FONG FOO v. UNITED STATES

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Argument of Arthur Richenthal

Chief Justice Earl Warren: Number 64, Fong Foo et al., Petitioner, versus United States and Number 65, Standard Coil Products Company Incorporated, Petitioner, versus United States.

Mr. Richenthal.

Mr. Arthur Richenthal: Mr. Chief Justice and Justices may it please the Court.

The two individual petitioners, Fong Foo and Robert Knupp, and their corporate employer were indicted for having falsified and concealed and conspiring to falsify and conceal material facts from the Army Signal Supply Agency, an agency of the United States government, and its government inspector during the performance of two contracts.

The petitioners were brought to trial before Judge Wyzanski in the United States District Court of Massachusetts which had jurisdiction to try the defendants and jurisdiction over the offenses charged.

A jury was empanelled.

An opening statement was made by the prosecution, an evidence was presented through witnesses, the principal one, being the government inspector named Konstanz Paliotto.

On the eighth day of the trial, Judge Wyzanski directed an acquittal of the three petitioners prior to the Government resting its case, telling them that their bail was discharged and that they were free.

Justice William J. Brennan: You said the eighth day?

Mr. Arthur Richenthal: On the eighth day of the trial.

Justice William J. Brennan: What have happened over eight days?

Mr. Arthur Richenthal: There had been four Government witnesses called after the opening of the -- by the prosecution, and --

Justice William J. Brennan: How long did it take to get the jury?

Mr. Arthur Richenthal: To pick the jury?

As I recall, the record doesn't show it, Mr. Justice Brennan, but I think it took one day.

Judgment of acquittal was entered the day after Mr. Judge Wyzanski freed the defendants.

About 45 days later, the Government petitioned for a writ of mandamus from the United States' Court of Appeals for the First Circuit.

For the first time in the history of Anglo-American jurisprudence, the court below issued a writ of mandamus vacating a judgment of acquittal in a criminal proceeding and directing that petitioners be tried again for the same offense.

It is our position, sirs, that the constitution, statutes, and judicial decisions make it clear that there can be no review of a judgment of acquittal by an appellate court, whether by appeal, mandamus, or in any other form.

Justice William O. Douglas: That is in the federal courts?

Mr. Arthur Richenthal: Yes, sir, in a double jeopardy jurisdiction.

We have taken the position and argued extensively in our briefs that the Government has no right of appeal under the Criminal Appeals Act and cannot utilize a writ of mandamus to bring up for review a verdict of acquittal.

We have set out the history of the Criminal Appeals Act and the cases showing the congressional and judicial hostility to the use of mandamus to circumvent the lack of a right of appeal.

It is our position that a judgment of acquittal, once ended by a court that has jurisdiction over the parties and over the cause, may not be inquired into and petitioners may not be brought to the Bar again.

The way we understand the law, it is unnecessary for any inquiry to be made into the expressed or unexpressed reasons of why an acquittal was entered.

And particularly as this so, where no question is raised as to the good faith of the district judge, it's for this reason that we ask the Court's indulgence and I'm not setting forth at this point of our argument a detailed statement of the facts which we shall attempt to go into, in answer to the Government's arguments, if time permits.

There is and can be no case cited by the Government as valid for the proposition that an acquittal can be vacated and the defendants try it again.

One of the maxims in our common law heritage is that an acquittal entered is forever a Bar to further prosecution for the same offense.

This, we believe, is of itself significant in the hundreds of years of criminal prosecution.

This fundamental concept that an acquittal is sacred and inviolable is so strong that obviously, it is not surprising, that the question has not often been raised in an appellate court.

There is no decision to parallel the decision of the Circuit Court of Appeals for the First Circuit in this case.

It is significant, however, that in the two cases where the Government has raised this question, one in this country and one in England, the Government's contention has been rejected.

We specifically direct the Court's attention to the decision of the unanimous bench in United States versus Weissman, which was decided in 1924 by Mr. Justice Holmes.

In that case, the District Court directed a verdict of acquittal prior to the submission of any evidence, no witnesses before it.

It was, in effect, a discharge of the indictment.

By writ of error, the Government raised before this Court the same issues it is raising today, that that trial was no hearing and that the trial, in effect, was a nullity.

Mr. Justice Holmes, speaking for unanimous court, affirmed the principle that once a defendant is before a properly constituted court which has jurisdiction of the defendant and the cause and a judgment of acquittal has been entered, nothing could be done to set aside such an acquittal.

As we read United States versus Weissman, the only facts that are pertinent are that the court had jurisdiction of the party and the cause and a verdict of acquittal entered.

Under that decision, we respectfully submit the appellate inquiry should end.

It is significant, Your Honors, that United States versus Weissman was not even referred to in the majority opinion in the lower court.

Now, I ask the Court's permission to explore in detail a very important English case which is on all force with this case.

In the Weissman case, the issue came before this Court on a writ of error.

In the English case, it came up exactly in this form by writ of mandamus.

I refer to a decision decided by the Queen's Bench in 1952 entitled Regina versus Middlesex Justices.

Justice William O. Douglas: Is that cited in your brief?

Mr. Arthur Richenthal: Yes, it's cited in the briefs, and particularly in the individual petitioner's brief.

In that case, the trial court directed a verdict of acquittal after the opening by the Crown, and prior to the submission of any evidence, the court told the jury it had read pretrial depositions.

The record reveals that the judge had been exposed to three pretrial depositions, one from the policeman who arrested the defendant, who incidentally have been charged with drunk in driving, and he said he saw the car weaving in and out, go on the opposite side of the road, and hit the curve, a disinterested witness who has been driving at the back of the car, in effect, said the same thing.

A doctor who examined the defendant shortly after he had been arrested said he had been intoxicated, and attached to the doctor's deposition were some handwritten statements of the defendant.

The trial judge said that from the handwritten statements, he concluded, that the defendant had not been driving while drunk.

Incidentally, those statements of an educated man indicated a misspelling of his street and of his town.

The Crown felt that this was a very important case and took the appeal by writ of man -- took -- brought it up by writ of mandamus because they had no right of appeal.

And, the Queen's Bench excoriated the lower court judge but held it could not and would not go and back of the verdict of acquittal.

Now the Government, apparently, recognizes the significance of the Middlesex Justice case because it takes four pages of its brief and attempts to distinguish it, but I respectfully submit that such distinction is without any validity.

They try to say that in the Middlesex case, the judge dismissed, I quote, “With knowledge of the facts of the prosecution's case.”

And Judge Wyzanski dismissed, quote in italics, “Without knowledge.”

I bring to this Court's attention that when Mr. Judge Wyzanski dismissed, he had had eight days of trial and 600 pages of testimony.

He had had colloquies with counsel at the Bench who had explained their case.

Prior to the commencement of the case, he had a motion to dismiss the indictment, he had motions for bill of particulars, he had bills of particulars filed.

Certainly, Judge Wyzanski had full knowledge of the prosecution's case when he made this decision.

On the issue before the appellate court, we submit, once a verdict of acquittal has been entered, it is unnecessary whether the judge is familiar or not familiar with what the Government intends to prove.

And the Middlesex decision does not go on the content of the record.

They went out of their way to excoriate the judge and for that reason, it pointed out that though he said he had read the depositions, it was fairly obvious that he have not.

We submit, sir, that the risk of error or impropriety of what the judge has done must be borne by the Government once it has had an opportunity to appear before a court which has jurisdiction of the parties and the cause.

Now, it is obvious that this background of non-reviewability lies not only in the inherent jurisdiction of the trial judge and the lack of any right of appeal.

But in the principle of the Fifth Amendment, petitioners are entitled to the full protection of that amendment.

There is no question that these defendants were in jeopardy in the first trial in front of Judge Wyzanski.

One need only have seen Fong Foo who lost 15 pounds during the 13 days and heard the outburst of tears of Knupp and Foo when Judge Wyzanski told them that they were free and that their bail was terminated.

No matter what label is put upon the action of the trial judge, realistically, these defendants have now been placed in second jeopardy.

I would like to read a very relevant quote from this Court in United States versus Ball, one of the leading double jeopardy cases.

“The verdict of acquittal was final and could not be reviewed on error or otherwise without putting the defendant twice in jeopardy and, thereby, violating the constitution.”

By this mandamus, if sustained, the Government has obtained in the appellate court that which the lower court refused to give them, an acquittal, that which -- I missed the trail, excuse me, sir.

The Government tries to utilize this Court's opinion in the Gori case as a basis for supporting the Court of Appeals' opinion.

As we read the Gori case, the rationale of that is that a trial judge should be free to exercise its most sensitive judgment for the more effective protection of the criminal accused, and there is a basic distinction between the Gori case and this case.

The trial judge in the Gori case intended a mistrial.

Here, the trial judge intended to free the defendants.

As a matter of fact --

Justice John M. Harlan: Supposing Judge Wyzanski had said, “I'm directing a judgment of acquittal here because I think the prosecutor misbehaved himself, and the only way of enforcing high standards upon the prosecuting officials is to dispose of cases where they don't live up to the standards as they should.”

What is your position on that?

Mr. Arthur Richenthal: Our position would be that that verdict could be reviewed in any way, that direction of acquittal.

That the Government ran the risk of what their functionaries did.

Justice John M. Harlan: You draw no distinction between -- between the grounds on which Judge Aldrich disagreed with the majority.

Mr. Arthur Richenthal: Mr. Justice Harlan, we think that one error of the lower court is an attempt to analyze and psychoanalyze what the judge did.

The judge verbalized something which was triggered by misconduct of the United States attorney, but he wasn't writing an opinion.

He was explaining to a jury why he was performing his civic duty of directing a verdict of acquittal and excusing them.

And, we say that this kind of decision opens up, in every case, what motivated the judge.

