In a Federal District Court, petitioner was indicted on six
counts for federal offenses. When his case was called for trial,
both sides announced ready. A jury was selected and sworn and
instructed to return at 2 p. m. When it did so, the prosecution
asked that the jury be discharged because a key witness on two
counts was not present. Petitioner moved that those to counts be
dismissed for want of prosecution, and that the trial continue on
the remaining counts. That motion was denied, and the judge
discharged the jury over petitioner's objection. Two days later,
the case was called again; a second jury was impaneled, and
petitioner pleaded former jeopardy.
Held: In the circumstances of this case, that plea
should have been sustained. Pp.
372 U. S.
734-738.
300 F.2d 137 reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case, involving a federal prosecution for stealing from the
mail and forging and uttering checks so stolen, presents a question
under the Double Jeopardy Clause of the Fifth Amendment -- " . . .
nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb. . . ." Petitioner and three others
were charged in an indictment containing eight counts. The
codefendants pleaded guilty, petitioner being tried alone
Page 372 U. S. 735
before a jury and convicted on all but Counts 1 and 2, which did
not apply to him. The claim of double jeopardy arose as
follows:
On the morning of April 25, 1961, the case was called for trial
and both sides announced ready. A jury was selected and sworn and
instructed to return at 2 p.m. When it returned, the prosecution
asked that the jury be discharged because its key witness on Counts
6 and 7 was not present -- one Rutledge, who was the payee on the
checks involved in those counts. Petitioner moved that Counts 6 and
7 be dismissed for want of prosecution, and asked that the trial
continue on the rest of the counts. This motion was denied, and the
judge discharged the jury over petitioner's objection. Two days
later, when the case was called again and a second jury impaneled,
petitioner pleaded former jeopardy. His plea was overruled, a trial
was had, and he was found guilty. The Court of Appeals affirmed, 5
Cir., 300 F.2d 137, and we granted the petition for certiorari
because of the seeming conflict between this decision and
Cornero v. United States, 48 F.2d 69, from the Ninth
Circuit. 371 U.S. 811.
The present case was one of a dozen set for call during the
previous week, and those cases involved approximately 100
witnesses. Subpoenas for all of them, including Rutledge, had been
delivered to the marshal for service. The day before the case was
first called, the prosecutor's assistant checked with the marshal
and learned that Rutledge's wife was going to let him know where
her husband was, if she could find out. No word was received from
her, and no follow-up was made. The prosecution allowed the jury to
be selected and sworn even though one of its key witnesses was
absent and had not been found.
From
United States v.
Perez, 9 Wheat. 579, decided in 1824, to
Gori
v. United States, 367 U. S. 364,
decided in 1961, it has been agreed that there are occasions when
a
Page 372 U. S. 736
second trial may be had although the jury impaneled for the
first trial was discharged without reaching a verdict and without
the defendant's consent. The classic example is a mistrial because
the jury is unable to agree.
United States v. Perez, supra;
Logan v. United States, 144 U. S. 263,
144 U. S. 298;
Dreyer v. Illinois, 187 U. S. 71,
187 U. S. 85-86;
Keerl v. Montana, 213 U. S. 135. In
Wade v. Hunter, 336 U. S. 684, the
tactical problems of an army in the field were held to justify the
withdrawal of a court-martial proceeding and the commencement of
another one on a later day. Discovery by the judge during a trial
that a member or members of the jury were biased pro or con one
side has been held to warrant discharge of the jury and direction
of a new trial.
Wade v. Hunter, supra, 336 U. S. 689;
Simmons v. United States, 142 U.
S. 148;
Thompson v. United States, 155 U.
S. 271. At times, the valued right of a defendant to
have his trial completed by the particular tribunal summoned to sit
in judgment on him may be subordinated to the public interest --
when there is an imperious necessity to do so.
Wade v. Hunter,
supra, 336 U. S. 690.
Differences have arisen as to the application of the principle.
See Brock v. North Carolina, 344 U.
S. 424;
Green v. United States, 355 U.
S. 184,
355 U. S. 188.
Harassment of an accused by successive prosecutions or declaration
of a mistrial so as to afford the prosecution a more favorable
opportunity to convict are examples when jeopardy attaches.
