United States v. Jorn

PETITIONER:United States
RESPONDENT:Jorn
LOCATION:Ohio State Bar Association

DOCKET NO.: 19
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 400 US 470 (1971)
ARGUED: Jan 12, 1970
REARGUED: Oct 22, 1970
DECIDED: Jan 25, 1971

Facts of the case

Question

Media for United States v. Jorn

Audio Transcription for Oral Argument – January 12, 1970 in United States v. Jorn

Audio Transcription for Oral Reargument – October 22, 1970 in United States v. Jorn

Warren E. Burger:

— arguments in number 19, United States against Jorn.

Mr. Stone you may proceed whenever you’re ready.

Richard B. Stone:

Mr. Chief Justice, and may it please the Court.

This criminal tax case which is now and re-argument comes to this Court on direct appeal from the United States District Court for the District of Utah.

The case presents the situation in which I think it can be said that both defense counsel and the Government agreed that the trial court acted arbitrarily and perhaps mistakenly in granting a mistrial.

That same judge some month’s later apparently recognizing his error in some way refused to permit the Government to retry the case on grounds of double jeopardy and it is from that decision that the Government now appeals.

I would hope to devote the bulk of my argument today to the merits of this case.

But I would like to at the outset to address myself very briefly before stating the facts of this case to the jurisdictional aspect of this case, that is to the Government’s right to appeal the trial judge’s dismissal on grounds of double jeopardy under Section 3731 of Title 18 of United State Code which is known as Criminal Appeals Act.

I imagine that the members of this Court remember that on argument last term, the Court asked the Government counsel in effect how the Government could bring this appeal when Section 3731 allows the Government to appeal from the granting of a motion in bar only “when the defendant has not been put in jeopardy.”

And when in this case that the defendant had technically been put in jeopardy at the first board of trial in the sense that the jury had been impaneled before the trial was dismissed.

Warren E. Burger:

Now this actual setting is true I suppose in most of the mistrial cases we encounter in the courts in this country.

Richard B. Stone:

That’s right and that’s precisely the point I’m about to make.

Of course, at the time of the original argument, it was still undecided by this Court whether the phrase not been put in jeopardy in Section 3731, meant jeopardy literally or whether it meant jeopardy in the full constitutional sense.

In other words, whether the jurisdictional and the merits question and a case like this would be essentially the same question and of course that question was decided by this Court at the end of the term in the Sisson case which was handed down subsequent to the original argument of Jorn.

Now in Sisson, this Court decided that the Criminal Appeals Act forecloses appeal from the motion in bar granted after jeopardy has literally attached.

And I think it can be very fairly be said that the court in Sisson placed considerably weight on the Government’s very candid admission that it had always assumed this restrictive interpretation of the Criminal Appeals Act.

The Government had always assumed that the Criminal Appeals Act restricted the Government and precisely this way and the Government had never sought to appeal for motion in bar granted after jeopardy has attached.

I think, however, that we can say with equal cantor that we have never hesitated to appeal from the granting of a motion in bar in the situation like that present one.

That is a situation in which the defendant was placed in literal jeopardy at the first trial under circumstances allowing him constitutionally to be tried a second time.

But in which the defendant has not been placed in jeopardy at the second trial.

The trial at which the motion we are appealing from was granted.

In other words, we have always read the phrase “not been put in jeopardy” in Section 3731 to refer to jeopardy at the trial at which the motion under consideration was granted.

And as the Chief Justice just suggested to hold otherwise would mean that the Government could never appeal a dismissal on grounds of double jeopardy subsequent to a mistrial because a mistrial is usually granted after a jury has been impaneled and literal jeopardy has attached.

And this would be so even though the predecessor statute on which Section 3731 was based which I submit was a much more restrictive statute in Section 3731 and evidence even a greater policy against Government appeals in criminal cases indeed Section 3731, that predecessor statute allowed appeals only from special pleas in bar.

And the classical and practically the only example of a special plea in bar was a plea of convict or acquit which is the plea of double jeopardy.

I think even the most restrictive view of the phrase motion in bar which was evidenced by Mr. Justice Stewart’s opinion in the Mersky case makes it clear that it has always been assumed that this was — that a plea of double jeopardy was a motion in bar even under the most restrictive definition and to refuse to allow the Government to appeal on Section 3731 grounds in this case would be simply to read convict or acquit double jeopardy out of the definition of special plea in bar and leave that phrase and the statute totally meaningless and as we state on our supplemental brief on this point, there are at least two cases decided by this Court in which the Government was allowed to appeal from an adverse determination of double jeopardy.

I’m referring to the Tateo case of 377 U.S. and the Oppenheimer case in which there was a jurisdictional objection and to the appeal.

Potter Stewart:

The double jeopardy motion in this case was made before the jury was impaneled in the second trial —

Richard B. Stone:

That’s right.

Now, I’m going to state the facts on this very brief record in rather considerable detail.

Richard B. Stone:

I don’t think it would take very long because I think it is important to understand exactly what went on in the courtroom prior to the granting of a mistrial.

We’re in the District of Utah before the Chief Judge of the District Judge Ritter.

An information is filed against Mr. Jorn who was charged in 25 counts with having prepared false and fraudulent income tax returns for others.

