For repeated misconduct by respondent's counsel (Wagner) during
the opening statement period in respondent's criminal trial, the
trial judge expelled Wagner and asked respondent's co-counsel
(Meldon) if he was prepared to proceed with the trial. Upon being
advised that Meldon had not discussed the case with witnesses, the
judge gave him until the next morning to prepare. At that time,
Meldon advised the judge that respondent wanted Wagner to try the
case. After the judge had set forth the alternatives of (1) a delay
pending appellate review of the propriety of Wagner's expulsion,
(2) continuation of the trial with Meldon as respondent's main
counsel, or (3) declaring a mistrial to permit respondent to obtain
other counsel, Meldon made a motion for a mistrial, which the judge
granted. Before his second trial, respondent filed a motion on
double jeopardy grounds to dismiss the indictment, which the judge
denied. Respondent represented himself at the second trial, which
resulted in his conviction. The Court of Appeals reversed, holding
that the exclusion of Wagner and the judge's questioning of Meldon
left respondent with "no choice" but to request a mistrial; that,
under the circumstances, respondent could not be said to have
voluntarily relinquished his right to proceed before the first
jury; and that the Double Jeopardy Clause barred the second trial
because there had been no manifest necessity for Wagner's
expulsion.
Held: The Double Jeopardy Clause does not bar
respondent's retrial. Pp.
424 U. S.
606-612.
(a) Though this Court has held that whether there can be a new
trial after a mistrial has been declared without the defendant's
request depends on whether "there is a manifest necessity for the
[mistrial], or the ends of public justice would otherwise be
defeated,"
United States v.
Perez, 9 Wheat. 579,
22 U. S. 580,
different considerations obtain when the mistrial has been declared
at the instance of the defendant, whose request for a mistrial
ordinarily removes any barrier to reprosecution even if
necessitated by prosecutorial or judicial error. Pp.
424 U. S.
606-608.
(b) The Court of Appeals erred in holding that the manifest
necessity standard should be applied to a mistrial motion when
the
Page 424 U. S. 601
defendant has "no choice" but to request a mistrial. Though the
Double Jeopardy Clause bars retrials where "bad faith conduct by
judge or prosecutor,"
United States v. Jorn, 400 U.
S. 470,
400 U. S. 485
(plurality opinion), threatens the "[h]arassment of an accused by
successive prosecutions or declaration of a mistrial so as to
afford the prosecution a more favorable opportunity to convict" the
defendant,
Downum v. United States, 372 U.
S. 734,
372 U. S. 736,
here there is no contention or record showing that the trial
judge's expulsion of Wagner was in bad faith to goad respondent
into requesting a mistrial or to prejudice his acquittal prospects.
Pp.
424 U. S.
608-611.
504 F.2d 854, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. BURGER, C.J., filed a concurring opinion,
post, p.
424 U. S. 612.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
424 U. S. 613.
STEVENS, J., took no part in the consideration or decision of the
case.
MR. JUSTICE STEWART delivered the opinion of the Court.
The question in this case is whether the Double Jeopardy Clause
of the Fifth Amendment was violated by the retrial of the
respondent after his original trial had ended in a mistrial granted
at his request.
The respondent, Nathan Dinitz, was arrested on December 8, 1972,
following the return of an indictment charging him with conspiracy
to distribute LSD and with
Page 424 U. S. 602
distribution of that controlled substance in violation of 84
Stat. 1260, 1265, 21 U.S.C. §§ 841(a)(1), 846. On the day of his
arrest, the respondent retained a lawyer named Jeffrey Meldon to
represent him. Meldon appeared with the respondent at his
arraignment, filed numerous pretrial motions on his behalf, and was
completely responsible for the preparation of the case until
shortly before trial. Some five days before the trial was scheduled
to begin, the respondent retained another lawyer, Maurice Wagner,
to conduct his defense. Wagner had not been admitted to practice
before the United States District Court for the Northern District
of Florida, but on the first day of the trial, the court permitted
him to appear
pro hac vice. In addition to Meldon and
Wagner, Fletcher Baldwin, a professor of law at the University of
Florida, also appeared on the respondent's behalf. [
Footnote 1]
The jury was selected and sworn on February 14, 1973, and
opening statements by counsel began on the following afternoon. The
prosecutor's opening statement briefly outlined the testimony that
he expected an undercover agent named Steve Cox to give regarding
his purchase of LSD from the respondent. Wagner then began his
opening statement for the defense. After introducing himself and
his co-counsel, Wagner turned to the case against the
respondent:
"Mr. Wagner: After working on this case over a period of time,
it appeared to me that, if we would have given nomenclature, if we
would have named this case so there could be no question about
identifying it in the future, I would have called it The Case --
"
"Mr. Reed [Asst. U.S. Attorney]: Your Honor, we object to
personal opinions. "
Page 424 U. S. 603
"The Court: Objection sustained. The purpose of the opening
statement is to summarize the facts the evidence will show, state
the issues, not to give personal opinions. Proceed, Mr.
