Gori v. United States

PETITIONER:Gori
RESPONDENT:United States
LOCATION:Circuit Court of Montgomery County

DOCKET NO.: 486
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 367 US 364 (1961)
ARGUED: May 03, 1961
DECIDED: Jun 12, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – May 03, 1961 in Gori v. United States

Earl Warren:

Number 486, Dante Edward Gori, Petitioner, versus United States.

Mr. Rand, you may proceed with your argument.

Harry I. Rand:

Mr. Chief Justice, may it please the Court.

This case concerns the impact of the Double Jeopardy Clause of the Fifth Amendment on criminal prosecutions in the federal courts where an early trial, whether it’d be the first of a second of a string of trials is terminated by mistrial and the defendant, the accused, is, thereafter, put to a retrial before another jury for the same offense.

The petitioner here was charged with a violation of the criminal code in that he had received and possessed some 20 odd cases of women’s and children’s gloves, knowing them to be stolen and he was put to trial before a jury in the Eastern District of New York sometime in February of 1959.

On the very first day of the trial, in the afternoon of the first day, while the Assistant United States Attorney was educing testimony from the Government’s fourth witness, an FBI agent, the trial judge, without affording an opportunity to either of the parties — either to the United — Assistant United States Attorney or to defense counsel, to address himself to the action which the trial judge was about to take, the trial judge acting sua sponte directly in the presence of the jury, abruptly and rather vehemently declared a mistrial, terminating the trial, as I say, in the very afternoon of the — of the very first day.

All of the trial judges at the time he declared the mistrial said that he was doing so, and I quote on page 14 of the record, “He was doing so because of a conduct of the District Attorney.

Everybody is in agreement as we stand before this Court.”

Indeed the majority in the dissent, the dissenting judge below are in agreement that the record discloses no evidence whatever of any misconduct by the Assistant United States Attorney.

Despite the plea of former jeopardy interposed by the petitioner, he was in three months later, again tried the same offense before another jury in the Eastern District of New York, my recollection is before another judge.

And there on the verdict, returned of guilty, the judgment of conviction was entered and petitioner was sentenced to imprisonment for three and a half years.

Petitioner thereupon appealed to the United States Circuit Court, the United States Court of Appeals for the Second Circuit and the appeal was heard by a panel of three judges which panel voted for reversal of the conviction.

One judge dissenting, pursuant to what apparently is the practice in the Second Circuit Court, the draft opinions reflecting the disagreement among the members of the panel were then circulated among the five active judges of the Circuit Court.

Felix Frankfurter:

Is the panel’s opinion in the record?

Harry I. Rand:

There is no panel opinion.

The — the —

Felix Frankfurter:

Do you know what the panel was?

Harry I. Rand:

The panel consisted of Judge Clark, Judge Waterman and Judge Lewis, a judge of the Tenth Circuit sitting by designation.

When the —

Felix Frankfurter:

My question was to —

Harry I. Rand:

Oh, and the —

Felix Frankfurter:

— solicit — solicit — whether Judge — Judge Waterman dissented when the —

Harry I. Rand:

The — I —

Felix Frankfurter:

— court en banc with the use on the original panel.

Harry I. Rand:

He was on the original panel.

It’s my understanding, Judge Waterman and Judge Lewis voted for reversal, Judge Clark dissenting from the — vote for us, so I think this is set forth in the first footnote of the opinion of the — of Judge Clark’s ultimate majority opinion.

And then when the matter went before the en banc court, a majority of the active judges voting for en banc consideration, a consideration by the way which was court of the case without further argument are further — are just from the original papers, Judge Lewis was disqualified from sitting since he was not an active judge of the Circuit Court, and we then had in affirmance of the conviction, four judges voting for the affirmance, Judge Waterman remaining in dissent and Judge Clark writing the opinion for the majority of the court.

John M. Harlan II:

Could I ask you a question You said at the beginning that all parties in an agreement but the record show no misconduct by the District Attorney?

Is there an implication from that which your case should be different, if the record did show that?

Harry I. Rand:

If the record showed some misconduct by the District Attorney, we would then be getting into an issue on which there would be some disagreement between us as to whether that kind of misconduct, if it were egregious, could, at any time, have constituted the manifest necessity, reason of manifest necessity, for the declaration of mistrial permitting, under the previous cases from this Court and in other — the lower federal courts, a retrial.

Harry I. Rand:

We have taken the position, we have endorsed Judge Waterman’s position, alternative position, in dissent that in no case should the misconduct of a prosecuting attorney be permitted to serve as the basis for a mistrial and subjection of defendant to a retrial without the defendant’s consent.

And the — the rationale — the — the — of that theory — of that doctrine, which Judge Waterman urges, is set forth more eloquently in his dissent than I can repeat it here.

That is his position that even if there were misconducts, such misconducts should never serve as a basis for a mistrial permitting retrial without the consent of the defendant.

But this case does not present that issue directly because in this case everybody is in agreement that the prosecuting attorney did not engage in misconduct.

And there is one further fact, fundamental fact, about which, I think, everyone is in agreement, certainly, the Government in its brief indicates agreement that there doesn’t appear to be any necessity of record for the declaration of mistrial.

In other words —

John M. Harlan II:

What you’re saying politely is that what you got here is a record show — showing misconduct on the part of the judge?

Harry I. Rand:

Well, not — not affirmative misconduct, perhaps some sort of well, unexplained conduct.

Let me put it that way.

I don’t — irrational conduct without suggesting that I used the word “rational” invidiously, but no conduct which has been rationalized in the record which we have here.

