Downum v. United States

PETITIONER:Downum
RESPONDENT:United States
LOCATION:School District 187

DOCKET NO.: 489
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 372 US 734 (1963)
ARGUED: Mar 20, 1963
DECIDED: Apr 22, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – March 20, 1963 in Downum v. United States

Earl Warren:

Raymond Downum, Petitioner, versus United States.

Mr. Tinsman.

Richard Tinsman:

May it please the Court.

This is a case involving the question of a former jeopardy and the sole issue presented here is the question of jeopardy.

The petitioner was convicted by the Federal District Court for the Western District of Texas on six counts of an indictment which charged conspiracy, to steal, forge, and pass United States Government checks, forging and passing two of those three checks and passing the third one.

He was convicted and an appeal was made to the Court of Appeals for the Fifth Circuit on the sole ground of former jeopardy and the opinion was affirmed — conviction was affirmed and here, we are appealing on that sole ground.

As the Court of Appeals stated in their opinion, the facts are undisputed and very simple in relation to the jeopardy question.

The petitioner was arraigned before the Court without jury.

Then sometime later, both sides were called and announced ready for trial.

A jury was selected in the morning and the jury was instructed to return in the afternoon at two o’clock.

Then sometime before two o’clock, apparently an out of court conference in the judge’s chambers was had between the prosecutor and the Court.

And at two o’clock, the Court announced in open court without the jury being in the room that the Government had informed him that a witness as to count six and seven which involved one check was absent and that the Court was going to discharge the jury.

The defendant’s counsel objected, asked that the Court proceed on the other four counts for which the prosecution admittedly had enough witnesses to convict; the Court overruled this motion.

The defense counsel then moved to dismiss the counts six and seven for which there was — the evidence was not available, the Court overruled this motion, and discharged the jury.

Two days later, apparently, the missing witness was found.

And another panel was called, another jury was selected, and this jury convicted the petitioner on all six counts.

A plea of former jeopardy was interposed before the second trial which was overruled by the trial court.

So we are here today on the question, because it was developed in the trial that the only reason that the first jury was discharged was because the prosecutor didn’t have a witness and this witness had not even been served with subpoena.

But the prosecutor had failed to check with the U.S. marshal’s office directly across the hall from his own before he selected the jury, and before he announced ready.

Was the subpoena issued?

Richard Tinsman:

Yes sir, the subpoena was issued but had not been served.

Earl Warren:

How long before the trial had it been issued?

Richard Tinsman:

There is no showing in the record but in the transcript, it developed that this particular witness had been out of his home for six weeks and that the marshal had talked with the wife the day before, and — but the prosecutor — and the prosecutor had checked the day before and found the subpoena had not been served.

But he just didn’t make any check and the subpoena was not served; he announced ready and then found that during the noon hour and then the Court discharged the jury.

Earl Warren:

Does the jury — the jury sworn to try the cause?

Richard Tinsman:

The jury was sworn in the morning, Your Honor, and that’s all that took place.

The jury was sworn and then they went on their business or whatever they had to do and came back at two o’clock.

It was not the type of case they were required to be kept together.

Earl Warren:

Yes.

Arthur J. Goldberg:

There is no question of bad faith [Inaudible]

Richard Tinsman:

In this case, there is no question of bad faith, Your Honor.

I think that it was negligence on the prosecutor’s part rather than bad faith.

Arthur J. Goldberg:

[Inaudible]

Richard Tinsman:

I think we would have a much more difficult case, Your Honor because I don’t think there would be the negligence on the part of the prosecutor or the — in other words, this would have been an unforeseeable circumstance as has been stated in some of the former cases.

But it’s our contention that this was a foreseeable circumstance that the prosecutor used the barest minimum of preparation to check and see if this witness’ subpoenas had been served.

Arthur J. Goldberg:

[Inaudible]

Richard Tinsman:

No sir.

Arthur J. Goldberg:

[Inaudible]

Richard Tinsman:

The plea of jeopardy is designed to protect the rights of the defendant and has nothing to do with the prosecutor.

In this case, it was the Court that discharged the jury.

The Court could have refused to discharge the jury, but in fact, the Court’s opening words on page 10 of the record after the out of court conference was that the Government’s key witness is not here.

It was just as to one.

They announced ready and didn’t have the witness when they announced.

So I’m going to discharge the jury from this case and pass it before a prosecutor had said anything in open court, before defense counsel had said anything.

This jeopardy provision is designed to protect the defendant against actions of the Court because anything a prosecutor does, the Court can overrule.

Arthur J. Goldberg:

[Inaudible]

Richard Tinsman:

I think as to the two counts that they were not ready on.

I think he would have been in position, but of course if he’d been convicted on the first four, the Government probably would have dropped them as a practical matter.

Earl Warren:

He would have been entitled a plea once in jeopardy if — even though his counsel made the suggestion that they go to trial on the four counts?

Richard Tinsman:

That’s right.

The reason we made this suggestion is we were satisfied with the particular jury that was selected and we wanted this jury to try them with the evidence that the Government had ready.

Earl Warren:

Yes, but if the Court had followed your suggestion of trying them on four counts and then later, as you suggested, trying them on the other two, do you think he’d been once in jeopardy?

Richard Tinsman:

On the following two counts, I think he would have.

Of course, I think the Court should realize this was a complete shock to me when the Court came in and announced with no knowledge, we were there ready to go to trial and this is what our position was at that time.

We have not researched the law in jeopardy or anything else and I think the Court hasn’t obviously because I don’t think the Court would have done what he did, had it researched the law on jeopardy.

Earl Warren:

Do you think we haven’t gone as far in this Court as to hold that that would be the situation?

That he would have been entitled to — to a plea once in jeopardy if the Court had followed your suggestion to try him later on the other two counts?

Richard Tinsman:

Well, I don’t think that portion is before the Court today —

Earl Warren:

Yes.

Richard Tinsman:

— but intrinsically, a decision of this Court that he was in jeopardy because the prosecution was on the entire case but it would somewhat follow, but not entirely because the basic proposition here was the Government got a new trial on the whole thing, not just the two counts they weren’t ready on.

Earl Warren:

I’m sorry.

I know.

I’m just talking about the two counts though.

Would that be any different than when the defendant asked for a mistrial for some reason or another, some misconduct in the part of the — of — of the prosecutor?

Richard Tinsman:

Oh definitely, yes sir.

And I’m going to get that in the case.

Earl Warren:

Alright, go right ahead.

Richard Tinsman:

Actually, we’re considering two things here.

First, the cases that have been already decided on this question of jeopardy, and secondly, what should the law be because here there is, there’s nothing been decided on its precise point and yet there is a conflict between the Fifth Circuit in this case and the Ninth Circuit back in 1931 in Cornero.

In our —

Potter Stewart:

Mr. Tinsman, you said you were satisfied with the jury.

How long had it take — had it taken to empanel the jury?

Richard Tinsman:

In our district, the counsel are only asked — allowed to ask general questions of the panel and anyone that answers the general question, they’re permitted to interrogate, and I think it took approximately 15 minutes.

But I will say this although it’s not in the record, the jury was such — the next defendant took the jury in toto without picking another jury.

Potter Stewart:

Did the — had there been challenges to the jury, varying to the members of the venire?

Richard Tinsman:

There had been no challenges for cause, but there had been the appropriate strikes.

The defendant was granted 10 strikes and the prosecutor is granted six.

Potter Stewart:

Peremptory?