Wagner."
"Mr. Wagner: Thank you, Your Honor. I call this the Case of the
Incredible Witness."
App. 20. The prosecutor again objected, and the judge excused
the jury. The judge then warned Wagner that he did not approve of
his behavior, and cautioned Wagner that he did not want to have to
remind him again about the purpose of the opening statement.
Following this initial incident, the trial judge found it
necessary twice again to remind Wagner of the purpose of the
opening statement and to instruct him to relate "the facts that you
expect the evidence to show, the admissible evidence."
Id.
at 82. Later on in his statement, Wagner started to discuss an
attempt to extort money from the respondent that had occurred
shortly after his arrest. The prosecutor objected and the jury was
again excused. Wagner informed the trial judge of some of the
details of the extortion attempt and assured the court that he
would connect it with the prospective Government witness Cox. But
it soon became apparent that Wagner had no information linking Cox
to the extortion attempt, and the trial judge then excluded Wagner
from the trial and ordered him to leave the courthouse. [
Footnote 2]
Page 424 U. S. 604
The judge then asked Meldon if he was prepared to proceed with
the trial. [
Footnote 3] Upon
learning that Meldon had not discussed the case with the witnesses,
the judge gave Meldon until 9 o'clock the following morning to
prepare. Meldon informed the judge that the respondent was
"in a quandary, because he hired Mr. Wagner to argue the case
and he feels he needs more time to obtain outside counsel to argue
the case for him."
The judge responded that "[y]ou are his counsel and have been,"
but stated that he would consider the matter "between now and 9:00
o'clock tomorrow morning."
Id. at 35.
The next morning, Meldon told the judge that the respondent
wanted Wagner, and not himself or Baldwin, to try the case. The
judge then set forth three alternative courses that might be
followed -- (1) a stay or recess pending application to the Court
of Appeals to review the propriety of expelling Wagner, (2)
continuation of the trial with Meldon and Baldwin as counsel, or
(3) a declaration of a mistrial which would permit the respondent
to obtain other counsel. Following a short recess, Meldon moved for
a mistrial, stating that, after
"full consideration of the situation and an explanation of the
alternatives before him, the respondent feels that he would move
for a mistrial, and that this would be in his
Page 424 U. S. 605
best interest."
Id. at 41. The Government prosecutor did not oppose the
motion. The judge thereupon declared a mistrial, expressing his
belief that such a course would serve the interest of justice.
Before his second trial, the respondent moved to dismiss the
indictment on the ground that a retrial would violate the Double
Jeopardy Clause of the Constitution. This motion was denied. The
respondent represented himself at the new trial, and he was
convicted by the jury on both the conspiracy and distribution
counts. [
Footnote 4] A divided
panel of the Court of Appeals for the Fifth Circuit reversed the
conviction, holding that the retrial violated the respondent's
constitutional right not to be twice put in jeopardy. [
Footnote 5] 492 F.2d 53. The appellate
court took the view that the trial judge's exclusion of Wagner and
his questioning of Meldon had left the respondent no choice but to
move for a mistrial.
Id. at 59. On that basis, the court
concluded that the respondent's request for a mistrial should be
ignored, and the case should be treated as though the trial judge
had declared a mistrial over the objection of the defendant.
