CRIST v. BRETZ

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Argument of Robert S. Keller

Chief Justice Warren E. Burger: We will hear arguments first this morning in 76-1200, Crist against Cline and Bretz.

Mr. Keller, you may proceed whenever you are ready.

Mr. Robert S. Keller: Mr. Chief Justice and members of the Court.

Jurisdiction has been reserved in this case, a double jeopardy case proceeding out of Montana.

We are proceeding under the provisions of 28 United States Code 1254 (2).

The Ninth Circuit Court of Appeals in effect held that Montana Statute 95-1711 taken from the model penal code was unconstitutional.

1711 permits a retrial if the first trial has been terminated before the first witness is sworn as distinguished from the federal rule that when the jury is empaneled and sworn.

Some of the facts in the case that give rise to the jurisdiction of the Court, this proceeded in 1974, a nine count information against Bretz and Cline and Mrs. Cline, and she is not relevant to this appeal.

One of the counts and one of the gut counts was obtaining money by false pretenses alleged to have occurred between January and February of 1974.

After the jury was empaneled and sworn the defendants moved, made several motions, but a motion in limine to confine the state to the confines of the information, January to February of 1974 and unfortunately a typographical error, it should have been January 1973 to February 1974.

It put the trial judge in a dilemma for two reasons.

The state moved to amend to correct the error and I bring this up because Justice Tuttle in the Ninth Circuit commented that this is simply a formal defect.

The trial judge was in this dilemma; to permit the amendment meant we were talking an additional year of time against which the defendant had to defend at the last minute.

Secondly, in 1973 the Montana legislature enacted a comprehensive sweeping Montana Criminal Code of 1973 that repealed all preexisting substantive law effective January 1, 1974.

So in essence, they were going to Court on this particular count, there were three counts, but this particular one on an offense that had been repealed before it was alleged to have been committed.

So the Trial Court was in a real dilemma and sua sponte dismissed the three counts that had the typographical error.

The state as I indicated had moved to amend, and this had been strenuously objected to by the defendants and that is when the Court sua sponte dismissed.

They then dismissed the remaining six counts.

The state that of its own motion re filed a new information, corrected the defect and filed a two count information.

The first count was grand larceny and it tracked one of the six counts that the state had moved to dismiss of its own motion and the second count was obtaining money by false pretenses with the typographical error corrected and the jury found, there was a new trial, and the jury found the defendants guilty of this obtaining money by false pretenses, one of the counts had the typographical error.

Justice Potter Stewart: Mr. Keller, we postponed the question of whether or not we have a appellate jurisdiction over this case until the argument in the matter rather than noting probable jurisdiction.

Mr. Robert S. Keller: Yes, sir.

Justice Potter Stewart: I gather that your opponent, the appellee does now concedes that there is an appellate jurisdiction, a new kind of thing so you do not discuss it in your brief.(Voice Overlap)

Mr. Robert S. Keller: It is the jurisdiction, that is correct Your Honor, and ordinarily I would say that, that is my position, that you are correct except that in one of the appellees' briefs, the Bretz brief, they contest our jurisdiction saying that we did not address the question and so I felt that under the rules I had to address it both in the opening shot in my brief and in opening shot in oral argument.

If we are all satisfied in the jurisdiction, and I want to assure the Court that I am satisfied that we are under 1254 (2), I would be glad to go on to the --

Justice Potter Stewart: Because the Court of Appeals has held invalid the statute at the state of Montana?

Mr. Robert S. Keller: That is correct.

It never came right out and said 1711 is unconstitutional.

It just said the Montana Supreme Court which was interpreting that statute was wrong and the effect of it is that it is unconstitutional.

Our statute from the model penal code specifically says that jeopardy in essence has not attached and can have a retrial up until the time the first witness is sworn and the federal rule except in the federal system is at the time that the jury is empaneled and sworn.

So our statute is unconstitutional.

Justice Potter Stewart: But it is a sufficiently clear holding that your statute is unconstitutional?

Justice John Paul Stevens: Mr. Keller, your statute does not say there can be a trial up till the time the witness is worn.

It says there shall not be a trial after the witness is sworn?

Mr. Robert S. Keller: That is correct.

Justice John Paul Stevens: So the statute literally, it does not do that it is not unconstitutional, is it?

Mr. Robert S. Keller: On Supreme Court interpretation in State against Cunningham which was just prior to Bretz, says just exactly what I have said.

The time that jeopardy attaches in Montana is at the time the first witness is sworn, they are construing 95-1711, Mr. Justice Stevens.

Justice John Paul Stevens: Do you think it is then the statute that permits it.

Well, I still have some difficulty.

I can understand that is the rule in Montana, but I am not quite sure that there is a statute that is unconstitutional?

Mr. Robert S. Keller: Well, if our statute permits a retrial on a termination of a case prior to the swearing of the first witness, but after the jury is empaneled and sworn, then we have a direct conflict with the federal system.

Our Montana Supreme Court in the Cunningham case held just exactly that, that this is no bar to a retrial when the Cunningham case was dismissed after the jury was empaneled and sworn and before the first witness is sworn.

I have to use Cunningham and I am sure you are familiar with it the briefs because it was a part of the consolidated petition for Writ of Habeas Corpus that lead to where we are now in this case.

Justice John Paul Stevens: What I am trying to suggest is that perhaps the legislature could have repealed the statute, so you did not have a statute on the books and the Montana Supreme Court might nevertheless had made precisely the same holding, then there would not be any – just say it is a matter of Montana law, jeopardy does not attach till the witness is sworn.

I do not think you would have an unconstitutional statute then.

Mr. Robert S. Keller: I see your point, yes.

Justice William H. Rehnquist: You have to argue that by implication when the Montana statute says retrial may be had -- may not be had under certain circumstances, yet impliedly authorizes retrial under the circumstances where it does not prohibit it?

Mr. Robert S. Keller: Exactly.

You said do we have to argue, that is our position, yes, and it is -- the point that we are here on today was addressed head on and directly in the Cunningham case.

When appellee’s petition for a writ to the Montana Supreme Court, that was summarily denied citing the Cunningham case and it comes directly to this point and puts us in a conflict that we are.

Justice Potter Stewart: So that is the meaning of your statute as authoritatively construed by the highest Court of your state?

Mr. Robert S. Keller: Correct, yes sir.

Justice Potter Stewart: Alright.

Mr. Robert S. Keller: Going directed and passed that to the argument itself.

We agree that the double jeopardy prohibition in the Fifth Amendment affects both under the federal system and the state system, we do not have any quarrel with that.

We agree that there is a point in time in which jeopardy does attach and the reason that we are here is that we do not with the point in time that has been set forth.

So the question that we have for the Court is this the point in time selected in the federal system, at the time that jury is empaneled and sworn mandated by the constitution.

Justice Byron R. White: Mr. Keller, let me, before you get too deeply into this, do I understand that Cline has wanted a reversal of his conviction?

Mr. Robert S. Keller: Yes sir, after the petition for --

Justice Byron R. White: Is not the case moot as to him then?

Mr. Robert S. Keller: I do not really think so, and I do not know this.

My opponent, Mr. Leaphart represents him and was there for the trial and it may well be that it is not moot.

I never raised it and I did not raise it because it is conceivable that the adamant reversal by the Montana Supreme Court may permit him to be retried anyhow.

They are the ones on his appeal that reverse and set aside the conviction.

Justice Byron R. White: (Inaudible) they are not going to dismiss it?

Mr. Robert S. Keller: I not know that.

Justice Byron R. White: It seems to me he wants everything in the state appeal that he could possibly get in habeas?

Mr. Robert S. Keller: I want to say this is the one entrusted with the prosecution.

We do not intend to re prosecute in that case, but I do not know whether it is moot or not.

The position of both Cline and Bretz were identical and it made no difference to me if Cline came along or did not came along.

The issue is there and it is certainly there with Bretz, so I did not explore it at all.

It was raised for the first time by Solicitor General in his brief, in this Court.

As a little bit of background, the Attorney General’s office in the State of Montana is brand new to all of us as of January this year and none of us was there when this all took place.

Both accounts where the appellees were there throughout at all so they could probably more properly answer that.

The first question that we have, is this point in time selected in the federal system mandated by the constitution?

The ancillary question is if it is not, do we still have to follow it in our state under the doctrine of incorporation.

Historically and this is conceded in appellee’s brief that the common law jeopardy was not a problem until there had been a conviction or an acquittal and at the time of the drafting the constitution this was a state of the common law.

I have looked frankly, for the source of the federal rule that it commences at the time that the jury is empaneled and sworn and the closest that I can come to any suggestions to you is, there was a real problem for government appeals up until the Criminal Appeals Act of 1907.

The language in the Criminal Appeals Act was such that it permitted a writ of error to be pursued inter alia from the decision or a judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.

But we do not know when that point was as such.

The general rule at that time in the text books, encyclopedias was at the time the jury had been empaneled and sworn, but the minority view gave a distinction of after conviction of acquittal.

There was a dichotomy that gave nothing in between.

So the point that we are raising now had really never been touched then.

The other suggestion that I have is going far back to Perez in 1824, which we have always contemplated as being the start of manifest necessity and if you read it and as you will recall, and I am sure you do from the yesterday’s argument, this was a case with a hung jury so all the evidence that was in the case was all over, and Justice Storey in a terse opinion is faced with the dilemma, what are you going to do when the jury – you have got a jury and you cannot get rid of it.

You got to do something and somehow, as you read that opinion, in essence it says, giving rise to manifest necessity after the jury is there and it cannot arrive at something, there is a manifest necessity or to meet the end of justice.

From that I have to assume that and as you all know we had a pretty liberal interpretation for a long time of what is manifest necessity, I have to believe that nobody worried about what occurred after the jury was empaneled and sworn and that just gradually evolved this cut off point.

It never was a problem.

As such this Court never even addressed until 1963 and that was in Downum, so we got a long period of time before the issue even comes up.

Downum was not only handled as a manifest necessity case, the issue I am raising was not raised and it was a federal case to boot.

So nobody questioned when Downum just simply came out and said jeopardy attaches when the jury is sworn -- empaneled and sworn in a jury case.

Justice Potter Stewart: Of course it was not until 1969 that this question could have possibly risen, it was not until then in the Benton case where the double jeopardy protection after the (Voice Overlap) goes to the states.

Mr. Robert S. Keller: Goes to the states, exactly, and that is the first time it really came to a confrontation.

Somerville against Illinois in 1973 and that is a state case, but unfortunately for our position, it is a state that has identical, the same rule as the federal rule.

So Justice Tuttle comments in his opinion, that there was not a shred of evidence that this distinction made a difference to this Court in his opinion in 1973, and I submit I do not know of any reason why it had been raised.

I do not know why Illinois would raise it.

Justice Potter Stewart: Mr. Keller, you said you made an effort to find the origin and history of the federal rule of point being when the jury is empaneled and sworn, what is the history of your statute in your state, do you know?

Mr. Robert S. Keller: It was adapted in 1969, as my recollection of it judge.

It came out of the model penal code and there was a tentative draft in 1956, and a final draft in 1962.

The tentative draft in 1956 has just this terse comment, they see no difference between a jury and a non-jury for the point that jeopardy attaches and nothing better than that, but at least it explains why they did it, but nothing behind it.

Justice Potter Stewart: Do you know what other states or how many other states if any?

Mr. Robert S. Keller: I know only two for sure and I do not know the others.

We tried to research for that in point and ran into a quagmire.

I know that Kentucky has from the modal penal code, Arizona did and I do not know if they still do.

New York did and they just now held their own statute unconstitutional following the federal rules, so I do not know if I want to cite that as an authority and honestly Pennsylvania had something comparable to open up from the penal code and beyond that, no I do not know.

One of the reasons for it is, in going through the state statutes, the way this thing is drafted, you have to look for a negative, you cannot find something as to when there is jeopardy attached.

You have to go read several statutes to come back to find out what it does mean in that state, but I do not know for sure that there are two others along with us today that have it, Kentucky and Arizona.

The Somerville case in any event followed Downum and just said without giving a reason and I am sure you noted in the brief we have emphasized this throughout, never has there been a reason given for the rule that had been followed the in the Federal Court and there was no as you pointed out, no reason to question until Benton, but the language in Serfass in 1975 is significant to us and I do not want to be out of line of trying to quote something that was said that is out of context, but the defense has relied upon Serfass because it followed Somerville and it followed Downum.

We rely upon it because now for the first time, the Court has really looked at the point at which jeopardy attaches and as you recall in the Serfass, this was a point in time prior to even having the jury empaneled so the comments are somewhat relevant, but I do not want to take advantage of them.

Nevertheless, eight of you concurred on this opinion and this is what we read from it.

As an aid to the decision of cases in which the prohibition of the double jeopardy clause has been invoked, the Courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by a resort to the concept of attachment of jeopardy and goes on to say in a jury case, it is when the jury is empaneled and sworn and in a non jury, when the first witness is sworn.

The Court has consistently adhered to the view that jeopardy does not attach and the constitutional prohibition can have no application until a defendant is put to trial before the trier of the facts whether the trier be a jury or a judge.

The constitutional policies underpinning the Fifth Amendment’s guarantee are not implicated before that point in the proceedings at which jeopardy attaches.

As we have noted above, the Court has consistently adhered to the view that jeopardy does not attach until a defendant is put to trial before the trier of the facts.

This is by no means a mere technicality, nor is it a rigid mechanical rule.

It is of course like most legal rules an attempt to impart content to an abstraction and you can appreciate why we like this language.

Without risk of a determination of guilt, jeopardy does not attach and neither on appeal nor further prosecution constitutes double jeopardy and that is specifically our point.

We take the position that as a matter of law, no jeopardy attaches until a witness says something incriminating.

If at the time the jury was empaneled and sworn, the prosecution rested as a matter of law, the case would have to be dismissed.

If at the time that the first witness is sworn, the prosecution rested, the case as a matter of law, the would have to be dismissed.

It really means that in terms of when jeopardy attaches, that it varies with each case.

The first witness in a homicide may be a pathologist.

He does not have anything to do with guilt.

He just wants to identify the corpus delicti.

So somewhere in there, there is a risk of determination of guilt.

Our position is that our point in time is sooner than jeopardy actually attaches and the federal system is even sooner than our point in time and it is an aid to the Court just exactly as Serfass said that it was, this is an aid to the Court that we use.

Justice William H. Rehnquist: If we were to follow or adopt your reasoning on this point, it would not change the rule in the Federal system, would it?

Mr. Robert S. Keller: I think that it would.

Justice William H. Rehnquist: You are saying that as a matter of constitutional law, your concept of jeopardy is part of the bill of rights and incorporates the double jeopardy clause and that it would be applicable both in the federal and the state system?

Mr. Robert S. Keller: That is correct.

The only reason I answer your question in front of this is the Criminal Appeals Act in essence permits the government to proceed before jeopardy attaches.

It does not have a cut off day such as ours does.

Ours is prior to the first witness being sworn, yours is in the language before jeopardy attaches.

It has been assumed, I have to believe that this has always been when the jury was empaneled and sworn.

If this Court now adopts our rationale, I have to assume that the government would be able to proceed in a federal case up to at least the time the first witness is sworn.

Justice William H. Rehnquist: But you would also be assuming, would you not that when Benton v. Maryland said that double jeopardy was incorporated into the Fourteenth Amendment, it meant all the bag and baggage of the federal prohibition rather than just the general outline of it?

Mr. Robert S. Keller: Yes, I understand that is a view that has been espoused.

I do not support the view.

No.