Specifically, Mr. Jorn was charged with having either invented or grossly exaggerated deductions to which the taxpayers and Mr. Jorn’s customers were not entitled.

A case was called to trial in August 27, 1968 and a jury was selected and sworn during the morning.

In the afternoon, the United States attorney indicated outside of the presence of the jury that he wish to amend the 25-count information and reduce it down to 11 counts, all of which involve the amounts varying roughly between about $200 and $700.

Now the court’s answer to the prosecution upon hearing that the indictment was — the information was being reduced down to 11 counts and I quote now from page 34 of the record is, “Maybe if we give you a little more time, you will dismiss some more.”

This is a whole bundle of two-bit stuff that looks to me like.

Potter Stewart:

A whole what?

Richard B. Stone:

Whole bundle of two-bit stuff that looks to me like.

This is the judge addressing the prosecution.

I had the observation here that this Judge Ritter’s first remark to counsel on the record and it illustrates what I think and feel to be described as a consistently hostile attitude towards this prosecution.

The first witness in the case was revenue agent who is called simply to identify the returns under consideration.

And after immediate stipulation that the returns were in fact authentic, the revenue officials stepped down and the real witness was called and this witness who was one of a series of the main Government witnesses was one of the taxpayers for whom Mr. Jorn had allegedly made a fraudulent return.

As soon as this witness took the stand, defense counsel Mr. Morrill addressed the court as follows and I’m now on page 40 of the record.

In view of the transcript in the preliminary hearing in this matter, it is my feeling that each of these taxpayers should be warned us to his constitutional rights before testifying because I feel there is a possibility of a violation of the law.

This is defense counsel’s suggestion as to the witnesses who are about to testify.

And the judge response to that suggestion as follows, “Well, we wouldn’t want anybody to talk himself into a federal penitentiary years.”

So what the court has to say to you is this and I will not read the following pages of the record in which the judge very clearly and emphatically, and what I would call the strongest possible terms.

It advises the prospective witnesses of their right not to testify for fear of incriminating themselves and of their right to have a lawyer.

Their right to have a lawyer appointed for them even though they’re not criminal defendants before they testify in this case involving another defendant.

And incidentally in spite of the fact the prosecution had given insurances that he would–that the Government did not plan to go against the taxpayers.

The judge then addresses the witness and say, this is now in page 41 of the record.

“Well, what do you want to do?”

And the witness responds, “Your Honor, my wife and I have had pointed out to us that our returns had information in them that we know is wrong.

And we have admitted this and I would admit it further in this court.”

The judge responds, “Have you talk to a lawyer?”

The court says, “I’m not going to let you admit it any further in this Court.

That’s all there is about that.

The admissions you have already made were very likely made without telling you what your constitutional rights are.”

Richard B. Stone:

The witness says, “No, sir.”

The court says, “What is that?”

And the witness says, “We were advised at the time we were first contacted by the Internal Revenue Service.”

And judge responds, “If you were, you’re the only taxpayer in the United States that has been so advised because they do not do that when they first contact you.”

And at that point, the judge explains his version of having Internal Revenue Service goes about intimidating and incriminating prospective defendants.

Now the judge excuses the witness at this point in terms to the United States’ attorney and say, “Are all your witnesses in this shape?”

And the United State’s attorney replies, “Your Honor, by the time any of these witnesses were contacted, there was a criminal investigation not of the witnesses but up of the defendant.

It is true that the Internal Revenue Service does not require this morning until after first meeting with the special agent, but it is the practice in this office.”

They do give them this warning.

It’s not required but they do so.

The judge then expresses some doubt as to whether the warning could have been sufficient, there’s more colloquy between the court and the United States’ attorney.

And now, we are on page 43 of the record, and I’m about to conclude.

The judge once again expresses his view that this case never should have been brought because the trivial amounts involved, and finally ends the colloquy with this statement.

Well, I’ll tell you what’s going to happen to this case.

“Ladies and gentlemen it wouldn’t be necessary for you to attend the court any further on this matter.”

And at that point the judge dismisses the jury.

Judge then requires all the taxpayers including the witnesses who had been previously separated and excluded from the courtroom to return to the courtroom.

And we’re now in page 44 of the record.

Once again for the better part of three pages he advises them with respect to their right to remain silent, their right not to testify and his decision not to allow the trial to proceed until such time that he personally has had further opportunity to suggest to them the un-wisdom of putting themselves in danger of self-incrimination.

And finally the judge says, “So this case is vacated.

The setting is vacated this afternoon and it would be calendared again.

And before it is calendared again, I’m going to have these witnesses in and talk to them again before I’ll permit them to testify.”

And of course prior to the impaneling of another jury and retrial case of the case after the sufficient warning to these witnesses have been given, the judge granted a motion for the defense to bar retrial grants double jeopardy.

Warren E. Burger:

Does this record show whether these witnesses were prepared to testify at the second trial?

Richard B. Stone:

No, the record does not show but — whether there is no further indication of what happened to the witness Mr. Chief Justice between the time that the first mistrial was declared and the time the motion to dismiss on grounds of double jeopardy was granted.

I assume that it would not have been a terribly time-consuming task to have the witnesses consult their lawyers and decide whether they ought to testify at a second trial.

