After the prosecutor's opening statement in petitioner's bench
trial for theft in violation of the Assimilative Crimes Act and the
applicable Indiana statute, petitioner's counsel moved to dismiss
the information on the ground that it did not allege specific
intent as required by the Indiana statute. The court tentatively
denied the motion subject to further study, whereupon petitioner's
counsel outlined the defense and did not object to going forward
with the trial. At the close of the evidence, the court, though
observing that petitioner's guilt had been proved beyond any
reasonable doubt, granted petitioner's motion to dismiss.
Thereafter, petitioner was indicted for the same crime and
convicted. The Court of Appeals affirmed, rejecting petitioner's
claim that the Double Jeopardy Clause barred the second trial.
Petitioner contends that (1) he should never have had to undergo
the first trial, because the court was made aware of the defective
information before jeopardy had attached, and (2) once the court
had determined to hear evidence despite the defective charge, he
was entitled to have the trial proceed to a formal finding of guilt
or innocence.
Held: Petitioner's retrial after dismissal of the
defective information at his request did not violate the Double
Jeopardy Clause. Pp.
432 U. S.
27-34.
(a) The proceedings against petitioner did not terminate in his
favor, the dismissal clearly not being predicated on any judgment
that he could never be prosecuted for or convicted of the theft.
The order entered by the District Court was functionally
indistinguishable from a declaration of mistrial, which
contemplates reprosecution of the defendant,
see United States
v. Jorn, 400 U. S. 470,
400 U. S. 476.
Thus, any distinction between dismissals and mistrials has no
significance in the circumstances here presented, and established
double jeopardy principles governing the permissibility of retrial
after a declaration of mistrial fully apply in this case.
United States v. Jenkins, 420 U.
S. 358, distinguished. Pp.
432 U. S.
28-31.
(b) Where a defendant, by requesting a mistrial, exercises his
choice in favor of terminating the trial, the Double Jeopardy
Clause will not bar reprosecution absent provocative or bad-faith
conduct by the judge or prosecutor.
United States v.
Dinitz, 424 U. S. 600,
424 U. S. 611.
Here, as in
Dinitz, the proceedings were terminated after
jeopardy had attached at
Page 432 U. S. 24
the defendant's request and with his consent, and there was no
judicial or prosecutorial error that was intended to provoke the
motion or that was otherwise motivated by bad faith. The
prosecutor's failure properly to draft the information was, at
most, negligent, and the District Court's failure to postpone the
taking of evidence until it could fully consider petitioner's
motion was entirely reasonable in light of the last-minute timing
of the motion and defense counsel's failure to request a
continuance or otherwise stress the importance to petitioner of not
being placed in jeopardy on a defective charge. Pp.
432 U. S.
33-34.
539 F.2d 612, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, REHNQUIST, and
STEVENS, JJ., joined. BRENNAN, J.,
post, p.
432 U. S. 34,
and REHNQUIST, J.,
post, p.
432 U. S. 36,
filed concurring opinions. MARSHALL, J., filed a dissenting
opinion,
post, p.
432 U. S. 37.
MR. JUSTICE POWELL delivered the opinion of the Court.
At the first trial in this case, the District Court, having
heard the evidence, granted petitioner's motion to dismiss the
information for failure to provide adequate notice of the crime
charged. Petitioner was retried and convicted. The question is
whether the second trial violated the Double Jeopardy Clause.
I
On December 21, 1973, petitioner Phillip Jerome Lee stole two
billfolds from the blind operator of a newsstand and candy
concession in the lobby of the United States Post Office in Fort
Wayne, Ind. A security guard saw Lee take the
Page 432 U. S. 25
billfolds and apprehended him as he tried to escape. In an
information filed on February 6, 1974, in the United States
District Court for the Northern District of Indiana, the Government
charged Lee with the crime of theft, in violation of the
Assimilative Crimes Act, 18 U.S.C. § 13, and the applicable Indiana
statute, Ind.Code Ann. § 10-3030 (1971). [
Footnote 1] Although the defect did not come to light
before trial, the allegations of the information were incomplete.