Justice John M. Harlan: (Inaudible)

Mr. Arthur Richenthal: And we have a sub-trial now under the issue of (Inaudible) if this decision should be sustained.

Justice John M. Harlan: Accepting Judge Aldrich's premises, for purposes of my questions, you still say that you are entitled to -- you still --

Mr. Arthur Richenthal: We say that the verdict of acquittal, Mr. Justice Harlan, is non-reviewable even if it'd be done for the misconduct, or more so if it'd be done for the misconduct of the United States Attorney, if you do want to go into reasons.

Justice Felix Frankfurter: As I understand you, you go beyond that.

I was once present in Court waiting for a case when one of the most eminent district judges in modern history, upon the opening of counsel for the plaintiff in a triple damage case in the Sherman law suit, then said, “I know that you can't prove what your opening said you undertake to prove.”

Counsel was gesticulated, objected naturally.

And the judge said, “I know -- I know this situation.

I was in conflict with these enterprises for nothing for 10 years before I went on the bench.

You can't -- these are all impossible undertakings you make and I direct the judgment for the jury for the defendant.”

Now, suppose this had been a criminal prosecution under the Sherman law, a criminal prosecution in conflict with the Government.

The U.S. Attorney makes an opening statement and the district judge says “I know the Government can't possibly prove what they say they'd prove when I direct verdict of acquittal.”

You'd say that that is understandable?

Mr. Arthur Richenthal: Mr. Justice Frankfurter, we certainly do.

We say an absolute necessity under our common law principles and under the constitution and under the statutes.

Justice William J. Brennan: What you're saying is an acquittal is an acquittal, period.

Mr. Arthur Richenthal: If I can quote, I think, you have taken a line that I was going to take legal license with from Gertrude Stein and say “An acquittal is an acquittal is an acquittal,” sir.

Justice John M. Harlan: The constitution doesn't say that --

Mr. Arthur Richenthal: The constitution gives a defendant the right not to be placed twice in jeopardy, and --

Justice John M. Harlan: That's a different thing from saying an acquittal is an acquittal, period.

Mr. Arthur Richenthal: Well, the objective guide of whether you've been placed in jeopardy certainly is an acquittal.

Now, in this particular Court, in the Gori case, when the Court, when it has fought, as has been going, in mistrial cases, the Court specifically excluded from its decision, I'm now referring to the majority opinion, sir.

The situation where the prosecution has given another more favorable opportunity to convict the accused and certainly, Mr. Justice Harlan, that exists in this case.

This case was going very poorly for the Government.

Mr. Justice Wyzanski, at the end of the second day, warned him that he was going to take drastic action.

At the end of the fifth day, he called the U.S. Attorney into a conference and recommended that they now thrust.

He told them that an ineradicable impression had been made upon the jury that if a verdict had been brought in against these defendants, he'd have to set this aside.

If evident, double jeopardy provision of the Fifth Amendment should apply, it should apply in a situation where the case was going so favorably and where the judge intended to acquit the people.

Now, what is the Government's answer to the historic background of non-reviewability as evidence in our view of the law by Judge Weissman -- Judge Holmes decision in the Weissman case and Regina versus Middlesex and the Queen's Bench decision --

Justice Felix Frankfurter: But Weissman is really a different case because -- I don't know why you have to rely on that case, why you think its (Inaudible)

Weissman was a case that arose under the Criminal Appeals Act and that is a specific statutory jurisdictional statute, and that case held that that is not a res -- that it could not be brought here under the Criminal Appeals Act.

That's all it held.

Mr. Arthur Richenthal: Well, we submit sir, that this case cannot be brought here under the Criminals Appeals Act.

Justice Felix Frankfurter: But, that is -- that is in this case.

Mr. Arthur Richenthal: No.

Justice Felix Frankfurter: You're talking about the Criminal Appeals Act.

Mr. Arthur Richenthal: The only similarity, Mr. Justice Frankfurter, is that in that case, an examination of the Government's briefs indicate that they may be identical arguments insofar as no hearing is concerned and nullity.

Justice Felix Frankfurter: All you establish by that statement is that lawyers make all sorts of argument.

Mr. Arthur Richenthal: Well, this is -- these are the Government lawyers, Your Honor.

Justice Felix Frankfurter: Well, they make all sorts of arguments.

Mr. Arthur Richenthal: And, Mr. Justice Holmes saw fit to address itself -- himself to that argument.

Now, in this case, they make those arguments that there was no hearing, everything below is a nullity and therefore, these defendants were not in jeopardy.

We submit the hearing to which they were entitled was accorded to them, namely, an appearance before a properly constituted court which had jurisdiction.

Now, the Government is faced with the problem of what is the power of the judge to direct a verdict of acquittal and when.

And even they are compelled in their briefs to admit that the judge can direct a verdict of acquittal prior to their putting in their full case where an essential fact in the judge's view, whether erroneously or not, has not been made out.

Now, we submit here that an essential part of the Government's case was not made out.

In their opening statement, they told the jury and the court that they would have to understand the testing of the device involved before getting to the question of whether there had been fraudulent testing.

Now, this Court must -- should understand that the device involved is a complicated electronic device called a radiosonde which is dropped from a plane by a parachute and, as it passes through the air, returns to a receiver by Morse code the temperature, the humidity, and the pressure of the air as it's going down.

The Government made it absolutely clear, and I've read -- refer to page 70 of the record, that the first part of its case would be an explanation of this complicated device and it put on the stand Mr. Paliotto, who was the principal witness for the Government.

The record reveals he had been the chief inspector at the defendant corporate plant.

He had designated the tests which were involved in the indictment and evaluated them.

He had personally initiated the FBI investigation and he personally had custody of the tapes which allegedly embodied the false testing.

His testimony was technical and difficult to follow.

He admitted he had difficulty explaining that as to lay people even though he was a Government inspector at the defendant plant.

The judge's vigilance was particularly provoked at the commencement of the second day of trial by Mr. Paliotto description of a test operation as resulting in spurious marks on a piece of paper.

When questioned by the judge, he explained that spurious meant instantaneous, on the spur of the moment.

The judge cautioned the witness on the use of such language in criminal cases involving fraudulent testing.

Further on that day, Mr. Paliotto identified the document as prepared by an agent of the company which turned out to be a Government inspector's worksheet.

The judge ordered and I quote, “This misleading exhibit to be taken from the jury.”

At this stage, it was a Friday, the judge told the Government that he would be compelled to take, “drastic action if the case were not better prepared in connection with the technical matters.”

Thereafter, on further testimony, when the case reconvened after the weekend, Mr. Paliotto came up with inconsistent and contradictory statements on very important matters, such as the destruction of his notes on his activities as an inspector and the date of destruction.

And then, the most important incident arose.

He admitted and changed his testimony that he had actually destroyed the tapes which embodied the false testing and that such destruction took place after the commencement of the criminal investigation which he had invoked by going to the FBI and this, in light of a promise on the record by the Assistant U.S. Attorney, that the defendants would have the test tapes available to them.

It was when this contradictory testimony came out on the fifth day that Mr. Justice Wyzanski called the U.S. Attorney to the bench and recommended to him that on this record this case should be nolle pros.

He said, “This has gone on for two or three days.”

Justice John M. Harlan: What page are you reading from?

Mr. Arthur Richenthal: Page 359, Mr. Justice Harlan.

I am going to tell you that if I were the United States Attorney in this case and my principal witness was testifying as this witness had done, I would forthwith nolle pros the case.

Recognizing the seriousness of this charge, the Assistant U.S. Attorney, who had rather ineptly tried the case, called upon his boss and they waited until Mr. Richardson came down into the courtroom and the judge noted that Mr. Richardson had joined Government counsel and then, explaining to Mr. Richardson, he said to him, “The cold record perhaps inadequately conveys the total picture as it has developed in the last few days of testimony and in particular, the testimony of the witness Paliotto was on the stand.

Further on that page, he says, “On one occasion, he will give an answer in the affirmative.

A few minutes later when the situation has really not changed, in any respect, he takes a diametrically opposite position.

He seems not to realize the ambiguity his testimony has created.

He seems to be unresponsive to repeated warnings by the Court that there could be no more serious matter than the offering of testimony in a criminal case and that the witness should pause and reflect if these are invalid, but should not plunge himself and the rest of us into a series of confusions.”

Justice John M. Harlan: Did all of this go on in the presence of the jury?

Mr. Arthur Richenthal: No, the jury had been excused, Mr. Justice Harlan.

As a matter of fact, the judge made it clear that if there were any members of the press present, he would hold them in contempt if they dealt with this conference.

This was completely between him and the prosecuting attorneys.

And, he ended up on page 362 by saying, “I can't feel that any trust could be placed in this witness and if, in the end, the jury did believe this witness, I think it would be almost inevitable that I would have to set aside the verdict, as not being a verdict which could be granted full credit, as being a verdict based upon evidence beyond a reasonable doubt.”

Mr. Richardson was insistent.

He went ahead and explained that they had other witnesses.

The judge was indulgent.

He went on with the case.

He went on with the case for another three days.

When Mr. Paliotto finished, they called their next principal witness, one Mr. Rosenholm who was an employee of the corporate defendant, had been inspector in the plant, named as a co-conspirator but not a defendant in the criminal proceeding.

With this witness, there was a change of vital testimony with respect to test cards and conversations with respect to dealing with the test cards.

The witness revoked the entire situation and finally said it hadn't happen.

Then, the situation arose which triggered the directed verdict.

The witness Rosenholm testified to a conversation with company counsel and placed the conversation in February 1958.

The indictment charges a conspiracy from September 1956 to November 1957.

