ILLINOIS v. SOMERVILLE

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Argument of E. James Gildea

Chief Justice Warren E. Burger: We'll hear arguments next in number 71-692, Illinois against Somerville.

Mr. Gildea, you may proceed.

Mr. E. James Gildea: Mr. Chief Justice and may it please the Court.

This cause is here on a writ of certiorari to the United States Court of Appeals for the Seventh Circuit to reveal a -- to review a judgment of that court reversing an order of the District Court for the Northern District of Illinois, dismissing a petition for a writ of habeas corpus.

The facts in issue are these.

The petitioner in the writ of habeas corpus in the District Court, Donald Somerville, was indicted by an Illinois grand jury for the offense of felonious theft.

A jury was selected and sworn to try the issues of that case.

The day afterwards, before any evidence was heard and before any opening arguments were made by counsel, the counsel for the State of Illinois moved the court to dismiss the indictment on the basis that it failed to charge a crime cognizable by the State of Illinois.

That is, it failed to avert a necessary element of the offense of felonious theft, and that is the intent to permanently deprive.

Over a general objection of defense counsel, the court sustained State's motion and dismissed the indictment.

Two days later, the matter resubmitted to an Illinois grand jury, and a second indictment was returned, charging the very same offense, this time alleging the necessary averments to constitute an offense in Illinois law.

Chief Justice Warren E. Burger: Let me back up now to the day of the trial.

Suppose the day before the trial, a motion had been made by defense counsel, challenging the indictment on the same grounds, and if the court had dismissed the indictment as defective, what would have been the status under Illinois law of that case, could they have gone to the grand jury again, got a new indictment?

Mr. E. James Gildea: Yes Your Honor, under Illinois law no offense was ever charged, the defendant have never was placed in jeopardy, and the state was free to resubmit the matter to any grand jury.

Chief Justice Warren E. Burger: How is he more in jeopardy after the jury is picked under that kind of an indictment, the defective indictment, than he was before?

Mr. E. James Gildea: I don't believe he is in any more jeopardy, dependent upon whether the court attaches emphasis to the cause of the attachment, but in terms of the double jeopardy principles, I understand that he is no more in jeopardy after the selection of the jury than he has before under these circumstances.

Chief Justice Warren E. Burger: And he was in no jeopardy before under the defective indictment?

Mr. E. James Gildea: He was in no jeopardy and under the traditional and the classic rule, he was in no jeopardy afterwards, bearing in mind that the classic rule for attaching a jeopardy is only when a defendant is placed on trial before a jury or a judge, in the event of a bench trial, on a regularly charged indictment.

However, if there is some defect in the jurisdiction of the court before which the matter is presented, under the classical rule of double jeopardy, he is not then in legal jeopardy as the concept was understood initially, and has been understood to my way of thinking since the inception of the rule.

Justice Harry A. Blackmun: Well, are you seeking the ruling here that's based on the jurisdictional nature of the indictment?

Mr. E. James Gildea: No, Your Honor.

We feel that that is one aspect of the case, but we feel that we can't sustain our position on another basis besides the jurisdictional basis, and that is, under the manifest necessity, a doctrine that was espoused in United States versus Perez and that was continuously employed by this Court up until as recently, as United States versus Jorn.

Our basis being that, in reference -- in deference to Illinois state criminal procedure, the question of judicial power to try criminal cases, the Court, before whom Donald Somerville, was arraigned for trial, had been it theft under Illinois law, no power to trying for that offense, and --

Justice Harry A. Blackmun: The trial had been going on for three days and the defect was discovered, your position would be the same?

Mr. E. James Gildea: Our position would be the same, insofar as the manifest necessity doctrine, that is that the Court which still have to have declared the mistrial, then the question may then arise as to whether or not on some other theory, such as an estoppel theory, the state should be allowed to re-prosecute them.

And that would depend on whether or not the defendant has sustained any substantial burden as a result of the error, if it is an error, on the part of the prosecutor in drafting a defective indictment and proceeding trial.

And that would depend again upon the course that the trial took up to the time of the mistrial.

Then depending on whether or not the status of the evidence, whether or not the evidence at that point reviewed by another court was such that one might say that the defendant had the advantage or was on the verge of an acquittal at that point.

Justice Byron R. White: If Illinois, hereafter, simply lets the trial go forward and finish, and leaves it up to the defendant to raise the jurisdictional question, then what you have lost is simply the waste of time, just waste of some time and effort?

