Lee v. United States – Oral Argument – April 25, 1977

Media for Lee v. United States

Audio Transcription for Opinion Announcement – June 13, 1977 in Lee v. United States

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Warren E. Burger:

We will hear arguments first this morning in 76-5187, Lee v. the United States.

Mr. Bauer, I think you may proceed whenever you are ready.

William H. Rehnquist:

Mr. Chief Justice Burger and may it please the court.

My name is Joseph Bauer, counsel for petitioner, Phillip Jerome Lee.

This case involves issues under the Due Process Clause and the Double Jeopardy Clause of the Fifth Amendment.

In Illinois v. Somerville, this Court observed that virtually all double jeopardy cases turn on the particular facts.

Therefore, I would like to begin this morning with a brief statement of the facts, because that is essential for an understanding of the issues presented in this case.

In December 1973, a theft allegedly occurred in the United States’ Post Office.

A few weeks later in 1974, a federal information was filed charging the petitioner with that theft.

Petitioner waived his right to trial by jury.

On the day of the trial and prior to the introduction of any evidence, counsel for petitioner moved to dismiss the information because it failed to allege a vital portion of that information, that is that theft requires that the act be committed knowingly and with an intent to deprive the owner of the use of the property.

He had an opportunity to make such a motion earlier in the proceedings, did he not?

Joseph P. Bauer:

He might have made it earlier, Your Honor but in fact as the record indicates he was the second counsel for the petitioner, and he was appointed only seven weeks before the trial and it clearly could have been made earlier but it might not have been reasonable to have done so and there is no contention that the objection here was not timely.

Clearly, the Federal Rules of Criminal Procedure provide for objection at any time during the trial.

William H. Rehnquist:

But my only suggestion is that an attorney who makes a motion that late in the game may well find a trial judge unprepared to pass on it at the particular moment that he makes it.

Joseph P. Bauer:

Your Honor, I think there were two responses to that inquiry: One, in certain circumstances the time may be so late that it would be difficult for the judge to rule.

On the facts of this case however, when petitioner’s counsel made the objection, the petitioner’s counsel cited a single Indiana State case.

It would have been very, very easy for the trial judge at that time to have taken a two minute or five minute recess, looked up the single case; the rule was as simple as it can be.

Now, that is only known by hindsight but I suggest that the alternatives available at that time would have been to look up that single case.

William H. Rehnquist:

What was going on?

Wasn’t jury selection about to begin?

Joseph P. Bauer:

No, Your Honor.

This was a bench trial.

William H. Rehnquist:

Well, wasn’t the Court about to commence the hearing of testimony then?

Joseph P. Bauer:

What had happened Your Honor was that the case had been called; the prosecution had made its opening statement which lasted all of about 45 seconds.

The defendant’s counsel then appeared and at the very first opportunity on that morning defense counsel did raise the objection.

Now, as I suggested Your Honor —

Harry A. Blackmun:

First of all, could not he make the objection before the opening statement on the part of counsel?

Joseph P. Bauer:

It is not clear from the procedure whether he could have.

As I suggest Mr. Justice Blackmun, the motion was made before evidence commence.

Joseph P. Bauer:

Therefore under the tests in this case, it was at a stage before jeopardy attached.

Had the motion been acted upon at that time, there would have been no bar whatsoever to correct any information of having a proper trial, so that the defendant’s motion was clearly made before there would have been any double jeopardy inquiry implicated.

Harry A. Blackmun:

So, what is your position that jeopardy have not attached?

Joseph P. Bauer:

Well, the Court in the Serfass case says that in a jury trial, jeopardy attaches when the jury is in paneled and that in a non-jeopardy case, jeopardy attaches when evidence commences.

Now, the testimony had not yet begun, so it is our position that jeopardy had not attached at that time and it seems that in this case, defense counsel had given the Court an equally important, had given the prosecution an opportunity to correct that mistake which was of the prosecution’s own creation.

But yet the prosecution sat there and did absolutely nothing.

Thurgood Marshall:

And petitioner’s counsel did absolutely nothing, he did not object.

Joseph P. Bauer:

Well, Your Honor the —

Thurgood Marshall:

You said that the judge could have gone out and looked at the case right quick, he did not suggest that to the judge, did he?

Joseph P. Bauer:

What petitioner’s —

Thurgood Marshall:

He did not do anything but filed a motion which he can now use.

Joseph P. Bauer:

It is true Your Honor that he did not say after the motion was denied that the judge should indeed take a recess.

I respectfully suggest —

Thurgood Marshall:

He did not object at all?

The judge says, I will pass on when I get time to look at that and counsel remains silent.

Joseph P. Bauer:

In fact Your Honor, although it is not excuse that the trial counsel.

In fact there was an indication in the record that the trial counsel may have misunderstood the ruling of the Trial Court.

There is the suggestion that when all the evidence was concluded that petitioner’s counsel thought that the motion had indeed been denied and not taken under advisement.

Thurgood Marshall:

You mean he did not understand what the judge said?

Joseph P. Bauer:

It would appear so Your Honor.

Thurgood Marshall:

How can a judge raise at a guy who will understand what he says other than to say it?

Joseph P. Bauer:

I said Your Honor; I am not suggesting that that would excuse what petitioner’s counsel did.

Thurgood Marshall:

Well, the record is correct that the judge said specifically, I will pass on this when I get time to look at that?

Joseph P. Bauer:

No question Your Honor.

Thurgood Marshall:

And counsel said nothing?

Joseph P. Bauer:

That is right Your Honor.

Thurgood Marshall:

Well, could I say he acted (Inaudible)?

Joseph P. Bauer:

I think not Your Honor.

Thurgood Marshall:

Why not?

Joseph P. Bauer:

I think that the objection that counsel made to the sufficiency of the information carries with it implicitly the request that the Court will grant a recess and look up the case.

Joseph P. Bauer:

Defense counsel did not merely say the information is deficient.

Defense counsel cited the Court to a specific Indiana case directly on point which held that the information of this —

Thurgood Marshall:

Did he read the — did he read anything from the case?

Joseph P. Bauer:

He read only the citation to the case Your Honor.

Thurgood Marshall:

That is all?

Joseph P. Bauer:

That is right.

Thurgood Marshall:

But why did not he read it?

He said was so clear, why did not he say it?

The bottom line and opinion says quote unquote that will give the judge a little something, wouldn’t it?

Joseph P. Bauer:

It would Your Honor.

I think there is a second response to that Mr. Justice Marshall.

Thurgood Marshall:

I think one response is that under York (ph) Theory, he can make the motion and then there is no way for him to lose.

Joseph P. Bauer:

I think the other response —

Thurgood Marshall:

Am I right?

Joseph P. Bauer:

That there is no way for him to lose, yes there is a way for him to lose, because it seems to me that in a case like this the Court could —

Thurgood Marshall:

Well, what could the government have done at that stage?

Joseph P. Bauer:

The government had a number of alternatives.

One is that the government could have joined in the motion of the defense to dismiss the information.

Thurgood Marshall:

What else?