Now, the majority below, the majority below says that it appears clear to the majority that what the judge was doing in an over assiduous, to use that term, in an oversolicitous efforts to protect the defendant.

What the judge was doing was declaring a mistrial because he thought the prosecutor had engaged in misconduct by asking a question.

Judge Waterman, I do not believe, shares that feeling that — that appears to be clear from the record.

The fact is that the record discloses no misconduct because the majority and the dissent of Judge Waterman are in agreement that there was no disconduct — misconduct.

And the record discloses merely precipitous action by the trial judge without any request for a mistrial by the defense counsel and so we are confronted, as I say here, and I may as well open my argument with this long proposition, we’re confronted with a situation where, I think, there can be no dispute, but that the record discloses no necessity whatever, no manifest necessity and no necessity whatever for the mistrial declaration.

Indeed, the Government, in its brief, characterizes the trial judge’s action as seemingly capricious.

William J. Brennan, Jr.:

Did you make any objection of the mistrial?

Harry I. Rand:

There was no objection made because none could be made, Mr. Justice Brennan.

The witness was being examined.

The jury was sitting in the box.

The trial judge had not indicated that he was going to declare a mistrial, except he’d indicated that he was angry at the prosecuting attorney.

And he suddenly declared, as Your Honor will note at pages — page 14 of the record, “I direct the jury — juror to step out of the box, I declare a mistrial.”

Now, there was, of course, no opportunity to object, any objection at the time in front of the jury would have been futile.

And indeed, the Government in its opposition to our brief — our petition for writ of certiorari has suggested or stated rather clearly that the question of waiver here by failing to object is not an issue in this case.

Now, in — in addition to the fact that the record, without question, discloses no necessity whatever for this — for whatever the court did in here, the Government makes no effort in its brief to show that the mistrial served any purposes of justice or any public interest at all.

There’s no effort whatever made here to show that for some indefinable reason, some pervading reason, this mistrial declaration was necessary in order to protect some public interest.

Potter Stewart:

The — the record does show, it’s fair to say isn’t it, that although the judge was apparently suffering under some sort of misapprehension, that his motive seemingly was to protect the defendant from improper conduct on the part of the United States Attorney.

Harry I. Rand:

I’m not at all sure.

Now, this is how the majority construes the record but —

Potter Stewart:

On this time, it’s all set out here in your brief on pages 4 and 5, the whole — the whole (Voice Overlap) —

Harry I. Rand:

That’s right.

And if your — if Your Honor will look at the last statement of the court in the colloquy —

Potter Stewart:

Yes.

Harry I. Rand:

— “You heard me, I don’t want anymore district attorneys coming down here telling me how I am going to try the cases and tell your chief, if he doesn’t want to put anymore cases on — before me, it’s alright with me.

That’s all.”

Now —

Potter Stewart:

This —

Harry I. Rand:

— this would indicate some sort of anger —

Potter Stewart:

Yes.

Harry I. Rand:

— as to the, perhaps, repeated inaptitude.

So the trial judge suggested of the prosecuting attorneys were being sent into his courtroom.

Potter Stewart:

Well, until you talked up here, you said the court, “If you ask one more question that alludes to suspicion, I will withdraw juror and put this case over to January of next year.

Now, I want this crime proved not nine others which —

Harry I. Rand:

Well, that maybe.

Now, it maybe the —

Potter Stewart:

— he said — certainly, so far as it appears here, this was an — misapprehension as to what the United States Attorney was doing but —

Harry I. Rand:

But Mr. Justice Stewart —

Potter Stewart:

— I was just talking about the judge’s motive, motivation.

Harry I. Rand:

The motive — the motive and that’s the trouble —

Potter Stewart:

Motivation.

Harry I. Rand:

(Voice Overlap) case, we have to speculate as the motives.

But the motive may have been to protect the defendant as apparently the majority thought or the motive may well have been to teach the Assistant United States Attorney a lesson because he didn’t asked questions the way this trial judge thought they should have been asked, and he didn’t prove cases the way the trial judge thought they should —

Potter Stewart:

Or it might’ve been not to hear anymore criminal cases, just to do a civil business.

Harry I. Rand:

That may have been his underlying and secret motive, I don’t know.

[Laughter]

Now, the —

Hugo L. Black:

You — you have all the record in here that refers to this at all?

Harry I. Rand:

This is the entire record.

And the — the colloquy and the examination which appears at pages 13 and 14 —

Hugo L. Black:

Yes.

Harry I. Rand:

— is — comes from the record which was before the Court of Appeals in the form of an affidavit of the Assistant United States Attorney in which he sets forth this portion of the transcript.

My — I don’t know what the fact is, but I would assume, I should have checked it, I would assume that the track — the entire transcript was now prepared, but then in connection with the plea of former jeopardy, portions of the — of the testimony and the colloquy were transcribed for inclusion on the affidavits of the various parties.

And so, this is the entire record that was before the Court of Appeals, and it’s the only record that we have in this case.

William J. Brennan, Jr.:

I take it the plea was interposed before the start of the second trial, wasn’t it?

Harry I. Rand:

The plea was interposed before another judge of — not the trial judge either in the first case of the trial judge and the second trial was interposed before Judge Rayfiel, who in turn, on a motion to dismiss the indictment, denied the motion.Judge Rayfiel’s short memorandum of opinion is included on the record.

And thereafter, it was again interposed before the commencement of the second trial and rejected before the commencement of the second trial.

