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DRAYTON v. HAYES

No. 435, Docket 78-2116.

589 F.2d 117 (1979)

Rudolph DRAYTON, Petitioner-Appellant, v. Hon. John F. HAYES, a Justice of the Supreme Court of the State of New York, County of Kings, the Supreme Court of the State of New York, County of Kings, and Hon. Eugene Gold, District Attorney, County of Kings, Respondents-Appellees.

United States Court of Appeals, Second Circuit.

Decided January 2, 1979.

Attorney(s) appearing for the Case

Paula A. Sweeney, Sp. Litigation Unit, The Legal Aid Society, New York City (Leon B. Polsky, New York City, of counsel), for petitioner-appellant.

Barry R. Fertel, Deputy Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellee Hayes.

Joel M. Goldberg, Asst. Dist. Atty., Kings County, Brooklyn, N. Y. (Eugene Gold, Dist. Atty., Brooklyn, N. Y., of counsel), for respondent-appellee Gold.

Before KAUFMAN, Chief Judge, and SMITH and VAN GRAAFEILAND, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

In this worrisome case, a state trial judge's clumsy effort at comedy, which took the form of a practical joke played on defense counsel at a crucial stage in a criminal proceeding, led the attorney to move for a mistrial. The motion was granted. The defendant now claims that he cannot be retried because the judge's outlandish conduct deprived him of the opportunity of going to the jury. Regrettably, we are required to hold that the...

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