Green v. United States Review Example

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

DOCKET NO.: 46
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

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

Facts of the case

Question

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.

Leonard B. Sand:

Where in response to the one count, the jury returns a verdict of — in so many words, not guilty of first degree murder, guilty of second degree murder, but under the Trono case and the American Law Institute view, that would make no difference.

Retrial for first degree murder would be permissible that the facts in Trono are — are exactly that.

Where a distinction to be made between the two types of cases on the theory perhaps that where the jury is absolutely silent, we do not know whether they ever considered the count, whether they considered the count and did not agree or for any other reason, did not in fact pass upon the defendant’s guilt of that degree of crime.

And if the — the rule to be annunciated by this Court in a case which presented such a problem where that such a finding would preclude retrial and under the facts of this case, it is clear that retrial for the greater offense would not be precluded because here, not only was there no finding by the jury of acquittal of the greater offense.

But by looking at the — at the facts of — of the — the necessary implications of the verdicts returned at the first trial, we know that the jury found that the defendant was guilty of arson.

We know that the jury found that the victim died as a result of that arson.

Earl Warren:

Well, Mr. Sand, when does — when does jeopardy attached in a — in a felony case?

Isn’t it when the jury sworn and they proceed to try the case and unless — unless the case is interrupted in the middle of it because of some unusual circumstance that — that would bring about injustice, the man has been placed in jeopardy?

Now, if that is true, if that is the law, what has happened?

What did happen in this case to get around that question of jeopardy when the jury sworn and the evidence was taken?

Leonard B. Sand:

The verdict was reversed, Mr. Chief Justice, at the petitioner’s behest, where if not to be held — this was a problem which the founding (Voice Overlap) —

Earl Warren:

What verdict — what verdict are you talking about?

Leonard B. Sand:

The only verdict which was returned with respect to the murder count of the indictment.

Earl Warren:

But was there — there was no verdict reversed as to first degree murder on which he was put in jeopardy.

Leonard B. Sand:

Well, there was, Your Honor, under the — under the federal law.

A reverse of not only of so much of the — of the error.

It is one error here of permitting the jury to return a verdict to second degree murder.

It was not the reversal only of so much of the error has — has prejudiced the petitioner, but the perpetuation of so much of the error as operated to his benefit.

Here, were the error not — had the error not been committed.

We do not know what that first jury would have done, but we have — we have a good idea by virtue of the fact that there was a retrial with the same evidence and in the absence of that error there was a verdict of guilty of first degree murder.

This error prejudiced both — both the — both the defendant and the governor — and the Government in the words of — of Mr. Justice Douglas in the safer case, it tainted the entire verdict.

In no sense therefore can that verdict a part from the error which was the very error which caused the reverse he said to represent an acquittal of — of the defendant.

Hugo L. Black:

Suppose he’s been indicted for larceny, burglary and arson?

You found him guilty of arson and he said nothing about it, the other two.

He appealed his arson case.

Could they try him for the others?

Leonard B. Sand:

I — I — I — I’m not certain that I understand the hypothetic —

Hugo L. Black:

Three charges in the indictment, one burglary, one grand larceny, one arson.

The jury brings in the verdict and finds him guilty of arson.

The court charged him and they can find him guilty of all three.

Hugo L. Black:

He appeals the argument.

What happens with the other two cases?

Leonard B. Sand:

Well, this — this was a problem which the Court did not decide in the — in the Burton case, but this Court has said that separate counts of — of an indictment are as if they were separate indictments.

Hugo L. Black:

But is it not true of that separate charges where they had one count?

Leonard B. Sand:

No, Mr. Justice Black.

It — it is not true because the jury returned but one finding on that one count.

Hugo L. Black:

What case holds if that’s not the case?

If that’s not — that that is what she said.

What case holds that if one count charges three offenses that reversal of conviction on one to be treated differently on a case where they charge it in three separate counts?

Leonard B. Sand:

Well, it’s not one case but — but it’s a comparison of the holdings in — in the Harding, the Trono and the Brantley cases and — and which states that — that rare convicted for the lesser offense, the defendant can be tried for the — for the greater and the holding of this Court and I believe it’s Dunn against the United States that separate counts of an indictment are — are as if they were separate — as if they were separate indictments.

The — the Government emphasizes now as it emphasized in its brief that this case is in many respects an a fortiori case as I have said from Trono, the broad implications of the Trono decision and whether in all of the — of the hypothetical situations, some of which have been presented in — in questions by the justices.

Retrial would violate double jeopardy on that now before this Court.