Joseph P. Bauer:

A second alternative would have been to make a motion under Rule 7(e) to amend the information.

A third opportunity —

Thurgood Marshall:

You mean the government could have done?

Joseph P. Bauer:

The government clearly under its Federal Rule of Criminal Procedure 7(e) —

Thurgood Marshall:

Whose case is this, the government or the defense?

Joseph P. Bauer:

The Court — the cases in this Court may clear that the responsibility for having a proper trial lies not on the defendant but lies with the prosecution and with court.

Thurgood Marshall:

That is why you do not have to object.

Joseph P. Bauer:

It is not a question of not having to object but having objected; having performed its responsibility that if there is any duty the duty already was on the prosecution to Trial Court.

The defendant fulfilled his responsibility by pointing out to the Trial Court and pointing out to the prosecution the deficiency.

Now, there were as I said three alternatives.

One would have been to —

Thurgood Marshall:

But you have made the same argument if he had not cited the one case.

Joseph P. Bauer:

I think the argument could also be made, but the citation makes it even —

Thurgood Marshall:

Would you go so far as if he said I think the indictment is insufficient?

Joseph P. Bauer:

Well, the mere observation like that I think might be insufficient but here we do not have a mere observation.

Here we have a formal motion to dismiss.

Thurgood Marshall:

Written?

Joseph P. Bauer:

An oral motion made in Court.

Warren E. Burger:

Did the government have any advance notice that this motion would be made?

Joseph P. Bauer:

I do not think so Your Honor.

Warren E. Burger:

Well then prosecution counsel was hardly in a better position to have this — take one of these alternatives that you have suggested and of course have to decide this issue suddenly presented, is that not so?

Joseph P. Bauer:

Mr. Chief Justice, it is true that the prosecution was not given advance notice of the motion.

But as I suggest in response to Mr. Justice Marshall’s question, the responsibility for having a proper trial is not solely on the defendant.

Indeed, it is principally on the prosecution with Trial Court.

Warren E. Burger:

We can accept that without any difficulty, but you are suggesting that this was so clear that everyone should have been able to react right away.

If it were so clear then why in seven week’s time since counsel had been appointed had he not made his motion before trial so as to give the government and the court reasonable opportunity to analyze the issue?

Joseph P. Bauer:

I simply do not know the answer to that Your Honor.

One can only speculate but as I suggested earlier in response to Mr. Justice Rehnquist’s question.

The counsel Mr. Swanson was second counsel for petitioner.

The first counsel had been appointed for the arraignment stage and after arraignment; he then asked to withdraw himself when he became associated with the magistrate.

Warren E. Burger:

Do you think the defendant’s counsel in Court at that time as an officer of the Court as he is, as you are, had an obligation to suggest to the Court the possibility that delay in acting on that while he proceeded to take testimony might create some serious problems in the administration of justice?

I think had he recognized the full double jeopardy implications at that time perhaps he might.

Trial counsel was a young, inexperienced man, had been admitted to the bar for less than a year, again that does not excuse him.

But in the circumstances of this case, having been appointed as the second counsel to petitioner, one of the things that might naturally have happened upon his appointment under the Criminal Justice Act, was that he would have initially commenced doing research on the facts of the case, interview defendant, interview potential witnesses, and although it is clearly not the best trial strategy, it might well be a reasonable thing not to look at the language, the text of the information immediately perhaps not even look at the information until the day of trial.

I am not suggesting that that is the best strategy but I am suggesting that that was a reasonable course in the circumstances here.

Thurgood Marshall:

You mean that when a lawyer defends a case lastly, he does not read the information?

Joseph P. Bauer:

It certainly should not be the last thing he does Mr. Justice Marshall.

I am suggesting that may have happened.

Thurgood Marshall:

Is that an excuse?

Joseph P. Bauer:

I am not attempting to excuse Mr. Swanson’s conduct.

What I am suggesting is that in the case at bar, the responsibility for having a proper trial was not solely on the defendant.

Joseph P. Bauer:

Indeed, it was not principally on the defendant.

The principal responsibility is on the prosecution in the Trial Court.

I would ask the question, not why was Mr. Swanson late in his motion?

I think the more appropriate question is, why did the government drafted efficient information?

And then instead of asking, why did Mr. Swanson wait seven weeks to notice that defect?

Why did the government wait four months and not even noticed it on the morning of trial when the very defect was pointed out?

The prosecution was the one that made the mistake; the prosecution —

Thurgood Marshall:

But if nobody raised the question, and then he was convicted, he would go to jail, wouldn’t he?

Joseph P. Bauer:

Indeed, he would.

Thurgood Marshall:

So there is a little bit responsibility on the petitioner, a little bit.

Joseph P. Bauer:

There certainly is.

And in fact, I am not suggesting that the mere error in the information is sufficient to foreclose a second trial in the situation you have described.

Potter Stewart:

Mr. Bauer is there anything in the Federal Rules of Criminal Procedure or in the local rules of this District Court or Northern District of Indiana that set a time period within which such a motion could be filed?

Joseph P. Bauer:

The Federal Rules of Criminal Procedure specifically provide that the motion is timely at any stage.

Potter Stewart:

At any stage.

Joseph P. Bauer:

At any stage.

The Rule says, “It may be being noticed at any time during the proceedings or anytime during dependency of the proceedings by the court.”

Potter Stewart:

So, that Rule, in your submission, means that if the motion is made and granted after the taking of any evidence and there is an automatic double jeopardy defense to another trial.

Joseph P. Bauer:

No, Your Honor that is not our submission.

Our submission is that the reason that double jeopardy forecloses a second trial in this situation is because the motion to dismiss the information was made prior to the attachment of jeopardy.

There were numerous alternatives available to the Trial Court to continuing the fashion it did, numerous alternatives available to the prosecution to continue it.

Yet notwithstanding those alternatives, the Trial Court and the prosecution allowed the trial to continue not only into the jeopardy stage, but through the entire evidentiary stage to the very moment when the verdict should have been forthcoming and then at that stage attempted to subject the defendant to a second trial by not rendering a verdict and dismissing at that stage.

Now, in response to Your Honor’s question, a different situation would be post if the motion were made at some time and the Court acted upon it promptly.

Potter Stewart:

Which is what you tell me the Federal Rules of Criminal Procedure permit that the motion to be made at anytime before or after jeopardy attaches?

Joseph P. Bauer:

That is right.

Potter Stewart:

And if motion was made after jeopardy attaches and has granted, then there is built-in double jeopardy defense to any future trial?

Joseph P. Bauer:

No, no Your Honor, I think not.

If the motion is made mid-trial and acted upon at that time granted mid-trial, then we have the situation —

Potter Stewart:

If denied there is no problem, no double jeopardy problem.

Joseph P. Bauer:

If it is granted at that time, then we do have the situation to which the respondent refer, the Dinitz kind of situation or the Somerville kind of situation, in which one can explain that on one of two grounds.

Joseph P. Bauer:

Either that the defendant had indeed requested in this trial himself, and the Trial Court was giving the defendant no more than he ask for.

Potter Stewart:

But this is not a mistrial, the basis of this motion is that the person should never have been held before the Court on a defective indictment such as this.

