BURKS v. UNITED STATES

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Argument of Bart C. Durham

Chief Justice Warren E. Burger: We will hear arguments next in 6528 Burks against United States.

Mr. Durham you may proceed whenever you are ready.

Mr. Bart C. Durham: Mr. Chief Justice and may it please the Court.

This case rose in Nashville, Tennessee, it is a bank robbery, which occurred there some two years ago.

The defendant at his arraignment imposed to plea of not guilty by reason of insanity.

At that time in the Sixth Circuit, we were operating under the Smith rule which we presently are today and known as Smith I, a case that cited in 1968.

The defendant as I say entered the plea of not guilty by reason of insanity and on motion of the Government he was ordered to be examined for mental competency.

The order of the District Court which required him to be examined, set out the three rules which the Sixth Circuit chooses ALRU basically requires and ordered the physician to report to the Court and the United States Attorney the answers to those questions.

Trial came on sometime later and the issue was contested on the facts at the trial, but of the trial transcript on those bulk of it -- not probably the bulk -- is consumed with really the only defense and that is insanity.

The United States used a psychiatrist and a psychologist as their witnesses.

They also used laypersons in the bank and a cabdriver who was kidnapped just before the robbery for few moments and as I said they used the laywitnesses in the bank and they used the FBI agents who apprehended him just a few moments and took after the bank robbery and made the arrest.

The defendant used his experts, the family of the defendant, who testified the bizarre, erratic and unusual behavior and three medical witnesses, two highly qualified psychiatrists, one of whom had been used, Dr. Mandan (ph), who had been used many times by the United States as their choice to examine potential defendants in imposing insanity offenses.

Chief Justice Warren E. Burger: Are you suggesting that we can inquire into or try to reevaluate the qualifications of the witnesses?

Mr. Bart C. Durham: No sir, my point is just saying there were five medical experts witnesses and it was extensively presented to the Trial Court.

The United States Court of Appeals for the Sixth Circuit looked into that matter and they reversed the case under the authority of 28 U.S.C. 2106 federal statute, which empowers this Court and the Court of Appeals to enter such orders as are just are appropriate.

The Sixth Circuit, in my thinking, made a finding of fact that the Government did not make a prima facie case.

Counsel for the United States has raised the question of whether -- raised by the members of the Court few minutes earlier as to whether the Government made a prima facie case or to what extent one might read that opinion in the Sixth Circuit.

But in any event they found that because of insufficient evidence the case should be remanded.

The Sixth Circuit cited the Bryan rule which has been discussed today.

As Your Honors know and as I have set out, there was no criminal appeal except in extraordinary cases until 1890 something and then I believe only in capital cases.

In 1896 the Ball rule came forth, which was an attack on double jeopardy and it is a lien case in that, and that set forth the rule of waiver, in which it was said that sometimes someone who got a new trial was either starting on a clean slide or that there was continuing jeopardy or that by asking for a new trial he had waived.

And much of the my brief is taken up with regarding the waiver rationale in light of this Court’s later opinions and particularity in light of the Green decision of this Court.

I believe the Solicitor General’s brief, a fair reading of that, is that he pretty much agrees with me that waiver is not an issue.

With respect to waiver where one specifically asks for a new trial as well as a judgment of acquittal, which was a question asked sometime ago.

I would only say that any defendant would rather have an acquittal rather than a new trial.

If that is the only choice with which he has faced then it is no choice at all.

Whereas in this case, we asked the District Judge both for a new trial -- we filed motion for a new trial alleging other errors.

Justice William H. Rehnquist: What about the choice between a new trial and a judgment of conviction?

Mr. Bart C. Durham: A new trial and a judgment of conviction - that is the one which defendant might on appropriate occasions prefer a judgment of conviction in light of Jackson v. StemClone (ph) and some of the cases this Court has decided that he might get more time on the second.

Justice William H. Rehnquist: Well, supposing you move for a -- in the Trial Court you move for a judgment of acquittal on insufficiency of the evidence, move for a trial on the ground that is against the way that the evidence or whatever the rule may provide.

Your motion for judgment of acquittal is denied, your motion for new trial it is granted.

Do you think that at the commencement of that second trial you can then raise a double jeopardy claim?

Mr. Bart C. Durham: No sir.

Justice William H. Rehnquist: Why not?