The facts in this case are very peculiar because the theory of the reversal was that there could only be — this could only be the greater offense because we know from the verdict of the jury at the first trial that they found in fact all the elements of felony and murder because the nature of the error which was a single error tainted the entire verdict.

One might have for instance, the case where a defendant is on trial for a first degree murder and is convicted of man — manslaughter or it is convicted of second degree murder and there was an error at the trial with respect to the difference between second degree murder and manslaughter where the nature of the error did not in any way touch the greater offense.

It is conceivable there that the court would hold that where the error was of such a nature, so that it obviously do not affect the jury’s deliberation with respect to the first degree murder count, that they would then be found an implicit acquittal of first degree murder.

I’m not urging that rule on this Court.

I’m saying that it — it is a rational rule.

It would be a rational rule, but that is not this case, because here, the very error which led to the reversal was the error which — which prejudiced both the Government the defendant and lead to the juries returning a verdict on second degree murder.

Earl Warren:

Mr. Sand, may I ask one more question please.

Suppose in this case, the Court instructed them on both first and second degree murder and arson, the jury brought back two blank verdicts on the murder, convicted him of arson and the appeal is arson conviction, and it was reversed.

Would — would you then be in the same position he has here legally?

Leonard B. Sand:

Yes, Mr. Justice Warren, if there were no verdict returned on the murder count, then — then there is — then there is a hung jury.

Earl Warren:

No, no, no.

It’s just — they — they weren’t discharged because the jury didn’t agree.

He didn’t ask them any such thing.

He just — he just accepted the verdict and as he did in this case.

He accepted that blank verdict on first degree murder, a verdict of guilty on the second degree murder and a — and a verdict of guilty on arson.

Now, suppose instead of there being a verdict of guilty on that second degree murder charge, suppose they just found him guilty of the arson and let the other two blank, would — would you be the — in a different position than you are now, if they tried him and give him a death penalty?

Leonard B. Sand:

He — he can be retried for — for murder and I would like to emphasize this.

There were two counts in this indictment, one was a murder count the other was an arson count.

Leonard B. Sand:

When the jury returned its verdict, they were asked whether there was verdict on — on the murder count in — in the hypothetical which you suggested Mr. Chief Justice.

The — the jury would be silent.

They’d be asked — the foreman would be asked, “Have you reached the verdict on the — on count two of the indictment?”

And there would be no answer.

At that point, I would supposed that the — that the trial judge would — would inquire whether the jury was — was divided.

And if it was divided, they would — they send the jury back for further deliberation —

Earl Warren:

Well —

Leonard B. Sand:

— only discharge the jury as a hung jury.

Earl Warren:

Well, it’s been my experience that if you have three verdicts and one of them is not filled out, return to the jury, the judge will do the same thing.

And why didn’t — why didn’t they do it here?

Leonard B. Sand:

I — I think that that would be the case where arson, a lesser included offense of murder were these all one crime or lesser degrees of a crime, but these were two separate crimes.

Arson is not a lesser included offense of murder.

Therefore, had — had there been complete silence on the part of the jury with respect to the — that count.

Under — under federal practice, the jury would have either been sent back or would have been discharged and under no sense would — would the defendant have been — have been precluded with retrial, be precluded because —

Felix Frankfurter:

Let’s — let’s see if I understand you.

Do you mean to say if — if the indictment, count one for arson, count two for burglary, count three for murder and the jury brings in a verdict, we find the defendant guilty of count one.

The count find the defendant guilty of burglary count one.

I think that’s count one.

Say nothing about the other two that Chief Justice called blank and the judge accepts that verdict.

It held the clerk to answer that verdict and then thanks to jury for the devoted services that caters me and they go away and then enforces the sentence of X years for burglar, did I — do you say or suggest that the Government could have a — a trial, another trial for murder and arson?

I’m not suggesting an appeal.

The defendant does nothing.

His — he and his counsel are very happy over this result and they do nothing, could the U.S. Attorney of the District here move a new trial for arson and murder?

Leonard B. Sand:

I — I have difficulty with the hypothetical, Mr. Justice Frankfurter because I — I think under federal practice, it just doesn’t happen.

Felix Frankfurter:

Well, I know.

Leonard B. Sand:

Yes.

Felix Frankfurter:

That’s for the hypothetical, there’s something that doesn’t happen.

It didn’t happen.

Leonard B. Sand:

Which — which may or may not happen.

Felix Frankfurter:

Well —

Leonard B. Sand:

If — if there is a — I would think that unless the jury is discharged on those counts as having failed to reach an agreement and informs the judge —

Felix Frankfurter:

No.

That isn’t what I said.

Leonard B. Sand:

Yes.

Well, as in those, I would think not.

Felix Frankfurter:

Why can’t you answer a simple question?