Mr. E. James Gildea: Well, not entirely Your Honor because Illinois --

Justice Byron R. White: Well, really if he was convicted in that trail and then he appealed, and the case was reversed there could be new trial?

Mr. E. James Gildea: That's correct Your Honor.

Justice Byron R. White: But if he was acquitted, you could not?

Mr. E. James Gildea: You could not but we -- the acquittal, I think, interjects a different element into the case, and that goes back to the -- I think, the inception of the rule, which is the principle of autrefois acquit of -- what we consider here is the fact that all that the law is concerned about, or concerned with, as a resolution of the issues of the case, the merits of the case.

And if it go -- it proceeds to a verdict and there is an acquittal, then it is hard to say that the acquittal that was returned by the verdict or by the jury had anything whatsoever to do with any defective indictment.

Justice Byron R. White: Exactly right, exactly right, so you couldn't (Inaudible)?

Mr. E. James Gildea: No Your Honor, and I think that's better.

Justice Byron R. White: So you are really arguing here whether or not the state should -- whether the state should be permitted to terminate the trial and not waste its time when a sufficiently, serious defect of the proceedings arises which would almost guarantee reversal?

Mr. E. James Gildea: That's correct Your Honor.

There is nothing in this -- in the course of the proceedings, insofar as they transpire up to the point where the mistrial was declared, that would indicate that the State was at a disadvantage.

As a matter of fact, no evidence whatsoever had been introduced.

There were not even so much as opening arguments.

Justice Byron R. White: Whatever box the State found itself in, it created it itself?

Mr. E. James Gildea: There is no question that the error is attributable to the prosecuting --

Justice Byron R. White: So you're saying here -- are you -- is your general proposition that where there is a defect in the trial that would guarantee reversal or almost guarantee reversal, arises out of the State's negligence, a mistrial can always be declared?

Mr. E. James Gildea: Where an irreversible error has occurred, in the course of the proceedings --

Justice Byron R. White: And it's the state's negligence -- and it's rooted in the state's negligence.

Mr. E. James Gildea: And it's rooted in the state's negligence unless there is something in the record that would indicate that the assertion, unless there were substantial prejudice to the defendant or unless there was some indication in the record that the assertion of the defect was interjected for the purpose of avoiding an acquittal then under those circumstances, we're submitting that that doesn't cast to a double jeopardy because what were -- what would happen in that case if the trial were aborted, it would proceed to a termination and the best that we can hope for is -- well, there could be an acquittal, but under -- in the facts of this case, of course, on the retrial there was a conviction and there is no indication here that the subsequent trial headed was in any way different from the initial proceedings or that the state gained any advantage in the course of the subsequent trial.

So, what the alternatives are, are simply to proceed to a termination, in which case that all that the state can hope for is gaining a conviction, in which case the defendant could assert the jurisdictional defect which is never waived and would have in his corner and his advantage the prospect of having a retrial, it just could not be avoided.

Chief Justice Warren E. Burger: But if it's a jurisdictional defect, how can jeopardy attach?

That is, if there is an indictment which cannot bring him to trial, then what difference does it make that the formality of the jury having been selected and sworn and has been carried out?

Mr. E. James Gildea: Well, that's what we assert as the traditional view and we --

Chief Justice Warren E. Burger: But that traditional view doesn't relate to defective indictments.

Is there any case of this Court which has ever said that jeopardy attaches on a non-indictment, an indictment that is no indictment?

Mr. E. James Gildea: No Your Honor.

The reason I refer to the manifest necessity doctrine is because this court has -- it has been intimated in Benton versus Maryland, which is premised upon People versus Barrett (ph) New York case where it was said that there was a different connotation attached to the term of attachment of Jeopardy where it was said that from the viewpoint of the defendant what differences does it make, whether or not the Court has jurisdiction and any judgment to be sustained because as a practical matter, he still faces the jeopardy of the prospect of being sentenced to penitentiary and not for observing the error.

So in that -- there seems to be some suggesting that there is a difference between practical jeopardy and legal jeopardy, and that's why I made that distinction.

But under the traditional view, there was no legal jeopardy in this case because the court, the court had no jurisdiction to try the issues.

Justice Byron R. White: Well, the logical conclusion of that is that even if he were tried and acquitted, there would be no double jeopardy?