Now, the — in view of the fact that there is no necessity whatever record here for the declaration of mistrial, in view of the fact that there is no showing here that any public interest was served by it, it is our contention quite simply that under the rule enunciated in United States against Perez, somewhat more than 100 ago, a reversal of the judgment below is required.

Your Honors will recall, because Perez has been before this Court on numerous occasions in the last decade, Your Honors will recall that the doctrine enunciated in that case which dealt with the question of whether a defendant could be retried after a jury disagreement, was substantially this, that a trial court had authority to discharge a jury before verdict and put a defendant to a second trial, whenever, in its sound discretion, taking all the circumstances into consideration, there is a manifest necessity for the declaration of mistrial or the ends of public justice would otherwise be defeated.

And then in Perez, the Court went further to say that this power to terminate a trial by mistrial, ought to be used with the greatest caution under urgent circumstances and for very plain and obvious causes.

However flexible, Perez — the Perez rule may originally have been intended to be and the Government reminds us that it was intended to be flexible, and however broad, the later applications that rule may have made the rule.

We have found no case, the Government has cited none to us where a mistrial occurred and the retrial of the defendant was approved by any appellate court, where, as in this case, there was absolutely no occurrence of record at the first trial which afforded even a colorable excuse for the necessity of terminating that trial.

The Government argues despite the fact, there clearly was no necessity, insofar as we can find here, for what the trial judge did.

The Government argues, however, that even on a case where there is no necessity for mistrial, even in the case where the judge’s action maybe arbitrary or capricious, that the bar of double jeopardy does not attach, should not attach, unless the following occurs.

Unless the defendant, the accused, affirmatively demonstrates that the mistrial declaration resulted from somewhat “let man” motive on the part of the prosecuting attorney or on the part of the trial judge to oppress the defendant or that the declaration of mistrial would result in some extraordinary prejudice to him by virtue of his necessity to stand retrial.

Now, there is no case that’s cited in support of this, a rule which the Government advances here.

It’s a rule, I suppose, which I might, for purposes of brevity, refer to as the oppression or harassment rule, that the accused must show oppression or harassment to him by the prosecutor or by the trial judge before he can happily benefit of the Fifth Amendment double jeopardy proscription.

Now, we know of no case supporting that rule.

The Government cites none.

Moreover, it’s our position that upon analysis, the rule is impossible of application.

The evils, which the Double Jeopardy Clause were intended to guard against, were summarized by this Court only recently in the Green case and again in the (Inaudible) case as follows, that a person shall not be harassed by successive trials, that an accused shall not have to marshal the resources and energies necessary for his defense more than once and that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continued state of anxiety and insecurity.

Now, against the backdrop of these evils, which it is the purpose of the double jeopardy provision of the Constitution to protect against, to prevent, let us consider what the harassment or oppression rule advanced by the Government would involve.

Would then a trial judge before he could determine whether a mistrial should be declared and without loosing the — the Government the right to retry this defendant, must the trial judge then or review in court when it has to determine whether a mistrial declaration was appropriate in the first instance, must the trial judge of the reviewing court then inquire as to particular defendant’s financial resources?

Must he inquire as to the capacity of the particular defendant to withstand the emotional stress of anxiety and insecurity by reason of his continued subjection to criminal prosecution? Must he inquire as to the ability of this particular defendant to produce these particular witnesses that he needs for defense at some later date?

Must the trial judge of the reviewing court inquire as to the availability of counsel for this particular defendant?

Must they inquire into such light matters?

Is the constitutional right to be free of successive trials for the same offense, then to turn on such quantitative inquiries?

And since such measurements, such quantitative inquiries must necessarily vary from individual to individual, from rich man to poor man, doesn’t the doctrine, doesn’t the rule, which the Government suggests here, raise serious questions as to equal protection of the laws?

In short, a declaration of mistrial may be oppressive to a poor defendant who has paid his last penny for counsel because he cannot afford counsel for his — next trial.

Whereas, it may not at all be oppressive for the rich man who has plenty of money to support counsel throughout many successive trials.

This is the kind of measurement which undoubtedly would be required if the Government rule of harassment or oppression, the burden placed on a defendant to show harassment or oppression, would be adopted because then the trial court or ultimately the reviewing court would have to look into just such matters.

Harry I. Rand:

And in any event, how is it possible for a trial judge to do more than to speculate as to what the particular defendant’s condition may be three months from today or many, many more months from today, when the next trial will take place.

The determination according to the Government rule would also have to be made on the basis of some inquiry as to the motive of the trial judge in declaring the mistrial.

The reviewing court would have to look at the motive of the trial judge.

Our reviewing court stand to speculate as did the Court of Appeals in this case as to what move to the particular trial judge in taking his particular action.

It is our position that a defendant is entitled to more than assurance against merely the mala fides of a particular judge.

He’s entitled to the correction of error when it occurs below, a prejudicial error.

And he’s entitled to be free from successive trials where prejudicial error has occurred in that a trial judge has acted irrationally and is now subjected him to the vexations and the anxiety of standing for a new trial.

He need not — his constitutional right need not and should not depend on a speculation by reviewing courts as to what moved the particular trial judge before whom he happen to be when an — an — inexplicable or unexplained declaration of mistrial occurred.

Earl Warren:

We’ll recess now.

Harry I. Rand:

Thank you, Mr. Chief Justice.

The rule about which I have been speaking, the rule for which the Government contends, it seems to me quite plainly, constitutes a proportion from the old Perez rule.

Because for the — what — when the Government says the trial judges may act to declare mistrials even when there is no necessity of record to such action, then we have discarded the cause, the manifest necessity rule laid down in Perez.