When attorneys for the defendant raised a question of lawyer-client privilege, the attorneys had a colloquy at the bench and defended -- the Government's counsel explained that this was a key conversation and that it was through the knowledge of the attorney for the company that they were going to attribute knowledge to the corporation and it was an essential part of the conspiracy.

The judge saw many problems arising under the lawyer-client privilege and declared a recess to give the U.S. Attorney an opportunity to lay the proper basis to get this evidence in the record.

They convened overnight.

The next day, Mr. Rosenholm took the stand, continuing in direct examination with the Assistant United States Attorney examining.

He then changed the date of this key conversation to September 1957 and placed it directly in the conspiracy.

On cross-examination later that day, defendant's counsel brought out that out of the courtroom, the Assistant U.S. Attorney had refreshed the recollection of the witness Rosenholm for the changed date.

The judge, in our opinion, very properly told the Assistant U.S. Attorney that such change should have taken place with the witness on the stand in the presence of the court, jury, and defendant's counsel.

And, this event, Your Honors, triggered on the eighth day, after all this patience and indulgence, the directed verdict of acquittal.

Chief Justice Earl Warren: We'll recess now.

Mr. Arthur Richenthal: Thank you, sir.

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Argument of Arthur Richenthal

Chief Justice Earl Warren: Mr. Richenthal, you may continue your argument.

Mr. Arthur Richenthal: May it please the Court.

I should like to make clear that, on the -- on our position as to the non-reviewability of a verdict of acquittal that I need not have gone into the explanation of the trial in the District Court.

I did that, however, to make clear to the Court that, in answer to the government's position that a District Court judge does have the power to direct a verdict of acquittal where the government has failed to make out an essential part of its case, whether erroneous or not.

And, I wanted to make clear that on this record, on the theory of the trial, an essential part of the government's case was an explanation of the operation of this electronic device which clearly was not made out due to the inadequate, incredible testimony of the government inspector.

And, I do want to say, in answer to one question from Mr. Justice Harlan, that the misconduct of the Assistant United States Attorney, in our opinion, was not the reason for the directed verdict of acquittal but, rather, it made a bad government case impossible and triggered the final action of the Court.

Unknown Speaker: (Inaudible)

Mr. Arthur Richenthal: Well, I respectfully feel it was a bad government case, sir.

Unknown Speaker: (Inaudible)

Mr. Arthur Richenthal: Now, coming back to the government's alleged distinction of Regina versus Middlesex, I think it must become fairly obvious on an examination of the record that, certainly, their distinction that Judge Wyzanski acted without knowledge of the government's case is a distinction without any validity because, after all the eight days of testimony, and all the proceedings and briefs that had taken place and colloquies with counsel, he knew much more than the judge who claimed to have read the depositions in the Middlesex Justice case.

In passing, I ask the Court to read the Queen's Bench decision, not the English Report decision which is quoted.

The Queen's Bench decision is the one referred to in the government's brief.

Now, we urge upon the Court to continue the historic principle that a verdict of acquittal is not reviewable and, certainly, should not be reviewed in the instant case.

We feel by giving an independent judiciary, this non-reviewable right is no more horrendous than giving the government attorney the right to nolle pros in criminal proceedings which right is non-reviewable on a much broader scale.

We urge the Court to reverse the order of the First Circuit.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice and may it please the Court.

In this very extraordinary case, we base our case upon three propositions.

First, we assert the basic right of people to be heard in the prosecution of a valid indictment.

When a defendant has been charged with crime by the grand jury in a lawful indictment, then, we submit, the district judge has no power to bar prosecution by entering a judgment of acquittal without a hearing.

I simply illustrate the proposition by putting a converse case.

If a judge were trying a criminal defendant without a jury and, at the end of hearing two character witnesses for the defense, the judge were to say “nothing can convince me that this scoundrel is innocent.

I find him guilty and enter judgment forthwith.”

That that judgment would not merely be erroneous, but that the judgment would be void and could be collaterally attacked years later on habeas corpus or under --

Justice William O. Douglas: Does the decision (Inaudible) material?

Mr. Cox: No, because my hypothesis in this case, the judge was trying the case without a jury.

I meant -- I think I stated that in the facts.

I meant to.

No, because he would've denied a fair hearing and, also, our case is the converse, we submit, that essentially the same proposition stands.

Justice Felix Frankfurter: The difficulty is, Mr. Solicitor, that the rights are correlative.

Mr. Cox: Not in all respects and the fact that that is the law in one case does not establish that it is the law in the other.

Justice Felix Frankfurter: But neither --

Mr. Cox: But I shall submit that they should be correlative and will go on to develop my reasons, if I may, a little later.

Our second proposition is that, where the judge -- where the District Court has exercised this non-judicial function and is, therefore, refusing to try the indictment, that mandamus is the proper remedy to expunge the non-judicial action and to order the Court to proceed to do its duty to put the case to trial.

My third proposition has to be, of course, is that the constitutional limitation against placing a defendant in double jeopardy does not bar further prosecution of this indictment.

Before developing these points, I think it might be helpful if I were to describe once again what was involved in this case and what took place at the trial.

The indictment was under the False Statements Act and for a conspiracy to submit false statements to the government.

The defendant corporation had agreed to manufacture and sell certain radiosondes, a device which is dropped from an airplane at a high altitude, a parachute then opens, there is a certain shock at that point, and the parachute then allows the device to float to earth.

The device is used in weather forecasting.

It transmits signals which, if the device is accurate, enable an instrument on the ground to record signals which, in turn, tell the operator what the temperature, the humidity, and the barometric pressure are at the point in the air where the radiosonde did.

For example, if the radiosonde to take temperature, for an illustration, where the height where the temperature was -50 degrees centigrade, the radiosonde might transmit the Morse Code signal BN.

At 40 degrees, it would transmit QX.

At 30 degrees, another pair of letters.

It was, therefore, obviously of the greatest importance that the machine be adjusted in a certain way that the signal BN, which the operator on the ground knew meant fif -- -50 degrees centigrade, in fact was transmitted at -50 degrees centigrade.

And, these tests involved in the case involved testing the radiosondes for the accuracy of the signals that they transmitted with respect to temperature, humidity, and the barometric pressure.

The charge was that the test results which were given by the operators of the testing devices to the government were falsified and this, of course, if true, would be a violation of the False Statements Act and a conspiracy to submit such false information would be a criminal conspiracy.

The defe -- the government, after the jury was empanelled, made a very short opening statement.

The Assistant United States Attorney was careful to explain that the government's case fell into two parts.

The first, he said, would be largely technical and he didn't need to put it in at all, but he thought that it would be helpful to the jury to explain what a radiosonde was and, also, to explain the procedures for testing the accuracy of the calibration of the transmitting machines.

So, he said he would, first, call two witnesses who would describe the technical aspects of the case.

And then, he went on to say that he would call other witnesses who would actually describe the falsification of the tests.

He did not state the exact number, but it's apparent that there were a number of witnesses from the plant who would testify about the falsification of the test and, indeed, the actual conspiracy.

He didn't go into detail about what their testimony would be, then followed four or five days of trial, during which, two witnesses tried to explain radiosondes and the procedure for testing.

It's difficult to describe those four or five days.

They were -- it was extremely long, extremely painful.

The witnesses turned out to be rather inept.

The judge repeatedly interrupted the witnesses and, I think, one reading the record would include that he contributed in very large part to the difficulty.

For example, he was extremely precise in preventing witnesses from stating any conclusion.

He objected, for example, to the witness saying that the signal that came at -50 degrees centigrade would be BN.

The witness must say that the signal would be dit-dit-da-da da-da-dit-dit so that he wouldn't be stating a conclusion.

At another point, the witness, describing how the radiosonde was put into a chamber where the atmospheric conditions which it would experience could be simulated, the judge objected to the use of the word “chamber” because he said it might refer to his offices or it might refer to a chamber pot and the word “chamber” was, therefore, an improper one.

He objected to the use of the word “gave,” one witness -- one man in the plant gave a radiosonde or some other part to another man in the plant, because he said “that's a legal conclusion and you can't embody any legal conclusions in your testimony.

You must say he handed it to him.”

Well, after some days of this, the witnesses not unnaturally, began to become tense and I make no assertion that they did not say many inconsistent things.

Whether the inconsistencies were serious or not is a matter of dispute or a matter of judgment, sir.

The Circuit Court of Appeals described what had happened in this fashion.

I'm looking at page 50 and 51 of the record.

“The testimony of the two principal witnesses, to whom we have specifically referred, were certainly confused and conflicted.

It is clear from the record before us that the confusion and conflicts in these witnesses' testimony was due in no minor part to the judge's persistent, sharp, and sometimes caustic cross-examination through their direct examination.”

And then, if the Court will bear with me, over on page 53, right near the top.

This record provides a prime example of the consequences of overzealous participation in the examination of witnesses by the trial judge.

It is clear that the judge's sharp persistent and almost badgering question and caustic remarks first made the witnesses weary and overcautious and then confused them into inconsistencies and, in addition, disrupted the orderly presentation of the government's case.

I think that I will leave the point about the conduct of the trial there with simply one observation.

When one recalls that this is a small circuit and that the judge at the trial, he's an extraordinarily able man, a judge of 15 years experience, for the Senior Circuit Judge to administer that review, which must have cost him great personal distress, is I think the best evidence of the provocation to which he was put and of the manner in which these five days of trial had been conducted.

After the first four or five days, the district judge excused the jury, turned apparently to the Assistant United States Attorney, and said that there are many kinds of character in life and one of the important kinds of character is the ability to recognize that he has no case and the willingness or courage to dismiss his case when that becomes evident.

And, he then commented on the unreliability of these two technical witnesses and allowed the prosecution 15 minutes to decide whether to drop its case.

At that point, the United States Attorney, himself, came into the courtroom and there was a colloquy between the judge and the United States Attorney and his assistant which appears at page 362 of the record.