I believe that that said that we have the double jeopardy prohibition under the Fourteenth, just as you do in the federal system, but I do not believe that that means we have to take the rules as Justice Tuttle puts it, the supervisory rules of the Court as a constitutional mandate so we have to take the double jeopardy prohibition as a fundamental guarantee under Benton, but I do not think it means we have to take the rules that went along.

Justice Potter Stewart: Therefore, it is conceivable at least is it not in line with my brother Rehnquist's question that the Court might hold that the constitution tolerates the Montana rule without at the same time holding that it requires the federal rule to be the same.

Mr. Robert S. Keller: Yes.

Justice Potter Stewart: In other words, the Court has held that the guarantee of a jury trial under the federal constitution guarantees a 12 member jury in federal cases, but tolerates a smaller jury in state cases, state criminal cases?

Mr. Robert S. Keller: I am with you.

My problem in answering your question is I was a step ahead, my colleague already posed the same questions.

We are getting ready for this so we had gone one step further and expect some enterprising government lawyer to bring one up if you go our way.

That is after the jury is empaneled and sworn and before the first witness is sworn and within our limited knowledge, I do not know how to stop him so I just really was not answering your question.

Chief Justice Warren E. Burger: What do you suggest happens significantly between the empaneling of the jury and the swearing of the first witness?

Mr. Robert S. Keller: Nothing.

And I mean, I was -- I went to a matter of law and as a matter of practice nothing significant happened.

As a matter of practice, the federal district judges in our state just before they swear that jury, now we hear everything that has to be heard and get rid of these motions because under the federal system, once the jury is sworn, we start.

In the state level, we have until that first witness is sworn to get rid and dispose of all these things.

As a matter of practice, nothing can be done to that jury, as a matter of law within those two periods of time that can have an effect upon the defendant.

Chief Justice Warren E. Burger: What about the opening statement to the prosecution?

Mr. Robert S. Keller: He can do that, but what does that do in terms of a jeopardy?

Statements of counsel are not --

Chief Justice Warren E. Burger: My question to your point is that nothing happens?

Mr. Robert S. Keller: I see, of course.

Things can occur.

Chief Justice Warren E. Burger: Could between opening statement -- that an opening statement may have an impact?

Mr. Robert S. Keller: Certainly it might, but if you do not go further and that jeopardy did not attach because that is statement of counsel.

Yes, you certainly can have opening statements.

In fact, it is what made this particular case almost ingenious.

In using both the blending of the federal and the state rule, they were able to make their motion in limine after the jury was empaneled and sworn which in the federal system, they would have had to make it before the jury was paneled and sworn.

They made it between the two periods of time.

The last thing they wanted was a motion to dismiss.

That puts them in real disadvantage, so when they make the motion, that they made in the manner that they made it, truly was in ingenious because they have got jeopardy attaching under the federal rule and they still can make their motion in limine before they have commenced under the state rule.

I really looked for a basis for this and the only thing that I can find that is, I really do not want to use the word weakness in our position, but that is I guess for lack of a better phrase, the weakness, the only weakness I can come to is the valued right concept and the valued right concept has been espoused.

It has been espoused by members of this Court as recently as 1973.

I want to submit that the valued right is the valued right to get the case tried as distinguished from the valued right to this particular jury.

In fact, if you take the position that it is a valued right to this particular tribunal then somehow that puts this Court in a position of saying the defendant has a constitutional right to a defect in the system.

The only way that you can have a jury that is not impartial is because of a defect in the selection.

The whole process is geared to an impartial jury.

Now, all of us know as trial lawyers, you can have a good or bad jury.

You can have a feeling that you have a good or bad jury, but that is not quite the same thing as the United States Supreme Court espousing that you have a constitutional right to a defect in the system to a good or bad jury.

Justice John Paul Stevens: Is that a fair statement of their argument, could you not have phrased it just the other way that the defendant might be convinced that he has a good and impartial fair jury, but the prosecutor wants to have 12 more preemptory channels so he dismisses the prosecutor's, let us try and get a better jury from the prosecutor’s standpoint?

Mr. Robert S. Keller: Now, you are talking prosecutory manipulation, Justice Stevens and that was met head on by Justice Haswell in the Montana Supreme Court.

If what you are talking about is prosecutory manipulation, that makes no difference whether the jury has been empaneled and sworn or the first witness is sworn.

If I as a prosecutor can manipulate to get to this point, I can ask for my dismissal before you swear the jury.

So the point that they are raising does not really get to the difference in point of time.

This time, to do the prosecutory manipulation is just as valid in the federal system as it is in the state system.

We first have to assume the prosecutor is manipulating, but the trial judge has not caught it and he can do it just as effectively in the federal system as they are suggesting it can be done in the state system.

Justice John Paul Stevens: Immediately before the jury is sworn and you know who the jurors will be?

Mr. Robert S. Keller: Exactly and you just exhausted it all and you know right then this does not look like a hang man’s jury, maybe we better get rid of it and try 12 more and that point in time is just as valid before you swear that jury as it is when the first witness is sworn.

I really think the valued right concept and it was expressed as policies underpinning in one of your opinions Justice White.

This point go both to speedy trial and double jeopardy and the right as such is the right to get the case tried and – but it does not put the valued right to get the case tried right now, quite in the point of a constitutional right.

It certainly is a constitutional right under speedy trial and there is overtones from that in this situation, but that puts us back to the question of what kind of passage of time are we talking about, as between just before the jury is sworn and just before the first witness is sworn.

I would like to reserve the remainder of my time.

Unknown Speaker: Let me ask you before you sit down, you in your brief seem have to abandoned the notion, the argument on manifest necessity.

Mr. Robert S. Keller: Yes sir.

Unknown Speaker: Let us assume you are wrong on your thought that it is not properly here.

It is not properly subject to appellate jurisdiction here.

Assume you are wrong on that, do you mean -- would you mean to abandon it or not?

Mr. Robert S. Keller: Yes, sir, intellectual honesty compels me to answer yes.

Unknown Speaker: Under what, under what case?

Mr. Robert S. Keller: Under what case?

Unknown Speaker: Why do you abandon it?

Mr. Robert S. Keller: Because our whole thrust is the Montana statute when we came into taking over this prosecution.

I think that the manifest necessity was raised for the first time by the federal district judge Batton when this case was heard and I do not -- in my mind, I do not believe that the state even raised it at the outset.

Unknown Speaker: So you do not think it has ever been presented to the Montana Supreme Court?

Mr. Robert S. Keller: It has not, no.

Unknown Speaker: So there has been no or is there any necessity for that?

Mr. Robert S. Keller: You mean necessity for raising to the Montana Supreme Court?

Unknown Speaker: In a federal habeas corpus proceeding, is there any necessity for you to in order to argue manifest necessity to have it gone through the state system?

There is a requirement for exhaustion on the state, is it not?

Mr. Robert S. Keller: That is right.

I do not no, there is no requirement of state.

Unknown Speaker: Well then why do you say that the manifest necessity is not properly here?

Mr. Robert S. Keller: I had two reasons frankly and the one is the one that I gave.

I think from the outset, the state has taken the position prior to my time that they are concerned about the statute in this point in time.

Unknown Speaker: Well, if you just did not want to raise it, that may be so, but what if you lose on the statute?

Mr. Robert S. Keller: Then I lost.

Unknown Speaker: And you do not want us to consider?

You do not want that issue of manifest necessity adjudicated here, is that it?

Mr. Robert S. Keller: That is correct.

That is the second point.

I think that we are grossly weak on manifest necessity.

Justice William H. Rehnquist: Because that is ultimately a decision for this Court, not for you?

Mr. Robert S. Keller: Well, I did not intend to pursue it.

Unknown Speaker: So you do not think it is worth anything under Lee, did you read the Lee case?

Mr. Robert S. Keller: Yes sir.

Unknown Speaker: You do not think it is worth anything under Lee?

Mr. Robert S. Keller: We were asked by the Solicitor General to move for continuance before we had to first file anything so that Lee could come down in time before we got Truman before even we presented our brief and at that time made a decision we were going to proceed on the issue that we felt was there from the outset and not manifest necessity so our brief was in before the opinion came down on Lee.

Now, I summarized a lot of things, but we had a pretty in depth discussion with the Solicitor General and the facts in our case and all I can say is that was also a factor in deciding not to --

Unknown Speaker: He does not seem to agree with you it is such a weak point?

Mr. Robert S. Keller: I have to concur with some of the points made by counsel for Bretz.

Unknown Speaker: Because he would sustain – he would think that there was manifest necessity if the merits are reached here?

Mr. Robert S. Keller: I do not think he has the right facts in this case, Justice White and I concur with Bretz counsel in that point.

Unknown Speaker: We have got enough issues without reaching for one?

Mr. Robert S. Keller: Thank you.

Chief Justice Warren E. Burger: Mr. Leaphart?

Argument of W. William Leaphart

Mr. W. William Leaphart: Mr. Chief Justice and may it please the Court.

The issue of mootness has been raised so I will direct myself to that initially.

The Solicitor General in his brief in a footnote on page 5 has noted the fact that Mr. Cline’s conviction was reversed by the Montana Supreme Court and the Solicitor expresses his opinion that Mr. Cline has received all the relief that the writ of habeas of corpus can provide.

I suggest to the Court that that assertion assumes that the writ of habeas corpus statute can do nothing more than affect the release of a man prison and I would direct the Court’s attention to this Court’s opinion and Carafas v. Lavallee, 391 US, 234 in which this issue of mootness was answered.

Justice Thurgood Marshall: In the court after that I think you left out one point, the Court not only reversed, but also dismissed the charges?

Mr. W. William Leaphart: That is correct Your Honor.

Justice Thurgood Marshall: It is a little different from just a reversal?

Mr. W. William Leaphart: Well, I have no quarrel if the charges were dismissed.

Justice Thurgood Marshall: What can the State do after that, under this non kind of State Law?

Mr. W. William Leaphart: I maintain Your Honor that --

Justice Thurgood Marshall: What can Montana do as to these charges against this man after the Supreme Court of Montana dismisses them?

Mr. W. William Leaphart: Your Honor at the first trial that we are talking about, that was aborted, there were nine counts.

The State voluntarily dismissed one.

The judge on his own motion dismissed three more and then the prosecution came in and dismissed the remaining counts.

It came back and filed a two count information.

We went to trial on that.

It is my position that Mr. Cline still has a very vested interest and the determination as to whether or not jeopardy attached at that first trial.

Unknown Speaker: Even if they cannot try them again, even if they do not try him again?

Mr. W. William Leaphart: Well, Mr. Cline right now is depending this appeal.

He has been named by the State as an FLE.

It is Mr. Keller’s representation today that they do not intend to further pursue the matter.

It is the first that I have ever heard of that.

As his counsel I have to you assume that since they are prosecuting the appeal that they intend to pursue the matter.

Justice Thurgood Marshall: But you still have not told me how they can?

Mr. W. William Leaphart: What I am saying Your Honor is that there still are five counts remaining from that first prosecution that if jeopardy had not attached, conceivably the State can come in and charge him on those five counts.

They only filed two counts the second time.

Justice Byron R. White: So the conviction is only reversed on two counts?

Mr. W. William Leaphart: That is correct.

We still have a five accounts that are kind of hanging there.

Unknown Speaker: But as it stands right now, he is clean with the State and there is no charges pending against him?

Mr. W. William Leaphart: That is correct.

Unknown Speaker: And there is no lingering consequences from his conviction?

Mr. W. William Leaphart: That is correct.

Justice Thurgood Marshall: And I thought you said the charges were dismissed by the Court?

Mr. W. William Leaphart: True Your Honor.

Justice Thurgood Marshall: Well, can they be retried?

Mr. W. William Leaphart: No.

Justice Thurgood Marshall: Well, where are these counts that they can retry?

Mr. W. William Leaphart: We got two separate trials that we are talking about.

We started out with a nine count information which was knocked down to eight counts and down to five counts and then the prosecution dismissed those five and came back and only filed two.

Justice Thurgood Marshall: Well, is that all -- it is all there is?

Justice Byron R. White: There is no bar for – is there any – there is no bar under Montana Law for the refilling of those recounts?

Mr. W. William Leaphart: The remaining counts?

Justice Byron R. White: Yes, the ones they dismissed.

Mr. W. William Leaphart: Pardon me?

Justice Byron R. White: The ones the prosecution dismissed, those --

Mr. W. William Leaphart: I think that it is arguable.

I think that they can certainly come in and try to re-file them.

Justice Thurgood Marshall: Well, they could try and file without filing at all.

Under Montana Law charges that are dismissed by a Court can be retried?

Mr. W. William Leaphart: No, sir.

I am saying that there are still five counts that were not dismissed by the Court.

Justice Potter Stewart: Dismissed by the prosecutor?

Mr. W. William Leaphart: That is correct.

Justice Potter Stewart: And has the statute of limitations run by now?

Mr. W. William Leaphart: No sir.

Justice William H. Rehnquist: Under the Ninth Circuit's ruling in effect you get a complete immunity on all nine counts or you just say you are uncertain with respect to the result if it is just depends on the decisions of Supreme --

Mr. W. William Leaphart: That is correct, we still have a lingering uncertainty as to those remaining counts.

Justice William H. Rehnquist: And you say that is enough to justify habeas?

Mr. W. William Leaphart: I think so and I would further submit to the Court that should this Court declare that Mr. Cline’s position is moot that the effect of that decision is to say that double jeopardy rights had been violated only has a remedy if he has been convicted and I think the double jeopardy protection is broader than that.

It protects the man from having to stand trial twice not just be convicted.

Justice Thurgood Marshall: Where is a standard trial twice here?

Chief Justice Warren E. Burger: And I suppose you do not know yet is not that your point?

You do not know that he may be charged again?

Mr. W. William Leaphart: That is correct.

Chief Justice Warren E. Burger: That is what is the concern?

Mr. W. William Leaphart: Assuming my position is correct on the merits of this case that jeopardy did attach at that first trial and we have the trial twice.

We have gone through two trials.

I am projecting an uncertainty about a third trial that they could come back in and refile in those remaining five counts which should in fact can be a third trial.

Justice Thurgood Marshall: There is no threat of that at all?

Mr. W. William Leaphart: Well, as in the fact that I am here --

Justice Thurgood Marshall: In addition we have the statement from the Attorney General that he will not do it.

Mr. W. William Leaphart: You have do that, I --

Justice Thurgood Marshall: Now, where is the threat that the next Attorney General might do it or his grandson might do it?

Mr. W. William Leaphart: Well, Your Honor, my position is that the fact that I am here defending this appeal to me indicates that they are still pursuing this matter and this is the first that I have ever heard that they do not intend re-cross the case --

Justice Thurgood Marshall: I do not think that both of you by agreeing with again was jurisdiction, if it is not here?

Mr. W. William Leaphart: Well, I think the jurisdiction is there Your Honor.

The issue has been raised.

Mr. Cline was in custody at the time the District Court assumed jurisdiction.

Justice Thurgood Marshall: But as of now he is not in custody, he is not subject to trial --

Unknown Speaker: Can I ask the similar question much the same way I suppose, but habeas corpus is a collateral attack on the judgment?

Mr. W. William Leaphart: Yes sir.

Unknown Speaker: Now, what judgment is outstanding of being collaterally attacked by your client?

Mr. W. William Leaphart: I think the answer to that Your Honor is that we have to put this in the context of the jurisdiction attaching in the Federal District Court.

Unknown Speaker: It had attached as to a judgment which has now been set aside?

Mr. W. William Leaphart: That is correct.

Unknown Speaker: Now, these five other counts have never been reduced to judgment, have they?

Mr. W. William Leaphart: That is correct.

Unknown Speaker: How can they provide this basis for collateral attack?

Mr. W. William Leaphart: My answer Your Honor is that in this Court in the Carafas decision said that once habeas jurisdiction --

Unknown Speaker: I understand that case.