Warren E. Burger:

But the Government —

Richard B. Stone:

I assume in fact that it could have really been done by continuance of the first trial.

Warren E. Burger:

But the Government was prepared to go ahead to second trial?

Richard B. Stone:

Oh, yes.

Richard B. Stone:

The Government – well, the Government was prepared to go ahead at the first trial, so it was certainly prepared to go ahead the second trial.

On the basis of the facts that I’ve just recited and it seems to me that they’re basically two ways to interpret what Judge Ritter did in declaring mistrial.

To begin with, I think it’s not unreasonable to contend that the declaration of the mistrial was directly attributable, a direct consequence of the defense’s request on page 40 of the record that quote, “each of these taxpayers should be warned as to his constitutional rights before testifying.”

Now, I admit Judge Ritter took the bull by the horns before defense counsel had sufficient opportunity to explain what he had in mind with that request.

He didn’t get to elaborate on it.

It’s not terribly easy to figure out what his exact purpose was.

I supposed he may have hoped simply that Judge Ritter would warn the taxpayers of their rights in language sufficiently strong that it would inhibit their testimony which would be for the benefit of defense counsel’s client, Jorn.

Warren E. Burger:

Would that have been appropriate in the presence of the jury?

Richard B. Stone:

Oh, it could have been done outside of the presence of the jury.

Warren E. Burger:

Well, would it have been appropriate under new circumstances.

Richard B. Stone:

I’m not sure whether it would — I’m not sure whether that would not have been appropriate.

He did it in the presence of the jury anyway.

I don’t think it would have been inappropriate sense.

It wasn’t — this would not have cast any particular problem with respect to the defendant on the case.

I don’t think that the defendant’s rights would have been prejudiced by the judges warning of the witnesses that they were conceivably implicated the scheme.

That was clearly going to come out from the testimony that was given anyway.

I suppose it would have been better, had the judge met with the witnesses before the jury was impaneled.

It could have been done just as easily that way but I don’t think it would have been any sort of prejudicial error Mr. Chief Justice, but the judge do have done it right there trial.

Now, I suppose the defense counsel may in fact have hope that a recess of some sort would enable the taxpayers to consult with the lawyers, if they think more about it, and this would have an additional inhibiting effect in their testimony.

Or I suppose conceivably the defense counsel might have anticipated exactly what happened in this case that a mistrial would be declared.

I can imagine he really conceive that the judge would then refuse to allow further trial and grant a double jeopardy but that’s I guess not be on the realm either.

The defense lawyer did not make a motion for [Voice Overlap].

Richard B. Stone:

No, he did not Mr. Justice Harlan.

All he did was make a request then at that point Judge Ritter run away with the proceedings.

No one had much of a chance to make any kind of motion from then on.

But it was in any event, entirely in the defense’s interest that these taxpayers say as little as possible and I assume at least that defense counsel had that in mind when he requested that something be done to assure them of their right not to testify.

And I think that in that light, this declaration of a mistrial can fairly be seen as simply a consequence albeit rather excessive arbitrary consequence of defense counsel’s request.

In that sense we can place this case in line I think with the numerous holdings of this Court were reiterated all through the decisions that in this trial granted on defendant’s motion, it does not bar retrial and that proposition I think is not on dispute in any case in which there is no special circumstances.

Thurgood Marshall:

Well, in no time that the defendant acquiesced and indeed that they did.

Richard B. Stone:

That’s right, he didn’t and he didn’t acquiesce in it but —

Thurgood Marshall:

How can he be blamed for it, in any sense?

Richard B. Stone:

I don’t mean to blame him for it Mr. Justice Marshall.

I mean only to assert that one way to look at this case and I am about to going into alternative ground. One way to look at this case is to say that the request was granted — that mistrial was a direct consequence of defense counsel’s request that some relief be granted in the sense that the defendant’s be given some warning of their right not to testify.

Thurgood Marshall:

Do you think Judge Ritter would not have done this if the defendant kept his mouth shut?

Richard B. Stone:

I don’t think it’s unclear whether he would have done it or not.

I suppose Judge Ritter might have done just that anything in this case but it’s still, the defense counsel had his chance to get in there first and he did so.

He did in fact request that something be done about it and what was done was excessive but it can be seen as a logical consequence to [Voice Overlap].

Thurgood Marshall:

Looking to the picture that this had been helped by sort of a pre-trial with the concern of both sides?

Richard B. Stone:

Yes, —

Thurgood Marshall:

No problem that it would have been settled then.

I think without, we’d never have the jeopardy.

Richard B. Stone:

I think that’s right.

There was incidentally a preliminary hearing in the case.

It was the result of the preliminary hearing Justice Marshall that the prosecution decided that some of its witnesses were not — sufficiently not have sufficient memories of the events that took place and it was on the basis of that preliminary hearing the 14 of the 25 counts were dropped and I think that was ample time for Judge Ritter felt especially solicit as of these witnesses and defense counsel was especially worried that there testimony might not be inhibited by any warning that was ample time at the preliminary hearing to get into this matter at that point.

Certainly, a few days delay would have cleared up the whole problem.

