Respondent was brought to trial under an indictment which, it
developed before any evidence was presented, contained a defect
that, under Illinois law, could not be cured by amendment and that,
on appeal, could be asserted to overturn any judgment of
conviction. The trial judge declared a mistrial over respondent's
objection, following which respondent was reindicted, tried, and
convicted. He thereafter petitioned for habeas corpus, which was
ultimately granted on the ground that, jeopardy having attached
when the jury was initially impaneled and sworn, the second trial
constituted double jeopardy.
Held: Under the circumstances of this case, the trial
judge's action in declaring a mistrial was a rational determination
designed to implement a legitimate state policy, with no suggestion
that the policy was manipulated to respondent's prejudice. The
declaration of a mistrial was therefore required by "manifest
necessity" and the "ends of public justice," and the Double
Jeopardy Clause of the Fifth Amendment as made applicable to the
States by the Fourteenth did not bar respondent's retrial. Pp.
410 U. S.
461-471.
447 F.2d 733, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined.
WHITE, J., filed a dissenting opinion, in which DOUGLAS and
BRENNAN, JJ., joined,
post, p.
410 U. S. 471.
MARSHALL, J., filed a dissenting opinion,
post, p.
410 U. S.
477.
Page 410 U. S. 459
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
We must here decide whether declaration of a mistrial over the
defendant's objection, because the trial court concluded that the
indictment was insufficient to charge a crime, necessarily prevents
a State from subsequently trying the defendant under a valid
indictment. We hold that the mistrial met the "manifest necessity"
requirement of our cases, since the trial court could reasonably
have concluded that the "ends of public justice" would be defeated
by having allowed the trial to continue. Therefore, the Double
Jeopardy Clause of the Fifth Amendment, made applicable to the
States through the Due Process Clause of the Fourteenth Amendment,
Benton v. Maryland, 395 U. S. 784
(1969), did not bar retrial under a valid indictment.
I
On March 19, 1964, respondent was indicted by an Illinois grand
jury for the crime of theft. The case was called for trial and a
jury impaneled and sworn on November 1, 1965. The following day,
before any evidence had been presented, the prosecuting attorney
realized that the indictment was fatally deficient under Illinois
law because it did not allege that respondent intended to
permanently deprive the owner of his property. Under the applicable
Illinois criminal statute, such intent is a necessary element of
the crime of theft, [
Footnote
1] and failure to allege intent renders the indictment
insufficient to charge a crime. But under the Illinois Constitution
at that time, [
Footnote 2] an
indictment was the sole means by which a criminal
Page 410 U. S. 460
proceeding such as this might be commenced against a defendant.
Illinois further provides that only formal defects, of which this
was not one, may be cured by amendment. The combined operation of
these rules of Illinois procedure and substantive law meant that
the defect in the indictment was "jurisdictional"; it could not be
waived by the defendant's failure to object, and could be asserted
on appeal or in a post-conviction proceeding to overturn a final
judgment of conviction.
Faced with this situation, the Illinois trial court concluded
that further proceedings under this defective indictment would be
useless and granted the State's motion for a mistrial. On November
3, the grand jury handed down a second indictment alleging the
requisite intent. Respondent was arraigned two weeks after the
first trial was aborted, raised a claim of double jeopardy which
was overruled, and the second trial commenced shortly thereafter.
The jury returned a verdict of guilty, sentence was imposed, and
the Illinois courts upheld the conviction. Respondent then sought
federal habeas corpus, alleging that the conviction constituted
double jeopardy contrary to the prohibition of the Fifth and
Fourteenth Amendments. The Seventh Circuit affirmed the denial of
habeas corpus prior to our decision in
United States v.
Jorn, 400 U. S. 470
(1971). The respondent's petition for certiorari was granted, and
the case remanded for reconsideration in light of
Jorn and
Downum v. United States, 372 U. S. 734
(1963). On remand, the Seventh Circuit held that respondent's
petition for habeas corpus should have been granted because,
although he had not been tried and acquitted as in
United
States v. Ball, 163 U. S. 662
(1896), and
Benton v. Maryland, 395 U.
S. 784 (1969), jeopardy had attached when the jury was
impaneled and sworn, and a declaration of mistrial over
respondent's objection precluded a retrial
Page 410 U. S. 461
under a valid indictment. 447 F.2d 733 (1971). For the reasons
stated below, we reverse that judgment.
II
The fountainhead decision construing the Double Jeopardy Clause
in the context of a declaration of a mistrial over a defendant's
objection is
United States v.
Perez, 9 Wheat. 579 (1824). Mr. Justice Story,
writing for a unanimous Court, set forth the standards for
determining whether a retrial, following a declaration of a
mistrial over a defendant's objection, constitutes double jeopardy
within the meaning of the Fifth Amendment. In holding that the
failure of the jury to agree on a verdict of either acquittal or
conviction did not bar retrial of the defendant, Mr. Justice Story
wrote:
"We think that. in all cases of this nature, the law has
invested Courts of justice with the authority to discharge a jury
from giving any verdict whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for
the act or the ends of public justice would otherwise be defeated.
They are to exercise a sound discretion on the subject; and it is
impossible to define all the circumstances which would render it
proper to interfere. To be sure, the power ought to be used with
the greatest caution, under urgent circumstances, and for very
plain and obvious causes; and, in capital cases especially, Courts
should be extremely careful how they interfere with any of the
chances of life in favour of the prisoner. But, after all, they
have the right to order the discharge; and the security which the
public have for the faithful, sound, and conscientious exercise of
this discretion rests in this, as in other cases, upon the
responsibility of the Judges under their oaths of office."
