UNITED STATES v. JORN

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Argument of Louis F. Claiborne

Chief Justice Warren E. Burger: Number 84 United States against Jorn.

Mr. Claiborne, you may proceed whenever you're ready.

Mr. Louis F. Claiborne: Mr. Chief Justice and may it please the Court

This is a criminal tax case brought here by direct appeal from the United States District Court of the District of Utah.

I might say the outset that the United States brought the case here not because of the intrinsic importance of the case much less for the revenue involved but rather out of concern for the -- what seems to us only fairly characterized this judicial arbitrariness in this matter.

Having said that I want to be very careful and detailed in stating the facts of the case.

As I said, we're in the District of Utah before the Chief Judge, Judge Ritter.

Information is filed against a man who's charged with having prepared income tax returns for others and having done so in a way so as to make those returns false and fraudulent.

Specifically, he invented or grossly exaggerated deductions to which the taxpayers were not entitled.

The case was called for trial on a certain day in August 1968 at which time a jury was selected and sworn, this was in the morning.

In the afternoon, the United States attorney indicated that he wished to amend the 25-count information, reduce it down to 11 counts.

At that point, the Judge Ritter indicated that if there was some doubt about need for bringing what he called a two-bit case, perhaps the Government wanted more time to have some more time with result in the dismissal of the remaining counts.

I find out that this itself would have resulted in a mistrial.

The jury had and already been sworn if the Government had been allowed more time in which to consider whether it wish to dismiss this information.

The Government indicated that it was ready, the defense had no suggestion to make understandably and so the case proceeded.

The first witness was an internal revenue official who was called simply to identify the returns which were the subject of the charge.

It was immediately stipulated that these were authentic returns and the witness therefore all was immediately removed from the stand.

Thereupon, the first real witness was called by the prosecution who was one of the taxpayers, that is one of those for whom a return had been prepared by the defendant Mr. Jorn.

As soon as the taxpayer took the stand, defense counsel, and this appears at page 40 of the very short record in this case.

Mr. Morrill, defense counsel addresses the Court as follows, “In view of the transcript in the preliminary hearing in this matter, it is my feeling that each of these taxpayers should be warned as to his constitutional rights before testifying because I feel there is a possibility of the violation of the law.”

The judge responded, “Well we wouldn't want anybody to talk himself into a federal penitentiary here, so what the Court has to say to you is this.”

And I would not read the following two pages in which the judge quite clearly, emphatically, in the strongest possible terms, advices the prospective witnesses of their right not to testify for fear of incriminating themselves of their right to have a lawyer, of their right to have a lawyer appointed for them even though they are not criminal defendants before they testify and then he addresses the witness and says, this in now on page 41, “Well what do you want to do?”

The witness responds, “Your Honor, my wife and I have had it pointed out to us that our returns have information in them that we know is wrong and we have admitted this and I would admit it further in this Court.

The judge responds, “Have you talked to a lawyer?”

Witness says, “No sir.”

The court says, “I am not going to let you admitted any further in this Court, that is all there is about that.

The admissions you've already made were very likely obtained from you without telling you what your constitutional rights are.”

The witness says, “No sir.”

The court says, “What is that?”

The witness says, “We were advised at the time we were first contacted by the internal revenue service.”

The judge responds, “If you were, you are the only taxpayer in the United States that has been so advised because they do not do that when they first contact you.”

And the judge then explains his version of how a revenue service goes about incriminating prospective defense.

The judge addresses --

Chief Justice Warren E. Burger: May I ask, Mr. Claiborne, were other potential witnesses present in the courtroom at this time?

Mr. Louis F. Claiborne: No Mr. Chief Justice, there had been a separation of witnesses the other of respective taxpayers had been excluded.

They later were returned to the courtroom and addressed by the judge with respect to their rights also but by that time the judge had already indicated his disposition to avoid the trial.