The judge had already stated again, for the benefit of the United States Attorney, why he thought that the witnesses were unreliable.

He referred particularly to this use of the word “superiors” which was certainly an extraordinary malapropism but, if one reads that part of the record, he will find that the witness was describing a standard testing procedure and not what anyone had done, and that there was, I think, no possibility that this was a deliberate effort to prejudice the case.

He was just a technically educated man, ignorant of the English language.

Justice William O. Douglas: I don't find that on 362.

Is that in --

Mr. Cox: I had-- I'm sorry.

I confused Your Honor.

I went back.

I was coming to 362 and was attempting to summarize something that had preceded it.

The other thing which preceded it, the judge said, as an illustration of the witnesses' misuse of words, that in describing the method of measuring humidity, which is most accurately measured by the use of hair, that when the witness had said he knew only about hair, that it must be virgin hair, as one would speak of virgin timber or virgin wool or virgin sulfur, the judge had engaged in a colloquy which I think need not be repeated but, obviously, was of color humor.

Having referred back to these incidents, the judge then said that no jury would bring in a verdict against the defendant.

And, Mr. Richardson said “I think, in the first place, we should make it clear that this witness was called for a limited purpose, not central to establishment that wrongdoing had occur,” and he went on to say he understood he was explaining the nature of the test.

The government would rely entirely on other witnesses to show that the test were not carried out and, in fact, were falsified.

We believe, therefore, whatever the jury's impression of this witness generally, this judgment as to whether the defendants were guilty would and should rest upon the testimony of witnesses who will testify that, under the instructions of the defendants, they did not follow the procedures prescribed and that they, in fact, falsified those procedures.

Then, Mr. Caner, the assistant, explained over on the next page “the Court has not heard one-tenth of the testimony in this case and none of the fraud testimony.”

After that colloquy, the judge said that he would allow the case to go on.

Then, the witness, Robert Rosenholm, was called and he was to be a witness and he was a witness until the actual falsification of these tests.

For example, one of the tests was to discover whether the mechanism had been manufactured in such a way that it would survive this shot when the parachute opened and stopped its decent, and it would be -- the radiosonde would be subjected to a similar shot.

What was done, according to the witness, was that the radiosonde would be put into the testing device that simulated the conditions it would experience.

It would be made to broadcast.

The results would be recorded on a tape and, if they were accurate, well and good.

Then, what should have taken place would be that the shot would be administered to the device.

It would be put back in the gadget and a second tape would be made showing how accurately it recorded after the shot.

But, what witness said was done in the plant was that two tapes were made before the shot and that, then, one tape was made after the shot and that the tapes given to the government inspector, who was charged with determining whether the devices were accurate, would be the two tapes before the shot and one would be represented to be a post-shot tape.

Another part of his testimony concerned the making of what I think I could call false tapes.

One was suppose to record what signals the radiosonde actually emitted.

If one know that, at -50 degrees centigrade, it was supposed to emit the signal BN and the signal PT came instead, why, he could record BN on the tape, gives the tape to the government inspector and, thereby, mislead him.

Rosenholm also testified that this was done and he was describing in some detail exactly how the test was administered and the false information was given to the operator.

He said that the false information was on a car and then, after what I recall to be about two pages of the record, he said, “No, wait a minute.

I see where I went wrong now.

It wasn't on a card.

The card stayed with the radiosonde all the time.

I would go to the file and get the information and give it to the operator who was falsifying the test.”

So, there was, in the sense, an inconsistency but it was also an inconsistency that the witness, himself, called attention to and said, “No, I was wrong,” and it came after a good deal of this badgering inspector.

The witness then went on to deal with the alleged conspiracy.

He testified that a time had come when he went to an office in North Dayton, the town near the plant, where a company lawyer was present and that various other employees were there.

The question then that came up, as it obviously might, about the admissibility of this testimony, which we're not concerned with.

And, he was asked -- well, excuse me just a minute.

What he was going to testify to, as nearly everyone knew, was that, at that meeting, the company lawyer and responsible company officials had had this falsification called to their attention and that they had determined that it should continue.

So, this was an essential part of the alleged conspiracy.

Unknown Speaker: (Inaudible)

Mr. Cox: This is what he was going to testify --

Justice William J. Brennan: (Inaudible)

Mr. Cox: I -- my impression from the record is that Judge Wyzanski had learned this, too, yes.

So, that since it was alleged that the conspiracy ran until November 1957, it was important to the prosecution to admit as to -- the meeting was some time before November 1957.

The witness was asked before he gave this testimony, Mr. Justice Brennan, on page 552 of the record, “Did you have a discussion with him?”

“Yes, sir.”

“Approximately when did you have the discussion?”

Witness: “I am not sure.”

The Court: “Can't you tell us whether it was 1958 or -- “Witness: “It was 1958.”

“Can't you tell us, on reflection, whether it was hot weather or cold weather?”

“I believe it was in the month of February, but I'm not sure.”

The point I'm trying to emphasize is that the witness had never been very precise, that a very suggestive question had been put to him by the judge because if you say “was it 1958 or --” it suggest 1959, and if you don't know whether it's 1957 or 1958, the judge thought 1958 is the earliest possible date, and a not too strong a witness might easily fall in with it.

Shortly later, there was a recess for the evening and, the next morning, I turn now to page 559, the Assistant United States Mr. -- Attorney, Mr. Caner, asked his first question.

He said “yesterday, Mr. Rosenholm, you said you believed, at the time you were called by Mr.Hester to his office and introduced to Mr. Tykelan, it was February 1958.

Are you sure of that date?”

Answer: “No, sir.”

“What is your best recollection of what occurred -- of when that occurred?”

Witness: “Approximately, September 1957.”

Then, Mr. Caner sought to approach the Bench.

One could only infer that his purpose was to explain what had taken place overnight, but the judge said, “You don't have to approach the Bench.

That requires no explanation.

It isn't in a criminal case correct.”

Apparently, meaning that it had been incorrect for Mr. Caner to have said anything to the witness.

Now, that is sheer inference on my part.

I have no way of knowing what the “it” means, but we do know that it came out somewhat later during cross-examination, when of course the counsel for the defendant made a great issue of this change of date very skillfully and, certainly, with all propriety, that Mr. Caner had spoken to the witness and that the witness had changed his testimony after talking to Mr. Caner.

Now, this appears on page 567 and I think that it, too, is worth calling to your attention.

Two-thirds down -- two-thirds the way down the page, “when you testified yesterday to February 1958, you believed you were telling the truth, didn't you?”

“Yes.”

“You had every intention to tell the truth, didn't you?”

“Yes.”

“But, you came here this morning and now say it was September 1957.”

“Yes.”

Court:“1957?”

Mr. St. Clair, he was counsel for defendants: “That is right.”

“Instead of February 1958?”

“That is right.”

And then, they go on -- no, I must read at the very -- “and any conversation you had by February of 1958 would be entirely meaningless, so far as this case is concerned, don't you?

You know that, don't you?”

“Of that, I don't know.”

“Weren't you told that in substance?”

“By whom?”

“By anybody.”

Witness: “I don't recall whether anybody told me this.”

Remember that a purist has been keeping after him for some time now.

He doesn't recall whether anybody even told him.

“You don't recall that even though it happened this morning?”

That he was told this date would be meaningless may have happened that morning, for all we know.

The Court: “You are being asked about a conversation which must have taken place within the last hour-and-a half.”

“Not necessarily.”

“Were you ask -- told by anybody, not necessarily had been an hour-and-a half?”

The Witness: “Yes.

I agreed to the fact that Mr. Caner questioned me, Your Honor, and that I had changed the date this morning.”

There was no attempt on his part to conceal anything.

Now, what had happened, as it comes out in the later colloquy, was that Mr. Caner had shown him during the interval a statement that he had given to the FBI and had asked him whether this refreshed his recollection as to the date, and the witness had said, yes, he must have been wrong on the stand yesterday.

At this stage, the judge put an end to the trial.

He, first, rebuked the Assistant United States Attorney for speaking to a witness.

He exonerated him of any intention to do wrong, but charged him with highly improper conduct and he, then, said to the counsel for the defendants that he was prepared to respond to a motion.

At that stage, counsel for the defendants moved for a directed verdict.

I emphasize that this was on their motion and not on the judge's own initiative.

And, the judge called the jury back and explained, referring both to the ineptness of the witnesses and the misconduct as he sought of counsel, that the trial -- that he was putting an end to the trial and that he was directing them to return a verdict of acquittal.

Chief Justice Earl Warren: Mr. Solicitor General, I don't quite understand you when you say that this came of the initiation of the defendant and not the Court.

I thought you said the Court --

Mr. Cox: I didn't mean to use -- if I used the word “initiation,” it was an unfair slip of the tongue.

The Court indicated that it was prepared to take some action.

What I meant to emphasize was that the defendants did move for an acquittal.

Chief Justice Earl Warren: It's a rather natural response to a judge's suggestion of that kind.

Mr. Cox: A natural response but, sometimes, an attorney has the duty to disagree with the Court and, if the defendants here wanted this trial to go forward and thought it was to the advantage of their client, then it was certainly within their power and I would've thought entirely proper, indeed, their duty to have said “Your Honor, we want to be tried here and now.

We don't want --

Chief Justice Earl Warren: Don't want an acquittal?

Mr. Cox: Well --

Chief Justice Earl Warren: Don't they want an acquittal?

Mr. Cox: If they -- this would depend of course, if they thought it through, upon their speculation about the effects of the acquittal.

If they knew, as I hope to show the Court, that the order that was entered would simply be a usurpation of non-judicial power then, perhaps, they wouldn't have wanted it entered because this trial had, from their point of view, been going very well.