Id. at
22 U. S.
580.
Page 410 U. S. 462
This formulation, consistently adhered to by this Court in
subsequent decisions, abjures the application of any mechanical
formula by which to judge the propriety of declaring a mistrial in
the varying and often unique situations arising during the course
of a criminal trial. The broad discretion reserved to the trial
judge in such circumstances has been consistently reiterated in
decisions of this Court. In
Wade v. Hunter, 336 U.
S. 684 (1949), the Court, in reaffirming this flexible
standard, wrote:
"We are asked to adopt the
Cornero [v. United States,
48 F.2d 69,] 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 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 defendants or to the public
interest."
Id. at
336 U. S. 691.
Similarly, in
Gori v. United States, 367 U.
S. 364 (1961), the Court again underscored the breadth
of a trial judge's discretion, and the reasons therefor, to declare
a mistrial.
"Where, for reasons deemed compelling by the trial judge, who is
best situated intelligently to make such a decision, the ends of
substantial justice cannot be attained without discontinuing the
trial, a mistrial may be declared without the defendant's consent
and even over his objection, and he may be retried consistently
with the Fifth Amendment."
Id. at
367 U. S.
368.
In reviewing the propriety of the trial judge's exercise of his
discretion, this Court, following the counsel of Mr.
Page 410 U. S. 463
Justice Story, has scrutinized the action to determine whether,
in the context of that particular trial, the declaration of a
mistrial was dictated by "manifest necessity" or the "ends of
public justice." The interests of the public in seeing that a
criminal prosecution proceed to verdict, either of acquittal or
conviction, need not be forsaken by the formulation or application
of rigid rules that necessarily preclude the vindication of that
interest. This consideration, whether termed the "ends of public
justice,"
United States v. Perez, supra, at
22 U. S. 580,
or, more precisely, "the public's interest in fair trials designed
to end in just judgments,"
Wade v. Hunter, supra, at
336 U. S. 689,
has not been disregarded by this Court.
In
United States v. Perez, supra, and
Logan v.
United States, 144 U. S. 263
(1892), this Court held that "manifest necessity" justified the
discharge of juries unable to reach verdicts, and, therefore, the
Double Jeopardy Clause did not bar retrial.
Cf. Keerl v.
Montana, 213 U. S. 135
(1909);
Dreyer v. Illinois, 187 U. S.
71 (1902). In
Simmons v. United States,
142 U. S. 148
(1891), a trial judge dismissed the jury, over defendant's
objection, because one of the jurors had been acquainted with the
defendant, and, therefore, was probably prejudiced against the
Government; this Court held that the trial judge properly exercised
his power "to prevent the defeat of the ends of public justice."
Id. at
142 U. S. 154.
In
Thompson v. United States, 155 U.
S. 271 (1894), a mistrial was declared after the trial
judge learned that one of the jurors was disqualified, he having
been a member of the grand jury that indicted the defendant.
Similarly, in
Lovato v. New Mexico, 242 U.
S. 199 (1916), the defendant demurred to the indictment,
his demurrer was overruled, and a jury sworn. The district
attorney, realizing that the defendant had not pleaded to the
indictment after the demurrer had been overruled, moved for the
discharge of the jury and arraignment of the defendant for
pleading; the jury
Page 410 U. S. 464
was discharged, the defendant pleaded not guilty, the same jury
was again impaneled, and a verdict of guilty rendered. In both of
those cases, this Court held that the Double Jeopardy Clause did
not bar reprosecution.
While virtually all of the cases turn on the particular facts,
and thus escape meaningful categorization,
see Gori v. United
States, supra; Wade v. Hunter, supra, it is possible to
distill from them a general approach premised on the "public
justice" policy enunciated in
United States v. Perez, to
situations such as that presented by this case. A trial judge
properly exercises his discretion to declare a mistrial if an
impartial verdict cannot be reached, or if a verdict of conviction
could be reached but would have to be reversed on appeal due to an
obvious procedural error in the trial. If an error would make
reversal on appeal a certainty, it would not serve "the ends of
public justice" to require that the Government proceed with its
proof when, if it succeeded before the jury, it would automatically
be stripped of that success by an appellate court. This was
substantially the situation in both
Thompson v. United States,
supra, and
Lovato v. New Mexico, supra. While the
declaration of a mistrial on the basis of a rule or a defective
procedure that would lend itself to prosecutorial manipulation
would involve an entirely different question,
cf. Downum v.
United States, supra, such was not the situation in the above
cases or in the instant case.
In
Downum v. United States, the defendant was charged
with six counts of mail theft, and forging and uttering stolen
checks. A jury was selected and sworn in the morning, and
instructed to return that afternoon. When the jury returned, the
Government moved for the discharge of the jury on the ground that a
key prosecution witness for two of the six counts against defendant
was not present. The prosecution knew, prior to the selection and
swearing of the jury, that this witness
Page 410 U. S. 465
could not be found, and had not been served with a subpoena. The
trial judge discharged the jury over the defendant's motions to
dismiss two counts for failure to prosecute and to continue the
other four. This Court, in reversing the convictions on the ground
of double jeopardy, emphasized that "[e]ach case must turn on its
facts," 372 U.S. at
372 U. S. 737,
and held that the second prosecution constituted double jeopardy
because the absence of the witness and the reason therefor did not
there justify, in terms of "manifest necessity," the declaration of
a mistrial.