The judge excuses the witness at this point, turns to the US attorney and says “Are all your witnesses in this shape?”

The US attorney replies, “Your Honor, by the time any of these witnesses were contacted, there was a criminal investigation, not of the witnesses but of the defendant.

It is true that the Internal Revenue Service does not require this warning until after first meeting with a special agent.

But it is the practice in this office, they do give this warning, it is not required but they do.”

The judge then expresses some doubt as to whether the warning could have been sufficient.

There is more colloquy between the Court and the United States attorney.

We're now on page 43.

The judge once again expresses his view that this case never should have been brought because of the trivial amounts involved.

Justice Hugo L. Black: How much was involved?

Mr. Louis F. Claiborne: They were originally Mr. Justice Black 25 counts showing exaggerated or invented deductions in amounts ranging from, I think, for each taxpayer, totals somewhere between two and three, or $400.

Eventually, 14 of those counts were removed but for all we know Mr. Jorn had been involved in this occupation for some time and was expectedly to have much larger number of taxpayers.

Justice Potter Stewart: Was Mr. Jorn a professional tax adviser or consultant?

Mr. Louis F. Claiborne: It appears from colloquy at the beginning of the trial between the judge, and I think, defense counsel that Mr. Jorn was not a professional accountant.

That he at this point was no longer in this tax service but that he had some accounting training and judging from this particular information which recites several tax years with respect to each of the taxpayers, he had been engaged in it at least for three years because we have three different years for several of the taxpayers.

We just don't know how large an operation it was, it does appear that the taxpayers involved were of modest income.

On page 43 of the record, the Court finally ends the colloquies with the statement.

Well, I will tell you what is going to happen in this case.

Ladies and gentlemen, it won't be necessary for you to attend the court any further on this matter at this point, with this charges jury.

The judge then requires all the taxpayers including the witnesses who had been excluded under the rule to return to the courtroom.

We're now on page 44 of the record and he once again and for the better part of three pages advises them with respect to their right to remain silent, their right not to testify, his decision not to allow the trial to proceed until such time that he personally has had a further opportunity to suggest to them the unwisdom of putting themselves in danger of self-incrimination.

And finally the judge says, “So, this case is vacated, setting is vacated this afternoon and it will be calendared again.

And before it is calendared again I am going to have this witnesses in and talk to them before, I will talk to them again before I will permit them to testify.”

Justice Potter Stewart: Who's Mr. Wedsol.

Mr. Louis F. Claiborne: Mr. Wedsol is the Assistant United States Attorney Mr. Justice Stewart.

Justice Potter Stewart: Thank you.

Mr. Louis F. Claiborne: Serving a case for the Government.

On basis of the facts I've just recited, it seems to our certain propositions of not subject to controversy.

The first is, that the Government here, the United States attorney was in no way at fault, no way guilty of misconduct, in no way responsible for the ending, premature ending of this trial or for declaration of a mistrial.

It is also true that no conduct of defense made this course inevitable.

However, as I pointed out in the statement of facts, it was at the instance of defense counsel that the judge proceeded to interrogate the witnesses and ultimately to declare a mistrial.

It was the suggestion of defense counsel that provoked the ultimate action declaring a mistrial.

Now, it maybe that defense counsel had in mind simply that the judge would admonish the taxpayers with respect to their rights.

No doubt, defense counsel hoped that such advise from the judge might change the minds of some of the witnesses with respect to their willingness to testify or their decision thus, for not to invoke the Fifth Amendment or it may be that defense counsel anticipated what in fact did happen.

We're in no position to guess about that.

In so far as the mistrial is the consequence of a defense motion, the case is so clearly governed by prior cases of this Court that I need not dwell on that aspect of it.

I am willing to argue however on the alternative basis that the defense is not to be held accountable for the judge's arbitrary action in prematurely ending the trial.

And on for that purpose it seems to us we can assimilate this case in every respect with Gori versus United States cited by this Court some few terms ago.