When the Government says that a court can act even arbitrarily or capriciously to declare a mistrial and notwithstanding that, the defendant can be brought on for retrial.

We have, it seems to me, departed from the restraints which Perez suggested a sound discretion in the court, and we have exulted in place of this restraint of sound discretion, as the guardian of these constitutional rights merely the personal convictions of a particular judge that he was doing the right thing by everybody, the personal convictions which, indeed, as it appears from the majority opinion below, seemed to have been relied on by the majority below in sustaining the conviction of petitioner on retrial.

Now, before I reserve some of my rapidly vanishing minutes as I want to for rebuttal, I do want to point out in conclusion that despite the fact that the Government’s brief from time to time suggest that what they are urging here is some sort of a balancing process, the balancing of governmental interest as opposed to the balancing of personal rights by the accused in a criminal prosec —

Felix Frankfurter:

Now, aren’t we getting to the dirty word?

Harry I. Rand:

No, no.

I — I wasn’t attacking the word, Mr. Justice Frankfurter.

I was merely suggesting that although the Government — the Government’s brief seems to be suggesting this, and I’m more for balancing.

Felix Frankfurter:

That’s the verdict — dirty thought.

Harry I. Rand:

Well, may I be excused if I engaged in indulging a dirty thought for just a moment.

I was — I was about to say that even though the brief suggests, say, balancing process which the Government is urging the use in these cases, that in fact there is no balancing situation in this case.

Hugo L. Black:

What are the balancing?

Harry I. Rand:

Well, that’s it.

We are balancing what interest — what interest of the Government does this record disclose, has been satisfied by this declaration of a mistrial.

There is no interest here that’s been satisfied by the declaration of a mistrial.

There is, on the other hand, the very real interest of a defendant not to be retried again as in — and in this case injured by conviction because he has been injured by conviction.

Now, what the Government is in effect saying, as I understand their brief, is that you’ve got to retry a man until such time as you’ve gotten the verdict because there’s an interest in the Government in running the gamut of a particular criminal trial, until verdict is secured whether of acquittal or conviction.

In other words, the interest in finishing the trial, the interest in giving the Government a chance to get conviction, says the Government — says the Government’s brief, is more important apparently, is more weighty than the interest of an accused in being secure from successive trials.

This — the — this balancing that is the — the consideration of both these conflicting interest, however, was the very issue which, as I read the Constitution and the Fifth Amendment of the Constitution, was resolved when the Fifth Amendment was adopted, that is, the founders or those — that is the Congress that adopted the Fifth Amendment as part of our Bill of Rights said, “We think that notwithstanding the fact that the Government may be occasionally hurt by this.”

Harry I. Rand:

The interest of the accused in being secured from vexatious trials is greater than that of the Government in securing a conviction in all cases or even getting to the point where they can get a — a verdict of judgment in all cases.

Felix Frankfurter:

You get all — you get all that out of just reading the Constitution?

Harry I. Rand:

I get it out of reading the Constitu —

Felix Frankfurter:

You just get it all out just by reading the Constitution?

Harry I. Rand:

No.

Felix Frankfurter:

Even though I have any history, would you get all that out of those few words?

Harry I. Rand:

Well, I — I think the history supports me and —

Felix Frankfurter:

Well, I know the history, but you said you got it all out by reading the Constitution.

Harry I. Rand:

Well, Your Honor, I may have misspoken myself, but when I read the Constitution, because I’ve learned at the — at the feet of great teachers, such as yourself, when I read the Constitution, I read likewise the dicta — the precedents in the courts and the —

Felix Frankfurter:

Most of that.

Harry I. Rand:

Alright.

Felix Frankfurter:

Most of that.

Harry I. Rand:

That’s — that’s what I attempt to do.

Felix Frankfurter:

But if you merely get it from the word, then I’d like to have your (Voice Overlap) —

Harry I. Rand:

No, I wasn’t suggesting that, Your Honor.

Earl Warren:

Ms. Rosenberg.

Beatrice Rosenberg:

May it please the Court.

I think there’s one — only one thing that’s really clear in this field of declaration of retrial as the declaration of mistrial and that is that it just doesn’t fit into nice legal formula and abstract principles and the cases just can’t be reconciled that way.

That’s what this Court said in Wade against Hunter that this is essentially a practical pragmatic judgment that must be made in all the circumstances.

And the history of this particular problem, retrial it to declaration of mistrial, which we discussed in our brief at much greater length than I can do in the half hour here, I think bears this out.

Now, it’s perfectly true that the guiding light in the leading case in this field is this Court’s 1824 decision in United States against Perez.

But Perez is really understood.

Its actual holdings only if you consider it in the light of what was the judicial problem and the judicial concept at the time and then rather different from our judicial concept now.

In 1824, the problem was before the Court in Perez was whether the Court had — a District Court had power, and I stress the word “power” to declare a mistrial even though the jury had reported the bit, if they were out for a very long time, they couldn’t agree.

Now, that comes strange to modern ears but that was the mooted question in the whole field in that period of 1824.

And I think if you read the opinion, you will see that the opinion of this Court, which was written by Justice Story, did not treat this as the question of double jeopardy when he said on that score was simply, “The prisoner has not been convicted or acquitted and may again be put to his dissent.”

Now, that was his view of the Double Jeopardy Clause, which he reiterated in his work in the Constitution and which Judge Washington had — who was also on the Court, had expressed it in earlier period.