Ibid. So viewing the case, the court held that the Double
Jeopardy Clause barred the second trial of the respondent, because
there had been no manifest necessity requiring the expulsion of
Wagner. [
Footnote 6] The Court
of Appeals
Page 424 U. S. 606
granted rehearing en banc and, by a vote of 8-7, affirmed the
decision of the panel. [
Footnote
7] 504 F.2d 854. We granted certiorari to consider the
constitutional question thus presented. 420 U.S. 1003.
II
The Double Jeopardy Clause of the Fifth Amendment protects a
defendant in a criminal proceeding against multiple punishments or
repeated prosecutions for the same offense. [
Footnote 8]
See United States v. Wilson,
420 U. S. 332,
420 U. S. 343;
North Carolina v. Pearce, 395 U.
S. 711,
395 U. S. 717.
Underlying this constitutional safeguard is the belief that
"the State, with all its resources and power, should not be
allowed to make repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility that,
even though innocent, he may be found guilty."
Green v. United States, 355 U.
S. 184,
355 U. S.
187-188. Where, as here, a mistrial has been declared,
the defendant's "valued right to have his trial completed by a
particular tribunal" is also implicated.
Wade v. Hunter,
336 U. S. 684,
336 U. S. 689;
United States v. Jorn, 400 U. S. 470,
400 U. S.
484-485 (plurality opinion);
Downum v. United
States, 372 U. S. 734,
372 U. S.
736.
Since Mr. Justice Story's 1824 opinion for the Court in
United States v.
Perez, 9 Wheat. 579,
22 U. S. 580,
this Court has held that the question whether, under the Double
Jeopardy Clause, there can be a new trial after a mistrial
Page 424 U. S. 607
has been declared without the defendant's request or consent
depends on whether "there is a manifest necessity for the
[mistrial], or the ends of public justice would otherwise be
defeated."
Illinois v. Somerville, 410 U.
S. 458,
410 U. S. 461;
United States v. Jorn, supra at
400 U. S. 481;
Gori v. United States, 367 U. S. 364,
367 U. S.
368-369;
Wade v. Hunter, supra at
336 U. S.
689-690;
Simmons v. United States, 142 U.
S. 148,
142 U. S.
153-154. Different considerations obtain, however, when
the mistrial has been declared at the defendant's request.
[
Footnote 9] The reasons for
the distinction were discussed in the plurality opinion in the
Jorn case:
"If that right to go to a particular tribunal is valued, it is
because, independent of the threat of bad faith conduct by judge or
prosecutor, the defendant has a significant interest in the
decision whether or not to take the case from the jury when
circumstances occur which might be thought to warrant a declaration
of mistrial. Thus, where circumstances develop not attributable to
prosecutorial or judicial overreaching, a motion by the defendant
for mistrial is ordinarily assumed to remove any barrier to
reprosecution, even if the defendant's motion is necessitated by
prosecutorial or judicial error. In the absence of such a motion,
the
Perez doctrine of manifest necessity stands as a
command to trial judges not to foreclose the defendant's option
until a scrupulous exercise of judicial discretion leads to the
conclusion that the ends of public justice would not be served by a
continuation of the proceedings.
Page 424 U. S. 608
See United States v. Perez, 9 Wheat. at
22 U. S.
580."
400 U.S. at
400 U. S. 485
(footnote omitted).
The distinction between mistrials declared by the court
sua
sponte and mistrials granted at the defendant's request or
with his consent is wholly consistent with the protections of the
Double Jeopardy Clause. Even when judicial or prosecutorial error
prejudices a defendant's prospects of securing an acquittal, he may
nonetheless desire "to go to the first jury and, perhaps, end the
dispute then and there with an acquittal."
United States v.
Jorn, supra at
400 U. S. 484.
Our prior decisions recognize the defendant's right to pursue this
course in the absence of circumstances of manifest necessity
requiring a
sua sponte judicial declaration of mistrial.
But it is evident that, when judicial or prosecutorial error
seriously prejudices a defendant, he may have little interest in
completing the trial and obtaining a verdict from the first jury.
