Wilson v. Gusman et al

Filing 38

ORDER AND REASONS petition is DENIED with prejudice. Signed by Judge Martin L.C. Feldman on 3/15/2012.(caa, )

UNITED STATES

DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA
ERIC WILSON #2249777

CIVIL

ACTION

VERSUS

NO.

MARLIN GUSMAN

SECTION

12-0386
F (3)

ORDER AND REASONS
Before the Court is Eric Wilson’s petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.

For the reasons that follow,

the petition is DENIED with prejudice.
Background
Eric

Wilson

is

a

Louisiana

pretrial

detainee

currently

awaiting trial on charges of forcible rape, armed robbery, false
impersonation of a peace officer, and second-degree kidnapping. He
has been detained in Orleans Parish Prison since his arrest on May
5, 2010.1
Wilson’s trial was scheduled to begin on June 2, 2011 in
Orleans Criminal District Court, Section I, Judge Karen K. Herman
presiding. On that day, counsel for both sides announced that they
were ready.
sworn.

Voir dire was conducted, and a jury was selected and

At the completion of jury selection, the trial judge

announced that the trial was in recess until Tuesday, June 7,

1

He was charged by bill of information on July 7, 2010
with forcible rape, armed robbery, false impersonation of a police
officer, and second-degree kidnapping.
1

2011.2
Meanwhile, on June 2, 2011 -- the day the jury was selected -the complaining victim, J.T., a New Mexico resident, was not
present in Louisiana.

The State had attempted to secure J.T.’s

presence by buying her an airline ticket for a flight to New
Orleans on June 2, 2011.

Before the flight, however, the State

represented that it was advised that J.T. was experiencing a
pregnancy-related illness, which made her fearful of flying;3
accordingly, the State bought her another ticket for a flight to
New Orleans two days later on June 4, 2011.

However, on June 4,

J.T. again informed the State that she was experiencing pregnancyrelated health concerns and was too scared to get on a plane; she
missed that flight too.

The State then purchased a third plane

ticket for her and for a companion; that flight was scheduled to
leave the next day, on Sunday, June 5, 2011.

On that date,

2

The trial judge’s reasoning for ordering a recess after
jury selection on June 2 was as follows:
At that time, based on the fact that this is a
brand new jury pool; it was the very first day
of jury service for these jurors; anticipating
that they may be tired from the full day
length of jury selection, it was this Court’s
decision to recess until their next scheduled
jury day, which is...June 7th.
Transcript from June 7, 2011 hearing on the State’s request for a
recess.
3

J.T.’s fiancé contacted the State to inform it that she
was afraid to fly because of her condition.
2

however, J.T. called and told counsel that her car had broken down
20 minutes from the airport.

Even though the State arranged for a

taxi cab to pick up J.T. and her traveling companion, when the two
arrived at the airport and J.T. was told she would have to pay a
fee for her luggage, J.T. declined (or was unable) to pay the fee.
She did not get on the plane.

After missing the third flight, the

State, to secure J.T.’s appearance, moved for a certificate of
materiality, pursuant to La.C.Cr.P. art. 741, which was granted by
the court on Sunday, June 5, 2011.4
J.T. was not present in court when trial resumed on June 7,
2011. On that day, the State requested a recess, indicated that it
planned to secure J.T.’s presence by sending personnel to New
Mexico and placing her in custody, and tried to produce J.T. by
June 9, 2011. The State represented on the record that, while J.T.

4

Louisiana

Code

of

Criminal

Procedure

article

741

provides:
If a person in any state, which by its laws
has made provision for commanding persons
within its borders to attend and testify in
criminal
prosecutions
or
grand
jury
investigations commenced or about to commence
in this state, is a material witness in a
prosecution pending in a court of record in
this state,...a judge of such court may issue
a certificate under the seal of the court
stating these facts and specifying the number
of days the witness shall be required. This
certificate shall be presented to a judge of a
court of record in the county (parish) in
which the witness is found.
La.C.Cr.P. art. 741.
The certificate was never filed in a New
Mexico court.
3

had claimed that she was three or four months pregnant, the State
had not verified that fact.

Over the defendant’s objection, the

trial court granted the State’s request for a two-day recess to
resume the trial on Thursday, June 9, 2011.