The trial should never begun that is the basis of the motion.

Joseph P. Bauer:

Well, that is indeed true Your Honor.

Now, the Court has made clear in cases all the way back to 1896 in Ball that if a person is tried and convicted pursuant to a defective indictment, that that person and the indictment has been challenged on appeal that that person can indeed be retried without double jeopardy’s problems.

But in this case, what we have is the situation in which at the time the motion was made, the defendant had made the motion prior to the attachment of jeopardy.

There were a whole host of alternatives available to the Trial Court and to the prosecution to proceeding.

William H. Rehnquist:

For purposes of your argument as to double jeopardy, do you draw any distinction between the declarations of a mistrial on the dismissal of indictment?

Joseph P. Bauer:

Your Honor, there is a stronger case for a dismissal because the dismissal as we suggest in the Jenkins case may well be ambivalent and ambiguous.

It may be arguably a dismissal on the merits if it is even though mid-trial that would preclude a retrial.

William H. Rehnquist:

Here and clearly it was not a dismissal on the merits.

Joseph P. Bauer:

Here it was clearly not a dismissal on the merits.

The Court characterizes it as a dismissal, but in our view, Your Honor whether it is characterized as a mistrial or characterized as a dismissal, the result in this case must be the same, because although the motion was made prior to the attachment of jeopardy, the Court erroneously allowed the case to proceed into the jeopardy stage all the way up to the would be verdict stage and then dismissed or declared a mistrial without giving the defendant a benefit of a verdict.

What the Double Jeopardy Clause enunciates is a dual policy.

It enunciates a policy against repetitive trials.

It also enunciates a policy in favor of once the trial has commenced the defendant is entitled to a verdict on the merits.

Thurgood Marshall:

But there is still another point; you said he was not then guilty.

I thought the judge (Inaudible).

Joseph P. Bauer:

Indeed, Your Honor, the judge made that observation and there is no way that we can erase that from the record.

But I would suggest that what the double jeopardy cases provided starting with Wade v. Hunter is that one of the valued rights that a defendant has is the right to get a verdict.

And the observation in this case no matter how much we analogized it to a verdict was not a verdict.

One of the most difficult things that a Trial Court must do in a bench trial is decide on guilt or innocence.

And one of the things then that we would want to have is that that determination be a deliberative, reflective one.

John Paul Stevens:

Mr. Bauer, would your case be different if Judge Ashba (ph) had made findings effect of guilt and then dismiss the indictment after that?

Or have waited for a post verdict ruling?

Joseph P. Bauer:

I think if there had been a formal verdict of guilty followed by a dismissal afterwards, our case would be different.

I would respectfully suggest that the Double Jeopardy Clause would probably — although I am not willing to concede it — but might probably permit a retrial.

That would be somewhere between the Ball case and this case.

That situation however Your Honor might implicate due process considerations nonetheless.

John Paul Stevens:

Well, let us take to double jeopardy for the moment.

John Paul Stevens:

If you say that there could have been a retrial, I suppose you also then would acknowledge that if there had been a post trial dismissal on this ground; it could have been appealed by the government?

Joseph P. Bauer:

Yes.

John Paul Stevens:

It could have been appealed by the government notwithstanding the fact that if the ruling was affirmed, there could be another trial.

Joseph P. Bauer:

You mean the ruling —

John Paul Stevens:

In other words, say Judge Ashba (ph) had post-verdict, had dismissed that preceding.

The government had appealed saying the areas are not that clear at all.

We think that the indictment was sufficient and then the Court of Appeals had affirmed the dismissal.

The government could still re-indict, wouldn’t it?

Joseph P. Bauer:

Yes, they could Your Honor.

John Paul Stevens:

And there could be another trial?

Joseph P. Bauer:

There could be Your Honor.

John Paul Stevens:

Then even though there is a possibility of a second trial raising all the fact questions, double jeopardy would not apply.

Joseph P. Bauer:

The reason for that Your Honor was because in your — the situation which you posit, there was indeed a verdict from which there is an appeal.

And no matter how we analogize it, the judge’s outburst here was not a verdict.

John Paul Stevens:

So the error you really are complaining of then was ground the fact that Judge Ashba (ph) did not make the right findings.

He did not allow closing argument to it.

Joseph P. Bauer:

No, Your Honor, in this case, there was a continuum of errors.

There were errors at the beginning of trial.

Well I should even start —

John Paul Stevens:

Well, but that rest entirely on the error being so plain.

Lots of times, a motion like this can raise a rather complicated question that the judge either has to adjourn the trial or go ahead subject to ruling later.

Would you have a ruling that when every such a motion is made as trial commences, the judge has an absolute duty to postpone the taking of evidence that they can rule on it?

Joseph P. Bauer:

No, I would not Your Honor, although I would respectfully suggest that what the trial judge should have done was at least declared a five minute recess to determine whether the question was complicated.

Now, if indeed the question were one that would take two hours or two days research in view of the untimeliness of the motion, it might be appropriate to continue the trial at that time, might be.

I would suggest however that a recess to determine whether it is a difficult question that recess which would have only taken five minutes would certainly not be inappropriate.

And in fact, I would go beyond that and say in this case that was not the only alternative at the beginning of trial.

It was not only that the trial judge could sua sponte have asked for a recess, but the US Attorney is also a member of the Bar of the State of Indiana and should know —

John Paul Stevens:

I just have a lot of difficulty with the notion that the constitution of Double Jeopardy issue turns on the time and the difficulty of the making of the motion.

Joseph P. Bauer:

Well, it is not the difficulty of the motion that is the determinant Your Honor.

But what we have in the situation was a motion which granted with hindsight was as plain as could be.

Joseph P. Bauer:

In fact Judge Ashba (ph) said if the lower court of mine had drafted something like that I would send him back for refresher course.

It was not an egregious mistake.

John Paul Stevens:

Well, it is easy to say that after the fact, but the trial judges who have to go ahead with trials you know, it is not that easy.

I do not think any motion is that easy?

Warren E. Burger:

What was so egregious, why did it take defense counsel seven weeks before he noticed it?

Joseph P. Bauer:

Well, Your Honor, I referred to that earlier and I must respectively suggest that I do not know the answer.

Warren E. Burger:

Well, perhaps then you were mistaken, when you say it is so egregious.

Joseph P. Bauer:

Well, one answer may be, he did not look at the information at all as soon as he did look at the information, it leapt from the paper.

I did not suggest that that was an appropriate form of pretrial strategy but the fact that it was obvious and the fact that he did not catch it earlier are not necessarily inconsistent.

Warren E. Burger:

If you are correct in your position, perhaps the Criminal Rule should be amended to provide that any motion not made at least to three days before trial is waived, the defect is waived.

Joseph P. Bauer:

Your Honor, I would suggest that that would be an inappropriate response.

In addition I think it is important in terms of timeliness; it is important to focus on two questions: One, whether it was timely for the purpose of raising it later; and second one, whether it was timely for double jeopardy purposes?

I have suggested Your Honor that had the motion only been made after conviction and appeal.