The Indiana statute requires proof that the theft be committed
knowingly and with intent to deprive the victim of his property.
The information made no mention of knowledge or intent, and charged
only that Lee "did take and steal" the billfolds in violation of
the statute. App. 4.
Some two months before trial, Lee's lawyer withdrew and another
was appointed to represent him. Lee waived his right to a jury
trial and, on July 16, 1974, a bench trial began as scheduled.
After the prosecutor's opening statement, Lee's new lawyer moved to
dismiss the information. The court remarked that the timing of the
motion would make full consideration difficult:
"Well, I will consider it, but you certainly were in the case
before this morning. It is difficult to deal with a motion to
dismiss if you raise any technical questions, and you don't give me
the opportunity in advance of trial to research them. So I will
hear you, but you have that problem."
Id. at 8.
Counsel then called the court's attention to the lack of any
allegation of knowledge or intent in the information. Referring the
court to the Indiana case of
Miller v. State, 250 Ind.
338,
236 N.E.2d
173 (1968), he argued that, if an information failed to charge
the specific intent required by § 10-3030,
Page 432 U. S. 26
"then the Information must be dismissed." App. 9. The court
tentatively denied the motion:
"Well, since I have had no opportunity to study this at all, I
will deny the motion at this time, but at my first opportunity I
will check your citation and give consideration as appears to be
warranted."
"Is there anything further by way of opening statement?"
Ibid. Defense counsel proceeded to outline Lee's
defense. He offered no objection to going forward with the trial
subject to the court's further study of his motion to dismiss.
The trial lasted less than two hours. After the Government had
presented its case, consisting of the testimony of the security
guard and the victim, the court recessed for 15 minutes. After the
recess, Lee moved for a judgment of acquittal on the ground that
the prosecution had failed to establish the required intent to
deprive the victim of his property. Taking care to distinguish this
motion from the earlier motion to dismiss on which it had "reserved
the right to do some research," the court found sufficient evidence
of intent to withstand any motion "directed to the Government's
proof."
Id. at 12-13.
The defense then rested without presenting any evidence, and the
court returned to the defense motions, again distinguishing between
them. Speaking to defense counsel, the court said:
"Your motion addressed to the Government's proof borders on
being frivolous. Your client has been proven [
sic] beyond
any reasonable doubt in the world, there is no question about his
guilt; none whatsoever."
Id. at 13. The court nonetheless found it necessary to
grant the motion to dismiss because of the failure of the
information to charge either knowledge or intent:
"The Federal law cases are legion that the sufficiency of the
charges is dependent upon its containing the allegations
Page 432 U. S. 27
of all of the elements, and all of the elements here are
established by the state statute."
"As much as I dislike doing so, I have no alternative but to
grant your original motion of dismissal, and the charge is
dismissed."
Id. at 14. [
Footnote
2]
On September 25, 1974, Lee again was charged with the theft,
this time in an indictment alleging all of the elements of the
assimilated Indiana crime. On substantially the same evidence as
had been presented at the first trial, he was convicted. On appeal,
the Court of Appeals for the Seventh Circuit affirmed, rejecting
Lee's claim that the second trial was barred by the Double Jeopardy
Clause. 539 F.2d 612 (1976). We granted certiorari to consider the
double jeopardy issue. 429 U.S. 1037 (1977).
II
In urging that his second trial was barred by the Double
Jeopardy Clause, petitioner directs his principal arguments to the
conduct of the first proceeding. He contends (i) that he should
never have had to undergo the first trial, because the court was
made aware of the defective information before jeopardy had
attached; [
Footnote 3] and (ii)
that once the court had determined to hear evidence despite the
defective charge, he was entitled to have the trial proceed to a
formal finding of guilt or innocence. The Government responds that
petitioner
Page 432 U. S. 28
had only himself to blame in both respects. By the last-minute
timing of his motion to dismiss, he virtually assured the
attachment of jeopardy; and by failing to withdraw the motion after
jeopardy had attached, he virtually invited the court to interrupt
the proceedings before formalizing a finding on the merits.