I do submit, Your Honor, but I think this is the nub of it, this is not simply a case where the judge has terminated the trial without the consent or over the objection or without any participation by the defendants.

It is a case where the defendant moved for the judge to take what we believe was a non-judicial function to enter a non-judicial order, one utterly beyond his power.

The case went from there to the Court of Appeals for the First Circuit on mandamus.

The Court of Appeals was unanimous in the view that the United States Attorney had engaged in no misconduct and, I take it, there's really no basis for any suggestion contrary to the Court's ruling on that point.

The Court was also unanimous that the order entered by the district judge was a nullity because it was beyond his power.

There was a difference between the judges in their reasoning.

Chief Judge Woodbury, speaking for the majority, said that the district judge would have had no power to enter this order of acquittal at this stage in the case, whether he did it because of some assumed inadequacy in the government's evidence or whether he did it because of the misconduct of counsel.

Judge Aldrich agreed that there was no power to direct a verdict of acquittal because of the misconduct of counsel but he thought that there would've been power if it had been done because of inadequacies in the evidence.

This forced him naturally to consider what was the reason which the judge -- for which the judge acted.

He concluded that it was not done because of inadequacies of the evidence, that it was done simply because counsel had engaged in what the judge thought to be misconduct and he concluded that the order was a nullity because the judge has no power to direct a verdict of acquittal for that reason.

As I said a moment ago, we think the court below was undeniably right in holding that the Assistant United States Attorney was not guilty of misconduct and that the criticism of the district judge was an extraordinary aberration.

I'm certain, too, that after studying the record, this Court will agree that the Court of Appeals was correct in saying that any deficiencies in the prosecution's case were largely the result of the confusion created by the district judge.

Whether the district judge was right or wrong in these respects, however, it seems to me to be largely immaterial at this stage in the case.

For our case necessarily shows, necessarily depends upon showing, not merely that he was wrong but that, even if he were right, he would've had no power under these circumstances to direct the verdict of acquittal.

But, I'm speaking of a lack of power in the very stricter sense just as the Court has no power to forbid a grand jury to consider a particular offense or no power to refuse to issue a Bench warrant after the grand jury has returned a valid indictment.

So, here, we submit that the district judge had no power to enter this order of acquittal.

To illustrate the point, I refer back to the illustration I used toward the opening of my argument as a judge -- to the case of the judge who had no power to return a finding of guilty because he had not heard testimony.

The petitioners here assert that the power of a trial judge to acquit defendants who are properly before him is absolute.

Much of their case and, as I -- indeed, as I understood Mr. Richenthal, depend -- indeed, all their cases, as I understood Mr. Richenthal, depends upon this proposition which we think both reason and authority show to be in defensive.

We deny that a District Court has any such absolute power.

In the first place, the proposition advanced by the petitioners is inconsistent with the fundamental constitutional division of functions between the Executive and Judicial Branches.

The Judicial Branch has no power to determine what crimes shall be investigated or what indictments shall be tried.

Where prosecution upon an information is permissible, that's the responsibility of the United States Attorney.

Where prosecution must be by indictment, it is up to the United States Attorney to determine what crimes to call to the attention of the grand jury or the grand jury may conduct an investigation of its own.

But, in either event, it's none of the concern of the District Court, or of any other court.

For the Court to interfere in any of those cases would be a plain usurpation of non-judicial power.

Similarly, a judge cannot nolle pros an indictment or, as I've mentioned earlier, refuse to issue a Bench warrant.

The judge who refuses to permit a trial in the prosecution's evidence, we say, exceeds the judicial function just as much as, if after the case were in, he were to try to issue a pardon and his order is equally void.

That fundamental division of power has been fully recognized, I think, in the decisions of this Court.

For example, in Ex parte United States, in 242 United States, the question was whether a District Court had the power to suspend sentence, the inherent power, because the case arose before the statutes conferred that power in the Court.

The decision upon mandamus was that the attempted exercise of such power was void.

In the course of the reasoning by Chief Justice White, he expressed this fundamental division to which I've been trying to call attention.

He said “if it be that the plain legislative command fixing a specific punishment for crime is subject to be permanently set aside by an implied judicial power upon considerations extraneous to the legality of the conviction, it would seem necessarily to follow that it could likewise be implied a discretionary authority to permanently refuse to try a criminal charge because of the conclusion that a particular act made criminal by law ought not to be treated as criminal.

And, thus, it would come to past that the possession by the Judicial Department of the power to permanently refuse to enforce a law would result in the destruction of conceded powers of other departments and, hence, leave no law to be enforced.

So, he suggested the exercise that this power to decide what crime should be prosecuted simply did not belong to the Judicial Branch.

The same point came before the Court, a number of years later, in Ex parte United States, in 287 United States, where a district judge had refused to issue a Bench warrant after the grand jury had returned a valid indictment and, thus, refused to bring the defendant to the Bar for trial and the Court held, again on mandamus, that that was an abuse by the district judge.

That it had no discretion to refuse to issue a Bench warrant because it would have no discretion to bar a trial.

Thus, again indicating what the proper division of functions is.

I think the case could be tested by an example which is not in the books, it seems to me, to follow from those precedence, just like today.

Suppose that, as soon as the jury were empanelled in a criminal case, the judge should say, “I don't think this man should be prosecuted.

He's lived a reputable life.

I doubt very much that he is guilty of crime.

I, therefore, direct a verdict of acquittal.”

We submit that this simply would be a nullity.

The judge has no discretion to determine who should be tried and that the obvious flaw in that situation, the obvious excess of judicial power in that situation fully demonstrates that the petitioner's propositions are quite wrong in saying that anything called “an acquittal” is within the judge's power and puts an absolute end to any possibility of prosecution, except for the label which, surely, is not decisive.

There's no difference between attempting to acquit a defendant before there's been any trial and refusing to issue a Bench warrant or refusing to let the grand jury return an indictment or entering a nolle pros over the objection of the United States Attorney.

Justice John M. Harlan: What you're arguing is that there's no power --

Mr. Cox: Yes, sir.

Justice John M. Harlan: To direct a d -- direct an acquittal until all the government's evidence is in?

Mr. Cox: Not quite.

My proposition is that there is no power to direct a verdict of acquittal until the Court has granted the government a hearing.

Now, we -- I direct myself to the point raised by your question.

We do recognize, of course, that it is part of the trial judge's function to determine whether the evidence is sufficient to go to the jury and that the Court may direct an acquittal, that it has power to direct an acquittal at that stage no matter how misguided its judgment of the evidence may be.

What we do say, Mr. Justice Harlan, is that the judge has power to acquit a defendant after he has heard the evidence, after he has granted a hearing.

Even so, his order is erroneous, but that there's a fundamental distinction between passing judgment upon sufficiency of the evidence after a hearing, and simply saying at the beginning “I won't let this case go forward.”

The one is a judicial function, the other isn't.

Justice Potter Stewart: Now, what -- you mean, here, after a hearing of the evidence--

Mr. Cox: What do I mean by a hearing?

Justice Potter Stewart: Or after the hearing of argument, which?

Mr. Cox: I mean after learning what the government's case is.

Justice Potter Stewart: Because it's not --

Mr. Cox: Normally, that would come, after hearing the government's evidence but I do not assert that that is the only time at which a verdict of acquittal may be entered.

Justice Potter Stewart: It's not unheard of, is it, to have a directed verdict of acquittal--

Mr. Cox: No.

Justice Potter Stewart: After the government's opening statement?

Mr. Cox: I was just going to say that there are a number of other points at which the power to direct an acquittal arises.

For example, the power to direct an acquittal because of a defect in the indictment which is unquestionably within the power of a district judge, it was the Wiseman case.

Even so, he shouldn't do it.

He -- still, he has the power to do it and it is done.

That may, of course, be done at any stage of the case.

Again, if the prosecution has made an opening statement which reveals what the testimony is and the judge says, “Well, all you propose to prove still wouldn't be a crime,” then, an acquittal may be entered.

Again, I think that, partway through the course of the case, the fundamental defect in the government's case may appear.

Let me suppose, for example, a prosecution for transmitting a stolen automobile across state lines, a violation of the Dyer Act.

Let us suppose that the -- in its opening statement, the United States Attorney said, “I'm, first, going to prove that this automobile was stolen and then, second, I'm going to prove how it was transported across state lines.”

And, he calls a witness to testify that the automobile was stolen and the witness ends up with a self-contradictory evasive statement that maybe he gave to the defendant, and that's all that there is.

And, the judge says, “Well, that's the best you could do on this critical issue.

There's no point in our sitting here and trying whether it was taken across state lines.”

But, the government had been given its chance to go forward on that aspect of the case and it failed.

Now, still, an additional illustration would be if a fundamental -- if some indisputable defense appeared in the course of the government's testimony.

At that stage, my point is that the judge must learn what the government can do and, if he doesn't learn what the government can do, then he is not exercising judicial power because the whole notion of the trial presupposes that what will act upon the basis of information before it and not, if he attempts to do something else, he is exercising this discretionary power, which I think the citation show does not exist.

Now, in this case, the trial had gone on for several days, but the judge's action did not differ in any substantial respect from the entry of a verdict of acquittal immediately after the jury was empanelled and before the opening statement.

The judge had been told that the prosecution would divide its case into two parts and it would only just barely embark upon the essential part of the case.

Indeed, it seems to me that there can be no doubt that the jury could convict on whether the jury understood the witnesses about radiosondes or not or about these tests or not.

After all, if there were a number of witnesses who described this conspiracy and fixed the date, it wouldn't matter whether they understood the test, as long as they knew there was a conspiracy to falsify the test.

The witnesses on the conspiracy had simply not been heard with the exception of the testimony that Rosenholm had given.

