IN THE SUPREME COURT OF THE
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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APPLICATION FOR SUPERVISORY WRITS TO REVIEW ORDER
DENYING MOTION TO BAR PROSECUTION UNDER DOUBLE JEOPARDY CLAUSE

COMES NOW, JOHN CLIENT, by counsel, and moves this Court to bar his pending retrial, as to either guilt or penalty or both, on grounds of double jeopardy, or to issue a writ of habeas corpus ordering the State to cease this illegal prosecution. Mr. Client's motion is predicated on the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, as well as Article 1, Section 15, of the Louisiana Constitution. In support of his application, Mr. CLIENT states as follows:
Mr. CLIENT seeks supervisory writs to review the Order of the District Court of PEINE DE MORT Parish denying his motion to bar his up-coming trial under the double jeopardy clauses of the Federal and State Constitutions. District Judge Death denied the motion (See Exhibit A, State v. CLIENT, Order of August 24, 1994), and the Court of Appeals denied supervisory writs. (See Exhibit B) Judge Death did not stay further proceedings pending this application, and the second, unconstitutional trial is currently set for October 8, 1994.
Only through immediate review can Mr. CLIENT be protected from the substantial and irreparable injury of a second trial barred by the prohibition against double jeopardy. See Abney v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977).
A. INTRODUCTION

"Double jeopardy . . . is the right to be free from a second prosecution, not merely a second punishment. . . ." Fain v. Duff, 488 F.2d 218, 224 (5th Cir. 1973) (emphasis in original); accord United States v. Sneed, 705 F.2d 745, 747 (5th Cir. 1983). A claim predicated under the double jeopardy clause "contest[s] the very authority of the Government to hale him into court to face trial on the charge against him." Abney v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977).
While it has long been clear that the double jeopardy clause may bar retrial on the issue of culpability, it is now clear that the same principles apply to the penalty phase of a capital trial: Once a sentence of life imprisonment has been imposed there may be no "second bite at the apple" to try to secure a death sentence. See Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981); Dycus v. State, 440 So. 2d 246 (Miss. 1983); Odom v. State, 483 So. 2d 343 (Miss. 1986); Ex Parte Bell, 511 So. 2d 519 (Ala. Crim. App. 1987).
Applying these principles to the pending reprosecution of Mr. CLIENT, it is apparent that he can be neither prosecuted on other charges arising out of the same incident, nor can the state seek to impose a death sentence again in this case.
B. THE FACTS.

Mr. CLIENT, has been previously tried and convicted of capital murder predicated on acts taking place in PEINE DE MORT Parish. Four persons were killed in the course of the crime charged, and the State indicted Mr. CLIENT separately for each homicide. The State did this so that it could have four bites at the execution apple: If at first the State did not succeed, they could try, try and try again. The long and the short of it is that the State is now hoist on the petard of this unconstitutional strategy.
A review of the decisions taken by the prosecution in this case is critical to an understanding of how the prosecution has brought themselves into their current procedural logjam. The state initially sought and secured four separate indictments. The first charged him with the First Degree Murder (in the course of arson), Sexual Battery and Kidnapping of Cynthia Roberts. See State v. John CLIENT, No. 5106 (PEINE DE MORT Parish March 12, 1994). The second charged him with the First Degree Murder (in the course of arson), Robbery and Kidnapping of Edward Roberts, and Burglary of Mr. Roberts' dwelling. See State v. John CLIENT, No. 5107 (PEINE DE MORT Parish March 12, 1994). The third charged him with the First Degree Murder (in the course of arson) and Kidnapping of William Roberts. See State v. John CLIENT, No. 5109 (PEINE DE MORT Parish March 12, 1994). Finally, the fourth indictment charged Mr. CLIENT with the First Degree Murder (in the course of arson) and robbery of Lily Roberts. See State v. John CLIENT, No. 5111 (PEINE DE MORT Parish March 12, 1994). (See Exhibit C, attaching all indictments)
Nothing prohibited all the crimes from being charged in the same indictment. It was simply the prosecution's decision to give themselves four separate shots at conviction, and four separate shots at a death sentence. Surely, the reasoning went, the defense would be sufficiently worn down, and the odds multiplied by four rolls of the dice, to assure Mr. CLIENT's execution. This is, however, precisely the kind of strategy which the Double Jeopardy Clause was designed to prohibit.
The prosecution chose first to pursue the indictment charging the capital murder of Cynthia Roberts. The reasoning underlying this decision is fairly obvious: The tragedy of young Cynthia Roberts' death is enhanced by the emotional impact of the evidence that she may have been sexually assaulted, followed by her three-time shooting, and the evidence that she may have died of asphyxiation.
This case was set for trial on June 18, 1994. The case went to trial, and Mr. CLIENT was convicted of First Degree Murder, Sexual Battery and Kidnapping. At the penalty phase, the prosecution failed to prove their case for the death penalty, and the jury did not impose it. Therefore, as required by law, the trial court imposed a sentence of life imprisonment.
Having failed in their first effort to obtain a death sentence, the prosecution then sought to nolle prosequi the three remaining indictments. Orders granting the motion as to each indictment were entered on July 6, 1994. In the meantime, two days after the initial life sentence, the prosecution had sought another indictment charging three counts of First Degree Murder. See State v. John CLIENT, No. 5114 (PEINE DE MORT Parish June 27, 1994). This charged Mr. CLIENT with the First Degree Murders of Edward Roberts (in the course of an armed robbery), of William Roberts (in the course of a kidnapping), and Lily Roberts (in the course of a burglary).
This case has now been set for trial on October 8, 1994, and the State apparently intends to seek the death penalty anew. The planned proceedings fall squarely within the proscription of the Double Jeopardy Clause.
B. THE STATE IS BARRED BY PRINCIPLES OF DOUBLE JEOPARDY FROM REPROSECUTING JOHN CLIENT, FOR CAPITAL MURDER ARISING OUT OF THIS SERIES OF EVENTS.

