Illinois v. Somerville

RESPONDENT: Somerville
LOCATION: Allegheny County District Court

DOCKET NO.: 71-692
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 410 US 458 (1973)
ARGUED: Nov 13, 1972
DECIDED: Feb 27, 1973

Edward J. Gildea - for petitioner
E. James Gildea -
Ronald P. Alwin - for respondent

Facts of the case


Media for Illinois v. Somerville

Audio Transcription for Oral Argument - November 13, 1972 in Illinois v. Somerville

Warren E. Burger:

We'll hear arguments next in number 71-692, Illinois against Somerville.

Mr. Gildea, you may proceed.

E. James Gildea:

Mr. Chief Justice and may it please the Court.

This cause is here on a writ of certiorari to the United States Court of Appeals for the Seventh Circuit to reveal a -- to review a judgment of that court reversing an order of the District Court for the Northern District of Illinois, dismissing a petition for a writ of habeas corpus.

The facts in issue are these.

The petitioner in the writ of habeas corpus in the District Court, Donald Somerville, was indicted by an Illinois grand jury for the offense of felonious theft.

A jury was selected and sworn to try the issues of that case.

The day afterwards, before any evidence was heard and before any opening arguments were made by counsel, the counsel for the State of Illinois moved the court to dismiss the indictment on the basis that it failed to charge a crime cognizable by the State of Illinois.

That is, it failed to avert a necessary element of the offense of felonious theft, and that is the intent to permanently deprive.

Over a general objection of defense counsel, the court sustained State's motion and dismissed the indictment.

Two days later, the matter resubmitted to an Illinois grand jury, and a second indictment was returned, charging the very same offense, this time alleging the necessary averments to constitute an offense in Illinois law.

Warren E. Burger:

Let me back up now to the day of the trial.

Suppose the day before the trial, a motion had been made by defense counsel, challenging the indictment on the same grounds, and if the court had dismissed the indictment as defective, what would have been the status under Illinois law of that case, could they have gone to the grand jury again, got a new indictment?

E. James Gildea:

Yes Your Honor, under Illinois law no offense was ever charged, the defendant have never was placed in jeopardy, and the state was free to resubmit the matter to any grand jury.

Warren E. Burger:

How is he more in jeopardy after the jury is picked under that kind of an indictment, the defective indictment, than he was before?

E. James Gildea:

I don't believe he is in any more jeopardy, dependent upon whether the court attaches emphasis to the cause of the attachment, but in terms of the double jeopardy principles, I understand that he is no more in jeopardy after the selection of the jury than he has before under these circumstances.

Warren E. Burger:

And he was in no jeopardy before under the defective indictment?

E. James Gildea:

He was in no jeopardy and under the traditional and the classic rule, he was in no jeopardy afterwards, bearing in mind that the classic rule for attaching a jeopardy is only when a defendant is placed on trial before a jury or a judge, in the event of a bench trial, on a regularly charged indictment.

However, if there is some defect in the jurisdiction of the court before which the matter is presented, under the classical rule of double jeopardy, he is not then in legal jeopardy as the concept was understood initially, and has been understood to my way of thinking since the inception of the rule.

Harry A. Blackmun:

Well, are you seeking the ruling here that's based on the jurisdictional nature of the indictment?

E. James Gildea:

No, Your Honor.

We feel that that is one aspect of the case, but we feel that we can't sustain our position on another basis besides the jurisdictional basis, and that is, under the manifest necessity, a doctrine that was espoused in United States versus Perez and that was continuously employed by this Court up until as recently, as United States versus Jorn.

Our basis being that, in reference -- in deference to Illinois state criminal procedure, the question of judicial power to try criminal cases, the Court, before whom Donald Somerville, was arraigned for trial, had been it theft under Illinois law, no power to trying for that offense, and --

Harry A. Blackmun:

The trial had been going on for three days and the defect was discovered, your position would be the same?

E. James Gildea:

Our position would be the same, insofar as the manifest necessity doctrine, that is that the Court which still have to have declared the mistrial, then the question may then arise as to whether or not on some other theory, such as an estoppel theory, the state should be allowed to re-prosecute them.

And that would depend on whether or not the defendant has sustained any substantial burden as a result of the error, if it is an error, on the part of the prosecutor in drafting a defective indictment and proceeding trial.

And that would depend again upon the course that the trial took up to the time of the mistrial.

Then depending on whether or not the status of the evidence, whether or not the evidence at that point reviewed by another court was such that one might say that the defendant had the advantage or was on the verge of an acquittal at that point.

Byron R. White:

If Illinois, hereafter, simply lets the trial go forward and finish, and leaves it up to the defendant to raise the jurisdictional question, then what you have lost is simply the waste of time, just waste of some time and effort?

E. James Gildea:

Well, not entirely Your Honor because Illinois --