Mr. Bart C. Durham: Assuming it was denied -- assuming that was spelled out if you were denying it --

Justice William H. Rehnquist: Supposing it is just a minute order the Trial Judge, motion for judgment NOV denied, motion for new trial granted on the grounds of against the weight to the evidence.

Mr. Bart C. Durham: No sir, I do not think he could.

I think the only -- it would be limited to that to where it was clear that where it went to the question of the sufficiency of the evidence, it was just an amended order, I do not think you would have enough of a record with it.

Justice William H. Rehnquist: Well he is being carried it second time for the same offense, how can that be done under the Double Jeopardy Clause?

Mr. Bart C. Durham: Well, it is one of the exceptions that, and I do not think one brings, one must bring oneself within the exceptions and I do not think that one properly has in that instance.

Bryan versus United States was what I believed to be the first considered opinion that was decided in 1950 by this Court.

As I pointed out, it was a 12 paragraph decision, it was decided a few months or within a short time after the new Rules of Federal Criminal Procedure were adapted, and it was primarily concerned in my judgment with the application of the rules involved the District Court reasonably the power of the Court of Appeals, and the Court did have language in there and did say in the final paragraph that it does not violate the double jeopardy provision of the United States Constitution to retry on me in the second time for insufficient evidence.

Subsequent to 1950 in the Bryan case it has been the subject of nothing but uncomplimentary articles both in the courts, discussions in the courts and in the law review articles to the fact that Bryan was wrongly decided.

If I read the brief of the United States fairly, I believe that they are willing to give a great deal on Bryan although they are not of course willing to give all.

In fact, if I read the brief fairly for the United States, you can almost make their argument that they are willing to give this case, but they wish to urge to the Court that it would not be the Bryan overruling such be the case and not to be extended to all cases where the evidence is insufficient to support the verdict.

The reasons advanced for double jeopardy occurring where the evidence is insufficient to support the verdict have been numerous.

Since 1950, I think we have seen an increase in decisions on double jeopardy, double jeopardy is a hierarchy of rights, it has taken a strong position.

Some of the reasons for which I would urge on the Court why this distinction should be allowed would be as follows.

Before I get to that let me point out that difference between reversal for procedural errors and reversals for insufficient evidence.

Where the case is reversed for procedural error, the defendant did not get the trial of which he was entitled.

The prosecutor made some remark that was wrong, a statement that was introduced against him which was not reliably probative or some other reason.

So we have a great -- here to for as it seems to me unrecognized quantum difference between a reversal for procedural error, such as even in Bryan, where the two cases it cited involved those type of cases.

Chief Justice Warren E. Burger: By procedural error do you mean trial error generally, trial error as distinguished from an insufficiency of evidence?

Mr. Bart C. Durham: Yes sir, I mean any other error other than just failure of the state to sufficiently --

Chief Justice Warren E. Burger: Would there be any other kinds or categories --

Mr. Bart C. Durham: Excuse me sir, I am sorry.

Chief Justice Warren E. Burger: Are there any other kinds of errors that could be raised on appeal other than either errors in the trial or insufficient evidence to support the verdict?

Mr. Bart C. Durham: No sir.

Unknown Speaker: How about defective indictment?

Mr. Bart C. Durham: Yes sir, pretrial errors, defective indictment, statute of limitations, and some of those errors.

Chief Justice Warren E. Burger: Defective grand jury?

Mr. Bart C. Durham: Yes sir.

Chief Justice Warren E. Burger: So it could be pretrial errors.

Mr. Bart C. Durham: Yes sir, in one category I think we put all errors involving insufficiency of the evidence, and in box B we put everything else, and I think it is readily as tenable, the quantum as I have said difference between the two.

Now, as I said this Court has never given as far as I know plenary consideration or even discussed that difference until today.

Now, some of the arguments in favor of granting acquittals after insufficient evidence that have to do with the disparity of treatment which the same defendant might receive.

For example, other Trial Courts -- let us assume that the evidence is insufficient to support the verdict.

Trial Court A might affirm as we have heard here in the case of Florida, and other judge might grant a new trial on the same proof.

Also other appellate courts, two different panels of appellate courts might grant acquittals.

And the Sixth Circuit in a case I have cited in my brief, Rosenberger, the Court of Appeals, one panel sent the case back a few years ago for -- ordered a judgment of acquittal, and the present case before you today, they sent it back for a new trial and then you have different standards.