They also adjudged in what this could characterized as exaggerated or perhaps exaggerated solicitude for the defendant without any motion from the defense ordered a mistrial and the question was whether the defendant could be retried subsequently.

The Court held that he could.

That decision as well as, or prior decisions of this Court on the ‘70 have indicated that the Double Jeopardy Clause really does not control this question in any direct sense.

Double Jeopardy Clause is directly, and as this Court has construed it, deals more immediately with the problem of a case which has gone to verdict, whether a verdict of acquittal or a verdict of conviction.

A mistrial, which is of course neither barred re-prosecution only in circumstances where either and I think this is, this court's decision in Downum where to allow a retrial would be to get around the double jeopardy ball.

In this sense, if the defendant stood a good chance of winning an acquittal which would have barred his retrial.

He must not be cheated of that right to obtain an acquittal by action, unjustified action made at the door of the prosecution because the Government thinks its case is going badly and in that sense, --

Justice Potter Stewart: You take the test then basically of -- one of the fundamental fairness or fundamental unfairness?

Mr. Louis F. Claiborne: It could be put in terms of fundamental fairness or fundamental unfairness.

We put it in terms of whether the action of the Court was taken on behalf of the Government, whether its affect was to harass the defense.

We recognize that it may be a part of the right to trial by jury though aside from the double jeopardy clause to have a case brought to a conclusion before the jury first in panel but --

Justice Potter Stewart: That certainly, that certainly does apply in the event of a jury that disagrees.

Mr. Louis F. Claiborne: That right.

Justice Potter Stewart: Nobody, there were nobody who ever claimed that after mistrial caused by a hung jury that there cannot be another prosecution.

Mr. Louis F. Claiborne: And precisely that example, an example which indicates not a motion of the defendant, not a waiver by the defendant indicates that there is no absolute bar.

Mr. Justice Washington very early on said, Double Jeopardy Clause obviously doesn't control this situation of a mistrial because the Double Jeopardy Clause has no exceptions in it and we had no right to read exceptions into it.

Therefore, this is a case not governed by the Double Jeopardy Clause since everyone concedes that in the case of a hung jury, for instance, there must be a right in the public in the prosecution to retry even though no argument of waiver by the defense could possibly be advanced.

Chief Justice Warren E. Burger: Is there more reason, would you say to have a stringent rule on double jeopardy where the defendant has gone forward and put in his evidence than in the case where his evidence has never been reached?

Policy reasons, I'm talking about now.

Mr. Louis F. Claiborne: It could Mr. Chief Justice, it does seem to us that the early termination of this trial after it have only technically began has a bearing on the extent to which the defendant was harassed by, or would be harassed by, a new prosecution.

He has not undergone, he has not gone through the gauntlet in any real sense at the point when this trial was aborted.

And since this is a matter not governed by absolute rules, whose considerations it seems to us ought to be relevant.

I may say that at this, of this invokes the decision of this Court in Tateo versus United States.

It seems to us also relevant that in the case of a trial which does go to a conclusion but which is reversed on appeal, reversed on appeal often for grounds which amount to characterizing the first trial as a mistrial, an erroneous trial.

A trial in many instances where the judge should have halted it before it went today.

That situation and this one ought not be so radically distinguished and yet in every case where a trial which is reversed on appeal allows a retrial even where the new trial, the first trial was reversed for lack of sufficient evidence.

This Court has specifically so held.

And why the result should be so different because the judge interposed himself early rather than an appellate court is not easy to appreciate.

The difference cannot be that it is the defendant who is moving for a new trial in the case of an appeal because that would be an instance in which a defendant was required in order to observe one constitutional right, constitutional right to reverse so long for constitutional error to waive a supposed other constitutional right, the right not to be retried, that is the right created in Double Jeopardy Clause.

It follows from this that it is not the defendant's motion that makes a new trial permissible in the case of the trial which is not the verdict.

