United States v. Dinitz – Oral Argument – December 02, 1975

Media for United States v. Dinitz

Audio Transcription for Opinion Announcement – March 08, 1976 in United States v. Dinitz

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Warren E. Burger:

We will hear arguments next in United States against Dinitz.

Mr. Rupp you may proceed whenever you are ready.

John P. Rupp:

Mr. Chief Justice and may it please the Court.

The government petitioned for writ of certiorari in this case after the Court of Appeals for the Fifth Circuit it held en banc with seven judges dissenting that respondent for prosecution had been barred by the Double Jeopardy Clause of the Fifth Amendment.

The procedural context in which respondent’s double jeopardy claim arose is set forth in some detail in our main brief.

In order to provide a basis for discussion of the legal principles that we believe control this case, however, and because the government’s factual statement does not accord precisely with that relied upon by respondent, I should like to begin this morning by reviewing some of the events that preceded determination of respondent’s first trial.

Respondent was charged in two counts of a three-count indictment with having conspired to distribute and with having distributed a control substance, LSD.

At the time of his arrest, he retained Jeffrey Meldon to represent him and so far as appears in the record, Mr. Meldon continued to represent respondent without assistance until approximately five days before the trial began.

This representation included the filing of several pre-trial motions and investigation into the charges and the complaint, rather the indictment and of the circumstances of respondent’s arrest.

At the time of trial, however, respondent appeared with three retained attorneys, Mr. Meldon, Morris Wagner, and my brother Professor Baldwin.

After the jury had been selected and sworn in this case, they were excuse from the courtrooms so that the court could hear evidence and argument on respondent’s motion to suppress the LSD.

In support of that motion, Mr. Wagner called the government’s principal witness, Steve Cox, the agent who had purchased the LSD. As Mr. Wagner’s questioning of Cox proceeded it became apparent that the motion to suppress was without a factual basis and that indeed the theory being relied upon by Wagner in support of the motion and support of his request for hearing on the motion would not have justified, would not have warranted the suppression of the LSD.

The Court, therefore, became understandably annoyed with Mr. Wagner, particularly when he persisted on asking questions of Cox that bore no conceivable relation to the motion to suppress under any theory.

The Court not surprisingly, ultimately denied the motion to suppress.

Since the government’s case rests principally upon the testimony of Steve Cox, the anticipated testament of Steve Cox, Mr. Wagner’s strategy was to attack Mr. Cox’s credibility.

His aim was to convince the Court that Mr. Cox’s testimony would not be worthy of belief because Mr. Cox had been involved in some way in an extortion attempt that allegedly directed at respondent.

The principal problem with this defense was that there was not a scintilla of evidence linking Mr. Cox with the alleged extortion, the fact that neither prevented Mr. Wagner from proceeding with that line of defense in his opening statement.

William H. Rehnquist:

Mr. Rupp, was the opening statement made before any testimony was presented or at the closing of prosecution’s case?

John P. Rupp:

Yes, it was made before any testimony was presented.

The government, the assistant general attorney responsible for the case made an opening statement of just a couple of minutes on behalf of the government and Mr. Wagner’s opening statement proceeded immediately from there.

We have discussed the substance of Mr. Wagner’s opening statement at pages 4 through 7 of our main brief and that statement as whole appears in the appendix on pages 19 through 29.

I do not think that any particularly useful purpose would be served by my reviewing here the substance of the statement.

Even a cursory reading of it reveals we submit that the trial court’s judgment that Mr. Wagner was bent upon a conscious course of baiting the court in hope of declaring a mistrial was not only a reasonable judgment, but very probably an accurate one as well.

After Mr. Wagner had been excluded from the courtroom, the court was informed for the —

Thurgood Marshall:

I understood he was excluded from the courtroom and the building and told do not ever come back?

John P. Rupp:

That is correct.

Thurgood Marshall:

Is that disbarment?

John P. Rupp:

Well, Mr. Wagner had never been admitted to practice before the Northern District of Florida.

He had admitted for the purpose of this trial only.

Thurgood Marshall:

Such as barred, not disbarred?

John P. Rupp:

Yes, and not by double jeopardy.

Thurgood Marshall:

Do you have any other case where a man was told to get out of the building, a lawyer?

John P. Rupp:

Well, I cannot cite you a specific case.

It is certainly not inconceivable to me, however, that misconduct engaged in by an attorney could reach a point at which it would be appropriate to exclude the man or the woman from the courtroom.

Thurgood Marshall:

I said the building?

John P. Rupp:

Or from the building.

Well, from the courtroom —

Thurgood Marshall:

I said out of the building?

John P. Rupp:

Well, it seems to me that the formulation used by the Court in this case to exclude Mr. Wagner from the courtroom may have been too colorful.

His purpose was to exclude Mr. Wagner from further participation in the trial which is what he did.

Thurgood Marshall:

It was not just colorful, if he came back in he would be arrested, it is not just colorful?

John P. Rupp:

Had he returned to the courtroom, it is at least arguable that he would have been in contempt of court?

Thurgood Marshall:

He told the marshal, you make sure he gets out the building?

John P. Rupp:

That is correct and on this facts, we submit to you that that was appropriate.

Although, I hasten to add —

Thurgood Marshall:

You mean every time a lawyer annoys the judge, he should be abolished from the building because you said all he did was annoy him, that was your word?

John P. Rupp:

What I said was that during the motion to suppress, he had annoyed the judge.

I think there were good grounds for the court having admonished him at that point to proceed more properly.

During his opening statement, however, he was rendering a trial, a chaotic at best.

He was refusing to comply with the court’s very clear instructions.

He persisted in proceeding with the line of defense which he knew was without any factual basis.

It was more than mere annoyance at that point.

There was a cumulative series of events that occurred in this case and they occurred rather quickly I would concede, but they seem to me to support the judgment of the court that Wagner was attempting to trigger a mistrial in this case.

Now, I do not believe that the court has to agree with me on that point in order to find that respondent’s retrial was not barred by the Double Jeopardy Clause.

I think, however, that it is a fact.

After Wagner had been excluded from the courtroom as I said, the court was informed for the first time that respondent was not prepared to permit his two remaining attorneys to proceed on his behalf.

The court was informed of this decision the second time at a conference in chambers the morning following Wagner’s exclusion.