The case was sent back today under a Fifth Circuit standard.

In other instances, the standard has been rather most is just an appropriate sometimes if like in the Willey (ph) case or some of the other cases I mentioned, they have been sent back as to whether or not the prosecution was unfairly prevented from bringing evidence.

So one has -- people being, cases either being sent back or not sent back and those that are sent back then we have different standards for that.

So we almost have a lawless, as Mr. Justice Stevens pointed out, questions suggested to me as we have a lawless system of appellate review we are standardless.

Furthermore, there is an argument that the idea of allowing the Government two bytes of the apple in instances of insufficient evidence condones and perpetuates careless prosecutorial trial and preparation, and I believe a fair reading of the record would show that that is true in this instance.

In this instance, it seems egregious.

Number one, there was a plea of not guilty “by reason of insanity” and orally in Court.

So that would vested arraignment what it would be.

Number two, the judge’s order to determine competency set out the three rules of Smith.

Number three, the defensive trial of course had raised an issue of insanity first and they asked every witness, they went right down the Smith Rule in the Sixth Circuit.

Furthermore, the record shows that we had large charts in which we asked each witness, what is your answer to question one, question two and question three.

And lastly the Court in its charge to the jury followed that.

Smith case, as I said, was decided in 1968.

Smith II which went in to an amplified Smith I, which was the same defendant back on a retrial, subsequent appeal after retrial, went into the question of the quantum of proof.

What was the evidentiary value of laywitnesses.

I think that this is an instance and we are not suggesting that the prosecutor has to bam, bam, bam one, two three ask the ALI (ph) questions both Smith and now circuit questions.

But he has got to some way elicit to ultimate facts of that and now he failed to do that, he used the type of witnesses who the Sixth Circuit had already told him, did not have proper credentials.

In that 1970 opinion, they said, someone who just sees the crime for few minutes and described the witnesses that the Government used that those type of people do not have sufficient knowledge for the trier of fact to reach the ultimate issue.

Now society, of course, should fear and the Tateo and the Wilson case decided a term or two ago by this Court, urge a balancing of the equities.

But that is not the instance in the insufficient evidence cases.

Society should fear the release of a defendant acquitted on the procedural error, because we make a judgment there that it is better perhaps to uphold the principal to let one man go for that reason than it is to insist upon a conviction.

One of the striking examples that accords of this Court’s opinion matter, not long ago perhaps I think last term, in the case out of Arizona where the young man had given -- where the defendant had murdered a child and given a confession to police officer driving back.

We made a decision that it was better that that would be suppressed and perhaps that defendant may have been ultimately released as a societal balancing of the interest.

But that is not true in the present case, because, as I say, we had no interest in keeping a man where the evidence was insufficient to convict him, forget the Double Jeopardy Clause and all it needs for a moment that society that has no interest where a Court of Appeals has looked at the proof, everything there and has found that the Government has not made the case against the man.

Furthermore, there is no difference between raising the issue of insufficient evidence of trial in on appeal.

I think this rule would conserve judicial energy very large, and that sometimes trial judges may let cases go on appeal thinking that the Appellate Court might sort all this out, whereas the defense counsel in trial issues should perhaps to be more diligent in doing that.

Now, injustice can be exasperated and the defendant cannot make warrant.

In the present case, for example, defendant has not made warrant in the other cases, I suspect.

Justice Byron R. White: What do you think underlie the federal rule that you disagree with?

Can the policy or a judgment underlies or justifies the federal rule, Bryan for example?

Mr. Bart C. Durham: If you restricted to retrials for insufficiency of evidence, I think one can make an argument that Appellate Courts get a feel that this man is probably guilty and that it is an in interest about anything annunciated criteria, they get a feeling that he should be retried.

Justice Byron R. White: Do you think the federal rule is a representative of the most state practices or not?

What do you know?

Mr. Bart C. Durham: I think that in most practices that historically -- and there has been no differentiation between the justice in the federal courts as between reversals for procedural as opposed to reversals for insufficiency of the evidence.

Unknown Speaker: So you are suggesting that we, on a constitutional basis, invalidate a rather wide majority of state rules too?

Mr. Bart C. Durham: I do not think that it has ever been considered and it comes up that often, but that would be -- I would urge this Court rule on the constitutional basis firstly and secondly I would urge it rule on the statutory basis and under its supervisory powers over the lower federal courts under the facts of this case, under Section 2106.