Richard Tinsman:

That’s correct, peremptory strikes, but there were no challenges to cause on either panel.

Hugo L. Black:

[Inaudible]

Richard Tinsman:

Yes sir, [Inaudible] that’s on the jury.

Potter Stewart:

You had what?

Richard Tinsman:

Nine [Inaudible] on the jury.

[Attempt to Laughter]

Actually in this field, there are three important cases that we consider vital and that’s the Cornero case decided in 1931 by the Ninth Circuit, the Gori case that this Court decided in June of 1961, in a five to four decision where Mr. Justice Frankfurter wrote the majority opinion and Mr. Justice Douglas wrote the dissent, and the Perez case decided by this Court in 1824.

Now, the Cornero case, of course, is the — actually the strongest case that petitioner has.

In this case, the defendant was charged just a one count indictment with conspiracy to “possess and transport” intoxicating liquor.

He was indicted with three other co-defendants and they had all plead guilty at a previous — previous hearing and they were out on their bond and their bond required them to return when the trial of the fourth defendant, Cornero, came up.

And so the prosecutor announced ready on the assumption that these other defendants would not forfeit their bond and would appear since they‘d already plead guilty.

On the day of the trial, the witnesses didn’t show up.

Richard Tinsman:

And so the prosecutor announced that he wasn’t ready and in this case, Cornero asked for a continuance and they went out and tried to find the witnesses.

Well they got continuances for five days and they still couldn’t find them so the judge dismissed the jury.

Two years later, they finally found them.

So they brought Cornero back; they’ve picked another jury, he was convicted, and he appealed aptly a former jeopardy.

The Ninth Circuit held he had been placed in jeopardy.

And the language of the Ninth Circuit is particularly significant, and we would like to call it to the attention of the Court.

It said the fact is that when the District Attorney empanelled the jury without first ascertaining whether or not his witnesses were present, he took a chance, this appears in page 7 of our brief.

There is no difference in principle between the discovery by the District Attorney immediately after the jury was empanelled that his evidence was insufficient and the discovery after he’d call some or all of his witnesses.

So we say that the Cornero case is similar that this was after the first jury was picked, no evidence was put on, the witnesses weren’t there.

The jury was discharged and he was tried and convicted by a different jury.

Now, the Government points out in this case, it’s virtually on all force, the Government devotes only one paragraph to it on page 33 and 34 of their brief.

And their only method of distinction it says, it says, “In a realistic sense, it could be said that the Government proceeded the trial without his evidence in Cornero, but in this case on the other hand, the Government was not preceding the trial without knowing that it had the witnesses to prove its case.”

Well frankly, we do not see the distinction the Government makes.

The only essential distinction is that there was two days rather than two years.

And we say that this is not a meaningful distinction in the concept of jeopardy.

The Gori case test is not the test of harassment which apparently the Government on page 39 would indicate that the test in jeopardy cases are.

The Gori case indicated that they specifically said, “We will not anticipate the situation in which a judge exercises his authority to help the prosecution at a trial in which its case is going badly by affording in another more favorable opportunity to convict the accused.

Well, in this case, it’s our position that in a sense, this is exactly what the Court did, and the Government was not ready, it couldn’t convict on count six and seven and so the judge gave it a new — another chance to convict not only on both counts, but on all of the other counts in the indictment.

Now, I think it’s also significant to look at Justice Douglas’ language in the dissent where he says that, “Once a jury has been empanelled and sworn, jeopardy attaches and a subsequent prosecution is barred if a mistrial is ordered, absent the showing of imperious necessity.”

The prosecution must stand or fall on its performance at the trial.

I do not see how a mistrial directed because the prosecution has no witnesses.

It’s different from a mistrial directed because the prosecutor abuses his office and is guilty of misconduct.

Suppose the jury has been discharged just after the case both sides then came to the jury before they were sworn, the jury then is discharged.

Richard Tinsman:

This is a slightly harder question but on theory, I don’ think it would, Your Honor, because I think the basic proposition is whether you‘re giving this — the Government a chance to go ahead and pick the entire jury, didn’t look and see what kind of a jury they‘re getting and then elect.

Well, we got one witnesses to a few counts of this multi-count indictment so we’ll get a new jury as to the whole.

The Government in this case could have gone ahead and tried the defendant on those four counts that they were ready on, they elected not to do so.

They could have requested a continuance.

They elected not to do so, and use the same jury.

And we feel that when the Government asked for a discharge of the jury, well, the Court grants one rather than getting a continuance after announcing ready, I don’t think the mere swearing of the jury is anything once they‘ve seen who all the jurors are and the strikes have been announced, and the 12 people have been picked, I think that’s the essential thing as far as reasoning goes but of course we don‘t have to consider that here because the jury was sworn.

There was no indication that the Government was dissatisfied with the jury?

Richard Tinsman:

Well there was no indication one way or the other.

Now, the Government makes a contention in their brief, there was no way —

How many peremptory challenges did the Government use?

Richard Tinsman:

In the first trial, the Government used three.

In the second, they used all six.

Out of how many?

Richard Tinsman:

Three out of six.

Second trial they used six.

The Government — the Government of course relies on the Perez case and particularly on the broad language of the Perez case where it states that the law has invested courts of justice with authority to discharge a jury from giving any verdict whenever in their opinion taking all its circumstances into consideration there is a manifest necessity for the act or the ends of public justice would otherwise be defeated.

I think that this broad language of Perez which is also quoted in Gori is something that is used sometimes out of context because of course Perez was only a case which established that a hung jury did not result in jeopardy.

And it’s particularly significant that while the Government says that the manifest — the ends of public justice should be a consideration.

In effect, the Fifth Circuit said it should be the only consideration.

On page 40 of the record, they wrote that Perez held that a judge may discharge a jury within sound discretion without operating as an acquittal when the ends of public justice require it.

But we say that the Fifth Circuit is just — by that language saying that the discretion as to — the question of jeopardy is completely within the discretion of the trial court.

And we think that it is not — if there is some limits on the trial court’s discretion.

And we think one of them is that when the trial court declares a mistrial, purely to help the prosecution prove its case against the defendant that in that case, the jeopardy does attach.

Now, we’d like to say one thing about the Government’s contentions in their brief that seemed rather odd to petitioner.

On page 31 of their brief, they state, “However the fact the jeopardy may have attached does not however compel a reversal.”

On page 32, they say, “The prior jeopardy in this case was jeopardy only in the most technical sense of the term, but it’s our opinion that jeopardy is jeopardy and it’s like saying that somebody is just a little bit pregnant.”

There just isn‘t any in between and in fact on page 7 of their brief they say, “Contrary to petitioner’s contention, the Double Jeopardy Clause does not impose a fixed rule that once a defendant has been placed in jeopardy, he cannot be brought before a second jury.”

They cite no case for this and it’s our contention that this is the very question this Court must decide is whether or not, the defendant was placed in jeopardy.

The legal sense of jeopardy is in the Fifth Amendment of the Constitution and that’s the real question.

Not whether he was in technical jeopardy or any other kind of jeopardy but whether he was in jeopardy at all.

Now, I would like to comment on the case of Wade versus Hunter that Mr. Justice Black decided that the Government relies on.

This was a case involving unforeseen circumstances as it was clearly shown by the opinion.

A court marital of the defendant was recessed because of a tactical situation of the army in the field.

The army had moved forward, the witnesses were not available.

And the Court held that this was such a case of unforeseen circumstances that jeopardy would not attach.