[
Footnote 4] We think that the
Government has the better of the argument on both points under the
principles explained in our decision in
United States v.
Dinitz, 424 U. S. 600
(1976).
A
The arguments of both sides proceed from the premise that the
result in this case would be no different had the District Court
characterized its termination of the first trial as a declaration
of mistrial, rather than a dismissal of the information. [
Footnote 5] We too begin with this
premise, although we think it requires qualification in light of
United States v. Jenkins, 420 U.
S. 358 (1975).
In
Jenkins, the District Court, having heard the
evidence in a bench trial, dismissed an indictment charging refusal
to submit to induction into the Armed Services. Under the law of
the Second Circuit as it stood at the time of the offense, the
Page 432 U. S. 29
induction order was improper and the defendant could not be
convicted, although a subsequent decision of this Court had held
otherwise. Reasoning that retroactive application of the
intervening decision would be unfair, the District Court held that
it could not "permit the criminal prosecution of the defendant . .
. without seriously eroding fundamental and basic equitable
principles of law."
349 F.
Supp. 1068, 1073 (EDNY 1972), quoted at 420 U.S. at
420 U. S. 362.
[
Footnote 6] On this basis, and
without entering any general finding of guilt or innocence, the
District Court dismissed the indictment and discharged the
defendant.
The issue before this Court was whether a Government appeal from
the District Court's order would violate the Double Jeopardy
Clause. Because of the absence of any general finding of guilt, it
was clear that, if the Government prevailed on the merits of its
appeal, further trial proceedings would be needed to resolve
"factual issues going to the elements of the offense charged."
Id. at
420 U. S. 370.
[
Footnote 7] We held that such
proceedings would violate the double jeopardy guarantee: "The
trial, which could have resulted in a judgment of conviction, has
long since terminated in respondent's favor."
Ibid. In
resting our decision on this ground, we recognized that it was "of
critical importance" that the proceedings in the trial court
had
Page 432 U. S. 30
terminated "in the defendant's favor," rather than in a
mistrial.
Id. at
420 U. S. 365
n. 7. [
Footnote 8]
The distinction drawn by
Jenkins does not turn on
whether the District Court labels its action a "dismissal" or a
"declaration of mistrial." The critical question is whether the
order contemplates an end to all prosecution of the defendant for
the offense charged. A mistrial ruling invariably rests on grounds
consistent with reprosecution,
see United States v. Jorn,
400 U. S. 470,
400 U. S. 476
(1971) (plurality opinion), while a dismissal may or may not do so.
Where a mid-trial dismissal is granted on the ground, correct or
not, that the defendant simply cannot be convicted of the offense
charged,
Jenkins establishes that further prosecution is
barred by the Double Jeopardy Clause.
In the present case, the proceedings against Lee cannot be said
to have terminated in his favor. The dismissal clearly was not
predicated on any judgment that Lee could never be prosecuted for
or convicted of the theft of the two wallets. To the contrary, the
District Court stressed that the only obstacle to a conviction was
the fact that the information had been drawn improperly. The error,
like any prosecutorial or judicial error that necessitates a
mistrial, was one that could be avoided -- absent any double
jeopardy bar -- by beginning anew the prosecution of the defendant.
And there can be little doubt that the court granted the motion to
dismiss in
Page 432 U. S. 31
this case in contemplation of just such a second prosecution. In
short, the order entered by the District Court was functionally
indistinguishable from a declaration of mistrial. [
Footnote 9]
We conclude that the distinction between dismissals and
mistrials has no significance in the circumstances here presented,
and that established double jeopardy principles governing the
permissibility of retrial after a declaration of mistrial are fully
applicable.
B
When the District Court terminated the first trial in this case,
it did not act
sua sponte but in response to a motion by
defense counsel. In
United States v. Dinitz, we examined
the permissibility of retrial in an analogous situation where the
trial court had granted a defense motion for mistrial.