What would have been the situation if Judge Ritter did handle the jury and then said, “Now, gentlemen this is a peewee prosecution, I am not in favor of them and I am going to just dismiss this jury.”

What would be the situation then if the Government wanted to go ahead and retrial and forward it to another judge?

Richard B. Stone:

That’s a pretty difficult question Justice Harlan.

I —

That’s one of interpretations you can put on the judge’s remarks certainly, isn’t it?

Richard B. Stone:

I think that that’s a — I think that in fact the judge was motivated in granting the mistrial on grounds that the witnesses were not prepared by his feelings that this was a peewee prosecution but I think it is probably a bit far fetched to decide this case as though he had said, I am not going to allow the trial to proceed any further on that basis.

Byron R. White:

That would have been not the justice and Justice Harlan’s hypothetical that would have been pretty close equivalent to a directed verdict of acquittal.

Richard B. Stone:

Verdict of acquittal and I suppose that would have been quite a lot of — that would have put the proposition that the Government cannot appeal that a directed verdict of acquittal to its most extreme test and I supposed technically there’d be quite a problem in appealing the case though I think it would —

Byron R. White:

Well, we have a — there’s a decision in this Court right along those lines in the First Circuit.

That however wrong, however mistaken was the directed verdict to —

Richard B. Stone:

That’s right.

That was discussed I think when we discussed this proposition at the argument last year.

Byron R. White:

Right.

Warren E. Burger:

Counsel, what if the defense counsel had moved for a mistrial after this colloquy and requested a mistrial.

Do you think he would have — the defendant petitioner here would have, or the respondent here would have waived all claims with respect to double jeopardy?

Richard B. Stone:

I don’t know what other claims with respect to double jeopardy that would be.

I think if I understand the Chief Justice’s question correctly, I think that if a defense counsel had moved for a mistrial on these grounds that the witnesses should be entitled to further warning of their rights and if that were the grounds which the judge granted the mistrial, I think that it is perfectly clear from all of the precedents in this Court, no one would dispute the fact that the defense counsel would adopt defense counsel would have disputed that he would have no further ground to double jeopardy.

I don’t know how there could be a waiver because I don’t know what other grounds for asserting double jeopardy that he could have.

Warren E. Burger:

Suppose — would it be possible, may I have your comment on this to treat the conduct of defense counsel in putting the questions he did in the presence of the jury without attempting at the moment to characterize that conduct.

Could that be construed, you put it on invitation as good as in effect of motion for a mistrial creating a mistrial situation and therefore make the defendant at the trial court level bear the burden in fact?

Richard B. Stone:

Well to actually call it a — to actually call it a motion, I am a little reluctant to do that since no motion was made.

But what I am suggesting is that I think this Court can equate it with the motion.

This Court can, under the rationale of those cases holding the mistrial granted that the defense’s motion does not bar retrial can save that that is also true of a mistrial granted as a logical consequence of a defendant’s request.

I don’t think we have to go strain what actually happen to say that a motion was made but we can say that it has the same legal effect as a motion.

I think that’s not the only way.

But look at this case, I think there is an alternative ground in which the Government ought to prevail justice well.

Byron R. White:

Even if he had made the motion for mistrial had been granted the fact that he had been on jeopardy still exists and this is a question of jurisdiction, appellate jurisdiction on this case and if the statute says, no appeal or once the defendant had been put in jeopardy, what difference does it make [Voice Overlap] for this trials — during the trial that may be a question where we can be retried but it may not affect the question on jurisdiction.

Richard B. Stone:

That’s right.

From the point of view of the Criminal Appeals Act, I don’t think it makes the – that’s why I discussed that before I set the facts at all.

I don’t think if there’s any difference, whose motion it was or what the motivations were.

From the point of view of the Criminal Appeals Act, the crucial fact is that the motion which we are appealing occurred at the — before the trial at which defendant had not been put to jeopardy.

Byron R. White:

Well, didn’t Sisson — did read Sisson in saying that appeal just isn’t allowed when the defendant has been put on jeopardy even if he could be retried?

Richard B. Stone:

Well, I read Sisson as saying simply that that is so in case in which the motion was granted at the trial from which the Government is seeking appeal.

I don’t think that the language of the statute or the reasoning of Sisson required that it be extended to this extreme situation in which the motion —

Byron R. White:

Nor the Government’s previous practice.

Richard B. Stone:

The Government’s previous practice clearly did not extend to that because the Tateo case and the Oppenheimer case were examples to the contrary and we stated in Sisson we’d never done that and then that very time this case was pending in which we are appealing after jeopardy had attached at the original trial and Tateo and Oppenheimer were on the books Mr. Justice White so that I think that our State —

Byron R. White:

But sometimes when jeopardy is attached you can appeal and sometimes when it’s attached you can’t?

Richard B. Stone:

Well, it isn’t quite that arbitrary.

Sometimes when jeopardy has not attached to the trial from which the motion — at which the motion we’re appealing was granted we can appeal and it was at the first trial we cannot.

You know what; one of the problems is —

Byron R. White:

But I guess if the Government isn’t suggesting that the Criminal Appeals Act isn’t now suggesting that the Criminal Appeals Act should be construed to me and that you can appeal unless he can’t be retried?