In
United States v. Jorn, supra, the Government called
a taxpayer witness in a prosecution for willfully assisting in the
preparation of fraudulent income tax returns. Prior to his
testimony, defense counsel suggested he be warned of his
constitutional right against compulsory self-incrimination. The
trial judge warned him of his rights, and the witness stated that
he was willing to testify and that the Internal Revenue Service
agent who first contacted him warned him of his rights. The trial
judge, however, did not believe the witness' declaration that the
IRS had so warned him, and refused to allow him to testify until
after he had consulted with an attorney. After learning from the
Government that the remaining four witnesses were "similarly
situated," and after surmising that they, too, had not been
properly informed of their rights, the trial judge declared a
mistrial to give the witnesses the opportunity to consult with
attorneys. In sustaining a plea in bar of double jeopardy to an
attempted second trial of the defendant, the plurality opinion of
the Court, emphasizing the importance to the defendant of
proceeding before the first jury sworn, concluded:
"It is apparent from the record that no consideration was given
to the possibility of a trial continuance; indeed, the trial judge
acted so abruptly in
Page 410 U. S. 466
discharging the jury that, had the prosecutor been disposed to
suggest a continuance, or the defendant to object to the discharge
of the jury, there would have been no opportunity to do so. When
one examines the circumstances surrounding the discharge of this
jury, it seems abundantly apparent that the trial judge made no
effort to exercise a sound discretion to assure that, taking all
the circumstances into account, there was a manifest necessity for
the
sua sponte declaration of this mistrial.
United
States v. Perez, 9 Wheat. at
22 U. S.
580. Therefore, we must conclude that, in the
circumstances of this case, appellee's reprosecution would violate
the double jeopardy provision of the Fifth Amendment."
400 U.S. at
400 U. S.
487.
III
Respondent advances two arguments to support the conclusion that
the Double Jeopardy Clause precluded the second trial in the
instant case. The first is that, since
United States v.
Ball, 163 U. S. 662
(1896), held that jeopardy obtained even though the indictment upon
which the defendant was first acquitted had been defective, and
since
Downum v. United States, supra, held that jeopardy
"attaches" when a jury has been selected and sworn, the Double
Jeopardy Clause precluded the State from instituting the second
proceeding that resulted in respondent's conviction. Alternatively,
respondent argues that our decision in
United States v. Jorn,
supra, which respondent interprets as narrowly limiting the
circumstances in which a mistrial is manifestly necessary, requires
affirmance. Emphasizing the "
valued right to have his trial
completed by a particular tribunal,'" United States v. Jorn,
supra, at 400 U. S. 484,
quoting Wade v. Hunter, 336 U.S. at 336 U. S. 689,
respondent contends that the circumstances did not justify
depriving him of that right.
Page 410 U. S. 467
Respondent's first contention is precisely the type of rigid,
mechanical rule which the Court had eschewed since the seminal
decision in
Perez. The major premise of the syllogism --
that trial on a defective indictment precludes retrial -- is not
applicable to the instant case, because it overlooks a crucial
element of the Court's reasoning in
United States v. Ball,
supra. There, three men were indicted and tried for murder;
two were convicted by a jury and one acquitted. This Court reversed
the convictions on the ground that the indictment was fatally
deficient in failing to allege that the victim died within a year
and a day of the assault.
Ball v. United States,
140 U. S. 118
(1891). A proper indictment was returned, and the Government
retried all three of the original defendants; that trial resulted
in the conviction of all. This Court reversed the conviction of the
one defendant who originally had been acquitted, sustaining his
plea of double jeopardy. But the Court was obviously and properly
influenced by the fact that the first trial had proceeded to
verdict. This focus of the Court is reflected in the opinion:
"[W]e are unable to resist the conclusion that a general verdict
of acquittal upon the issue of not guilty to an indictment
undertaking to charge murder, and not objected to before the
verdict as insufficient in that respect, is a bar to a second
indictment for the same killing."
". . . [T]he accused,
whether convicted or acquitted,
is equally put in jeopardy at the first trial. . . ."
163 U.S. at
163 U. S. 669
(emphasis added).
In
Downum, the Court held, as respondent argues, that
jeopardy "attached" when the first jury was selected and sworn. But
in cases in which a mistrial has been declared prior to verdict,
the conclusion that jeopardy has attached begins, rather than ends,
the inquiry as to whether the Double Jeopardy Clause bars
retrial.
Page 410 U. S. 468
That, indeed, was precisely the rationale of
Perez and
subsequent cases. Only if jeopardy has attached is a court called
upon to determine whether the declaration of a mistrial was
required by "manifest necessity" or the "ends of public
justice."
We believe that, in light of the State's established rules of
criminal procedure, the trial judge's declaration of a mistrial was
not an abuse of discretion. Since this Court's decision in
Benton v. Maryland, supra, federal courts will be
confronted with such claims that arise in large measure from the
often diverse procedural rules existing in the 50 States. Federal
courts should not be quick to conclude that, simply because a state
procedure does not conform to the corresponding federal statute or
rule, it does not serve a legitimate state policy. Last Term,
recognizing this fact, we dismissed a writ of certiorari as
improvidently granted in a case involving a claim of double
jeopardy stemming from the dismissal of an indictment under the
"rules of criminal pleading peculiar to" an individual State
followed by a retrial under a proper indictment.
