The Facts:
Allegedly, on 2 July 1979, the applicant 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.
A New York Criminal Lawyer said pursuant to Rule 37 of the Massachusetts Rules of Criminal Procedure, with the complaints pending in the respective county District Courts, the applicant moved in Quincy District Court to consolidate the cases into a single proceeding there. However, the Rule requires the written approval of both prosecuting attorneys to effectuate the transfer and consolidation. One of the District Attorneys apparently declined to approve the consolidation. Subsequently, the applicant 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.
Thereafter, the applicant brought his claim before a single justice of the Massachusetts Supreme Judicial Court, contending, inter alia, that the failure to consolidate would put him twice in jeopardy for the same offenses, in violation of the Constitution. The application was also denied; rejecting applicant’s argument that the charges in the two counties were for a single offense; that, even if the justice had the power to transfer and consolidate the two trials, he would refuse to do so because, in his view, it would be an unwarranted intrusion and interference with the lower courts and prosecutors.
On 1 August 1980, the applicant brought an action pursuant to 42 U.S.C. § 1983 in the 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. A Staten Island Criminal Lawyer said 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.
On 12 August 1980, the District Court denied the request for a temporary restraining order on the basis that the applicant’s prayer for relief did not fall within one of the recognized exceptions to the rule held in the case of Younger v. Harris.
Consequently, a New York Sex Crimes Lawyer said the applicant moved for a stay of the District Court order in the Court of Appeals for the First Circuit pending appeal. On 13 August 1980, the Court of Appeals denied the motion, assuming without deciding that the District Court’s order was in reality an order denying a preliminary injunction.
The applicant now applies before a Circuit Justice for a stay pending resolution of his appeal to the Court of Appeals for the First Circuit while the cases against him appear to be proceeding simultaneously in Suffolk Superior and Quincy District Courts. He was scheduled for status hearings in the two courts on August 14, or August 14 and 15, 1980; that both cases have been continued until 12 September 1980.
The Ruling:
The court finds that the applicant has a potentially substantial double jeopardy claim, if not on the face of the Massachusetts Rule or as applied to him, then simply on the possibility the State may conduct simultaneous prosecutions against him in two separate courts on the same offenses. Whether the Younger doctrine would bar federal intervention in a continuing state criminal proceeding in this simultaneous prosecution context or, for that matter, in a case where the claim of double jeopardy is made after jeopardy has attached in the first proceeding, seems to be an open question. The principles in the case of Abney v. United States, and Harris v. Washington, suggest that an exception to Younger for double jeopardy claims may be appropriate, at least when all state remedies have been exhausted. However, the court does not find that the applicant has alleged 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 them. Here, no trial has yet begun and no jury has yet been empaneled. Until a jury has been empaneled and sworn, or until the first witness is sworn in a bench trial, jeopardy does not attach.
Accordingly, the applicant’s constitutional claim is premature. Nonetheless, once jeopardy does attach in one of the trials, the 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. Thus, the application for a stay pending appeal is denied.
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