It must be a balancing of interest which the double jeopardy clause does not deal with and the defendant's motion and any notion of waiver is quite irrelevant to the rule permitting this.

For these several reasons, we suggest that the judgment below ought to be reversed and that the prosecution be free to proceed with a new trial.

Chief Justice Warren E. Burger: Thank you Mr. Claiborne, Mr. Morrill.

Argument of Denis R. Morrill

Mr. Denis R. Morrill: Mr. Chief Justice and may it please the Court.

I believe the counsel for the Government has adequately stated the facts.

I would amplify on this -- in certain instances.

First, I believe it should be pointed out that a peculiar relationship existed in this case between the defendant and the taxpayer witnesses called to testify against him.

Defendant was accused in the information of aiding and assisting in procuring and counseling and advising in the preparation of false and fraudulent tax returns.

The returns involved are the returns of the very witnesses who were testifying.

The Internal Revenue Service had determined that these returns were erroneous, were fraudulent in their view.

Therefore, if defendant was not guilty of the fraud, then the taxpayers may well have been guilty.

From the preliminary hearing in the matter, I, being defense counsel at that time, it was my feeling that some of these witnesses were trying to blame their errors upon the defendant and thus escape prosecution from the Internal Revenue Service.

Chief Justice Warren E. Burger: Now counsel, unless there is something in the record to reflect that, it's better to confine yourself to what's in the record, not your private views of the matter.

Mr. Denis R. Morrill: Thank you, sir.

For this, based upon the relationship between the taxpayers and the defendant in this case, one facet of the defense prepared was to show that these people had given the information to defendant from which he prepared their returns.

In other words, the defendant wished to convey to the jury that these witnesses were trying to, in essence blame him for their mistake.

It was for this reason that counsel pointed out to the court that he felt these witnesses should be warned of their rights.

This was certainly not tantamount to any motion for a mistrial.

After this warning was given as stated by counsel for the Government, the jury was summarily dismissed with no opportunity on either side for objection.

From the law, as stated by this Court, it appears to me that once a jury in impaneled to try a criminal case, it may only be dismissed by the Court in rare and extraordinary circumstances.

The task which has been verbalized is often referred to as a manifest and necessity test wherein the jury is to be discharged only if there is a manifest and necessity in doing so in order to preserve substantial justice.

The cases of this Court have held that the discretion of a trial court in granting a mistrial while not closely scrutinized certainly is not unlimited.

I believe that the instant case shows no extraordinary circumstance nor any manifest necessity for granting a mistrial.

The trial court, after warning these witnesses, concluded that he would not allow them to testify.

Whether this is a legally defensible conclusion, I believe at this point is irrelevant.

After so concluding, the trial court took a further step which should be distinguished I believe from the first that is he dismissed the jury.

Certainly the second step did not follow from the first.

Trial court had several discretionary alternatives which he could have followed, if he in fact felt these witnesses should have a more explicit warning than he had given them.

He could have recessed the Court overnight which would have given ample opportunity for the accomplishment of his purpose.

He could have called counsel to the Court.

There are counsel available close which he could have requested.

He did not do this.

He dismissed the jury.

I believe the alternative which he chose clearly was not dictated by any manifest necessity.

Justice Potter Stewart: You think, I gather from your argument, the logic of your argument is that the more wrong that the district judge was, the more erroneous was his action in dismissing the jury, the stronger your case is.

Is that, do I understand you correctly?

In other words, if there was an absolute necessity for a mistrial that any rational competent judge would not have no choice but declare, but to declare a mistrial because it is only that or another.

I gather that you concede that there could then be a new trial, a new prosecution.

But if on the other hand, there was no such necessity, no such absolute necessity and the trial judge irrationally or erroneously declare a mistrial then there cannot be a new trial.

Mr. Denis R. Morrill: Yes, Your Honor.

Justice Potter Stewart: That is the logic of your argument.