Mr. E. James Gildea: Well, no I don't think so.

I don't think so for this reason.

Justice Byron R. White: But, you said there was that because -- you said because there is no jurisdiction, there is no jeopardy?

Mr. E. James Gildea: I say that, but I think I am allowed to make this one qualification and that is, what is the purpose of jurisdiction?

And I say this, that the only purpose in jurisdiction is to restrict the exercise of the judicial power of the Court.

It's for -- it's for the advantage of the defendant, so to speak, so that the Court cannot try any criminal case except those that are allowed by the particular state constitution.

Now, if it should proceed to do so, even though its ultra vires or the court has no jurisdiction to do it, the one -- the ultimate issue in any legal proceeding is to determine the merits of the case.

And if the merits of the case are determined by a court even though it did not have jurisdiction, then we're put in this position, a jury or a trier of fact has resolved the issues against the state.

Now, albeit, the Court perhaps did not have jurisdictionm the state was not prejudiced by that and there is no reason to suspect that had the court had jurisdiction, there would have been a difference in the outcome of the case.

And therefore, since the matter was determined on the merits, then why allow the state to avert that result simply by claiming lack of jurisdiction.

So I think that that's a big difference.

Justice Byron R. White: On that basis then if the judge said to the defendant by the way the indictment is defective, do you want a mistrial?

He said, no, and judge said, alright, we'll go ahead, and he is convicted, you would say that would stand to the --

Mr. E. James Gildea: No, I don't, because he could not waive that.

My basis is this, the court could not proceed.

The court -- if the court did not have the authority granted by the state --

Justice Byron R. White: What if he said that, you know let's go ahead and he was acquitted?

Mr. E. James Gildea: He said, let's go ahead and he was acquitted.

I think, at that instance, and first of all I think that the court would have been acting beyond its powers.

Now if the defendant participated in that and said, let's go ahead, then it's a different situation.

Then perhaps, in that instance if he agreed to an illegal judicial proceeding, then I question whether or not he could claim double jeopardy.

Chief Justice Warren E. Burger: Let me suggest hypothetical, it may seem a little extreme to you.

Suppose in one of that very large courts in the country where they've got as they do in several places, a 150 year, a 160 trail judges and nobody knows all of them that side, that some person walked into the courtroom under a valid indictment, and he is not a judge at all, he is just a fellow with the black robe and he sits and presides over the trial and conviction results, is that a valid conviction?

Mr. E. James Gildea: No, Your Honor.

Chief Justice Warren E. Burger: A complete malady, is it?

Mr. E. James Gildea: Yes sir, it's a complete malady and I think that perhaps this really points out the --

Chief Justice Warren E. Burger: Let's take it one step further, an acquittal results?

Mr. E. James Gildea: That's again it's a --

Chief Justice Warren E. Burger: A malady.

Mr. E. James Gildea: -- malady.

It’s always been in view.

It's never different.

I think that from the inception of the rule, if we refer to from the time of Lord Cook all the way up to the present, it's always been the same.

Chief Justice Warren E. Burger: Let's take the next step, could he be tried again by a real judge?

Mr. E. James Gildea: Yes, Your Honor.

Chief Justice Warren E. Burger: Now, here we have a non-indictment instead of a non-judge, haven't we?

Mr. E. James Gildea: Yes, Your Honor.

Chief Justice Warren E. Burger: The distinction is difficult for me to grasp, but perhaps you can enlighten me?

Mr. E. James Gildea: I am not sure that whether or not there is a distinction.

If you consider in this respect at least in Illinois, it's the indictment that gives the court, an indictment by a grand jury that gives the court the judicial power to try a case.

Now if there is no valid indictment, that court whether it wears black robes and whether the court be the judge has been sworn and is drawing a salary under State law, it makes no difference because he has no more authority than I to sit in judgment upon a defendant in the other situation.

In either case, the court does not have the authority to try that issue.

Justice Potter Stewart: And yet, you do concede that in this case, by contrast to your answer to the Chief Justice’s question, respecting a non-judge that in this case, since there had been a verdict of acquittal, the state would have been barred from trying this person again?

Mr. E. James Gildea: Yes, but not on --

Justice Potter Stewart: So, there is a difference apparently in the two cases, in the cases between the case of acquittal on a non indictment and a trail by a non judge?