In that case, after jeopardy had attached but well before
verdict, the trial judge had excluded one of the defendant's
lawyers from the courtroom for repeatedly disregarding his
instructions. The defendant's remaining lawyer moved for a
mistrial, and the court granted the motion. The defendant was
indicted again on the same charge, his double jeopardy claims were
rejected, and he was convicted. When the double jeopardy issue
reached this Court, we held that the defendant's second trial on
the same charge did not violate the Fifth Amendment.
Page 432 U. S. 32
Writing for the Court, MR. JUSTICE STEWART reiterated the rule
that,
"'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.'"
424 U.S. at
424 U. S. 607,
quoting
United States v. Jorn, supra at
400 U. S. 485
(plurality opinion). Recognizing that a prejudicial error committed
by court or prosecutor generally presents the defendant with a
"Hobson's choice," MR. JUSTICE STEWART nevertheless stressed the
importance of preserving the defendant's "primary control over the
course to be followed in the event of such error." 424 U.S. at
424 U. S.
609.
"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."
Id. at
424 U. S.
608.
Where the defendant, by requesting a mistrial, exercised his
choice in favor of terminating the trial, the Double Jeopardy
Page 432 U. S. 33
Clause generally would not stand in the way of reprosecution.
Only if the underlying error was "motivated by bad faith or
undertaken to harass or prejudice,"
id. at
424 U. S. 611,
would there be any barrier to retrial:
"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. [734,
372 U. S. 736 (1963)]. . .
."
Ibid.
It remains only to apply these principles to the present
case.
C
In this case, as in
Dinitz, the proceedings were
terminated at the defendant's request and with his consent.
Although petitioner's motion to dismiss the information was
initially denied in the course of opening arguments just before the
attachment of jeopardy, the court's remarks left little doubt that
the denial was subject to further consideration at an available
opportunity in the proceedings -- a fact of which the court
reminded counsel after the close of the prosecution's evidence.
Counsel for petitioner made no effort to withdraw the motion,
either after the initial denial or after the court's reminder that
the motion was still under consideration. And counsel offered no
objection when the court, having expressed its views on
petitioner's guilt, decided to terminate the proceedings without
having entered any formal finding on the general issue.
It follows under
Dinitz that there was no double
jeopardy barrier to petitioner's retrial unless the judicial or
prosecutorial
Page 432 U. S. 34
error that prompted petitioner's motion was "intended to
provoke" the motion or was otherwise "motivated by bad faith or
undertaken to harass or prejudice" petitioner.
Supra at
432 U. S. 33.
Here, two underlying errors are alleged: the prosecutor's failure
to draft the information properly and the court's denial of the
motion to dismiss prior to the attachment of jeopardy. Neither
error -- even assuming the court's action could be so characterized
-- was the product of the kind of overreaching outlined in
Dinitz. The drafting error was, at most, an act of
negligence, as prejudicial to the Government as to the defendant.
And the court's failure to postpone the taking of evidence until it
could give full consideration to the defendant's motion, far from
evidencing bad faith, was entirely reasonable in light of the
last-minute timing of the motion and the failure of counsel to
request a continuance or otherwise impress upon the court the
importance to petitioner of not being placed in jeopardy on a
defective charge. [
Footnote
10]
We hold that petitioner's retrial after dismissal of the
defective information at his request did not violate the Double
Jeopardy Clause.
Affirmed.
[
Footnote 1]
The statute provides in pertinent part that a person commits
theft when he
"knowingly . . . obtains or exerts unauthorized control over
property of the owner . . . and . . . intends to deprive the owner
of the use or benefit of the property. . . ."
This provision has been repealed effective July 1, 1977.
[
Footnote 2]
Federal Rule Crim.Proc. 7(e) provides that a district court
"may permit an information to be amended at any time before
verdict or finding if no additional or different offense is charged
and if substantial rights of the defendant are not prejudiced."
At no time in the course of the first trial did either the
defense or the prosecution raise the possibility that the
information might be amended under this provision.