There was a judgment outstanding that was involved in the appeal.

The judgment survived the service of a sentence, but that does not hold that you can attack a non existent judgment, the judgment entered by a Court?

Mr. W. William Leaphart: In a double jeopardy context Your Honor, the fact still remains that my client had --

Unknown Speaker: May be items for related offense to what you would say, well, that is really encompass within what you have been acquitted over something like that.

There is always a possibility of somebody indicting you and you are making a plea and abatement or claiming bar, claiming double jeopardy.

The Court is never found at a basis for collateral attack that I know off?

Mr. W. William Leaphart: Well, I would submit that I am not merely engaging in speculation when I am defending this appeal by the Sate of Montana who and the State which has already tried my client twice and still has five outstanding counts that unless jeopardy attached, they can re-file.

Chief Justice Warren E. Burger: And in any event that basic issue will be presented by the other case or resolution that support --

Mr. W. William Leaphart: I submit that my client has a very significant interest.

Chief Justice Warren E. Burger: Apart from your client's interest the basic issue will be decided in the other case?

Mr. W. William Leaphart: Yes, Your Honor.

Now, as to the merits of the case, Mr. Keller throughout this litigation has maintained that there are no constitutional policies underlying the federal rule, the rule announced by this Court and Downum v. United States.

He has taken the position at the Montana rule offers as much protection to a defendant as does the Downum rule.

On the contrary, I would submit to the Court that historically the Downum rule has protected two basic interests.

First of all, it protects the defendant from having a judge or a prosecutor dismiss a case when it becomes apparent to either one of them that a conviction is going to be unlikely.

Secondly it protects, it ensures the defendant that he can proceed to trial before a particularly chosen tribunal.

Now, both of these interests are best served by having jeopardy attached at an early stage in the trial proceeding.

And the point at which jeopardy attaches as it had been pointed out in the Somerville decision merely begins the inquiry as to whether or not there a double jeopardy interest involved.

The mere fact that it is attached does not necessarily mean that the defendant’s double jeopardy interests are going to prevail.

For example in the Somerville case the interest, in sound judicial administration and the ends of public justice were the prevailing factors and so it is just a matter of balancing those interest out.

The problem with moving the point of attachment to a later stage in the proceeding is that you then trade a period of time during which the prosecutor can ask for a mistrial or dismissal and he can do so without making any showing of manifest necessity or extraordinary circumstances.

Chief Justice Warren E. Burger: Well, of course there is still the factor of the sound judicial discretion of the trial judge as to whether to grant that protection?

Mr. W. William Leaphart: That is correct Your Honor, but I do not think that there is sufficient protection because the trial judge does have the guidelines that are brought into play by the attachment of jeopardy.

Chief Justice Warren E. Burger: Are you saying that there is some really imperative need, I am not sure what manifest necessity means, but that there is some significant element of the administration of justice that requires the federal and the state time frame to be the same?

Mr. W. William Leaphart: Well, what I am saying is that I think that the attachment of jeopardy rule protects essentially two interests.

Number one protecting the defendant’s right to proceed before a particular tribunal and secondly, ensuring a judge or prosecutor cannot dismiss when they think that a conviction is unlikely without showing manifest necessity.

I think that is sufficiently protected under the Downum rule and what I am saying is that if you move the point in time as Montana has done, then you start to jeopardize those two interests.

Because as you pointed out, during that period of time, you got such things as the opening statement of the prosecutor and more importantly, you have got the possibility of an opening statement by the defense counsel.

Chief Justice Warren E. Burger: Well, I am not arguing or suggesting or intimating that one or the other is better.

I am simply saying is there any need that the federal rule bind all the 50 states as to this time factor?

Mr. W. William Leaphart: Well, I think if we are going to make any sense out of double jeopardy protection in the state's areas, if we open the door, if the Court opens the door and allows the states to adopt their own rules as to when jeopardy attaches, then conceivably the state of Montana is free to adopt a rule such as the common law rule that jeopardy does not attach until the jury verdict comes down and I do not think that anybody is going to argue that that is going to protect the interest which have become associated with double jeopardy protection.

I think that this Court has specifically said in the Jorn case that at that point in time represents a point in time at which time constitutional policies come into play.

Chief Justice Warren E. Burger: That was a federal case, was it not, Jorn?

Mr. W. William Leaphart: Yes, sir.

Justice William H. Rehnquist: Was Jorn a Court opinion or was it just a plurality opinion?

Mr. W. William Leaphart: Justice Hurl, I think writing for plurality.

I should point out that this Court in Illinois v. Somerville and in Grieve v. Jones has applied the Downum rule to the state of Illinois and the state of California.

Justice Potter Stewart: It is clear is, it not, that in the federal system, in a non jury trial jeopardy attaches -- does not attach until after the first witness is sworn?

Mr. W. William Leaphart: That is correct.

Justice Potter Stewart: That is clear?

Mr. W. William Leaphart: I think so yes.

I think a distinction between the jury and a non jury trial is that in terms of practice in a non jury trial, most often if there is a mistrial or dismissal when it is refilled it comes back in front of the same judge which is the same tribunal, so you have not jeopardized the defendant.

Justice Potter Stewart: That is really not necessarily so in many cases?

Mr. W. William Leaphart: I know it is not necessarily so, but in Montana as a matter of practice, I think it is, whereas in the jury trial, once you have a dismissal or a mistrial, the second time around, you have got an entirely new tribunal.

Justice Potter Stewart: Without question.

Justice Byron R. White: In Montana, does the judge impose a sentence?

Mr. W. William Leaphart: Yes, sir.

Justice Byron R. White: Well, then some of your double jeopardy considerations then apply even to a bench trial, I am thinking of the opening statement, stress and anxiety and the possible impression upon the trier of the fact?

Mr. W. William Leaphart: Your question, Your Honor is do those things affecting the tribunal and the trier of fact?

Justice Byron R. White: Would not all of those considerations kind of exempt the rule that jeopardy attaches before the first witness is sworn?

Mr. W. William Leaphart: Yes.

In fact, I think a very good argument can be made for having jeopardy attached in an earlier time.

Justice Byron R. White: I am just not following you in trying to draw the distinction between the two?

Mr. W. William Leaphart: But the counsel for the appellant, my time?

Chief Justice Warren E. Burger: Go ahead and respond, we will extend your time two minutes.

Mr. W. William Leaphart: The counsel for the appellant has put forth really only one rationale for the Montana rule and that is that the jury prior to the swearing of the first witness has nothing to consider.

Well, there is essentially at least three fallacies with that argument I submit because number one, the jury does have something to consider prior to the swearing of the first witness.

The jury has the opening statement of the prosecutor and possibly the opening statement of the defense counsel and I was listening to the argument in Court here yesterday on the propriety of remarks made during voir dire and opening statements and so that is another element is, questions that come out during voir dire can certainly affect the jury.

Chief Justice Warren E. Burger: Or damaging statements made during the jury selection process unless you have a trial judge who is going to protect the case are beyond the reach of --

Mr. W. William Leaphart: Well, Your Honor, I am thinking of more than just damaging statements.

I am thinking of things that oftentimes a defense counsel will ask the jurors what their thoughts are if a defendant chooses not to take the stand and try to feel them out on that point.

He is tipping his hand to the prosecution as to the approach he is going to take in the case.

Justice William H. Rehnquist: How about pretrial publicity that occurs a month before the case is set for trial?

That can have some influence on the jurors.

Surely you would not argue that jeopardy attaches a month before the case is set for trial?

Mr. W. William Leaphart: I would have a difficult time arguing the jeopardy should attach any time prior to the point where we actually know what the composition of the jury panel is before we have actually chosen the tribunal.

Justice John Paul Stevens: In this case, in the opening statement had not been there, had it?

Mr. W. William Leaphart: No, sir.

Justice John Paul Stevens: By the counsel for defendant, made immediately after the swearing of the jury, as I understand it?

Mr. W. William Leaphart: That is correct.

Thank you.

Chief Justice Warren E. Burger: Mr. Moses?

Argument of Charles S. Moses

Mr. Charles S. Moses: Mr. Chief Justice and may it please the Court.

In the argument presented before this Court, there was an issue raised that I would like to respond specifically to.

In Benton v. Maryland, the Court said that the same constitutional standards apply against both the state and the federal government.

As I see this case, this is an effort to spin off the non-constitutional baggage of the Benton decision.

That is the way I see it.

In other words, we are trying to create a non-constitutional parsing of what Benton v. Maryland has said.

Now, that may be fine, but I think that is what the issue is as I see it.

We are trying to say that it is a non-constitutional issue as to how this constitution should be applied in the state of Montana.

I see that as the issue.

Now, I do not think that is a valid theory.

I do not think the state of Montana either legislatively or judicially should be examining decisions of the Supreme Court of the United States to determine what is non-constitutional baggage in terms of time.

The Supreme Court applies the rule.

It decides when the constitutional rule should be applied and the states and the legislatures should follow it in my judgment.

Now, the question is also raised as to whether there is any significant difference as to the time when jeopardy attaches.

I think it is a very important question.

Let me suggest one point to you before I approach that question and that is the burden of proof.

It used to be and perhaps I am adopting from the equal protection cases the rule of compelling state interest or at least some rationale rule.

What we are doing here is not justifying, the state is not up here justifying and saying there is some compelling need not to have this rule that has been announced in Downum and Somerville and all of the rest.

There is some compelling reason in the state of Montana why we should not have this rule.

So that when we talk about the difference, I to not want to be on the defensive by simply saying to you that maybe I can satisfy you as to the significant difference and maybe I cannot.

Justice William H. Rehnquist: I thought all statutes were presumed constitutional, counsel?

Mr. Charles S. Moses: That is, all statutes are presumed constitutional, but that is one of the problems we get, if I may just make a brief comment on that point.

In the state of Montana, we have conclusive presumption contrary to Murray v. U.S. and the teachings of the Supreme Court.

So that if we take the rule in Montana that we have a presumption to that effect which is conclusive, then we have presumptions which are again non-constitutional issues.

You see my point is that the states in my view sir, we have that presumption, but if you were to apply it in the state of Montana, you would find it conclusive in the --

Justice William H. Rehnquist: Well certainly, no one suggests it is a conclusive presumption.

180 years of decision of this Court show otherwise, but you are talking about who the burden of proof should be on as to unconstitutionality?

Mr. Charles S. Moses: Yes, I understand the point.

I am going to make that extra point in that it is my judgment that state of Montana does not follow at all the Supreme Court decision.

You are right there is that presumption, but my understanding is that if you are going to depart from the constitution you must show some compelling reason for doing so.

Justice William H. Rehnquist: Well, you have to -- I would think if you are going to depart from the constitution no showing would justify it.

Mr. Charles S. Moses: Well, that is why the issue is very narrowly drawn in this case Your Honor because if the Supreme Court in Downum, Somerville and all the others, if that is an application of the Supreme Court then the State of Montana cannot change it, that is clear.

The issue in this case seems to be as to whether we can take of a portion of what the Court has said and say that that is non-constitutional baggage.

Now, that is as I see it.

If it is a non-constitutional issue as to the time when jeopardy attaches then of course there is not any significance and of course the thing can apply.

When you talk about the question of whether there is any significant difference, the question is whether you have a valued right to have his trial completed by a particular tribunal that US v. Jorn and US v. Sisson.

I think there is some merit as to permitting the prosecution a preemptory challenge to the entire panel.

I think there is a lack of reciprocity, perhaps like in voir dire.

What I am saying to the Court I think is simply that that issue was addressed to the Court in the issue by Mr. Chief Justice Tuttle in this particular manner in which he said on page 15 is that the valued right to have this trial completed by a particular tribunal independent of the threat of bad faith conduct by the Judge or prosecutor.

Now, I take that to mean that you are entitled to the double jeopardy argument regardless of whether the discretion of the Court in dismissing was in good faith or in bad faith.

I think that when we come to a valued right, the question is simply, is the person in jeopardy when the jury is empaneled and sworn.

I think that he is.

I think the opportunity to have preemptory challenge to the entire panel, in our state, we are now giving some preliminary instructions as to what the law is in this particular case, we have opening statements in which there are outlines of what they intended to prove.

Justice John Paul Stevens: Mr. Moses from that point of the preemptory challenge to the entire panel which concerned me before, under Montana Law does the prosecutor have a right to have the prosecution dismissed after the jury is sworn, but before the first witness is sworn or is it subject to permission by the Trial Court?

Mr. Charles S. Moses: In my judgment it is subject to permission by the Trial Court.

I do not think he has an absolute right, no sir.

Justice John Paul Stevens: Well, then his argument, and I did mention your response to that, his argument is that if you have a prosecutor who seeks to manipulate by dismissing the panel, he can do it equally before the swearing and then equally as well before the jury is sworn as immediately thereafter.

Mr. Charles S. Moses: I think is is a point well made by Mr. Keller.

I think that is true, but I think it points out the problems that we are having.

We are just taking another single step down the line, but the manipulation according to Justice Tuttle, the right here preserved is independent of the threat of bad faith conduct by Judge or prosecutor, whatever they do, jeopardy has attached.

Justice John Paul Stevens: I suppose the countervailing consideration, I am just trying to think it through is that before you really start questioning witnesses and the like, you do need a point in the procedure, proceedings where there is kind of a cleanup of all outstanding motions and odds and ends before, whereas which might have involve a dismissal or retrial or change in the date of indictment or something like that and is not there some sense to saying that an orderly procedure would have that come right before you put the witness on or before you make your opening statements rather than right in the midst of the jury selection processes and before the jury.

Just in terms of an orderly way to get the trial going is not there something that favor his argument here?

Mr. Charles S. Moses: I do not think so, but I am not sure I understand the point completely.

The pre trial motions and everything that is done ordinarily is done before the selection of the jury.

We had two judges to rule on these motions that we urged and urged and urged.

Justice John Paul Stevens: But is it not true that in this case they waited until after the jury was sworn before they presented some motion which the judge regarded as timely?

Mr. Charles S. Moses: Those motions were evidentiary in nature only.

What I do is that I present all of my pretrial motions.

I argue them again and again and at the time of the trial, I have the motions in limine.

Now, I could have waited, there is no question, I could have waited until the first witness, that was not the issue at that particular time.

It was not the issue.

It was not ingenious.

My issue was at that time that the entire nine counts did not stayed a claim for relief and they dismissed all of them, but the two of them and I am still maintaining, despite the Circuit Court of Appeals that the First Count was never any good and that was the issue.

And I felt that ought to be resolved because if you had to go on with the case with the other five counts then it is difficult under Ashe v. Swenson and Turner v. Arkansas to go back and try the other issues that had been kicked out by the Court and I put that in my brief and addressed it to the attention of the Attorney General and to the Court.

Here is the dilemma, let us go to the Supreme Court and get it all decided.

Unknown Speaker: Mr. Moses, may I interrupt a minute.

Did you make this motion before the jury had been sworn?

Did you make the motion to restrict the States evidence?

Mr. Charles S. Moses: No sir I did not.

Unknown Speaker: Could you have made it under Montana Law prior to the swearing of the jury?

Mr. Charles S. Moses: I do not know the answer to that sir and the reason that I do not know --

Unknown Speaker: Is there anything in Montana law that would have prevented you making it?

Mr. Charles S. Moses: No sir, I know of no law that prevents it.

The Attorney General at that time argued that motions in limine were unknown to the State of Montana as far as evidentiary rules are concerned.

Unknown Speaker: The information was defective because of this typographical error on its face?

Mr. Charles S. Moses: No sir.

Unknown Speaker: What was your motion then?

Mr. Charles S. Moses: My motions that were presented before two Courts prior to any having the trial commence.