They — they say nothing about two and three.

There’s nothing and they say, “We find the defendant guilty on count one.”

And the judge whether he does or doesn’t obey the federal rules or knows them or doesn’t know them held the clerk to enter that and thanked the jury who send them home.

Leonard B. Sand:

Now —

Felix Frankfurter:

Can the U.S. Attorney the next day move the trial on counts two and three?

Leonard B. Sand:

No.

Felix Frankfurter:

Well, the answer is simply no.

Leonard B. Sand:

No — yes, very simple.

Felix Frankfurter:

All right.

Leonard B. Sand:

It would — that the result would not be that if — if the jury (Voice Overlap) —

Felix Frankfurter:

But that’s a very different question if he appeals that to the Court of Appeals and that is reversed.

Leonard B. Sand:

Yes and it’s also a different —

Earl Warren:

What is your answer to that if — if the appeal’s burglary conviction, can they then try him for the murder?

Leonard B. Sand:

No, no because the — the different counts — the different counts of — of an indictment and — and they stand as if they were different indictments and different trials on that indictment.

May I just clarify —

Hugo L. Black:

— right to form of jeopardy would depend all together on whether the prosecuting attorney put it in three counts or one.

Leonard B. Sand:

Well, if there are many aspects of — of jeopardy which — which depend on the — the form in which the — the charge which the prosecutor chooses to bring in the first instance, whether it’s the greatest, whether it’s a lesser one.

Felix Frankfurter:

Are we discussing the real thing when we talk about rape, arson and burglary all put in one account.

Is that a real situation?

Leonard B. Sand:

It would have to be very bad offense.

Felix Frankfurter:

Well, I should think that U.S. Attorney ought to be fired quickly from that.

Leonard B. Sand:

Yes.

And of course, if they’re entirely unrelated more than he has — have no business being in one indictment under the — under the federal rules and the defendant could move to sever and there would be a (Voice Overlap) —

Hugo L. Black:

Why do you — why do you answer to it hurriedly that that’s impossible to conceive.Have you looked that up in the book?

Leonard B. Sand:

That — that what is impossible to conceive?

Hugo L. Black:

The combination of those in one indictment or in one count.

Leonard B. Sand:

I would think that under the federal rules, if there were no rational connection between the charges that the — that there would be a misjoinder of counts if those counts were in the same indictment that the defendant could move to —

Felix Frankfurter:

But isn’t the — the hypothesis was just one count we hereby charge the defendant with having committed rape, arson and murder, all in one count and no more.

Leonard B. Sand:

That’s a duplicitous count.

It’s a bad count.

Felix Frankfurter:

I wasn’t talking about it.

I don’t know (Inaudible) on this point, and that’s conceivable that a U.S. Attorney would do that or the judge would allow it.

Leonard B. Sand:

It would be a bad count and it would be dismissed if being duplicitous if it — if it charged more than one crime in one count.

It would be bad if there are more than one crime named in one count.

It would be bad if the indictment contains several counts which were factually unrelated to each other.

Earl Warren:

Thank you Mr. Sand.

Felix Frankfurter:

Justice Whittaker —

Earl Warren:

Justice Whittaker wanted to ask you a question.

Charles E. Whittaker:

I would like — I would like to ask you one question at least, pardon me Mr. Sand.

I understood you to say that you (Inaudible) case.

Now, you said that at the beginning and I foresee you do now.

Was the law in the Philippines at that time as to what constitutes a trial, similar to what constitutes a (Inaudible) court in the trial therein even now?

Was it not the law there then that a trial in the court of first instance so-called or before a magistrate was as commented upon, both in Kepner and in Trono, a preliminary or an investigatory proceeding and that review as of right existed to the so-called Supreme Court of the Islands which had the power to try the case, de novo on both the law and facts.

And must not what is said by this Court in that case, be read against that factual background even though it did say that the case should be considered as one having been tried in a Federal District Court.

Leonard B. Sand:

It — it is the fact that the trial proceedings in the Philippine Island were — were as you have stated, Mr. Justice Whittaker.

Charles E. Whittaker:

Then if I may break in like that.

Then, would not the jeopardy necessarily continue under that situation until the completion of the trial, which could and only this, the judgement of the Supreme Court?

Leonard B. Sand:

It — it could and if that were the basis for the — this Court’s decision in the Trono case.

We — we would have an entirely different situation, but the Court went at great pain.

It was a great pain and it was very explicit, both — both the majority opinion in Trono and the dissenting opinion — and the opinion of the Court in Kepner in stating that because the language which was being construed was the language which was taken word for word from the Fifth Amendment and from the Bill of Rights that — that the question was before the Court was, as the Court put it, as if the case arose in one of the Federal Courts of the United States.