We are not saying that the Government sets up a strong man and in effect and they say with the petitioners contending for a rule like — of Cornero that whenever a jury is discharged after it is empanelled and sworn, the jeopardy attaches.

That is not our position at all.

Richard Tinsman:

Our position on page 13 of our brief is that jeopardy attaches when there is an imperious necessity, unforeseen circumstances or the mistrial has been granted in the sole interest of the defendant as it was in Gori, but in here, none of that exists.

There were no unforeseen circumstances that the prosecutor couldn’t have found out if he’d exercised the least diligence whatsoever.

There was no doing just for the interest of the defendant; it was purely for the interest of the prosecution.

And finally, there was no imperious necessity that this be done again.

The cases that have held that are — and that jeopardy did not attach are cases were something that couldn’t be determined.

A hung jury, for example, is an unforeseen circumstance.

Now, we’re not actually trying to change the law.

We cite in our brief, the Shoemaker case which was decided in 1840 and one of the old federal cases and this says, “However guilty the defendant may be, he can only be convicted according to law.

And a jury having been sworn to try his case, he has a right to their verdict unless some inevitable occurrence shall interpose and prevent the rendition of a verdict.

Before he goes to trial, the prosecutor should see that his witnesses are in attendance and that he is prepared to try any issue.”

This was as far back as 1840.

He also cites the Watson case in 1868.

So we are saying that here, the law is that a mistrial, because the Government has no witnesses as to a few counts of a multi-count indictment for which the prosecutor could have found out that he didn’t have witnesses before he announced ready, is something that places the defendant in jeopardy. This falls within none of the exceptions of the jeopardy rule.

Now, the second point is, well — what should the law be?

Because as we saw on Monday, the Court can change the law as they changed Betts and Brady.

We feel that there’s no question that this is the way that the law should be.

This — the alternatives were very simple.

The Court could have simply declared the continuance, told the jury to go home, come back whenever they found the witness.

They found him two days later.

The Court stated in page 10 of the transcript, “We expect to give you a trial this week.”

There was no necessity for discharging this jury.

We feel that the basic vice in this is that it opens, although in this case there was no abuse.

We are not saying that the prosecutor was hiding this witness out.

But that this case, if it is affirmed, opens the door to abuse, opens the door to a government prosecutor in an important case to have one witness as to one or two counts of a multi-count indictment, some place without a subpoena served on them and then if he gets a jury that is unsatisfactory, go to the Court and say, “We can’t locate this witness.”

We would like this jury discharged and another one had and here’s the authority for Downum versus Unites States.

And we say that when you open that risk of judicial arbitrariness that Justice Douglas talked about in the opinion in Gori, that this is something that shouldn’t be done.

Earl Warren:

Mr. Geoghegan.

William A. Geoghegan:

Mr. Chief Justice, may it please this Honorable Court.

In 1949, Mr. Justice Black, speaking for a majority of this Court in Wade against Hunter had this to say with respect to the Double Jeopardy Clause of the Fifth Amendment.

It does not mean that every time a defendant is put to trial before a competent tribunal, he is entitled to go free if the trial fails to end in a judgment.

William A. Geoghegan:

Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance, the type of oppressive practices at which the double jeopardy prohibition is aimed.

Some years earlier, Justice Cardozo speaking for this Court in the Palko case warned that the tyranny of labels must not lead us to lead to a conclusion that a word which in one set of facts may stand for oppression or enormity is of like the fact in every other.

Justice Cardozo was there again speaking about the Double Jeopardy Clause of the Fifth Amendment.

The petitioner in this case would have this Court adopt a very rigid and inflexible rule which under some circumstances would always mean that after the discharge of a jury, the defendant had been in prior jeopardy so that he could not be again tried.

The rule might be stated simply as this, “The absence of a government witness never justifies the discharge of a jury and the retrial of the defendant.”

That is the rule which the Court in Cornero, in the Ninth Circuit handed down in 1931.

The reason why the Government in its brief in this case did not spend much time discussing Cornero is because that rule was vigorously urged upon this Court in Wade against Hunter, specifically urged and specifically rejected.

And quoting again from Mr. Justice Black’s opinion in that case, we are asked to adopt the Cornero rule on which — under which petitioner contends the absence of a witness can never justify discontinuance of a trial.

Such a rigid formula is inconsistent with the guiding principles of the Perez doctrine to which we adhere.

So this Court has had this argument before.

This question as to whether or not, Cornero sets the rule which should be followed by this Court and it has specifically adopted it.

Now, I’d like to view this case from four aspects, which I think are very important.

First of all is that – in this case the jury was discharged before it even assembled to hear the case, before opening statements had been made, before witnesses were sworn or any testimony heard.

Secondly, no prejudice whatsoever resulted to the defendant in this case in being tried by a different jury two days later.

In fact, there is no claim of prejudice.

And thirdly, that the culpability of the prosecutor in producing the circumstances which caused the Court in this case to discharge the jury to the extent that it existed at all was slight understandable and excusable as I will develop.

And fourth and finally, when the Court in this case discharged the jury, he was acting in an area in which this Court has time and again says it has wide and broad discretion.

I don’t believe that discretion should be disturbed in this case.

Going to the first point which I mentioned, the fact that this jury was discharged before it had even assembled to hear the case, I’d like to compare this case with some of the other cases in which this Court has dealt with this problem of whether or not jeopardy attaches following a mistrial so as to prevent the retrial of the defendant.

I might say parenthetically at this point that this question appears to have been before this Court on seven different occasions and in each of these occasions, the right of the retrial was upheld.

In the first such case, the Perez case decided in 1828, we have the classic example of the hung jury and the Court, this Court for the first time held that the Double Jeopardy Clause of the Fifth Amendment did not prevent the Government from retrying a defendant under those circumstances.

A later case in 1949 is Wade against Hunter to which I have already referred.

This is the court-martial case where one of the members of the Third Army during the war was charged with the rape of a German citizen.

The case was fully tried before the court-martial and was submitted on the evidence and it was under consideration by the Court-Martial Board when the Board itself decided they wanted to hear additional evidence, it wanted to hear the testimony of the mother and father of the victim, which may be presumed was for the benefit of the prosecution in that case are operated to the benefit of the prosecution in that case.

When it became apparent that the military situation made it somewhat impractical or difficult, certainly not impossible to obtain these testimonies since these witnesses were about 75 miles away from the scene of the court-martial, the Commanding General of the Third Army ordered that the Board be dismissed and the case was again heard by another Court-Martial Board of the Fifteenth Army.

That Board convicted and on appeal to this Court following habeas corpus proceedings, this Court reviewed the entire proceeding and held that under those circumstances, the defendant had not been placed in jeopardy so as to prevent his retrial.

This Court did not specifically decide whether or not the Double Jeopardy Clause of the Fifth Amendment applied to court-martials, but it did decide that even if it — even if they were applicable, it had not been violated under the circumstances of this case.

Now, I submit that any rule of law – that if the rule of law permits a defendant to be tried twice, maybe three times or more after a jury has heard all the evidence in the case for and against him but he’s not able to agree on a verdict, it would be a most incongruous result to say that the law prevents under the circumstances of this case the defendant from being tried even once on the — for the offenses charged in the indictment.

Second point I would like to discuss is the fact that no prejudice has been shown in this particular case.

There is no claim of prejudice as Mr. Tinsman has pointed out in his argument.