Unknown Speaker: But the jury had been sworn?

Mr. Charles S. Moses: No sir.

I presented these motions in full, supported by briefs that there was not under any of the counts sufficient claim for a criminal violation.

Those motions were not defeated twice.

Then I went into Court after the jury had been empaneled and sworn to be consistent.

Alright, if that is your view that they do state a cause of action then my motions were to require them to prove the venue as laid, to prove that there were false and forged documents.

Those were the nature of my objections and also to confine them to the proof of a particular time of which I happen to think would not win, but the other motions where what was important preparing false evidence, those motions in limine, that was what --

Unknown Speaker: But the motion that precipitated the controversy that is here today was to restrict evidence to the dates in the information as I understand it --

Mr. Charles S. Moses: Well, they have extracted that from my point of view, so that was not the vitality of the motions that were presented.

For instance in Montana, you have to determine whether the time is relevant, whether it is significant and whether you can prove it in sometime prior to five years before the filing of the complaint.

I really did not think that was that relevant.

I think it is necessary when they do not, when it is consistent with pretrial motions and we have argued vigorously and supported in our trial brief.

Unknown Speaker: The effect of your motion was to bring about a dismissal of the information?

Mr. Charles S. Moses: Oh! Yes, ultimately dismissal of these other counts.

Unknown Speaker: Yes, in practical effect your motion was to dismiss because the state had no evidence of the offense that was charged?

Mr. Charles S. Moses: I disagree with that sir.

The State had evidence of those charges as to that particular time.

There was the filing of the application.

There was other information submitted.

There was a final settlement in the Workmen’s Compensation covering a spectrum of time of almost a year.

They could have prevailed on the first application to show that it was fraudulent within the time span stated.

Unknown Speaker: Is your motion in the appendix, I do not recall?

I do not think it is in --

Mr. Charles S. Moses: I do not believe that it is sir, no sir.

I think one of the, to conclude my argument, one of the things that concerned me theoretically if I may place it it in that light is the question of raising non-constitutional issues as a theory to be adopted by this Court.

For instance, I think Justice Stewart addressed the attention to Williams v. Florida and Apodaca v. Oregon.

It is necessary I think to approach that directly.

Is there a difference or a distinction between those cases and this case?

I happen to believe that there are.

First of all, we have an authoritative statement in the Supreme Court of the United States as to this particular issue.

In other words, that jeopardy attaches when the jury is empaneled and sworn.

I think that is a difference and a distinction.

There was something bag and baggage, that was a part of double jeopardy as enunciated by the Supreme Court.

I think that is a difference and the distinction in Williams v. Florida and Apodaca. Furthermore, it is my belief that there is a difference because the application, the Court is called upon to apply this constitutional standard and the question is when should it be applied.

It is implicit in the constitutional provision itself as to when it should be applied and I think that that makes it – it involves itself more than the issues raised on just those jury issues.

For those reasons and others, we think that the decision of the Circuit Court of Appeals should be affirmed.

Thank you.

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

Mr. Keller before you begin.

Let me put this question for you, relating to some questions I put earlier.

After the swearing of the jury, in Montana and I take it the prosecutor is permitted to make the first opening statement, if he elects to do so, is that correct?

Rebuttal of Robert S. Keller

Mr. Robert S. Keller: Yes, sir.

Ordinarily there is a brief statement made by the trial judge before the jury is even voir dire to give them some concept of why they are here and then the question starts.

Chief Justice Warren E. Burger: I am addressing myself now to the possible damage or injury to the defendant that can occur from the opening statement.

If an opening statement is let us assume one that is outrageously bad and misrepresentation by the prosecutor.

Of course the prosecutor is not going to move for a mistrial on that ground, but the defense might do so and I suppose under Montana procedure and practice, if the opening statements have been excessively bad, the Court could grant that motion?

Mr. Robert S. Keller: Yes sir.

Chief Justice Warren E. Burger: Then there would be no double jeopardy problem?

Mr. Robert S. Keller: I do not know about that, but yes the Court could grant that motion.

Chief Justice Warren E. Burger: Well, if (Voice Overlap) that motion at the request of the defendant, the defendant would be in rather a difficult position to raise --

Mr. Robert S. Keller: Well, his position I am sure and knowing the talent that we have in Montana would be that he was forced to do this and it is double jeopardy and I think there would be some merit to that approach in the proper situation, but I am sure that is not why you asked the question.

We do not need to get that far.

Yes, if the conduct of the prosecutor were outrageous, it would be the defense move for a mistrial or conceivably the Court of its own motion grant a mistrial just for this reason.

It would not be too unlike yesterday’s case when you spell out the reason.

Chief Justice Warren E. Burger: Presumably if the Court granted a mistrial of its own motion, a double jeopardy question could well be preserved.

It would be much less likely if the defendant moved for it and of course we could assume that the prosecution is not going to move for it?

Mr. Robert S. Keller: Not under those circumstances, no sir.

Chief Justice Warren E. Burger: Unless a senior officer happened to walk in the courtroom and wanted to avoid the problem, well, go ahead.

Mr. Robert S. Keller: Just to respond to some of the comments; we did not extract this part out of the motion in limine.

This motion at that time which at that time leaves the state in the position of trying to convict for an offense that was repealed a month before it is alleged to have taken place, is not an extraction, that went to the heart of everything.

They had to do something with those three counts.

A part of the confusion that arose here is of the nine counts, three were subject to the problem so the judge dismissed them sua sponte.

The state dismissed of its own motion the remaining six and I think this is Mr. Leaphart’s point that he is still sweating out, then on the retrial, one of the defective counts and one of the counts that state dismissed were all that were charged, so there is still five counts sitting out and I see what his point is and we do not intend to prosecute, but that is not just something we just brought up.

We did not even know anything about this until it just came out in the Solicitor General’s opinion and this is the first time that we even thought about it, no we will not.

The voir dire questions that were that were commented on as true in both systems, federal or state.

If you are going to talk about opening statements, that is fine.

That can come up under the state system, but if you are going to affect that jury by your voir dire questions, you affect them under either system, so that is not a distinction between the two systems, if you want to affect your jury because they are not empaneled and sworn yet.

The valued right concept may be a valuable one, but I would like to call the Court’s attention that we do not see it from this Court until 1948 in Wade against Hunter and then we are talking about a court marshal.

In all candor with the Court, Justice Douglas relied on Cornero, a lower Court case of 1931 that refers to the valued right and in further candor, I found the valued right as such clear back in United States against Simmons, United States against Shoemaker and that is back in 1840, but nobody said what it was and the most that I have a feel of it was because that is the overall concept, is let us get the case tried now as distinguished from we have a right to this particular tribunal.

The question of judge trial in Montana needs to be tempered a little bit by the fact that Montana has an extremely liberal disqualification feature.

So we can disqualify for no reason, either side one judge in a criminal case, two in a civil case.

You do not have that same rule in federal cases.

It is tough to get a federal judge disqualified.

Does this mean if we are going to adopt this as part of the constitutional baggage that we know are going to have to be faced with what you can do disqualify a judge if you have a vested right to this judge in a judge trial.

I really do not mention to complicate it, but Montana is that way, going back to the wars of the copper kings, it is not hard to get rid of a judge in Montana in either criminal or civil cases and I do not say that disrespectfully.

I was seven years on the bench so I just know it is not hard to get rid of them.

The only other thing I have to conclude with the argument is I want to pose this question.

Suppose in Congress in 1970, in the Criminal Appeals Act had instead of saying until jeopardy attaches had said when the first witness is sworn, would that have been unconstitutional?

Would we be here today?

Supposing Congress today enacts legislation that says in the federal system, jeopardy does not attach until the first witness is sworn or enacts the model penal code, is that unconstitutional and I think to me that that is the crutch of the issue.

Chief Justice Warren E. Burger: Thank you gentlemen.

You have all been most helpful.

The case is submitted.

Print this transcript Transcript: 

Argument of Robert S. Keller

Chief Justice Warren E. Burger: We hear arguments first this morning in Crist against Cline.

Mr. Keller, you may proceed, whenever you are ready.

Mr. Robert S. Keller: Mr. Chief Justice and may it please the Court.

You will recall this matter was remanded to be re-briefed and re-argued on two expanded issues and the first issue was whether or not the federal rule that jeopardy attaches in jury trials, when the jury is sworn is constitutionally mandated.

I think after reading the briefs in this thing that we can fairly agree without arguing that at the time of the constitution it was not constitutionally mandated and it was not a part of the constitution.

There were two common law rules at that time, Lord Coke's Rule and -- and the Double Jeopardy Rule and when we get to as far as Perez.

Perez in the Touch Tone case of manifest necessity says, “This is not a Fifth Amendment consideration, this is not Double Jeopardy.”

Perez was going into the question of whether or not it is permissible to take away that defendant’s right to a jury, once the jury is empaneled to sworn, Lord Coke’s Rule made it mandatory that you go to court for the verdict, but it clearly at that time was not a part nor considered a part of the Fifth Amendment.

It does not become that until -- and various jurisdictions in construing the rule of practice or the Lord Coke's Rule, there were dismissals.

There were improper dismissals and they held the improper dismissal to be tantamount to a jury verdict and as a consequence of that, then it was Jeopardy under the Fifth Amendment.

Justice Potter Stewart: In the original concept of the common law, there could be no such thing as a failure of a jury to reach a verdict, is not that correct?

They lock them up on bread and water and they would come back with a verdict on whenever they ready?

Mr. Robert S. Keller: This did happen, yes. You do not see any changes in that, until Blackstone does bring out the words -- maybe there would be evident necessity, but it took a real necessity, a juror had to die, a hung jury are the things that gave them all their (Voice Overlap) --

Justice Potter Stewart: There was no such thing as a hung jury in the concept of jury common law?

Mr. Robert S. Keller: No, no.

Ironically in the common law states, common law to get clue, in Pennsylvania and I am talking about cases that were all decided back between 1800 and 1820, they upheld Lord Coke’s Rule and that jury had gone 36 hours, 24 without food or drink.

Two jurors, 75 years of age or older, who had just got out of the hospital were in trouble and the doctor looked at them and said if they have some food or drink, something they can go on.

So, the judge permitted the jury to vote on it and the jury said, “No, do not give it to them” and obviously they had them hanging on the ropes and the judge finally let them off the hook and dismissed the jury and that Pennsylvania Supreme Court held, “No, this was improper and free the defendants.”

They ought not to be and they took a strict reading of -- of Lord Coke’s Rule.

This gets commented on, not only later by me, but when I start talking about the Arizona against the Washington case and wonder weather or not we even ought to be here today in the face of that case, that opinion, but that case recites the reason why you do not keep a jury under that pressure and certainly as you mean, it is ironic.

Chief Justice Warren E. Burger: Was there an earlier time when even after an acquittal, prosecutions were brought again and again until --?

Mr. Robert S. Keller: This is a recited fact during the reign of the Stewarts, Mr. Chief Justice and Lord Coke's Rule would have come down early in the 1600s and between that time, in 1688 you would had reign of two kings, the Stewarts at that time, yes there were re-prosecutions until the prosecution could get a sufficient case together, and it was horribly abused.

The history as I read it that as of the revolution in 1688, they went back to Lord Coke's Rule and we did not have that occurring anymore.

The second part of your question is if there were an acquittal, would there be a re-prosecution?

Short of the reign of the Stewart and I do not know the answer to that because that comes out on a case so we know of no time, one there was ever an acquit of a re-prosecution and as a consequence of that whether it was by a rule of Court or whatever the rule, as a consequence of the acquittal, than the double jeopardy application of the common law came into the effect and I cannot answer.

I know of no case, whether has been an acquittal and a re-prosecution, but I was not researching from that standpoint either.

When we researched this and found that the time of jeopardy at the common law is at the time of the verdict of the jury.

There was not any question in our minds.

One; nobody today is going to go back that far in time and say that jeopardy does not attach until the time of the verdict, as it was at the common law and we felt that for simple reasons that we had too much law since then, particularly combining manifest necessity with double jeopardy.

Two; fundamentally it was just unconstitutional you can put a defendant to the blade, you can commit his defenses and still not say that jeopardy attaches, but we had real problems in briefing this, in getting the vehicle to come -- to come forward from the time of -- of the judgment up to where we want to be today.

We did not know what the vehicle was and then came Arizona against Washington and the vehicle is the “valued right” concept.

Downum in 1963, Justice Tuttle in the Ninth circuit in this case said that Downum necessarily has to stand for the proposition that jeopardy attaches at the time that the jury is sworn and the reason that Downum stands for that is because that case involved a case where after the jury was sworn and before the first witness was sworn, the case ended.

They did not have their witnesses for count 6 and 7 and the trial was terminated and from that, Justice Tuttle says, “Downum necessarily stands for this position” and I submit that when you read Arizona against Washington today, you have to come out with the same conclusion.

Arizona against Washington said, “This was an improper opening statement by a counsel, in this case defense counsel, but made at that time between the swearing of the jury and before the first witness.

The fact that two witnesses testified in that case are really incidental to the opinion.

The rationale is the “valued right” concept goes back to the time of opening statements and that of necessity is before the time that the first witness is sworn.

So reading this case as you read Downum, you have to say Arizona against Washington stands for this proposition and that means that the only thing that we can really argue today to this Court is that we do not feel that the “valued right” concept means all of that and we are not sure that what this Court meant, when it said that.

And the reason that I say that is that this Court was particularly careful in the opinion, not to say that.

Arizona against Washington was argued the before the day we argued the last time, so it was pending during the time that our case was pending.

Much of what was said in Arizona against Washington comes out of the briefs that we submitted in this case.

So, that we know that the Court was conscious of this case when the opinion was written and yet the Court assiduously did not say jeopardy attaches at the time that the jury is sworn.

So, we do not know what we are talking about in terms of “valued right” as the vehicle for bringing jeopardy from the time of verdict, up to some starting point in time.

If you read the reasons for the valued right in the Arizona case, then you find that it is to avoid emotional and financial burden a retrial would cause as you find this to prolong the -- avoid the prolongation of the period of stigma and it may even enhance risk that an innocent defendant maybe convicted.

That means if you read it literally, you could even be going back to the time that you first select the panel from which you are going to voir dire.

We do not know where the starting point is on the valued right concept.

We do know, what has been argued under the valued right that this valued right is a right to a particular tribunal and that is expressed as early as 1840 in United States against Shoemaker, it is Lord Coke’s rule.

You are entitled to this panel, this particular jury.

And is also has been argued that the valued right means that anything that goes to that jury, whether it is in the voir dire questioning, whether it is in the opening statement, anything that does something to that tribunal makes that tribunal valuable.

Serfass, United States against Serfass held that the constitutional policy is underpinning the Fifth Amendment are not implicated until jeopardy attaches.

Serfass also held that this Court has consistently adhered to the view that jeopardy does not attach until the defendant is put to trial before the trier of the facts, jury or non-jury.

And then Serfass held, in two different places, without risk of determination of guilt, jeopardy does not attach.

Now, if we read the Serfass case in conjunction with Arizona against Washington, then we are saying that clearly jeopardy does not attach before the time the jury is sworn and no later than the time that the first witness is sworn and we have at least narrowed it down to that point.

If we go back to those points then, then when we talk about the financial and emotional burden that was expressed in the Arizona case, that is not applicable to that narrow period of time.

What difference are we talking about in finances or emotions between the time the jury is sworn and the time the first witness is sworn?

The second reason given is the prolonging of the stigma and that distinction has gone.

Surely, we are not talking about a prolonging of a stigma between the time the jury is sworn and the first witness is sworn.

And, the last is enhancing the risk of conviction of an innocent man and that cannot happen until the first witness is sworn.