Although it would be timely at that stage, that would certainly not bar a retrial.

But we do not have that situation here.

Here we have a motion which is not only timely in the sense that the Federal Rules of Criminal Procedure provide.

It is also timely in the double jeopardy sense.

It is timely because it was made before jeopardy attached giving both prosecution and Trial Court a number of alternatives to proceeding in a fashion in which double jeopardy would attach.

Warren E. Burger:

It is only a coincidence that this was a bench trial.

Suppose the jury had been impaneled and sworn and then this motion had been made, what would the situation be then?

Joseph P. Bauer:

Well, that would be closer to the Somerville case.

Warren E. Burger:

And the simple jeopardy would have attached.

Joseph P. Bauer:

That is right.

And then in fact, I think the inquiry would have to be at that stage considering the reasonableness of the alternatives would a recess be appropriate?

Warren E. Burger:

Well, what would a recess be after jeopardy had attached?

Joseph P. Bauer:

Well, if indeed, had the jury been impaneled and the motion was only made at that time —

Warren E. Burger:

I should have said impaneled and sworn.

Joseph P. Bauer:

Impaneled and sworn, jeopardy attaches onto the Serfass rule.

If the defendant then had made the motion only then, I would suggest that once again as this Court has suggested in recent cases, what the Trial Court would have to do is waive the alternatives.

It may be at that time since the jury was already sitting there that a recess would be inappropriate.

Joseph P. Bauer:

The fact as in this case, it was not a jury case and the important thing to focus on is, what are the alternatives?

A recess would have been so simple.

Why did the Trial Court judge not just say, okay a single case has been cited to me, let me take five minutes to look it up.

Why did the prosecution just sit there and do nothing.

Lewis F. Powell, Jr.:

Mr. Bauer, may I ask you again, how can one be sure that this was not a deliberate bypass when counsel for defendant made no objection to the procedure that judge followed.

The judge made it very clear you needed to look up the law.

Counsel was present and he remained silent.

If you have been the judge, would not you have felt that you had the questions of counsel and proceeding with the trial?

Joseph P. Bauer:

It might have been that the judge thought that counsel was not objecting although there is reason to believe that the counsel misunderstood the Trial Court’s ruling.

But leaving that aside, if the defense counsel had been deliberately attempting to use this as a device to have double jeopardy apply, then it would have made sense for him not to make the motion, until evidence commence.

Then it would have been a double jeopardy situation.

What defense counsel was doing was making the motion at a time before jeopardy attach, giving the Trial Court and giving the prosecution full opportunity to save themselves from an error completely of the prosecution’s making.

There was a prosecution that drafted that faulty information not the defendant.

So defense counsel gave them every opportunity to rescue themselves not only pointed out the defect, but cited an Indiana State case and what did prosecution do, sat there and did nothing.

Alternatives, he could have joined in the motion to dismiss.

He could have moved to amend.

He could have suggested a recess.

The cases in this Court may clear that the duty should not be on the defendant to not only raise it but continually raise it and protect his rights.

Thurgood Marshall:

Mr. Bauer, why do you consistently say he needed a recess?

There was no jury.

They did not need a recess.

They could have argued it right there.

Joseph P. Bauer:

Okay, they could have argued it right there.

Thurgood Marshall:

Then why did not he?

Joseph P. Bauer:

Well, I think the question is why not ask the government?

Thurgood Marshall:

Why did not he?

Joseph P. Bauer:

Why not ask the government that?

Thurgood Marshall:

Why did not he?

Joseph P. Bauer:

Why not ask the judge for that?

Thurgood Marshall:

It was his motion.

Thurgood Marshall:

Why did not he continue to argue and say, “If Your Honor please, I think we all decide this now, let me read this case to you.”

Joseph P. Bauer:

Since I was not in that courtroom I cannot tell you, Your Honor.

But it seems to me under the facts of this case that is not a reasonable requirement.

The alternatives were so clear.

The duty on the government is there and to say because the defendant did not jump up and say Your Honor, I want to stop.

Now remember this was a bench trial.

The judge was not only going to be the person who ruled on the motion; he was going to be the one who was the tryer of fact.

John Paul Stevens:

Well, I suppose one reason defense counsel might not have pursued it too vigorously was that he would not gain very much if he would be gotten any indictment amended right there in the spot, what does he gain?

Joseph P. Bauer:

Well, he gains then the possibility that that case is the only case that the defendant has to sit through.

One of the things that double jeopardy —

John Paul Stevens:

Well, that under your view of the law, that is true anyway?

Joseph P. Bauer:

No, it is not Your Honor.

In my view of the law, if in this situation the judge does not render a verdict, then no second trial can be held.

One of the protections of —

Thurgood Marshall:

Do you admit the information could have been amended?

Joseph P. Bauer:

Not only do I admit it, I asked why did not the government do it?

Rule 70 makes it clear that they could have —

Thurgood Marshall:

So if they had been amended, then your man would be in jail? Good.

Joseph P. Bauer:

I do not admit that Your Honor because —

Thurgood Marshall:

You do not admit what the judge said?

Joseph P. Bauer:

I suggest that the judge —

Thurgood Marshall:

You said he is a guilty man.

Joseph P. Bauer:

I suggest that the judge had an outburst of frustration because the judge had let that whole trial go ahead, and the judge recognized, finally he had made a mistake.

John Paul Stevens:

One other observation, going back to the posture of defense counsel the commencement of the — right before evidence was taken, it seems to me that what he did gave him two bites of the apple, because he just sits there with error in the record and there is a verdict against him, he knows he could have it set aside.

But if he does not have any amendment made, he just lets the case go to verdict, he wins.

Joseph P. Bauer:

May I respond to that?

It seems to me that that is the presupposition which the government proceeds on in the entire brief that this man would have been convicted.

It seems to me that what Wade v. Hunter says is any time a trial commences, there is always the possibility that man may be acquitted, and although in this case the odds are 99.75% clear that he would not have been acquitted.

The judge’s outburst, I must concede, is as close to a verdict as one can get.

It was not a verdict.

Joseph P. Bauer:

I think that this Court cannot allow the outcome of these cases to turn on whether or not the judge does give some kind of an outburst like that in the nature, the quality of that outburst.

Even there is a verdict or there is not.

If there is not a verdict, it seems to me then one has the right to assume that if there had been a verdict, that verdict might have been one of acquittal as well as conviction.

And having that one of acquittal then the government’s presupposition is wrong, because then there could clearly not have been a retrial.

Harry A. Blackmun:

Mr. Bauer let me ask you for this question.

This case comes here as an assimilative crime doesn’t it?

Joseph P. Bauer:

Yes, Your Honor.

Harry A. Blackmun:

Do you think the case would be any different if it had been a routine federal offense rather than a state offense brought into Federal Court because of the location or the site of the crime?

Joseph P. Bauer:

I can appreciate the difficulty the government that under the Assimilative Crimes Act, there is a responsibility that are not only for knowing the federal statutes but what may sometimes be difficult state statutes.

It would be a clearer case for us in terms of the default of the prosecution had it not been an underlying state crime.