On the facts, that distinction could be drawn.

The court did not draw that distinction in — in Trono, explicitly based its holding as if it were construing the Fifth Amendment and of course in later cases, as — as in Brantley, the situation was not of a case arising from this peculiar Spanish background which was a case arising in the United States with the trial by a jury.

Felix Frankfurter:

Shouldn’t you have when Mr. Blow pointed out on his argument, namely that Mr. Justice Brown wanted to arrest the Kepner case and one of the differences is between the Philippines.

Leonard B. Sand:

Of — of course if — and this is also in response to the question asked by Mr. Justice Harlan.

Leonard B. Sand:

It’s clear that if — if you accept it the review — the view of double jeopardy of — of Mr. Justice Holmes dissenting in Kepner, if you took the period of continuing jeopardy then of course there’s just no — no question at all with the — that retrial for first degree murder would not violate that (Voice Overlap) —

Felix Frankfurter:

May I suggest to you and to Mr. Blow that in fact — in fact, that’s what the Court did do in Trono.

That’s what it did do.

I take it — I don’t know more than you do from reading and also in (Inaudible).

I take it that Mr. Justice Holmes concurred in the result, because he wasn’t satisfied with the clarity of the theory or neither he have indicated the confusion of the theory on which or by which the court reached the result and that explains what otherwise is inexplicable, the dissent of Mr. Justice McKenna and Mr. Justice White.

Mr. Justice McKenna and Mr. Justice White in Kepner agreed with Justice Holmes’ dissent on the continued — continue on the proceedings theory.

And they dissent it because the court didn’t go far enough, and then they — in the — in Kepner — and in Trono they dissented because they said, “Well if you didn’t go that far and (Inaudible)

Leonard B. Sand:

I — I think it is clear that — that the Holmes concurrence in — in Trono is based on — on a discontinued belief in a view which he had expressed merely a year or so before of the view of continuing jeopardy.

Felix Frankfurter:

Yes, but I think the majority is — I think (Voice Overlap) the Court in — in Kepner — in Trono.

Otherwise, we’ll run into the difficulty into which I write, not on purely logical ground, but on other consideration of equality that it has been rightly called, that although you bring in an affirmative acquittal on a major — on the most serious crimes and if the defendant appeals on the minor crime, if he has a set of instruction, he himself opened it up.

He opened up the whole thing.

That’s the point and that was the essence of Holmes’ dissent in Kepner which the court didn’t take, but in effect, they took it in Trono.

Hugo L. Black:

Do you find anything in Trono that says that?

I find four (Inaudible) read to what you are arguing and no more one case (Inaudible)

Do you find any words or any language in the Trono case or anything to define justice agreement that this was all together of course on the basis of the Bill of Rights?

Leonard B. Sand:

On the Bill of Rights?

Hugo L. Black:

Yes.

Leonard B. Sand:

Oh, yes.

I — I — there is an explicit language in the Trono decision that the case is — as if it arose.

Hugo L. Black:

In what decision?

Leonard B. Sand:

In the Trono decision that the Court specifically stated that this case is as if it arose in a Federal Court in the United States and the problem was one of — of construing the — the Fifth Amendment.

Charles E. Whittaker:

The double jeopardy provision.

Leonard B. Sand:

The double jeopardy provision of the — of the Fifth Amendment.

Charles E. Whittaker:

But my question a while ago was that if a trial under the existing law at that time, the Philippine Islands consisted on.

Both this preliminary hearing and for the first instance and a de novo trial on review upon both the law and the facts in the Supreme Court then wouldn’t necessarily jeopardy have to continue until there had been an end of the trial which concluded with the judgment of the Supreme Court of the Islands.

Leonard B. Sand:

And my — my answer is — is yes that under the practice in the Philippine Court, the — the appellate court could sua sponte have imposed the greater sentence, but had it done so in the light of the provision which — which was applicable in the Philippine Islands and which was verbatim from the Fifth Amendment.

Had it done so and had this Court thought that it was a violation of double jeopardy which were done so.

The Court would not have decided Trono as it did.

In other words, in fact, the practice in the Philippine Islands was such as to permit the reviewing court to impose a greater sentence to subject the defendant if — if you will to continuing jeopardy.

Charles E. Whittaker:

I — I wonder what it is to be said or the possible confusion that Justice Holmes’ dissent in the Trono case is to be read against that background of the preliminary trial and the final trial in the Supreme Court as a continuing jeopardy?

