It has long been clear in Kansas that "habeas corpus is an appropriate vehicle for challenging a trial court's pretrial denial of a claim of double jeopardy." In re Berkowitz, 3 Kan. App. 2d 726 (730 (1979). Thus, if the trial court denies the defendant's pretrial double-jeopardy claim, it is appropriate to file an original habeas action in the Kansas appellate courts, which will stay the prosecution while the double-jeopardy issue is litigated. But what happens if the Kansas appellate courts also deny the claim? Last week, the Tenth Circuit held that once a defendant?s pretrial state remedies for a federal double-jeopardy claim are exhausted, he or she may seek relief in federal court under 28 U.S.C. 2241. In Walck, the Court emphasized that the standard of review in 2241 actions (unlike in 2254 postconviction actions) is de novo, and thus the state court's resolution of the legal question will be given no deference. On the merits of the case before it, the Court concluded that the mistrial declared in the defendant's first trial was not based on a manifest necessity, where the state had proceeded to trial in the face of a known risk that one of its witnesses would be temporarily unavailable, and the court did not sufficiently consider alternatives to a mistrial (such as admitting the witness's preliminary hearing testimony). The Court rejected the state's argument that the absence of prosecutorial or judicial misconduct was fatal to the defendant's claim, and concluded that a retrial would violate the defendant's double-jeopardy rights.
I'd never thought about trying an interlocutory-type 2241 motion in federal court before, but I guess I'd better start. Thanks, Paige.