But here, we are not talking about a difficult state crime.

We are talking about the simple crime of theft and every first year law student learns, Your Honor, that theft includes not only the taking, but in taking with the intent to know.

The prosecution here, the members of the U.S. Attorney’s Office, are members of the Bar of State of Indiana, and it seems to me reasonable in this case to assume that although they are not required to know every bit of Indiana Statute, they can know what the Indiana Theft Law is.

That is not putting an undue burden.

And if the prosecution, if the U.S. Attorney’s Office, drafts a faulty indictment or faulty information, and allows that to continue for four months, if that trial is pointed out even under the Assimilative Crimes Act, I respectfully suggest that a U.S. Attorney knows Indiana Theft, as well as an Indiana District Attorney.

Warren E. Burger:

I am not sure that I am clarified with this point, but since defense counsel was a member of the Bar and an officer of the Court, I am not sure what your answer was when I asked, did he have an obligation as an officer of the Court to alert the judge to the consequences that you now argued for namely, that there would be a double jeopardy before the Judge went ahead.

Joseph P. Bauer:

Your Honor, if he knew it, I have no question but that he should have.

Warren E. Burger:

I mean this is something he discovered by research after the event too.

Joseph P. Bauer:

If he found out about it five weeks before trial, and then waited to the day of trial, I suggest that, as Your Honor, I think is implying that that is inappropriate, not only inappropriate but unbecoming an officer of the Court.

So the simple answer is, if that happens, yes and going beyond that; if he knew when he made the motion that failing to rule out only at that time would raise the problem we are discussing this morning, again, there is no question, but that as an officer of the Court, he should have.

But I am suggesting that the record is there as to whether he did.

I have not spoken to him.

I have never discussed the question with him so the two of us can only speculate as to what he was doing.

Thank you very much.

Warren E. Burger:

Mr. Frey?

Mr. Andrew L. Frey:

Mr. Chief Justice and may it please the Court.

This is the latest in the line of cases extending back to United States v. Perez in 1824.

It involved the question of the permissibility of retrying a defendant whose first trial terminated prior to a finding of guilt or innocence by the finder of fact.

It is, in our view, perhaps the easiest to decide of all of those cases, because it is governed by a clear and simple consideration that it was the defendant who thought the pre-verdict termination and he got what he requested.

And before turning to the body of my argument, I just want to make one point about the facts just to be clear.

Mr. Andrew L. Frey:

At two places in petitioner’s brief, Page 17 of his opening brief and Page 4 of his reply brief, he says that the defendant objected to proceeding with the trial.

Now, we have been over this a little bit this morning.

I cannot find in the Appendix anything that remotely resembles an objection to proceeding with the trial.

What happened was he came in; waited until the trial began and the prosecutor had made his opening statement.

He then raised his objection and the Court upgraded him for the untimeliness of raising it and explained the difficulty of dealing with the motion at that time.

Now on Page 8 of the Appendix, there is a statement which is somewhat ambiguous, and I just wanted to say what we think it means.

It is near the top.

Mr. Swanson, the defense counsel says —

Warren E. Burger:

Top of the nine?

Mr. Andrew L. Frey:

Page 8 of the Appendix.

It says, “I realized this is probably a little bit out of order, but I think it should be considered by the Court at this time.”

Now, we do not take that to be an objection to proceeding with the trial when the judge later on refused to grant the motion at this time, but rather an apology on the part of counsel for the fact that he was so late.

What about the next sentence, “I was in this case after the time I had passed for such a motion to be made.”

Mr. Andrew L. Frey:

I wondered about that?

Well, I think you got to refer to that too, shouldn’t you?

Mr. Andrew L. Frey:

Well, I do not think that it has any.

First of all, I cannot find in the Rules, Mr. Justice Stewart asked about that earlier.

I could find no reference in the local rules.

But it certainly explains.

I should think on the face of it, why it is he did not make it until he did.

Mr. Andrew L. Frey:

I do not believe.

First of all, there is no rule of court in the Northern District of Indiana.

I am assuming there is not, he may have been wrong, what was he eight months at the Bar or something like that?

Mr. Andrew L. Frey:

Well, I think that whatever — I do not know what the explanation is or why he did not raise it.

I know of no rule that would have prevented him from raising it sooner or no requirement that he should wait until the trial was commenced to raise it.

I merely want to be sure that there is no ambiguity on the fact that he did not object the proceeding with the trial once the judge had tentatively denied his motion subject to reconsideration at a later point after recess.

William H. Rehnquist:

Well, isn’t the motion to dismiss an indictment in a sense always an objection of proceeding with the trial?

Mr. Andrew L. Frey:

Well, now it could be made in the form of a motion and the rest of judgment in effect.

William H. Rehnquist:

Well, a motion to dismiss an indictment before the trial has commenced.

Mr. Andrew L. Frey:

That is an objection to proceeding with the trial in a sense yes.

Mr. Andrew L. Frey:

But it can be made at anytime.

We do not dispute that he could make it in the middle of the trial under the rules, the question is whether for double jeopardy purposes, his delay of making the motion is — the timing of his motion is significant.

William H. Rehnquist:

Well, but the timing of his motion might be very significant and yet there may be no rule that requires and after the judge says I will pass on that later to say Judge I want you to pass on it now.

It would take a fairly bold attorney I would think in many courts to suggest that.

Mr. Andrew L. Frey:

Well, I do not think it would take a — after all, as I will get to when I get into the body of my argument, to us the critical factor in these cases for double jeopardy purposes is that the defendant has the choice whether to proceed with the trial or whether to stop the trial.

Now, the defendant may say, Your Honor there is a double jeopardy problem in this case, I do not want to be subjected to a trial on a faulty information, because if I am convicted the result will be that I will have to be — and that set aside as I know it must be, the result will be that I will have to be subjected to two trials, he can say that.

On the other hand as Mr. Justice Stevens pointed out, he may very well prefer to go ahead with the trial.

William H. Rehnquist:

The defendant never has it within his own power to stop the trial.

But that is entirely up to the judge.

The judge can just say I will reserve ruling on all that stuff, we got witnesses waiting.

We are going to go ahead.

Mr. Andrew L. Frey:

Well, that is in effect what the judges did here.

He tentatively denied the motion subject to reconsideration.

Later on the question is what significance is to be attached to the fact that the defendant made it at the particular point that he did make it.

Now, we start our argument from a premise that is unchallenged by petitioner and indeed that is not subject to serious challenge having them conclusively settled many years ago in the Ball case.

If a defendant is placed on trial on a defective indictment and that trial leads to a conviction, they subsequently set aside because of the defect in the indictment, the Double Jeopardy Clause does not bar a second trial.

Now this is so despite the fact that the second trial will subject the defendant to continuing embarrassment, uncertainty, anxiety, and insecurity, will renew the ordeal that the trial itself may represent, and will subject them to the added expense that further defense ordinarily entails.

All of these considerations — I do not mean to minimize them, because they principally underlie the strong policy of the Double Jeopardy Clause against multiple trials and criminal cases — have been placed in the scales by this Court, and they have been found to be outweighed by the even stronger societal interest and fair trials ending in just judgments.