Leonard B. Sand:

I — I — I believe that one must read the Holmes concurrence in Trono in the light of the dissenting opinion which is quoted at — at great length in the Government’s brief in Kepner because in that opinion, Mr. Justice Holmes specifically directed himself to the question of limited waiver, to the — to the question which is now before this Court and specifically rejected the state court rule and — and stated that under his view, there is not a limited way but there can be a retrial for the greater offense.

Therefore, I think that — that it’s entirely logical and — and reasonable to say as — as Mr. Justice Frankfurter has suggested that the basis for Holmes’ concurrence in Trono was not because of any quantitative result because of course the concurrence with the majority, but because the majority was not clear and explicit enough in accepting the view which — which he had suggested in Kepner, which is that it is — there is but one jeopardy in one proceeding, a continuing jeopardy notion.

Holmes — it cannot be said that because Holmes merely concur, there were not four justices of the Supreme Court which rejected the limited waiver doctrine, because one would then have to completely ignore Holmes’ view of — of double jeopardy and expressed —

Hugo L. Black:

Can it be said that there were four — more than four who did accept the limited waiver doctrine?

Leonard B. Sand:

I — I think that it can’t.

For who did —

Hugo L. Black:

Can you say that Holmes did it?

Leonard B. Sand:

Did — did not —

Hugo L. Black:

Rejected the limited waiver doctrine?

Leonard B. Sand:

I can say that Holmes specifically rejected the limited.

Hugo L. Black:

That’s right.

Leonard B. Sand:

Limited (Voice Overlap) —

Hugo L. Black:

Then you have four people who agreed to the basis, to that one same basis of the Trono case.

That was of limited waiver.

You have anymore?

Leonard B. Sand:

Mr. Justice Black, I think the four justices who agreed with the majority opinion reject the limited waiver view and — and do no more, a query whether they do more than that, but at least they specifically reject the limited waiver view deciding the case as if it arose in the Federal Court in the United States.

There is Mr. Justice Holmes whose views is to double jeopardy.

He made known.

I believe it’s a year earlier in another case arising from the Philippine Islands in the Kepner case.

And in that opinion, he too specifically rejected the limited waiver doctrine and went — and went beyond that.

Hugo L. Black:

And you have, do you not, five justices in the Trono case who rejected the opinion upon which you so heavily relied based on limited waiver?

Leonard B. Sand:

Well —

Hugo L. Black:

Is that not correct?

Holmes did it in Kepner and the others did it there.

Is that not right?

Leonard B. Sand:

It — it is right in — in a very quantitative sense.

Hugo L. Black:

I’m not talking about quantitative.

I’m talking about the opinion on which you rely that’s written by Justice Peckham.

He went on a doctrine that a man who appealed once of one conviction, waived his rights for trial, acquittal on another.

Leonard B. Sand:

One —

Hugo L. Black:

That was it and there were only — is not true that there were four only to back that opinion, would you say this Court now has to follow on the basis on which it would put?

Leonard B. Sand:

It is — it is of course indisputable that there were four justices who joined in the majority opinion.

There was a concurrence by Mr. Justice Holmes.

It is equally, I think clear, that at the time the Trono decision was rendered by this Court, five justices made known their view.

When one view — when one takes Trono in the light of Kepner that the — the law in the federal courts was the law which rejected the limited waiver view — doctrine.

And in Trono specifically, in the majority opinion, the Court pointed to the state court decisions such as People against Darling in New York, not Philippine Island decisions, not the decisions of the territorial court.

The point to the opinion of — of the New York Court, People against Darling which was then a leading case on — on limited waiver and specifically rejected that doctrine.

Felix Frankfurter:

Mr. Sand, there was a decision in Trono wasn’t it?

The fact that Mr. Justice Holmes just concurred into his own, didn’t take him out of the case, did it?

Leonard B. Sand:

They —

Felix Frankfurter:

There was a decision —

Leonard B. Sand:

And of course —

Felix Frankfurter:

— the four went to the extent of saying that although a man was acquitted in turn, he could be retried to the thing on which he was acquitted in terms if he appealed on a lower grade trial.

And Mr. Justice Holmes said, “I’m a whole handler.

I want to go beyond that.”

So, that doesn’t take him out of the case.

I think it puts him in the case plus.

Leonard B. Sand:

It — it would be —

Hugo L. Black:

Mr. Justice Holmes, may I say one further on that?

Now, according to my understanding, he rejected the bases of the four and you do have a decision by the Court in which there were five who joined on two different grounds.

Now, this Court under the rule as I understand it, according to what is followed — when it finally decided that question again, each five, either on one or both of them and they have no — no files in the majority that has evidence on either of those grounds separately that a former jeopardy cannot be treated here, have they?