Here, again I think that, as a matter of fact, the careful opinion in the Circuit Court of Appeals describes the situation very well.

The district judge, Judge Woodbury, said sharply termi -- abruptly terminated the government's case long before the government had an opportunity to show whether or not it had a case and, moreover, he did so in ignorance of either the exact nature or cogency of the specific evidence of guilt, which government's counsel said he had available and was ready to present.

We think it follows, therefore, that the order cannot possibly be sustained as an exercise of the power to acquit for insufficiency of evidence.

The Court lacked the power because it had not heard or even learned about the evidence and this depends, I emphasize again, not upon the chronological point of the trial or any mechanical measure but on whether the government has been given the substance of a hearing, either through the opportunity to paraphrase what the witnesses would say or through the opportunity to put the witnesses on the stand.

The alternative question, which is necessary for me to consider, is whether there is power to acquit because of a misconduct of the prosecutor.

I'll cover that very quickly.

A district judge has a wide variety of measures with which to deal with misconduct, may censure the attorney or take disciplinary action against him if it finds that the misconduct has somehow influenced the -- unfairly influenced the trial.

Of course, it may declare a mistrial.

If it finds that the government's conduct is so unfair that a fair trial could not be held in the district in the future, then, no doubt, it has authority to dismiss the indictment.

But, it has no power -- no more power to punish the prosecutors, I submit, by acquitting the defendant than there is to punish the defendant's lawyers by convicting the defendant.

As was stated in McGuire against the United States, a criminal prosecution is more than a game in which the government may be checkmated and the game lost merely because the officers have not played according to rule.

And, we conclude here that judge had done either possible basis, the order was a nullity.

Chief Justice Earl Warren: Mr. Solicitor General, would it make any difference to you if they had heard -- if the judge had heard all the evidence, whether the majority below was correct in its interpretation of his action or whether to set --

Mr. Cox: If the judge had heard --

Chief Justice Earl Warren: The judgment is correct.

Mr. Cox: All the evidence, then I think that it would be implicit that he had acted on the evidence, that he had found the government didn't have a case and, no matter how outrageous the decision that the government didn't have a case might be, that we would be bound by it, that he would have granted us a hearing, that he would have exercised the judicial power of attempting to decide the sufficiency of the evidence.

No matter how wrong he was, he would've exercised a judicial function and the acquittal would be binding.

We could not obtain mandamus.

There could not be a second trial.

Chief Justice Earl Warren: Even though he had said specifically that “I am granting this motion to acquit solely --

Mr. Cox: Solely --

Chief Justice Earl Warren: -- solely because I believe that he's been-- the defendant has been treated unfairly by the prosecution and I wouldn't ask any jury to convict the man in those circumstances.

Therefore, I grant an acquittal.”

Would that stand?

Mr. Cox: Well, that's about the hardest case, I think, Your Honor.

It isn't our case, I suggest.

The difficulty I have with it is that, frankly, I am troubled about saying that the Appellate Court, on mandamus, may inquire into the motivation of the judge at that stage in the trial in attempt to disentangle the possible reasons he might have given.

Now, in the case you've posed, the fact is acknowledged and I think I would say that if he purpo -- that if he announces that he is exercising this non-existent power, then the stage to which the trial has progressed makes no difference, but I don't think I have to argue here and, candidly, I would be very reluctant to argue that, in a case where the assertion of non-existent power wasn't acknowledged by the judge, wasn't manifest, that we had the right to inquire into it.

I don't believe we do.

As I say, certainly, I don't have to argue any such case here.

Chief Justice Earl Warren: Which view do you take of the evidence in view that the majority took -- the majority took the view that the Judge Aldrich took?

Mr. Cox: Well, I would've agreed with Judge -- first, I think that Judge Aldrich is right in attributing -- in saying that the judge directed the verdict because of his belief that the prosecutor had engaged in misconduct.

He hadn't, but I think that's why the judge acted.

Second, I would agree with Judge Woodbury that if the judge did act because he thought the evidence was insufficient, that still he went beyond his power because he didn't -- he hadn't heard the evidence in order to judge whether it was insufficient.

So that, I agree with Judge Aldrich up to a point in his analysis in the judge's action, but I say that we don't need to go into that question because I don't think the judge had the power in either event.

Justice Felix Frankfurter: But, if one reads the record so as to attribute direction of acquittal to the state of -- state of the record, then it does become important to decide whether, in fact, the direction was attributable to his notion of misconduct by the Assistant U.S. Attorney or whether his notion of the misconduct of the Assistant District Attorney was the final -- was the straw that broke the camel's back.

Mr. Cox: I'm afraid I don't quite understand, Your Honor, because if he --

Justice Felix Frankfurter: If it's the latter -- if that was the final thing that made Judge Wyzanski act and all the prior incidents were part of it, then you have a customary thing, a cumulated causation in which you cannot attribute the termination of the trial exclusive to what he has no business to do --

Mr. Cox: Yes --

Justice Felix Frankfurter: Punish the government --

Mr. Cox: But --

Justice Felix Frankfurter: Because of the misconduct of its officer.

Mr. Cox: The point I was trying to suggest to the Court was that it was necessary to give to engage in any disentangling if neither ground would be a sufficient ground for the acquittal.

Justice Felix Frankfurter: Yes, but if one takes Judge Aldrich's position, then it is important.

Mr. Cox: The only point on which I agree with Judge Aldrich is on the decision of the point which I assert is unimportant, but I wanted to give the Chief Justice my analysis of that question.

Justice Felix Frankfurter: I think we have crossed that, Mr. Solicitor.

Judge Aldrich goes on the ground that the termination, the direction of acquittal, was due to Judge Wyzanski's interpretation of the misconduct of the U.S. Attorney, rather, his assistant.

Now, if you say that that was nearly the last clear chance that he gave the situation but, entering into his judgment of his view of the whole cause of proceeding, then you do have to face --

Mr. Cox: Well, I can --

Justice Felix Frankfurter: Face the position taken by Chief Judge Woodbury, namely, either -- your position, either on an a fortiori vote.

Mr. Cox: I think we're in complete agreement but, somehow, we started around the circle at a different point, but I don't disagree with anything Your Honor has said.

Justice Felix Frankfurter: Well, therefore, my next question is --

Mr. Cox: If I understand it.

Justice Felix Frankfurter: My next question is, can you really, on this record, isolate the last item of a transaction, namely his feeling that the Assistant U.S. Attorney was guilty of misconduct and, therefore, he's going to put an end to it.

Mr. Cox: Well, I'm not --

Justice Felix Frankfurter: Can you isolate that as the abuse -- not abusive, but exercise of non-power?

Mr. Cox: But, I'm not asking the Court to isolate it.

I am saying --

Justice Felix Frankfurter: But, if we -- if one takes that view, as one might under a Court, then we must.

Mr. Cox: Well, then, I would say -- you mean, can one take the position that Judge Aldrich took, logically.

Justice Felix Frankfurter: Well --

Mr. Cox: Isn't that what it comes to?

Justice Felix Frankfurter: “Can” is a big word.

Is it fairly --

Mr. Cox: Well, I could --

Justice Felix Frankfurter: -- directed?

Mr. Cox: Is it proper to?

Justice Felix Frankfurter: Is that what the record, sustained?

Mr. Cox: Well, this is a very hard question and I think pro -- well, I don't like to say that Judge Aldrich was wrong and would ask the Court to consider the point.

I think my case really depends on saying that, whatever was the motivation of these two possible motivations, they're not -- the judge did not have the power.

Justice Felix Frankfurter: It's a little too refined an analysis to rest on the truth that Judge Aldrich declined.

Mr. Cox: It seems from his statement that this was a cumulative thing.

It was a highly unfortunate thing and it apparently been building up for a number of days.

So that, this was triggered, as Mr. Richenthal said.

Justice John M. Harlan: If you didn't --

Mr. Cox: Not -- excuse me.

Justice John M. Harlan: If you didn't have the district attorney's alleged misconduct in this case, nothing of that kind, you'd still be defending this judgment in the Court of Appeals?

Mr. Cox: Well, I think, first, Your Honor, that if there had not been a number of, from our standpoint, provocations -- provocation is the wrong word.

If there had not been -- the trial hadn't been handled as it was with reference to the United States Attorney, I suspect I was not in office at the time, that the government would've said, “Well, this is one of these things.

We can't let it go.”

As a matter of Appellate law, I would think that our case was exactly the same and we would be defending it, yes, but --

Justice Charles E. Whittaker: Mr. Solicitor General, in the matter of the provocations --

Mr. Cox: I don't really mean all the connotation is that word.

It was the first one that came to my mind, but I think you know what I mean.

The reasons we acted, the motives.

Justice Charles E. Whittaker: In any event, whatever the proper term, they were, utmost, mere error, weren't they?

Mr. Cox: Yes.

I -- as I tried to say at the outset, I think in all candor that I have to say that even if the judge was right, even if the United States Attorney was guilty of misconduct, and even if the witnesses were, up to this point, were as bad as the judge said they were, that still he had no power to do this because if he was merely wrong, mandamus wouldn't be a proper remedy and --

Justice Charles E. Whittaker: Or if the judge's interrogations and his method of interrogating had provoked the uncertainty in the witness' testimony, that's still mere error, isn't it?

Mr. Cox: That would still be mere error but, because what we say essentially here is, one, a district judge has no power to acquit without a hearing.

What we're pleading for essentially here, as I said at the outset, is the right of the prosecution to be heard.

Now, when I say the prosecution, I don't mean the prosecutors or even the government as an abstraction.

It's the right of the interest that are secured by the enforcement of criminal law, the interest of public in the security of properties, security of persons, security of transactions.

It's their right to be heard and not to be cut off before they have had a hearing.

Justice Charles E. Whittaker: May I ask you this.