Society has no interest in retrying no evidence cases, the time that is --

Unknown Speaker: Let me see as I understand you that on the statutory basis you mean by holding that it was an abusive discretion to say that this was an appropriate order of the Court of Appeals having the facts situation here.

Mr. Bart C. Durham: Yes sir, I think you could look at the Sixth Circuit and say that they have done two or three different things with the different cases.

The Rosenberger case cited in my brief in this case, one they acquitted and one they did not.

I cited the Illinois case from Illinois Bar Journal article in which the commentator makes a motion, makes a point that in a rape case out of Illinois, two men two separate times committed rape.

One did not match up to the (Inaudible) rule, the other did.

So they sent one back for a retrial and they acquitted one.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Were you making essentially the same argument that was made in the preceding case which you heard, but confronted with the situation an Appellate Court has just two choices affirm or reverse and that there are no other alternatives?

Mr. Bart C. Durham: Yes sir.

Chief Justice Warren E. Burger: Mr. Easterbrook.

Argument of Frank H. Easterbrook

Mr. Frank H. Easterbrook: Mr. Chief Justice and may it please the Court.

At least since 1896 when United States against Ball was decided, it has been settled that the Double Jeopardy Clause imposes no limitations on the power to retry a defendant who after being convicted at trial succeeds in having his conviction set aside.

The principle of this all is the Double Jeopardy Clause and this Court applied it in the Bryan case to reverse all for insufficient evidence.

Bryan squarely controls this case and in our view, the open question is whether and to what extent Bryan should be reexamined.

Petitioner here like petitioner in the preceding case invokes a syllogism.

It runs like this.

One - if the evidence is insufficient to support a conviction the Court should grant a judgment of acquittal without submitting the case to the jury.

Two - if the trial judge grants such a judgment of acquittal, the Double Jeopardy Clause bars a second trial.

Three - a reversal on appeal because of insufficient evidence amounts to a determination by the Court of Appeals that the trial judge should have granted that motion.

Four - since what should have been done ought to be treated as if it had been done, this case should be treated as if the judge had granted the judgment of acquittal and the Double Jeopardy Clause therefore bars another trial.

Unknown Speaker: You agree, would you with the soundness of the first three premises, it says, but not with the conclusions, isn’t it?

Mr. Frank H. Easterbrook: We have in the past taken issue with the soundness of that second premise; we took issue with it at Martin Linen, and Mr. Justice Rehnquist argued in the Lee case that a decision by the judge should be treated the same as a dismissal of the indictment, but that is being settled my Martin Linen.

For the purpose of this case, we take issue with the conclusion and the part of the fourth premise that is a conclusion rather than a premise.

Unknown Speaker: But not with the first three premises.

Mr. Frank H. Easterbrook: That is right.

We think the syllogism suffers from excessive attention to form a rule that an acquittal by the judge is final and that the Double Jeopardy Clause bars a second trial.

It is justified as a means to protect the ability of the defendant to receive a verdict of the jury and to protect his interest in an acquittal that he actually obtains.

But it requires a leap to say that a person who was not acquitted a trial deserves the same treatment.

This case does not requires speculation about what a jury would had been done if given the chance.

It was given the chance, and it returned a verdict of guilty.

This case does not involve the defendant’s interest in preserving a disposition in his favor.

Chief Justice Warren E. Burger: Do you think that this case is involving, as it does, the weight of the evidence on his criminal responsibility, is any different from the weight of the evidence on presence of the scene of the crime or any other element of the crime?

Mr. Frank H. Easterbrook: We believe it is Your Honor.

This is a case in which the prosecutor presented prima facie case that the defendant robbed the bank, and indeed on appeal the defendant conceded that he robbed the bank.

All of the testimony that his psychiatrist gave explained why he robbed the bank.

What internal compulsion drove him to become a bank robber?

We believe for that reason this case falls well within the argument the Tateo that there is a category of cases in which the public has interest in avoiding see and goes who are actually guilty of crime go free because we never have made a trial.

Justice Thurgood Marshall: Tateo was during the trial, was not he?

Mr. Frank H. Easterbrook: Yes, Your Honor it was, defendant pleaded guilty during the trial in Tateo.

Unknown Speaker: A person who is insane cannot be guilty of a crime.

Mr. Frank H. Easterbrook: That is true, and in that sense ultimately sanity is not owned to the offense.