Mr. Denis R. Morrill: That would be the logic of my argument.

That has been stated by one of the members of this Court that the risk of judicial arbitrariness should not be placed upon the defendant but rather should be placed upon the Government in this instance.

Then too, I believe the position of the trial court in this case is rather unique and that the same Court that granted this mistrial or discharged the jury, some five months later, on reviewing his own exercise of discretion granted defendant's motion to dismiss based upon the Double Jeopardy Clause of the Fifth Amendment.

Would appear to me that this judge was in excellent position to review his own exercise of discretion and that in granting this motion, he concluded that in his prior action he had abused his discretion.

Abuse of this discretion, prejudiced the defendant and for this reason the action in dismissing the information should be affirmed.

This Court has also held in Downum versus United States that a mistrial declared in the aid of prosecution would prevent retrial.

Upon separating the action of the trial judge into two parts, the first, his opinion or conclusion that this witnesses could not testify and second, the dismissing of the jury, it appears to me that the defendant was prejudiced.

After concluding that the witnesses could not testify, had the Court continued the trial, there's no question of what a verdict of acquittal would have been forthcoming since these were all of the Government's witnesses.

In both the Gori case and the Tateo case relied upon by the Government, retrial was allowed after a mistrial in the one case, after conviction in the other, both times to protect the rights of the accused.

This Court, I believe, will rather heavily unmet argument.

The rights of the accused were being protected.

In the instant case, the dismissal of the jury clearly was not for the protection of Mr. Jorn.

Any possible beneficiaries of this action were the witnesses and of course the Government.

Chief Justice Warren E. Burger: Why the Government?

Mr. Denis R. Morrill: Because after the judge took the first step of not allowing any other witnesses to testify they had no case.

Chief Justice Warren E. Burger: How could he stop them ultimately?

The judge couldn't stop the witness from testifying, could he?

Mr. Denis R. Morrill: Well, --

Chief Justice Warren E. Burger: He could defer it until the witness got counsel on his rights but no judge sitting anywhere could prevent the witness from testifying, could he?

Mr. Denis R. Morrill: No he couldn't.

Ultimately that's correct, Your Honor, but in this case perhaps it's a peculiarity of that particular Court, he did order that this witnesses would not be allowed to testify.

Justice Hugo L. Black: Then I suppose that you are saying that he actually could but it wouldn't be legal.

Mr. Denis R. Morrill: This is true, this is true Your Honor.

It is the defendant's position that once the jury was impaneled, evidence was taken from one witness, another witness was sworn, jeopardy attached and pursuant to the United States Constitution, the Fifth Amendment and the cases of this Court, defendant cannot now be retried.

Either this appeal should be dismissed because under Section 3731, if jeopardy had attached, no appeal would lie or the action of the court below should be affirmed.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Morrill.

Mr. Claiborne, do you have anything further?

Rebuttal of Louis F. Claiborne

Mr. Louis F. Claiborne: One, one comment Mr. Chief Justice.

I agree with counsel that the question in this case is correctly stated in the quotation you made attributed to a member of this Court that the issue is way off the risk of judicial arbitrariness must fall in these circumstances.

That statement is taken from the descending opinion in Gory versus United States.We invoke the charity opinion in that same case which has never been repudiated not of the Downum decision or of the subsequent decision in Tateo versus the United States.

It seems to us that the doubts of considerations here requires that in the case where a judge, as this judge you must conclude has, arbitrarily and without the need for doing so, declares a mistrial but not at the instance of the Government, not for the advantage of the Government that the provisions of the Double Jeopardy Clause do not prevent retrial of the defendant.

Chief Justice Warren E. Burger: When a trial judge approaches of he gives some indication of contemplation of mistrial in circumstances where they are not warranted, is there any remedy which the Government has do you know of?

Can they effectively reach him by mandamus?

Is this order reviewable in any way by any Court?