At the same conference, Mr. Meldon for the first time and now the Court as had been suggested by my brother Professor Baldwin, stated the declaration of a mistrial might be appropriate.

The session in chambers was suspended to permit the parties more fully to consider that as well as other available options and when reconvened, Mr. Meldon did in fact moved for a mistrial on respondent’s behalf explaining to the court in a statement which appears on page 41 of the appendix, “That Your Honor, I have conferred with the defendant and he wishes to move for a mistrial at this time and after full consideration of the situation and an explanation of the alternatives before him, he feels that he would move for a mistrial and that this would be in his best interest.”

The Court then asked the government to respond to that motion.

John P. Rupp:

The government responded, “Your Honor, we have discussed this at some length and we think that for the reasons you have already set forth in the record a mistrial might be appropriate in this case and the government would not oppose a mistrial.”

Lewis F. Powell, Jr.:

Mr. Rupp, does the record show whether the alternatives that were presented by the judge included the possibility of a continuance?

John P. Rupp:

Yes, it does show that.

At the session in chambers, the morning following Mr. Wagner’s exclusion, the court not only has saved the various options that were available, including a continuance, but also explained rather fully his reasons for having excluded Mr. Wagner.

Now the Court of Appeals, the majority of the Court of Appeals in considering the possibility of a continuance concluded that a continuance would not have been proper in this case because of the defendant’s, respondent in this court’s position that he would not permit either Mr. Meldon or Professor Baldwin to represent him a trial.

So he would have been in a position then of having to get entirely new counsel and sufficient time would have to have been afforded to permit him to get up to speed on the case.

Thurgood Marshall:

As a matter of fact when he was actually tried, he tried himself?

John P. Rupp:

That is correct.

Now, that would have required only a minor continuance.

At the time though, although the court knew that respondent was a third year law student there was no indication that he was prepared to proceed pro se.

Lewis F. Powell, Jr.:

Was the respondent given the option of electing to have a continuance?

John P. Rupp:

The session in chambers was suspended to permit him to consider not only the propriety of a mistrial at that point, but other options.

The record does not indicate what was discussed by Mr. Meldon, Professor Baldwin and respondent.

I think it is fair assumption that all available options were discussed.

What we know from the record is that when the session was reconvened, Mr. Meldon stated that he had discussed the available options, I assume including a continuance, though I cannot say the categorically, and they had decided, that the respondent had decided that his best interest would be served by the declaration of a mistrial at that point.

William H. Rehnquist:

You do have some problem with the continuance once the jury has been empaneled, do you not, because you could not simply go to another jury, it would have to be at least during life of that jury panel that the case was retried?

John P. Rupp:

That is correct and I do not know what the life of this jury was, although perhaps should have a further point here and that is that the court was concerned about publicity that had attended this case, publicity in the press and at the time that he ultimately declared a mistrial, he referred specifically to the publicity as posing in his view a problem.

When this case was called for trial and abnormal number of press people appeared and that increased the judge’s apprehensions.

So that permitting the jury to go free, that is not sequestering them, in this case would have posed more serious problems than even in the normal case and that is apart from the problem of the life of jury.

Prior to a second trial, respondent moved for the dismissal of all charges against him on grounds of double jeopardy and alternatively to have Mr. Wagner reinstated, both motions were denied.

The Fifth Circuit appeal to his ensuing conviction at a trial in which he proceeded pro se and the government’s petition to this Court followed.

Although this Court has repeatedly refused to fashion fixed and inflexible rules to govern the consideration of double jeopardy claims, the decided cases do provide some guidelines that are responsive to and reflective of the policies subsumed by the Double Jeopardy Clause.

One of the most fundamental of this guidelines was that referred to by Mr. Justice Harlan in United States versus Jorn and that is where circumstances developed not attributable to prosecutorial or judicial overreaching, a motion by a defendant for a mistrial is ordinarily assumed to remove any barrier to the prosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.

If the events that respondent’s first trial leaves some questions without a satisfactory answer, they do what they are sufficient to establish it seems to me, both the appropriateness generally of attaching significance to a defendant’s motion to have his trial ended with a mistrial and the correctness of holding here that any barrier to respondents for prosecution was removed by his decision to move for a mistrial.

The history of the Double Jeopardy Clause and the instances of its application in previously decided cases show that the policies, that the Double Jeopardy Clause was designed to further conceived of the clause as a buffer between the state and individual defendants and to protect the individual against harassment and abuse of the judicial process.

The clause embodies are commitment to repose following an acquittal, preventing successive trials following a valid conviction as well as multiple punishments for the same offense and maximizing the chances fairly of resolving criminal charges in a single proceeding.

But this Court has also recognized that the Double Jeopardy Clause cannot be used to frustrate legitimate suicidal interest in punishing those and bringing to the Bar of Justice those who are charged with crime and at the interest of society and of criminal defendants are in some circumstances best served by permitting defendants to move for a mistrial and permitting courts to grant such motions.

In United States versus Perez, this Court held that a second trial would not offend the Double Jeopardy Clause, if the jurors at the first trial have been unable to agree upon a verdict.

And in United States versus Ball, and United States versus Tateo, that a second trial was permissible if the first trial, if the conviction rendered at the first trial as was reversed on direct appeal or in a collateral proceeding.

Permitting a defendant to move to terminate his trial and giving discretion to a court to grant such a motion in the face of perceived prejudice is consistent with these rules and simply acknowledges the unfairness, the inefficiency requiring defendants to go forth in the face of perceived prejudice.

John P. Rupp:

There are limits of course and the limits have been stated in cases such as Gori versus the United States, Downum, Jorn and so on where the defendant moves for a mistrial, retrial is not permitted if the precipitating event is attributable to judicial or prosecutorial over reaching, that is action by the Court or the prosecutor designed to avoid an acquittal by the jury then empaneled.

William H. Rehnquist:

Were either Downum or Gori motions by the defendant for mistrial?

John P. Rupp:

No, in both of those cases the mistrial was declared by the court sua sponte.

William H. Rehnquist:

We have never held in this Court, have we, after the defendant himself moved for a mistrial that the re-prosecution was barred by Double jeopardy in any particular case?

John P. Rupp:

No, you have not.

What you have said as a I just noted, you have left opened a case in which if there were credible evidence of judicial or prosecutorial over reaching that would present a case in which it would not be appropriate to attach a controlling weight to the fact of a defendant’s motion for a mistrial.

