LOCATION: Ohio State Bar Association
DOCKET NO.: 19
DECIDED BY: Burger Court (1970-1971)
CITATION: 400 US 470 (1971)
ARGUED: Jan 12, 1970
REARGUED: Oct 22, 1970
DECIDED: Jan 25, 1971
Facts of the case
Media for United States v. JornAudio 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.
The double jeopardy motion in this case was made before the jury was impaneled in the second trial --
Richard B. Stone:
Now, I’m going to state the facts on this very brief record in rather considerable detail.