The defendant may reasonably conclude that a continuation of the
tainted proceeding would result in a conviction followed by a
lengthy appeal and, if a reversal is secured, by a second
prosecution. In such circumstances, a defendant's mistrial request
has objectives not unlike the interests served by the Double
Jeopardy Clause -- the avoidance of the anxiety, expense, and delay
occasioned by multiple prosecutions.
The Court of Appeals viewed the doctrine that permits a retrial
following a mistrial sought by the defendant as resting on a waiver
theory. The court concluded, therefore, that "something more
substantial than a Hobson's choice" is required before a defendant
can "be said to have relinquished voluntarily his right to proceed
before the first jury." [
Footnote 10]
See 492 F.2d at 59. The court
thus
Page 424 U. S. 609
held that no waiver could be imputed to the respondent because
the trial judge's action in excluding Wagner left the respondent
with "no choice but to move for or accept a mistrial."
Ibid. But traditional waiver concepts have little
relevance where the defendant must determine whether or not to
request or consent to a mistrial in response to judicial or
prosecutorial error.
See United States v. Jorn, 400 U.S.
at
400 U. S.
484-485, n. 11;
United States v. Jamison, 164
U.S.App.D.C. 300, 305-306, 505 F.2d 407, 412-413. In such
circumstances, the defendant generally does face a "Hobson's
choice" between giving up his first jury and continuing a trial
tainted by prejudicial judicial or prosecutorial error. The
important consideration, for purposes of the Double Jeopardy
Clause, is that the defendant retain primary control over the
course to be followed in the event of such error. [
Footnote 11]
Page 424 U. S. 610
The Court of Appeals' determination that the manifest necessity
standard should be applied to a mistrial motion when the defendant
has "no choice" but to request a mistrial undermines, rather than
furthers, the protections of the Double Jeopardy Clause. In the
event of severely prejudicial error, a defendant might well
consider an immediate new trial a preferable alternative to the
prospect of a probable conviction followed by an appeal, a reversal
of the conviction, and a later retrial. Yet the Court of Appeals'
decision, in effect, instructs trial judges to reject the most
meritorious mistrial motion in the absence of manifest necessity,
and to require, instead, that the trial proceed to its conclusion
despite a legitimate claim of seriously prejudicial error.
[
Footnote 12] For if a trial
judge follows that course, the Double Jeopardy Clause will present
no obstacle to a retrial if the conviction is set aside by the
trial judge or reversed on appeal.
United States v. Ball,
163 U. S. 662.
[
Footnote 13]
Page 424 U. S. 611
The Double Jeopardy Clause does protect a defendant against
governmental actions intended to provoke mistrial requests and
thereby to subject defendants to the substantial burdens imposed by
multiple prosecutions. It bars retrials where "bad faith conduct by
judge or prosecutor,"
United States v. Jorn, supra at
400 U. S. 485,
threatens the
"[h]arassment of an accused by successive prosecutions or
declaration of a mistrial so as to afford the prosecution a more
favorable opportunity to convict"
the defendant.
Downum v. United States, 372 U.S. at
372 U. S. 736.
See Gori v. United States, 367 U.S. at
367 U. S. 369;
United States v. Jorn, supra at
400 U. S. 489
(STEWART, J., dissenting);
cf. Wade v. Hunter, 336 U.S. at
336 U. S.
692.
But here the trial judge's banishment of Wagner from the
proceedings was not done in bad faith in order to goad the
respondent into requesting a mistrial or to prejudice his prospects
for an acquittal. As the Court of Appeals noted, Wagner "was guilty
of improper conduct" during his opening statement which "may have
justified disciplinary action," 492 F.2d at 661. Even accepting the
appellate court's conclusion that the trial judge overreacted in
expelling Wagner from the courtroom,
ibid., the court did
not suggest, the respondent has not contended, and the record does
not show that the judge's action was motivated by bad faith or
undertaken to harass or prejudice the respondent. [
Footnote 14]
Under these circumstances, we hold that the Court of Appeals
erred in finding that the retrial violated the
Page 424 U. S. 612
respondent's constitutional right not to be twice put in
jeopardy. Accordingly, the judgment before us is reversed, and the
case is remanded to the Court of Appeals for further proceedings
consistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
Wagner informed the trial judge that he would try the facts of
the respondent's case and Baldwin would make arguments of law.