Mr. E. James Gildea: I have to concede that I do believe there is a difference because there is -- in that instance, the parties place the repliance on -- reliance on the apparent authority of the court.

The others, the hypothetical posed by the Chief Judge was, of course, an extreme one which I -- is difficult to -- event having occurred, but where all the parties, at least assumes the authority of the court and it does proceed to a -- before a judge that has the authority to try the issues but whose authority was not activated and by a proper indictment, and this again is solely a restriction on the exercise of judicial power.

Justice Potter Stewart: In one case it is.

Mr. E. James Gildea: There is a distinction between two cases.

Justice Potter Stewart: A properly constituted court with subject matter jurisdiction and personal jurisdiction that --

Mr. E. James Gildea: That’s correct.

Justice Potter Stewart: -- it is a proper constituted court and you know I suppose there is no court at all.

Mr. E. James Gildea: That's correct.

Justice Thurgood Marshall: Is your point really like for the lack of a better word, you say there has to be a valid acquittal?

Mr. E. James Gildea: No, I don't think so.

I put it against --

Justice Thurgood Marshall: But it has to be acquittal of -- it could be an acquittal of a court without jurisdiction you wouldn't buy that?

Mr. E. James Gildea: In the one case --

Justice Thurgood Marshall: Doesn't it -- I would say, you could.

Mr. E. James Gildea: If the court has the appearance of judicial authority and if there is a defect in the mechanism by which that court exercises its judicial authority, then in that instance, if the case proceeds to a verdict and there is an acquittal, then the question remains, what is the purpose of the double jeopardy rule.

And in this situation, in that situation we're speaking about, again, if the merits have been regularly tried before a court that has apparent jurisdiction to try the case, and it's resolved in favor of the defendant, then the question becomes, well, what is the infirmity in that verdict and the subsequent judgment and the infirmity is a technical one, is it not?

The infirmity being that the, there was not a regular procedure in which that judge was authorized to try the case.

Now bearing in mind that when we speak about the principle of double jeopardy, we are talking about competing interest.

We are talking about the interest of society in punishing the guilty, assuming that that's a legitimate interest and we are talking about the interest of the defendant in being tried in a single prosecution.

Now, when we contrast those two interests in the situation that we are talking about, can we say and I think this is how I would resolve the question, can we say that the state or the prosecution or society by virtue of that defect in the procedure whereby the judgment was rendered, suffered such prejudice that the verdict should be overturned and I would say in that instance no, it hasn't suffered any prejudice.

Justice Thurgood Marshall: Can you back up just a minute?

Why wasn't this indictment subject to be amended?

Is that Illinois law to --

Mr. E. James Gildea: That's Illinois law.

Illinois does have an amendment statute but only after formal defects, but this went to the -- and for that reason it wasn't subject to being amended and --

Chief Justice Warren E. Burger: Mr. Gildea, suppose instead of a non judge, a spurious judge, you had a situation where the judge was a genuine judge and you had a valid indictment, but someone just forgot to administer the oath of office to the jurors and he went on with the trial.

Mr. E. James Gildea: Well, there again --

Chief Justice Warren E. Burger: That was a valid trial?

Mr. E. James Gildea: I think so Your Honor and perhaps this is bringing up the point that I should have made before.

In this case what we are talking about, we are talking about technical flaws which will occur, much the same as they occurred in the case of Lovato versus New Mexico where the defendant pleaded and barred and that was overruled and there was a failure to arraign the defendant and they proceeded to trial and they recognized that, they rearraigned him which was a technical mistrial and they proceeded with the trial.

That's one instance.

Now again I say, how was the states are prejudice in terms of the ultimate judgment, verdict and judgment?

But, if you're talking about, let us say a judge who has absolutely no authority to preside than the state in that instance is prejudiced, society is prejudiced because it cannot tolerate persons without judicial authority presiding in criminal cases.

In that case I would say that the state or society is prejudiced and there should be a distinction between the two cases.

Justice William H. Rehnquist: Mr. Gildea, under Illinois law had the trial in the first indictment proceeded and resulted in a judgment of conviction, could that have been collaterally attacked in Illinois courts and the prisoner released?

Mr. E. James Gildea: Very definitely, and an illustration of that is the case that we have put in our brief, People ex rel. Ledford versus Brantley was a case for pointing to charge the defendant with burglary and under Illinois law to pass to the offense of burglary you have to show ownership of the property burgled in someone other than the defendant.