William A. Geoghegan:

There was some suggestion in the petitioner’s brief that perhaps the first jury might have been more favorable than the second jury, but that the plea of jeopardy should not depend upon whether or not he can prove that point since he’s not susceptible to proof and I agree.

He’s not susceptible to proof and whether or not one jury would be more favorable than another jury I think is irrelevant.

Neither the Government nor the defendant is entitled to a favorable jury, only a jury which is fair and impartial and this record does not suggest in any way that the Gov — that the jury which tried the defendant was in any way not fair or impartial.

Moreover, as was indicated in counsel’s argument, neither side in this case apparently took much time in the selection of the jury nor did the composition of the jury seem to be of great importance.

So I don’t think that we have any element of prejudice whatsoever in this case.

The third point I would like to discuss is the culpability of the prosecutor, if any there was, in producing the circumstances which cause the Court in this case to discharge the jury which had been first sworn to try the defendant.

On Wednesday or Thursday, a week before these proceedings occurred, the United States Attorney’s Office was notified by the Court, 12 cases were going to be called for trial on Monday.

At that time the record reveals there were two assistants available to try cases in United States Attorney’s Office in San Antonio.

The Assistant United States Attorney who did try this case, Mr. McDonald, stated that he had to issue more than 100 subpoenas between the time he received this notice in Monday of the week in which these proceedings occur.

Earl Warren:

In this case?

William A. Geoghegan:

Not in this case, in all the cases which had been assigned to him.

Byron R. White:

What year?

William A. Geoghegan:

1961, in the early Spring of 1961.

How large was the United States Attorney’s office at that time?

William A. Geoghegan:

At that particular time, in the San Antonio office, I believe there were three assistants, but one of the assistants happened to be on military leave.

And the U.S. Attorney himself was made his office there and there were two assistants available to try cases in U.S. Attor —

Byron R. White:

[Inaudible]

William A. Geoghegan:

This is in the Southern District — in the Western District of Texas.

Byron R. White:

[Inaudible]

William A. Geoghegan:

The headquarters are in San Antonio and it is, I might say, a very large district which makes the problem of subpoenas a very difficult one.

In any event, this was number 10 of the 12 cases which were set for trial.

And Mr. McDonald stated in the colloquy which ensued between the Court and counsel at the time the first jury was discharged, that he had no reason to believe that he was going to come up as it did the following day, Tuesday.

On Monday afternoon, on Monday afternoon, Mr. McDonald checked in the marshal’s office to determine whether or not the subpoena on this witness had been served.

He learned that this — that this witness who was a traveling salesman was out of town.

The witness lived in San Antonio but the marshal’s office had contacted his home.

They reported that his wife said that she would get in touch with Mr. McDonald.

And that was all he did Monday afternoon.

On Tuesday morning, he was completing the trial of another case when he was notified that this case was to go to trial.

He apparently left from one case, from one courtroom right into another courtroom.

He announced he was ready for trial when this case was called.

William A. Geoghegan:

The jury was empanelled and sworn; the Court recessed for lunch.

Two o’clock, they came back after lunch and it was at this point the judge announced that he had been advised by Mr. McDonald that the Government’s key witness was not available and that he was going to discharge this jury and set the case again for trial later that week and that is what he did.

And I submit —

Byron R. White:

[Inaudible]

William A. Geoghegan:

Not the — and it that appears well in the record, yes.

The record does reveal that he was a traveling salesman, that he was out on a trip, and he was been in Big Spring in Odessa and the marshal’s office did get in contact with him Wednesday, the day after the first jury had been sworn and discharged, they got in touch with him on Wednesday in Odessa or Big Springs, Texas I believe and told him, he better get back —

Byron R. White:

[Inaudible]

William A. Geoghegan:

The record is silent as to when the subpoena is — was issued.

Byron R. White:

But was it —

William A. Geoghegan:

Well I — I assume it was sometime between Thursday and Monday.

Byron R. White:

Well, is there an attempt to?

William A. Geoghegan:

The record, well, I would assume there was an attempt to serve him —

Byron R. White:

[Inaudible]

William A. Geoghegan:

Well, the record does indicate that the marshal’s office had contacted the man’s wife.

They must have been trying to serve the subpoena on Monday, because when Mr. McDonald checked in the marshal’s office on Monday afternoon about this specific subpoena.

And to say that he was negligent that he didn’t do anything, he’s issued a subpoena at this point, he’s checking now to see whether it’s served on Monday not knowing that this case is even going to come up the following day.

And at that time, he learned that the — from the marshal’s office that they had been in contact with the man’s wife, and had learned that the witness was out of town.

But that she, the wife was going to call Mr. McDonald and let him know where he could be reached.

Hugo L. Black:

How far was Odessa from San Antonio?

William A. Geoghegan:

I’m afraid we will have to rely in Justice Clark to take judicial notice of that.

[Attempt to Laughter]

Hugo L. Black:

Well, was the man far away?

I was just trying to find out and understand and I don’t quite understand.

William A. Geoghegan:

I don’t — I can’t answer you —

Hugo L. Black:

Can you [Inaudible]

Miller:

About 250 to 300 miles.

Arthur J. Goldberg:

250 to 300 miles.

Hugo L. Black:

Away on his automobile or how it’d be away?

Did he go in an automobile for a trip?

Arthur J. Goldberg:

I suspect from reading the record, I don’t think it’s specifically stated but I suspect that he was traveling by automobile.

Hugo L. Black:

What does he sell?

Arthur J. Goldberg:

I don’t believe the record indicates that.

Earl Warren:

Was there any discussion at the time the jury was discharged as to why this man was not there or was there any justification or shown by the prosecution for this discharge?

William A. Geoghegan:

No, the record on that point — the record before the Court on that point is very, very brief.

Earl Warren:

Where is it?

William A. Geoghegan:

It appears on page 10, I believe, of the page 10 of the record.

And it’s very brief.

This is the Court speaking after the noon recess.

Mr. Tinsman, in your case, the Government’s key witness is not here.

They announced ready and didn’t have the witness when they announced.

So I’m going to discharge this jury from this case and pass it.

And there was a discussion about as Mr. Tinsman related.

Hugo L. Black:

What page is that?

William A. Geoghegan:

On page 10 — page 10 of the record.

Earl Warren:

Well, would that indicate that the Court and the prosecutor had determined beforehand that this jury would be discharged?

William A. Geoghegan:

There’s no indication.

Earl Warren:

There is any thing here to indicate that the Court exercised any discretion.

There isn’t any evidence on which he could do it.

He merely says, “Mr. Tinsman, in your case, the Government’s key witness is not here, that’s the beginning of it.”

They announced ready and didn’t have the witness when they announced so I’m going to discharge the jury in this case and pass it.

There wasn’t any — wasn’t any hearing, there wasn’t anything any opportunity to show whether it was in good faith or not.

William A. Geoghegan:

Well, I think we may presume that when the U.S. Attorney talked to the judge that he did discuss the fact that he was — the witness had been under subpoena, the record does reveal later on the motion, two days later when the motion went — or rather when the plea of prior jeopardy was argued, then they go into this more fully and developed the fact that the witness had been subpoenaed that he had been — that Mr. McDonald had checked at the U.S. Attorneys at the marshal’s office the day before and — and so forth.

The record is silent —

Earl Warren:

Well shouldn’t — shouldn’t the judge exercise this discretion on what happens in the Court rather than — rather than what the prosecutor tells him out of Court?