Now, in view of the decision in Ball, it seems quite clear — and I think my colleague in effect conceded it — that had the Court erroneously denied petitioner’s motion to dismiss the information, the Double Jeopardy Clause would not have barred a retrial.

Petitioner’s argument is that because the District Court ruled correctly and dismissed the information in this case, he cannot be retried, but if the Court had erred and denied the motion to dismiss, he could have been retried to state the proposition.

Byron R. White:

You mean after finding it guilty?

Mr. Andrew L. Frey:

After finding it guilty.

Byron R. White:

And then the defendant appeals, and then he appeals the denial of his motion.

Mr. Andrew L. Frey:

Or an arrest of judgment has granted.

Byron R. White:

On the appeal of denial of his motion.

Mr. Andrew L. Frey:

That is right.

Byron R. White:

And so at that time he is in the Ball park.

Mr. Andrew L. Frey:

That is correct.

Byron R. White:

But suppose the judge had entered a formal conclusion that the defendant was guilty.

But then granted the motion, sort of an arrest of judgment, and then the government had reindicted them just like they did here.

Mr. Andrew L. Frey:

I think there is no difficulty whatsoever with it.

Byron R. White:

Why?

What is the difference in terms of the double jeopardy?

Mr. Andrew L. Frey:

Between what?

Byron R. White:

Well, the indictment has been dismissed, and the government reindicts him, wants to try him again.

Mr. Andrew L. Frey:

No problem.

Byron R. White:

Why?

Well, I know you do not think there is no problem in this case either but why do you think there is this problem in the latter case?

Mr. Andrew L. Frey:

Where an arrest of judgment is granted, I think if settled in effect that is equivalent to what happened in Tateo where the District Court in the collateral —

Byron R. White:

I am not talking about an appeal.

Mr. Andrew L. Frey:

No, but in Tateo there was no appeal, there was a collateral proceeding in the District Court and the District Court set aside its judgment of conviction and then a fresh indictment was brought or the defendant was brought to trial again on the charge and he claimed double jeopardy.

Byron R. White:

But in my example, the matter the Court operates on or regresses itself to after verdict is something that the defendant instituted before evidence had been taken.

And he never renews it, never pushes it, and the judges delays acting on it until after the verdict.

Now what difference is that case — what is the difference between that case and this one?

Mr. Andrew L. Frey:

I do not see how a defendant can have more double jeopardy protection Mr. Justice White.

In these situations, after all in the case in Ball itself I believe —

Byron R. White:

Well, I am not saying it has got any, but I do not see the difference between the two cases.

Potter Stewart:

I think your brother on the other side would say that the difference might be in the interest that has been emphasized in some of our double jeopardy decisions.

The interest in the defendant of having the first trial effect, reach a conclusion, reach a verdict, where is that difference?

Mr. Andrew L. Frey:

I am preceding the next to that point because that to us is the critical factor in this case that differentiates and if it is differentiated at all from Ball.

But that does not have to do with a post verdict — I thought that Mr. Justice White was asking for the difference between a arrest of judgment and an appeal leading to reversal of the conviction and if that was his question, we see no difference.

Of course, if it comes before a verdict then you will find mid-trial then you will have the problem what this case presents.

William H. Rehnquist:

Well, an arrest of judgment should be tried on an indictment with a different allegation, would you not just the same way you would be on an appeal?

Mr. Andrew L. Frey:

That is what happened in this case, yes.

Harry A. Blackmun:

Are you suggesting there is another ground for there being no double jeopardy, here namely he is being tried for a different crime?

Mr. Andrew L. Frey:

No, but I want to make one point about Ball because my colleague’s response to Ball was to say that — and my colleagues response to the problem that if his motion had been denied, he could have been tried again after reversal on appeal or a motion on arrest of judgment was to say that he made it before trial; it should have been granted before trial.

But of course that is true in Ball and that is true in most of this cases that the motion is made before trial, the District Court erroneously denies the motion as he initially did at the outset of this trial.

The trial proceeds, the defendant is subjected to the trial and after the trial is over and he is convicted, the conviction is set aside because of the defect in the information.

Thurgood Marshall:

But what about the point, that it could have been amended?

Mr. Andrew L. Frey:

Oh, I agree it could have been amended.

Mr. Andrew L. Frey:

I do not think that that is dispositive for double jeopardy purposes and as I will point out shortly, if the defendant wanted to avoid going through a second trial, he could have suggested an amendment, and then he would have had only one trial.

Thurgood Marshall:

I am not to put that burden on him, but I mean if it had been amended at that stage, he could have been convicted, because of the possibility that he is convicted.

Mr. Andrew L. Frey:

I agree with that.

Thurgood Marshall:

And he would not be here today.

Mr. Andrew L. Frey:

That is correct.

John Paul Stevens:

Mr. Frey isn’t his argument sort of in the alternative, that if you regard the motion as timely and it is before jeopardy is attached then the judge had a duty to rule on it then, but if the judge decides to wait until the trial gets started then he has a right to a verdict by the first trial effect?

He can have to deal with the two things separately.

Mr. Andrew L. Frey:

He makes the two complaints, and I think there are answers to both of them, which I do hope that I will —

John Paul Stevens:

You get a chance to make it, and when you do with respect to the second branch of the argument, I would like to know whether the government is at all asking us to reexamine the Jenkins case, because that seems to me that is your toughest hurdle is the language of the under Jenkins.

I think Jenkins is the case.

Mr. Andrew L. Frey:

We do not think we are not asking you to reexamine Jenkins.

We do not think it is necessary in this case because we think it is clear in this case that this was not a finding on the merits by the Trial Court in the defendant’s favor which is what Jenkins suggest may not be reviewable.

This was clearly a termination based on the defect in the institution of the proceedings and in no way going to the merits, there were no findings of any kind.

John Paul Stevens:

But the reason it was not reviewable in Jenkins was because of the necessity of further proceedings with respect to the facts. Would you still —

Mr. Andrew L. Frey:

Well, there is a necessity for further proceedings whenever a trial is terminated prior to verdict.

This is a pre-verdict termination case which Jenkins was not.

And this is a case like Giori (ph), and Somerville, and Jorn, and then the whole line.

We think there is no material difference.

Nwo, to come back to Mr. Justice Stewart’s point, this case focuses on the difference if any between Ball and cases in which there is one added element that is if the trial was terminated prior to a finding of guilt or innocence.

Now, that fact, the pre-verdict termination, implicates only one interest other than those already considered in Ball that is protected by the Double Jeopardy Clause, and that interest is the valued right of the defendant as this Court has described it, to receive a verdict from the fact finder at the first trial.

This Court has long recognized that a defendant who has searched his value right by objection to a termination of the trial, you can have his objection overwritten only upon the showing that the Trial Court reasonably viewed the termination as manifestly necessary.

In Giori, in Downum, in Somerville, the defendants asserted their desire to go to verdict by objecting to the mid-trial termination.