But J.T. again failed

to appear in court on June 9.
When
indefinite

the

State

one,

the

again

moved

judge

held

for
an

a

recess,

evidentiary

this

time

hearing,

an
and

instructed the State to call witnesses to testify as to the details
of the efforts the State had made to secure the presence of J.T.
Lisa Thornton, an investigator for the district attorney’s office,
testified; she stated that she, along with another investigator,
had flown to New Mexico on June 8 to escort J.T. to New Orleans.
The investigators and representatives of the Clovis, New Mexico
Sheriff’s Office drove to J.T.’s residence. J.T.’s mother told Ms.
Thornton that J.T. was at a doctor’s appointment getting some lab
work done because she was having some complications.

Ms. Thornton

then got in touch with J.T. about an hour later when J.T. got home
from her appointment; J.T. told Ms. Thornton that she was having
complications with her pregnancy, but that she was willing to
accompany them back to New Orleans; she just wanted to wait for her
lab results.

About 30 minutes after the investigators had made

contact with J.T., J.T. had finished packing and gotten into the
vehicle with Ms. Thornton when the doctor’s office called her. The
nurse on the phone (with whom Ms. Thornton also spoke) said that

4

J.T.’s test results were in, and that J.T. needed to get back to
the women’s clinic immediately, for her safety.

Once there, Ms.

Thornton was informed by Dr. Lonnie Alexander that J.T. had an
ectopic pregnancy, that he would be the admitting doctor, and that
she would be admitted into the hospital immediately so that she
could undergo surgery.
After the June 9, 2011 evidentiary hearing on the motion for
an indefinite recess,5 the court declared a mistrial, over the
defendant’s objection.
that

continuing

the

The court declared a mistrial on the basis
trial

was

“physically

impossible.”

In

connection with that determination, the court made the following
detailed observations:
[B]ased on the unusual circumstances that have taken
place in this case – I’d just like to clarify a couple of
things for the record. [The judge then gives a background
of the proceedings leading up to the motion for an
indefinite recess.]
[B]ased on the physical emergencies that were not
foreseen by anyone – unless they had a crystal ball –
that [J.T.] has an ectopic pregnancy, and that she’s
risking her life by not being hospitalized with the
ectopic pregnancy. I know people that have had those
types of pregnancies, and it is a great, grave danger to
[J.T.]. And I’m also aware of the fact that she’s in
emergency surgery today, based on what Ms. Thornton put
on the record, as well as what the State put on the
5

During the evidentiary hearing, counsel for the State
represented to the court that the State could not suggest a
duration as to the requested recess, given that the State did not
know whether there would be any complications with the surgery, did
not know whether the surgery would be laparoscopic or the more
invasive full abdominal surgery, and that the State’s research
indicated that J.T.’s hormone levels would have to be monitored
after the surgery.
5

record.
Based on the fact that we have no idea when [J.T.]
is going to convalesce and be able to travel across state
lines to get to New Orleans for her essential testimony
in this case; it seems prudent to recess this case to the
end of June.
Because there’s no way to know when [J.T.] is going
to be healthy enough [sic] travel. And it’s unfair to
the jury that’s been sworn to have this case hanging over
their heads for some indeterminate number of days in
June. It’s unfair to Mr. Wilson to have to wait for this
case to begin, not knowing what’s going to happen. And
it’s unfair to the State.
...Based on my review of the Code of Criminal
Procedure, Article 775, subsection 5, I do find that it
is physically impossible to proceed with this trial at
this time.
And I do find that, in the interest of
justice, the most fair decision I can make at this point,
is on my own motion to declare a mistrial, pursuant to
article 775.
And additionally, I’ve had the opportunity to review
case law that could be found in regards to this very
unusual set of circumstances.
And I’ll note for the
record that I’m relying on State v. Moten, 510 So.2d 55,
as well as State v. Albert, 381 So.2d 424, and State v.
Picchini, 463 So.2d 714. That’s the decision of this
court. This case is now mistried. Additionally, I’m
denying the defense’s motion to quash the bill of
information....
On July 26, 2011 counsel for Wilson moved to quash the bill of
information on the ground that any future trial would violate
Wilson’s rights under the Double Jeopardy Clauses of both the U.S.
and state constitutions.

The motion was denied.

Wilson appealed.

On November 15, 2011 the Louisiana Fourth Circuit Court of Appeal
granted Wilson’s writ application with a written decision in which
the appellate court reversed the trial court’s denial of Wilson’s
motion to quash; the intermediate appellate court ordered that
Wilson

be

released

from

custody.