Suppose, after this testimony of these witnesses had been heard, Court was impressed that they were incredible and did not constitute a responsible basis upon which to build and he, therefore, made up his mind that whatever else happen, the judgment -- he couldn't submit the case and he, in effect, said or expressly said, “Whatever else you offer will be irrelevant,” and then perforce the ruling the prosecution was required to suspend and he -- the Court directed verdict of acquittal.

Would that be good?

Mr. Cox: I -- there was one point which I wasn't quite sure I understood.

Now, the judge makes this statement --

Justice Charles E. Whittaker: After this evidence is in, the Court says, “Whatever else happens will be irrelevant.”

Mr. Cox: Yes.

And, the prosecution then --

Justice Charles E. Whittaker: How -- cannot put on any more evidence.

Mr. Cox: Well, has he refused to allow it to put on --

Justice Charles E. Whittaker: No, he said it will be irrelevant because of what's already happened and, in effect, that means, “Whatever else you offer --

Mr. Cox: I'll exclude.

Justice Charles E. Whittaker: Well, I'll exclude.”

Mr. Cox: I presume that a judge has the power to -- the power to exclude individual bits of evidence.

I would doubt that he had the power before he heard it or learned what it was, to say, “I won't receive any evidence” because that would be, in substance, the very same case as if he directed an acquittal.

But, I think he could've done this.

I think that, as the prosecutor called each witness, if the defendant objected, the judge would have power to rule on the objection and no matter how wrong he was, provided he was purporting to rule on the admissibility of evidence that, then, we could not challenge the upshot of the trial.

The point is this -- this leads to the conclusion that there are ways in which a judge who is determined to prevent conviction could do it.

He could, the case that occurred to me, Justice Whittaker, would be the judge, when he reached this point of the trial, simply turned off his ear -- hearing aid.

He doesn't tell anyone this and that at the end of the trial, he says, “I don't think there's enough evidence to go to the jury.”

I suppose that that order would stand.

The protection in that, I think, is this, that if the judge directs his find to the admissibility of the evidence, in terms of admissibility, that that itself is a good deal of protection.

I can't imagine the district judge in this case, no matter how annoyed he was at the government and no matter how great this momentary aberration, I cannot imagine this district judge having excluded a palpably admissible evidence.

It's just a protection in itself if he has to before direct his find to the issue.

Now, if he's stubborn enough or benignant enough, of course he could accomplish the same result, but I think we get to -- the public gets the benefit of that protection.

Justice Felix Frankfurter: Mr. Solicitor.

Mr. Cox: Excuse me.

Justice Felix Frankfurter: I need enlightenment on one point.

You say it's immaterial whether the judge is right or wrong in thinking the Assistant U.S. Attorney was guilty of misconduct.

Mr. Cox: Yes.

Justice Felix Frankfurter: And, why, you say that because the judge's interpretation of the conduct of the Assistant U.S. Attorney was that the prosecution was, to use the colloquialism, was doctoring the evidence.

And, he was exercising a judgment of the effect on getting those, being able to accord a fair trial to a defendant where the prosecution, himself, infuses some poison into the testimony.

Mr. Cox: I think that there are two answers to that, Mr. Justice Frankfurter.

In the first place, I think that the judge never directed his mind to the question whether there could be a fair trial sometime in the future here and that, therefore, assuming for the moment that he would've had power to prevent the case being tried in the future if he found that there could never be a fair trial because of the prosecution's misconduct.

Here, I think he never put his mind on it.

Justice Felix Frankfurter: What judge was that -- how do you know?

He's a very rapid -- his cerebration is very rapid.

Mr. Cox: Well, I don't know, except that there is certainly not the slightest indication of it in the record and this is not the kind of conduct which, if it had been wrong, would've been thought to make a fair judgment.

Justice Felix Frankfurter: But the judge doesn't lay there his intellectual suggestion.

Mr. Cox: Not always, certainly, sir.

Second, if I might just give one other -- second, I would say that, even under those circumstances, there is no power to enter a verdict of acquittal.

An acquittal is a finding on the evidence or on the opening statement which takes place as evidence.

Justice Hugo L. Black: I think I want to ask you this.

In Ex parte United States, 242, which you refer to --

Mr. Cox: Yes.

Justice Hugo L. Black: Related to the absence of power of a judge to suspend the sentence.

Mr. Cox: Yes.

Justice Hugo L. Black: In that case, the Chief Justice relied very largely on the laws of the state on that point.

I have not found by either.

You refer to the laws of the states on this point as to the power of a judge to dispose of a case this way so that it will be biased.

Mr. Cox: Well, I think the --

Justice Hugo L. Black: Could you look into that?

Mr. Cox: The matter has been researched by the department and, I take it, by counsel for the defendant and there simply appears to have been no case remotely like this, except the case of Regina against Middlesex Justices.

But, there, I'm convinced that when Your Honors read that opinion that you will find that Lord Godard was criticizing the way the Register had appraised the full depositions from the prosecution witnesses that he had learned entirely what the case was, that he knew all the evidence that the prosecution was going to put in, and he said it doesn't make the case.

Well, if that had been done here, I think that we would be out of Court.

Justice Hugo L. Black: You mean you find no cases in the state?

I'm surprised at this because I know from personal experience of many years in which judges have, as they said, taken the bit in their mouth and direct an acquittal just instantly, maybe when the first witness is on.

Mr. Cox: It was my understanding that no reported decision like --

Justice Hugo L. Black: That might be because it has not been to protect you.

Mr. Cox: I couldn't deny the possibility.

It would seem to me wholly at war, Your Honor, with the basic not -- two basic notions.

One, the notion that, at least in the Federal Courts, this isn't always true in the states, that the judge has no power to decide what cases shall be prosecuted.

Some -- in some states, he does and the answer would, there, be different, but he has no such power in the Federal Court.

Second, such action would be wholly at odds with the notion of a trial.

If you aren't allowed to tell which the case is, you aren't getting a trial and I suggest --

Justice Hugo L. Black: Well, when we agree as to that, I recall during the prohibition case, there are many cases where the governor was not allowed to get very far for the judge could direct a verdict.

It was just a, frankly, from my own observation in some places, a common experience.

And, I had -- I do not recall myself that it had ever been challenged.

Mr. Cox: Well, it would seem --

Justice Hugo L. Black: Alabama.

Mr. Cox: It would seem to me that, under Ex parte United States, both the case in 242, to which you referred, and the one in 247 that such action could be challenged.

Justice Hugo L. Black: Well, the general rule -- the general idea was, in what might be a very arbitrary action on the part of the judge, nevertheless, under the Doctrine of Former Jeopardy, the government had no relief.

Mr. Cox: Well, on that point, if I -- might I take just a minute to answer Justice Black on this point?

With respect to the defense of former jeopardy, Mr. Justice Black, I very briefly would say this.

In the first place, our Courts and, as Your Honor knows, from -- we'll recall from Wade and Hunter, in opinions by yourself, have rejected the notion that this is simply to be a mechanical counting of the number of times the defendant has been put before a jury.

And, there are many instances where some extraordinary event prevents a fair judgment of guilt or innocence, but that the defendant may be put on trial a second time.

Those extraordinary events may be the death of the judge or the illness or death of a juror, the inability of the jury to agree, the fortunes of war.

Now, our case here really boils down to say that the assumption of this non-judicial power, or the attempt to exercise this non-judicial power on the part of the presiding judge, should be treated in the same way as other extraordinary non-judicial events such as the necessity of terminating a court-martial because of the fortunes of war or terminating a trial because of the illness of the judge or the illness of a juror.

I could elaborate that at more length but I think that's essentially what the point comes down to.

Justice Hugo L. Black: Is there anything in those cases to indicate that the rule would have been announced the same had the action of the Court been to direct an acquittal, rather than --

Mr. Cox: No, there is no --

Justice Hugo L. Black: To direct a mistrial?

Mr. Cox: There is certainly no intimation.

I would simply say that Your Honor puts undue emphasis upon the label “acquittal.”

The judge didn't acquit here.

He may have called it an acquittal, but this wasn't an acquittal because, one, he has no power simply to acquit because he thinks the prosecution shouldn't go forward.

It wasn't an acquittal, two, because there had been no trial.

And, we say that this -- the label “acquittal” has no legal effect.

One must look and see what was done.

Chief Justice Earl Warren: Well --

Mr. Cox: Excuse me.

Chief Justice Earl Warren: If it had been a dismissal, he would've done it himself, wouldn't he?

Here, he directed the jury to --

Mr. Cox: But, if it had been --

Chief Justice Earl Warren: Exercise his power.

Mr. Cox: A dismissal, of course, it would not be a necessary -- a dismissal would not necessarily bar further prosecution.

Chief Justice Earl Warren: No, that's true, but you're talking about --

Mr. Cox: He could've declared a mistrial here.

Chief Justice Earl Warren: You're talking about labels here.

You say it doesn't make any difference that he called it an acquittal.

It's, in effect, just a dismissal.

Mr. Cox: Well, we think it was, in effect, a nullity.

That it was nothing and that, therefore, there is still an indictment waiting to be tried and mandamus is the normal and proper remedy for requiring a Court to proceed to trial when it's failing to perform its duties.

Justice Charles E. Whittaker: (Inaudible)

Mr. Cox: We want the whole thing expunged.

Justice Charles E. Whittaker: (Inaudible)

Mr. Cox: Yes.

Well, that would be true if it had been a mistrial.

Justice Charles E. Whittaker: (Inaudible)

Mr. Cox: Had -- he was doing his best to keep us from trying it again.

I wouldn't deny that.

Justice Charles E. Whittaker: (Inaudible)

Mr. Cox: And we sub -- that's what -- we submit that words aren't that controlling.