Mr. Louis F. Claiborne: This Court will, I think, shortly perhaps have that problem not quite in the same sense of a mistrial.

The case of a judge who indicated that he would unless restrained, granted, directed verdict or acquittal but had not done so and attempted to leave the Government free to follow an appeal.

I suppose that by a parity of reasoning here or if the judge would indicate that unless restrained by the appellate court he intended declared a mistrial.

In the meantime, simply granted a continuance allowing the Government not to receive a mandamus in the high court, nothing would prevent the high Court from entertaining and granting such a writ.

Justice Potter Stewart: We had a case here some few years ago involving what seem to be an entirely irrational and erroneous direction of judgment of acquittal in the District of Massachusetts --

Mr. Louis F. Claiborne: Fong Foo, I think.

Justice Potter Stewart: Fong Foo, I think was the name of the case and that was, the Government sought to remedy that by writ of mandamus in the -- and that which was granted by the First Circuit Court of Appeals and that action of the Court of Appeals was reversed here, am I correct in my own recollection?

Mr. Louis F. Claiborne: I had thought that I may be quite wrong, Mr. Justice Stewart that that was done after the judge acting rather than on the basis of intimation that he was going to act.

Justice Potter Stewart: It was but he had -- the judge had indicated his intention of doing this in the Government purely go powerless to permit it and in fact the more they represented, the Government seem to say the more the district judge became determined he was going to grant a judgment of acquittal simply, as I remember to show his displeasure with the conduct of the Assistant United States Attorney.

And then the First Circuit Court of Appeals by way of mandamus directed, I guess, that judgment to be set aside and that was reversed here.

Mr. Louis F. Claiborne: I think the question whether there is jurisdiction to issue mandamus when the judge has indicated his intention but has not yet entered the order is a difficult one which has not been decided by this Court.

The Second Circuit Court of Appeal did entertain and did grant mandamus against Judge Dooling in recent instance when the Government applied to that Court at what amounted to Judge Dooling's suggestion he is having reckoned an opinion indicating his intention to enter an order of acquittal on unless the appellate court would otherwis and if I remembering facts, correctly the Second Circuit did issue mandamus and did restrain the judge from --

Justice Potter Stewart: And then we grant certiorari in that case?

Mr. Louis F. Claiborne: No sir.

I think -- I think, this could be denied.

The case may well likely recur because it was a question of there was an appeal on the merits subsequently.

Justice Hugo L. Black: Mr. Claiborne, do you think this man was put in jeopardy?

Mr. Louis F. Claiborne: I think he was put in jeopardy.

The question whether that jeopardy was erased by the occurrence of mistrial is one way of looking at it.

That seems to be one justification for the notion of a new trial say after a hung jury that --

Justice William J. Brennan: But Mr. Claiborne --

Mr. Louis F. Claiborne: The initial jeopardy washes out in the absence of a verdict.

Justice William J. Brennan: But 3731, as I understand it standard allows an appeal as the Government took the appeal here, the direct appeal.

Only when he's not been put into jeopardy, now your confession that it was in some state, doesn't that bear on whether or not you're properly here on record?

Mr. Louis F. Claiborne: I think not Mr. Justice Brennan, and I think that question is resolved by the Tateo case in which this Court entertained a direct appeal.

The Tateo case, Tateo versus the United States, not a mistrial a case in which a man clearly had been --

Justice William J. Brennan: Did we say he had been?

Mr. Louis F. Claiborne: The Court didn't even find the problem which --

Justice William J. Brennan: Well, I know but the respondent has raised a question here whether you're properly here on direct appeal, it does seem to me that maybe a difficult question if the Government concedes as I understand your answer to Mr. Justice Black, that at one stage he was put in jeopardy.

Mr. Louis F. Claiborne: But Mr. Justice Brennan, we construe 3731 as meaning in jeopardy on the trial from which the owner is sought to be, from which the appeal is sought to be taken.

