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Defendant Claims Double Jeopardy


This involves an application for stay pending appeal to the United States Court of Appeals for the First Circuit from an order of the United States District Court for the District of Massachusetts denying applicant’s request for a temporary restraining order. The Court of Appeals likewise denied the petition.

A New York DWI Lawyer said on July 2, 1979, the applicant, allegedly led local police on a high-speed automobile chase through Norfolk and Suffolk Counties. He was finally arrested in Suffolk County and charged with various offenses by the District Attorneys in both counties.

In Norfolk County (Quincy District Court), he was charged with driving so as to endanger, failure to stop for a police officer, failure to slow down for an intersection, and driving at an unreasonable speed. In Suffolk County (West Roxbury District Court), he was also charged with driving so as to endanger and failure to stop for a police officer, and in addition was charged with assault and battery with a motor vehicle.

With the complaints pending in the respective county District Courts, applicant moved in Quincy District Court to consolidate the cases into a single proceeding there pursuant to Rule 37 of the Massachusetts Rules of Criminal Procedure. However, a New York DWI Lawyer said since the Rule requires the written approval of both prosecuting attorneys to effectuate transfer and consolidation, his attempt failed when one of the District Attorneys apparently declined to approve the consolidation. Applicant subsequently moved for consolidation in at least one of the Superior Courts of Norfolk and Suffolk Counties, where his indictment was handed down, but the motion was similarly denied.

Finally, applicant brought his claim before a single justice of the Massachusetts Supreme Judicial Court, contending, inter alia, that failure to consolidate would put him twice in jeopardy for the same offenses, in violation of the Constitution. The justice dismissed it in a four-page memorandum and order for judgment rejecting applicant’s argument that the charges in the two counties were for a single offense. He also noted that, even if he had the power to transfer and consolidate the two trials, he would refuse to do so because, in his view, this would be an unwarranted intrusion and interference with the lower courts and prosecutors.

Subsequently, applicant brought an action pursuant to 42 U.S.C. § 1983 in Federal District Court to obtain a declaration that Massachusetts Rule of Criminal Procedure 37(b)(2), giving prosecuting attorneys a veto over transfer and consolidation, violates the Double Jeopardy and Due Process Clauses of the Constitution. He sought a temporary restraining order, a preliminary injunction, and a permanent injunction against the two county District Attorneys to enjoin their criminal prosecutions against him. The District Court entered an order denying a temporary restraining order on the basis that applicant’s prayer for relief did not fall within one of the recognized exceptions to the rule announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

The Court stated that applicant has not shown any sufficient irreparable harm for the court to consider whether there is a reasonable probability that four Justices would consider the above issue sufficiently meritorious to grant certiorari, should the merits of the case eventually come before the appellate court. A Nassau County DWI Lawyer said neither trial has begun and no jury has been empaneled. Until a jury is empaneled and sworn, or, in a bench trial, until the first witness is sworn, jeopardy does not attach.

Accordingly, the court said that the applicant’s constitutional claim is premature. It reminded the applicant, however, that once jeopardy does attach in one of the trials, applicant should be able to make his claim before the second trial judge, at which time the courts can give due consideration to his claim.

We understand how difficult it is when you cannot assert your constitutional rights. That is why our New York Criminal Lawyers from Stephen Bilkis and Associates would stand by you to ensure that justice is properly served. It has offices conveniently situated within New York Metropolitan area, including Corona, New York to reach out to your legal concerns.

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