6

The

State

filed

a

writ

application

to

the

state

supreme

court

that

same

day.

The

Louisiana Supreme Court stayed Wilson’s release and, on December
16, 2011, the high court reversed the intermediate court and denied
Wilson’s double jeopardy claim; the high court wrote:
Writ Granted.
The ruling of the Court of Appeal is
reversed. Considering the unusual facts in this case,
especially that the State’s prime witness had to undergo
emergency surgery and would risk her life in attempting
to come to Louisiana to testify in this case, the trial
court did not abuse its discretion in granting a
mistrial.
Therefore, the ruling of the trial court
denying the double jeopardy motion is reinstated and the
case is remanded to the trial court for further
proceedings.
On remand, the trial court rescheduled Wilson’s trial for March 20,
2012. Wilson now seeks habeas relief, in which he urges this Court
to order his release on the ground that any future trial is barred
by the Double Jeopardy Clause of the Fifth Amendment of the U.S.
Constitution.
I.
A.
Congress has vested federal courts with the power to issue
pretrial habeas corpus relief when a petitioner, who has not yet
been convicted in state court, “is in custody in violation of the
Constitution or laws or treaties of the United States.”
§ 2241(c)(3).

28 U.S.C.

Wilson’s petition for relief falls under 28 U.S.C.

§ 2241 because he is a pre-trial detainee.

See Dickerson v.

Louisiana, 816 F.2d 220, 224 (5th Cir. 1987)(citing Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484, 503-04, 93 S.Ct.

7

1123, 1133-34, 35 L.Ed.2d 443 (1973)).
B.
Unlike the Anti-Terrorism and Effective Death Penalty Act of
1996, which establishes a highly deferential standard for reviewing
state court judgments, this Court reviews pretrial judgments de
novo under Section 2241.

See Martinez v. Caldwell, 644 F.3d 238,

242 (5th Cir. 2011)(considering, as a matter of first impression,
whether de novo review or a more deferential standard of review
applies to Section 2241 petitions and holding that “the district
court did not err by conducting a de novo review of Martinez’s
state court proceedings and we apply the same standard when
reviewing his petition under § 2241.”).6
C.
The following issues are undisputed: (1) Wilson’s petition is
timely;7 and (2) Wilson has exhausted his state court remedies with
6

In Martinez, the Fifth Circuit agreed with the First,
Ninth, and Tenth Circuits that held that Section 2254(d) deference
never applies to habeas petitions brought by pretrial detainees.
Id. (“The deferential standard afforded to state court decisions,
which is specifically articulated in § 2254, is not included in the
text of § 2241.”). The Fifth Circuit affirmed the district court’s
application of a de novo review of Martinez’s state court
proceedings, but in conducting its own de novo review, the U.S.
Court of Appeals for the Fifth Circuit vacated the district court’s
order (that had granted the habeas petition) and denied the habeas
petition on the merits. Id. at 242-44.
7

Section 2241 places no time limit on petitions seeking
pre-conviction relief. See Day v. McDonough, 547 U.S. 198, 202 n.1
(2006)(“Until the AEDPA took effect in 1996, no statute of
limitations applied to habeas petitions”). While the AEDPA, as
amended, places burdens on petitioners seeking relief in the
8

respect to the Double Jeopardy issue presented to this Court.8
II.
A.
The Double Jeopardy Clause of the Fifth Amendment to the U.S.
Constitution commands in part that “nor shall any person be twice
put in jeopardy of life or limb.”

U.S. CONST. amend. V.

Most

clearly, the Double Jeopardy Clause “unequivocally prohibits a
second trial following an acquittal.”
U.S. 497, 503 (1978).

Arizona v. Washington, 434

The setting here differs; Wilson was not

acquitted.
“Because jeopardy attaches before the judgment becomes final,”
the Supreme Court has observed, “the constitutional protection also
embraces the defendant’s ‘valued right to have his trial completed
by a particular tribunal.’”

Arizona v. Washington, 434 U.S. 497,

503 (1978). But nuances enter the picture. Thus, “when a criminal
proceeding is terminated without finally resolving the merits of
the charges against the accused, retrial is not automatically

federal system, where a petitioner has not yet been convicted in
state court raises federal claims, the proper vehicle for such
claims is the pre-AEDPA habeas statute, 28 U.S.C. § 2241.
See
th
Martinez v. Caldwell, 644 F.3d 238, 242 (5 Cir. 2011).
8

While Section 2241 contains no express exhaustion
requirement, the U.S. Court of Appeals for the Fifth Circuit has
held that, as a matter of comity, pretrial habeas petitioners must
nonetheless exhaust their state court remedies prior to seeking
relief in federal court. See Dickerson v. Louisiana, 816 F.2d 220,
223-24 (5th Cir. 1987). Here, Wilson’s Double Jeopardy claim has
been presented to and decided by the Louisiana trial court, state
appellate court, and state supreme court.
9

barred.”

