Ex Parte Nice

It was based largely on the fact that the Court's strong feelings that the testimony which convicted this defendant, largely the testimony of Ben Fowkes (sic), wasPage 876dubious in my mind; it was not of sufficient weight, and especially the fact that he did not name the individual that night that he was robbed, that he could still talk. Had he mentioned him that night, it might have been an entirely different thing; but, there was some two weeks later before he actually gave the fellow's full name. And that is the real basis. And I just have strong doubts about that case.

. . . I feel it is the Court's responsibility, when it feels that an injustice has probably been done, as may have been done here, that it is the Court's responsibility to set aside a verdict. And this is probably the first time I have ever done it, but I felt so strongly about this case, and considered it for weeks and weeks before this hearing. And I felt that for the ends of justice [to] be met, that a new trial should be given.

Writ Granted. In the interest of expediting a decision in this cause, the provisions of Rule 39 (h) and (i), are hereby suspended under the provisions of Rule 2 (b), and the cause is ordered submitted when the Court of Criminal Appeals forwards to this Court the record, one copy of the briefs, and appendices, if any, in this cause. No further briefs will be required, nor will oral argument be permitted.

Upon consideration of the Petition, brief of petitioner, and the State's brief in opposition thereto, the judgment of the Court of Criminal Appeals granting the State of Alabama's petition for mandamus is reversed and this cause is remanded for an order consistent herewith. Mandamus will not lie to compel the trial court's exercise of discretion in a particular manner, nor to review the lower court's proceedings for error, nor as a substitute for appeal.State v. Cannon,369 So.2d 32(Ala. 1978).

(c) The court of criminal appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.

(d) The court of criminal appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Said court shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction; . . .

Notwithstanding the restricted right of the State in criminal cases to prosecute an appeal (sections 3238, 3239, Code of 1928), occasions have arisen in which the action of the trial judge as to certain rulings in criminal cases have been reviewed by mandamus proceedings.Ex parte State ex rel. AttorneyGeneral,142 Ala. 87,38 So. 835, 110 Am.St.Rep. 20;Ex parte State ex rel.,115 Ala. 123,22 So. 115;State ex rel. Attorney General v. Brewer,19 Ala. App. 330,97 So. 777;Ex parte Brewer,210 Ala. 229,97 So. 778.

One of the oldest established rules of Anglo-American jurisprudence is that the jury is the arbiter of credibility of witnesses. As the Supreme Court stated inHoffa v. United States,385 U.S. 293,311,87 S.Ct. 408,418,17 L.Ed.2d 374,387(1966),

The established safeguards of an Anglo-American legal system leave the veracity of a witness to be detected by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.

The trial judge cannot arrogate to himself this power of the jury simply becausePage 879he finds a witness unbelievable.See, United Statesv. Weinstein, supra[452 F.2d 704], at 713 [2d Cir. 1971]. Under our system of jurisprudence a properly instructed jury of citizens decides whether witnesses are credible. The trial judge is deemed to have no special expertise in determining who speaks the truth.Glasser v. United States, supra[315 U.S. 60,62 S.Ct. 457,86 L.Ed. 680];United States v. Parr,516 F.2d 458,464(5th Cir. 1975);United States v.Davis,487 F.2d 112,126(5th Cir. 1973);Williamsonv. United States,365 F.2d 12(5th Cir. 1965);Puentes v. United States,319 F.2d 581(5th Cir. 1963).

[t]he jury is the arbiter of the credibility of witnesses, and that for "testimony to be considered incredible (as a matter of law) it must be unbelievable on its face," i.e., testimony as to "facts that (the witness) physically could not have possibly observed or events that could not have occurred under the laws of nature.