Duncan v.
Tennessee, 405 U. S. 127
(1972).
In the instant case, the trial judge terminated the proceeding
because a defect was found to exist in the indictment that was, as
a matter of Illinois law, not curable by amendment. The Illinois
courts have held that, even after a judgment of conviction has
become final, the defendant may be released on habeas corpus,
because the defect in the indictment deprives the trial court of
"jurisdiction." The rule prohibiting the amendment of all but
formal defects in indictments is designed to implement the State's
policy of preserving the right of each defendant to insist that a
criminal prosecution against him be commenced by the action of a
grand jury. The trial judge was faced with a situation similar to
those in
Simmons, Lovato, and
Thompson, in which
a
Page 410 U. S. 469
procedural defect might or would preclude the public from either
obtaining an impartial verdict or keeping a verdict of conviction
if its evidence persuaded the jury. If a mistrial were
constitutionally unavailable in situations such as this, the
State's policy could only be implemented by conducting a second
trial after verdict and reversal on appeal, thus wasting time,
energy, and money for all concerned. Here, the trial judge's action
was a rational determination designed to implement a legitimate
state policy, with no suggestion that the implementation of that
policy in this manner could be manipulated so as to prejudice the
defendant. This situation is thus unlike
Downum, where the
mistrial entailed not only a delay for the defendant, but also
operated as a post-jeopardy continuance to allow the prosecution an
opportunity to strengthen its case. Here, the delay was minimal,
and the mistrial was, under Illinois law, the only way in which a
defect in the indictment could be corrected. Given the established
standard of discretion set forth in
Perez, Gori, and
Hunter, we cannot say that the declaration of a mistrial
was not required by "manifest necessity" or the "ends of public
justice."
Our decision in
Jorn, relied upon by the court below
and respondent, does not support the opposite conclusion. While it
is possible to excise various portions of the plurality opinion to
support the result reached below, divorcing the language from the
facts of the case serves only to distort its holdings. That opinion
dealt with action by a trial judge that can fairly be described as
erratic. The Court held that the lack of apparent harm to the
defendant from the declaration of a mistrial did not itself justify
the mistrial, and concluded that there was no "manifest necessity"
for the mistrial, as opposed to less drastic alternatives. The
Court emphasized that the absence of any manifest need for the
mistrial had
Page 410 U. S. 470
deprived the defendant of his right to proceed before the first
jury, but it did not hold that that right may never be forced to
yield, as in this case, to "the public's interest in fair trials
designed to end in just judgments." The Court's opinion in
Jorn is replete with approving references to
Wade v.
Hunter, supra, which latter case stated:
"The double jeopardy provision of the Fifth Amendment, however,
does not mean that, every time a defendant is put to trial before a
competent tribunal, he is entitled to go free if the trial fails to
end in a final judgment. Such a rule would create an insuperable
obstacle to the administration of justice in many cases in which
there is no semblance of the type of oppressive practices at which
the double jeopardy prohibition is aimed. There may be
unforeseeable circumstances that arise during a trial making its
completion impossible, such as the failure of a jury to agree on a
verdict. In such event, the purpose of law to protect society from
those guilty of crimes frequently would be frustrated by denying
courts power to put the defendant to trial again. And there have
been instances where a trial judge has discovered facts during a
trial which indicated that one or more members of the jury might be
biased against the Government or the defendant. It is settled that
the duty of the judge in this event is to discharge the jury and
direct a retrial.
What has been said is enough to show that a
defendant's valued right to have his trial completed by a
particular tribunal must, in some instances, be subordinated to the
public's interest in fair trials designed to end in just
judgments."
Wade v. Hunter, 336 U.S. at
336 U. S.
688-689 (footnote omitted; emphasis added).
Page 410 U. S. 471
The determination by the trial court to abort a criminal
proceeding where jeopardy has attached is not one to be lightly
undertaken, since the interest of the defendant in having his fate
determined by the jury first impaneled is itself a weighty one.
United States v. Jorn, supra. Nor will the lack of
demonstrable additional prejudice preclude the defendant's
invocation of the double jeopardy bar in the absence of some
important countervailing interest of proper judicial
administration.
Ibid. But where the declaration of a
mistrial implements a reasonable state policy and aborts a
proceeding that, at best would have produced a verdict that could
have been upset at will by one of the parties, the defendant's
interest in proceeding to verdict is outweighed by the competing
and equally legitimate demand for public justice.
Wade v.
Hunter, supra.
Reversed.
[
Footnote 1]
Ill.Rev.Stat., c. 38, § 16-1(d)(1) (1963).
[
Footnote 2]
See Constitution of Illinois, Art. II, § 8 (1967). When the
State Constitution was amended in 1970, this provision was retained
as the first paragraph of Art. I, § 7.
MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE
BRENNAN join, dissenting.
For the purposes of the Double Jeopardy Clause, jeopardy
attaches when a criminal trial commences before judge or jury,
United States v. Jorn, 400 U. S. 470,
400 U. S.
479-480 (1971);
Green v. United States,
355 U. S. 184,
355 U. S. 188
(1957);
Wade v. Hunter, 336 U. S. 684,
336 U. S. 688
(1949), and this point has arrived when a jury has been selected
and sworn, even though no evidence has been taken.
Downum v.
United States, 372 U. S. 734
(1963). Clearly, Somerville was placed in jeopardy at his first
trial despite the fact that the indictment against him was
defective under Illinois law.