In that case they fail to allege the ownership of burglarized premises and the inmate in that case, Ledford, after pleading guilty to the indictment, he pleaded guilty which normally waives all defects other than jurisdictional defects, pleaded guilty and subsequently filed a petition for habeas corpus under the State Habeas Corpus Act and the court held in that case, that his plea of guilty did not wave the jurisdictional defect and therefore it was subject to an attack in a post-conviction proceeding.

Justice William O. Douglas: Mr Gildea, in -- just getting back to the distinction you are doing between the non judge and the non indictment cases.

Now this Court in the Green case, 355 United States, said that the double jeopardy clause, and I am quoting, “is a guarantee that the state with all its resources and power shall not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity.

Now in face of that principle, how can you distinguish the non indictment and non judge cases?

Mr. E. James Gildea: Well, I think first of all, Green, if I am not mistaken involved the case that went to verdict and the defendant was --

Justice William O. Douglas: Well, I thought the hypothetical given you were both, cases that went to verdict about the non judge and the non indictment case?

Mr. E. James Gildea: I was coming to this Your Honor.

The defendant in that case which was regularly tried had been acquitted of the greater offense and convicted of the lesser offense and appealed and on a reversal and remand that the state again charged him with the greater offense and he was convicted of the greater offense and the question was whether or not they had constituted --

Justice William O. Douglas: Well, here you have the same offense, not a different one.

I mean, in the hypothetical it's the same offense. In a non indictment case we are dealing with precisely the same offense, aren't we?

Mr. E. James Gildea: Yes Your Honor but I think --

Justice William O. Douglas: So in the non judge case that the Chief suggested to you?

Mr. E. James Gildea: But the question is, what is understood by the language of the court and I take that the language is to be construed in reference to not only the Green case, but all other double jeopardy cases from at least in this country from United States versus Perez up to the present time and --

Justice William O. Douglas: Well, I thought that was the thrust of the principle and that's what the guarantee means?

Mr. E. James Gildea: Well, what I understand by that is, what the principle is aimed at, is the recognition of the fact that the prosecution has within its power and resource, within its resources the power to repetitiously or successively re-prosecute a defendant on a criminal charge.

And as I understand --

Justice William O. Douglas: And isn't that what in both the non judge and the non indictment cases, the prosecution was involved in both of them. The prosecution represented the state and it repeated the second time.

Mr. E. James Gildea: That's true.

Justice William O. Douglas: The identical prosecution?

Mr. E. James Gildea: But doesn't the same thing happen when a case is -- proceeds to a hung jury and the jury is discharged, doesn't the same thing happen when the case proceeds to a conviction and because of error interjected in the record by the prosecution, the case is reversed and remanded.

Now in that instance, we allow re-prosecution.

Justice William O. Douglas: Well, that's because, of course, the convicted defendant has himself taken the appeal.

That's been the --

Mr. E. James Gildea: He's taken the appeal.

Justice William O. Douglas: That's been the theory, that's been the theory upon which he has not been permitted to assert double jeopardy if he is successful on appeal.

Now, we're not talking about that kind of case, are we?

Mr. E. James Gildea: Isn't that putting him in the horns of dilemma though in order to exercise his right to challenge the propriety of his conviction, he has to forgo his double jeopardy, right?

I think it's --

Justice William O. Douglas: No he hasn't on is what the court is held that where he is the appellant and the successful and he has no double jeopardy claim.

Mr. E. James Gildea: He hasn't but --

Justice William O. Douglas: But that's not what we -- not what we held in Downum and Jorn and other cases, where this principle has been involved?

Mr. E. James Gildea: But I think the principle, what the principle is aimed at is the fact -- is the abuse of the prosecutor's authority and what I have envision to be the abuse of the prosecutor's authority is the ability on the part of the prosecutor to attempt to avoid an acquittal by successive prosecutions.

But in this case here, that was not the case because the state did not attempt to avoid an acquittal because there is nothing in the record that would indicate that the state was in jeopardy of facing an acquittal.

As a matter of fact, we consider the proposition that on the subsequent trial, the state was successful and that the defendant was convicted and we consider that in terms of the fact that there was an impediment in the indictment that was objectionably determinable, objectively determinable, and that there were no other indications in the record that the state was at a disadvantage and could not convict the defendant on the merits.