Id.

at

505.

The

Supreme

Court

has

realistically

explained why a rigid application of the “particular tribunal”
principle is unacceptable:
[A] criminal trial is, even in the best of circumstances,
a complicated affair to manage.... [It is] readily
apparent that a mechanical rule prohibiting retrial
whenever circumstances compel the discharge of a jury
without the defendant’s consent would be too high a price
to pay for the added assurance of personal security and
freedom from governmental harassment which such a
mechanical rule would provide.
Id. at 505 n. 16 (quoting United States v. Jorn, 400 U.S. 470, 479480 (1971)).

In forgoing an absolute rule in favor of a more

flexible standard, the Supreme Court opted for imposing a heavy
burden on the prosecutor to demonstrate “manifest necessity” for a
mistrial declared over the objection of the defendant:
Because of the variety of circumstances that may make it
necessary to discharge a jury before a trial is
concluded, and because those circumstances do not
invariably create unfairness to the accused, his valued
right to have the trial concluded by a particular
tribunal is sometimes subordinate to the public interest
in affording the prosecutor one full and fair opportunity
to present his evidence to an impartial jury. Yet in
view of the importance of the right, and the fact that it
is frustrated by any mistrial, the prosecutor must
shoulder the burden of justifying the mistrial if he is
to avoid the double jeopardy bar. His burden is a heavy
one.
The prosecutor must demonstrate “manifest
necessity” for any mistrial declared over the objection
of the defendant.
Id.

at

505

(citation

omitted).

In

applying

the

“manifest

necessity” standard, the Supreme Court cautioned that “it is
manifest that the key word ‘necessity’ cannot be interpreted
literally; instead, contrary to the teaching of Webster, we assume
10

there are degrees of necessity and we require a ‘high degree’
before concluding that a mistrial is appropriate.”
For

example,

the

Fifth

Circuit

has

found

Id. at 506.9

manifest

necessity

satisfied “where judge or juror cannot attend because of illness or
death.” See Cherry v. Director, State Bd. of Corrections, 635 F.2d
414, 419 (5th Cir. Jan. 1981), cert. denied, 454 U.S. 840, 102 S.Ct.
150, 70 L.Ed.2d 124 (1981).
In addition to the heavy burden borne by the prosecutor in
demonstrating that a mistrial was manifestly necessary, the Court
must focus on the basis for the mistrial; that is -- if the basis

9

In Arizona, the Supreme Court invoked Justice Story’s
“classic formulation” of the test as helpful to guide courts in
this task:
We think, that in all cases of this nature,
the law has invested Courts of justice with
the authority to discharge a jury from giving
any verdict, whenever, in their opinion,
taking
all
the
circumstances
into
consideration, there is a manifest necessity
for the act, or the ends of public justice
would otherwise be defeated.
They are to
exercise a sound discretion on the subject;
and it is impossible to define all the
circumstances, which would render it proper to
interfere. To be sure, the power ought to be
used with the greatest caution, under urgent
circumstances, and for very plain and obvious
causes....
But, after all, they have the
right to order the discharge; and the security
which the public have for the faithful, sound,
and conscientious exercise of this discretion,
rests, in this, as in other cases, upon the
responsibility of the Judges, under their
oaths of office.
Id. at 506 n. 18 (quoting United States v. Perez, 9 Wheat. 579,
580, 6 L.Ed. 165).
11

for the mistrial is the unavailability of critical prosecution
evidence -- the “strictest scrutiny is appropriate.”

