Green v. United States

RESPONDENT: United States
LOCATION: First Unitarian Church of Los Angeles

DECIDED BY: Warren Court (1957-1958)

CITATION: 355 US 184 (1957)
REARGUED: Oct 16, 1957
DECIDED: Dec 16, 1957
ARGUED: Apr 25, 1957

Facts of the case


Media for Green v. United States

Audio Transcription for Oral Reargument - October 16, 1957 (Part 1) in Green v. United States
Audio Transcription for Oral Argument - April 25, 1957 in Green v. United States

Audio Transcription for Oral Reargument - October 16, 1957 (Part 2) in Green v. United States

Earl Warren:

You may proceed Mr. Sand.

Leonard B. Sand:

Mr. Chief Justice, may it please the Court.

I would like to avert, if I may, to the question of double jeopardy and attempt to clarify the answers which I gave to the question asked by you Mr. Chief Justice and by Mr. Justices Frankfurter and -- and Black.

I stated that there was no difference between the case where the verdict returned if one of guilt at second degree murder and the case where the verdict which the jury returned to one count and in -- and in an indictment of not guilty of first degree murder, guilty of second degree murder.

There is no difference in legal consequence between those two cases under the view of the Trono case and under the view of the American Law Institute.

But if we want to put to one side these cases, one could have cause distinguish between the cases where the jury is absolutely silent and the case where there is a specific finding of acquittal, where there is silence on the part of the jury, for example, that silence may be the result of disagreement.

The jury -- there maybe a hung jury with respect to a particular degree of a crime and of course a hung jury has never in -- in recent times consort to be tantamount to an acquittal.

The jury may never have considered the -- that degree of the crime to which it returned no verdict.

The Government therefore went to some lengths in its brief to show that in no respect may this verdict of the jury at the first trial explicitly or implicitly be read as a finding of acquittal of first degree murder.

There was of course no such statement by the jury.

The jury merely returned a verdict of guilt in -- in the second degree.

We do know however from the other findings of the verdict -- of the jury with respect awesome count and with respect to the fact that the petitioner did cause the death of the victim that the jury found that in fact all the elements of the crime of first degree murder under the felony murder statute was satisfied.

Therefore if -- if the rule which were to be adapted were one which were to distinguish between the case where the jury returned an explicit verdict of not guilty or acquittal and the case where it nearly returned a verdict of-- of a lesser included offense.

This -- whether to be that distinction drawn, then this case clearly would not violate double jeopardy.

Hugo L. Black:

Have you looked up the cases (Inaudible)

Leonard B. Sand:

I'm -- I'm aware that in some states, the practice is -- is to require that the various degrees be set forth in different counts, in which case there is a verdict returned in -- on each count.

That of course is -- is not the -- the federal fact --

Hugo L. Black:

-- states that they charged murder in the first degree and they permit conviction all the way down to assault and battery.

Is there anything in your brief that could give us information on what is practically stated with reference to pleading the silence of the upper benches as exactly equivalent of a federal?

Leonard B. Sand:

Not in no terms Mr. Justice Black, but the question arises when there is an attempt to retry the defendant for the greater offense and of course it is clear that where there is a conviction for the less or an acquittal, for the lesser offense then retrial for the greater offense is precluded.

The reason for that is that when there is the second trial for the greater offense, the defendant is in jeopardy on the lesser count.

Therefore, he is being placed twice in jeopardy for the lesser offense, the offense for which he was found guilty at -- at the first trial.

Hugo L. Black:

Have you -- have you had any cases in your brief that indicates that that is rationalization to -- to call it jeopardy for the lesser offence?

I had supposed.

Maybe I'm wrong, the reason why that he had been acquitted of a greater offense and he could not again be tried to that offense.

Leonard B. Sand:

The -- the -- that would be the rationale in -- in a limited way of a state, in a state which said that the effect of the conviction for the lesser included offense is -- is the effect of the reversal of such a conviction.

It's not to eradicate the entire judgment.

That was -- is for example the reasoning of the -- of the state court in People against Stallings, recently specifically rejected by this Court in -- in the Trono decision.

My point and if I may state it again is that under the holdings of this case and -- and Trono and -- and then Brantley and under the view of the American Law Institute, it would make no difference whether the jury, with respect to a single count of the indictment, and that is the only situation we have here.

We're not faced with the problem of multiple counts where of course this Court has said that different counts of an indictment are as if they were separate indictments.