Let me say now, because I’ll come to it later that that’s not the view of the Double Jeopardy Clause that has prevailed, this concept that you must have a determination on the merit.Courts haven’t gone that far but I think it is important in reading Perez to realize that that was his view of the Double Jeopardy Clause shared by other Justices in this early period.

And then what they were considering on this question of power to discharge a jury was something which, in its origin and historical background, is something quite different from the common law pleas of ultra vires (Inaudible) and ultra vires convict in other words, of prior determination on the merits which was clearly the scope of the Double Jeopardy Clause.

Now, the question of the power to discharge a jury under any circumstance, even when the jury reported that it could not agree, has a very ancient origin and comes down from the common law which stayed to have had a concept that once the jury had started to hear the case, it was suppose to carry through to the end.

Beatrice Rosenberg:

Now, this seems to have had some mystical overtones apparently on the theory that the jury, as an institution, was invested with the kind of divine rectitude that went beyond the mortal men.

And it’s not such a strange concept in the early days, which when the trial by jury had emerged from trial by combat and trial by ordeal.

I point out that this was a harsh concept because it was coercive.

It coerced an agreement.

Because also by the ancient law of England, a jury was kept together without food or fire or candle and a nonsense agreement was coerced.

And I think it was part of the same historic concept of the divineness of the — the jury that had been sworn to try this case.

That it can’t for the rule that prevailed in the English courts that a defendant couldn’t move for a new trial because another jury would decide it or have the verdict set aside on appeal because then again, another verdict would decide it.

Now, that’s a harsh concept not at all necessarily a benefit to defendant and if this Court in Green recently made clear this was — this idea that there should never be a second trial, was not one which the Constitution embodied into the Double Jeopardy Clause.

The reason that this concept that a jury should not be discharged once it had started to hear the case, came in the early colonial years to have overturn the double jeopardy and was argued sometimes in terms of double jeopardy is historical.

When this notion that a jury was no — not divine and the jury could be discharged had weakened, in the time of Stewarts, in the old common law tradition that you must never let them go had departed.

It was an abuse of the discharge of the jury by the crown.

And so in the time of the Stewarts, it became apparently fairly common practice when the prosecution felt the case was going badly to discharge the jury and then assemble a new jury to hear the case when their evidence was better.

As revulsion from that and to the revolution of 1688, there seems to have been some sort of an understanding on the part of the English judges that they would not discharge a jury.

Now, there’s a reporter who reports these questions, the report as to whether it really was that they would never discharge a jury or that they would never do it for the convenience of the prosecution.

But in any case, the practice of discharging jury seems not to have been very common.

And the question was not definitively settled in England until long after the American Revolution.

The only significant case before the American Revolution was the case of Kinloch.

In 1746, in which the question it issued was whether the Court had power to discharge a jury even though the discharge was for the benefit of a defendant in order to enable him to put in the plea that otherwise would not have been available to him.

And when you read the early colonial — post revolution cases in the United States, most of them discussed it in terms of this question of power.

And this is not entirely, and whether it’s good for the defendant or bad for the defendant, it is this concept of whether there was jurisdiction in a second court to hear the case.

Now, that’s the question that Perez was discerning.

And it held, as the English courts did later when the question finally came before them in the nineteenth century, it held that there is power in a District Court of the United States to discharge a jury, when, for reasons of evident necessity or he said in the interest of public justice, such, of course, is necessary.

And if you read the Perez quotation on pages 20 and 21 of our brief, you think it is fairly evident that Justice Story, at that time and the Court acting in his opinion, was ready to go as the English courts did go later, which is to say once you recognize that the power exist, you have to trust the District Court and abide by their decision.

Felix Frankfurter:

Did it —

Beatrice Rosenberg:

He says — I’m sorry.

Felix Frankfurter:

Go on.

Beatrice Rosenberg:

He says, at page 21, “This is a power that the District Court should exercise sparingly.

They ought to do it too frequently.”

But, and I quote the end of our quotation, erred to rule, they have the right to order the discharge.

And the security which the public have for the faithful sound and conscientious exercise of this discretion rests in this, as in other cases upon the responsibility of judges under their oath of office.

Beatrice Rosenberg:

Now, let me say that that’s the position the English courts took up in the case in 1909 they said, “We think the District Court discharged the jury for a wrong reason, but he had the power to order of a discharge,” and therefore, they affirmed the conviction.

The American decisions never went quite that far even though Perez, I think very clearly, implied their point of view.

The American courts were never quite willing to trust one judge and one prosecutor as being the guarantee for the kind of abuses that they were most familiar with that had grown at the time of the Stewarts, where the prosecution would terminate the trial in order to get a better case.

And so in the federal courts, in the lower federal courts in the early period, there are decisions to the effect that where the prosecution was terminated, because the prosecutor wasn’t ready, because the prosecutor entered a nolo then even though the judge granted a mistrial and didn’t grant the judge an acquittal, it would be considered the equivalent of acquittal and retrial would be barred.

But even in that situation, even in the historical situation where the prosecution witnesses weren’t ready, this Court said in Wade, recently, and Justice Story said it earlier in the case of United States against Coolidge, even in that situation, we can’t lay down an abstract formula that will govern every situation we have to depend, we have to look at all the circumstances.

And so in — even in the situation where the prosecution witnesses aren’t available, it can’t be said that that ipso facto makes a second trial a violation of the Double Jeopardy Clause.

And early and late, it seems to me the rule amount to this that in the federal court a second trial after there has been a declaration of mistrial.

In other words, where there has been no determination of the merits, a second trial is barred only if the circumstances of the termination of the trial are such that it is properly treated as the equivalent of an acquittal.