Mr. CLIENT has already been convicted of kidnapping, arising out of this event. For purposes of double jeopardy, it makes no difference that he was convicted of the kidnapping of Cynthia Roberts rather than William Roberts. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the accused was charged in six separate indictments with the armed robbery of six individuals at a card game. The Supreme Court held that the first prosecution barred any attempt to bring the other five cases because of the doctrine of collateral estoppel "embodied in the Fifth Amendment guarantee against double jeopardy," and concluded:
For whatever else that constitutional guarantee may embrace, North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 2076, it surely protects a man who has been acquitted from having to 'run the gauntlet' a second time. Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 225.

Ashe v. Swenson, 90 S. Ct. at 1195. Therefore, Count II of the new indictment is explicitly barred.
Similar defects taint Counts I and III. Count I charges armed robbery, while Count III charges burglary--which is defined as breaking into the dwelling with intent to steal goods from within. Obviously, these two crimes are not distinct, within the meaning of double jeopardy precedent. The State should not be allowed to take a single criminal transaction and divide it up into several trials, to hone down the evidentiary presentation, and enhance the chances of conviction and a sentence of death:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. . . .

Green v. United States, 355 U.S. 184, 187 (1957). The Clause "prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction." Tibbs v. Florida, 457 U.S. 31, 41 (1982). The same is true of multiple prosecutions even after conviction. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). The same is true where the successive efforts are aimed at securing a death sentence. Bullington v. Missouri, 451 U.S. 430 (1981). In short, the reprosecution of Mr. CLIENT is barred by the Double Jeopardy Clause.
D. AT THE VERY LEAST, THE STATE IS BARRED BY DOUBLE JEOPARDY FROM SEEKING TO IMPOSE THE DEATH PENALTY FOR ANY CRIME CONNECTED WITH THIS SERIES OF EVENTS.

Turning to the State's desire to continue to pursue the death penalty in these cases, it is clear that effort is also barred. That this is a distinct question cannot be gainsaid. See Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981); Dycus v. State, 440 So. 2d 246 (Miss. 1983); Odom v. State, 483 So. 2d 343 (Miss. 1986); Ex Parte Bell, 511 So. 2d 519 (Ala. Cr. App. 1987).
As was apparent from the first trial in this matter, the jury was aware of all the four alleged murders, and did not feel that the crimes deserved the death penalty. Indeed, the prosecution chose to pursue the sexual battery, kidnapping and murder of little Cynthia Roberts first because, if there was any distinction between the cases, this emotional crime was the one most likely to tip the scales towards death.
In reviewing the verdict from the first trial, this Court should look for the general intent of the sentencer:
Where a previous judgment . . . was based on a general verdict, as is usually the case, this approach requires a court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict on an issue other than that which the defendant seeks to foreclose from consideration.

Griffin v. State, 545 So. 2d 729, 734 (Miss. 1989) (quoting Ashe v. Swenson, 397 U.S. at 444).
Here, the evidence presented to the jury at the first trial was effectively identical to the evidence that would be presented were the cases tried together. The prosecution failed to prove that MR. CLIENT deserved to die. It is now collaterally estopped from trying to prove it anew. As stated in Ashe v. Swenson,
"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when a issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

Ashe, 397 U.S. at 443, 90 S. Ct. at 1194. Thus, as a jury has already passed on the issue of whether Mr. CLIENT should be put to death or, instead, serve a sentence of life imprisonment for the crime that took place in PEINE DE MORT Parish, the State is collaterally estopped from trying that issue over and possibly over again.
E. THE STATE BEARS THE BURDEN OF PROVING THAT THE DOUBLE JEOPARDY CLAUSE DOES NOT BAR RETRIAL ON THESE MATTERS.