Benton v. Maryland,
395 U. S. 784,
395 U. S.
796-797 (1969);
United States v. Ball,
163 U. S. 662
(1896). The question remains, however, whether the facts of this
case present one of those circumstances where a trial, once begun,
may be aborted over the defendant's objection and the defendant
retried
Page 410 U. S. 472
without twice being placed in jeopardy contrary to the
Constitution.
The Court has frequently addressed itself to the general problem
of mistrials and the Double Jeopardy Clause, most recently in
United States v. Jorn, supra. We have abjured mechanical,
per se rules and have preferred to rely upon the approach
first announced in
United States v.
Perez, 9 Wheat. 579 (1824). Under the
Perez analysis, a trial court has authority to discharge a
jury prior to verdict, and the Double Jeopardy Clause will not
prevent retrial, only if the trial court takes "all the
circumstances into consideration" and in its "sound discretion"
determines that "there is a manifest necessity for the act, or the
ends of public justice would otherwise be defeated."
Id.
at
22 U. S. 580.
See also United States v. Jorn, supra, at
400 U. S.
480-481 (opinion of Harlan, J.);
id. at
400 U. S. 492
(STEWART, J., dissenting);
Gori v. United States,
367 U. S. 364,
367 U. S.
367-369 (1961);
id. at
367 U. S.
370-373 (DOUGLAS, J., dissenting);
Downum v. United
States, supra, at
372 U. S.
735-736,
id. at
372 U. S. 740
(Clark, J., dissenting). Despite the generality of the
Perez standard, some guidelines have evolved from past
cases, as this Court has reviewed the exercise of trial court
discretion in a variety of circumstances.
United States v. Jorn, supra, and
Downum v. United
States, supra, for example, make it abundantly clear that
trial courts should have constantly in mind the purposes of the
Double Jeopardy Clause to protect the defendant from continued
exposure to embarrassment, anxiety, expense, and restrictions on
his liberty, as well as to preserve his "
valued right to have
his trial completed by a particular tribunal.'" United States
v. Jorn, supra, at 400 U. S. 484,
quoting from Wade v. Hunter, 336 U.S. at 336 U. S.
689.
"[I]n the final analysis, the judge must always temper the
decision whether or not to abort the trial
Page 410 U. S. 473
by considering the importance to the defendant of being able,
once and for all, to conclude his confrontation with society
through the verdict of a tribunal he might believe to be favorably
disposed to his fate."
United States v. Jorn, supra, at
400 U. S. 486.
It was in light of this interest that the Court in
Downum
reversed a conviction on double jeopardy grounds where a mistrial
was declared to permit further efforts to secure the attendance of
a key prosecution witness who should have been, but was not,
subpoenaed. Although no prosecutorial misconduct other than mere
oversight and mistake was claimed or proved, the policies of the
Double Jeopardy Clause, and the interest of the defendant in taking
his case to the jury that he had just accepted, were sufficient to
raise the double jeopardy barrier to a second trial.
Similarly, in
Jorn, a trial was terminated when the
trial judge,
sua sponte and mistakenly, declared a
mistrial, apparently to protect nonparty witnesses from the
possibility of self-incrimination. There was no showing of intent
by the prosecutor or the judge to harass the defendant or to
enhance chances of conviction at a second trial; the defendant was
given a complete preview of the Government's case, and no specific
prejudice to the defense at a second trial was shown. Noting that
the courts
"must bear in mind the potential risks of abuse by the defendant
of society's unwillingness to unnecessarily subject him to repeated
prosecutions,"
400 U.S. at
400 U. S. 486,
this Court held that the defendant's interest in submitting his
case to the initial jury was itself sufficient to invoke the Double
Jeopardy Clause and, as in
Downum, to override the
Government's concern with enforcing the criminal laws by having
another chance to try the defendant for the crime with which he was
charged. In neither case was there "manifest necessity" for a
mistrial and a double trial of the defendant.
Page 410 U. S. 474
Very similar considerations govern this case. Somerville asserts
a right to but one trial and to a verdict by the initial jury. A
mistrial was directed at the instance of the State, over
Somerville's objection, and was occasioned by official error in
drafting the indictment -- error unaccompanied by bad faith,
overreaching, or specific prejudice to the defense at a later
trial. The State may no more try the defendant a second time in
these circumstances than could the United States in
Downum
and
Jorn. Although the exact extent of the emotional and
physical harm suffered by Somerville during the period between his
first and second trial is open to debate, it cannot be gainsaid
that Somerville lost "his option to go to the first jury and,
perhaps, end the dispute then and there with an acquittal."
United States v. Jorn, 400 U.S. at
400 U. S. 484.
Downum and
Jorn, over serious dissent, rejected
the view that the Double Jeopardy Clause protects only against
those mistrials that lend themselves to prosecutorial manipulation
and underwrote the independent right of a defendant in a criminal
case to have the verdict of the initial jury. Both cases made it
quite clear that the discretion of the trial court to declare
mistrials is reviewable and that the defendant's right to a verdict
by his first jury is not to be overridden except for "manifest
necessity." There was not, in this case any more than in
Downum and
Jorn, "manifest necessity" for the
loss of that right.
The majority recognizes that "the interest of the defendant in
having his fate determined by the jury first impaneled is itself a
weighty one," but finds that interest outweighed by the State's
desire to avoid
"conducting a second trial after verdict and reversal on appeal
[on the basis of a defective indictment], thus wasting time,
energy, and money for all concerned."
