(D.C. Civil Action No. 71-1639) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before ADAMS, ROSENN and HUNTER, Circuit Judges
This is an appeal from the district court's denial of a petition for a writ of habeas corpus.*fn1
Appellant was tried to a jury and convicted in January, 1965 for participating in an armed robbery of a home. His conviction was reversed by the Pennsylvania Superior Court on the ground that he had been denied the assistance of counsel when the trial judge forbade him to discuss his testimony with his attorney. Commonwealth v. Peetros, 206 Pa. Super. 503 (1965).
Appellant's second trial began in September, 1969. Nearing the conclusion of the trial, the trial judge arranged that appellant, who was free on bail at the time, should go to the scene of the alleged crime by himself and there meet the court, counsel, and jury for a view of the alleged crime scene. The night before the view was to be taken, accounts of appellant's prior conviction and sentence and the grant of the new trial appeared in local newspapers.
The next morning, the judge, instead of proceeding to the scene of the alleged crime as planned, convened court and questioned the jurors individually to determine whether they had read the newspaper articles. Appellant was absent, since he was awaiting the arrival of court, counsel, and jury near the scene of the alleged crime. Counsel for the appellant and the Commonwealth both agreed to pursue the matter despite appellant's absence.
The trial judge interrogated four jurors individually and then inquired of counsel whether there were any motions. Defense counsel moved for a mistrial. Over the Commonwealth's objection, the judge declared a mistrial.
After his third trial, appellant was convicted and sentenced to imprisonment for a term of not less than 15 or more than 30 years. Having exhausted his state remedies, appellant filed a petition for a writ of habeas corpus in the district court, asserting that the third trial violated his Fifth Amendment right not to be "twice put in jeopardy of life or limb." The district court in an exhaustive memorandum and order dated April 28, 1972, denied the petition, after a careful consideration of the relevant double jeopardy cases.
Although a defendant normally has a right to be present during a criminal trial, the situation presented here did not involve a confrontation of witnesses but only a technical judgment for counsel. Moreover, it is clear that the trial judge would have ordered a mistrial without motion of defense counsel because of the regrettable newspaper developments.
We affirm the denial of the petition for a writ of habeas corpus based on the reasoning of the ...