[
Footnote 3]
As this was a bench trial, jeopardy did not attach until the
court began to hear evidence.
Serfass v. United States,
420 U. S. 377,
420 U. S. 388
(1975).
[
Footnote 4]
Both sides assume that the District Court's statements, made to
justify denial of Lee's motion for judgment of acquittal, that he
had been "proven [
sic] beyond any reasonable doubt in the
world" and that there was "no question about his guilt; none
whatsoever,"
supra at
432 U. S. 26, do
not amount to a general finding of guilt. We agree that the court's
comments, in the context in which they were made, cannot be viewed
fairly as a general finding of guilt analogous to a jury verdict.
See n 7,
infra.
[
Footnote 5]
In a single footnote to his main brief, petitioner appears to
rely on a distinction "between an action terminated by mistrial and
one terminated by dismissal." Brief for Petitioner 1 n. 25. But in
the text of that brief, petitioner consistently assumes that the
permissibility of retrial is controlled by the same considerations
in either case.
Id. at 14-25. And at oral argument,
counsel conceded that "whether [the termination of the first trial]
is characterized as a mistrial or characterized as a dismissal, the
result in this case must be the same." Tr. of Oral Arg. 17.
[
Footnote 6]
The findings and conclusions accompanying the District Court's
order left it unclear whether the court had ruled only that the
intervening decision was not retroactive or had found, in addition,
that the defendant's reliance on prior law had deprived him of the
required criminal intent.
See 420 U.S. at
420 U. S. 362
n. 3, and
420 U. S.
367-368.
[
Footnote 7]
In
United States v. Wilson, 420 U.
S. 332 (1975), we held that the Double Jeopardy Clause
would permit a Government appeal from a post-verdict ruling because
the only result of reversal would be reinstatement of the verdict.
But in
Jenkins, the District Court had not reached a
general finding of guilt that could be reinstated if the Government
prevailed on the merits of its appeal. We noted that "[e]ven if the
District Court were to receive no additional evidence, it would
still be necessary for it to make supplemental findings." 420 U.S.
at
420 U. S.
370.
[
Footnote 8]
The Court of Appeals had held that the order dismissing the
indictment was an acquittal, since the District Court had relied on
facts developed at trial and had concluded that the statute should
not be applied to Jenkins "as a matter of fact." 490 F.2d 868, 878
(CA2 1973), quoted at 420 U.S. at
420 U. S. 364.
Our disposition made it unnecessary to address the validity of this
reasoning. We recently made it clear that a trial court's ruling in
favor of the defendant is an acquittal only if it "actually
represents a resolution, correct or not, of some or all of the
factual elements of the offense charged."
United States v.
Martin Linen Supply Co., 430 U. S. 564,
430 U. S. 571
(1977). In this case, petitioner concedes, as he must, that the
District Court's termination of the first trial was not an
acquittal.
[
Footnote 9]
In
Illinois v. Somerville, 410 U.
S. 458 (1973), a state prosecutor made precisely the
same mistake as was made in this case in drafting an indictment for
theft. Discovery of the defect in the course of trial led the trial
court to declare a mistrial over the defendant's objection. We held
that termination of the trial was dictated by "manifest necessity"
under the standard first articulated in
United
States v. Perez, 9 Wheat. 579,
22 U. S. 580
(1824). There is no reason to believe that
Somerville
would have been analyzed differently if the trial judge, like the
District Court here, had labeled his action a "dismissal," rather
than a mistrial. In
Jenkins, we referred specifically to
Somerville in distinguishing proceedings that end in
mistrials from those that end "in the defendant's favor." 420 U.S.
at
420 U. S. 365
n.7.
[
Footnote 10]
What has been said is sufficient to dispose of petitioner's
further claim that his retrial violated the Due Process Clause of
the Fifth Amendment.
Cf. Palko v. Connecticut,
302 U. S. 319,
302 U. S. 328
(1937).
MR. JUSTICE BRENNAN, concurring.