William A. Geoghegan:

Well, I’m not so certain that the judge is bound to act in this matter, in a matter such as this solely on what appears and what might appear on open court or might be testified to an open court appear on the record.

The judge, I take it, was satisfied that this witness was unavailable and that presumably reasonable efforts was made to secure its attendance.

Earl Warren:

Where does it ever — where does it say that?

William A. Geoghegan:

Well, the judge doesn’t make a specific finding to that effect.

He later on says on page 18.

Earl Warren:

Was that at the same time?

William A. Geoghegan:

No this was when the — this was when the — they were arguing the plea of prior jeopardy.

Earl Warren:

Well, that’s on a different occasion and this is when the Court took the action to dismiss this jury and that’s a critical time as far as I’m concerned.

William A. Geoghegan:

Well, the record does, the record fails to reveal at that particular time just what knowledge the judge had.

William J. Brennan, Jr.:

Well Mr. Geoghegan, isn’t this something that [Inaudible]

William A. Geoghegan:

Yes.

William J. Brennan, Jr.:

[Inaudible]

William A. Geoghegan:

Well, if there is — I think the record, I think we can state form the record on page 10.

I think we may assume that the judge did have knowledge, the same knowledge which appeared — which as to facts which later appear in the record as to what occurred on Thursday when the plea or on Friday when later in that week, when the plea of prior jeopardy was argued.

I think we may assume from what the judge did on Tuesday and form the statement to which Mr. Justice Brennan refers on page 10 of the record that he had these facts, the essential facts before him as to what had occurred.

Hugo L. Black:

Where did he get them?

William A. Geoghegan:

I presume he received them from the Assistant of United States Attorney.

Hugo L. Black:

Where and when?

William A. Geoghegan:

Possibly, probably in chambers or in the courtroom before the Court convened.

I don’t know the record is silent.

Hugo L. Black:

Did the Court have to select the jury recess?

William A. Geoghegan:

What is that sir?

Hugo L. Black:

Did the Court recess after selecting the jury?

William A. Geoghegan:

Yes, they recessed for lunch, the Court recessed for lunch —

Hugo L. Black:

And then — and they came back from lunch.

William A. Geoghegan:

And they came back from lunch and the jury —

Hugo L. Black:

When they left, the case was ready for trial so as you said?

How have they been selected?

William A. Geoghegan:

That statement had been made by the United States Attorney in the morning prior to the time when the jury was selected.

He announced ready for trial and they proceeded to select —

Hugo L. Black:

To select the jury —

William A. Geoghegan:

Yes.

Hugo L. Black:

And went out for lunch.

William A. Geoghegan:

And then he went out.

Hugo L. Black:

And when they came back, the first thing the judge said to Mr. Tinsman was that he’s going to discharge the jury?

William A. Geoghegan:

That’s correct.

William A. Geoghegan:

And as far as this record — as far as this record before the Court is concerned, that’s the first thing that was said that he was going to discharge the jury because of the absence of the key government witness.

Hugo L. Black:

And what did the defendant say?

William A. Geoghegan:

The defendant at that time — the defendant at that time objected and said that he suggested that they go to trial on those counts of the indictment on which the testimony in this witness — on which the testimony of this witness was not required.

Byron R. White:

[Inaudible]

William A. Geoghegan:

No, he did not object at that time.

Well later, he suggested that they — that those two counts be dismissed for lack of prosecution.

Hugo L. Black:

That was after the tenth?

William A. Geoghegan:

No, that was on the — that was on the — on Tuesday, the day the —

Byron R. White:

[Inaudible]

William A. Geoghegan:

No, no.

No, he first — as appears on the record on page 10.

And perhaps it will be helpful if I read in full it’s quite brief.

Mr. McDonald stated, “We have been unable to have the subpoena served at the present time.”

So at least, the Court did know that the subpoena had been issued.

Mr. Tinsman: “Your Honor, I feel this way in view of the fact that this is only as to two counts of the indictment, and there are still as to Raymond Downum four other counts and in view of the fact that the Government announced ready, and we picked the jury.

And we should go forward at this time on the counts that I assume they are ready on the other counts.”

The Court: “Do you want to have two trials?”

Mr. Tinsman: “At this time, Your Honor, I think I’m in a position that I would just as soon have two trials.

I picked a jury and I think that it’s a satisfactory jury.”

The Court: “I am not willing to have two trials.

It would take too much time of the Court.

The Government shouldn’t have picked the jury when they weren’t ready.

Unfortunately, they didn’t check up on the witnesses.”

That’s all that appears in the —

Earl Warren:

But there is a little more, isn’t it?

William A. Geoghegan:

Well, yes, excuse me, yes.

Mr. Tinsman: “Let me make a motion at this time to dismiss count six and seven for one of prosecution.”

“Those are the two counts?”

“Yes sir.”

“I will overrule the motion because they expect to give you a trial later this week or next week.”

William A. Geoghegan:

Mr. Tinsman: “Alright, sir.”

The Court: “So when the jury comes in, I will just discharge them from this case and may use them on another case.

Is your defendant on bond?”

“No, the defendant is in the county jail.”

The Court: “Take charge of him, Mr. Marshal.”

That’s all that the record reveals.

Was there any request by the defense counsel to examine the U.S. Attorney on voir dire whatever you choose to call it to find out the circumstances at the failure of the subpoena?

William A. Geoghegan:

The record doesn’t indicate that there was any such request, although, when the plea of prior jeopardy was argued two or three days later, there was colloquy which is sued between Mr. Tinsman and Mr. McDonald in which Mr. Tinsman enlisted it from Mr. McDonald just what he had done with respect —

No, not on the day in which this — the jury was first discharged.

Was the defense counsel foreclosed of making any inquiries to the circumstances of the nonappearance of this witness beyond what appears in this record?

William A. Geoghegan:

To my knowledge, there was no such request, Mr. Justice Harlan.

Was there any intimation made that this was the result of some of kind of an ex parte arrangement between the judge and the United States Attorney?

William A. Geoghegan:

The trans — the transcript doesn’t indicate that, sir.

Hugo L. Black:

But they have to admit that these came back from lunch and simply announced.

I don’t know that that would be —

William A. Geoghegan:

Well, I think we — I think we may presume that Mr. McDonald did talk to the judge.

We have — that’s a —

Hugo L. Black:

And if they did agree to continue it?

William A. Geoghegan:

No.

I don’t think we have to assume that, Mr. Justice Black.

Hugo L. Black:

What was the first sentence the judge made?

William A. Geoghegan:

The first sentence would —

Hugo L. Black:

When he came back?

William A. Geoghegan:

In the record, he said —

Hugo L. Black:

Have you had anything besides the record upon which we can rely?

William A. Geoghegan:

No, I do not.

Hugo L. Black:

So what was the first thing he said when they got back?

William A. Geoghegan:

I have to rely on the record on that point, Mr. Justice Black.

Hugo L. Black:

I suppose that’s on page 10?

William A. Geoghegan:

It was on page 10.

It’s obvious that the United States Attorney had notified the judge in the chambers.

William A. Geoghegan:

I think or —

Now, my question was, were there any suggestions made by defense counsel that was improper conduct either on the part of the judge or the United States Attorney?

William A. Geoghegan:

I have no knowledge that there was any such suggestion made by the defense counsel in this case.

Hugo L. Black:

The first question asked by Mr. Tinsman after that indicates that you knew nothing about it, did you?

He says, “Is it permissible to tell me who the Government’s key witness is?”

And they told him.

