F.3d 167, 170 (5th Cir. 1994); United States v. Adkinson, 135 F.3d 1363, 1379 (5th Cr. 1998)
In Vanderbilt v. Collins, 994 F.2d 189,195-196 (5th Cir. 1993), a capital habeas case, the Fifth Circuit held that it is error to review sufficiency of evidence for the first time on habeas review. According to its analysis, there is no "jeopardy terminating event" when a conviction has been reversed for trial error and "no constitutional requirement to consider the sufficiency of the evidence in the initial trial." Id., 994 F.2d at 194. Therefore, "the Burks bar only prevents retrial when the appellate court in fact reverses for insufficient evidence." Id., 994 F.2d at 195 (emphasis original).
[T]t appears that there are only three possible jeopardy terminating events: (1) an acquittal, (2) a trial court determination of insufficiency leading to a directed verdict of acquittal, and (3) an unreversed determination on direct appeal that there was insufficient evidence to support the conviction. In the absence of one of these events, a later determination that there was insufficient evidence apparently will not bar a retrial.Id. "Accordingly, the district court's order, to the extent that it prohibits the state from sentencing Vanderbilt to death in a subsequent sentencing hearing, must be vacated." Id. 994 F.2d at 196.
This Court joins in the "significant reservations" of the Vanderbilt court in recognizing this rule. Id.
One must share the concern raised by the appellee and by Justices Brennan and Marshall dissenting in Richardson, that if on direct appeal, the court is presented with two valid challenges to a conviction, one based upon trial error and another based upon sufficiency, the defendant's double jeopardy rights may depend upon the whim of the appellate court in determining the ground for reversal.Id. 994 F.2d at 195. Nevertheless, the Vanderbilt panel felt "constrained to follow circuit precedent." Id., 994 F.2d at 196. The Court notes that the Tenth Circuit has adopted an approach this Court would favor if presented with a blank slate. "In this circuit, we have consistently held that when we reverse on appeal because of a procedural error at trial and remand for a new trial, we nevertheless must address the defendant's claim that evidence presented at trial on the reversed count was insufficient." United States v. Haddock, 961 F.2d 933, 934 (10th Cir.),cert. denied, 506 U.S. 828 (1992. The Tenth Circuit granted rehearing inHaddock to address sufficiency of evidence after it had originally reversed on procedural error. Id., 961 F.2d at 934. In so doing, it noted the contrary rule recognized in other circuits, including the Fifth Circuit. Id., 961 F.2d at 934, fn 1. This Court also notes, however, that the Tenth Circuit was reviewing a federal conviction on direct appeal, whereas the Vanderbilt court was reviewing a state court conviction on habeas.
The Court recognizes that this matter is in a unusual procedural posture, and that there may be no issues remaining for determination. This order disposes fully of the double jeopardy or sufficiency of the evidence presented in the petition, both on the factual ground that theBridgewater matter is not final and the prohibition against weighing the sufficiency of the evidence for the first time on habeas. In light of these circumstance, the Court seeks the further advice of counsel as to whether there are claims remaining.
Accordingly,
IT IS ORDERED that the objection to magistrate's ruling on jurisdiction and motion to amend filed by the defendant is GRANTED and the claims based on double jeopardy and insufficiency of the evidence are DISMISSED. Counsel for the petitioner shall advise the Court in writing no later than June 10, 2002, whether any issues remain.
ORDER AND REASONS
Defendant, Brown Root Industrial Services, has filed a motion for summary judgment on plaintiffs' claims against it, arguing that there are no material facts in dispute and that it is entitled to judgment as a matter of law. Defendant argues that there is no factual basis in the record for plaintiffs' negligence action against it.Plaintiffs, Joseph Coe, Marvin Gihispie, and Kevin Brewer, have advised the Court that they have no opposition to the defendant's motion for summary judgment.
See attached letter.
Upon review of the record, the motion and memorandum of counsel, the law, and considering the plaintiffs' lack of any opposition to the motion, the Court finds, for the reasons stated by the defendant in its memorandum in support, that the motion is well-founded. Accordingly,
IT IS ORDERED that the motion of defendant, Brown Root Industrial Services, for summary judgment on the plaintiffs' claims is hereby GRANTED.