Chief Justice Warren E. Burger: In Montana, is it customary for both the counsels to make their opening statements before the first witness is called?

Mr. Robert S. Keller: No sir and I want to get to that and the unfortunate part about it and that is where you have all of the advantage, I can only tell you of my practice in Montana and it is 20 years of trial on both sides and on the bench and it is uncommonly rare that defense counsel says anything in the beginning.

I have never heard a defense counsel say anything in the beginning that the prosecution did not already know.

The only thing that they say is something that they want that jury to hear, which the prosecution already knows and they want the jury to keep a fair mind on something.

an open mind with there as sort of facts come out.

Justice Thurgood Marshall: They want the jury to focus on one point?

Mr. Robert S. Keller: That is conceivable.

You do pick it up in the voir dire, to tell you the truth sir.

I do.

It is there.

That is right, but at least we have reached the point that we are not going to hold constitutionally that somebody is entitled to anything less than a fair jury, so what you have done to the jury in the voir dire, is not something that is entitled to protection and this gets to the point that I was reaching.

The real concept of a “valued right” to me is any trial lawyer knows that that when that defendant goes through a retrial, let us say a hung jury, so we do not have any problem there, he really has the odds against him.

This was brought out in the Arizona case, by Judge Leventhal in the Carsey case and Judge Leventhal pegged it.

The second time through, those -- those witnesses whose weaknesses were developed by cross examination by defense in the first case, they start to shore up their testimony.

It is not a -- it is not a significant alteration, but it is there and I have yet to see the defendant go through a retrial that everything did not change.

All of the surprise is gone. The prosecution knows where he has gone after the first dry run.

The prosecution does not know that in the first case.

They have to be prepared against anything his defense counsel will do.

In the second run, there is no spontaneity, there is nothing.

That defendant has an impossible burden that second time, he really does and this is the reason why -- I thought about this after the argument last time.

You know I argued to you then as matter of law and as a matter of fact that defendant is not in jeopardy until something comes up that makes out a prima-facie case.

And I was arguing from Serfass that without risk of determination of guilt, but I thought about this afterwards and I thought, you know really, from the time that the defense counsel makes his first objection or does not make his objection as a matter of strategy, that defense is committed.

That is when they really going in and expose their hand to the prosecution and from that point on, that defendant does have a valued right to get this matter heard by this jury, by this judge, by whatever because now, for the first time, when he did not have to, he has tipped his hand and now his concern is interest is there, is important or as was said in Jorn in defining the same valued right, if the right is valued it is because the defendant has a significant interest in the decision of whether or not to take it from the jury.

And I submit, until the time that the defense counsel has done something in this case, it tips his hand to the prosecution, up until that point it is not the time of interest that is so significant, but deserves constitutional protection, but from that point on it is.

Rather than try and find out in any given case when that is, then it is the time evidence is given.

You know is right after that, in any given case.

Justice Thurgood Marshall: But it could be if against the usual policy, defense counsel makes his argument to the jury?

Mr. Robert S. Keller: It certainly could.

Justice Thurgood Marshall: It could, then he is committed?

Mr. Robert S. Keller: That is right.

Justice Thurgood Marshall: Probably a committal --

Mr. Robert S. Keller: That is right, problem with that rationale is I just do not see --

Justice Thurgood Marshall: They do not do it?

Mr. Robert S. Keller: But if we are going to say that is what it takes to put jeopardy, I expect we will start seeing it, but that the same defense counsel could tell the prosecution three weeks before that “This is what I have up my sleeve” and I cannot imagine in trying to tell him three weeks before anymore than I can see in a competent defense counsel tipping to the prosecution.

Justice Thurgood Marshall: Well, I think the difference is that one is in the presence of the Court and he is stuck with it as if he just tells the prosecutor he is not stick with it?

Mr. Robert S. Keller: Oh! I see what you mean.

Well, that is true.

Justice Thurgood Marshall: Would not that be?

Mr. Robert S. Keller: Yes, yes that clearly is.

He could do it for the record three weeks before if he wants to, but as a practical matter no, he really does not and it is not a case of giving the prosecution a week to get ready.

No defense counsel gives a prosecution five minutes to get ready if they can avoid it.

You do not tell something that they do not know, until it is your turn to put on your case and then it comes and I just simply and I have to speak empirically, I do not see defense counsel telling the prosecution anything any sooner than they have to.

And, when they make an opening statement, they do not tell them anything, the prosecution does not know.

They are just telling the jury what to expect, but the prosecution knows this.

Justice Potter Stewart: As I understood you earlier, you told us that in your State of Montana, it is not the practice to have opening statements.

Mr. Robert S. Keller: No, I did not.

In answer to that property then Mr. Justice Stewart, it is, but not at the time of the -- prior to the taking a testimony.

The defense counsel usually reserves his opening statement.

He has the right to make it then and he asks -- he says, “I am going to reserve” and when the prosecution has rested and the defense is now ready open his case, then he makes his opening statement, that is long after the witness --

Justice Potter Stewart: After the prosecution witnesses have all testified, the prosecution has rested, then the defense counsel makes his open statement to the jury?

Mr. Robert S. Keller: That is correct.

Now, he has made it before, but he has never -- I have never heard he make it that he tells the prosecution anything.

It is only for the benefit of that jury going to this particular -- the defense knows what the prosecution is going to give.

If he did his home work at all, he knows what the witnesses have and he is telling this jury at that time what to anticipate and in essence to keep your mind open, but he is not telling the jury anything that the prosecution does not already know.

It is that tipping of the defense that I think makes anything subsequent to that valued, to that defendant.

Justice Potter Stewart: When if at all Mr. Keller does the prosecutor make his opening statement in your practice, in Montana?

Mr. Robert S. Keller: Well, he makes his statement as such after the swearing of the jury and before the swearing of the first witness, but there is in various jurisdictions, various judges before the state, there is some opening remark made at the time you first picked the panel of 24 that you are going to cut down to 12, so that they at least know who the defendant is, what he is charged with.

Justice Potter Stewart: Well, that is part of voir dire, is it not?

So you can ask him, “Do you know the defendant --”

Mr. Robert S. Keller: And the prosecutor who starts first may well be the one.

The judges do not enter that actively in the questions of the parties doing this, as distinguished from the federal court, where the judge literally conducts all of the voir dire.

Justice William H. Rehnquist: But, do the Montana judges not, at the time of the filling of venire into the box, make some very brief statement that this is a criminal case and such and such is the charge and that sort of thing?

Mr. Robert S. Keller: Yes sir, yes sir and it varies with judges.

Almost all of them do at least that.

Some will go through preliminary half-a-dozen questions.

Do you know any of the -- these are the counsels and the parties, do you know them and ask them and get those questions out of the way in general and if they do, they hold their hand up and they leave it up to counsel to interrogate further.

Unknown Speaker: And Mr. Keller, when actually is the jury sworn, after selection or as the panel is sworn?

Mr. Robert S. Keller: It is initially Sworn when it is picked to tell the truth as to the answers that are given, but when -- and that is the whole panel.

Justice Potter Stewart: It is the whole venire?

Mr. Robert S. Keller: That is correct.

Unknown Speaker: And before the 12 are chosen?

Mr. Robert S. Keller: Exactly.

Justice Thurgood Marshall: That is only --

Unknown Speaker: Now the 12 begin -- after the 12 are chosen or later?

Mr. Robert S. Keller: Sworn again.

Justice Potter Stewart: And that is to (Voice Overlap)?

Mr. Robert S. Keller: That is right.

Unknown Speaker: And what we are talking about --

Mr. Robert S. Keller: It is three times they swore them.

The first swearing is that they are going to tell the truth as to the questions asked, generally as to whether they qualify even to be jurors in general, then they go and they have another oath that they are going to answer the questions asked in this particular cause by counsel and as to their respective qualifications.

Unknown Speaker: And that each one -- each one individually does that? Do you swear each one individually?

Mr. Robert S. Keller: No sir, no sir, never.

In fact, as a matter of practice swear everybody in the Court room the first time.

First time it is done in the Court and they have to be qualified.

Okay then from that, you pick your panel for that day and you usually pick 24 for a trial of 12 because you have enough peremptories going in there.

You want to be -- when you are all done, you want to have 12 left.

You have 20 in there to get by.

There, they stand up and take the oath, but so the remaining jurors in the courtroom who may well be called into this case if somebody is out for cause and that is to answer the questions in this case. But when you finally get to 12 and the alternatives, if there is going to be any, those 12 or 14 stand up and now are sworn the third time.

Chief Justice Warren E. Burger: But this first oath is essentially like the oaths given to witnesses, merely to tell the truth?

Mr. Robert S. Keller: Yes sir.

First two oaths are that.

I do not think anybody ever contented.

They have anything to do what we are talking about.

We are talking about swearing this final body of 12 to --

Justice Byron R. White: That is the -- that is the swearing -- that it is claimed jeopardy -- jeopardy attaches?

Mr. Robert S. Keller: That is correct.

Unknown Speaker: Only then, not to --

Mr. Robert S. Keller: That is the one I surely construe to mean.

That is -- historically, that is the time when that jury is sworn --

Justice Byron R. White: Some have argued it ought to -- some have argued that -- that jeopardy ought to -- ought to attach earlier?

Mr. Robert S. Keller: Yes, yes because of what is said to that jury in the voir dire that it should.

Justice Byron R. White: Exactly.

Mr. Robert S. Keller: Yes, and our position on that is consistent with the Arizona case and we cited in our brief Morris, you are just not entitled to a prejudiced jury.

The real function at the selection at that time is to come out with 12 jurors that are fair-minded and impartial, and it may well be that as a defense counsel, I would like to have some sleepers on there.

It may well be as a prosecutor, I would like that, but I far cry to say that it is entitled to Constitutional protection.

So theoretically, we are supposed to be coming out with 12 impartial people and we have no particular interest in that tribunal other than the fact that they be impartial jurors.

Justice John Paul Stevens: Mr. Keller, you have indicated that it would make sense to have the point to which jeopardy attaches be one that the defendant has committed himself or want to make a difference.

Are there reasons for moving the point at which jeopardy attaches back from -- from the present rule that it attaches when the jury is sworn back to back, significant enough to overcome the interest in having settled law remain clear and definite and certain.

There are some advantages there, but everybody now knows what the rule is.

Do you think it is the change?

Mr. Robert S. Keller: Settled law did not become settled law --

Justice John Paul Stevens: No, but they are settled today --

Mr. Robert S. Keller: -- until 1963, well over a century and a half, almost two centuries after we started.

Wade against Hunter first annunciated the value of right concept a century and a half after we started and I might add in a non-jury case, and now it is settled, but it really did not become this till 1969 because it was not settled in Montana.

It was not settled in any of the States until Benton against Maryland in 1969.

It is settled in the minds of the Federal Judiciary because it has been around for a long time, but it has not been with the others.

As far back or as recently as 1935, the ALI is recommending that jeopardy not attach until verdict of the jury, where it was in the beginning.

So (Voice Overlap) it is not settled and our question is, have we afforded protection for this defendant under any guise by saying it attaches at the same time as it does in a non-jury case.

Excuse me, sir.

Justice Potter Stewart: As I understood, your point is that the -- this -- this point of the law that something happens when the jury is empaneled and sworn.

It was not ever really part of the double-jeopardy --

Mr. Robert S. Keller: No.

Justice Potter Stewart: -- was at all.

It was part of a quite a different rule that a person is entitled once the jury is empaneled and sworn to go to trial with that jury and to go to a final conclusion of the trial?

Mr. Robert S. Keller: Civil or criminal?

Justice Potter Stewart: Civil or criminal and that is a different -- it has a different origin from the -- from -- and is unrelated to the double-jeopardy?

Mr. Robert S. Keller: That is correct.

Justice Thurgood Marshall: Mr. Keller, exactly when you were a judge, I think most of them the jury, could not the defense counsel commit himself on cross examination?

Mr. Robert S. Keller: Yes, that is why I agree with the rule of attachment which is the swearing of the first witness because I think when that first witness, the prosecution starts to testify, the defense counsel commits himself by objecting even before cross-examination, by objecting to a question or for strategy reasons, not objecting to testimony.

At that point he has in this thing and that is why I do not have any objection and I do not mean it really because of Montana statute either.

Sure, I want to see, I think we have afforded protection, but just in terms of trying to figure out where this ought to be and be something that is going to protect the defendant’s right across the board and not just in a given State, I can see it attaching that soon because at that point the defense counsel is starting to put something into this case, but he does not want to have to. He has tipped his hand.

If he goes a second time, it is not going to be that way and I know it is not going to be that way.

Judge Leventhal pegged it and I think any of us who have tried cases know that Judge Leventhal has pegged it, that second run is for a --

Justice Thurgood Marshall: (Inaudible) real easy, talking about real easy?

Mr. Robert S. Keller: Real easy.

Justice Thurgood Marshall: then he commits himself, well, I made a mistake, judge, I move to suppress the (Inaudible) trial?

Mr. Robert S. Keller: No, he really does not.

Yeah, I know.

I know that -- that he has certainly got to do his work, but he has got to his work when his client came in the office and you can go back to the time that the information is filed and you see efforts on that time to -- to question whether or not the affidavit for leave to file is correct or you question whether or not, before I adjust the piece, probable cause was shown and cause a transcript to be made and you have argued that and that is all part of the tools of the trade, but the real question is, has he committed himself then?

No, he really has not because if he does not do it then, he is not going to be able to do it.

So that is just part of the process.

Justice Thurgood Marshall: (Inaudible) if he changes his own strategy --

Mr. Robert S. Keller: Of course he could.

Justice William H. Rehnquist: Why should -- why should the so-called “valued right of the defendant” to go to trial before the first jury depend entirely on when the defendant’s lawyer has committed himself, as you put it?

Mr. Robert S. Keller: Because I do not think his right is that valued until that point.

Lord Coke’s rule, if you have read into biographies on Lord Coke, he never gave any reasons for his rules.

If they took out all the rules that he gave with no reason, they would lose 75% of the English law, but his rules have been good so how do we find out what the reason is that gave us valued right and that is where we came into this case.

Justice William H. Rehnquist: What I am asking you to do is to perhaps do what Lord Coke did not and supply a reason for the statement you make that the commencement of the “defendant’s valued right” begins with the point when the defendant’s counsel has committed himself, why should that be?

Mr. Robert S. Keller: Because once he has tipped his hand to the prosecution on something that the prosecution does not know where he is going to go, then if he gets a retrial on that point, there is nothing left for the defense to have.

It is just that -- it has already been run.

There is no spontaneity.

The second trial, and I use this as an example where there is a hung jury, so it is a clear rerun of the whole show and that defendant’s chances at that time, Justice Rehnquist are just simply zilch.

There is no secret.

The prosecution knows where the defense counsel is going.

Those witnesses that were there to testify that the defense counsel shredded on cross-examination and now get the shading that is indicated by Judge Leventhal in the Carsey case and it is just a different trial, and the defendant’s chances are seriously enhanced, apart --

Justice William H. Rehnquist: With many hung jury cases that is the classical reason for granting a mistrial and permitting the prosecution to start over again?

Mr. Robert S. Keller: Yes, I know that because there is no reasonable alternative.

The alternative as pointed out in the Arizona case and prior to that, is you are going to put some sort of influence in those juries to come out with a -- with some verdict rather than a mistrial and that is not fair.

But just because we do not like that aspect of it, I read this in the valued right definition or reasons, given the Arizona case, this possibility that you may convict an innocent man, that is where it comes.

It is that chance that he is going to tip his defense and that it runs again and that may well be an innocent man.

I do not see anything significant about the defendant’s right or anything else until that point when he has tipped his hand.