William A. Geoghegan:

That’s correct and I would assume that that was the first knowledge that Mr. Tinsman had of the fact that there was a key witness who was missing at the time.

I’d like to —

Arthur J. Goldberg:

[Inaudible] on part of the government.

So on this record [Inaudible] telephone call would have produced [Inaudible]

William A. Geoghegan:

Well, I don’t think so.

I think it’s unfair to say that the Government showed any lack of diligence in preparation of — for this trial in view of the circumstances with which they were faced.

Now, the Government was operating under quite some burden in trying to secure that this defendant and to other defendants their constitutional rights to a speedy trial.

Now, the fact that the Government when operating under some burdens may create a circumstance such as it occurred in this particular case, doesn’t in and of itself obviate the defendant’s constitutional rights, but I may — I maintained that when no harm is shown as a result of what occurred that it’s just absurd to say that this defendant cannot be tried once for the offenses charged in the indictment, because a witness wasn’t present.

This United States Attorney had 100 witnesses to subpoena.

On Monday, he didn’t know this case was coming to trial on Tuesday.

The judge was obviously doing what he could to see that his docket was made current in trying these cases, giving these defendants as they’re entitled to under the Constitution of a speedy trial.

Arthur J. Goldberg:

[Inaudible]

William A. Geoghegan:

I don’t think we are — I don’t think we are at all.

If we view — if we view the privilege as one that’s designed to protect the defendant, to protect him from harassment, unfair practice, oppression, certainly in this instance, when he was tried two days later by another jury, there’s not nearly the oppression, the harassment, the expense that occurs when he may have to be tried two and three times, because the juries disagree or it’s because in Wade against Hunter, the Court-Martial Board wanted to hear additional evidence from two other witnesses.

I think as I said before that it would be a most incongruous result that if we can put a defendant to trial two and three times, and make him go to the expense, and keep him under the suspense that’s involved in those situations, it’s the most incongruous rule which would say that this defendant under these circumstances — and I’m stressing the circumstances of this case can’t be tried even once where the offenses charged in the indictment.

If I may borrow from the [Inaudible] of the tax lawyers, I think such a rule exalts form over substance.

We have —

Hugo L. Black:

Is it quite right to say from this record that if he’s barred for being tried even once, even on these counts, the record shows that he was pretty close by when they [Inaudible].

The record also shows that the judge put the case off because he didn’t want to try it.

They tried twice, he said and the Court, he could have kept the jury.

William A. Geoghegan:

That’s precisely —

Hugo L. Black:

Would the jury put under the rule?

William A. Geoghegan:

No, yes I think there was a — and the second jury — now I was referring to that part —

Hugo L. Black:

This jury?

William A. Geoghegan:

This jury was not put under the rule.

It was not involved with respect to this jury.

Hugo L. Black:

But what was wrong with the waiting the day after today?

William A. Geoghegan:

I think I can answer that in this way.

That gets to the very heart of another point which I haven’t had time to discuss, and that is that we are operating here in an area in which this Court, this Court as time and again says that trial judge has broad discretion.

Now, judge put him; he could have held this jury, he could have held this jury and continue the case for one, two, or three days until this witness was located and was ready to testify or he could do what he did.

Now, he decided that this jury could be put to work and the record indicates that they were.

So that the other defendants, other people who were in the jail at that particular time could have their constitutional right to a speedy trial observed, and if — and it’s just —

Hugo L. Black:

Why did he have to postpone the other people’s right to trial?

William A. Geoghegan:

I presume that he only had so many juries available to try these cases Mr. Justice —

Byron R. White:

[Inaudible]

William A. Geoghegan:

Well, they talked in terms of bringing 28 in at the time this jury was selected.

Byron R. White:

[Inaudible]

William A. Geoghegan:

That’s quite possible.

I’d —

Byron R. White:

[Inaudible]

William A. Geoghegan:

It could have worked on other cases.

And that’s — that’s the problem that the judge had.

Now, the Fifth Circuit, talking about this particular point states the protection of double jeopardy is tested against the action taken by the Court.

Consequently, there’s a secondary importance only to inquire to whether the action or inaction of the prosecutor and not earlier subpoenaing the witnesses was or was not justifiable or excusable.

Hugo L. Black:

How many witnesses were there?

William A. Geoghegan:

In this particular case?

Hugo L. Black:

Yes.

William A. Geoghegan:

I don’t know exactly how many in this case overall.

They testified that there were 100 witnesses and they had to be subpoenaed.

Hugo L. Black:

How long did it take to try the case —

William A. Geoghegan:

It appears about two hours to three hours to try this case.

Hugo L. Black:

For 100 witnesses?

William A. Geoghegan:

No, those witnesses were subpoenaed with respect to 12 cases.

Hugo L. Black:

Oh, I see.

William A. Geoghegan:

I think we have to take into consideration the burdens of the United States Attorney in this situation where he isn’t just dealing with this one case.

Now, the fact that he has these burdens never excuses the violation of any man’s constitutional rights, or interests that are designed to be protected by the Constitution, but there’s no evidence that this man was prejudiced, that he was harassed.

Hugo L. Black:

Why would he have to do that if in fact the circumstances are there and I think that this Court is there already, there’s no rigid rule either way or there shouldn’t be.

William A. Geoghegan:

That’s correct.

And —

Hugo L. Black:

Before you look at the circumstance, but the circums — the rule is that unless there are grave things occur which makes it absolutely necessary to postpone.

After you have selected a jury that shall not be done, but you will not just discharge it.

And added to that, when you say there’s no prejudice, I suppose every lawyer knows there is a distinct chance of prejudice when you change your view.

Many lawyers have dismissed that just to keep the main part before a separate jury in civil cases.

How can you assume that there’s no prejudice?

William A. Geoghegan:

I don’t assume.

I assume that there was no prejudice in this case because none was claimed and I —

Hugo L. Black:

Well, you couldn’t prove that — when you get to talking about what a jury will decide, but you just couldn’t prove it.

You couldn’t prove it.

William A. Geoghegan:

Well I don’t — I said earlier —

Hugo L. Black:

The burden would be on the Government where it gets a — where it — after a case jury is selected that that is ready, the Government said, “I want to continue”, wouldn’t the burden be on the Government on those cases for it to show that there were sufficient circumstances to justify that.

Maybe they do here.

I’m not talking about that, but I’m talking about the way of defense —

William A. Geoghegan:

I think —

Hugo L. Black:

— not the burden —

William A. Geoghegan:

I think that’s true, but also the cases have held that the plea of the burden is on the defendant to establish the validity of his plea of prior jeopardy.

Cases have always held that.

Hugo L. Black:

Well, the validity of it, but the validity depends on the circumstances on what to prove upon, and I would think if that if the Government is going to have a case passed after the jury is going to select it under all the trial cases, it would be the Government’s view just to show these circumstances sufficient to justify.

William A. Geoghegan:

Well, I think the answer to that, Mr. Justice Black, is that —

Hugo L. Black:

Maybe they do.

William A. Geoghegan:

The Government didn’t ask that this jury be passed.

This was a decision that the — that the trial judge made.

The trial judge exercised his discretion but not to continue, but to discharge.

Earl Warren:

But based upon — but based upon colloquy obviously that was made with them in the chambers, outside of the presence of the counsel and the defendant.

William A. Geoghegan:

Based upon the circumstances of which he had knowledge as to the fact that there was — the Government’s key witness was not present.

And it was the trial judge, not the United States Attorney that made the decision as it had to be.