Is there any opinion by five members of this Court which you can point, which holds that this man free of former jeopardy is barred on one of those two grounds?

Leonard B. Sand:

Well, there — there is Brantley as I pointed out earlier.

Hugo L. Black:

Are you talking about the Georgia case under the state law (Voice Overlap)

Felix Frankfurter:

What about Stroud?

Leonard B. Sand:

Where the court?

Felix Frankfurter:

What about Stroud Mr. — specifically said that under any view of the Constitution —

Leonard B. Sand:

Yes but —

Felix Frankfurter:

— under either the Fifth —

Hugo L. Black:

What was the case?

Leonard B. Sand:

— or the Fourteenth —

Hugo L. Black:

What was the decision (Voice Overlap) —

Leonard B. Sand:

— in fact — in fact in that case.

Hugo L. Black:

We are told we should look at the decision.

What was the decision?

Leonard B. Sand:

In fact, that case arose from the state court.

Felix Frankfurter:

What about Stroud Mr. Sand?

Leonard B. Sand:

There is — there is Stroud and Bryan and all the similar cases which holds the consequence of a — of a reversal of a judgment is to submit —

Felix Frankfurter:

I don’t think you stated —

Leonard B. Sand:

— retrial.

Felix Frankfurter:

— the essence of Stroud, Mr. Sand, if I may say so.

Stroud was a case where a man was convicted of murder and because — and the government confessed error, confessed error because the jury was in charge that they have a right to determine whether it should death or not, because the Government confessed error improperly.

He then was retried and the jury brought in a verdict, not death and that was reversed on another ground and then he was convicted and sentenced to death, although he had already been limited to punishment without death, a life sentence.

And so, seriously, the Government deemed a failure to charge in the original that they confessed error and then he was sentenced to death.

Leonard B. Sand:

Of course —

Felix Frankfurter:

And they cited Kepner in there.

Leonard B. Sand:

And Trono — Trono.

They cited Trono.

Felix Frankfurter:

Trono — both of them were cited.

Hugo L. Black:

Who appealed his trial?

Who appeal his trial?

Leonard B. Sand:

Who appealed his trial?

Hugo L. Black:

Who appealed the Stroud case that you’re talking about?

Leonard B. Sand:

The defendant appealed it.

Hugo L. Black:

The defendant.

Leonard B. Sand:

Yes, and the Court said by his own action.

In Green, the appeal — he — he invoked or created the situation whereby he could be in a sense that —

Hugo L. Black:

And do you — did you accept the suggestions that (Inaudible) case?

Leonard B. Sand:

Oh, oh I — I do, Mr. Justice Black, because — because as I said earlier — first of all, under the District of Columbia law, there’s just one, in essence, one crime of murder that this Court said in the Fisher case.

So, one can say that both at the first trial and the second trial as in Stroud, there was a finding by the jury with respect to the — to the one crime charged which is murder.

Leonard B. Sand:

Also, it’s — it’s like Stroud because we can look at the verdict.

Return to the first trial and say that that jury found this defendant guilty of — of felony murder and that they found the felony and they found that the felony caused the death, the — the return of the verdict to second degree murder was — was in many respect analogous to the finding of — of no capital punishment in Stroud.

I — I think the case is very (Inaudible).

Earl Warren:

Thank you.

Mr. Blow.

George Blow:

Mr. Rublee is scheduled.

Earl Warren:

Oh, Mr. Rublee.

May it please the Court.

Earl Warren:

Rublee.

The Government’s position that this case is analogous to the Stroud case, their argument that it is essentially unfair for petitioner here to claimed that an acquittal survived to the appeal, their argument to dismiss the murder charge absolutely here would make the Court a place for a game rather than a place for the — to the justice that this was a tricky thing.

All of these arguments rest on their assumption as to what went wrong in the minds of the jurors at the first trial.

They are speculating about the jurors when Mr. Sand says that the jury found that Mr. Green has killed Ms. Brown at the — in the perpetration of the arson, he is speculating and his speculation was not shared by the Court of Appeals when it reversed that second degree of conviction.

If the Court of Appeals had shared Mr. Sand’s certainty as to what went wrong in the minds of the jury, they would have been reversing solely for the benefit of the Government.

Mr. Sand’s argument that Green claiming his course of conduct, constituted first degree murder and that his second degree of conviction should be set aside because of that.

Ignores what the Court of Appeals held.

They held that the second degree charge was not an invitation to the jury to compromise so much as it was an invitation for the jury to convict Mr. Green of a crime which he hadn’t committed, a crime for which there was no evidence in that record.

Now, that is perhaps a delicate question.

Just what exactly was on this charge?