Justice Thurgood Marshall: Well, I am saying there cannot be guilt on the part of by the person who is insane, downed by one of the arguments about the definition of insanity, but putting that to one side, a person who is insane cannot be guilty of a criminal offense.

You would agree with that, wouldn’t you?

Mr. Frank H. Easterbrook: I agree with that one, and when I am --

Justice William H. Rehnquist: On what basis do you agree?

Was there a statutory matter or a common law matter of Constitution?

Mr. Frank H. Easterbrook: It is a common law matter in the federal courts.

The decision of this Court in the Davis case was that as a matter of federal common law, sanity is part of the offense.

But in federal cases the usual order of proof is proof of the commission of the offense than the defendant’s proof of sanity, of insanity and then the prosecutor’s expert skill take the stand.

Chief Justice Warren E. Burger: Well, then you closed down on your response to my prior question that there is a difference.

Mr. Frank H. Easterbrook: There is at least for constitutional purpose Mr. Chief Justice.

The Court held in Leland against Oregon that it is a constitutional matter, sanity need not to be part of the offense, and that the defendant can be required to prove lack of sanity.

For that purpose, there is a difference between those elements of the offense that the Constitution requires to be proven beyond the reasonable doubt and that includes the fact that the petitioner robbed the bank, and those elements that the Constitution does not refer to be so proven and that the defendant indeed could be required constitutionally to prove.

Justice Byron R. White: Burden of proof is something else.

I think you have already said but let me be sure that I understand it that you would concede, would you not that an insane person cannot be guilty of a criminal offense, if he is insane at the time of a conduct, which for on the part of a sane person would be a criminal offense?

Mr. Frank H. Easterbrook: Yes, Your Honor.

My answer to the Chief Justice's question may be more easily understood once I have established some of the premises of my argument. I would like to turn back in that direction.

I was trying to discuss the reasons why an actual acquittal at trial has been thought to deserve special rule of finality.

My point then was that petitioner was actually not acquitted at trial; he had no interest in that sort of finality that he was seeking to preserve.

In fact, this is a case in which the judge and all 12 jurors concluded that his sanity had been proven beyond the reasonable doubt on the evidence that they heard.

Petitioner’s argument rests on a form of symmetry.

If I had been acquitted, I could not be retried; since I should have been acquitted, I should not be retried.

But the argument from symmetry is weak, because it slights the reasons for giving special force to an acquittal that actually took place, and it slights the rule that reversals on appeal of a conviction at trial always have been treated differently.

It is hard to see why a non-obvious defect in the evidence.

The defect is so subtle that it was missed by the prosecutor, by the judge and by all 12 jurors should confer automatic immunity from prosecution.

Justice Thurgood Marshall: This case did not say anything; this case said, insufficiency of the evidence, and that is not like forgetting the show that the man was 80-years-old.

Mr. Frank H. Easterbrook: Your Honor that Court of Appeals did say that the evidence was insufficient.

Justice Thurgood Marshall: No, they did not, but that was the basis of rule, wasn’t it?

Mr. Frank H. Easterbrook: I am sorry Your Honor, I could not understand the question.--

Justice Thurgood Marshall: Wasn’t that the basis of the ruling, of their ruling?

Mr. Frank H. Easterbrook: The decision of the Court of Appeals was that the evidence of Saturday was insufficient.

It is sometimes necessary, we think in cases like this, to determine what the Court meant by that.

As Judge Leventhal said in the Willey case on which we have relied heavily in our brief, Court of Appeals sometimes use evidence, use language of insufficiency when they mean something else.

Court of Appeals might have meant two some things else in this case.

The first something else it might have meant was that the prosecutor should have asked his expert witnesses point blank, the question whether the defendant was substantially capable of conforming his conduct to the requirements of the law and not having ask that question point black and gotten an answer, he had not put on a form of evidence that the Court of Appeals wants in insanity cases.

But that might not mean that the jury was prescribed from inferring from the other things those psychiatrists said.

How they would have answered that question if it had been asked?

Justice John Paul Stevens: But Mr. Easterbrook coming to the Glasser rule, should not the evidence have been taken most favorably to support the verdict, and therefore would not the Appellate Court have a duty to assume that the jury did make the inference if that was a permissible inference?