We will not pause to determine whether, if Judge Dooling entered his proposed order, the government would be able to appeal his determination under18 U.S.C. § 3731(1964). Even if it were clear that the government could not appeal the government's argument for mandamus would not be made more compelling, for mandamus may not do service for an appeal which has been barred by the Congress.Will v. United States,389 U.S. 90,97,88 S.Ct. 269[274],19 L.Ed.2d 305(1967). We think it equally true that the fact that the government may have no right of appeal does not act as a conclusive bar to the issuance of mandamus in its favor. Certainly the restrictions placed upon the government's right to appeal do reflect important policy judgments by Congress, at their core protecting the right against double jeopardy, which must not be undermined by casual resort to mandamus. But circumstances can arise which present a compelling need for the issuance of mandamus in order to further important countervailing interests. Here we find this need in our responsibility for preventing gross disruption in the administration of criminal justice, and we act pursuant to our supervisory power over the district courts.Cf.Page 880United States v. Bryan,393 F.2d 90(2d Cir. 1968). The Supreme Court, in affirming the issuance of a writ of mandamus by the Court of Appeals for the Seventh Circuit, expressed in the clearest terms its support for the power we now exercise:

We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.La Buy v. Howes Leather Co.,352 U.S. 249,259-260,77 S.Ct. 309,315,1 L.Ed.2d 290(1957).

We considered inBurksthe question "whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict."437 U.S. at 2,98 S.Ct., at 2142. We held that a reversal "due to a failure of proof at trial," where the State received a "fair opportunity to offer whatever proof it could assemble," bars retrial on the same charge.Id., at 16,98 S.Ct., at 2149. We also held that it makes "no difference that thereviewingcourt, rather than the trial court, determined the evidence to be insufficient."Id., at 11,98 S.Ct., at 2147(emphasis in original), or that "a defendant has sought a new trial as one of his remedies, or even as the sole remedy."Id., at 17, 98 S.Ct., at 2150.

Our decision inBurkscontrols this case, for it is clear that petitioner moved for a new trial on the ground that the evidence was legally insufficient to support the verdict and that the trial judge granted petitioner's motion on that ground. In the hearing on the motion, petitioner's counsel argued to the trial judge that "the verdict of the jury is contrary to the law and the evidence." After reviewing the evidence put to the jurors, the trial judge agreed with petitioner "that there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict"; and he commented, "[H]ow they concluded that this defendant committed the act from that evidence when no weapon was produced, no proof of anyone who saw a blow struck, is beyond the Court's comprehension." The Louisiana Supreme Court recognized that the trial judge granted the new trial on the ground that the evidence was legally insufficient. The Supreme Court described the trial judge's decision in these words: "[T]he trial judge herein ordered a new trial pursuant to LSA-C.Cr.P. art. 851 (1) solely for lack ofsufficient evidenceto sustain the jury's verdict. . . ."[State v.Hudson], 373 So.2d [1294] at 1298 [La. 1979]. (emphasis in original). This is precisely the circumstance in whichBurksprecludes retrials.437 U.S., at 18,98 S.Ct., at 2150. SeeGreene v. Massey,437 U.S. 19,24-26,98 S.Ct., 2151,2154-55,57 L.Ed.2d 15(1978);id., at 27,98 S.Ct., at 2155(POWELL, J., concurring). Nothing inBurkssuggests, as the Louisiana Supreme Court seemed to believe, that double jeopardy protections are violated only when the prosecution has adduced no evidence at all of the crime or an element thereof.

The State contends thatBurksdoes not control this case. As the State reads the record, the trial judge granted a new trial only because he entertained personal doubts about the verdict. According to the State, the trial judge decided that he, as a "13th juror," would not have found petitioner guilty and he therefore granted a new trial even though the evidence was not insufficient as a matter of law to support the verdict. The State therefore reasons thatBurksdoes not preclude a new trial in such a case, for the new trial was not granted "due to a failure of proof at trial."437 U.S., at 16,98S.Ct., at 2149.

This is not such a case, as the opinion of the Louisiana Supreme Court and the statements of the trial judge make clear. The trial judge granted the new trial because the State had failed to prove its case as a matter of law, not merely because he, as a "13th juror," would have decided it differently from the other 12 jurors. Accordingly, there are no significant facts which distinguish this case fromBurks, and the Double Jeopardy Clause barred the State from prosecuting petitioner a second time.