The majority finds paramount the interest of the State in
"keeping a verdict of conviction if its evidence persuaded the
jury." Such
Page 410 U. S. 475
analysis, however, completely ignores the possibility that the
defendant might be acquitted by the initial jury. It is, after all,
that possibility -- the chance to "end the dispute then and there
with an acquittal,"
United States v. Jorn, supra, at
400 U. S. 481,
that makes the right to a trial before a particular tribunal of
importance to a defendant. In addition, the majority's balancing
gives too little weight to the fundamental place of the Double
Jeopardy Clause, and the purposes which it seeks to serve, in "the
framework of procedural protections which the Constitution
establishes for the conduct of a criminal trial."
Id. at
400 U. S.
479.
Apparently the majority finds "manifest necessity" for a
mistrial and the retrial of the defendant in
"the State's policy of preserving the right of each defendant to
insist that a criminal prosecution against him be commenced by the
action of a grand jury"
and the implementation of that policy in the absence from
Illinois procedural rules of any procedure for the amendment of
indictments. Conceding the reasonableness of such a policy, it must
be remembered that the inability to amend an indictment does not
come into play, and a mistrial is not necessitated, unless an error
on the part of the State in the framing of the indictment is
committed. Only when the indictment is defective -- only when the
State has failed to properly execute its responsibility to frame a
proper indictment -- does the State's procedural framework
necessitate a mistrial.
Although recognizing that "a criminal trial is, even in the best
of circumstances, a complicated affair to manage,"
ibid.,
the Court has not previously thought prosecutorial error sufficient
excuse for not applying the Double Jeopardy Clause. In
Jorn, for instance, the Court declared that
"unquestionably an important factor to be considered is the need
to hold litigants on both sides to standards of responsible
professional conduct in the clash of an adversary
Page 410 U. S. 476
criminal process,"
id. at
400 U. S.
485-486, and cautioned,
"The trial judge must recognize that lack of preparedness by the
Government . . . directly implicates policies underpinning both the
double jeopardy provision and the speedy trial guarantee."
Id. at
400 U. S. 486.
See also id. at
400 U. S.
487-488 (BURGER, C.J., concurring);
Downum v. United
States, 372 U.S. at
372 U. S. 737.
Here, the prosecutorial error, not the independent operation of a
state procedural rule, necessitated the mistrial. Judged by the
standards of
Downum and
Jorn, I cannot find, in
the words of the majority, an "important countervailing interest of
proper judicial administration" in this case; I cannot find
"manifest necessity" for a mistrial to compensate for prosecutorial
mistake.
Finally, the majority notes that
"the declaration of a mistrial on the basis of a rule or a
defective procedure that would lend itself to prosecutorial
manipulation would involve an entirely different question."
See United States v. Jorn, 400 U.S. at
400 U. S. 479;
Downum v. United States, supra; Green v. United States,
355 U.S. at
355 U. S.
187-188. Surely there is no evidence of bad faith or
overreaching on this record. However, the words of the Court in
Ball seem particularly appropriate.
"This case, in short, presents the novel and unheard of
spectacle, of a public officer, whose business it was to frame a
correct bill, openly alleging his own inaccuracy or neglect, as a
reason for a second trial, when it is not pretended that the merits
were not fairly in issue on the first. . . . If this practice be
tolerated, when are trials of the accused to end? If a conviction
take place, whether an indictment be good, or otherwise, it is ten
to one that judgment passes; for, if he read the bill, it is not
probable he will have penetration enough to discern its defects.
His counsel, if any be assigned to him, will be content with
hearing the substance of the charge without
Page 410 U. S. 477
looking farther; and the court will hardly, of its own accord,
think it a duty to examine the indictment to detect errors in it.
Many hundreds, perhaps, are now in the state prison on erroneous
indictments, who, however, have been fairly tried on the
merits."
163 U.S. at
163 U. S.
667-668.
I respectfully dissent.
MR. JUSTICE MARSHALL, dissenting.
The opinion of the Court explicitly disclaims the suggestion
that it overrules the recent cases of
United States v.
Jorn, 400 U. S. 470
(1971), and
Downum v. United States, 372 U.
S. 734 (1963).
Ante at
410 U. S. 469.
But the Court substantially eviscerates the rationale of those
cases.
Jorn and
Downum appeared to give judges
some guidance in determining what constituted a "manifest
necessity" for declaring a mistrial over a defendant's objection.
Today, the Court seems to revert to a totally unstructured analysis
of such cases. I believe that one of the strengths of the
articulation of legal rules in a series of cases is that successive
cases present in a clearer focus considerations only vaguely seen
earlier. Cases help delineate the factors to be considered and
suggest how they ought to affect the result in particular
situations. That is what
Jorn and
Downum did. The
Court, it seems to me, today abandons the effort in those cases to
suggest the importance of particular factors, and adopts a general
"balancing" test which, even on its own terms, the Court improperly
applies to this case.
The majority purports to balance the manifest necessity for
declaring a mistrial,
ante at
410 U. S. 463,
the public interest "in seeing that a criminal prosecution proceed
to verdict,"
ibid., and the interest in assuring impartial
verdicts,
ante at
410 U. S. 464. The second interest is obviously present
in every case, and placing it in the balance cannot alter the
result of the analysis of different
Page 410 U. S. 478
cases. It is, at most, a constant whose importance a judge must
consider when weighing other factors on which the availability of
the double jeopardy defense depends.