Richard B. Stone:

You can’t appeal the motion granted at the trial at which the defendant was placed in jeopardy.

But we have always thought that you can appeal a motion granted at the subsequent trial in which he has not been put in jeopardy in spite of the fact that he was in jeopardy at the prior trial.

And that is consistent with our practice and I think nothing in the Act or this Court’s decision in Sisson dictates otherwise.

I want to go briefly into the alternative ground we have in this case.

Richard B. Stone:

The other way to look at this case is to assume not that the mistrial was declared in response to either sides request of motion but simply that the jury was discharge as a result of Judge Ritter’s excessively protective attitude toward the witnesses and the question at this point is whether the prosecution must fail as a result of this judicial arbitrariness even though it’s all agreed there was no misconduct in the part of the prosecution and no conceivable effort on the part of either the prosecution or the trial judge to harass the defendant or denying him his rights to be tried before that jury.

And I submit to this Court that even if this is the view taken of this record that it is simply a question of whether the burden of Judge Ritter’s arbitrariness must fall on the prosecution in spite of the lack of any harassment of the defendant.

The rationale of the double jeopardy clause and the decisions of this court did not require such a result.

What the court has always done in this mistrial situation is to apply a balancing test.

It is not directly controlled by the Double Jeopardy Clause.

It is instead determined by a balancing test in which the defendant’s rights are given very liberal interpretation but in which in the absence of any indication of harassment of the defendant or excessively unfair aid to the prosecution through a mistrial, retrial is allowed.

And I think that this Court’s too much recent decisions in the mistrial area illustrate exactly how this Court has balanced its interest in the Downum case for example decided at 372 U.S. which is the only case in which this Court has refused to allow retrial subsequent to an aborted trial.

The prosecutor allowed the jury to be sworn before the key witnesses had arrived and when it became clear that the witnesses were not going to show up, the prosecutor moved for a mistrial.

In that case, if retrial has been allowed it would have unfairly aided the prosecution improving a case that it could not have approved originally.

But this case I submit is not like Downum but is instead on all force with the Gori case decided by this Court at 367 U.S. In Gori, the trial judge in what was characterized by this Court and the Court of Appeals as over eager concern for possible prejudice to the defendant declared a mistrial because he feared the line of questioning by the prosecution was about to result in a prejudicial disclosure of the defendants’ prior convictions.

And just as here the defendant in that case neither urged nor acquiesced in the discharge of the jury but the mistrial was the result of judicial arbitrariness.

And in the absence of any evidence that the defendant had been harassed, this Court refused to terminate the prosecution merely because the trial judge acted arbitrarily.

Now I think to have done otherwise in that case or to do otherwise in this case would really hang on the prosecution pure element of chance which is the element of chance the judge will make some error in spite of the fact that the defendants’ double jeopardy rights’ really are not intended by anyone to be violated.

And for this several reasons I believe that this Court ought to reverse the district judges’ decision and allow the prosecution to proceed again within a further file in this case.

Warren E. Burger:

Thank you Mr. Stone.

Mr. Morrill.

Denis R. Morrill:

Mr. Chief Justice, may it please the Court.

I believe the facts as stated by Mr. Stone are accurate and sufficient for —

Warren E. Burger:

I have forgotten Mr. Morrill from the record.

Did you try this case before?

Denis R. Morrill:

Yes, Your Honor I did, yes.

The offset I believe that this question before the Court is really a question of jurisdiction and that under Section 3731, the Government does not have a right of appeal.

In Sisson, recently decided by this Court and mentioned by Mr. Stone, this Court clearly stated that once jeopardy has attached and appealed, it does not lie for the Government.

The Government here is arguing something that frankly is a little difficult for me to understand that if the jeopardy we are talking about is the jeopardy in the second trial, then no appeal would lie.

But if it’s the jeopardy in the first trial, there is an appeal.

This it seems to me does considerable violence to any possible interpretation of a legislative history of that Act.

This would make it frankly so that the defendant by the timing of this motion can determine whether or not there is an appeal.

If we have waited until the jury had been sworn in the second case and then made a motion based on double jeopardy, then the Government would admit there could have been no appeal.

Byron R. White:

Unless they brought to third trial.

Denis R. Morrill:

I suppose this is correct, unless they try to prosecute him again.

Warren E. Burger:

Well, perhaps there’s another quarrel area that might be relevant in light of what you have suggested and that is if the defense — if the conduct of the defense is so flagrant that it suggest a possible atmosphere of prejudice to the defendant.

In the continuance of the trial, then the defendant can insulate himself after that conduct by not making a motion for a mistrial and not acquiescing in that motion.

Isn’t that correct analysis of —

Denis R. Morrill:

I suppose that would be —

Warren E. Burger:

And then the defense benefits by its own misconduct?

Denis R. Morrill:

I suppose that could be Mr. Chief Justice a corollary and it appears to me however that we’re talking here about the legislative intent in passing the Criminal Appeals Act and whether this could in fact happen.

I don’t think it’s relevant to that intent.

In the instant case the Government has set forth the facts relating to the declaration of the mistrial.

If you can call it a mistrial, there was no formal declaration of a mistrial.

