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Ex Parte Zimlich6/10/1999
REL06101999Zimlich
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama v. Wayne Zimlich)
The petitioner, Wayne Zimlich, filed this petition for a writ of mandamus requesting that we direct the Honorable Robert Kendall, circuit Judge for the Thirteenth Judicial Circuit, to dismiss the indictment against him. In June 1998, the Grand Jury for Mobile County indicted Zimlich for perjury. Zimlich moved to dismiss the indictment, alleging that the indictment was filed outside the statutory limitations period and/or that it was void because it failed to allege that the false statements he allegedly made were material, an element of first-degree perjury. In December 1998, Judge Galanos dismissed the indictment. In January 1999, Zimlich was again indicted, this time for perjury in the first degree. This indictment charged that the false statements allegedly made by Zimlich were material, thus elevating the offense to a felony under ยง 13A-10-101, Ala. Code 1975. Zimlich moved to dismiss the second indictment, arguing that it was filed outside the statutory limitations period because, he said, the first indictment did not toll the limitations period. Judge Galanos first denied the motion, later set aside his denial, and then recused himself from the case. Zimlich's case was subsequently reassigned to Judge Kendall, who denied the motion to dismiss the second indictment. This mandamus petition followed.
This complicated case arose after a female patient died during a surgical procedure in 1993. Her family filed a medical malpractice action, and in 1995 the case was tried in the Circuit Court for Mobile County. Zimlich, the nurse anesthetist present during the operation, testified at the trial. Zimlich was later indicted for perjury after he admitted that his testimony was false. Zimlich states in the petition to this Court that he "became a whistle-blower in that he admitted that he was coerced into giving false testimony by the insurance company, employees of the insurance company, his doctor-employer, and the defense attorney for the insurance company. ..."
The State argues that this case is not properly before this Court because, it says, Zimlich has another adequate remedy by which to seek review of this claim, i.e., direct appeal. Zimlich argues that a direct appeal is not an adequate remedy because he will "suffer irreparable harm and injury in that a felony conviction will deprive him of his license to practice his profession and thereby deprive him of his livelihood immediately upon a conviction."
The Alabama Supreme Court has refused to review by way of mandamus petition, a claim of a double jeopardy violation --a similar defense claim to that raised here -- unless the claim fit within one of the recognized exceptions or "the rights of the parties [could not] be adequately protected by appellate review of a final judgment." Ex parte Spears, 621 So.2d 1255, 1258 (Ala. 1995). However, in 1995, the Supreme Court revisited this issue, and in Ex parte Ziglar, 669 So.2d 133 (Ala. 1995), held:
"We are satisfied that a criminal defendant with a double jeopardy defense should not be foreclosed from pretrial correction of a trial Judge's erroneous denial of a plea of former jeopardy. Therefore, the appellate courts of this State will review double jeopardy claims properly presented by petitions for the writ of mandamus. Rule 21, Ala.R.App.P. This procedure will adequately protect the interest of a defendant, as emphasized in Abney [v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)], so as to avoid the personal strain, public embarrassment, and expense of a subsequent criminal trial." 669 So.2d at 135.
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