Chief Justice Warren E. Burger: And you say that never occurs until the first witness is called?

Mr. Robert S. Keller: It can occur until that time, unless he wants to voluntarily go out and do something to tip his hand, which would include making an opening statement of what he is tipping.

Chief Justice Warren E. Burger: And he can always save that opening statement in both federal and in Montana courts until he is ready to open?

Mr. Robert S. Keller: That is correct.

Justice John Paul Stevens: Mr. Keller, can I ask you one more question?

You said at the outset that, of course you did not have the benefit of Arizona against Washington when you filed your briefs and that had -- if you had, that kind of decides the whole case, but do you think Arizona against Washington helps you or hurts you?

I am not quite sure I understand your position?

Mr. Robert S. Keller: I do not know, either.[Laughter]

I want to said that you could read this later the same way Downum is being read to say, well, if this happens when the prosecutor made his opening statement, that is before my point in time and we are in trouble, but on the other hand, this Court had to know this case was pending and this Court did not say, as it had said in the past, jeopardy attaches when the jury is sworn and when you assiduously did you not say that, I have to believe that you are leaving open this very question we are here today on and I think that hinges on what is the valued right and -- and when should it have constitutional protection.

Chief Justice Warren E. Burger: Very well, Mr. Keller.

Mr. Geller?

Argument of Kenneth S. Geller

Mr. Kenneth S. Geller: Mr. Chief Justice and may it please the Court.

With the Court’s permission, there are two issues in this case that I do not intend to discuss.

First is the question of manifest necessity.

As we noted in our opening brief, the record in this case, does not permit a determination of a number of factors essential to a resolution on manifest necessity issue.

Since it does not indicate whether appellees resisted the amendment of count two of the initial information or whether they objected to the dismissal of that count or to the dismissal of the remaining counts.

In any event, the state appears to have abandoned that issue in this Court.

The second question that I do not plan to address at any length, is whether the State should be free to adopt a rule for the attachment of jeopardy that differs from the rule applicable in federal courts, is not a matter in which the Federal Government has a substantial interest.

It is our view, however, that there is little to justify disparity in the rule as applied to state and federal courts.

The Double Jeopardy prohibition of the Fifth Amendment is of course fully enforceable against the states to the Fourteenth Amendment and the time when jeopardy attaches would appear to be an essential ingredient of the Double Jeopardy guarantee rather than a mere incidental or procedural feature that may be varied without doing damage to the basic constitutional right.

Justice William H. Rehnquist: You are more or less just volunteering as if it is of no concern to the United States as a litigant, I take it?

Mr. Kenneth S. Geller: Well, the issue that is of concern to the United States is when this jeopardy attaches as a matter of constitutional law.

If the Court were then to hold that the States may be free to vary, that portion of the Court’s opinion would be of no substantial interest to the United States.

I would like to limit my discussion then to the essential question posed by the Court in its order of December 5th, that is when as the matter of constitutional mandate, does jeopardy attach?

Now, at -- at common law, as Mr. Keller has indicated, indeed even today in England jeopardy did not attach until verdict.

The historical record leaves little doubt that this was the understanding of the framers to the Fifth Amendment and that the Double Jeopardy Clause was not originally intended to bar the re-prosecution of the defendant whose first trial was aborted for whatever reasons, prior to verdict.

Despite this background, it is settled today that the Double Jeopardy Clause is more than a mere constitutionalization of res judicata principles, plus the prohibition of government appeals from acquittals.

The Clause also protects the “defendant’s valued right” as this Court has said in a number of occasions, to have this trial completed once it has begun.

In other words, a right to go to verdict and perhaps to end the dispute then and there with an acquittal.

Obviously, in order to protect the defendant’s interest in receiving the verdict of the first fact-finder and hence avoiding repetitive trials, jeopardy must attach at some point prior to the verdict.

Question then is that what point in a criminal proceeding does the defendant’s interest in going forward with a trial to its completion and not being required to begin a new, becomes sufficiently substantial to support the conclusion that jeopardy has attached and accordingly, that subsequent trial terminations must be judged under the unyielding requirements of the Double Jeopardy Clause.

In fixing this point, we believe that the Court should be guided by three considerations.

First consideration, which was alluded to earlier by Mr. Justice Stevens, is that the time of the attachment of jeopardy should represent the bright line.

This is an area in which the need for certainty and predictability is especially important.

Unless the point at which the defendant has been placed in jeopardy can be identified with precision in every trial, judges would be forced to guess as to the propriety of terminating the proceedings prematurely, in a situation perhaps not amounting to manifest necessity.

An incorrect assessment may leave to -- lead to immunity for a defendant whose guilt is capable of establishment.

For these reasons, we doubt that the tests offered by the state in this case, which appears to depend, first upon the sufficiency of the evidence that had been introduced, and now when the defendant’s lawyer may have committed himself in some way, or in Professor Schulhofer’s recent article, which is relied on by appellee Cline, which depends in part upon a necessarily subjective view of the difficulties encountered in voir dire, I doubt whether either of those tests would be workable.

The second, we believe that jeopardy should attach at the same point in jury and non-jury trials.

As this Court observed in Jenkins, the Double Jeopardy Clause nowhere distinguishes between jury and bench trials.

The defendant’s risk of conviction is precisely the same in either type of trial and whether the fact-finder is the judge or the jury, defendant has the identical Fifth Amendment interest in completing the trial, hopefully with an acquittal once it has begun.

Finally, the point that selected for the attachment of jeopardy must be responsive to the evils of re-prosecution that the Double Jeopardy Clause was historically designed to prevent, that is the anxieties, the strain and expense suffered by the defendant who is forced to undergo repetitive trials, the possibility of manipulation or harassment by a prosecutor, particularly the chance of a second opportunity to convict the defendant if the first trial is viewed as proceeding unfavorable.

Now, with those three underlying principles in mind, the United States believes that the Constitution does not require jeopardy to attach in any case, state or federal, jury or non-jury, until the fact-finder first begins to receive evidence.

Only when the government begins to meet its burden of establishing beyond a reasonable doubt that the defendant committed the crime charged, can it truly be said that the defendant faces the risk of conviction and it is the risk of conviction that this Court stated in Reid against Jones that the constitutional concept of jeopardy connotes.

The point at which evidence going to the general issue of guilt or innocence is produced, marks a convenient and we believe logical boundary in every criminal case, separating pre-trial preliminaries which concededly do not deserve the protections of the Double Jeopardy Clause from the trial itself.

The rule of jeopardy attaches when the fact-finder begins to hear evidence, which is the -- of course the rule that has traditionally been applied in bench trials, fully accommodates the defendant’s Fifth Amendment interest. Prior to the introduction of evidence, the defendant’s interest in avoiding re-prosecution ordinarily is very weak.

He has not yet suffered any of the strains or emotional distress associated with being forced to undergo a criminal trial.

Moreover, the defendant has little, if any, stake at that pre-evidentiary stage in proceeding to a verdict in order to preserve any fact-findings that the finder of the fact may have made in his favor.

Justice Byron R. White: What about his interest in the particular jury that he has -- that he has chosen and that -- that is now sworn and is ready to hear evidence?

Mr. Kenneth S. Geller: We do not believe that the interest in preserving a particular jury for non-evidentiary reasons is an interest that is protected by the Double Jeopardy Clause.

Justice Byron R. White: What do you mean non-evidentiary reasons?

He wants it because he thinks this is the jury that would do best with the evidence that he is going to introduce?

Mr. Kenneth S. Geller: Well, first objection is that, that is highly speculative.

At least when evidence begins to be introduced, we can assess what sort of impact it might have --

Justice Byron R. White: Well, maybe speculating, but -- but -- but the defendant has spent a long time in picking the jury and he thinks he has got a good one and the courts before its sworn, I suppose you could say, if something that blew up the trial, there would not be any Double Jeopardy attachment.

He -- once it is sworn, the jury processes is -- is completed -- and here is a jury that the defendant’s counsel is convinced that is going to be a very -- maybe a very biased jury.

He is convinced that it will be biased in his favor.

You -- you cannot say that it is not a substantial interest here?

Mr. Kenneth S. Geller: Well, I can say it is not a substantial interest protected by the Double Jeopardy Clause.

I can agree with you, Mr. Justice White, that it may be a substantial interest of the defendant that is entitled to protection, perhaps even a constitutional protection.

And if for example, a prosecutor sought to abort the trial after the jury had been selected, but before evidence began because he thought that the finder of fact would be unduly favorable to the defendant, there might well be remedies for a defendant in that situation, either under the Jury Trial Clause of the Sixth Amendment, or the Due Process Clause of the Fifth Amendment.

Chief Justice Warren E. Burger: But does the jury -- does the constitution guarantee the man a favorable jury or an unfair jury?

Mr. Kenneth S. Geller: Obviously it guarantees him a fair jury.

Justice Byron R. White: Well, the defendant is convinced that this -- he just is very convinced that this is an impartial jury and sometimes his -- his lawyer knows or have not been the impartial juries and he thinks -- but he thinks he has got one now and would like to keep it?

Mr. Kenneth S. Geller: I am not disputing that that maybe a substantial interest of the defendants.

I think the task for this Court is to determine whether that is an interest protected by the Double Jeopardy Clause instead of perhaps the speedy -- the Jury Trial Clause or the Due Process Clause.

I think there is substantial evidence that it is not an interest protected by the Double Jeopardy Clause.

For one, as you alluded to a moment ago, Mr. Justice White, if the prosecutor at the voir dire or when the venire comes into the courtroom or even after the jury has been selected, but before it has been sworn, does something to abort the trial because he thinks that the jury is unduly favorable to the defendant.

There is absolutely no Double Jeopardy analysis of his actions, although there may well be --

Justice Byron R. White: Well, depends on when -- that depends on when you decide Double Jeopardy -- when you decide jeopardy attaches?

Mr. Kenneth S. Geller: Well, the law is developed in the last 200 years to -- to now, the current understanding which I assume this Court has prepared to reassess in this case, such that in jury trial --

Justice Byron R. White: Well, I know -- well, I know, but you want to -- you want to reassess, maybe we should reassess it forward?

Mr. Kenneth S. Geller: I think that the Court should reassess the entire area and decide where logically in light of the history if the Double Jeopardy Clause that is --

Justice Byron R. White: Well, so far, it makes more sense -- what you have said it makes more sense to move it forward to the -- when you begin --

Mr. Kenneth S. Geller: But only if --

Justice Byron R. White: -- over the years than later?

Mr. Kenneth S. Geller: Well, I think it should be obvious, I think to the Court at this point that based upon how the Court defines the interest protected by the Double Jeopardy Clause, it becomes relatively easy to fix the point for the attachment of jeopardy.

In other words, if the Court finds that the Double Jeopardy Clause in fact protects the defendant’s interest in favorable jury selection, then jeopardy should obviously attach at or prior to the selection of the jury.

Justice Byron R. White: I know, but you said -- you said in one of the interests protected is to save the defendant from -- from money, anxiety and time of doing -- going through it twice, and so --

Mr. Kenneth S. Geller: Going through a trial twice.

Justice Byron R. White: Well then, going through a trial twice or going through a criminal proceeding twice, and it may take a couple of weeks to select a jury?

Mr. Kenneth S. Geller: It maybe, it may take several -- several weeks to litigate a pre-trial suppression motion or a number of other pre-trial preliminaries, but no one has ever suggested that the defendant has a double jeopardy --

Justice Byron R. White: Not yet?

Mr. Kenneth S. Geller: Not yet.[Laughter]

Justice Thurgood Marshall: I will not use the word that usually you -- the Judge says or the jury says, if I created the prosecution, is it satisfactory to the defense?

Usually, and they are right?

Once you have -- jury that is satisfactory to the defendant instead of -- in favor of the defendant, this applies onwards?

Mr. Kenneth S. Geller: Yes, significance in the use of the --

Justice Thurgood Marshall: Well I mean, the point is that they always ask that question, do they not?

Mr. Kenneth S. Geller: I assume that means whether any of the litigants wants to exercise any further challenges for clause, whether the -- whether they do not believe that the jury that has been selected is favorable.

Justice Thurgood Marshall: You do not believe that in every case the judge turns and says this jury is satisfactory, can they use those exact words?

Mr. Kenneth S. Geller: Well, I am sure it varies case to case, Justice Marshall, I am not familiar with the practice in the trial courts in every state or in the federal courts, and I do not believe that that is --

Justice Thurgood Marshall: Well then, have you ever seen a trial where the Judge did not say it?

Mr. Kenneth S. Geller: No.

I think what -- what is important is -- is not that the litigant has or have an attempt to pick a favorable jury, but that he had attempts as Chief Justice said, to pick an impartial jury.

Justice Potter Stewart: Or say, historically?

The Double Jeopardy Clause was applicable to somebody who had been tried and convicted or tried and acquitted, he could not be tried again, and this business of the interest in going to trial before the same jury and so on was then grafted on to it and had quite a different history, did it not?

Mr. Kenneth S. Geller: Well, the history --

Justice Potter Stewart: If one looks at the Perez opinion, as I just have and realize for the first time there is no mention at all in that opinion of the Constitution itself, let alone the Double Jeopardy Clause?

Mr. Kenneth S. Geller: Well, indeed justice’s Story says that the first trial did not end in a conviction or an acquittal.

Justice Potter Stewart: Precisely, and therefore one can -- one can infer that from that opinion, that he is saying the Double Jeopardy Clause is inapplicable we are -- we are --

Mr. Kenneth S. Geller: I think that is correct.

Justice Potter Stewart: We are concerned here with something else?

Mr. Kenneth S. Geller: Well, the purpose of the Double Jeopardy Clause is to prevent repetitive trials.

That may happen by a (Voice Overlap) --

Unknown Speaker: Well, after a -- after a con -- or an acquittal?

Mr. Kenneth S. Geller: After a conviction or an acquittal, but they -- they equally happen, I assume, if partway down the trial, the prosecutor decides to abort it and start again, and as again they put --

Justice Potter Stewart: Well, only recently is that I thought had been grafted on to the Double Jeopardy guarantee?

Mr. Kenneth S. Geller: Well, it was not until 1963, that this Court recognized the defendant’s interest in not having to go through it?

Justice Potter Stewart: Right, and as part of the double jeopardy interest?

Mr. Kenneth S. Geller: Right.

Justice Potter Stewart: And there have been -- before that, historically it had been a different interest, may perhaps protected by the Due Process Clause?

Mr. Kenneth S. Geller: I think that, that is -- I think that may be right.

That is correct, although I must say that when this notion that jeopardy attached prior to verdict crept into our law, is one of the substantial mysteries of Double Jeopardy jurisprudence.

We have not been able to determine when precisely the -- the thought became accepted in the United States and those courts that have applied the notion have not seen fit to explain what the rationale is that they are using to deviate from the common law.

Justice Potter Stewart: In the common law, as a condition precedent for the -- for any inquiry under the Double Jeopardy Clause, there would have to have been an acquittal or a conviction?

Mr. Kenneth S. Geller: That is correct.

There has to be a verdict.

Justice John Paul Stevens: The government does not contend that that is the present state of the double jeopardy constitutional law in this country, does it?

Mr. Kenneth S. Geller: No, it does not.

We agree that jeopardy must attach at some point prior -- prior to verdict in order to preserve the defendant’s right, not to have to go through unnecessarily repetitive trial.

Justice John Paul Stevens: And the government does agree that this valued right, whatever it is, is protected by the Double Jeopardy Clause of the United States Constitution?

Mr. Kenneth S. Geller: We do.

We agree that once we fix the point at which jeopardy attaches, any trial terminations after that point should be judged by Double Jeopardy standards.