William H. Rehnquist:

How do you read that language as overreaching as meaning to as trying the defendant of a very possible favorable verdict from the jury?

John P. Rupp:

That is correct.

It is a sense by court of the prosecutor in my judgment that the case is not going well for the side that that person would wish to prevail and the triggering of a mistrial to forestall an adverse verdict.

Potter Stewart:

That is by deliberate misconduct on the part of the prosecutor?

John P. Rupp:

That is correct.

Potter Stewart:

But wait because you remind — refresh my recollection just a movement over the facts in Jorn, who moved for a mistrial there?

Was that sua sponte?

John P. Rupp:

It was sua sponte as well.

That is right.

Thurgood Marshall:

Mr. Rupp, what happened to the rule that in order to have Double Jeopardy, you now have to have a jury, you would had to call a witness, what happened to that rule?

John P. Rupp:

Well, that is still the rule in cases that are tried to the Court.

The British Rule of course is that jeopardy does not attach until the end of the trial.

The rule in the United States has been since Downum, since Gori that in trials before a jury, jeopardy attaches at the moment the jury is empaneled and sworn, although this Court has also said that that is the beginning, not the end of the analysis and I think that is correct.

The wisdom of permitting a defendant to move for a mistrial in the face of perceived prejudice and not requiring him to go to an ultimate verdict would appear to me to be almost beyond dispute.

As Mr. Justice Harlan noted in the United States versus Tateo what would be high price indeed for society to pay where every accused granted immunity from punishment because of any defects sufficient to constitute reversible error in the proceedings.

It is significant I think as well that from the standpoint of a defendant, it is doubtful as Mr. Justice Harlan noted that Appellate Courts would be as zealous as they are now in protecting against convictions rendered in part on the basis of prejudicial errors if they knew that reversing the conviction would put a defendant beyond the reach of further prosecution.

If retrial were barred following the declaration of a mistrial, but permitted following the defendant’s successful appeal, I think that what we must expect is that trial courts would deny such motion in a vast majority of cases and perhaps for very much the same reasons as Mr. Justice Harlan in this Court felt that the result reached in detail was necessary.

The majority of the Fifth Circuit Court of Appeals expressly declined to hold in this case that the Court’s actions in excluding Mr. Wagner was a product of judicial overreaching.

That is action by the Court designed to avoid an acquittal and respondent is never contended in this Court or prior to this time that the court was guilty of overreaching.

Although we have not urged that this Court to hold that the exclusion of Wagner was not error, neither is it at all important to the position we have taken in this Court, that is that respondent’s re-persecution was not barred by the Double Jeopardy Clause, even if error, the court’s exclusion of Wagner was not unlike the multitude of other errors that occurred during criminal trials.

In fact, I should like to note in this regard that during the conference in chambers, the morning following Mr. Wagner’s exclusion, Mr. Meldon and my brother Professor Baldwin stated that in their judgment, the exclusion of Wagner had been proper.

Mr. Meldon stated after spending considerable time looking into the law, it is my opinion, I believe the opinion of Professor Baldwin that the action of the court yesterday was well within the discretion of the Court and would not be reversed by the Court of Appeals.

Professor Baldwin subsequently informed the court after a full night’s research, it is my conclusion that the Court’s action was proper.

These are the people with the court who are in the best position to assess both the effect of Mr. Wagner’s opening statement on the jury and they both concluded that the exclusion of Mr. Wagner at that point at least had not constituted reversible error and not during the —

Byron R. White:

How much weight do you accord to the fact that the defendant moved for mistrialt?

John P. Rupp:

I attached very significant weight to that.

Byron R. White:

Do you think you will have a different position if the court itself had on its own motion said in view of the circumstances here I declare a mistral?

John P. Rupp:

Declare a mistrial.

Ultimately no, ultimately I think the same result would be reach.

Byron R. White:

But now?

John P. Rupp:

Now, if this case were being measured pursuant to manifest necessity standard as we argued in our main brief, we believe that the declaration of a mistrial by court sua sponte at the point at which the mistrial was declared was justified by manifest necessity in the ends of public justice.

Byron R. White:

And I suppose you would arrive at that result, whether you consider the exclusion to be error or not?

John P. Rupp:

That is correct.

We would arrive at that conclusion.

I think that the Fifth Circuit, the majority of the Fifth Circuit fundamentally misconceived the manifest necessity standard by looking at the circumstances that existed at the time Wagner was excluded, rather than at circumstances that existed at the time the declaration of a mistrial was being considered.

By definition, if manifest necessity requires a particular act to be taken, that action is not error so we would not be talking about error at all.

Byron R. White:

Let us assume that it was error and then make a manifest necessity argument, would it not be just that the judge realized that it was error and that there was inevitable error in the record and rather than waste everybody’s time and energy and —

John P. Rupp:

Money.

It was best to abort the trial.

Yes, that would be a quite decision.

Byron R. White:

That is what you mean by manifest necessity?

John P. Rupp:

Yes, that is correct.

William H. Rehnquist:

Manifest necessity is not the same when the defendant moves for a mistrial, say as when the prosecutor moves for a mistrial?

John P. Rupp:

No and this Court has recognized that there is a very significant difference when it is the defendant who moves to take the trial away from the tribunal then empaneled, the jury then empaneled and the Court act sua sponte.

Now, in my response to Mr. Justice White, we believe very strongly that the manifest necessity standard, the sua sponte standard would have warranted the declaration of a mistrial and would not have barred respondent’s re-prosecution in this case.

Byron R. White:

Your brother argues that the motion was involuntary?

John P. Rupp:

Yes.

Byron R. White:

But I take it your response would be even if it was, there is no error in declaring mistrial because it would have been quite valid even if there had been no motion?

John P. Rupp:

That is correct.

William H. Rehnquist:

But you would have been up against Jorn, had it not been a defendant’s motion here, in a way that you are at least arguably not when the defendant moves?

Byron R. White:

Well, not if you had to put aside the motion on the grounds that it was involuntary or had been coerced or something?

William H. Rehnquist:

Well, If we exclude from consideration the fact that the respondent in this case moved for a mistrial, we would be in a position of having to assess the circumstances that exist when a mistrial was being considered by the manifest necessity standard.

Now, and we believe that the declaration of a mistrial sua sponte would have been justified in these circumstances.