The court and I agree with the prosecution, there was no opportunity for anyone once the court began his discussions with these witnesses, there was no opportunity for anyone to make any kind of a motion before it was all over, so I believe —

Did you object to the mistrial?

Denis R. Morrill:

No, Your Honor, I did not object.

As a matter of fact it was over before I even could get in the words.

(Inaudible)

Warren E. Burger:

Then you agree with your friend’s characterization of the judges?

Denis R. Morrill:

I certainly do Your Honor.

I believe the judges’ action was arbitrary and was not necessary.

Clearly, the judge could have done it a different way but I also agree with what Mr. Justice White said, I don’t think that makes any difference to the jurisdictional question.

That would make a difference to the constitutional determination as to whether or not he could be retried on a constitutional method.

Mr. Morrill, may I ask?

Is it in your position that while an appeal would not lie to this Court under the 1970 statute?

It’s dealt with appeal of this court.

But do you also say it would not lie to the Court of Appeals under the 1942 Amendment?

In other words, even if it does not lie here, may we transfer it under the transfer provisions of the Court of Appeals?

Denis R. Morrill:

Frankly, Your Honor, I haven’t concerned myself with that question and I really couldn’t answer it.

Well, I should think that’s involved here even if you can’t appeal here.

If it is appealable to the Court of Appeals and I would suppose it’s our responsibility to transfer it there.

Potter Stewart:

The Act does say in all of the cases in the Court of Appeals, is it not?

Denis R. Morrill:

Yes, it does.

That’s under the 42 Amendment?

Denis R. Morrill:

Right.

But I don’t suppose they — feel anywhere of this amount to an equivalence?

Denis R. Morrill:

That’s correct.

My second point here will be that constitutional double jeopardy is involved and he couldn’t be —

Well, are you saying that there was an acquittal in effect as in Sisson?

Denis R. Morrill:

I believe, yes that you can interpret the action of the judge and I’ll have to agree with Mr. Stone that from the beginning and one assumption practiced in this Court, Mr. Judge Ritter’s court frequently has this happen.

It was apparent from the offset that he does not want this prosecution to continue and it is my position however that the defendant was entitled to be tried before this jury and any arbitrariness on the part of the judge cannot be used on the prejudice of the defendant that the Government must bear the risk of his arbitrary.

Warren E. Burger:

If you had gone on with the trial and the judge had not thereafter taken the action he did.

I suppose there was nothing to prevent you from taking advantage of the judge’s remarks and if you went to the Court of Appeals for a review, nothing to prevent you from claiming that his remarks were prejudicial to your client.

Denis R. Morrill:

I suppose that could have been claimed.

I will have to agree candidly with Mr. Stone, I don’t think they would have prejudiced my client.

After the judges, if you break —

Warren E. Burger:

There are attendants here to suggest the whole atmosphere of criminal conduct, didn’t they on the part of someone?

Denis R. Morrill:

Yes they did, however more on the part of the witnesses who were going to testify.

The judge as I recall did not really say anything about the defendant but indicate what these witnesses had done may subject them for later prosecution.

If you —

Mr. Morrill, can you take the view that this at least was within the judges’ discretion.

In other words, it was tried, they were the Government and they were in defense rightly or wrongly, they made the ruling as they did but still.

But this Court I should not say it was not with in the discretion.

It is ought to — do you think it would be under the posture then under cases we have decided under double jeopardy?

Denis R. Morrill:

On the constitutional issue of double jeopardy set forth in Downum and Gori and Tateo, I believe this action by the judge while you could characterize it as not being arbitrary still was in no way as set forth in those cases favoring the defendant.

If you break the judges’ action down in its two parts first, he felt that the witnesses should not testify until they’ve been warned and he then said “I’m not going to let you testify until you have been warned.”

And then at second part he turns and dismisses the jury.

Well if you stopped after the first part, clearly there were many alternatives available.

This could have been done in an hour’s time, they could have consulted counsel, the trial could have gone on but predisposed as the judge was to refuse to allow them to testify had the trial have been going on.

There is no doubt but what it would have been a directed acquittal for the defendant.

There were no witnesses and there was no way that the trial could continue on the part of the Government at that time once he decided that he was not going to let those witnesses testify.

So it would be my position then that any solicitude on the part of anyone by the judge was on the part of the prosecution and this I think fits squarely within Downum that the jury was dismissed in order to allow the prosecution to more favorable opportunity to convict.

They couldn’t have convicted under those circumstances.

Thurgood Marshall:

But suppose as soon as the jury is in panel the judge says “I have gone over to the list of witnesses and I have decided that I am not going to let any of them testify.”

Thurgood Marshall:

(Inaudible) only witnesses we have and he said, “Therefore, I direct acquittal.”

The Government is powerless then to do anything?

I hasten to warn and my second question is, what’s the difference between that and what actually happened?

Denis R. Morrill:

Well, in that situation and I will have to admit there is not much difference between the hypothetical that you post and the instant case except one witness did testify here.

I believe my position would have to be that the government is powerless.

That the risk of this judicial arbitrariness, this defendant was entitled to be tried by the jury impaneled to hear this case.

And if for some reason other than his own conduct this is prevented, I believe that the cases of this Court would have to hold that he had been placed in jeopardy and a second prosecution would be twice in jeopardy and prohibited.