Chief Justice Earl Warren: Mr. Richenthal.

Rebuttal of Arthur Richenthal

Mr. Arthur Richenthal: First, in un -- in answer to Mr. Justice Black's question about state authorities, the Solicitor General's Office may not have unearthed any but I'm pleased that our office did.

And, I call your attention to pages 54 and 55 of our brief where we set forth many cases in double jury -- in double jeopardy jurisdictions which have ruled on this question and I would like to --

Justice Hugo L. Black: Is that your main brief?

Mr. Arthur Richenthal: Yes, sir.

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: The --

Mr. Arthur Richenthal: The corporate brief.

Justice William J. Brennan: What page?

Mr. Arthur Richenthal: Page 54 and 55.

I particularly call the Court's attention to the reasoning of the Highest Court in the State of Kentucky which his completely applicable to the instant situation.

Under these circumstances, the situation was precisely the same, as if the trial judge had peremptorily instructed the jury to acquit the defendant after the evidence for the Commonwealth was in or at the conclusion of all the evidence, and in obedience to such instruction, he was acquitted and discharged.

Of course, in such a state of case, the judgment of acquittal would be a bar to another prosecution for the same offense.

The fact that this power places great authority in the hands of the circuit judges does not furnish sufficient reason to depart from the long-established rule of practice that such a proceeding is a bar to another prosecution for the same offense.

The circuit judges of the state are necessarily and properly invested with large power and discretion in directing the control and disposition of criminal cases and, if there should occasionally be a miscarriage of justice on account of an erroneous decision of the judge, an exceptional mistake like this should not be allowed to overturn a firmly set of principles in the administration of the criminal law.

Justice Felix Frankfurter: But what you've read only bears not what the Solicitor General said.

I don't think it makes much different, but what you've read from the Kentucky case is to acquit the defendant after evidence for the Commonwealth was in and the whole case of the government is that it's evidence for the Commonwealth to which the United States wasn't allowed to be in.

Mr. Arthur Richenthal: I submit, if the Court goes into the facts, you will find that it's pretty close in point.

They called off a directed verdict of acquittal, as I recall.

Justice Felix Frankfurter: I don't any more accept --

Mr. Arthur Richenthal: Because the prosecutor witnesses were not present.

They never even went to trial on the issue.

Justice Felix Frankfurter: Well, I don't any more accept this, the weight you attach to this quotation, which looks all the other way.

Mr. Arthur Richenthal: All I do is --

Justice William J. Brennan: (Inaudible)

Mr. Arthur Richenthal: That's correct.

Justice William J. Brennan: (Inaudible)

Mr. Arthur Richenthal: Directed --

Justice William J. Brennan: (Inaudible)

Mr. Arthur Richenthal: You're correct, Mr. Justice.

Justice Felix Frankfurter: If that's the common place being about deciding whether continuance should be granted, the government can't go on, it hasn't got its witnesses, the Court said that's too bad, that's your lookout and, if you can't go on, on what we've got now, there's no choice for me but to direct an acquittal.

Mr. Arthur Richenthal: Mr. Justice --

Justice Felix Frankfurter: I don't think it's worthwhile taking your time.

All I'm saying is the problem you make looks in the other direction.

Mr. Arthur Richenthal: I agree.

Justice Hugo L. Black: Well, did you find any --

Mr. Arthur Richenthal: The only issue I want to make is the ju -- the government tries to make an acquittal, a certification of guilt or innocence and there are many instances in our system where it is not a certification of guilt or innocence, many in which this Court has passed upon and many high state courts, in addition to that.

And, it is nothing contrary to our system not to have a complete certification.

Justice Felix Frankfurter: I should think both you and the Solicitor General would say that you didn't find any because, happily, this is rather a unique occurrence.

Mr. Arthur Richenthal: It is unique occurrence --

Justice Hugo L. Black: Well, it is of some relevance to me and, therefore, did you find any case in any state where they had permitted a second trial after a judge -- after the case had come on the trial, not been completed, and the judge took the bit in his mouth and directed an acquittal?

Did you find any case where they had allowed him to be tried again?

Mr. Arthur Richenthal: Here, the Solicitor General and we are in agreement.

There is no such case.

Justice Hugo L. Black: Has Connecticut passed on?

Mr. Arthur Richenthal: Connecticut is not a double jeopardy state, sir.

Justice Hugo L. Black: I understand.

Mr. Arthur Richenthal: No, it has not.

Justice Hugo L. Black: That's the reason I asked the question, if they had passed on an acquittal.

Mr. Arthur Richenthal: They have not, to my knowledge, sir.

Mr. Justice Frankfurter, in answer to your last comment about unique situations, I think I learned under you that these unique situations had cause bad law.

May I --

Justice Hugo L. Black: I may say that it may be unique in the time lo -- time -- years that I've practiced, it was not unknown.

Mr. Arthur Richenthal: We agree with that position, sir, and it was taken as a matter of course and that is the reason why there is lack of authority.

And, I think the reason why the issue is here today is the use of mandamus to raise the question when, admittedly, it could not be raised under the Criminal Appeals Act in a form of bootstraps argument, in effect, by using the Aldrich statute which never gave him the power to take this question up and there is no inherent right of appeal in this case.

Justice Felix Frankfurter: Well, there are two aspects of this mandamus problem.

If the government is right, if this was a lawless behavior and the consequence of the lawless behavior was a nullity, was a judicial nullity, was a legal nullity, then, certainly, mandamus would be an appropriate remedy.

The other aspect of it is, if there's doubt about it, should mandamus be invoked?

But, if the government is right, certainly, if there is a nullity and the record, he is acquitted of the law.

And, the government goes in and says he shouldn't be acquitted of the law but he should be tried again and, in order to accomplish that conclusion, except by mandamus, just as Ex parte United States was by way of mandamus.

Mr. Arthur Richenthal: I do want --

Justice Felix Frankfurter: The mandamus question turns on the substantive merits of the case.

Mr. Arthur Richenthal: To some extent, it does, Your Honor.

I want to make this distinction.

The cases which the Solicitor General cited on issuing a bench warrant or enforcing a statutory sentence are compelling a judge to perform an act which he is supposed to perform.

They do not involve the issue in this case where the judge has started the commencement of a hearing and has a power to proceed.

The Solicitor General directed himself to a division of powers argument between the executive and the judicial, and I would say that the argument is on the other foot.

It would appear to me that the Attorney General's Office is seeking to exercise judicial powers by stopping Judge Wyzanski from ent -- and any other District Court judge from entering a directed verdict of acquittal.

He made the determination that the prosecution's case was defective as a matter of law.

He didn't say that they should be prosecuted.

He didn't say they should be taken before a Court.

He directed the verdict which is a judicial act directly within his powers.

He did it for reasons which were based on the record.

He did it in good faith.

He believed it to be legally sufficient.

And, at that point, there should be no further examination of his action, particularly under the division of powers.

Now, the absurdity of the government's argument is directed to the question which was raised by the Bench.

If acquittal is given before the government rests, then the Court of Appeals can review the record and that involves all the analysis of the motives that went into the judge in making the decision.

If the acquittal is at the end of the government's case, it's final.

Now, this leaves open the whole area of the judge's right to exclude evidence.

It narrows his discretion in a way that's never been narrowed in the history of the Federal Judiciary.

It creates an arbitrary, an unsound rule.

Justice William J. Brennan: (Inaudible)

Mr. Arthur Richenthal: Well, this is our interpretation, Mr. Justice Brennan.

Justice Potter Stewart: It's not an answer to the question.

For me, he was very careful not to say that.

Mr. Arthur Richenthal: Well --

Justice Potter Stewart: He gave us a variety of different situations in which the Court might have the power to direct a verdict of acquittal short --

Mr. Arthur Richenthal: Or --

Justice Potter Stewart: Short of the complete presentation of the prosecution.

Mr. Arthur Richenthal: It is our understanding of the position taken in their brief that this is definitely their position and I don't know how, when you go behind all the language, you could find any other position in order to guide future Courts on this question.

In passing and in concluding, I should like to tell the Court that, as I listened to the learned Solicitor General's argument here today, I felt that this Court and we were faced with an argument not involving any defendants.

It's as though there was an issue between the government and the District Court judge.

Our system is key to dealing with the particular case and, in this case, we have defendants.

They were tried.

The government says they didn't have their day in Court.

We say they had eight days in Court.

The government says there was no hearing because the government's idea of the kind of evidence they should've listened to was not followed.

That, simply, is the government's position.

Now, the Solicitor General very fairly made a statement that the trial was going well for these defendants.

How, on that basis, can this acquittal be tortured into a mistrial and these defendants be sent back for another trial?

What then does the Fifth Amendment mean?

I respectfully submit that, on any one of three alternative grounds, that mandamus is not a proper way to review this issue which is barred by the Criminal Appeals Act.

That the District Court has inherent power, once the trial starts, to run that courtroom as he deems proper and that one of those powers is the direction of a verdict of acquittal.

It is one of the most important powers that he's got and it isn't for the prosecution to say “you can only do it when you listen to the amount of evidence that we want you to listen to or you sit here and make up your mind at the end of two witnesses and then turn off your hearing aid.”

That part is alright.

The government would raise that question.

And, if we take the statement that Mr. Caner made during the nolle pros discussion that only one -tenth of the case was in, we might need another 80 days before the judge could turn off -- turn that hearing aid back on again.

This is the absurdity to which this position leads us.

And, lastly and most importantly, we only urge it because, under the rules of statutory construction, this Court often prefers to decide on questions other than constitutional questions, we know of no stronger case where individual defendants are entitled to the bar of double jeopardy than in the instant case.

And, on all the applicable decisions of this Court, this writ of mandamus should be quashed and the order of the First Circuit reversed.

Thank you.