The difference between Downum and Jorn in this case in part is that Downum and Jorn could have preceded to judgment.

William H. Rehnquist:

Nothing had occurred at the point at which a mistrial was declared in either of those cases that gave any indication that an ensuing conviction would not have been invulnerable.

If there was going to be error, it would have been subsequent error.

Those trials could have proceeded.

It was reasonable for the Court to conclude here that this trial could not proceed, but it could —

Error or not?

William H. Rehnquist:

Error or not, that is right.

But that is not to say that the respondent’s — that the motion made by the respondent in this case was involuntary.

There were a whole range of options which the respondent could have pursued other than moving for a mistrial.

He could have permitted Professor Baldwin and Mr. Meldon who had represented him until five days before trial began to represent him at the trial.

Let me interrupt you Mr. Rupp.

Is the test under the language of Justice Harlan in Tateo and Jorn whether the motion for a mistrial by the defendant is involuntary or not or is it not whether it is in response to the sort of of overreaching by the prosecution that you mentioned a moment earlier to deprive the defendant of every possible favorable verdict?

Those are two different things, I would say.

John P. Rupp:

Yes, they are.

It seems to me very difficult to suggest as respondents have and required to do that the guilty plea entered by the defendant in Tateo was more voluntary than the motion for a mistrial entered by the defendant in this case.

The guilty plea in Tateo was subsequently found to have been coerced.

Now, whether Tateo was rightly or wrongly decided, there is a good deal less coercion, in fact, no coercion in this case.

The defendant as I was —

Harry A. Blackmun:

Mr. Rupp when the defendant makes a motion, does that introduce under the scales, an element of waiver?

John P. Rupp:

Well, yes, but it is not waiver.

Well, let me back off from that.

In a number of cases, this Court has attempted to come to grips with the theory for Double Jeopardy Cases of this sort and Mr. Justice Holmes at one point suggested a continuing jeopardy theory, other courts have found that a waiver theory would be appropriate.

I think Mr. Justice Frankfurter, appropriately decided that those were rather arid exercises and what the court should abide in cases of this sort is looking at that policies that are subsumed by the Double Jeopardy Clause, the circumstances that existed at the point the mistrial was both declared by the Court sua sponte or pursuant to a defense motion and then decide whether the Double Jeopardy Clause was properly invoked.

Harry A. Blackmun:

Well, does that analysis suggest that much significance ought not be attached to the mere fact that the defendant made the motion, if the focus is to be on the policies covered by the Double Jeopardy Clause?

John P. Rupp:

Perhaps.

It seems to me, however, that since one of the policies of the Double Jeopardy Clause is to maximize the opportunity that a criminal proceeding would be brought to judgment in a single proceeding and defendants do have an interest which we acknowledge in having a cost determined by a particular tribunal, the fact that the defendant would move for a mistrial is an indication and I think rather an impeachable one that he regards his opportunity to proceed as respondent did here is over weighed by other considerations.

In this case, it was over weighed by considerations such as the fact that Mr. Wagner had proceeded to inform the jury of a line of defense that he simply could not prove and no evidence along those lines would have been admissible at trial.

The Court had been required to excuse the jury three times in the course of only a few moments, Mr. Wagner had been admonished, the decision by respondent in this case to try again on another day seems to me to have been a legitimate and reasonable decision under the circumstances and clearly not coerced.

Now, I would also like to mention that even if one concedes that the choice that respondent had to make in this case was a hard choice, it was a case that was presented to him in no small part because of the misconduct of his own attorney.

This is not a case in which the defendant sat idly by while events passed him by without him being able to affect them.

Here it was defense’s misconduct that brought this trial to the impasse.

John P. Rupp:

In that regard, I would like to bring to the Court’s attention a recent opinion written by Judge Friendly in which he discusses a situation not unlike the situation with which we have been presented here.

I have given a copy of this opinion, United States versus Gentile and Laponzina and I will provide copies to the Court through the clerks since it is not yet reported.

In Gentile as in this case, there was substantial indications that defense attorneys were attempting to use the Double Jeopardy Clause as a sword, if you permit me to use that, engaging in rather sharp practices in hope of a triggering mistrial while at the same time having the Double Jeopardy Clause available to appeal to when the re-prosecution occurred.

For the reason stated by Judge Friendly, for the reason stated in our main brief, we think that ought not to be permitted to occur.

I would like to save a few remaining moments.

Warren E. Burger:

Mr. Baldwin.

Before you get under way, let me put this question to you.

Given all the circumstances shown by this record and the denial of the motion to mistrial by the judge, do you think there would have been a pretty good case for reversal of this action denying this trial, had a conviction of guilty followed?

Fletcher N. Baldwin, Jr.:

Had the defendant found guilty, Your Honor?

Warren E. Burger:

That is the only occasion.

Fletcher N. Baldwin, Jr.:

And there is no attorney present or his chief trial counsel has been removed?

Warren E. Burger:

A lawyer has made a motion for a mistrial and the judge after considering it denied it and the man is tried and found guilty?

Fletcher N. Baldwin, Jr.:

If indeed that occurred in the instant case and if the judge elected as his option to continue on with the trial and to force the only other retained counsel, Mr. Meldon to proceed, then we would have had a Sixth Amendment right to question issue, right to counsel issue.

We would not at juncture had a Fifth Amendment Double Jeopardy question, that is correct, Your Honor.

Warren E. Burger:

Well, there would be no double jeopardy case at all?

Fletcher N. Baldwin, Jr.:

That is correct.

Warren E. Burger:

You say, you would have a good case on any grant of a mistrial?

Fletcher N. Baldwin, Jr.:

It is arguable that we would have at least have a case on the Sixth Amendment, the right to counsel.

Byron R. White:

Well, how would you decide the issue?

Fletcher N. Baldwin, Jr.:

I am sorry Your Honor.

Byron R. White:

How would you decide it?

Would you have thought it was error to continue the trial or not?

Fletcher N. Baldwin, Jr.:

I would think, yes, Your Honor it was clearly, it struck at the heart of the Sixth Amendment right to counsel.

Byron R. White:

So It is not just arguable in your opinion that would have violated his right to counsel?

Fletcher N. Baldwin, Jr.:

In my opinion it would have violated his right to counsel and it would appear that this is the opinion of the en banc court below, the Fifth Circuit.