If a man had been --(Voice Overlap)

Justice William J. Brennan: -- put in jeopardy you will certainly be put in jeopardy on the trial.

Mr. Louis F. Claiborne: But at the second -- at the second trial he was not in jeopardy, the motion to dismiss was granted before the jury was impaneled and it is at that point that the Government filed an appeal before jeopardy had sit in on the second trial.

If a man had been convicted 30 years before and plead double jeopardy --

Justice William J. Brennan: He did plead double jeopardy here on the second trial, made a motion, didn't he?

Mr. Louis F. Claiborne: Yes.

Justice William J. Brennan: And prosecution was dismissed on the ground that he had been put in jeopardy in the first trial, is that it?

Mr. Louis F. Claiborne: That is correct.

Justice William J. Brennan: And your reading -- your reading of 3731 is that it's the order of dismissal of the second trial, is that it?

Mr. Louis F. Claiborne: Yes, I may say that every member of this Court --

Justice William J. Brennan: Have you had any authority for that?

Mr. Louis F. Claiborne: Well, in the Mersky case, where this Court divided on the question of what was a plea involved, Your Honor write in one opinion, Mr. Justice Stewart writing another.

The stricter view taken by Mr. Justice Stewart gave as examples of the kind of plea involved which was directly appealable to this Court, a plea which set up the claim of double jeopardy.

That is the classical plea involved.

If that were not appealable then no case under the plea bar section of 3731 would ever reach this Court.

Justice Byron R. White: Well, suppose Mr. Claiborne that if you win under -- if you are right under jeopardy point, then the decision -- that decision on the merits also clears up the jurisdictional point.

Mr. Louis F. Claiborne: I think that is true, Mr. Justice White.

I think that's conceded by my opponent.

However, I think it really doesn't.

This isn't the case where jurisdiction turns on the merits.

Jurisdiction as this Court noted when it did not postpone the question of jurisdiction exists in either event even if you should rule against the Government, there would have been jurisdiction to entertain the appeal because the appeal, it doesn't matter whether it was three months earlier that the first trial occurred 30 years earlier of three weeks earlier this is a wholly separate proceeding.

Justice Byron R. White: You mean if you have jurisdiction, we do have jurisdiction of entertaining the appeal even though there has been, he has been put in jeopardy.

Mr. Louis F. Claiborne: At some previous time in some previous --

Justice Hugo L. Black: I read that you're (Voice Overlap)

Justice William J. Brennan: That has not been put is jeopardy relates in point of time with the second trial it was the prosecution that was dismissed, is that it?

Mr. Louis F. Claiborne: And so we think this Court has in effect --

Justice William J. Brennan: How can you ever -- I can't understand that because how can you ever be put in jeopardy on the second trial when they interpose a plea about to acquit or convict and that is the basis upon which you'll ask dismissal of the prosecution.

Mr. Louis F. Claiborne: Well, it often does happen that sometime after the trial has preceded a --

Justice William J. Brennan: I know it does, and the ordinary situation like this where you are relying on the prior trial as the basis of your motion on whether to acquit or convict, why doesn't the statute refer to put in jeopardy in the first instance not the second?

Mr. Louis F. Claiborne: Well, I can only repeat that, first, this Court has actually entertained an appeal in such as a case in Tateo where the man had been on trial for 40 years.

Justice William J. Brennan: But you don't know whether --

Mr. Louis F. Claiborne: Whether that objection had been made.

Justice William J. Brennan: Were we faced with this problem?

Mr. Louis F. Claiborne: I don't know if the objection was raised.

I'll say further that this Court and I think all judges had recognized the classical case of an appealable ruling sustaining a motion involved is a ruling to the effect that the man at some previous time had been in jeopardy.

And if that were not appealable, then they would not be in a strict view any appealable motion, rulings on motions involved.

Chief Justice Warren E. Burger: We never could look at the problem in any case then, could we?