I think counsel has misunderstood the Government’s position.

It is not that you decide whether this defendant is harassed or not harassed in — in that circumstance.

It is, under all the circumstances of the case in both in Perez, as early as Perez and as late as Wade, that this Court has always said considering the interest both of public justice and of a defendant considering both of interests, the question is, does a retrial come under such circumstances that it amounts, that it is just to treat the case as if a defendant had been acquitted because it is fair to bear in mind that there is a right to have an indictment by a grand jury trial.

And if the circumstances of the termination are not such that you can say it is the equivalent of a trial on the merit, then it seems to us proper that there should be a second trial.

And it’s on that face to say — I think this case must be judged.

And with the Court —

Potter Stewart:

For your test is that the circumstances must be such that one can reasonably and fairly say that it was the equivalent of the trial on the merits?

Beatrice Rosenberg:

The equivalent of an acquittal, that is, if the prosecution, as I see it, if the prosecution is not ready, which, until this very recent case of Whitlow in the District Court, are the only cases in the federal courts that we’ve been able to find where retrial has been considered bad, had been situations where the prosecution was not ready, one way or another, one case could enter the nolo.

Another case of witness wasn’t there.

And the third, he didn’t get his witnesses on time.

But those are the only situations in the federal courts where retrial, after a declaration of mistrial, has or certainly in the older cases, there maybe some variations a little later, but in the — in the older cases close to the Constitution, when the only situations in which the declaration was held to be barred, the second trial was held to be barred and they talked about it in terms of being equivalent to an acquittal, this stems, I think, you have — the reason is very difficult to talk about cases generally in this field, is that there was considerable variation in the States and a great deal does depend with the point of view with which you start.

If you start with the view that was the view of some State and which was explicitly rejected in Perez that retrial per se is bad.

There were decisions in state courts that it shouldn’t have a retrial even when the jury reported they didn’t agree unless at least they sat together for six days.

I think it was mentioned in one case.

That was said, well, that was enough.

But normally, you couldn’t have a retrial even for what would seem to us very necessary reason.

You start with that point of view obviously, then you say there can be a retrial only for a very good reason.

But the federal courts from Perez on have explicitly rejected that point of view.

They have said, basically, this is the power that resorts in the district judge and the exemption has come where it is felt that the combination of the district judge and the prosecutor has worked a situation which is so oppressive that it could properly be treated as a judgment of acquittal.

And I think that’s what this Court held in Wade.

Because in Wade, that was a situation where in the court-martial situation, the Court wanted additional witnesses itself.

And then by the time the witnesses could be — some in the worst situation had changed, it was necessary to start all over again.

Beatrice Rosenberg:

Well, the Court said, it was justified but obviously, it stands from the idea that there’s nothing so inherently wrong in a retrial when there has been no determination in the merits that if you — there’s nothing so wrong about that that you allow it only in the most exigent circumstances, this Court rejected that.

They rejected it in Perez.

They rejected it in Wade.

And therefore, the proper approach, it seems to me and the one historically correct.

In — so long as we’ve gotten through the notion that you can never have a second trial, we will allow second trial after motions for a new trial if they’re repealed and so on in the United States.

Then the proper view is to say an indictment ought to be tried and if — if preventing it from being tried has come in such a way that it is unfair for the defendant to continue the trial, then they are ought to be treated as a judgment of acquittal.

Earl Warren:

Ms. Rosenberg, does it — does that lead you to the conclusion that Mr. Rand was — was expressing that — that the action of the judge, according to your opinion, can be based on nothing in the evidence and still be justified?

Do you wipe out the language of — of Perez which says that this is left to the — or the faithful sound and conscientious exercise of the judge’s discretion?

Can he do it with — where there are no circumstances that call for discretion?

Beatrice Rosenberg:

Well, Your Honor, if I say it seems to me, it — clearly the judge cannot arbitrarily agree into mistrial in circumstances where he says — well, this witness isn’t here, and I think the Government ought to have him.

And even though it’s the Government’s fault, I’m going to declare mistrial in the trial we’re getting.

What the Court has said, as I read this means to say, that on the second trial, you look at all the circumstances, but all the circumstances, as I read the decisions of this Court, are not merely the right of the defendant but the rights of the Government, the rights of public justice in the terms of Perez.

And just as a defendant isn’t left at the mercy of a judge, if he declares a mistrial under circumstances where the fault is really the prosecution, so the Government and the indictment, which is after all an indictment returned by the grand jury and the interest of public justice generally, is not left at the mercy of a judge.

But the Court has to look at it and say, “Is this the kind of a circumstance where a defendant ought to have the benefit of a judgment of acquittal even though nobody has purported to find him either guilty or innocent?

Is that what the Double Jeopardy Clause was in time — in kind to protect?”

And I point out to you that if you’re going to say that if a judge makes a mistake in declaring a mistrial that has the benefit of an acquittal.

Then the more responsible the judge, the less likely he is to grant a mistrial, even when he thinks a mistrial is justified.

We have had situations, and they’re in our brief, where a judge made a mistake.

A judge said something and suddenly, he realized he shouldn’t have and he said, “Well, this is unfair to the defendant.

I think we ought to start all over again.”

It would not be a good thing for justice, it seems to me.

If a judge couldn’t said to himself, “Well, I made a mistake, but there’s nothing I can do about it, except let the case go up and go on upon appeal,” and then if the appellate court says “I’m wrong,” then we can start all over again because there would be a waiver of jeopardy.

But just because I myself recognize that I’m wrong, I won’t declare a mistrial because I really didn’t mean to find the defendant innocent.