(Inaudible)

Fletcher N. Baldwin, Jr.:

Your Honor, it would appear that the heart of this case involves the Sixth Amendment right to counsel.

It involves the Sixty Amendment right to counsel because the only retained trial attorney present in this case was the attorney that was removed.

The defendant had hired one other attorney not two.

He had hired one other attorney to make sure that all papers were filed until he could retain an experience trial counsel and this is the heart of the Fifth Circuit’s opinion below.

Fletcher N. Baldwin, Jr.:

Mr. Chief Justice and may it please the Court.

The Fifth Circuit en banc focused in upon the abuse of the trial process by the judge below and in focusing in on abuse of the trial process, the Fifth Circuit concluded that the Court below cut the heart out of Sixth Amendment right to counsel when that Court removed the only trial attorney available to the defendant over the defendant’s objection and not only removed him as Mr. Justice Marshall indicated, but had two marshals gingerly escort from the courtroom, from the grounds and left him off in the parking lot across the street.

Warren E. Burger:

Is that usual in the Fifth Circuit, counsel if you know, for them to have a re-grant rehearing en banc and then have no oral argument?

Fletcher N. Baldwin, Jr.:

Yes, Your Honor that is a common practice in the Fifth Circuit to my knowledge.

Warren E. Burger:

Re-consideration on en banc, but not rehearing?

Fletcher N. Baldwin, Jr.:

As a matter of fact Your Honor, we requested oral arguments en banc and we were denied, our motion was denied.

The government in this case stresses two points, two major points that I would like in the time that I have to discuss.

First, that the defendant with his second retained counsel, moving for mistrial or at least the Hobson’s choice as the Court below noted, in moving for mistrial waived his right to plead double jeopardy in the Appellate Court.

And second, aside from that and barring whether the case involved a waiver or not assume arguendo it did not involved the waiver, the doctrine of manifest necessity or the ends of public justice prevail.

The two major cases that the defendant would cite in support of his proposition, aside from the case that I was given yesterday afternoon which I will discuss later, are Tateo and Illinois against Somerville which I would like to discuss in detail.

In response to his first point, the government argues that the mistrial was a direct result of the defendant’s motion and when a motion by a defendant is made for a mistrial that assumes to waive any double jeopardy claim that a defendant might otherwise have, regardless of the fact that there might be prosecutorial or judicial error.

Thurgood Marshall:

Was that discussed before the judge in chambers?

Fletcher N. Baldwin, Jr.:

The question of double jeopardy?

Thurgood Marshall:

Yes sir.

Fletcher N. Baldwin, Jr.:

No, Your Honor.

The question of double jeopardy was not discussed in chambers for the simple reason that we were trying to get the attorney back into Court.

Thurgood Marshall:

But when you — could have you not said, well now look I do not want to make a motion for a mistrial because I am going to get a Double Jeopardy Clause, you could have at least raised it?

Fletcher N. Baldwin, Jr.:

Although it is not before you, we did send the judge a telegram that afternoon in which and I telegrammed to the Fifth Circuit Court of Appeals which was docketed in the Fifth Circuit 73-1395 and the telegram stated both Fifth and Sixth Amendment objections to the Act.

Thurgood Marshall:

Before or after the motion was made?

Fletcher N. Baldwin, Jr.:

That was before the motion was made.

That was after 02:40 p.m. on the afternoon of February the 15th 1973.

The motion for mistrial occurred 10:00 a.m. February the 16th 1973.

William H. Rehnquist:

You say the telegram raised both Fifth and Sixth Amendment?

Fletcher N. Baldwin, Jr.:

It stated that the judge had created error and the error would involve Fifth and Sixth Amendment, although Mr. Justice Rehnquist we wished to concentrate upon right to counsel at that particular time because as Mr. Chief Justice Burger noted initially with this hypothetical, double jeopardy was not at issue at that particular point.

William H. Rehnquist:

And when you mentioned the Fifth Amendment, did you have double jeopardy in mind?

Fletcher N. Baldwin, Jr.:

We had double jeopardy in mind.

We did not wish to use double jeopardy because this was or at least the defendant felt as you can tell by the record very strongly that this was an aggressive trial attorney and please keep in mind Your Honor that the defendant started with a paid trial attorney and ended as a popper with no attorney.

The main —

Warren E. Burger:

How is the telegram relevant to this case that even outside the record if on the following day, the motion was made by the defense for a mistrial without raising any of these same questions for reservations?

Fletcher N. Baldwin, Jr.:

The motion made for a mistrial Your Honor, the following day, we argue was not a motion at all because there were no options open to the defendant at that particular point in time.

Warren E. Burger:

Where in the record do we find that counsel stated that?

Fletcher N. Baldwin, Jr.:

Your Honor, throughout the record, especially page 38 of the record, counsel had time and time again requested the Court to reinstate Mr. Wagner.

Page 38, the Court indicates that he would not.

Warren E. Burger:

This is long before the reinstatement, the motion for mistrial, is it not?

Fletcher N. Baldwin, Jr.:

This is before the motion for mistrial.

Warren E. Burger:

Where in this appendix do we find the mistrial motion itself?

Fletcher N. Baldwin, Jr.:

The mistrial motion itself occurs at page 41 at the bottom of the page when Mr. Meldon requested the court to move for a mistrial.

It is our contention, however, that by that time, there was no available option use to the defendant.

He could not proceed further with his case.

He did not have an attorney to proceed with the case.

The court at the top of page 41 said that he would not reinstate Mr. Wagner.

He would not let us go to the Fifth Circuit Court of Appeals.

He would not allow the defendant to continue in formal purpose (ph).

Lewis F. Powell, Jr.:

Mr. Baldwin, on page 38 of the appendix when you stated that the Court’s action was proper —

Fletcher N. Baldwin, Jr.:

Yes, Your Honor.

Lewis F. Powell, Jr.:

— what action of the Court were you referring to at that time?

Fletcher N. Baldwin, Jr.:

Your Honor when the Court removed Mr. Wagner from the courtroom, we tried, what we were focusing in upon was how do we get him back in?

And unless we could walk him back in and then have him arrested, we could think of no way to get him back in.

We called the Fifth Circuit to ask whether they knew how we can him back in.

They said the only way we can think of would be through an interlocutory appeal which they would not take unless the trial judge would join in, in the alternative walk him back in the Court which he would not do.

Consequently, we threw up our hands and in effect concluded that there was nothing more we can do.