Warren E. Burger:

I suppose there might be an alternative if the Court felt that the conduct of the defense in opening up this line of questioning in the presence of the jury is what brought all this on then it might be equated as Mr. Stone suggested to a motion by the defense for a mistrial.

Denis R. Morrill:

That’s true Mr. Chief Justice.

However, I believe on the facts and the record and subjectively since I was there that there was no way the remarks by counsel in this case could have foreseeable precipitated the action that happened.

I frankly did have an interest in seeing that these witnesses were warned because I intended to show that it was they, and not my client who had committed the crime and this was the reason I felt they should be warned of their constitutional rights.

So while it is open to interpretation that my remarks caused the action of the judge, I think that it was not case.

I think the record indicates a predisposition of the judge prior to the time I made any remarks with regard to this particular prosecution.

Counsel for the Government has mentioned there was a pretrial and possibly, I mean it was a preliminary hearing and possibly this could have been taken care of earlier.

Judge Ritter did not hear the preliminary hearing.

And the record in the preliminary hearing as he stated was the cause of dismissing of many of the counts of the information and it was my — that was where I developed my feeling that it may have been the witnesses rather than the defendant who actually committed a crime and this is why I made the motion.

I suppose it could have been made at an earlier time but as a fact, it wasn’t.

Going the jurisdictional question, again, I believe the legislative history of Section 3731, which was discussed by this Court and system, while it is ambiguous in places, indicates that the legislature in passing this Criminal Appeals Act was very concerned that it be limited strictly to its terms.

There are remarks in the legislative history indicating that the — at least some of the senators debating this Bill understood the difference between the attachment of jeopardy and constitutional double jeopardy.

I think you must separate those two questions because jeopardy attaches and there is nothing unconstitutional about the attachment of jeopardy.

It attaches every time the jury is formed, so that’s one question.

The Constitution comes into play on a proposed retrial, then the motion is that the defendant is being put twice in jeopardy.

It seems to me that if you argue that jeopardy.

And this has been decided at least by four members of this Court in Sisson if you — that jeopardy in Section 3731 must mean the attachment of jeopardy, not the constitutional standard because the Constitution was there and will be there long before the statute.

There was no reason for the legislature to incorporate a constitutional standard in the statute.

It was there and they couldn’t change what the Constitution means by double jeopardy.

I think the legislative history indicates that this question of jeopardy was — the words put in jeopardy were placed in the statute to strictly limit an appeal on the part of the Government to cases in which there had been no jury impaneled.

That is the motion in bar cases clearly —

William J. Brennan, Jr.:

Well, that’s the position in Sisson took.

Denis R. Morrill:

That is the position that four members of this Court took in, in Sisson and I believe that holding prevents a retrial in this case because jeopardy had attached.

Denis R. Morrill:

And I don’t see how you can separate the jeopardy in the first trial and say as Government argues that you can retry him unless he waits until jeopardy has attached in the second trial to make his motion.

I believe that the jurisdictional question disposes of the case.

However, I also believe that the defendant has been constitutionally placed in jeopardy within the meaning of this Court’s cases.

Specifically that —

William J. Brennan, Jr.:

Well, do you accept it?

Do you accept as you deal with the — do you insist and talk as to what jeopardy meant?

Then in this case and Sisson would say their jurisdiction — their motion was made before the jury in the second trials.

We were talking not about a second trial and only one trial but so you are literally within the full terms of Sisson, don’t you?

Denis R. Morrill:

Your Honor, I don’t think Sisson is limited so I don’t think it reads that way.

Sisson to me seems to say that once a jury has been impaneled, it doesn’t say whether a first jury or second jury, the facts are as you state them.

There was no second jury there and in fact there was no second jury in this case.

But that once jeopardy has attached the legislative history would indicate these legislators did not intend to give the Government a right of appeal.

I would request that this Court dismiss the Appeal and even if the Appeal were granted, I feel that under the cases of this Court the defendant has been placed twice in jeopardy and neither the Constitution cannot now be retried.

Warren E. Burger:

Mr. Morrill just one more question if I may.

Are there any more than two alternative ways of construing Judge Ritter’s action that is one, it was a declaration of a mistrial without actually using the word mistrial.

Or two, it was as someone suggested possibly a directed verdict, are there any other alternatives than either number one or number two that I have suggested?

Denis R. Morrill:

Off hand, I don’t see any Mr. Chief Justice.

Warren E. Burger:

The last language that he used that’s in the appendix is certainly would seem to negate, that’s at page 46 would certainly seem to negate the second that is that this could be construed as a directed verdict because he said, “So this case is vacated.”

I am not sure how heartfully he was using the term vacated.

Setting this vacated this afternoon and it will be calendared again.

And before it is calendared again, I am going to do this and so by way of warning the witnesses.

That certainly indicates that he did not contemplate his action as a direction of the verdict, would you agree?

Denis R. Morrill:

That appears from the record to be the case.

However, five months later when in fact the case, the Government had the case placed back on the calendar and our motion was made, the judge granted the motion to dismiss based on double jeopardy.

At that point, it seems to me that he himself in reviewing his action in the prior case had determined that the defendant had been placed in jeopardy by his action.