I join the Court's opinion. In so doing, I want to make plain
that I read the opinion as signaling no retreat from a cardinal
principle of double jeopardy law: a criminal defendant possesses a
"valued right to have his trial completed by a particular
tribunal,"
Wade v. Hunter, 336 U.
S. 684,
336 U. S. 689
(1949), and the trial judge is obligated to take reasonable action
in protection of this right,
United States v. Jorn,
400 U. S. 470,
400 U. S.
485-486 (1971) (plurality opinion). In the present case,
I agree with the Court that the conduct of the prosecutor
Page 432 U. S. 35
did not constitute unfair overreaching, and the conduct of the
District Court was "entirely reasonable" in proceeding with the
trial and ruling on petitioner's motion after further study.
Although jeopardy had not officially attached, the defendant's
motion to dismiss the information appeared so late in the day --
during the opening statement -- as virtually to guarantee that the
trial judge would act as he did. This is especially true in the
case of a challenge to an information charging an assimilated
crime, for prudence might well counsel a federal judge's delaying
any ruling pending further study. Certainly in this case the
District Court cannot be faulted for failing to foresee that
defendant's legal contention would be so easily resolved. While a
continuance of the trial would have been a possibility if sought by
petitioner or even on the court's own motion, I agree that the
trial judge performed reasonably in not
sua sponte
stopping a trial in the middle of the opening statements and before
any evidence was taken.
I emphasize, however, that an entirely different case would be
presented if the petitioner had afforded the trial judge ample
opportunity to rule on his motion prior to trial, and the court, in
failing to take advantage of this opportunity, permitted the
attachment of jeopardy before ordering the dismissal of the
information. In such a circumstance, the court's action or inaction
would effectively deprive petitioner of his "valued right" to
receive a factual determination from the first empaneled
factfinder, and would subject a defendant to the "embarrassment,
expense and ordeal" of a needless trial,
Green v. United
States, 355 U. S. 184,
355 U. S. 187
(1957). Even if the defendant renews his motion at trial, it would
not be accurate in such a situation to argue that the defense has
made the choice to forgo the right of presenting its case to the
first factfinder in order to attain a beneficial legal ruling.
United States v. Dinitz, 424 U. S. 600
(1976);
United States v. Jorn, supra at
400 U. S. 485.
On the contrary, the defendant placed in this predicament by the
trial judge would have done
Page 432 U. S. 36
everything in his power to receive a fair adjudication of his
legal claims without compromising his right to proceed with the
first factfinder. Honoring his double jeopardy claim thus not only
is in keeping with the policies and interests served by the Clause,
but also would further the cause of efficient judicial
administration by encouraging defendants to present, and judges to
rule, on legal claims prior to the clamor and heat of trial.
MR. JUSTICE REHNQUIST, concurring.
When, two Terms ago, the Court decided
Jenkins v. United
States, 420 U. S. 358
(1975), and
United States v. Wilson, 420 U.
S. 332 (1975), I had thought that a precedential
foundation had been laid for double jeopardy analysis which, though
perhaps somewhat oversimplified, would at least afford all of the
many courts in the country which must decide such questions
explicit guidance as to what we deemed the Constitution to require.
I thought that dismissals (as opposed to mistrials), if they
occurred at a stage of the proceeding after which jeopardy had
attached but prior to the factfinder's conclusion as to guilt or
innocence, were final so far as the accused defendant was
concerned, and could not be appealed by the Government, because
retrial was barred by double jeopardy. This made the issue of
double jeopardy turn very largely on temporal considerations -- if
the Court granted an order of dismissal during the factfinding
stage of the proceedings, the defendant could not be reprosecuted,
but if the dismissal came later, he could. I had thought that
United States v.
Perez, 9 Wheat. 579 (1824), and
Illinois v.
Somerville, 410 U. S. 458
(1973), offered a different basis for the treatment of mistrials,
which, by definition, contemplate a second prosecution.