Mr. Louis F. Claiborne: Well it could.

Justice William J. Brennan: Well we might but I do not have to go to the Court of Appeals first, that's the problem.

Mr. Louis F. Claiborne: Well, that is the way Downum came up and the way Gori came up.

Justice William J. Brennan: Question is whether we have jurisdiction on direct appeal.

That's what the statute raises.

Mr. Louis F. Claiborne: But if it is not appealable to this Court, it is not appealable anywhere.

Justice Hugo L. Black: Let me now follow up my first question.

Let's assume --

Mr. Louis F. Claiborne: By the Government.

Justice Hugo L. Black: Oh I thought, you will answer.

Mr. Louis F. Claiborne: I am sorry, I am sorry to I interrupted you Mr. Justice Black.

Justice Hugo L. Black: Suppose that the Judge instead of doing what he did and let the Government put on the witness one by one.

And when the witnesses get through he had excluded their testimony and said it's no good, then would that have been jeopardy so as to prevent another trial?

And if so why isn't they couldn't give an effect to what he did the same here.

Mr. Louis F. Claiborne: I assume Mr. Justice Black that your example assumes if the verdict of guilty was then entered by the jury.

Justice Hugo L. Black: Is that right?

Mr. Louis F. Claiborne: Did the verdict of acquittal was then entered by the jury after the judge had excluded the evidence of these witnesses?

Of course, at that -- (Voice Overlap)

Justice Hugo L. Black: Suppose they haven't done it.

Mr. Louis F. Claiborne: After they have --

Justice Hugo L. Black: So, there had been no verdict.

Wouldn't that be a form of jeopardy?

Mr. Louis F. Claiborne: Well, if there had been no verdict that if we have the same problem we have here if there had been a verdict of acquittal then I agree that there could have been no new trial.

Justice Hugo L. Black: Did almost acquittal -- would it not have been a form of jeopardy if the judge had heard all the evidence and simply not submitted when you read the jury returned over?

Mr. Louis F. Claiborne: I think not.

Justice Hugo L. Black: You don't think --

Mr. Louis F. Claiborne: Jeopardy would have attached but would not, there is a sort of mystique, the jeopardy attaches from the swearing of the first juror but that affect may not carry over if the expected conclusion of the trial that is a verdict does not take place and that must be the rationale for a hung jury which does allow a retrial.

Justice Hugo L. Black: Why not hear the bit deep form of jeopardy which sounds to me like it isn't pretty much of jeopardy.That is a judge, witness by witness he said, we're going to let you put them all.

Mr. Louis F. Claiborne: But I am clear, Mr. Justice Black in your example, what it is that prevented a verdict from being returned, but that is the critical think (Voice Overlap)

Justice Hugo L. Black: I don't know what will prevent a verdict, except the judge taking a bit in his mouth and proceeding to run the trial and just tell the jury that there's nothing for them to handle before had made that kind of error.

Mr. Louis F. Claiborne: Well, there are many such errors of things which the Government has no recourse and as I say if that error had resulted in the verdict of acquittal, that would have been an end of the matter.

Justice Hugo L. Black: So, there has been no verdict

Mr. Louis F. Claiborne: Well then if --

Justice Hugo L. Black: Does there have to be a verdict or acquittal in order to amend the plea of formal jeopardy?

Mr. Louis F. Claiborne: Well, strictly speaking there must be a verdict or acquittal or a conviction.

Justice Hugo L. Black: Do you mean to say that there always must be.

There are considerations bringing into play the Double Jeopardy Clause which prevent retrial when the Government is responsible for a mistrial and in effect cheats the defendant of the plea of formal jeopardy he would have had upon the acquittal which the Government prevented.

And to that extent Double Jeopardy Clause does prevent retrial after mistrial at some instances.

Chief Justice Warren E. Burger: Thank you.

Thank you, for your submission gentlemen.