Rebuttal of Robert S. Keller

Mr. Robert S. Keller: And the government has in amicus curiae in this case?

Rebuttal of Kenneth S. Geller

Mr. Kenneth S. Geller: Yes, it is.

Chief Justice Warren E. Burger: If you give that much weight to that Mr. Geller, how do you reconcile that with what Justice Black said in Wade against Hunter? What has been said is enough to show that the “defendant’s valued right” to have his trial completed by a particular tribunal must in some instances be subordinated to the public interest in fair trials designed to end in just judgments.

If it is totally constitutional, Justice Black’s statement is inconsistent, is it not?

Mr. Kenneth S. Geller: I think that the manifest necessity notion that Justice Black was articulating in Wade against Hunter is also a constitutional notion.

In other words, merely finding that jeopardy is attached and that the trial has been aborted, does not end the analysis.

In order for the defendant to have been deprived of this Fifth Amendment rights, there also must not have been a manifest necessity before the trial termination.

Thank you.

Chief Justice Warren E. Burger: Mr. Leaphart?

Argument of W. William Leaphart

Mr. W. William Leaphart: Mr. Chief Justice and may it please the Court.

The appellants in this case have taken the possession that the so called valued right to a particular tribunal is not of constitutional stature, rather it is a procedural practice, which has developed out of English common law, and the appellant has concluded that this valued right to a particular tribunal does not come into play or does not attach until after the tribunal has actually heard the defendant’s case.

As to the Double Jeopardy Clause, the appellant takes the position in his brief that jeopardy does not attach until after the state has presented some evidence from which the jury could actually convict the defendant.

The solicitor on the other hand has assumed a more moderate position and has urged this Court that jeopardy should attach no later than the swearing of the first witness.

I submit to the Court that the -- this -- the Court’s recent opinion in Arizona versus Washington contradicts both the position of the appellant and of the solicitor.

In the Arizona case, the defense counsel engaged in some references during his opening statement to inadmissible evidence and as a consequence of that reference, the trial Court had to declare a mistrial at the request of the prosecution.

On a Federal Habeas Corpus appeal, this Court subjected the trial court’s actions to a Double Jeopardy analysis and manifest necessity analysis and concluded that there was manifest necessity for the -- the declaration of the mistrial.

The import of that case lies in the fact that the -- the incident arose during the opening statements and that this Court decided that case on the grounds of double jeopardy even though the first witness had not been sworn.

And I submit to the Court that implicit in the Arizona decision, is a conclusion that Federal Double Jeopardy had attached, at least as early as the opening statement and of course the opening statement is prior in time to the point which has been suggested by the solicitor and is prior in time to the point which has been suggested by the appellant.

If, as the solicitor has argued, Double Jeopardy interest could not come into play --

Justice John Paul Stevens: The logic of that argument really escapes me.

Supposing before trial started, the police conducted an illegal search of some kind and the evidence was not introduced until just before the jury retired for the verdict.

Would you say, well, the jeopardy had not attached because the search occurred before?

I mean, you do not look at the time of the -- the time when jeopardy attaches does not depend on when the error was committed, does it?

Mr. W. William Leaphart: No, Your Honor.

What I -- what I am saying or what I meant to say is this the fact -- the mere fact that the Court looked at the double jeopardy problem and analyzed the case in terms of manifest necessity, meant that double jeopardy had attached at least as early as the time the error occurred.

Justice Potter Stewart: Single jeopardy -- jeopardy?

Mr. W. William Leaphart: Excuse me, jeopardy has attached at least that early. If --

Justice John Paul Stevens: Well, I just do not understand the logic because it actually dismissed the case after two witnesses had testified.

So if jeopardy attaches when a witness testifies, then jeopardy is attached when he made his ruling?

Mr. W. William Leaphart: Well, respectfully Your Honor, I would submit that the -- the fact that two witnesses had testified in that case is really incidental to the decision because the --

Justice John Paul Stevens: But is it incidental to the question when the jeopardy is attached?

Mr. W. William Leaphart: No, it is not.

That is what is being argued, but -- in that particular fact situation, the error arose during the opening statement and that was the sole basis of the declaration, I think, of the declaration of mistrial.

Justice John Paul Stevens: That is true.

Justice William H. Rehnquist: But the judge did not declare the mistrial until two witnesses had testified?

Mr. W. William Leaphart: That is correct, Your Honor, but I would -- I think that the fact that he grounded that decision upon the defense counsel’s improper references during the opening statement indicates that jeopardy had to have attached at least that early.

If it had not attached at the time of the opening statements were made, the trial judge could have dismissed the case immediately upon the request of the prosecution.

Justice Thurgood Marshall: Well, how about the several other cases where a defense counsel does not make an opening statement?

Mr. W. William Leaphart: Hypothetically, Your Honor, where the defense counsel reserves?

Justice Thurgood Marshall: Yeah.

Mr. W. William Leaphart: And you are asking when was jeopardy attached in that?

Justice Thurgood Marshall: Yeah.

Mr. W. William Leaphart: Well, if I may backtrack, I am not suggesting that the Arizona case specifically sets the time when jeopardy attaches as the opening statement.

I am just saying that as a minimum, it says that it had to have attached at least as early as the opening statement.

If I --

Justice John Paul Stevens: Well, but supposing this -- this prejudicial argument had been made during the voir dire, which could have happened, he could have made some prejudicial remark, would you say jeopardy therefore had to attach during voir dire?

Mr. W. William Leaphart: No, Your Honor.

I think that the triggering factor is going to be the point in time which the particular tribunal comes into existence.

We are talking about a valued right to a particular tribunal and I -- I am not going to argue to this Court that jeopardy can attach, that the valued right has any meaning prior to the time that that particular tribunal is even in existence.

I think that that is the event which triggers the valued right.

Justice William H. Rehnquist: What is it in Arizona versus Washington that makes you say it has come into existence at the point that the jury is sworn?

Mr. W. William Leaphart: I do not -- I do not think the case goes that far, Your Honor.

Justice William H. Rehnquist: I do not either.

Mr. W. William Leaphart: I think it only goes as far as saying that it has attached at least at the time of the opening statements.

It does not say how far in advance of that time.

Justice William H. Rehnquist: Well -- but I do not think then you -- you have satisfied me as to my brother Steven’s earlier question, that supposing in mid-trial after several witnesses have sworn, the trial judge grants a motion to suppress evidence as a result of illegal conduct that took place four or five weeks before the trial.

Now, surely you are not going to say that the double -- that the jeopardy attached at the time that search and seizure took place, are you?

Mr. W. William Leaphart: No, Your Honor, I am not.

I do not think that is consistent with the “valued right” concept.

The obviously -- the jury, the particular tribunal was not in existence at the time when motion to suppress was made, but what I am saying that I think Arizona stands for is that if jeopardy had not attached prior to the swearing of the first witness, I do not think the trial judge would have even had to concern himself with the “defendant’s valued right” to proceed.

He could have declared the mistrial without any concern at all for manifest necessity.

Justice William H. Rehnquist: But he had -- he granted it when two witnesses had been sworn and testified?

Mr. W. William Leaphart: Well, I think that he was merely taking the prosecution’s motion under advisement while he had a chance to look up -- look up the law in the matter and I do not think that the fact was two witnesses.

Unknown Speaker: But meanwhile jeopardy had attached?

Mr. W. William Leaphart: Well, I believe, Your Honor, in the State of Arizona, that it is attached at the beginning of the opening statements, but I do not think that the Arizona law controls when Federal Double Jeopardy attaches.

Arizona falls right in between the two points that are being argued in this case, but I do not think that is the controlling factor in that case, in the -- in the Arizona state.

Justice John Paul Stevens: Really I think what you are saying is that the trial judge who had to make the ruling was considering the fact that jeopardy had attached at the time of opening statements, but that was either as a matter of Arizona law or perhaps even his understanding of the Constitution, but that really does not --

Mr. W. William Leaphart: Well, it may have been his understanding of Arizona law, Your Honor, but for purposes of the Arizona decision in this Court, that -- that was a question of -- of federal law because this Court in Jorn and in Serfass had stated that the attaching of the jeopardy rule indicates the point in time when constitutional policies are brought into play.

I do not think we can have the State of Arizona or the State of Montana, or any other state telling the United States Supreme Court when constitutional policies were brought into play.

That is -- that is why I say I think it is implicit in that decision, by the mere fact that the Court engaged in a Double Jeopardy analysis, there is an implicit conclusion that federal jeopardy had attached.

There are, I think two other points which have been raised by my adversaries which are answered in the Arizona opinion.

First of all the appellant has taken the possession that the valued right to a particular tribunal is not part of the Double Jeopardy Clause, that it is a common law rule or procedure.

I would bring the Court’s attention to Justice's -- Justice Stevens' unequivocal statement in the Arizona opinion where he points out that the Double Jeopardy Clause embraces the defendant’s valued right to have his trial completed by a particular tribunal and I think in light of that, there is no question, but --

Justice Potter Stewart: Well, that goes back to Jorn which in turn goes back to Hunter, I guess?

Mr. W. William Leaphart: That is Correct, Your Honor.

I think that the --

Justice Potter Stewart: It does not mean that is sound necessarily.

It does not mean that the two concepts do not have different historic origins?

Mr. W. William Leaphart: In fact, I would agree with that.

I think they do.

Justice Potter Stewart: Right.

Mr. W. William Leaphart: And that it had been grafted under the Double Jeopardy Clause.

Chief Justice Warren E. Burger: In Wade -- Wade against Hunter was a jury case or a jury trial?

Mr. W. William Leaphart: Your Honor, Wade against Hunter was a Court Marshal case and I think there can be certain analogies drawn between that in the jury trial because the defendant in a Court Marshall does have some say in the picking of the -- of the fact-finder.

At least, I -- as I understand it you can exercise some challenges for a cause, and I think you can also exercise one peremptory challenge.

Justice William H. Rehnquist: Which was in World War II?

Justice Thurgood Marshall: That no one have -- no one has ever done it.[Laughter]

Mr. W. William Leaphart: I do not know, Your Honor.

Justice Thurgood Marshall: Because it is not healthy.[Laughter]

Chief Justice Warren E. Burger: But there is -- there is no real analogy between the composition of a Court Marshal and the composition of a jury of a trial?

Mr. W. William Leaphart: Just -- just to the very limited extent that the defendant does have some say so in picking the fact --

Chief Justice Warren E. Burger: Theoretically?

Mr. W. William Leaphart: Yes.

The solicitor seems to argue in -- at least in his brief, that the Double Jeopardy Clause -- the sole purpose of the Double Jeopardy Clause is to protect the defendant from multiple exposures to the risk of conviction and certainly the Double Jeopardy Clause does protect that interest, but I think that this Court in a number of opinions, up to and including the Arizona opinion, has taken great pains to point out that the clause also protects the “defendant’s valued right.”

And when the Court says the valued right to proceed before that particular tribunal, that includes at least three other interests that protects the defendant from the -- the danger of having to engage in prolonged period of financial and emotional burden, that protects the defendant from a prolonged period of stigma which results as a consequence of pending criminal charges and finally and very importantly, it prevents the state from using the jury as a prosecutorial tool, that is replacing one jury with another jury when it appears that the state would be unable to convict.

On three -- three separate places within the Arizona opinion, the Court states that every and any mistrial declaration inevitably affects the defendant’s constitutional rights under the valued right concept and I emphasize the words “any and every mistrial declaration” because I think that the use of those words points out that the interest which is being protected -- are being protected do not hinge upon in any way the swearing of the first witness.

We are talking about the interests which come into play as soon as that particular tribunal has been empaneled. The fact that the witness is sworn in really has -- is of no consequence in terms of the interest, which come under the valued right.

Justice Thurgood Marshall: How in the world can a man be convicted if no evidence is present against him?

Mr. W. William Leaphart: Well he cannot, Your Honor, but I --

Justice Thurgood Marshall: Well, then how is he in jeopardy?

Mr. W. William Leaphart: Well, I am saying that this Court has interpreted the --

Justice Thurgood Marshall: I know we discussed that the last time, but the -- nobody has raised that point this time?

Mr. W. William Leaphart: Well, in terms of actually being convicted, he is not in jeopardy, but I think this Court has interpreted the Double Jeopardy Clause as including a valued right to proceed before the jury first empaneled and I think that -- that -- that interest attaches immediately upon the empaneling of the jury.

We are talking about something broader than just the -- the mere risk of conviction.

Justice Thurgood Marshall: Well, we are talking about a possibility of two or three minutes too?

Mr. W. William Leaphart: Well, I think that depends on a particular case we are talking about.

It is conceivable that the jury could be empaneled on a Friday afternoon, you could have a weekend recess, opening statements may take a long time, defense counsel as well as the prosecution may make motions.

Justice Thurgood Marshall: And it also could be a case that is tried early on a Monday morning?

Mr. W. William Leaphart: That is correct and it may be a matter of seconds.

Justice Thurgood Marshall: And both sides waive on new statement?

Mr. W. William Leaphart: That is correct.

Justice Thurgood Marshall: That would not be much good, would it?

Mr. W. William Leaphart: What would not be much good, Your Honor then?

Justice Thurgood Marshall: The one minute?

Mr. W. William Leaphart: Well, the -- conceivably, the prosecutor can still stand up and move to dismiss the jury even though he has only got one minute to do it.

I think his motives are going to be pretty transparent, but he can do it.

Justice Thurgood Marshall: I am talking about an average trial.

The difference -- you say it has to be one witness sworn?

Mr. W. William Leaphart: Well no, I am arguing against that position, Your Honor.

I -- I am just saying that I do not think that -- I do not think the fact that a witness has been sworn --

Justice Thurgood Marshall: I mean, that is the government’s position?

Mr. W. William Leaphart: That is correct.

Justice Thurgood Marshall: That is right.

If one witness is sworn?

Mr. W. William Leaphart: Right.

Justice Thurgood Marshall: And you say no, once the jury empaneled?

Mr. W. William Leaphart: Correct.

Justice Thurgood Marshall: And that could be just a few minutes?

Mr. W. William Leaphart: Between those two points?

Justice Thurgood Marshall: Right.

It could be?

Mr. W. William Leaphart: It could be.

Unknown Speaker: Mr. Leaphart, I am still a little puzzled.

Let me ask what I asked you last time?

Why are you here?

Is it not Cline out of this case now entirely and is in the case moot as to him?

Mr. W. William Leaphart: Your Honor, Mr. Cline is out -- out of jail.

I have not -- I have not raised the question of mootness.

As I answered last time, I think that the -- Mr. Cline’s interest in this case lies in the fact that should this Court reverse the Ninth Circuit Court of Appeals, there is the very clear possibility that the state, if it wants to then can re-prosecute him on some of the other seven counts, which were involved in this case.

He -- he has a very definite interest in saying -- into the saying that the decision of the Ninth Circuit Court of Appeals is affirmed.

He -- he is the appellee in this case.

I am here merely representing him.

The state is the one that has chosen to appeal and from that, I gather that they still have an interest in prosecuting Mr. Cline.

In this Court, I -- I cannot cite the cases to you right now.

I have got them in my briefcase if you would like, but the case -- the Court is held on two different occasions, I think that the remedies available under the habeas corpus statutes are broader in scope and mere -- merely releasing a man from prison that it can rectify the -- the situation at hand.

Unknown Speaker: But we are familiar with those cases, but I just wondered what substance are left in your -- in your case?

Mr. W. William Leaphart: My time is up.

Thank you.

Chief Justice Warren E. Burger: Mr. Moses?

Argument of Charles F. Moses

Mr. Charles F. Moses: Mr. Chief Justice and may it please the Court.

May I suggest to the Court a different area for discussion?