Id. at 508;10

United States v. Fisher, 624 F.3d 713, 718-19 (5th Cir. 2010).
Strict scrutiny of mistrials based on unavailable prosecution
witnesses “requires the government to show that the district court
carefully considered whether reasonable alternatives existed and
that the court found none.” Fisher, 624 F.3d at 722 (reversing the
district

court’s

finding

of

manifest

necessity

witnesses’ absences due to scheduling conflicts).

based

on

key

Significantly,

the Supreme Court has “refuse[d] to say that the absence of
witnesses ‘can never justify discontinuance of a trial[;]’” rather,
“[e]ach case must turn on its facts.” Downum v. United States, 372
U.S. 734, 737 (1963).
Mindful of these principles, the Court, conducting a de novo
review, proceeds to address the merits of the petitioner’s Double
Jeopardy claim.
B.
It

is

this

Court’s

task

to

determine

whether

Wilson’s

prosecution in the upcoming state court trial, in which Wilson
faces charges of forcible rape, armed robbery, false impersonation

10

The Supreme Court in Arizona noted, for example: “if...a
prosecutor proceeds to trial aware that key witnesses are not
available to give testimony and a mistrial is later granted for
that reason, a second prosecution is barred.”
Id. at 508 n.24
(citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10
L.Ed.2d 100 (1963)).
12

of a police officer, and second-degree kidnapping is barred by the
Double

Jeopardy

Constitution.

Clause

of

the

Fifth

Amendment

to

the

U.S.

Wilson contends that the trial court’s sua sponte

declaration of a mistrial based on the unavailability of the
State’s witness was not manifestly necessary and, therefore, his
upcoming trial violates his Constitutional rights.

The State (on

behalf of Marlin Gusman) counters that the mistrial was manifestly
necessary due to the sudden, emergency surgery of the victim
herself, obviously an essential witness.11
Wilson seeks refuge in Downum v. United States, 372 U.S. 734
(1963).

In Downum, the jury was discharged because a prosecution

witness, whose testimony was essential only for two of the six
counts charged, had neither been served with a summons, nor had any
other arrangements been made for his presence.

Id. at 737.

In

fact, as the Supreme Court pointed out: “the prosecution allowed
the jury to be selected and sworn even though one of its key
witnesses was absent and had not been found.”

Id. at 735.

Wilson also invokes Walck v. Edmondson, 472 F.3d 1227, 1239
(10th Cir. 2007). In Walck -- the underlying criminal case involved
a traffic accident for which the driver was charged with firstdegree felony manslaughter -- the trial court declared a mistrial
over the defendant’s objection when a key government witness, who

11

There is no dispute that jeopardy attached when the jury
was sworn on June 2, 2011.
13

was eight and a half months pregnant when the trial began, went
into labor.

Id.

The Tenth Circuit affirmed the district court’s

finding that discharge of the jury was not manifestly necessary and
its order that the pending criminal charge should be dismissed with
prejudice on double jeopardy grounds.

Id. at 1232.

The Tenth

Circuit cited a number of reasons supporting its ruling, including
that (1) the absent witness’ live testimony was not absolutely
necessary because she was not the only occupant in the vehicle at
the time of the accident and the other occupant’s testimony
“considerably overlapped” with the absent witness’ testimony; (2)
that the prosecution proceeded to trial in the face of a known risk
that the witness would be unavailable;12 (3) the reason for the
mistrial, which was so that the jury could hear from all the
witnesses, was “innocuous”; and (4) the trial judge did not
sufficiently consider the viable and reasonable alternatives,
including

utilizing

the

absent

witness’

preliminary

hearing

testimony or continuing the matter for a few days to allow the
absent witness to recuperate from her C-section.

Id. at

1238-41.

The State contends that Downum is distinguishable because the
government’s witness in that case had not even been located.

Not

only had J.T. been located, the State points out here, but the
State went to great lengths beyond the routine issuance of a
12

The prosecutor was informed during voir dire that a
medical emergency regarding one of its witnesses was developing and
that her presence at trial might be problematic. Id. at 1231.
14

subpoena to insure her presence, including sending investigators to
New Mexico to escort her to New Orleans.

The Court agrees.

In

Wilson’s case, the State went to great lengths to assure J.T.’s
presence, including (as the record confirms) keeping in contact
with J.T. and her family, buying her plane tickets, paying for taxi
cabs, endeavoring to pay for luggage fees, and traveling to New
Mexico to escort her back to New Orleans.
Walck is also distinguishable because the four considerations
the Tenth Circuit relied on in determining that habeas relief was
necessary are not present here.