I would submit that under the circumstances of the case, the underlying policy of the rule was not violated in this instance.

Thank you, Your Honors.

Justice William O. Douglas: Very well, Mr. Gildea.

Mr. Alwin?

Argument of Ronald P. Alwin

Mr. Ronald P. Alwin: Mr. Chief Justice, and may it please the Court.

As Justice Harlan stated in his opinion in the Jorn case, the purpose of the double jeopardy provision is a constitutional policy of finality for the defendant's benefit.

Here, that policy was violated, where the defendant was put to trial once on a invalid indictment and then re-indicted and put to trial again on the subsequent valid indictment.

We have in the history of the decisions of this Court a two constellations of cases if you will.

We have the Perez case and the cases along the line of following Perez under different circumstances where this Court is held that the trial maybe aborted by the trial judge without the consent of the defendant, where there is a manifest necessity for doing so, where there is a breakdown in the judicial machinery.

Those are the words used by the Court. On the other hand, we have another constellation of cases, the Downum case, the Jorn case, the Green case, I think belongs in that category, where the Court has held that the trial cannot be aborted without the defendant having him placed in jeopardy and I hasten to add that sometimes jeopardy is a conclusion.

Suffice it to say that the trial, that the defendant cannot be retried after the first trial was aborted.

To get to the question now before the court, the issue is whether or not the fact that they -- the existence here of a defective indictment takes this case out of the classic mold, which the general rule applies, to which the general rule applies.

The respondent submits that it does not.

I would like to look at some of the circumstances here, which this Court has considered in reaching the conclusion that re-prosecution would be barred.

Admittedly now, these circumstances are not a -- are not each in and of themselves determinant, but they all go into the double jeopardy equation and one of the first circumstances we have here is that neither the mistrial nor the defective indictment was caused by the defendant.

I would call your attention to the Tateo case where the Court found that the mistrial was caused by the defendant, the guilty plea in that instance, not a mistrial, and the defendant also subsequently, by a 2255 proceeding attacked the judgment of conviction.

Similarly, in the Ewell case, there was interestingly a bad indictment and there the defendant subsequently, by 2255 proceeding or at least on appeal, attacked the judgment of conviction.

Now, this Court held that there was either a continuing jeopardy as expressed in Price versus Georgia, or the defendant had waived his jeopardy, whichever theory is adopted under these facts, the defendant can be retried on a subsequent valid indictment.

Now interestingly, in the Ewell case, there was a bad indictment, but this Court chose not to rest its opinion on the existence of a bad indictment for the proposition urged by the state here that there was no jurisdiction and therefore, jeopardy had not attached.

This Court relied rather on the sounder proposition that once the defendant attacks the judgment of conviction, his jeopardy has not somehow concluded, and there is a continuing jeopardy if you will.

Justice Potter Stewart: Do you have the citation on the Ewell case?

Mr. Ronald P. Alwin: Yes, I do Your Honor.

I will have it in a minute, Your Honor.

Justice Potter Stewart: Right, thank you.

Justice Harry A. Blackmun: I take it, it's not cited in your brief?

Mr. Ronald P. Alwin: It's not cited in brief; it is cited by the way in the petition for certiorari filed in the previous case, when this case was up here before.

My associate would look for the citation.

Justice Potter Stewart: Alright, thank you.

Mr. Ronald P. Alwin: The second point I would like to make here was that we have the first point that this defect was not caused by the defendant.

Importantly, however, it was caused by the prosecution and that distinguishes this case even from the Jorn case, where the mistrial was occasioned by the conduct of the trial judge.

Here we have the underlying cause, the material cause if you will, the bad indictment was created by the prosecution.

This -- well, I would pass again to the third point, what I call the official cause of the mistrial was the motion for the mistrial made by the prosecution in this case.

Again, I call your attention to the Jorn case, where in dissenting, three justices noted that the -- I'm quoting "the mistrial was not requested by the prosecution", this cannot be said about this case.

The citation for the Ewell case is 383 US 116, 1966 case.

Returning for the moment to this idea that the cause here and also the motion for the mistrial occasion -- was occasioned by the prosecution's conduct.

I would like to call your attention to the concept of overreaching expressed by Justice Harlan in the Jorn case.

I think here we have overreaching.