Now —

Warren E. Burger:

And he in fact determined that his action at the very least was unwarranted?

Denis R. Morrill:

Yes and possibly could be construed as having acquitted the defendant.

Thank you.

Warren E. Burger:

Thank you Mr. Morrill.

Warren E. Burger:

Mr. Stone.

Richard B. Stone:

So I believe Mr. Chief Justice that I have about two minutes left and I’ll be very brief.

I want to first respond to Justice Brennan’s suggestion that perhaps this appeal might have been appropriate not for this Court but to a Court of Appeals.

I think that the Criminal Appeals Act as it is in other ways is a bit cryptic on this point.

It does say that appeal lies to a Court of Appeals in cases where it does not lie to the Supreme Court.

But I —

William J. Brennan, Jr.:

What I am thinking though, is though what leads on the bar does direct appeal hear?

Meaning not whether jeopardy is actually attached but whether there is a substantial question whether jeopardy has (Inaudible)?

But in that circumstance, an appeal here in the board that does not answer the question rather than appeal where there is only a substantial —

Richard B. Stone:

I am afraid Justice Brennan, I don’t understand that reading.

In other words that this Court would not jurisdictionally, this Court would not —

William J. Brennan, Jr.:

What you mean is you don’t agree with me?

Richard B. Stone:

No, I think I don’t.

William J. Brennan, Jr.:

I understand that you mean that you don’t agree.

Richard B. Stone:

But I also wanted to respond to the defenses point.

And I think this really that defense and Mr. Justice White are both struck as really the Government is as well by the arbitrary effect that the Criminal Appeals Act has in terms of a motion which is not based in any way on the facts of the case.

It can be appealed from if it is granted at one time but not before jeopardy is attached, but not five minutes later after the jury has been impaneled.

Now, that is a rather peculiar distinction that the Criminal Appeals Act makes.

And one which we have accepted but reluctantly the question in this case is whether that arbitrary disposition that the Criminal Appeals Act makes ought to be extended to a situation where it is even more remote and more arbitrary and where we have — we for in our part had never thought that it ought to be extended.

I want to say in that regard that this Court, I think clearly recognize both the majority and Justice White’s opinion insist in recognize that the Criminal Appeals Act is quite arbitrary very cryptic in certain ways and indefinite need of modification.

And I think very much in response to that Congress was — the Senate was motivated to pass the amendment to the Criminal Appeals Act which basically makes double jeopardy and the Constitutional issue and the Appeals issue are pretty issue the same and which also puts the vast majority of appealable cases where we think they properly belong in the Court of Appeals.

That does not control the disposition of this case that the posture right now is the Senate has passed the Bill and its conference in the House there appears to be no opposition to it in the House.

We have had spend some assurance that it would not be controversial.

It is attached as a rider to a Bill that has some controversial provisions in it but it is very much hope that this will be definitely law.

But it does apply the pending appeals?

Richard B. Stone:

No, it does not apply to pending appeals but I thought that is —

That is to give lawyers happy news.

Richard B. Stone:

Yes, it’s happy news to the Justice Department and to this Court and I think the litigants generally because hopefully soon we won’t have to —

William J. Brennan, Jr.:

[Voice Overlap] Perhaps before the end of this session.

Richard B. Stone:

I hope very much we will get in the lame duck session Justice Brennan.

Richard B. Stone:

I think that might well be, we might be —

William J. Brennan, Jr.:

What’s the difference between the House and the Senate version?

Richard B. Stone:

The House and Senate version of this Bill are exactly the same.

This Bill is not in dispute between the House and the Senate because of the lateness and the term with which this Bill passed Senate however.

It was attached as a rider to another House Bill of that which there are differences.

But, I hope that we got a month or so —

William J. Brennan, Jr.:

Now precisely what does it do?

Richard B. Stone:

It makes Criminal Appeals, it allows the Government basically to appeal in all cases in which there is no — has been no verdict of acquittal in which the Double Jeopardy Clause does not come into play.

It places those appeals in the Court of Appeals rather than the Supreme Court except in those situations where the constitutionality of a federal statue is brought into play.

And in those situations, the appeal is by the option of the Justice Department either to the Court of Appeals or to the Supreme Court.

William J. Brennan, Jr.:

I hope the option has exercised its favor in the Court of Appeals.

Richard B. Stone:

Well, Justice Brennan will take that into account.

Thank you very much.

Potter Stewart:

Do you say this is a rider to another Bill?

Richard B. Stone:

It’s a rider for the LEA Bill.

Potter Stewart:

Which one?

Richard B. Stone:

It’s a rider to the Legal Enforcement Bill, which it has some untold, some controversial provisions in it and it is going to be — I am told that the top of the agenda in the lame duck session.

And I suppose there’s some — always some doubt about what’s going to happen at any session especially in lame duck session but we are quite hopeful at this point that the Bill will be good law varied within a month or so and certainly by the end of this session of the Court.

Thank you.

Warren E. Burger:

Thank you Mr. Stone.

Mr. Morrill, at our request you stayed with this case after we know that the appeal and we thank you for your assistance to the Court and of course to your client.

Denis R. Morrill:

Thank you, Your Honor.