What could it signify?

I should like to read to the Court, part of the charge given at the first trial.

The statute means that if a person kills another in the perpetration of an arson or attempting to perpetrate an arson, the killing is murder in the first degree.

Under such circumstances, it doesn’t make any difference whether the killing was committed with or without purpose so to do.

Any killing even if committed without any purpose so to do, even if it is accidental and it is committed in perpetrating an arson is murder in the first degree under the law.

That charge — then there was a second degree charge which just said if you find that he killed her without premeditation, he may return a verdict to second degree.

But, there had been a serious challenge to the manner of Ms. Brown’s death raised by defense counsel at the first trial.

The Government has not produced the doctor who made the test of Ms. Brown’s blood and upon that blood test, rested the Government’s point that Ms. Brown had died as a result of the fire.

The prosecuting attorney took this attack on their testimony at the first trial, seriously enough to call this witness at the second trial.

He believed that he should proceed against Green with this witness.

If we — if this Court is to speculate about what went on in the minds of the jurors, we think it is not to be disregarded that they might have felt.

We don’t know how Green killed Ms. Brown.

We can’t tell.

The defense attorney certainly made a fuss about whether or not the Government can prove she inhaled smoke and died.

And the judge told us if we thought she died in the fire that we had to return first degree, but there were the two of them in that house and one of them was dead and the other one we feel committed arson and we feel he told us a lie about an intruder coming in and stabbing him with an ice pick.

So — and also, he is on trial for killing her.

There must be something in that.

We don’t know how he did it, but we can just find him guilty of second degree.

The judge told us if we thought he killed her and didn’t mean to do it, it wasn’t premeditated, that’s second degree.

Well, that’s the speculation that’s possible.

We’re getting to a great deal of trouble when we start to speculate.

I should like to also comment a bit about the idea that this charge was very unfair to the Government.

The prosecuting attorney sat on his hands when the second degree charge went to the jury.

In fact, in his summation to jury, he told them that second degree charge will be given.

Now, if this Court holds that by appealing that erroneous lesser conviction, Green’s subjected himself properly to retrial on the greater charge.

You are creating a lovely situation for prosecutors in difficult cases.

We submit the prosecutor let the second degree charge go to the jury because he was afraid that jury might not convict on first degree.

This was a rather sympathetic defendant.

And we submit that if you hold the way the Government wishes you to hold in this case, you will leave prosecutors in the driver seat.

They can let the lesser erroneous charge go to the jury securing a knowledge that they will get a conviction or they have a better chance of getting a conviction, otherwise, they wouldn’t let it go.

And if they — if the defendant is rush enough to appeal that conviction, the Government will have another chance adding on the greater charge which they couldn’t prove for which they had enough doubt about so that they let the lesser go to the jury.

Now, sure there was a benefit to Green in a way from the second degree charge, we don’t deny that.

It is possible that the Government’s speculation maybe true in fact although improper as a matter of procedure.

But who is to bear the burden in a situation like this, the defendant or the state?

You are faced to that choice.

I’d rather assume the trial judges generally are going to give their erroneous instruction to that (Inaudible), are you?

I didn’t hear you.

Does your argument rather assume the trial judges are more prone not to give erroneous instructions?

Well, we do think that this is a difficult situation.

It’s not one that it’s frequently going to come up, but what I have said about other cases applies and enforced here.

Now, there was another policy argument by the Government that Green argued his cause.

They — they mentioned the ALI recommendation and the ALI recommendation contained some remarkable language.

It says when a defendant procures a reversal of the lesser conviction because his course of conduct constituted the greater.

Well, that is extraordinary.

That is though as I’ve said earlier Green had gone into the Court of Appeals and said, “You haven’t punished me enough and I’m curious and I want a new trial,” of which he did not do.

It assumes that the jury must have interpreted the charge to be an invitation to return as trial verdict.

Felix Frankfurter:

What did you ask to the Court of Appeals out of the —

The Court of Appeals was urged to reverse by Mr. Blow because there was insufficient evidence to sustain the second degree conviction and also because the second degree instruction prejudiced Green and let the jury abandon their inquiry as to how Ms. Brown died.

The jury was invited not to worry about the manner of Ms. Brown’s death by the second degree charge and that is essentially what the Court of Appeals held.

They held that without a second degree charge, Green might have been entirely free.

Felix Frankfurter:

I suggest to Mr. Blow.

I don’t make this argumentatively.

I think your position really necessitate — could have — should have necessitated the Court of Appeals in dismissing this case.

We agree with you, Mr. Justice Frankfurter, but there was this possibility and I don’t know what the law on this would be because it is not exactly our case, but had the Government had good evidence of second degree which they didn’t put in.