Mr. Frank H. Easterbrook: I think Mr. Justice Stevens that the evidence should have been so taken and indeed there is a strong argument that the Court of Appeals in this case was wrong in its evaluation of the evidence precisely because --

Justice John Paul Stevens: But you did not cross petitions.

Mr. Frank H. Easterbrook: We did not cross petition and we did not raise it as an argument in support of the judgment.

Justice John Paul Stevens: So that don’t we have to take the case as though the Court of Appeals held the evidence was insufficient.

Mr. Frank H. Easterbrook: I understand that we do.

My point in making this point was that even taking the case that way there are many varieties of insufficiency of the evidence that comes in different shapes and colors, and it is not all of the same as if the prosecutor for an unexplained reason had simply neglected to prove that the defendant robbed the bank.

The other way to put this I think --

Justice John Paul Stevens: Well, I do not understand -- may I just say, well, I do not really understand your example because if we assume in accordance with Glasser that the jury did draw all the inferences favorable to the Government that it could have drawn and the Court of Appeals nevertheless found the evidence insufficient, why is this different from the last case?

Mr. Frank H. Easterbrook: I might try the answer in a slightly different way.

Wherever you draw the line between sufficiency of the evidence and insufficiency of the evidence, some cases are going to be very close to that line on either side.

Court of Appeals has confronted with a very difficult question when it gets that kind of case.

If it has two alternatives and two alternatives only, reversing the conviction outright and discharging the defendant on the one hand and affirming the conviction outright on the other hand, it may be influenced in making its decision as the Court said in Tateo by the fact that it believes that there has been a prima facie case of guilt and that the technical insufficiency of the evidence is really not enough to bar a conviction of someone who in the Court's view is actually guilty.

If it views the case that way, it may be inclined to err on the side of affirmance if it has only two options.

Justice John Paul Stevens: It would have the duty to affirm.

Mr. Frank H. Easterbrook: It would have the duty.

Justice John Paul Stevens: Then how can you say then it is erring on the side of affirmance, just to perform its duty?

Mr. Frank H. Easterbrook: The question is how it resolves doubt.

There is doubt in many of these cases and some rules are necessary for resolving it, if it ends up resolving --

Justice William H. Rehnquist: This is on direct appeal?

Mr. Frank H. Easterbrook: This is on direct appeal.

If it ends up resolving doubt in those kinds of cases, in favor of affirmance, that is a rule that is probably not beneficial for defendants as a group.

Justice John Paul Stevens: But isn’t it beneficial for us?

Chief Justice Warren E. Burger: Isn’t that the appropriate inquiry for us, whether the rule is in the long run going to be helpful or harmful?

Mr. Frank H. Easterbrook: One of the concerns, one that I think is important, is how the Court of Appeals is going to deal with the cases in which it has substantial doubt, in which it finds itself on the raiser’s edge between conviction and outright dismissal of the charges.

The point I was trying to make is that a remand for a second trial in that class of cases offers the Court of Appeals and defendants as a group an attractive option that avoids the great dilemma that it might otherwise be in.

Justice John Paul Stevens: But why is it so clear that that is an attractive option?

If you remand in doubtful cases, you put society the expense of a second trial which really maybe unnecessary and you may put both parties at the burden of another trial and you may also let a guilty man go free.

There are two sides to all these arguments, it seems to me.

Mr. Frank H. Easterbrook: I agree that there are, and I am not suggesting that the Court should resolve them in a particular way in a particular case.

One of the -- I was using this as an argument to show that in some cases that kind of disposition is a proper one and indeed perhaps the best one fairly reflecting the inability to decide whether the evidence technically described under the Glasser standard is sufficient.

We have not argued on the other hand for a uniform rule that such cases should go back for a second trial.

Our argument has been that the Court of Appeals ought to ask a number of questions.

The first is whether the evidence that it thought was missing to be supplied at the second trial.

Second question is, whether there were some reasons that it was not supplied at the first trial.

The nature of that reason may be very important.

The nature of the reason --

Justice William H. Rehnquist: This is still on direct appeal?

Mr. Frank H. Easterbrook: This is still on direct appeal.

The nature of the reason why it was not supplied -- excuse me let me get back to your question Mr. Justice Rehnquist.

I was not suggesting that the Court of Appeals would itself address those questions.

Justice William H. Rehnquist: Would you say your opponent's argument is suffered, is tried and performed over substance, I am inclined to think yours is a try of substance over a form, if you are going to have every one if these an ad hoc determination by the trial judge as to whether 18 factors have been met for not.