It cannot be credibly disputed

that, given the nature of the charges, J.T. was the sole victim of
Wilson’s alleged rape, armed robbery, and kidnapping.13

There is

nothing in the record to suggest that any other witness could
testify to the matters uniquely in J.T.’s experience; to the
contrary, as the motion for the appearance of an essential witness
confirms:
[J.T.] has never appeared in court in this matter nor has
she ever been deposed in this matter. We do not have any
sworn testimony from [J.T.] as to this incident.
Additionally, there was no video or recording of this
incident and, as stated above, there are no other
witnesses to this incident....
Unlike Walck, the prosecution here did not proceed to trial with
the “known risk” that J.T. would require emergency surgery as a
13

The nature of the underlying charges is indeed spelled
out in the motion for appearance of an essential witness, which is
part of the record.
15

result of an ectopic pregnancy; such risks were unforeseeable and,
as demonstrated by the record, required immediate action.

Judge

Herman’s reasons for granting the mistrial were sufficient to
establish manifest necessity; the court’s reasons for declaring
that proceeding to trial was “physically impossible” are amply
supported by the record, which this Court has reviewed in its
entirety.

The trial judge noted that J.T., who was an essential

witness and the only witness for most of the alleged charges
against

Wilson,

was

suddenly

hospitalized

due

to

“physical

emergencies that were not foreseen by anyone – unless they had a
crystal ball”, a medical emergency that required surgery and posed
“a great, grave danger” to J.T.’s well-being, and that J.T. would
be “risking her life by not being hospitalized.” Additionally, the
trial court clearly considered other alternatives on June 9, when
she was considering the State’s request for an “indefinite recess”;
Judge Herman noted that, under these “unusual circumstances”:
Based on the fact that we have no idea when Ms. Tucker is
going to convalesce and be able to travel across state
lines to get to New Orleans for her essential testimony
in this case; it seems prudent to recess this to the end
of June.
Because there’s no way to know when Ms. Tucker is going
to be healthy enough to travel. And it’s unfair to the
jury that’s been sworn, to have this case hanging over
their heads for some indeterminate number of days in
June.
It’s unfair to Mr. Wilson to have to wait for this case
to begin, not knowing what’s going to happen. And it’s
unfair to the State.
...
I do find, that in the interest of justice, the most fair
decision I can make at this point, is on my own motion to
16

declare a mistrial pursuant to
Criminal Procedure] article 775.

[Louisiana

Code

of

And, finally, contrary to the criticisms the Tenth Circuit had in
Walck,

the

trial

judge

here

clearly

considered

reasonable

alternatives to a mistrial, such as recessing the case to the end
of the month.14

But, given the unusual circumstances, the court

carefully determined that discharging the jury was manifestly
necessary and in the interest of justice.
The State contends that the facts of this habeas request more
closely resemble those confronting the Third Circuit in United
States ex rel. Gibson v. Ziegele, 479 F.2d 773 (3d Cir. 1973),
cert. denied, 414 U.S. 1008 (1973).

There, a key prosecution

witness suffered a sudden “intestinal grippe with acute coronary
insufficiency” in the midst of trial, rendering him unavailable to
testify for at least one-to-two weeks.

Id. at 775.

Applying

standards of manifest necessity and public justice, the Third
Circuit affirmed the district court’s grant of a mistrial over the
defendant’s objection, finding that “[the unavailable witness’]
testimony was essential and his sudden illness justified the

14

Indeed, the circumstances presented by this case are
distinguishable from United States v. Fisher, 624 F.3d 713 (5th Cir.
2010). In Fisher, the Fifth Circuit held that scheduling conflicts
for two government witnesses did not make a mistrial manifestly
necessary where the trial court failed to inquire about the
scheduling conflicts of the witnesses, or to explore ways to
reconcile those conflicts with the trial schedule, and otherwise
failed to carefully consider any reasonable alternative to a
mistrial. Id. at 721-22.
17

declaration of a mistrial.”

Id.

defendant’s writ for certiorari.

The Supreme Court denied the
Gibson v. Ziegele, 414 U.S. 1008

(1973).
While

the

case

literature

invoked

by

both

sides

is

instructive, ultimately whether the mistrial declared in this
matter was manifestly necessary turns on the unique facts of this
case.

Based on the record and the unusual circumstances presented

by this case, including that such an essential witness, the victim,
suffered an unpredictable medical emergency that threatened her
life

and

prevented

her

from

testifying

at

trial

for

an

indeterminable amount of time, the Court finds that a mistrial was
manifestly necessary.