Gori v. United States, supra, 367 U. S. 369.
But those extreme cases do not mark the limits of the guarantee.
The discretion to discharge the jury before it has reached a
verdict is to be exercised "only in very extraordinary and striking
circumstances," to use the words of Mr. Justice Story in
United
States v. Coolidge, 25 Fed.Cas. 622, 623. For the prohibition
of the Double Jeopardy Clause is "not against being twice punished,
but against being twice put in jeopardy."
United States v.
Ball, 163 U. S. 662,
163 U. S.
669.
Page 372 U. S. 737
The jury first selected to try petitioner and sworn was
discharged because a prosecution witness had not been served with a
summons and because no other arrangements had been made to assure
his presence. That witness was essential only for two of the six
counts concerning petitioner. Yet the prosecution opposed
petitioner's motion to dismiss those two counts and to proceed with
a trial on the other four counts -- a motion the court denied.
Here, as in
Wade v. Hunter, supra, at
336 U. S. 691,
we refuse to say that the absence of witnesses "can never justify
discontinuance of a trial." Each case must turn on its facts. On
this record, however, we think what was said in
Cornero v.
United States, supra, states the governing principle. There, a
trial was first continued because prosecution witnesses were not
present, and, when they had not been found at the time the case was
again called, the jury was discharged. A plea of double jeopardy
was sustained when a second jury was selected, the court
saying:
"The fact is that, when the district attorney impaneled the jury
without first ascertaining whether or not his witnesses were
present, he took a chance. While their absence might have justified
a continuance of the case in view of the fact that they were under
bond to appear at that time and place, the question presented here
is entirely different from that involved in the exercise of the
sound discretion of the trial court in granting a continuance in
furtherance of justice. The situation presented is simply one where
the district attorney entered upon the trial of the case without
sufficient evidence to convict. This does not take the case out of
the rule with reference to former jeopardy. There is no difference
in principle between a discovery by the district attorney
immediately after the jury was
Page 372 U. S. 738
impaneled that his evidence was insufficient and a discovery
after he had called some or all of his witnesses."
48 F.2d at 71.
That view, which has some support in the authorities, [
Footnote 1] is, in our view, the
correct one. We resolve any doubt "in favor of the liberty of the
citizen, rather than exercise what would be an unlimited,
uncertain, and arbitrary judicial discretion." [
Footnote 2] This means that the judgment below
must be and is
Reversed.
Page 372 U. S. 739
[
Footnote 1]
In
United States v. Watson, 28 Fed.Cas. 499, 500-501,
the court ruled as follows:
"The illness of the district attorney, it not appearing by the
minutes that such illness occurred after the jury was sworn, or
that it was impossible for the assistant district attorney to
conduct the trial, and the motion to put off the case for the term
being made by such assistant, cannot be regarded as creating a
manifest necessity for withdrawing a juror. So, too, as to the
absence of witnesses for the prosecution, it does not appear by the
minutes that such absence was first made known to the law officers
of the government after the jury was sworn, or that it occurred
under such circumstances as to create a plain and manifest
necessity justifying the withdrawing of a juror. The mere illness
of the district attorney, or the mere absence of witnesses for the
prosecution, under the circumstances disclosed by the record in
this case, is no ground upon which, in the exercise of a sound
discretion, a court can, on the trial of an indictment, properly
discharge a jury, without the consent of the defendant, after the
jury has been sworn and the trial has thus commenced. To admit the
propriety of the exercise of the discretion on such grounds would
be to throw open the door for the indulgence of caprice and
partiality by the court, to the possible and probable prejudice of
the defendants. When the trial of an indictment has been commenced
by the swearing of the jury, the defendant is in their charge, and
is entitled to a verdict of acquittal if the case on the part of
the prosecution is, for any reason, not made out against him,
unless he consents to the discharging of the jury without giving a
verdict, or unless there is such a legal necessity for discharging
them as would, if spread on the record, enable a court of error to
say that the discharge was proper."
And see United States v. Shoemaker, 27 Fed.Cas.
1067.
[
Footnote 2]
United States v. Watson, supra, note 1 p. 501.
MR. JUSTICE CLARK, with whom MR. JUSTICE HARLAN, MR. JUSTICE
STEWART and MR. JUSTICE WHITE join, dissenting.