In fact, the trial judge didn’t even suggest that the jury be discharged.

Earl Warren:

Is there any inference to be drawn at all, I think the inference could be drawn that prosecutor in chambers in the absence of counsel for the defendant asked the judge to dismiss this jury because he didn’t have his witness there and the judge came out of the bench and immediately said, “The prosecution doesn’t have his witnesses here and I’m going to discharge the jury.”

Isn’t that —

William A. Geoghegan:

I respectfully disagree —

When I was in the United States Attorney’s office, maybe the practice has changed.

We conceded to be our duty to notify a judge who is in-charge of the calendar part whether our cases for some reason or other would going to go on or whether they were going to go off.

And has any suggestion been made in this case that the United States Attorney was doing anything improper in doing what obviously this record shows he did was to notify the judge that he was not going to be able to go having this case?

William A. Geoghegan:

I think that’s precisely the point.

There’s nothing more than that.

Earl Warren:

But he had notified the judge in the morning that he was ready, had he not?

William A. Geoghegan:

He notified —

Earl Warren:

Had he notified the judge that he was ready in the presence of counsel and in the presence of the defendant?

And then sometime between then and two o’clock, he was in the judge’s chambers and conveyed some information to him about his witnesses that the defense knows nothing about, and then the judge peremptorily discharged this jury.

Is there any — is there anything more than that in this case?

William A. Geoghegan:

No, but I surely don’t think that there’s anything improper for the — for counsel for the Government to notify — to tell the trial judge, even in the absence of counsel for the defendant that one of his witnesses isn’t there.

How many judges are there, in this district that was there?

William A. Geoghegan:

At that time in San Antonio at least or there was just one, Judge Rice, isn’t that correct?

So he was the county judge and the trial judge and the others responsibility to keeping the wheel of justice moving.

William A. Geoghegan:

That’s right.

And these were all matters, and I stress again, these were all decisions which were made by the trial judge in the exercise of a discretion which this Court time and time again —

Hugo L. Black:

It’s not on review.

William A. Geoghegan:

I agree that it’s not unreviewable.

Hugo L. Black:

No, [Inaudible] in that courtroom.

William A. Geoghegan:

No, but I think we have far — there’s far greater danger to future defendants in a rule which restricts the discretion of the trial judge than one which maintains that discretion unfettered at least operate in circumstances as were before the Court in this case.

I think it works to the benefit of the defendants that the trial judges have wide discretion to declare mistrials when the interest of justice demands.

Hugo L. Black:

Well, I guess you would say that the defendant usually had the right to have the decision made when he is present.

But something in the preference of proper for the prosecuting defendant to go to see him and tell him that I want to present that to you when we get back.

There’s quite a difference in that, isn’t it, than just the judge coming in and say, “I’ll continue the case”?

William A. Geoghegan:

Well, perhaps there was a —

Hugo L. Black:

The other — only if the defendant only asked him to come up permitted to ask who the witness is, he’s not going to be here.

William A. Geoghegan:

Perhaps there was some irregularity in the way it was done.

But surely, the question of whether or not the Double Jeopardy Clause in the Fifth Amendment applies to the second proceeding before the second jury can’t turn on the manner in which the judge received notice of the fact that one of the —

Hugo L. Black:

Not the way the judge had quite noticed — but the way that the circumstances I know of which it occurred.

The whole action, all the circums — maybe you’re right in that the circumstances don’t make it out, but that is certainly a circumstance, isn’t it?

The defendant usually — somehow might have a decision whether they’re going to be tried, particularly after the jury has been selected.

The decision is supposed to be made in open court after the facts are presented for all kind of opportunity to contest.

William A. Geoghegan:

Well, I will agree that the record indicates that this judge’s mind had been made up when he assumed the bench at two o’ clock because he’s starting off by saying, “I’m going to discharge the jury”.

He did permit some further colloquy to — between the counsel and the Court.

I don’t think his mind was perhaps irrevocably made up at that particular point.

I had just been looking at the petitioner’s brief on which I was unable to read.

I don’t find any suggestion in the brief intimation that the way in which this matter was handled by the judge to distinguish whether there was negligence or whatever you choose to call it in the part of the District Attorney and not having the witness present.

I don’t find any suggestion that there was any impropriety in the way this matter was brought to the attention of the judge.

William A. Geoghegan:

No such claim has ever been made, Mr. Justice Harlan and I frankly can’t see the relevance — the relevancy of all that.

It would seem to me that the question merely turns upon whether or not the trial judge in the exercise of his discretion acted fairly in the — in line with what were the interest of this defendant and the interest of the public in seeing that this man received a fair trial that the — he should be certainly.

I think most people would agree that the Government is entitled to one trial which we haven’t had or wouldn’t have in this case, had to discharge — had the discharge in the first jury, had the effect at two o’clock on the afternoon — on that afternoon of acquitting this defendant, so he walked out of the court a free man.

I don’t think the Fifth Amendment requires that result.

Hugo L. Black:

He didn’t have to.

He didn’t have to, that he walked out a free man.

William A. Geoghegan:

I know.

I think that points up the unrealistic position that the petitioner takes before the Court at this particular time.

It’s obvious that no one in the courtroom at two o’clock that afternoon thought that the discharge of that jury would have the effect of acquitting the defendant right then and there, because the judge announced that he’s going to reset the case for trial two days later, the counsel for the defendant wouldn’t have urged the Court after the Court announced that he was discharging the jury, he wouldn’t have urged the Court to go to trial on those other four counts.

And surely the Government’s attorney didn’t think that such an absurd result would occur but the Government would’ve done — the U.S. Attorney would’ve done what he could to salvage what there was in the indictment could go to trial on the other four counts.

Hugo L. Black:

That statement about such an absurd result is kind of a prejudgment, isn’t it?

William A. Geoghegan:

I think — in the exuberance of advocacy, I hope the Court will excuse it.

[Attempt to Laughter]

My time is far elapsed at this time.

Thank you very much.

Earl Warren:

Mr. Tinsman.

Richard Tinsman:

I would briefly like to reply to the Government’s contention that there is a danger in future cases if this case is not affirmed.

I think if — I mean if this case in Hunter that the Government’s condition — contention is not sustained.

If the Court reverses this case, the only thing it will be saying is that Government prosecutors must ascertain whether not their witnesses are served with the subpoena before they announce ready for trial.

And if they announce ready for trial, and then find that their witnesses aren’t present as to some count of a multi-count indictment, they cannot secure a discharge of the jury without putting the defendant in jeopardy.

And once this case has decided that way, I don’t think any government prosecutors will the mistake that Mr. McDonald and the Court made in this particular case.

The — much of the argument was devoted to this excusable nature of what the prosecutor did, but I think it’s implicit from the record.

The defendant was in the county jail.

This was the number 10 case.

Obviously, arrangements had to be made to bring the defendant from the county jail.

During that time, when the defendant was being brought from the county jail, there’s no showing that the prosecutor could not have checked his witnesses.

There is a showing in this case that in the colloquy between counsel after the concerning his preparedness that there were a number of secretaries in the office, five secretaries.

He could have asked one of the secretaries, go check and see if all the subpoenas were served on the witnesses before I announced ready for trial.

The marshal officers right across from the U.S. Attorney’s office and in fact he’s right down the hall from the courtroom.

There was no real —

Have you ever served in the United States Attorney’s office?

Richard Tinsman:

No sir.

I have not.