Cf. Fisher,624 F.3d at 718-19 (“Manifest

necessity does not mean absolute necessity that a judge declare a
mistrial; we assume that there are degrees of necessity and we
require

a

high

degree

before

concluding

that

a

mistrial

is

appropriate.”).
Wilson makes much of the fact that J.T. was not present in
court on June 2, 2011, when the jury was sworn.

This fact is

minimized, however, when one considers (1) the trial court’s grant
of a recess immediately after spending the 7-8 hours selecting the
jury; (2) the record establishes that J.T. wanted to and endeavored
to attend trial in New Orleans; and (3) the great lengths the State
went to in attempting to secure J.T.’s presence.

The Court takes

this case as it finds it and, under the circumstances, finds that

18

the mistrial was due to manifest necessity and retrial is not
barred by double jeopardy.
his

trial

completed

by

“[A] defendant’s valued right to have
a

particular

tribunal

must

in

some

instances,” as here, “be subordinated to the public’s interest in
fair trials designed to end in just judgments.”

Wade v. Hunter,

336 U.S. 684 (1949).
Finally, the Court must acknowledge Wilson’s recent request
that the Court conduct an evidentiary hearing based on what he
suggests are misstatements by the State concerning whether the
State requested a mistrial and whether the State knew that J.T. was
not cooperating.

While the request for an evidentiary hearing has

been denied, it must be noted that Wilson’s characterization of the
current record is revisionist at best, and his quest to create a
new record (by developing off-the-record discussions among counsel
and the trial court) ignores the irrelevance of the facts he seeks
to “prove”.15

Wilson’s arguments generate more heat than light.

15

The Court also notes that the question of whether the
State requested a mistrial or a recess is irrelevant to the issue
before this Court.
The double jeopardy jurisprudence instead
focuses on whether a mistrial is granted over the defendant’s
objection, which it was.
In replying to Wilson’s assertions that the State has
misrepresented the record, the State insists that it stands by the
record, pointing out that the trial judge said nothing about any
representations by counsel for the State that J.T. was hesitant or
otherwise unlikely to appear.
It was at that point, says the
State, that counsel for defendant had the opportunity to make a
record, as lawyers are trained to do, regarding the alleged offthe-record representations made by counsel for the State.
The Court notes that, indeed, Wilson seems to ignore the
record regarding J.T.’s cooperation.
Indeed during Wilson’s
19

counsel’s cross-examination of Ms. Thornton, one of the District
Attorney’s investigators, Ms. Thornton testified:
I told [J.T.’s mother] I was the investigator
from
Louisiana...,
she
said,
“I
know.
Jennifer was trying to come.” And she was just
informing us that she was definitely trying to
make it to Louisiana.
...
[Upon meeting J.T.] Well, immediately – again,
she knew who we were and what it was in
reference to. And she immediately proceeded
to give me a note that she had just been
released from the doctors.
And she said,
“This is why I couldn’t make it.” ...
Q. And did [J.T.] express to you that, at any
point, she had not been willing to come to New
Orleans?
A. No, ma’am. She had given me the notation
from the doctors, and advised me that this was
why....
Q.
So did you speak with [J.T.] about the
three times that your office tried to secure
her presence?
A.
No, actually, [J.T.] had advised me of
similar circumstances of the same thing that
the mother had said – about the car trouble
and everything.... She was speaking about –
that she did try to come....
...
Q. Did you, at that point, take [J.T.] into custody?
A. She was never in custody....
Q. At that point she was prepared to go.
A. Yes, ma’am.
Q.
And she agreed that she would? [J.T.]
agreed that she would come to New Orleans?
A. Yes, ma’am.
Q. And she packed, correct?
A. Yes, ma’am.
Additionally, the trial court observed during the
evidentiary hearing on June 9, with respect to the material witness
bond:
The point of the matter is, they sent two
investigators across several states to get
there, and they’re standing in Clovis, New
Mexico, talking to this woman, who willingly
20

Because the mistrial granted by the trial court was on this record
manifestly necessary, Wilson’s upcoming retrial is not barred by
the Double Jeopardy Clause.

Accordingly, Wilson’s petition for

writ of habeas corpus is DENIED with prejudice.
New Orleans, Louisiana, March 15, 2012

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

gets in the car with them. And I don’t know
what else we need to pursue as far as the
certificate. They didn’t enact the Material
Witness Bond.
She voluntarily went with
them.... I just don’t see where else you’re
going with this. She already said they didn’t
enact the Material Witness Bond because the
woman was voluntarily going with them....
21