This Court was then confronted with the difficult question in each of those cases whether the ends of public justice sufficiently supported the decision of the trial judge to deny the defendant, the opportunity to submit his case to the jury of that trial and possibly to terminate the controversy then and there by means of an acquittal.

Jorn was a similar case because in effect the defendant was deprived of any opportunity to register its objections for the termination.

But in this case, petitioner never disclosed the slightest interest in obtaining a formal finding of guilt or innocence from the judge at the first trial understandably enough in our view.

Nor when he made his belated motion for dismissal following the prosecutor’s opening statement and it was tentatively denied subject to later reconsideration that petitioner expressed any objection to proceeding with the trial.

Now here in urging that the Double Jeopardy Clause barred a second trial, petitioner expresses two grievances that he says justify the result he seeks: The first arises from the fact that although the challenge to the information came after commencement of the trial, jeopardy had not yet attached thus petitioner argues.

He was forced to undergo a trial that was doomed from the start because of the defect and in the information.

In his view, this procedure necessitated his undergoing two trials when the first of this was avoidable.

This argument parenthetically is virtually the exact opposite of the argument of the defendant in Illinois v. Somerville who insisted that his first trial was hardly pointless even though it could not have lead to a valid conviction in view of the possibility of a valid and binding acquittal.

Mr. Andrew L. Frey:

Petitioner’s second complaint is that having been forced to undergo a trial on the defective information, he was then deprived of the benefit of the finding of guilt or innocence.

There are two fatal flaws in his argument: The first is that the situation here was largely his fault, because of the tardiness of his challenge to the information — and I do not mean tardiness in the sense of non-compliance with Rule 12, but for Double Jeopardy purposes in the sense of the situation that was created.

Potter Stewart:

But this motion has been filed two weeks before the scheduled date of trial.

Mr. Andrew L. Frey:

It would make no difference, Your Honor.

Potter Stewart:

And had not been acted on and the judge did the same things he did here.

Mr. Andrew L. Frey:

In view of our alternative and principal argument, it would make no difference.

Potter Stewart:

So you are not really relying on the point you just made?

Mr. Andrew L. Frey:

Well, unless the Court rejects our principal argument.

I mean, we do not think it is necessary for us to win the case that there is this added factor, but some people may.

Potter Stewart:

You want to win the case?

Mr. Andrew L. Frey:

Yes.

The second point and the one that is more crucial in our view is that petitioner never objected to having the trial go forward nor do its termination by grant of his dismissal motion prior to a finding of guilt or innocence.

Petitioner seeks to excuse his silence by contending that the burden rest on the court or the prosecutor to prevent the evils to which he now says, “He will subject it.”

This position might have merit if it could fairly be said that no defendant would ever wish to be placed on trial on the defective indictment or that trial having commenced.

Every defendant would wish to proceed to verdict.

John Paul Stevens:

Mr. Frey, can I interrupt you right there?

Why is not that same argument applicable to Jenkins because there the defendant did not object to the dismissal or discharge at the time the judge made it without all the necessary findings had been made?

Mr. Andrew L. Frey:

Well, there was not a pre-verdict termination in Jenkins.

John Paul Stevens:

But that is the issue was whether it was because the Court held as I read the Court’s opinion that the reason it was not appealable was there were some more factual determinations necessary and why is not that just exactly like this?

Mr. Andrew L. Frey:

Well, I do not think this fits, that is the judge thought that he was completing the trial and that he was making a finding on whether Mr. Jenkins had committed the offense or not.

I think it is quite clear although the government contended in Jenkins that, that finding was based on an erroneous view of the law, nevertheless, he did something which was quite similar to what the judge did in Martin Linen, and that is he determined that as he understood the law. Mr. Jenkins had not committed an offense.

Now the government came along and said well, it does not matter we can appeal because he has made all the findings of fact that are necessary to support a judgment of conviction, and the Court said, “No, it is true he made most of them, but there is one missing which is critical to the case.”

John Paul Stevens:

Well, why is not that like what Judge Ashba (ph) did?

He said, “I think this fellow is guilty but I wanted to affirm —

Mr. Andrew L. Frey:

Well, we do not rely on the fact that he said that I think he is guilty as being a verdict.

So that I think that is atmosphere (ph) to the case, but in effect what Judge Ashba (ph) clearly did was to stop the trial before it had reach its completion and to grant a dismissal —

John Paul Stevens:

The completion in what sense?

I mean all the evidence was in.

Mr. Andrew L. Frey:

Before determination had been made whether the petitioner had robbed a news dealer or not.

John Paul Stevens:

Whether as a matter of fact the petitioner is guilty, which is exactly what was left out in Jenkins, isn’t it, the factual determination?

Mr. Andrew L. Frey:

I do not think so.

William H. Rehnquist:

Do you think Jenkins would have come out differently if Judge Travia had done what he did in the middle of the trial rather than at the end?

Mr. Andrew L. Frey:

Well, I am not sure.

I do not know that Judge Travia could have done what he did in the middle of the trial.

I mean if he had stopped the trial before the prosecution had completed its evidence and that the defedants were —

William H. Rehnquist:

Well, I suppose the prosecution’s evidence, he had said it seems to me from the Second Circuit cases that there is a defense on the merits to this thing.

I am just going to dismiss the indictment.

Mr. Andrew L. Frey:

Well, we are getting into labels in effect, he may — he called what he did a dismissal of the indictment, but in fact what he did was not to determine the facial validity of the indictment in any sense but to determine that the defendant was not —

William H. Rehnquist:

Jenkins and Wilson are both written in terms of labels and in terms of black and white lines rather than balancing of acuities, it seems to me, and there is an advantage and a disadvantage to doing that.

Mr. Andrew L. Frey:

Well, I do not — I know that you wrote the opinion for the Court in Jenkins and I know that there may be some advantages, but I understand that Court’s decisions and I think it was stated in Serfass and it was stated in Jorn and it has been stated several places in this Court’s jurisprudence that it is not the label that is attached, but the functional announces of what it is that the judge in fact did, and that was the case in Martin Linen most recently earlier this month.

The Court’s opinion said we look at what the judge did.

The action was in fact an acquittal.

William H. Rehnquist:

Well, I was referring to Jenkins and Wilson.

Mr. Andrew L. Frey:

Well, our feeling is that in the case where the Court makes a determination on the merits we have a different problem.

I mean I would like to reargue Jenkins but I do not think that is timely this morning.

I think there is a material distinction between the case in which the judge whatever he calls it makes a determination that the defendant is not guilty of the offense.

And the case in which prior to verdict, he determines that there is a facial defect in the indictment.

Now, if I can come back to the petitioner’s two complaints.

I would venture to say that most defendants would be delighted with the prospect of having a first trial that could result in a valid acquittal but not a valid conviction.

And at which they would be given a complete preview of the prosecution’s case.

Of course, not all of them would necessarily, but I think some of them would.

Moreover it seems likely that many defendants and petitioner’s position of the conclusion of trial having heard the judge’s tentative assessment of the evidence would prefer not to have a formal finding of guilt entered.

In other words, many defendants would consider that what happened at petitioner’s trial gave them the best of both worlds.