It is not absolutely clear in my mind that they might not have been able to prosecute on second degree.

Felix Frankfurter:

Could it only be said for the English human — a great deal of sympathy if presumably the Government put in as — as part of the case, at least I should like to — I think it’s desirable to indulge in — in substance so far as it’s relevant that the prosecutor isn’t putting on a preview that they should be put to his utmost proof at the first chance?

We agree.

Felix Frankfurter:

Except when the Court of Appeals — except in appellate tribunal makes the ruling of law.

I mean it could not have been anticipated or the Government state its evidence on this rule of law rather than that whether it would be conscientious and able, my mind as a prosecutor, may I say I don’t think this is the theory of the case.

But the appellate court thinks otherwise and he reshapes his evidence?

But that is —

Felix Frankfurter:

But that isn’t this case.

That is not this case.

This case, the prosecutor was insufficiently sure that he had put on enough so that he allow the second degree charge to go to the jury.

We submit that if he had been absolutely confident in this case, he would have insisted that first degree charge only goes to the jury and —

Tom C. Clark:

(Inaudible) second degree charge?

The prosecutor?

No, Mr. Justice Clark, he did not.

He sat by, we say on his hand.

Tom C. Clark:

(Inaudible)

The record does not show any discussion about the second degree charge, Mr. Justice Clark.

It just shows that both counsel for the Government, the prosecutor and the counsel for Green held the jury in their summations that the judge would be charging the jury on second degree as well as on first degree.

And the judge did so.

Tom C. Clark:

(Inaudible) before the argument.

They were not very formally delivered.

The transcript of the first trial shows that the judge charged over a long period of time.

He did not read a specific paragraph that has been drafted before him by counsel.

The record have shown that the Government opposed the second degree charge (Inaudible)

The record does not (Voice Overlap) does not show that and neither Mr. Blow or myself presenting the case and we do not know this Your Honor, as to who initiated the idea of second degree.

One more thing about the Stroud case, there you do have a specific brief of guilty of a capital crime and an express recommendation of less than capital punishment.

But you’re not there required to interpret as silenced on the capital charge and a specific verdict of less than the capital crime with a verdict of guilty of the capital charge.

Felix Frankfurter:

But I put it to you that something which is done by a statute would have violated the Constitution as being an ex post facto law is a pretty serious business when man is convicted in with a recommendation of life and the denial of a death that he can then get the death sentence.

That’s not something legalistic as it’s called, is it?

That’s pretty serious —

No, Mr. Justice Frankfurter.

It’s not — but there, you’re not tampering with what the jury found.

You’re not speculating to what the jury had in mind as to the man’s guilt.

You are —

Felix Frankfurter:

No, but — but the jury is entrusted as it is with determining his sentence and in some states as — on those recent in California, there’s a regular hearing before the jury, a separate hearing on what kind of statute they should bring in.

And I can’t imagine a bigger difference than being sentenced to death and not being sentenced to death.

Well, we agree Mr. Justice Frankfurter but we do point —

Felix Frankfurter:

That is the Stroud case.

That’s the Stroud case.

it is not the Green case though.

The — the Green case, you have to go further than Stroud and you have to assume that you know that the jury found Mr. Green guilty of killing Ms. Brown and perpetrating arson.

Felix Frankfurter:

But are you suggesting that the Stroud case knocks the waive (Inaudible)

Well, they specifically said that they weren’t passing on the Trono point, I believe on Stroud.

Felix Frankfurter:

They (Voice Overlap) —

They said (Voice Overlap) — they said the jeopardy did not attach to punishment.

They distinguished —

Felix Frankfurter:

But those are the words Mr. Rublee, the fact is that a fellow was sentenced for life and therefore he was negatively as possible sentenced not to die and then he takes the case up and they say on any theory of waiver, I should — I don’t see how one can escape on any theory or waiver and say we waive no more than as necessary.

It is to have a new trial.

Felix Frankfurter:

He is not to have a fatal punishment, that isn’t a waiver.

I don’t what it is in the waiver.

I agree with Justice Holmes that waiver is nonsense in this matter.

If there are no further questions —

Earl Warren:

Mr. Rublee, before you sit down, I — I would say to you that the Court is always reassured when counsel like yourself and Mr. Blow are willing to give as much time and attention to cases of poor defendants and regardless of the way your case turns out, we want you to know that we’re grateful to both of you for the service you’ve rendered — rendered the Court and the public.

It is a real public service.

Thank you very much.

Mr. Sand, we appreciate the service you rendered in behalf of your government of course.

Leonard B. Sand:

Thank you.