When the accused places the question of double jeopardy in issue, "the burden shifts to the government. . . ." United States v. Ragins, 840 F.2d 1184, 1192 (4th Cir. 1988) (citing cases). At this point, in order to show that reprosecution is permitted, the State bears "the burden of pro[of] by a preponderance of the evidence. . . ." United States v. Futch, 637 F.2d 386, 388 (5th Cir. 1981); accord United States v. Stricklin, 591 F.2d 1112, 1118 (5th Cir. 1979), cert. denied, 444 U.S. 963, 100 S. Ct. 449, 62 L. Ed. 2d 375 (1979); United States v. Mallah, 503 F.2d 971, 985-86 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S. Ct. 1425, 43 L. Ed. 2d 671 (1975); United States v. Inmon, 568 F.2d 326, 329-30 (3d Cir. 1977). In light of the constitutional implications of the double jeopardy clause, this "burden rests heavily upon the Government. . . ." United States v. Pinto, 486 F.Supp. 578, 580 (E.D. Pa. 1980).
As this Court considers the elements of the double jeopardy bar discussed above, it should be borne in mind that the prosecution bears the burden of proof.
F. SINCE THE DOUBLE JEOPARDY CLAUSE PROTECTS JOHN CLIENT FROM BEING SUBJECTED TO ANY PROCEEDINGS ON A RETRIAL, THE SUPREME COURT OF THE UNITED STATES HAS HELD THAT AUTOMATIC REVIEW MUST BE ALLOWED PRE-TRIAL IF A PLEA IN BAR IS OVERRULED.

It is well-settled that the right to freedom from double jeopardy protects the accused against multiple prosecutions, as well as multiple convictions and punishments. The United States Supreme Court explained this principle in Abney v. United States, 431 U.S. 651 (1977):
[T]his Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments . . . it assures an individual that . . . he will not be forced . . . to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction.

Id. at 600-61; see also Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 303 (1984); Fain v. Duff, 488 F.2d 218, 224 (5th Cir. 1973). The harm created by successive trials heightened when the accused faces the possibility of being executed at the end of the trial. See Bullington v. Missouri, 451 U.S. 430, 445 (1981).
The double jeopardy clause therefore includes the right to final disposition of any plea in bar before any other litigation in the trial court, and before any trial proceedings. This was made explicitly clear in Abney:
[T]he protections [of the Double Jeopardy Clause] would be lost if the accused were forced to "run the gauntlet" a second time before an appeal could be taken: even if the accused is acquitted, or if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.

Id. at 662 (emphasis supplied in part); accord United States v. Hollywood Motor Car Co. Inc., 458 U.S. 263, 266 (1982); United States v. Alessi, 536 F.2d 978, 980 (2d Cir. 1976); United States v. McQuilken, 673 F.2d 681, 685 (3d Cir. 1982); United States v. Jelsma, 630 F.2d 778, 779 (10th Cir. 1980).
An accused who has raised a double jeopardy "claim would be irreparably harmed if the trial court were allowed to proceed to trial prior to the appellate court's disposition of the claim. . . ." United States v. Claiborne, 727 F.2d 842, 851 (9th Cir. 1984). Indeed, so important is this constitutional right that "federal courts would have the power to enjoin state criminal proceedings that would constitute double jeopardy. . . ." Davis v. Herring, 800 F.2d 513, 515-16 (5th Cir. 1986) (emphasis supplied); accord Allen v. Johnstone, 575 F. Supp. 935, 938 (S.D. Iowa 1983) ("appropriate . . . relief is to stay temporarily the state court criminal trial to give [the defendant] the opportunity to present the issue to the [appellate court]").
Therefore, it is clear that any proceedings aimed at a second trial in this case should be stayed pending resolution of the weighty issues raised in this application for supervisory writs. The vindication of Mr. CLIENT's right to be free from multiple prosecutions will be hollow indeed if further hearings, and even a second trial, were allowed to take place while this Court decides the question on the merits. A stay must be granted to preserve Mr. CLIENT's right to be free from double jeopardy.
Mr. CLIENT therefore prays this Court to grant his application for supervisory writs, to stay further proceedings in the trial court pending review, and, upon such review, to bar the State from retrying Mr. CLIENT on these capital charges.
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