You never had the present business dissenting on the open —

Richard Tinsman:

Well, I’ve served in — pull off his having many civil cases, Your Honor and I know what the present business is but I also know the penalties for making mistakes.

William J. Brennan, Jr.:

[Inaudible]

Richard Tinsman:

No sir, I do not because they had contacted his wife and she had told obviously he was in Big Spring, they’ve contacted his wife so she was to call him and tell him to come in.

So the marshal, instead of calling him himself, simply relied on the wife to call him and tell him to come in and the real point is not whether the subpoena was served, Your Honor.

The point is that the prosecutor didn’t check and see whether or not it was served before he announced ready.

That’s the point of the case.

Tom C. Clark:

Is the practice in the Western District is for you to plead to this particular jury?

Richard Tinsman:

No sir.

Tom C. Clark:

Just to free the indictment or anything like that?

Richard Tinsman:

The practice in the Western District is for all defendants to plead before the court so they’re all not guilty pleas.

Guilty pleas can be taken in the Court and then once the defendant has pled not guilty, the juries are brought in.

I also might say in regard to some of the questions as to practice to select the number of juries at one time from the same panel.

Richard Tinsman:

And this particular time, this jury — had selected two juries were selected that morning.

And then another trial went on.

Tom C. Clark:

Do you read the indictment to jury [Inaudible]?

Richard Tinsman:

Yes sir, the indictment was read to the jury in this — in the second trial of this case.

Tom C. Clark:

I mean in the first trial, the one you’re saying.

Richard Tinsman:

Nothing was done.

In other words, the jury had been sworn in the box and then sworn and then nothing else happened.

Tom C. Clark:

And that the [Inaudible]?

Richard Tinsman:

No sir.

Tom C. Clark:

That that statement has been made.

Richard Tinsman:

No sir.

Tom C. Clark:

Notified, has been made.

Richard Tinsman:

No sir.

Tom C. Clark:

[Inaudible]

Richard Tinsman:

And actually I think that from a standpoint of reasoning that what difference would it make is far as the defendant’s right for concern or — good to be gained by the Government, it’s simply the indictment had been read or one witness had testified even just stated his name.

I don’t think that that would, as a matter of law, should change the rights of the various defendants to that particular thing.

Hugo L. Black:

But it didn’t in Wade versus Hunter, did it, the fact that they gone and urged the witnesses.

Richard Tinsman:

No.

at —

Hugo L. Black:

You can tell that you consider the circumstances to see whether there is sufficient to justify charges of the jury of discontinuing the case.

Richard Tinsman:

That is correct, Your Honor.

William J. Brennan, Jr.:

[Inaudible]

Richard Tinsman:

Well, I’ll agree that it perhaps — it is a circumstance to be considered but it’s our position, Your Honor, that the cases have held that the circumstances to be considered are: number one, unforeseeable circumstances; number two, imperious necessity as in Wade versus Hunter; and number three, as in Gori, the question of whether it was done for the sole interest of the defendant.

And we say that none of the cases have held that a circumstance to be considered is whether or not the indictment was read, none of the cases have based on that particular facet.

Hugo L. Black:

Would you mind telling me a little more about the jury.

I haven’t gotten that straight.

Richard Tinsman:

Alright sir.

Hugo L. Black:

How many jurors were in the panel in this case?

Richard Tinsman:

There were approximately 40, I would say.

Hugo L. Black:

How many judges whether they’re trying cases?

Richard Tinsman:

Only one judge, Your Honor.

Hugo L. Black:

You said that the judge was trying another case at the time —

Richard Tinsman:

He was trying a case on Monday, he called Tuesday morning or some other — the other defendants have plead guilty he’s said, “We’re going to pick the juries for Tuesday afternoon.”

And the next day, so Tuesday morning, everyone came up, the counsel and I came up and the counsel on the next case came up and the juries were picked.

Hugo L. Black:

For both cases?

Richard Tinsman:

Yes, sir and then the jury was released and told to come back at two o’clock.

Hugo L. Black:

You mean that other jury was released?

Richard Tinsman:

My jury was released.

Hugo L. Black:

Your jury was released?

Richard Tinsman:

Yes, sir.

Hugo L. Black:

While he went ahead and tried another case.

Richard Tinsman:

Yes, sir.

Hugo L. Black:

So that he did postpone the trial of your case while he was trying another case?

Richard Tinsman:

Well, that’s right.

In other words — so that his position was that he wanted to go immediately into the trial of my case as soon as he finished the first case.

Hugo L. Black:

But why did he do that.

Why did he select the jury in your case before he was ready?

Richard Tinsman:

Well, that’s the practice of the court in the Western District is that they select the number of juries in advance, Your Honor.

Hugo L. Black:

Leave him waiting there?

Richard Tinsman:

They don’t leave him waiting.

They tell them they can go back to their businesses and tell them to come at a certain time.

Hugo L. Black:

So that’s what happened here?

So he did let the jury go back to the business?

Richard Tinsman:

Yes, sir.

Byron R. White:

You turn the rest of the panel —

Richard Tinsman:

You turn the rest of the —

Byron R. White:

— and go back to a particular time.

Richard Tinsman:

That’s — that is absolutely —

Byron R. White:

[Inaudible]

Richard Tinsman:

That’s correct.

Richard Tinsman:

So that —

Byron R. White:

[Inaudible]

Richard Tinsman:

That’s a —

Hugo L. Black:

So that year, under that practice, he could just simply let your jury go home for the rest of the day until they could find that man and finally (Inaudible) —

Richard Tinsman:

Absolutely correct, Your Honor.

Hugo L. Black:

Is that according to the practice?

Richard Tinsman:

Yes, sir.

He could’ve done that.

Byron R. White:

You didn’t have to say that — you didn’t have to [Inaudible]

Richard Tinsman:

No sir, I did not.

Byron R. White:

And you just said that you want to go on to get a court trial.

Richard Tinsman:

Yes, sir.

Byron R. White:

And the court gave it too.

Richard Tinsman:

Yes sir.

Byron R. White:

And then otherwise, [Inaudible]

Richard Tinsman:

Yes, sir.

I may say –-

Tom C. Clark:

[Inaudible] it went on the fourth and went on the fifth trial, didn’t it?

Richard Tinsman:

Well Your Honor, in the view of the fact that this the was first criminal case I ever tried, [Attempt to Laughter] I was not quite as really familiar with the criminal law as I should’ve been.

Hugo L. Black:

In fact, you did pretty well.

[Laughter]

I think you showed extraordinary conscientious as to the weighing of this case [Inaudible]

William J. Brennan, Jr.:

You were an assigned counsel?

Richard Tinsman:

Yes sir.

I was appointed by the trial court.

Hugo L. Black:

You did very well.

Richard Tinsman:

Thank you very much.

Earl Warren:

Well Mr. Tinsman, I know regardless of how this case may be decided that every member of the Court would want me to express our appreciation for your having accepted the burden of representing this indigent defendant.

We’re always comforted by the fact that lawyers are willing to do that but yours is a rather outstanding and unusual case because you were appointed by the District Court to represent this man, you represented him in that court, you then went to the Court of Appeals and represented him there by assignment also.

And then we assigned you to — to do it in this Court.

Earl Warren:

I consider that an outstanding service to the public and we thank you.

And Mr. Geoghegan, of course, we rest our appreciation to you for the very earnest and favorable manner in which you represent the interest of the Government.

William A. Geoghegan:

Thank you very much, Mr. Chief Justice.