[
Footnote 2]
Shortly after the arrest of the respondent, someone had
telephoned him and said that, for $2,000, he would make sure that
the case never came to court. The respondent and FBI agents set up
a trap to catch the caller, but the unidentified man got away with
the "bait envelope."
During the discussion of the incident at the bench, Wagner
claimed that, if the description of the man fit Cox, the
credibility of the chief Government witness would be placed in
doubt. The judge then ordered that the FBI agents be called to
determine if the person taking the envelope resembled Cox. When
they arrived, Wagner admitted that he had never seen or talked to
the agents. The FBI agents later informed the judge
in
camera that the person who picked up the "bait envelope"
containing the fake money bore no resemblance to Agent Cox.
[
Footnote 3]
After the judge excluded Wagner, he examined Meldon about his
role in the preparation of the opening statement. Meldon responded
that he had conveyed information about the extortion attempt to
Wagner, but had not represented that Cox was involved and had not
worked with Wagner on the opening statement.
[
Footnote 4]
The respondent was a third-year law student at the time of his
arrest.
[
Footnote 5]
The Court of Appeals dealt only with the respondent's double
jeopardy claim, and did not reach any of his other claims of error.
492 F.2d 53, 54.
[
Footnote 6]
The Court of Appeals held that the trial judge failed to
consider adequate alternatives available to deal with Wagner's
conduct. Among the alternatives, the court suggested were a warning
that he would be cited for contempt if the practices continued, an
actual citation for contempt, filing of a complaint with the
grievance committee of the state bar, and taking action to prevent
him from practicing again in the United States District Court for
the Northern District of Florida.
Id. at 60-61.
[
Footnote 7]
The court's en banc per curiam opinion employed reasoning
similar to that of the panel majority.
See n 10,
infra.
[
Footnote 8]
The Double Jeopardy Clause of the Fifth Amendment was held to be
applicable to the States through the Fourteenth Amendment in
Benton v. Maryland, 395 U. S. 784.
[
Footnote 9]
See United States v. Tateo, 377 U.
S. 463,
377 U. S.
467:
"If Tateo had
requested a mistrial on the basis of the
judge's comments, there would be no doubt that, if he had been
successful, the Government would not have been barred from retrying
him."
(Emphasis in original.)
[
Footnote 10]
The brief per curiam opinion of the Court of Appeals en banc
concluded:
"In order for a defendant's motion for a mistrial to constitute
a bar to a later plea of double jeopardy, some choice to proceed or
start over must remain with the defendant at the time his motion is
made. The dicta from
United States v. Jorn . . . does not
encompass the extraordinary circumstances of the present case, in
which judicial error alone, rather than defendant's exercise of any
option to stop or go forward, took away his 'valued right to have
his trial completed by a particular tribunal.'"
504 F.2d 854-855 (footnote omitted).
[
Footnote 11]
The respondent characterizes a defendant's mistrial motion as a
waiver of "his right not to be placed twice in jeopardy," and
argues that, to be valid, the waiver must meet the knowing,
intelligent, and voluntary standard set forth in
Johnson v.
Zerbst, 304 U. S. 458.
This approach erroneously treats the defendant's interest in going
forward before the first jury as a constitutional right comparable
to the right to counsel. It fails to recognize that the protection
against the burden of multiple prosecutions underlying the
constitutional prohibition against double jeopardy may be served by
a mistrial declaration and the concomitant relinquishment of the
opportunity to obtain a verdict from the first jury. This Court has
implicitly rejected the contention that the permissibility of a
retrial following a mistrial or a reversal of a conviction on
appeal depends on a knowing, voluntary, and intelligent waiver of a
constitutional right.
See Breed v. Jones, 421 U.
S. 519,
421 U. S. 534;
United States v. Wilson, 420 U. S. 332,
420 U. S.
343-344, n. 11;
United States v. Jorn,
400 U. S. 470,
400 U. S.
484-485, n. 11 (plurality opinion);
United States v.
Tateo, 377 U.S. at
377 U. S.
466.