The Court, in applying the rule of
Cornero v. United
States, 48 F.2d 69 (C.A.9th Cir., 1931), says that
"the valued right of a defendant to have his trial completed by
the particular tribunal summoned to sit in judgment on him may be
subordinated to the public interest -- when there is an
imperious necessity to do so."
(Emphasis supplied.) The Court of Appeals was urged to adopt the
Cornero rule, but it refused. Applying that rule here, the
Court orders the conviction reversed and petitioner set free.
*
Page 372 U. S. 740
In
Wade v. Hunter, 336 U. S. 684
(1949), this Court refused to follow the
Cornero rule,
which was characterized as holding that the absence of witnesses
was not such an "imperious" or "urgent necessity" as to come within
the recognized exception to the double jeopardy provision.
Id. at
336 U. S. 691.
The Court said:
"We are asked to adopt the
Cornero rule, under which
petitioner contends the absence of witnesses can never justify
discontinuance of a trial. Such a rigid formula is inconsistent
with the guiding principles of the
Perez decision
[
United
States v. Perez, 9 Wheat. 579 (1824)], to which we
adhere. Those principles command courts in considering whether a
trial should be terminated without judgment to take 'all
circumstances into account,' and thereby forbid the mechanical
application of an abstract formula. The value of the
Perez
principles thus lies in their capacity for informed application
under widely different circumstances, without injury to the
defendants or to the public interest."
Ibid. I adhere to
Wade v. Hunter, which, in
short, holds that
"a trial can be discontinued when particular circumstances
manifest a necessity for so doing, and when failure to discontinue
would defeat the ends of justice."
Id. at
336 U. S.
690.
In order to apply the principles of
Wade v. Hunter, it
is necessary that the facts be recalled. On Wednesday or Thursday
of the week preceding trial, some 12 cases, including petitioner's
were set by the court for the following Monday. This was, in the
words of the trial judge, "very short notice." Transcript of
Record, p. 18. Subpoenas were issued by the District Attorney's
office for approximately 100 witnesses and placed in the hands of
the marshal. The petitioner's case was No. 10 on the list, and the
prosecutor stated that he did not foresee that it would be reached
on Tuesday, the second day of the
Page 372 U. S. 741
week's hearings. The prosecutor's office was shorthanded, one of
the assistants being in the military service. The prosecutor who
had been assigned to petitioner's case had learned from the marshal
the previous day that the wife of a Mr. Rutledge, who was the key
witness in petitioner's case, would inform them of her husband's
whereabouts, if she should learn of it. Since the prosecutor was
trying another case on the Tuesday morning that petitioner's case
was called, he was unable immediately to contact the marshal and
determine whether Mr. Rutledge was present, and he announced ready
for trial without ascertaining this. The jury for petitioner's case
was selected and then excused until 2 p.m., and the prosecutor
proceeded to complete the hearing of his other case before noon.
Then, upon checking with the marshal's office during the noon
recess, the prosecutor discovered that Rutledge was not present. He
immediately informed the judge in his chambers, and, upon the
opening of the afternoon session, defense counsel was advised in
open court that the key witness of the Government was not available
and the case would have to go over a couple of days. A defense
motion to dismiss two of the six counts in the indictment -- those
on which Rutledge was the key witness -- on the ground of lack of
prosecution and proceed to trial on the remaining counts was denied
by the court, and the jury was discharged -- all over objections
from the defense. Two days later, the case was called, and the
petitioner interposed his plea of double jeopardy. Thereafter, a
second jury was impaneled, and petitioner was tried and found
guilty on all counts.
The first jury had never begun to act in this case. Petitioner
was never formally arraigned in the presence of the first jury, nor
was any evidence presented or heard for or against him at that
time, nor was he required to put on any defense. In addition, the
second jury having been
Page 372 U. S. 742
impaneled two days later, there was no continued or prolonged
anxiety, nor was the petitioner caused any additional expense or
embarrassment, deprived of any right or prejudiced in any way.
Neither has petitioner contended that one jury was more or less
favorable than the other.