This "bright line" analysis was circumvented, however, by the
Court's decision in
United States v. Martin Linen Supply
Co., 430 U. S. 564
(1977), in which I did not take part.
Page 432 U. S. 37
There, the Court held that, even though the judgment of
acquittal by the court (which I would not treat differently from a
judgment of dismissal) occurred
after the factfinding
portion of the proceedings had aborted in a mistrial, but
before the attachment of any jeopardy in a second trial,
the second trial was nonetheless barred by double jeopardy.
In view of this development, I feel free to reexamine the
assumptions I made when writing
Jenkins and voting in
Wilson. I think that the Court's opinion in the present
case, though not completely in accord with those assumptions, is a
well articulated and historically defensible exposition of the
Double Jeopardy Clause of the Bill of Rights. Since my assumptions
did not, at any rate, survive
United States v. Martin Linen
Supply Co., supra, I join the Court's opinion.
MR. JUSTICE MARSHALL, dissenting.
It is apparent to me that this Court has today deliberately
passed up an opportunity to exercise its supervisory power to
prohibit, rather than to condone, fundamental errors in criminal
procedure. At the close of its opinion,
ante at
432 U. S. 34,
the Court states the problem and its solution:
"Here, two underlying errors are alleged: the prosecutor's
failure to draft the information properly and the court's denial of
the motion to dismiss prior to the attachment of jeopardy. Neither
error -- even assuming the court's action could be so characterized
-- was the product of the kind of overreaching outlined in
Dinitz. The drafting error was, at most, an act of
negligence, as prejudicial to the Government as to the defendant.
And the Court's failure to postpone the taking of evidence until it
could give full consideration to the defendant's motion, far from
evidencing bad faith, was entirely reasonable in light of the
last-minute timing of the motion and the failure of counsel to
request a continuance or otherwise
Page 432 U. S. 38
impress upon the court the importance to petitioner of not being
placed in jeopardy on a defective charge."
Throughout today's opinion, my Brother POWELL puts all of the
blame on petitioner's lawyer, none on the United States Attorney
and, indeed, does not even mention him. Sole responsibility for the
faulty information was in the office of the United States Attorney.
Even when drafting errors are committed, they can be corrected
before judgment, Fed.Rule Crim.Proc. 7(e). In this case, the United
States Attorney never made any effort to defend the information,
and did not offer to amend and correct the error. Certainly most of
the responsibility for the erroneous first trial rests with the
Government.
"[T]hough the attorney for the sovereign must prosecute with
earnestness and vigor, he must always be faithful to his client's
overriding interest that 'justice shall be done.'"
United States v. Agurs, 427 U. S.
97,
427 U. S.
110-111 (1976). [
Footnote
2/1]
When the motion to dismiss the information was made, the court
ruled:
"Well, since I have had no opportunity to study this at all, I
will deny the motion at this time, but, at my first opportunity, I
will check your citation and give consideration as appears to be
warranted."
App. 9. Less than two hours thereafter, the court recessed for
15 minutes and dismissed the information with the following
comment:
"As much as I dislike doing so, I have no alternative but to
grant your original motion of dismissal and the charge is
dismissed."
". . . I don't know who drafted it, but I can tell you if a law
clerk of mine out of law school drafted something like that, I
would send him back for a refresher course.
Page 432 U. S. 39
You may carry that complete message back to your
department."
Id. at 14. Can there be any doubt that, if the
15-minute recess had been taken at the beginning of the trial, the
motion would have been granted before jeopardy attached? [
Footnote 2/2]
Since petitioner was needlessly placed in jeopardy twice for the
same offense over his objection, I would reverse his
conviction.
[
Footnote 2/1]
"A defendant has no duty to bring himself to trial; the State
has that duty, as well as the duty of insuring that the trial is
consistent with due process."
Barker v. Wingo, 407 U. S. 514,
407 U. S. 527
(1972) (footnotes omitted).
[
Footnote 2/2]
Since this was a bench trial without a jury there, was not even
a need to call a "recess"; the Judge could have postponed the
taking of testimony for 15 minutes.