And this is a situation that, it seems to me, we will be forced into, if you’re going to say that just because a judge made a mistake in declaring a mistrial, a — a defendant goes free although nobody has purported to find him innocent.

It is one thing to say that it is alright to have a defendant go free when a prosecution is either so careless or so unprepared that they don’t have the evidence against him, and we’re not going to give the prosecution a second chance to bolster at the case.

But it’s quite another thing to say that just because somebody made a — an honest mistake, and they do occur, everybody makes them, as I say, we have situations where the judge made a mistake.

He did something he shouldn’t have, and he said, “Yes, I recognize, I’ve made a mistake.

And so I want to start out free, with the trial free of this mistake.

If a second judge later on is going to say “Well, we don’t think that was serious enough to warrant a mistrial, therefore, the defendant goes free,” he will not be (Inaudible) to grant a mistrial.

Similarly, there can be a situation, and there was in the (Inaudible) case.

Beatrice Rosenberg:

It’s cited in the opinion below, where a prosecutor, in his opening state, referred to another case.

And judge said that’s wrong.

And the defendant objected, and the prosecutor said, ‘Well, Your Honor, I didn’t think I was doing anything wrong.

I didn’t mean to do anything wrong.

If — I’m perfectly willing to have the case start again before another jury.

Well, this was a mistake of the prosecution that caused a mistrial, but was an innocent mistake.

Now, obviously, if we’re going to weigh and measure whether the judge did what he did properly or not, then even if the judge thinks the mistake is fairly serious, he’s not going to declare a mistrial.

And perhaps, I ought to deal here with the suggestion that’s made in the brief at the other side that while the judge ought to wait for a motion because that would amount to a waiver and then you wouldn’t have questions of double jeopardy.

Charles E. Whittaker:

(Inaudible)

Beatrice Rosenberg:

That would amount to a waiver of jeopardy.

But this Court has never taken that point of view on the other situations when it’s allowed a mistrial for misconduct of a juror or for disagreement of the jury.

It hasn’t waited for the counsel in this — make a mistake and it can because, in the first place, there’s an obvious interest in counsel in waiting.

You have a situation where counsel simply objects but doesn’t move for a mistrial.

The objection — he may always take the chance that the mistrial is — that the objection is serious enough to call for reversal, if there is a conviction.

And this isn’t unknown situation.

It’s occurred.

It occurred in the Scott case which is cited in our brief.

It occurred in the case which is before the Court now called (Inaudible).

It is before the Court on petition for writ of certiorari.

Moreover, it’s an impossible situation where you have two defendants and one moves and the other doesn’t.

Counsel says, “Well, you consider,” but severance isn’t an answer either because there are situations in which it is just feared everyone to have a joint trial.

Counsels are provided for joint trials and there shouldn’t be an unnecessary severance.

And finally, I think it has a more basic objection than that, which is that a judge ought to be in control of the courtroom and a judge ought to decide when he thinks the interest of justice require a mistrial.

Now, whenever you have a judgment that has to be made and a judgment that has to be made quickly, there aren’t going to be mistakes occasionally.

But it seems to me that it would be a bad rule which would penalize a mistake of a judge in such a way that the responsible judge will be allowed to do what he thinks ought to be done.

I think this is a result that should be — had only if it were absolutely necessary in order to protect the rights of the defendant, and it does not seem to me that this is necessary to protect the rights of the defendant because the situation where a declaration of mistrial is truly a violation of the Double Jeopardy Clause in the sense that it amounts to a second attempt by the prosecution or even a second attempt by a judge to bolster a weak case can be dealt with, without making the situation such that anytime that the judge makes a mistake, what happened here is that rightly or wrongly, the judge made a mistake in favor of the defendant.

Earl Warren:

Well, Ms. Rosenberg, are there — are there any facts and if there are, I wish you would relate them.

Are there any facts in this case that would justify the Court has an exercise of the discretion contemplated by Perez in granting a new trial here?

Beatrice Rosenberg:

Well, if you ask — if you ask me, do I think the judge was right?

I don’t think so.

Earl Warren:

No, I didn’t ask you that.

I ask you if there were any facts upon which —

Beatrice Rosenberg:

Your Honor, I have the transcript here.

Earl Warren:

— you could face a sound discretion in favor of doing what he did here?

Beatrice Rosenberg:

Well, that — as I see it, the question is what is sound discretion?

It is certainly sound discretion for a judge to declare a mistrial that he thought inadmissible evidence — prejudicial inadmissible evidence was getting before the jury.

Now, the judge here made a mistake.

There’s absolutely nothing that one can find that would say why he thought there was prejudicial inadmissible evidence going before the jury.

I do not know and cannot see.

Earl Warren:

Well, may I ask you this?

In other situations where the judge is to exercise a discretion, can you think of any situation where we would justify the action of the judge where there were no facts of any kind upon which he could act?

Beatrice Rosenberg:

I don’t know, Your Honor.

I mean a judge —

Earl Warren:

Well, I don’t either that’s why I’m asking you.

Beatrice Rosenberg:

Well, what I mean to say is this.

A judge has a great deal of power that simply is not subject to review.

For example, a judge has the power if he’s sitting without a jury to find the fact.

Now, he may find the facts in the teeth of the evidence.

This still gives him the power to find the fact even though his decision is on the — in the face of the evidence wholly impropriate.

Well, there’s something in that situation here.

He has the power to find prejudice.

We may think he’d — the basis for this, I do not know.