At the same time, the balance that the majority strikes
essentially ignores the importance of a factor which was
determinative in
Jorn and
Downum: the accused's
interest in his "valued right to have his trial completed by a
particular tribunal,"
Wade v. Hunter, 336 U.
S. 684,
336 U. S. 689
(1949), quoted in
United States v. Jorn, 400 U.S. at
400 U. S. 484.
This is not a factor which is excised from isolated passages of
Jorn, as the majority would have it,
ante at
410 U. S. 469;
it is the core of that case, as even the most cursory reading will
disclose.
See, e.g., 400 U.S. at
400 U. S. 479,
400 U. S.
484-486.
By mischaracterizing
Jorn and
Downum, the
Court finds it possible to reach today's result. A fair reading of
those cases shows how the balance should properly be struck here.
The first element to be considered is the necessity for declaring a
mistrial. That I take to mean consideration of the alternatives
available to the judge confronted with a situation in the midst of
trial that seems to require correction. In
Downum, for
example, a key prosecution witness was not available when the case
was called for trial, because of the prosecutor's negligence.
Because the witness was essential to presentation of only two of
the six counts concerning Downum, there was no necessity to declare
a mistrial as to all six. Trial could have proceeded on the four
counts for which the prosecution was ready.
Downum v. United
States, 372 U.S. at
372 U. S. 737.
Similarly, in
Jorn, the District Judge precipitately
aborted the trial in order to protect the rights of prospective
witnesses. Again, the alternative of interrupting the trial briefly
so that the witnesses might consult with attorneys was available
but not invoked.
United States v. Jorn, 400 U.S. at
400 U. S.
487.
Page 410 U. S. 479
A superficial examination of this case might suggest that there
were no alternatives except to proceed where "reversal on appeal
[would be] a certainty"
ante at
410 U. S. 464.
Respondent had been indicted for
"knowingly obtain[ing] unauthorized control over stolen
property, to-wit: thirteen hundred dollars in United States
Currency, the property of Zayre of Bridgeview, Inc., a corporation,
knowing the same to have been stolen by another in violation of
Chapter 38, Section 16-1(d) of the Illinois Revised Statutes."
Petition for Writ of Certiorari 3. The statute named in the
indictment requires that the defendant have "[i]ntend[ed] to
deprive the owner permanently of the use or benefit of the
property." Ill.Rev.Stat., c. 38, § 16-1(d)(1) (1963).
The majority treats it as unquestionably clear that the failure
to allege that intent in the indictment made the indictment fatally
defective. And indeed, since the time of the trial of this case,
Illinois courts have so held.
See, e.g., People v.
Matthews, 122 Ill.App.2d 264, 258 N.E.2d 378 (1970);
People v. Hayn, 116 Ill.App.2d 241, 253 N.E.2d 575 (1969).
But the answer was not so clear when the trial judge made his
decision. The Illinois Code of Criminal Procedure had just recently
been amended to require that an indictment name the offense and the
statutory provision alleged to have been violated, and that it set
forth the nature and elements of the offense charged.
Ill.Rev.Stat., c. 38, § 111-3(a) (1963). The indictment here was
sufficiently detailed to meet the federal requirement that the
indictment "contains the elements of the offense intended to be
charged,
and sufficiently apprises the defendant of what he
must be prepared to meet,'" Haner v. United States,
285 U. S. 427,
285 U. S. 431
(1932); see also Russell v. United States, 369 U.
S. 749 (1962).
Had the Illinois courts been made aware of the substantial
constitutional questions raised by rigid application
Page 410 U. S. 480
of an archaic mode of reading indictments, they might well have
refused to hold that the defect in the indictment here was
jurisdictional and nonwaivable. Conscientious state trial judges
certainly must attempt to anticipate the course of interpretation
of state law. But they must also contribute to that course by
pointing out the constitutional implications of alternative
interpretations. By doing so, they would themselves help shape the
interpretation of state law. Here, for example, had the trial judge
refused to declare a mistrial because of his constitutional
misgivings about the implications of that course, he might have
prevented what Chief Justice Underwood has called a
"reversion to an overly technical, highly unrealistic and
completely undesirable type of formalism in pleading which . . .
serves no useful purpose,"
in interpreting the Code of Criminal Procedure.
People ex
rel. Ledford v. Brantley, 46 Ill. 2d
419, 423,
263 N.E.2d
27, 29 (1970) (Underwood, C.J., dissenting). A trial judge in
1965 might have forestalled that unhappy development. Thus, he
could have proceeded to try the case on the first indictment,
risking reversal as any trial judge does when making rulings of
law, but with no guarantee of reversal. In proceeding with the
trial, he would have fully protected the defendant's interest in
having his trial completed by the jury already chosen.
If the only alternative to declaring a mistrial did require the
trial judge to ignore the tenor of previous state decisional law,
though, perhaps declaring a mistrial would have been a manifest
necessity. But there obviously was another alternative. The trial
judge could have continued the trial. The majority suggests that
this would have been a useless charade. But to a defendant, forcing
the Government to proceed with its proof would almost certainly not
be useless. The Government might not persuade the jury of the
defendant's guilt. The majority
Page 410 U. S. 481
concedes that the Double Jeopardy Clause would then bar a
retrial.