The court was proper at least at that juncture in terms our trying to have Mr. Wagner reinstated.

The whole —

Lewis F. Powell, Jr.:

What was proper in having excluded Mr. Wagner?

Fletcher N. Baldwin, Jr.:

No, Your Honor.

The courts — that is an unfortunate sentence at least the way it came out.

Lewis F. Powell, Jr.:

Well, it came at the same way from the other counsel also?

Fletcher N. Baldwin, Jr.:

Yes, that is correct.

The other counsel felt that way.

Lewis F. Powell, Jr.:

The action of the Court yesterday was well within the discretion of the Court and will not be reversed by the Court of Appeals?

Fletcher N. Baldwin, Jr.:

My main concern at the time Your Honor and the purpose for the statement was to attempt somehow to get Mr. Wagner in.

I did not know how to do it.

I do not know how to do it today.

Lewis F. Powell, Jr.:

The only relevance so far as I am concerned at the moment of what you said then was that if you and your co-counsel thought that the action of the court was proper, how could you continue to press for the reinstatement of Mr. Wagner and say you thereby were deprived when the Court denied that renewal of your motion of all action?

Do you agree the court’s action had been proper?

That is an awkward way to put it, but I think you understand my point.

Fletcher N. Baldwin, Jr.:

Yes, Your Honor.

Let me go back if I may for a moment.

You must keep in mind that as we talked in the Fifth Circuit below, once the, if I may use the term, wrath of the trial judge focused upon Mr. Meldon after Mr. Wagner had been removed on page 33 of the record, the judge said Mr. Meldon, in effect you are going out too unless you can convince me that you did not have anything to do with it.

I am going to treat you the same way I have treated Mr. Wagner and although the court uses the terms in the minutes below, disbarred Mr. Wagner as the government points out, barring would have been more proper, but the court certainly could have disbarred Mr. Meldon.

Mr. Meldon acted from here — from the point page 33 on, when the focus shifted to Mr. Meldon.

He acted under a cloud, from page 33 on —

Thurgood Marshall:

The judge could disbar him?

Fletcher N. Baldwin, Jr.:

He said he could Your Honor.

Thurgood Marshall:

Well, in case he says he can (Inaudible)?

Fletcher N. Baldwin, Jr.:

Yes, Your Honor, if he could disbar him if there are circumstances that would support disbarment.

Disbarment, we would —

Thurgood Marshall:

But you said you cannot disbar him without a hearing?

Fletcher N. Baldwin, Jr.:

You must, that is the final resort contempt as the Fifth Circuit pointed out there are other grounds for punishment, other ways to punish attorney short of the drastic act of disbarment.

I would also point out in response to Mr. Justice Powell’s question that from page 33 of the record on Your Honor, the defendant, I am sorry, Mr. Meldon kept asking to be removed from the case.

Yet, this will be the same attorney that ultimately will move for a mistrial.

He stated immediately that I do not want to proceed, the defendant does not want me to proceed.

He was at that particular juncture excess baggage as it were.

Now, the government argues that once — that the trial court was never placed on notice of these other factors that Mr. Meldon did not want to proceed that he was not prepared, being the only other hired counsel that he could not proceed, I would point out to you as the decision on boxing to stress that this is ongoing act.

That it was not necessarily at the point in time at which Mr. Wagner was removed that we focus or that the court below focused.

It was the culminated in the next morning in the removal of the jury by dismissing that jury by dismissing that jury and what was the ongoing act?

First, it was the removal of Mr. Wagner, the afternoon of February the 15th, that would involve Sixth Amendment questions.

Secondly, it was the refusal of the trial court to one even consider options as far as the removal was concerned which goes to the heart of Jorn simply a removal and secondly, when it came ultimately to the court’s attention that Mr. Wagner was indeed the only trial counsel available, the court refuses to take additional steps or any steps to correct that initial error.

Now, although the government says it was unforeseeable, it was quite foreseeable because we have a length of time, at least 18 hours in which the Court could have considered alternatives to the drastic act of removing that first jury?

William H. Rehnquist:

Mr. Baldwin, as I read the transcript on page 41 right before the motion for mistrial where the court is in chambers the next day, the judge gives the impression at least of being open-minded as to other possibilities.

William H. Rehnquist:

He says have you gentleman any further thought about how we should proceed in this matter and then Mr. Meldon comes forth and says, Your Honor, I conferred with the defendant and he wishes me to move for a mistrial?

Fletcher N. Baldwin, Jr.:

Yes, Your Honor, that is correct.

Although, the judge had earlier at page 40 of the record indicated that he was thinking of moving or considering moving for a mistrial because the ends of public justice, neither the government nor the defendant —

William H. Rehnquist:

Be that as it may.

It was the defendant that moved for a mistrial?

Fletcher N. Baldwin, Jr.:

No, Your Honor, Well, the defendant moved a motion for mistrial through an attorney who was not longer capable of representing the defendant.

At the top of the page, the court really stressed its position by saying it would not enter any orders allowing Mr. Wagner to return.

It would not consider curative alternatives.

William H. Rehnquist:

Well, you were associated with Mr. Meldon on the trial of this case in the District Court and you are here now telling us that he was no longer capable of representing him?

Fletcher N. Baldwin, Jr.:

Mr. Meldon said Your Honor that he did not want to represent the defendant once Mr. Wagner was removed.

Mr. Meldon told the Court and it is in the record that he did not prepared the opening statement, he did not prepare the trial —

William H. Rehnquist:

But he did make the motion for mistrial?

Fletcher N. Baldwin, Jr.:

He made the motion for mistrial that is correct Your Honor.

That is a —

William H. Rehnquist:

And he said after conferring with the defendant?

Fletcher N. Baldwin, Jr.:

He argues that — he does state that he conferred with the defendant.

I would suggest Your Honor that if indeed there is a question of a valued right such as double jeopardy that the trial judge himself in light of the facts of the peculiar facts of this particular case should himself had re-conferred with the defendant as to whether the defendant wished to waive his —

William H. Rehnquist:

None of our cases have ever held that?

Fletcher N. Baldwin, Jr.:

There are lower court cases, Your Honor, but none of this —

William H. Rehnquist:

(Voice Overlap) our cases?

Fletcher N. Baldwin, Jr.:

That is correct Your Honor.

I do have in the brief lower court cases that do suggest and hold that.