But it seems to me, a strange rule which would say that if the judge has some basis for his action because the prosecutor mistakenly — the prosecutor made a mistake.

He can be — the defendant can be retried.

But if the judge made a mistake about the prosecutors making a mistake, then the defendant can’t be retried.

Felix Frankfurter:

Do we know — have we any basis for knowing whether this judge has had prior experience with this Assistant U.S. Attorney and had to admonish him in the past and saw what was coming and made, if you please, too hasty or ill-judged judgment as to what was next?

Do we know anything about that?

Beatrice Rosenberg:

I don’t know anything about that.

I do know that the Assistant had been trying cases sometime.

Felix Frankfurter:

So the judge evidently had experience with this?

Beatrice Rosenberg:

At that —

Felix Frankfurter:

I don’t’ know, I’m asking —

Beatrice Rosenberg:

I don’t know.

I don’t know —

Felix Frankfurter:

(Voice Overlap) —

Beatrice Rosenberg:

— whether they’ve had bad experiences.

Felix Frankfurter:

Well —

Beatrice Rosenberg:

I do know the Assistant had been in the office for sometime.

That’s all I know.

Felix Frankfurter:

He was very impatient and uncertain.

Beatrice Rosenberg:

Yes, he was.

Felix Frankfurter:

And impatience sometimes arises out of past experience with an individual in relation to the present.

Beatrice Rosenberg:

Sometimes.

I just don’t know, Your Honor.

Earl Warren:

Mr. Rand.

Harry I. Rand:

Mr. Chief Justice.

As to the meaning of Mr. Justice Story’s opinion in Perez, we have in our — we have in our reply brief set forth, the reasons why we do not share the Government’s views of what Mr. Justice Story meant, that is, the Government’s view being that Mr. Justice Story was speaking only of power to discharge and was not addressing himself to the Due Process Clause at all.

We have not, however, in our reply brief, referred to a statement of Mr. Justice Frankfurter I which came across just yesterday.

And we read in Green where Mr. Justice Frankfurter dissenting at page 203 of 355 U.S. says with reference to the Perez decision earlier, Mr. Justice Story had himself taken a nonliteral view of the constitutional provision in Perez, where he found that discharge of a jury was no barred to a second trial, contrasting that with the Story opinion in Gibert where he’d — he had taken on circuit, where Mr. Justice Story had taken a literal view of the constitutional provision.

Felix Frankfurter:

We do know what Story himself said about his opinion in Perez 10 years later, no, 10 years later in Gilbert.

You referred to Perez when he was dealing with the problem whether as a conviction, after a conviction, the defendant himself, couldn’t move for a new trial and get a new trial by waiving the fact that he had been convicted.

And —

Harry I. Rand:

And in —

Felix Frankfurter:

— Justice Story said that the Court, meaning his own opinion in Perez, made no reference to that constitutional provision or rather gave no exposition of it.

Harry I. Rand:

And yet —

Felix Frankfurter:

So apparently, he made precisely the distinction that is made by the Government here, namely, the greatest historic distinction between either a verdict or an acquittal, when the trial reaches determination and at cases such as he ruled in Perez, where he didn’t even think about the double jeopardy provision.

Harry I. Rand:

Well, with all deference, Mr. Justice Frankfurter, the reading which the Government assigns to, I think this is the Gibert case, the Gilbert one, follows by some other Justice.

Felix Frankfurter:

Yes, twosome.

Harry I. Rand:

Gilbert, yes.

And —

Felix Frankfurter:

Just 10 years later.

Harry I. Rand:

That’s right.

With all due deference, may I direct Your Honors attention to the language from that very same opinion which we have set forth at page 7 of our reply brief.

We have not given you the cite page.

I’d like to supply it now, page 1302 of 20 — page 1302 of 25 Fed. cases.

And Your Honor will find that there, Mr. Justice Story appears to be saying, making reference to the state cases which hold that the Double Jeopardy Clause does apply in mistrial situations, appears to be saying that he agrees with that.

Now, I am frank to say that when I read the statement to which you have just adverted, which appears somewhere about page 1300 or 1299 of 25 Fed. cases and of the statement at 1302, page 1302 which appears — which we’ve set forth at page 7 of our reply brief, “I am in a loss to know what the rave of the robust,” Mr. Justice Story writing the Gibert opinion meant to say about whether the Due Process Clause did govern mistrial situations.

And I ventured to say, Mr. Justice Frankfurter, you will — if — if you — if you address yourself again to this language, I think you too will come a way somewhat confused as to whether Mr. Justice Story meant what he said, when he said, “In Perez, we didn’t — we did not take the Due Process Clause into consideration,” meaning by that, we didn’t consider it applicable to mistrial situations or whether he meant what he did in the — at the later page, that I think the Due Process Clause does apply.

Felix Frankfurter:

What I meant — it so happens that I reread Gilbert only yesterday with all its 60 pages.

And that case is as clear as a bell that what Justice Story on circuit was talking about is that when the trial terminated according to all the English cases in the state cases, the double jeopardy bars a retrial even though the defendant wants it.

If the Court sees to be the law, it wasn’t — isn’t the law for a long time and is finally put to rest in the —

Harry I. Rand:

In the Ball case.

Felix Frankfurter:

— Ball case, 163.

But what he says about Perez and what Perez seems the best evidence is that Perez never refers to the Double Jeopardy Clause.

Harry I. Rand:

Well, may I just urge, Your Honor, the reading of that portion on page 1302.

Earl Warren:

(Inaudible)

Harry I. Rand:

Thank you very much, Mr. Chief Justice.