Ante at
410 U. S. 467;
United States v. Ball, 163 U. S. 662
(1896). To assume that continuing the trial would be useless is to
assume that conviction is inevitable. I would not structure the
analysis of problems under the Double Jeopardy Clause on an
assumption that appears to be inconsistent with the presumption of
innocence.
Once it is shown that alternatives to the declaration of a
mistrial existed, as they did here, we must consider whether the
reasons which led to the declaration were sufficient, in light of
those alternatives, to overcome the defendant's interest in trying
the case to the jury. Here,
Jorn and
Downum run
directly counter to the holding today.
I would not characterize the District Judge's behavior in
Jorn as "erratic," as the Court does,
ante at
410 U. S. 469.
His desire to protect the rights of prospective witnesses, who
might have unknowingly implicated them in criminal activities if
they testified, was hardly irrational. It, too, was "a legitimate
state policy."
Ibid. The defect in
Jorn was the
District Judge's failure to consider alternative courses of action,
not the irrationality of the policy he sought to promote.
But even if I agreed with the majority's description of
Jorn, that would not end the inquiry. I would turn to a
consideration of the importance of the state policy that seemed to
require declaring a mistrial, when weighed against the defendant's
interest in concluding the trial with the jury already chosen.
Here again, the majority mischaracterizes the state policy at
stake here. What is involved is not, as the majority says, "the
right of each defendant to insist that a criminal prosecution
against him be commenced by the action of a grand jury."
Ante at
410 U. S. 468.
Rather, the interest is in making the defect in the indictment here
jurisdictional and not waivable by a defendant.
Page 410 U. S. 482
Ordinarily, a defect in jurisdiction means that one institution
has invaded the proper province of another. Such defects are not
waivable, because the State has an interest in preserving the
allocation of competence between those institutions. Here, for
example, the petit jury would invade the province of the grand jury
if it returned a verdict of guilty on an improper indictment.
However, allocation of jurisdiction is most important when one
continuing body acts in the area of competence reserved to another
continuing body. While it may be desirable to keep a single petit
jury from invading the province of a single grand jury, surely that
interest is not so substantial as to outweigh the "defendant's
valued right to have his trial completed by a particular tribunal."
Wade v. Hunter, 336 U. S. 684,
336 U. S. 689
(1949).
Cf. Henry v. Mississippi, 379 U.
S. 443 (1965).
Downum v. United States, 372 U.
S. 734 (1963), is an even harder case for the majority,
which succeeds in distinguishing it only by misrepresenting the
facts of the case. The majority treats
Downum as a case
involving a procedure "that would lend itself to prosecutorial
manipulation."
Ante at
410 U. S. 464.
However, the facts in
Downum, set out at 372 U.S. at
372 U. S.
740-742 (Clark, J., dissenting), clearly show that the
prosecutor's failure to have a crucial witness present was a
negligent oversight. Except in the most attenuated sense that it
may induce a prosecutor to fail to take steps to prevent such
oversights, I cannot understand how negligence lends itself to
manipulation. And even if I could understand that, I cannot
understand how negligence in failing to draw an adequate indictment
is different from negligence in failing to assure the presence of a
crucial witness. [
Footnote 2/1]
Page 410 U. S. 483
I believe that
Downum and
Jorn are
controlling. [
Footnote 2/2] As in
those cases, the trial judge here did not pursue an available
alternative, and the reason which led him to declare a mistrial was
prosecutorial negligence, a reason that this Court found
insufficient in
Downum. Jorn and
Downum
were in the tradition of elaboration of rules which give increasing
guidance as case after case is decided. I see no reason to abandon
that tradition in this case and to adopt a new balancing test whose
elements are stated on such a high level of abstraction as to give
judges virtually no guidance at all in deciding subsequent cases. I
therefore respectfully dissent.
[
Footnote 2/1]
Downum may perhaps be read as stating a prophylactic
rule. While the evil to be avoided is the intentional manipulation
by the prosecutor of the availability of his witnesses, it may be
extremely difficult to secure a determination of intentional
manipulation. Proof will inevitably be hard to come by. And the
relations between judges and prosecutors in many places may make
judges reluctant to find intentional manipulation. Thus, a general
rule that the absence of crucial prosecution witnesses is not a
reason for declaring a mistrial is necessary. Although the abuses
of misdrawing indictments are less apparent than those of
manipulating the availability of witnesses, I believe that, even if
Downum is based on the foregoing analysis -- an analysis
which appears nowhere in the opinion -- a similar prophylactic rule
is desirable here.
For example, in this case, the State gained two weeks to
strengthen a weak case. This is far longer than the two-day delay
in
Downum, and, to the extent that the time was used to
strengthen the case, the prosecutor could have capitalized on his
previous negligence in drawing the indictment.
[
Footnote 2/2]
So far, I have read
Jorn and
Downum as
restrictively as they can be fairly read. But those cases, I
believe, should be read more expansively. They show to me that
"manifest necessity" cannot be created by errors on the part of the
prosecutor or judge; it must arise from some source outside their
control.
Wade v. Hunter, 336 U. S. 684
(1949), was clearly such a case. So were the cases that the
majority says involved situations where "an impartial verdict
cannot be reached,"
ante at
410 U. S. 464.
In those cases, a juror or the jury as a whole, uncontrolled by the
judge or prosecutor, prevented the trial from proceeding to a
verdict.
United States v.
Perez, 9 Wheat. 579 (1824);
Simmons v. United
States, 142 U. S. 148
(1891);
Thompson v. United States, 155 U.
S. 271 (1894).