U.S. Judges Asked to OK New Trial for Driver : Crime: Diane Mannes’ lawyer argues that someone once charged with murder would be ‘twice put in jeopardy’ by another proceeding.

Two years after a Ventura County judge said there was insufficient evidence to convict a drunk driver of murder, a panel of federal judges met this week to consider what the judge meant.

The case of Diane Mannes, 37, of Somis has been heard in half a dozen courtrooms since Ventura County Superior Court Judge Robert J. Soares dismissed murder charges against her on Nov. 30, 1989. On Tuesday, it reached the airy, Spanish-style former hotel where the U.S. 9th Circuit Court of Appeals meets in Pasadena.

For nearly one hour, a three-judge panel pelted questions at Ventura County Deputy Dist. Atty. Michael D. Schwartz and Deputy Public Defender Neil B. Quinn. When it was over, neither side was willing to predict how the court will rule.

“I think it went well,” Schwartz said.

But he was asking the court to overturn a federal judge’s ruling that Mannes is protected by a basic constitutional doctrine: that no one should be “twice put in jeopardy” for the same offense.

And two of the judges hearing the appeal--Stephen Reinhardt and Robert Boochever--are considered to be among the most liberal on the 9th Circuit. The third, James R. Browning, has a moderate-to-liberal reputation.

Whatever the court decides, it will probably be the final word, attorneys on both sides said. The 9th Circuit is the court of last resort on most federal matters in the western United States, and few of its cases are accepted by the U.S. Supreme Court for review.

Mannes was charged with second-degree murder after she lost control of her Ford Bronco and plowed into five young men on March 31, 1989, killing three of them. The district attorney’s office chose not to offer the trial jury the option of finding her guilty of the lesser charge of manslaughter.

On Nov. 17, 1989, precluded from a manslaughter verdict, the jury deadlocked on murder charges, but convicted Mannes of drunk driving and causing great bodily injury to the two people who survived.

Rather than set a new trial as requested by prosecutors, Soares dismissed the murder charges, saying there was insufficient evidence of the malice needed to sustain them. He announced the decision in an unusual written ruling “so that, right or wrong, I will not be misunderstood or misquoted.”

But since then, appeal courts have differed on what Soares meant, and whether it even matters.

State courts, including the California Supreme Court, upheld the district attorney’s position that Soares’ dismissal did not prevent the refiling of a murder case. Soares himself wrote: “I am aware that our laws provide that this dismissal does not prevent the refiling of these murder charges--and a new trial.”

But the U.S. District Court in Los Angeles ruled that no matter what Soares believed might happen, his finding that the district attorney had presented insufficient evidence at the trial constituted an acquittal.

On Tuesday, all three judges pressed Schwartz to explain how they could reach a different conclusion.

“What did he mean?” Reinhardt asked. “What does it mean other than the evidence is insufficient?”

Schwartz replied that Soares was not ruling “as a matter of law,” but as a 13th juror might have decided the case. That did not seem to impress Boochever.

“He said there is insufficient evidence in this case,” the judge said. “That’s not ambiguous as far as I’m concerned. . . . I don’t see what else he could say unless you think he needs to say the magic words ‘insufficient as a matter of law.’ ”

Then what did Soares mean, Schwartz asked, when he said prosecutors could refile the charges?

“He may have thought that. . . but was wrong,” Reinhardt said.

Schwartz brought up another argument raised in his 28-page appeal: that under California law, Soares did not have the authority to acquit a defendant after a hung jury.

That doesn’t matter, said Browning, a 30-year veteran of the court and formerly its presiding judge. If Mannes has once been placed in jeopardy under federal law, Browning said, “it doesn’t make a difference what the California law is.”

When his turn came, Public Defender Quinn was asked to explain why Soares, if he thought the evidence was insufficient, had twice denied defense motions during the trial seeking to throw out the case.

“I think there’s a natural tendency for a judge to let the D.A. have his day in court,” Quinn said. “And he could have changed his mind.”

Watching as the attorneys fielded questions was Linda Oxenreider of Camarillo, the mother of Joshua Oxenreider, who was killed in the crash along with Jacob Boyd and Scott Mullins. Her early-morning drive to Pasadena had taken her over the Camarillo Grade, past the three white crosses that mark the spot where her son was fatally injured.

“I wonder if it will ever end,” said Oxenreider, who has attended countless court proceedings since her son’s death. Deputy Dist. Atty. Donald C. Glynn, who prosecuted the trial and who attended Tuesday’s hearing, said it could be six months before the appeal court announces its decision.

For Mannes, too, the case seems nowhere near resolution.

She has been paroled from state prison after completing a four-year term--shortened for good behavior--stemming from the great-bodily-injury convictions. But prosecutors say that if they cannot retry her for murder, they will file manslaughter charges.