But the heart —

Warren E. Burger:

We will resume there.

Mr. Baldwin you may continue at 1 o’clock.

[Lunch break]Mr. Baldwin you may proceed.

Fletcher N. Baldwin, Jr.:

Mr. Chief Justice and may it please the Court.

It is important for me to stress the fact that the error in the instant case could have been cured at anytime prior to the dismissal.

The failure of the trial judge to cure that error, the en banc decision states, was the culmination of an abuse of judicial discretion.

The abuse of judicial discretion was the combination of the removal of the trial counsel, coupled with the refusal to consider alternatives to that drastic act when alternatives were presented to the court and ultimately aborting the trial.

Fletcher N. Baldwin, Jr.:

As the trial court itself noted in its ordered, in the petitioner’s appeal page 35 (a), Dinitz was essentially without counsel.

Certainly, he was essentially without counsel because the court had just escorted counsel to the parking lot.

Byron R. White:

Yes, but the trial judge thought he was correct in doing so and everybody in sight agreed with him, including the remaining counsels?

Fletcher N. Baldwin, Jr.:

The trial judge you are correct, Your Honor, he thought he was correct in doing so, but upon reflection when it is brought to the Court’s attention that there are other ways of curing the error short of a aborting that —

(Inaudible)

Fletcher N. Baldwin, Jr.:

No Your Honor, but the experienced trial judge, I submit, should not have reached the point where he would have removed the attorney for an act that is not considered to be very drastic at all.

As a matter of fact, in footnote 11 of the panel decision below, the majority of the panel concluded that perhaps it was a fact distinction between the trial judge, a fact misunderstanding between the trial judge and the defense counsel.

Keep in mind that from the record, the trial judge never allowed the defense counsel to examine the FBI agents that he had called on proffer.

The jury was out of the room at that time. On two occasions at the same point in time, the defense counsel made an objection.

The trial judge would not permit the objection to be made.

There is no way of knowing what the objection would have been.

Warren E. Burger:

Are you suggesting now that on this record, it shows that the statements made in the opening statement by defense counsel were supportable statements?

Fletcher N. Baldwin, Jr.:

It is difficult to say, Your Honor.

Warren E. Burger:

I have thought so from the looking at the record?

Fletcher N. Baldwin, Jr.:

There is nothing in the record to indicate that the jury was ever apprised of these statements.

The government very promptly had the jury removed on three different occasions.

The last time the jury was removed never to return.

The statements occurred on proffer when the judge asked the attorney to now present what he was going to tell the jury.

The only statement that the jury heard was this is the case of the incredible witness.

The government promptly stopped him from going further, the jury was then removed.

So there is no evidence in the record at all Your Honor that the jury was infected in any whatsoever other than the coming in and out of Court on two different occasions.

The third —

Warren E. Burger:

When the motion for mistrial was made by the defense counsel, would you agree that the judge was presented with a dilemma that was not easy to solve?

Fletcher N. Baldwin, Jr.:

Clearly, Your Honor, the judge —

Warren E. Burger:

That is indicated by the responses of yourself and your co-counsel expressing the view that the judge’s action up to that point had been correct?

Fletcher N. Baldwin, Jr.:

The judge was admittedly faced with the dilemma, but it was a dilemma of the judge’s own creation.

It was not the defendant’s creation.

The judge removed an attorney for no apparent reason and then said what do we do now?

Warren E. Burger:

For no apparent reason?

Fletcher N. Baldwin, Jr.:

As far as the jury is concerned —

Warren E. Burger:

As far as the jury is concerned?

Fletcher N. Baldwin, Jr.:

Yes, Your Honor.

Warren E. Burger:

But not without reason.

Fletcher N. Baldwin, Jr.:

Well, certainly it is difficult to say that a trial should be aborted because the trial attorney offends the sensibilities of the trial judge which is precisely what happened here.

Warren E. Burger:

Is that the only way you characterize this conduct of counsel that he merely offended the judge?

Fletcher N. Baldwin, Jr.:

I cannot see where the conduct of the counsel in any way affected the jury which I think is the key.

Warren E. Burger:

Then why, then why did the both of you concede to the Court separately that the judge’s action was correct?

Fletcher N. Baldwin, Jr.:

What I had in mind, and what I was trying to tell the Court and at two different occasions asked the Court to reinstate was that from this point on we do not know what to do.

We want that attorney back in courtroom, he has been paid for.

The defendant is now a popper.

We do not know what to do.

We can get no relief from the Fifth Circuit.

The judge refuses to allow any type of an appeal on the question and the judge refuses to reinstate him which were the two options.

As far as we could say and the voice inflection is not there, the judge was correct.

We did not know how to get him back into Court.

Warren E. Burger:

Well, the judge than rested on the matter overnight as I recall this record?

Fletcher N. Baldwin, Jr.:

Yes, Your Honor.

Warren E. Burger:

And then the next morning came back and asked you if you and your co-counsel if you had any suggestions or words to that effect?

Did you then advance some alternatives to him?

Fletcher N. Baldwin, Jr.:

Your Honor, before going in I asked him would he reconsider and reinstate Mr. Wagner.

He refused.

The alternatives advanced to him appear at top of page 41, not at the bottom page 41 and the only alternatives at that juncture Your Honor and today as far as I can tell the only alternatives open which goes to the question of the Chief Justice’s issue of dilemma was either reinstate the counsel, unless the judge could give clear and convincing reasons for why he dismissed him in the first place or in the alternative allow an appeal at that point, an interlocutory appeal to determine the correctness of the judge’s actions.

Thurgood Marshall:

He continued the trial as it was?

Fletcher N. Baldwin, Jr.:

He could have continued the trial as it was admittedly and that would not have produced a double jeopardy issue.

Thurgood Marshall:

And if he continued the trial court, your argument I recall form automatic reversal under the Sixth Amendment?

Fletcher N. Baldwin, Jr.:

I am sure.

Thurgood Marshall:

Is that your argument?

Fletcher N. Baldwin, Jr.:

My argument would have to be that we would hope that would case a reversal under the Sixth Amendment right to counsel.

Thurgood Marshall:

And you would get what, a new trial?

Fletcher N. Baldwin, Jr.:

If the judge had continued the trial we would have gotten a new trial.

Thurgood Marshall:

But now, the man goes free, what is your position?

Fletcher N. Baldwin, Jr.:

Yes, Your Honor.