The conclusions of the trial court and the Court of Appeals
indicate that they viewed the circumstances in which the prosecutor
found himself as having resulted from excusable oversight. There is
no indication that the prosecutor's explanation was a mere cover
for negligent preparation, or that his action was in any way
deliberate. There is nothing in the record that even suggests that
the circumstances were used by the prosecutor for the purpose of
securing a more favorable jury, or in any way to take advantage of
or to harass the petitioner. Indeed, it appears to be just one of
those circumstances which often creep into a prosecutor's life as a
result of inadvertence when many cases must be handled during a
short trial period.
We can, of course, visualize other ways of handling the
situation. The judge might have held the first jury together,
rather than discharging them, until Mr. Rutledge's attendance could
have been obtained. But this, viewed prospectively from the moment
the court acted, would have tied up 12 men on the panel for an
indefinite period, and disrupted the calendar for the entire week,
if not longer. It is entirely understandable that the trial judge
was concerned with his calendar. Moreover, even if a two-day
continuance in the above manner -- holding the first jury -- were
later held improper on appeal from the trial court's judgment, the
petitioner could then be retried after suffering not only the time
and expense of one full trial, but also the disclosure of his
defense. Nor is the claim of petitioner that the Government should
have proceeded on the other counts of the indictment, which he
claims did not require the testimony
Page 372 U. S. 743
of Rutledge, any more tenable. This not only would have required
two trials, but also might raise the legal proposition that the
prosecution on the remaining two counts was barred. While
ordinarily the other four counts might have been sufficient to
support a maximum sentence, the prosecutor might well have had good
reason, in addition to the obvious preference for one rather than
two trials, for wanting all counts considered in one proceeding.
The indictment charged the petitioner with forging and passing
government checks and conspiring with two codefendants, who pleaded
guilty, to commit those acts. Rutledge was the payee of some of the
checks, and might well have been an important, though not the key,
witness with reference to the conspiracy. In fact, the prosecutor
expressed to the trial court his opinion that, under the entire
indictment, he could not safely go to trial without the attendance
of Rutledge. Transcript of Record, pp. 19-20.
As I see the problem, the issue is whether the action of the
prosecutor in failing to check on the presence of his witness
before allowing a jury to be sworn was of such moment that it
constituted a deprival of the petitioner's rights and entitled him
to a verdict of acquittal without any trial on the merits.
Obviously, under the facts here, he suffered no such deprivation.
Ever since
Perez, this Court has recognized that the "ends
of public justice" must be considered in determining such a
question. 9 Wheat. at
22 U. S. 580.
In this light, I cannot see how this Court finds that the trial
judge abused his discretion in affording the Government a two-day
period in which to bring forward its key witness who, to its
surprise, was found to be temporarily absent. I believe that the
"ends of public justice," to which Mr. Justice Story referred in
Perez, require that the Government have a fair opportunity
to present the people's case and obtain adjudication on the merits,
rather than that the criminal be turned free because of the
harmless oversight of the prosecutor.
* Both
Cornero and
United States v. Watson, 28
Fed.Cas. 499 (D.C.S.D.N.Y.1868), which the Court says supports
Cornero, are entirely distinguishable on their facts. In
Cornero, the Government sought a five-day continuance
because its witnesses could not be found. This was followed by a
mistrial, and then, two years later, a second trial, as contrasted
with a mere two-day delay in the instant case before a second jury
was impaneled and the trial begun. It could therefore be said
realistically that the Government proceeded at the first trial in
Cornero without its evidence, and that the retrial after
two years was an harassment. Moreover, subpoenas in
Cornero had neither been issued nor served, while here,
the subpoena had been issued, but, for reasons which the trial
court thought justifiable, it had not been served. In
Watson, the Court granted an eight-day continuance after
the jury was sworn, on the ground that the District Attorney was
ill and government witnesses were absent. Upon resumption of the
trial, the prosecutor asked that the case go off for the term
because of the continued illness of the District Attorney. In
holding that these circumstances did not warrant the discharge of
the jury, the Court observed that the illness of the District
Attorney did not appear to have occurred after the jury was sworn,
that apparently the government officers had not first learned of
the absence of witnesses after the jury had been sworn, and that it
was not shown that it was impossible for the Assistant District
Attorney to conduct the trial. Nor was there any indication in
Watson that subpoenas had been issued.