[
Footnote 12]
As the dissenting judge on the original Court of Appeals panel
noted, the court's decision would "give rise to much reluctance in
granting mistrials," because
"[t]he trial courts will understand that society will be better
served by completing a trial, even after clear error has arisen and
the defendant seeks the mistrial, than the alternative of a
mistrial and the possible bar of double jeopardy based on the
error."
492 F.2d at 63 (Bell, J., dissenting).
[
Footnote 13]
This Court's decisions permitting retrials after convictions
have been set aside at the defendant's behest clearly indicate
"that the defendant's double jeopardy interests, however
defined, do not go so far as to compel society to so mobilize its
decisionmaking resources that it will be prepared to assure the
defendant a single proceeding free from harmful governmental or
judicial error."
United States v. Jorn, supra at
400 U. S. 484.
See United States v. Tateo, supra at
377 U. S. 466;
cf. Wade v. Hunter, 336 U. S. 684,
336 U. S.
688-689.
[
Footnote 14]
The record indicates that the judge expected the trial to
continue with Meldon representing the respondent in Wagner's
absence. The judge knew that Meldon was an attorney of record who
had represented the respondent from the outset of the case. It was
not until after Wagner was excluded that the trial judge learned
that the respondent would not permit Meldon to represent him.
MR. CHIEF JUSTICE BURGER, concurring.
I concur fully with MR. JUSTICE STEWART's opinion for the Court.
I add an observation only to emphasize what is plainly implicit in
the opinion,
i.e., a trial judge's plenary control of the
conduct of counsel particularly in relation to addressing the
jury.
An opening statement has a narrow purpose and scope. It is to
state what evidence will be presented, to make it easier for the
jurors to understand what is to follow, and to relate parts of the
evidence and testimony to the whole; it is not an occasion for
argument. To make statements which will not or cannot be supported
by proof is, if it relates to significant elements of the case,
professional misconduct. Moreover, it is fundamentally unfair to an
opposing party to allow an attorney, with the standing and prestige
inherent in being an officer of the court, to present to the jury
statements not susceptible of proof but intended to influence the
jury in reaching a verdict.
A trial judge is under a duty, in order to protect the integrity
of the trial, to take prompt and affirmative action to stop such
professional misconduct. Here the misconduct of the attorney,
Wagner, was not only unprofessional
per se but
contemptuous in that he defied the court's explicit order.
Far from "overreacting" to the misconduct of Wagner,
Page 424 U. S. 613
in my view, the trial judge exercised great restraint in not
citing Wagner for contempt then and there.
*
* A bar association conscious of its public obligations would
sua sponte call to account an attorney guilty of the
misconduct shown here.
See Report of American Bar
Association Special Committee on Evaluation of Disciplinary
Enforcement, Problems and Recommendations in Disciplinary
Enforcement 60-66 (Final Draft 1970); American Bar Association
Project on Standards for Criminal Justice, Administration of
Criminal Justice -- The Defense Function, § 7.4, p. 131 (1974
Compilation).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs,
dissenting.
The Court's premise is that the mistrial was directed at
respondent's request or with his consent. I agree with the Court of
Appeals that, for purposes of double jeopardy analysis, it was not,
but rather that "the trial judge's response to the conduct of
defense counsel deprived Dinitz's motion for a mistrial of its
necessary consensual character." 492 F.2d 53, 59 n. 9 (1974).
Therefore, the rule that "a motion by the defendant for mistrial is
ordinarily assumed to remove any barrier to reprosecution,"
United States v. Jorn, 400 U. S. 470,
400 U. S. 485
(1971) (plurality opinion), is inapplicable. Accordingly, I agree
that respondent's motion, for the reasons expressed in the panel
and en banc opinions of the Court of Appeals, did not remove the
bar of double jeopardy to reprosecution in
"the extraordinary circumstances of the present case, in which
judicial error alone, rather than [respondent's] exercise of any
option to stop or go forward, took away his 'valued right to have
his trial completed by a particular tribunal.'"
504 F.2d 854-855 (1974). I also agree with the holding in the
panel opinion that,
"[i]n view of . . . [the] alternatives which would not affect
the ability to continue the trial, we cannot say that there was
manifest necessity for the trial judge's actions."
492 F.2d at 61. I would affirm.