Justice Stewart brought up the issue of the origin of the valued right.

I think that the Fourteenth Amendment to the Constitution is one of the important issues in this case.

I think the question that is raised here, where it says that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, that the history of that Amendment in 1866, while through the Adamson case of Justice Black, which started the incorporation theory is a relevant issue here.

Should the Court adopt a position under the Fourteenth Amendment that the states should follow case by case, jot by jot, under the incorporation theory --

Justice William H. Rehnquist: Justice Black wrote a dissenting opinion --

Mr. Charles F. Moses: Yes, he wrote a dissenting opinion and what he did in the dissenting opinion Mr. Justice Rehnquist was to set forth all of the congressional proceedings where Bingham, the congressman in 1866 said, “I sponsored or I wrote this Fourteenth Amendment because of the case of Barron versus Baltimore which said simply that the first 8 Amendments applied only to the Federal Government.”

So that the construction of the Fourteenth Amendment, I think has a measure of importance here.

The reason that I say that because if it is in origin, a privilege or immunity that is not rare or abstract, but is something that is recognized by the courts, then that is something that should be enforced under the Fourteenth Amendment.

I raise that issue because I think that then, the federal and the state would have the same privileges and immunities.

It would be consistent with the Supremacy Clause as we understand it, the Law of the Land, the bench and the bar would know exactly what the rule was and I think that that is important.

The reason that I mention that is because of the second issue, under the Fourteenth Amendment, and that is not the privileges and immunities, but is the Due Process section and it seems to me as I read the cases, that we will apply to the states through the Fourteenth Amendment those constitutional rights the Court deems fundamental, and thus apply federal statutes.

It is a selective incorporation as I see it.

It seems to me that Benton versus Maryland, which is an important case on the issue of jeopardy, raises that issue of selective incorporation.

In other words, what we are saying is that under the Due Process of the Fourteenth Amendment is that Double Jeopardy is a fundamental right.

We can agree upon that, but that is not the end of the inquiry.

Is the time it attaches simply non-constitutional baggage?

If we are going to be selective in our incorporation of the first 8 amendments, and of course, that raises the question of whether it is implicit in the right given.

I would like to use the word parsing or pick a part.

Jeopardy attaches when the jury is empaneled and sworn.

If you just say, jeopardy attaches and leave out when the jury is empaneled and sworn, then I think the language is meaningless.

It does not make sense.

You are going to have to say that jeopardy attaches either when the jury is empaneled and sworn to make it complete or when the state says it does or when the first witness, so that I think it is implicit even under the selective incorporation rule.

There has been a lot of opposition to this incorporation doctrine.

Justice Stewart has written upon it.

One of the things that I think has to be decided is whether we are going to reject the incorporation theory entirely under the Fourteenth Amendment, and I think that is relevant to this particular decision.

The first 8 amendments are only applicable to federal proceedings.

Any school boy knows that.

States may adopt a rule and states may adopt any standard they wish, subject only to the strictures of their own state law or Constitutions in the fundamental fairness test.

You may want to adopt that.

Now, if that -- if that is done, it seems to me that we have a chancellor's foot standard and we are going back to Palko and Twining.

I think those are the issues in my judgment in this case is the application of the Due Process Clause, whether we are going to have complete incorporation, selective incorporation, or rejection of the incorporation doctrine. One of the difficulties, if I may add this to my argument very briefly, is that there is great uncertainty in the law.

Lawyers do not know how to advise their clients?

Lawyers do not know how to argue before the courts because they simply do not know what the law is?

That is why I -- I think there should be some certainty in the law.

We have in Montana, for instance, take Winship on reasonable doubt, it is a requirement.

In Montana, we do not have that rule.

We have a different rule, a higher probability of its existence as to one of the essential elements.

Which rule do you follow?

We have the presumption of innocence.

We have US versus Castles, which is a federal case in which I was involved in.

We have the statutory signs as waiver provision in my view.

We have had difficulty and I have had difficulty in another state with Brady versus Maryland. The Court has simply said, “We do not accept Brady.

We do not accept it, because our statute does not provide for it.

”It took two months to trial almost and the case was finally reversed on the basis that the Supreme Court finally straightened out, the District Court on Brady versus Maryland.

We are eliminating or have legislation to eliminate search and seizure in the State of Montana, almost got by in the last legislation session.

Justice Potter Stewart: What do you mean by that; eliminate search and seizure?

Mr. Charles F. Moses: Well, eliminate the prohibitions of the Fourth Amendment.

I want to be very dogmatic about that.

I am not talking about eliminating the remedy of the exclusionary rules.

Justice Potter Stewart: You said, “Eliminate search seizure?”

Mr. Charles F. Moses: I am saying eliminate search and seizure, now that is my opinion, my judgment.

Justice Potter Stewart: So, there would be no searches and no seizures in Montana?

Mr. Charles F. Moses: There would be no -- there would be no penalty as far as Due Process is concerned with respect to how the evidence was obtained, in the courts in Montana.

Justice Potter Stewart: No exclusionary rules?

Mr. Charles F. Moses: No exclusionary rules.

That may be a good idea, but the rule is -- the question is that we go from the very basic discovery, reasonable doubt, presumption of innocence, burden of proof, search and seizure, the rule in the State of Montana is entirely different, and we do not know as practicing attorneys, what rule do we follow?

Do we follow the federal rule because it is a matter of constitutional importance under the Supremacy Clause or do we follow the state statute?

It is a difficult problem from my point of view.

Now, finally, to end my statement because I wanted to address the Court’s attention simply to the Fourteenth Amendment.

Let me end by saying that I disagree with my friend, Mr. Keller.

I -- in the last two years, I have decided that I make all opening statements at the beginning of the case.

I just had a murder case with a battered woman syndrome and I wanted the jury to hear about the battered woman syndrome at the earliest possible time before the shooting in the back testimony came to the floor.

I had a good reason for it, but I am now almost exclusively making opening statements.

Secondly, it is true in the practice in Montana that the judge is now permitted to give instructions to aid and assist the jury in the fair consideration of the case as they sit there, and that is a good idea and that occurs before the first witness is sworn.

My conclusion to that Court is this.

The rule I think is of constitutional significance as a matter of fact, what I would like to do if I may -- let me read you an opinion in order that I think would be appropriate in this case.

“The Double Jeopardy Clause of the United States Constitution is a fundamental constitutional right.

Jeopardy, as we have said, attaches when the jury is empaneled and sworn.

Anything in the Constitution or laws of any state to the contrary notwithstanding, the decision is affirmed.”

That is what I would propose.

Thank you, gentlemen.

Chief Justice Warren E. Burger: Let me ask you just one question?

When you spoke of the judge giving instructions, you are speaking of preliminary limited instructions about the burden of proof in the order of trial, not a -- not a complete instruction on the law of the particular case?

Mr. Charles F. Moses: In essence, that is correct Mr. Chief Justice.

What the judge does now under the current practice, is simply give the jury those necessary instructions that it feels is appropriate to guide the jury under the -- as it sits there.

For instance, the presumption of innocence rule and that you may not form or express any opinion as to the merits of the case, that you are the sole judges of the credibility of the witnesses, things of that kind.

So they really know what they are supposed to do, but that occurs after the jury is empaneled and sworn and before the first witness takes the stand.

Chief Justice Warren E. Burger: Very well.

Justice Lewis F. Powell: Well, may I ask this question?

Mr. Charles F. Moses: Yes sir.

Justice Lewis F. Powell: My recollection is the information in this case was dismissed solely because of a typographical error in date?

Mr. Charles F. Moses: No sir.

Justice Lewis F. Powell: What was it dismissed for?

Mr. Charles F. Moses: That was only one -- that was only one of the grounds for dismissal, Mr. Justice Powell.

Justice Lewis F. Powell: That was a ground for dismissal of one of the counts?

Mr. Charles F. Moses: Of one of the counts, yes sir.

Justice Lewis F. Powell: Right.

Mr. Charles F. Moses: There were five other counts that were good.

Justice Lewis F. Powell: Right.

Well Judge Tuttle characterized that as I recall as a tactical stroke.

Were you a counsel at the time?

Mr. Charles F. Moses: I was counsel at the time and it was not a kind of tactical stroke, sir.

Justice Lewis F. Powell: May I ask what prompted that you to wait until after the jury was sworn?

Mr. Charles F. Moses: We have -- let me tell you exactly what happened.

I had raised the issue as to the -- whether the offenses or any of them stated a -- a criminal offense as to all of the counts.

I had raised substantial objections and they were overruled without the court ever reading the brief.

Once, the jury was empaneled and sworn, I raised that same issue again, the same issue and I still contend that there were no sufficient grounds to state a public offense as to all of the counts.

At that particular time, I think they moved to amend, to have a particular date and of course, I objected, but my objection and I -- I also requested at that time that we go to the Supreme Court and have this all resolved, but the Supreme Court when the application was made by the attorney general to go to the Supreme Court after they refused to allow the amendment and some other changes, the Supreme Court refused and said, “Go back and try it.”

Then they came into court and said, “We are going to dismiss them all, all of them.”

I think there were five other good counts, at least, then they dismissed them all and were starting again and the record is plain that I objected in writing -- I am sorry, I did not object in writing, the record is clear that I objected at that time.

So it was not, to that extent a -- a tactical maneuver on my part, Mr. Justice Powell.

I was there because the -- the charges were not any good in my judgment and I wanted to go to the Supreme Court to prove that.

The Supreme Court would not hear it and during that course of time, they moved to amend and of course, I objected them -- to them doing anything.

That is the way it occurred.

Justice John Paul Stevens: Mr. Moses just to follow up on Justice Powell’s question.

In your judgment, if the case had gone to trial on the original counts and there had been a verdict of guilty, would there have been reversible error in the record and --?

Mr. Charles F. Moses: In my judgment, yes.

Justice John Paul Stevens: And then what would have happened?

Then if that -- if that had happened, then there would have been a reversal and a new trial, is it not?

Mr. Charles F. Moses: You bet, that is exactly correct.

Justice John Paul Stevens: So you would have -- your client would have had to stand trial twice if you are --

Mr. Charles F. Moses: That -- that is precisely correct, sir.

Justice John Paul Stevens: Well then how was your client in terms of Double Jeopardy policy and valued right and all the rest that we have been talking about, how was your client hurt at all by having the dismissal take place right at the outset of the proceeding, instead of going through a whole trial on appeal and ending up in the same place?

Mr. Charles F. Moses: I have a personal prejudice about that, sir.

In my -- in my opinion, being the trial counsel, the reason overall that it was dismissed, they had five other good charges.

The reason that it was dismissed is that the prosecution felt they had a lousy jury.

I thought we killed them on voir dire as to what the issues were and then we had a good jury.

This is at the capital where you have state employees and -- and things of that kind and in selecting the jury, I thought we had a good jury.

I think the prosecution thought they had a lousy jury and which --

Justice John Paul Stevens: You did not have a good enough jury to insist on your right.

Did you try to go -- did you want to go to trial on that, I am trying to remember now?

Mr. Charles F. Moses: Yes.

Justice John Paul Stevens: You did, yeah.

Mr. Charles F. Moses: Yes, I was insisting we go to trial.

I raised my objections, I -- judge turns me down.

Unknown Speaker: I thought you moved to dismiss --

Justice John Paul Stevens: I thought you moved to dismiss the --?

Mr. Charles F. Moses: Oh! Yes.

I -- I had moved to dismiss because of the fact that they did not state a public offense.

Justice Lewis F. Powell: Right and you objected also and when the counsel for the state raised to correct --

Mr. Charles F. Moses: Oh! Yes, yes sir.

I sure did.

That is exactly what I did.

It was my judgment at that time that those counts did not state a public offense and I moved to dismiss at very stage of the proceeding.

If I had had jeopardy in mind, I would have waited until the first witness was sworn.

I would not have raised the issue then.

I am silly.

Justice Byron R. White: But you are not insisting on going to trial.

Very understandably, you were doing everything you could do to get the indictments dismissed, so you would not go to trial?

Mr. Charles F. Moses: You bet.

Yes, I was trying to get the -- every stage of the proceeding, I was objecting, and that was my purpose.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Keller?

Rebuttal of Robert S. Keller

Mr. Robert S. Keller: I do not think I saved much time, Mr. Chief Justice.

Chief Justice Warren E. Burger: You have three minutes left.

Mr. Robert S. Keller: The Wade against Hunter, Justice Murphy with Justice Douglas and Justice Rutledge agreeing in dissent said in the first paragraph, “We agree with the Court below that in the military courts as in civil, jeopardy within the meaning of the Fifth Amendment attaches when the court begins the hearing of evidence” on any thing, question that Court Marshal that you were not talking about a jury or picking a jury, that was prior to 1951 and you just know they did not have jury right.

Unknown Speaker: That is correct.

Mr. Robert S. Keller: The only other points are just in passing, any opening statement that my colleague, Mr. Moses makes to a jury does not tell the prosecution anything.

I know that he does not and he might have a battered woman syndrome, he might have anything else, but he does not tell the prosecution anything not uncommonly, not until on appeal, but frankly so, yeah there is no problem there and we do not have that back --

Justice John Paul Stevens: Mr. Keller, may I ask you a question please?

Just on the point that Justice Powell and I were inquiring of your adversary, what is the state’s position on whether or not there was a manifest necessity, just so we have it clear on the record?

Mr. Robert S. Keller: At that particular time?

Justice John Paul Stevens: Yes.

Mr. Robert S. Keller: I did not think that there was a manifest necessity question.

I can recall that Justice Rehnquist asking me, maybe you might and I would disagree on this, well-taken, but at that particular time and we did not participate in the trial of this, at that particular time, we had three counts that were defective just because of a typographical error.

What Mr. Moses is talking about is he thought all nine were defective, aside from the typographical error just as a matter of law.

Justice Potter Stewart: Because they did not charge criminal offenses under Montana law?

Mr. Robert S. Keller: That is correct, but as to these three counts that had to get thrown out, they charged an offense that was not an offense any longer.

The -- the law had changed in Montana, Criminal Code of 1973 took effect on January 01, 1974 and these three counts said the crimes in 1973, language occurred in January and February 1974.

Well, they could go to trial.

They could go anywhere and they could never convict on that, but you did make a good point and Judge Bennett will never make a mistake again.

He will grant the amendment, have the trial and get reversed, and we will try it again.

We will not talk Double Jeopardy and you know that is terrible.

Justice John Paul Stevens: Mr. Keller I just -- I just want to be sure I understand.

Is it clear then in the state’s view that the trial judge had power to amend the counts and there was no necessity for dismissal, is that what you are saying?

Mr. Robert S. Keller: I do not think that he did have that power.

I think that change was substantive and our statute at that time prevented the substantive change. You are going to charge the defendant with picking up an extra year of time to defend on its face, not really, but you were on its face, it was there.

Justice John Paul Stevens: Let me ask the same question again.

In your view, was there or was there not manifest necessity for dismissal of the charges?

Mr. Robert S. Keller: To dismiss those charges, yes, I think there was on those three, but not on the remaining six.

Justice John Paul Stevens: I see.

So the remaining --

Mr. Robert S. Keller: That is where the hang up came and he got convicted oddmently (Ph) of one of the three that was corrected.

He got charged at the second trial with one of the six that was not effected and one of the three that was corrected and found guilty of one of the three that was corrected.

Prosecution at that time did not want to go ahead on those six because they were not that good, but they would have sure come under Ash v. Swenson.

It would have been clerical staff of court as a alleged because it all took the same period of time.

They all have to do with one woman and one transaction literally.

They were spreadeagled at the time whether they knew it or not, and it may have not been a tactical stroke, but sure it was an awfully smart move.

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

Mr. Robert S. Keller: Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.