The fact of the matter is that different defendants will have different desires, and there is only one way that we can know what a particular defendant’s desires are in a particular situation and that is if he tells us.

If he makes no objection, it can reasonably be assumed that the course adapted is not objectionable to him.

He should not later be heard to say that he retroactively objects to the course that was pursued when such an objection conveniently immunizes him from any exposure to conviction and punishment for his crime.

To sum up, the position we urge is that the Double Jeopardy Clause bars a second trial in the following circumstances: First, when the first trial is ended in a valid judgment of conviction; second one, the first trial is resulted in an acquittal by the finder of fact; third, when the first trial has been terminated prior to verdict as it was here provided the defendant has objected to the pre-verdict termination or been deprived of any opportunity to object and the termination was not manifestly necessary.

Potter Stewart:

You mean for matter he has not objected?

Mr. Andrew L. Frey:

No, I am talking about the instances in which the Double Jeopardy Clause does bar.

Potter Stewart:

Excuse me, I understand.

Mr. Andrew L. Frey:

And that would require an objection on his bar.

Potter Stewart:

Right, I understand, excuse me.

Mr. Andrew L. Frey:

And fourth, when the defendant has been forced to seek a termination of the first trial in account of irreparable judicial or prosecutorial overreaching design to obstruct the rendition of a fair verdict of that trial.

In other cases a second trial generally is not barred by the clause in our view and particularly pertinent here, a second trial would not be barred when the defendant has sought or agreed to a pre-verdict termination rather than asserting his valued right to receive the verdict of the fact finder than hearing the case.

This general approach has, we submit, several substantial virtues and few of any drawbacks.

It is simple to administer and it provides a clear rule of decision for the vast majority of cases or pre-verdict termination.

The Court must ask the question which will dispose of most of these cases, did the defendant object to the termination?

If he did not object to the termination, the Double Jeopardy Clause would not bar retrial.

Only if he did object to the termination must the court go on to the more difficult question of whether there was in a particular circumstances manifest necessity.

Now, I stress upon the defendant’s role in causing or accepting the pre-verdict termination of this first trial —

Byron R. White:

And you would apply this rule even though he initially had not asked for it himself?

Mr. Andrew L. Frey:

Well, if the prosecutor asked, I am not sure that I follow your question Mr. Justice White.

Byron R. White:

Well, suppose the trial judge on his own motion for some reason that the defendant has not focused on dismisses the indictment during trial and the defendant does not object?

Mr. Andrew L. Frey:

He does not object, we would apply that rule, yes.

If he does object then we have —

Byron R. White:

You do not think that is contrary to Jorn?

Mr. Andrew L. Frey:

No, I do not think that is contrary to Jorn because in Jorn, there were two factors that were critical.

The one that is most pertinent here is that Judge Reeder simply stopped the trial and discharged the jury before anybody had a chance to say anything.

Now, in those circumstances I do not think we can assume that the defendant (Inaudible) agreed, wanted the trial to stop.

Byron R. White:

So, Jorn is just unique?

Mr. Andrew L. Frey:

Well, it is fairly unique.

Fortunately, judges do not often act with that degree of abruptness.

John Paul Stevens:

Mr. Frey can I ask one other question?

The fatal defect one of the critical point is the defendant did not object to the pre-verdict termination.

Now, in stating that, are you emphasizing the fact that he made the motion or are you emphasizing the fact that the time the judge rule, after all the evidence was in he did not in effect say please do not grant my motion?

Mr. Andrew L. Frey:

Well, both factors are pertinent.

He could have protected himself if he made the motion as he did here and the District Court tentatively denied its subject to reconsideration, and then the District Court after taking of the evidence in the recess returns and says, “I am sorry to see that this information is lawfully deficient under Indiana Law and I am going to have to dismiss it.”

The defendant could say, “Your Honor, I do not want my motion acted upon at this time, I will make it an arrest of judgment if you find me guilty.

I want a finding of guilty or innocence.

I have been through this trial and I want a verdict in this trial.”

Mr. Andrew L. Frey:

And if the defendant did that and the judge said, “Well, I am sorry, I cannot be bothered” or so on then I think unlike Somerville — and we have suggested this on our brief — there would not be manifest necessity for the termination, and I think under those circumstances, the Double Jeopardy Clause would bar a second trial.

The difference between this case and Somerville is that in Somerville it happened at the beginning of the trial and the interest of public justice weighed very differently because the witnesses, the jury and everybody and the defendant and all the parties were going to be subjected to a lengthy proceeding.

Thurgood Marshall:

And in this case, the only thing the petitioner did was to file a motion before trial.

Mr. Andrew L. Frey:

Well, it is not what he did that we think is significant, but what he did not do.

Thurgood Marshall:

Well, I mean what else did he have to do and suppose he had not filed a motion before trial?

Mr. Andrew L. Frey:

He could file his motion at any time.

Thurgood Marshall:

Suppose he had not filed a motion before trial and the judge after the trial had dismissed the information on his own?

Mr. Andrew L. Frey:

There would be no bar to retrial on those circumstances in our view.

Thurgood Marshall:

Why, because the defendant did so?

Mr. Andrew L. Frey:

Well, there would be a question if the defendant said —

Thurgood Marshall:

The defedant had not said anything?

Mr. Andrew L. Frey:

Well, I am not sure what they —

Thurgood Marshall:

Because as I understand the usual rule for the defendant waiving is Double Jeopardy point that he did some on his own.

Mr. Andrew L. Frey:

Well, normally the —

Thurgood Marshall:

But he did not do anything here during the trial, nothing.

Mr. Andrew L. Frey:

Well, but what we rely on here is the fact that he did nothing.

He complains now that he did not get a verdict, but he did not ask for a verdict.

He was perfectly pleased as far as the record shows, and he certainly accepted the judge’s grant of his motion to dismiss the information.

Thurgood Marshall:

What could — he have stocked it?

Mr. Andrew L. Frey:

Well, as I have said to Mr. Justice Stevens, I think —

Thurgood Marshall:

All you have to do is to say I think it would be better if you just found me guilty.

Mr. Andrew L. Frey:

Well, the contention is that it was still an opening question whether the —

Thurgood Marshall:

It means if the judge says, “I am going to dismiss this indictment.”

He says, “Oh no, you have to find me guilty, I can only stand for that.”

Mr. Andrew L. Frey:

Well, it is not a question of finding him guilty; it is the question of finding him either guilty or not guilty.

What is critical in these cases is the possibility that the defendant will be acquitted.

That was what all the argument back and forth was in Somerville and in your dissent Mr. Justice Marshall and in Mr. Justice White’s dissent, the stress was on the fact that the defendant might have had a valid acquittal of that trial, and he wanted that chance to have that and that was taken away from him.

Well, in this case, he might have had a valid acquittal and he asked the judge to rule and make a finding of guilt or innocence, but he did not; he did not want it.

Nothing was taken away from him in terms of the valued right which is at the core in our view of the proper disposition of this pre-verdict termination cases.

So, for those reasons we ask the Court to affirm the judgment of the Court of Appeals.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.