Now overreaching, I would add, does not have to go so far as to be bad faith.

It can be as Justice Frankfurter indicated in the concurring opinion in Brock versus North Carolina, it can be incompetent or a casual or ineffective conduct of a prosecutor.

I would also point out that it can be passive as well as active here.

In the Downum case, we have what might be termed passive overreaching.

The prosecutor didn't have the witnesses there to testify against the defendant.

Here, apparently, it resulted from the drafting of a bad indictment and the indictments are drafted by the State's Attorney's office, but more importantly here, the state was actually given a second chance to correct this error before a jury was empaneled and sworn and that's when the case went to trial.

And we suggest here that the error would not have been held so serious if the prosecution had not proceeded to trial on this bad indictment.

Chief Justice Warren E. Burger: If there was no jurisdiction in the court at that time under this indictment, do you think there was jeopardy and when that jury was sworn and took its place in the box?

Mr. Ronald P. Alwin: Yes Your Honor, in the constitutional sense, I do.

I think that is the meaning of the Ball case, where the Court noted the difference between the voidable and the void indictments.

I think there was jurisdiction within the meaning of jeopardy under the Sixth Amendment, although, I hasten to add that jurisdiction is sometimes an elusive concept.

Certainly here, there was jurisdiction over the parties in the cause.

Justice Potter Stewart: Really, that's what the Ball case does stand for, doesn't it?

Mr. Ronald P. Alwin: I believe so, yes.

Had there been no jurisdiction there, that I think the court would have to hold that the acquittal itself was invalid, the acquittal could not have suddenly caused jeopardy to exist where there was no jurisdiction.

I point out the purposes of an indictment here.

There are two -- at least two purposes of the indictment are to enable the accused to prepare a defense and of course, to plead for jeopardy.

Here, there is no indication that the accused had not been able to prepare a defense and was, in fact, ready to go to trial and this is indicated also by his objection to the declaration of a mistrial, which I would point out, does not appear to be a token objection.

We don't have the record of the state court proceedings, but I would quarrel with the state's characterization of this objection as a token objection.

Also supporting the argument here, of course, is the decision in Benton versus Maryland, where the court noted that the defendant there, as here, had not been -- at the first trial had not been terminated, the defendant could well have served out his time under this invalid indictment.

This, I think, is a very important practical point, which also goes to the jurisdiction of the court.

You see the defendant could have served time even in a case where the state would argue that the court had no jurisdiction.

A decision in line with what the state urges here would not take into account the practicalities present in a situation like this.

Chief Justice Warren E. Burger: Well, are you saying that if everyone in the proceeding had been careless and not noted this defect, then he might have been in prison for several years?

Mr. Ronald P. Alwin: Yes, I think he would have been, he could have been.

However, if it had later come to his attention, then I think under the decisions of this Court and the courts of Illinois, he could have had his conviction vacated by collateral attack.

Now the state argues that once it comes to his attention, this somehow deprives the judge of a power to continue the trial when in the first instance, the judge didn't have any power to continue the trial.

I don't think this argument again comports with the reality.

The mere fact of knowledge should not be controlling in this case.

Here, the defendant admittedly with knowledge or notice, if you will, after this defect was called to his attention, wanted to continue with the trial.

Now I ask Your Honors, what would you say if I were here today on behalf of the same defendant and he had objected, let's say he had raised the point and the trial have been terminated on the defendant's motion and then a valid indictment was obtained and he interposed the defense of double jeopardy?

In this case, we are here today, I think Your Honors would hasten to point out to me that this mistrial had been declared under the defendant's motion and that's the principle of the Ewell case and the Tateo case.

We can't take inconsistent positions and then ask for relief.

As the Court of Appeals for the Sixth Circuit stated in the Holden case, which was cited in the state's brief, you can't blow hot and cold.

Now that was a double jeopardy case, where the defendant wanted to blow hot and cold.

He objected to an invalid indictment, then he interposed the defense of double jeopardy.

The respondent in this case was consistent throughout the proceedings.

He objected to termination of the trial.

He maintained in the Appellate Court of Illinois that the indictment was, in fact, valid and I think obviously, he was adequately placed upon notice and he could prepare a defense and that's one of the essential purposes of the indictment.

Another point, which I think should be taken into consideration here and I will make it only briefly is the potentiality for abuse.