The man goes free —

Thurgood Marshall:

If you get more of this way, then you would have not gotten the other way?

Fletcher N. Baldwin, Jr.:

Only because the Fifth Amendment demands that Your Honor.

Since 1824, the Fifth Amendment has demanded that it is another constitutional right involved here.

It is an abuse of discretion by the trial judge.

You are absolutely correct and the Chief Justice was —

Thurgood Marshall:

I should not make you agree to a mistrial?

Fletcher N. Baldwin, Jr.:

There was nothing else to do.

Thurgood Marshall:

Well, you just said you could have gone on with the trial.

Fletcher N. Baldwin, Jr.:

The defendant did not want us to go onto trial.

The question was could the judge —

Thurgood Marshall:

If the defendant did not want to go on trial, what did the defendant want, a mistrial?

Fletcher N. Baldwin, Jr.:

No, Your Honor, the defendant does not.

Thurgood Marshall:

Well, that is what you told the Court?

Fletcher N. Baldwin, Jr.:

That is what the –-

Thurgood Marshall:

You said you had talked to the defendant and he had agreed that he would make the motion for a mistrial?

Fletcher N. Baldwin, Jr.:

There is no evidence of the defendant actually agree to the motion for mistrial.

Thurgood Marshall:

Well, I must take your co-counsel’s word.

he said so?

Fletcher N. Baldwin, Jr.:

That is correct.

Thurgood Marshall:

But your co-counsel said, you first one us to go behind what you said now you wants to go behind what the co-counsel said?

Fletcher N. Baldwin, Jr.:

You have to take it in context of who the co-counsel was at that point.

Look the judge had removed an attorney and the judge had also removed a theory of defense, the co-counsel could not present a theory of defense.

Thurgood Marshall:

Was the defendant there when the statement was made?

Fletcher N. Baldwin, Jr.:

No, Your Honor.

Thurgood Marshall:

He was not there?

Fletcher N. Baldwin, Jr.:

The defendant was not in chambers when the statement was made, no, Your Honor.

Thurgood Marshall:

Did you object it?

Fletcher N. Baldwin, Jr.:

It happened so fast.

No, Your Honor.

Mr. Meldon did not object to that.

He did not.

No.

In the brief time I have remaining, there are two cases that I would like to focus in upon.

The government cites to Tateo versus United States as a case that would be controlling in this matter.

Very briefly I would like to focus in upon Tateo if I may.

Tateo is not similar to the instant case in that in Tateo, regardless of courtroom conversation between the judge and the attorney as Solicitor General Cox pointed out in the brief for the government in that case, the defendant could still go to the jury with effective assistance of counsel.

The defendant had a choice.

He could have disregarded the judge’s attitude and then appealed the sentence, assuming he was found guilty, or he could have gone to the jury and ended it then and there in an acquittal.

The jury had in no way been infected by the statement of the judge to the trial counsel.

Indeed, the only thing that Tateo presents perhaps is a deprivation of a fair sentence, not the deprivation of a fair trial.

And as this Court pointed out in footnote 11 in Jorn, it stressed in footnote 11 in Jorn that since Tateo was not foreclosed of options, one going forward or two appealing going forward the jury had in no way been infected, the case in Tateo is different because in the instant case the defendant had been crippled since his trial attorney had been removed from the case.

One other case so that —

On the other hand he had not been crippled by the opening statement remark made by counsel, you have to draw that distinction?

Fletcher N. Baldwin, Jr.:

He had not been crippled by what, Your Honor?

I am sorry.

By counsel statement, the opening statement to the jury which the judge found offensive and un-supportive?

Fletcher N. Baldwin, Jr.:

He had not been crippled by that, no, Your Honor.

It is far as I can tell.

So, you say the one thing worked to his benefit, the other to his detriment or the one did not work to his detriment, but the other one did?

Fletcher N. Baldwin, Jr.:

The Court very carefully removed the jury and the Court did not focus in upon that particular statement when the Court had counsel ultimately removed.

The Court focused in upon the fact that the evidence was not admissible and that counsel had not discussed it with the FBI agents.

Well, was not the statement about the case of the incredible witness made before the jury?

Fletcher N. Baldwin, Jr.:

It was made before the jury, yes Your Honor but the government promptly objected and the Court in its order in appendix “A” to the government’s petition does not mention that in any detail, but again focuses in upon the FBI and the fact that the defense counsel was going to impugn the integrity of the chief government witness in this particular case.

The government also cites for support assuming arguendo that ends a public justice are involved in this case, Illinois versus Somerville.

I suggest that Illinois versus Somerville is not similar to this particular case.

In Illinois versus Somerville, the judge found himself within an incurably defective indictment.

The defendant had absolutely nothing to lose in that particular case.

Fletcher N. Baldwin, Jr.:

As the Attorney General of Illinois, William Scott pointed out that under Article 1, Section 7 of the Illinois Constitution, the question was now one of jurisdiction.

The judge no longer had jurisdiction over the case.

What did the defendant have to lose?

He could have gone to the jury.

If the jury had found him guilty he would have received an automatic reversal.

In this particular case —

William H. Rehnquist:

If the jury found him not guilty, I doubt that he could have been retried?

Fletcher N. Baldwin, Jr.:

There is doubt in the Attorney General’s opinion brief that he could have been retried, that is even though it is jurisdictional.

William H. Rehnquist:

So, he had that to lose, the right to go to trial with the original jury and hope for a verdict of not guilty?

Fletcher N. Baldwin, Jr.:

Clearly, it was a gamble Your Honor in that he could have not have been found guilty by that jury.

He could have only been found innocent by that jury.

In the instant case, if the defendant had retained his trial counsel, if the Court had not removed his trial counsel, he could have gone to that jury and ended it the matter then and there.

It must be kept in mind that the two distinctions in Somerville are first of all, there were not options realistic in Somerville, therefore, Jorn that demands as to panel suggested below, curable options to be first considered before drastic action such as abortion of a trial occurs, remains intact.

For these reasons, it is respectfully requested that the decision of the en banc Fifth Circuit Court of Appeals in this case be affirmed.

Thank you.

Warren E. Burger:

Thank you Mr. Baldwin.

You have —

John P. Rupp:

No, nothing further, thank you.

Warren E. Burger:

Very well.

Thank you gentlemen.

The case is submitted.