We do not argue that in this case, there was an abuse by the prosecutor's office of an invalid indictment, but the potentiality is there, especially in this situation, unlike the situation in United States versus Jorn, for example.

I call Your Honors' attention to the quotation from People versus Barrett (ph) in the Downum case, which I think quite adequately covers that particular issue.

Justice William H. Rehnquist: Mr. Alwin, doesn't the Illinois law will carry some safeguards against this type of abuse, if under an invalid indictment, the defendant can, not only get his conviction reversed on appeal also his state doesn't bring it up with the trial, but actually get collaterally released after judgments become final?

There certainly isn't much incentive for the state to put in deliberately a defect in the indictment thinking if the trail goes badly, we will use it, if not, we will forget about it.

Mr. Ronald P. Alwin: Well, I think yes, there is Your Honor.

If the state tries an individual serially enough times, I think eventually, they will get a conviction which will be upheld.

Even this advantage, which I think Your Honors characterize this slight, but which I don't think is so slight, would -- might be sufficient for a prosecutor to take advantage of.

Justice William H. Rehnquist: Even though he knows it's subject to a collateral attack?

Mr. Ronald P. Alwin: Yes, I think so.

I think in the experience of lawyers, frequently a prosecutor will go to a jury with a case, which due not necessarily to a bad indictment, but due to very strong error, he may suspect, will be reversed.

Now in that situation, he does not terminate the trial.

Justice William H. Rehnquist: Well, of course, it is.

When you are talking about whether some will be reversed or not, that always ends up as the judgment of the appellate court as to whether the thing was not only erroneous but also prejudicial, but here you presumably, you start the trial with the opening day, with an indictment that is demonstrably bad and will entitle this man to be released from any judgment of conviction without anybody's assessment of prejudicial error or the like.

I would think those are different situations.

Mr. Ronald P. Alwin: They certainly are different situations.

I cannot say with certainty to what extent this abuse might be taken advantage of by the State's Attorney's of Cook county, for example.

If at all, perhaps, there would be no abuse in our State's Attorney's Office in Cook County, but the potentiality is there, and that is one of the things that the double jeopardy clause is designed to guard against.

Justice Harry A. Blackmun: Well, wasn't there an element of potentiality of abuse, if I can call it that on the other side also, your case might be scheduled for trial on Wednesday and on Monday you will see the defect in the indictment.

You can move today to strike the indictment and not be subject to double jeopardy, but if you play a game and if that jury is called and sworn, then you have the present situation.

So that there is a potentiality of a game playing in that respect too, isn't it?

Mr. Ronald P. Alwin: Well, if it were to come to the defendant's attention, I would think that he would be estopped from later raising it if he chooses in to go ahead with the trial.

Chief Justice Warren E. Burger: Under Illinois law, could -- this trial had been suspended and the grand jury return a new indictment?

I notice that it was done very swiftly here, two days or something, could there, have this jury stand aside, keep it impaneled and --

Mr. Ronald P. Alwin: I don't believe so Your Honor.

I don't know if the case --

Chief Justice Warren E. Burger: In other words say, they are impaneled on one indictment and they have to be tried on that or nothing?

Mr. Ronald P. Alwin: Yes, that is my understanding.

I think the final point I would make here is that the defendant was deprived of his right to go to this jury.

In answer to what was Mr. Justice White's question to Mr. Gildea, there was a question of whether or not this would just be a waste of time for the state to continue with this trial if the same would be reversed on appeal.

To answer there would be a waste of time is shortsighted for this overlooks the valued right of the defendant to go to this jury and by this confrontation to end the confrontation, rather with the state at this time.

I would finally point out that if Your Honors have doubt about whether or not the defendant's plea of double jeopardy should be sustained as Your Honors pointed out in Downum, this doubt should be resolved in favor of the citizen.

In the final analysis, as Justice Harlan stated enjoined with the judges' decision in the -- the trial judges' decision to abort the trials to be tempered with the defendant's right to go to this jury, which has been selected and sworn and to end this confrontation with the state right at that point.

That was overlooked here.

Finally, I would add if in this situation it is a criminal who must go free because as Justice Clark stated in Mapp versus Ohio, because the constable is wondered, we must remember here that again as he stated, it is the law that sets him free.

I thank you for your attention.

Chief Justice Warren E. Burger: Thank you Mr. Alwin.

Thank you gentlemen.

The case is submitted.