This is a rule, it has got to be applied by 400 federal trial judges and thousands of state court judges; it is got to have some black and white line drawing character to it.

Mr. Frank H. Easterbrook: I think it is difficult Mr. Justice Rehnquist to have clear-cut lining cases like this.

Justice William H. Rehnquist: Your brief certainly reveals your feeling to that effect.

Mr. Frank H. Easterbrook: One reason for that is because we were starting -- at least I was starting here almost by hypothesis with the class of cases in which it is difficult to make a decision under the Glasser standard, but there are a variety of other cases I think in which it is also difficult to make a decision.

Those are the classes of cases in which you cannot tell whether the error is legal or simple inability to prove the offense.

There are many cases in which there has been a reversal, which purportedly is for insufficient evidence that may have other things underpinning it.

Chief Justice Warren E. Burger: Well, but that is because the Court -- if I am tracking you -- that is because the Court had some other handles to mask.

That is a motion, and attack on the conviction that was based upon trial errors or pretrial errors and insufficiency of the evidence, and by singling on one of the trial errors, the double jeopardy problem is avoided.

But we cannot rely on any such distinctions here, can we?

Mr. Frank H. Easterbrook: We cannot rely on any pretrial errors here, but what I was suggesting and indeed suggested in response to one of the early questions was that this might be a case in which it is hard to tell legal rules and factual insufficiency apart to the extent the Court of Appeals is saying that it believes that the right way to try an insanity case is to ask the point-blank question was the defendant substantially capable of conforming his conduct?

Chief Justice Warren E. Burger: Well, except that this Court and something in the neighborhood 60 years ago, said that is precisely what you cannot do.

That is the question for the jury and that the questions at the trial must be directed at furnishing all the bits and pieces from which the jury can draw that inference.

That was in the disability case where the question was doctor in your opinion as the plaintiff totally and permanently disabled and this Court said, you cannot ask that kind of a question.

Mr. Frank H. Easterbrook: The Court said that Mr. Chief Justice, but that decision has been reversed by Federal Rule of Evidence 704, which was intended --

Chief Justice Warren E. Burger: Under our new Rules of Evidence, but I am talking about the case law that is what you were addressing yourself to that.

Mr. Frank H. Easterbrook: My point was that there was at least until the time the Sixth Circuit decided this case, an open question of law in that Court about whether those questions in addition to being permissible were also mandatory.

The Court of Appeals now seems to have decided that they are mandatory, but that ultimately is a legal decision and can be described as either on the stake of law on the part of the prosecutor and not having recognized that before trial or as a failure of proof.

I think there are a lot of other examples of that.

For example, suppose hearsay evidence is admitted and the Court of Appeals then concludes that disregarding the improperly admitted hearsay what is left is insufficient.

Is that insufficiency the evidence or an error of admitting the hearsay?

Suppose the District Court misunderstands some of the elements of the offense and calls on the prosecutor to prove fewer than all of them or take a claim of variance between the charge and the proof, which comes up especially often in conspiracy cases.

That can be seen either as too little proof of the particular conspiracy charged in the indictment or too much proof of other conspiracies.

Suppose the prosecutor proves an offense, but not the one charged in the indictment, is that too little proof or proof of something else?

The examples can go on and on.

Critical evidence can be suppressed in mid trial Fourth Amendment grounds and what is left is insufficient.

The suppression may be ironies raising purely a legal question.

Even the questions the prosecutor asks --

Justice John Paul Stevens: Mr. Easterbrook, let me just test your example about the multiple conspiracies versus the single conspiracy, the (Inaudible) kind of problem, I guess that is what you have in mind.

You are saying the trial judge could either hold, he could either conclude there was not enough evidence to prove the particular conspiracy charge or alternatively he could hold that there was prejudicial evidence of a lot of other conspiracies.

Mr. Frank H. Easterbrook: Or he may hold both at once.

Justice John Paul Stevens: Well, if he holds the former, why does not that entitle the defendant to acquittal and if he holds the later, it is clearly he is entitled to new trial, why is it such a complicated case?

Mr. Frank H. Easterbrook: The decision of the judge may be -- I think you were phrasing them as alternatives, I believe the judge often does both at once.

He says, you have proved two conspiracies not one.

Justice John Paul Stevens: Well, but if he is charged with one and the one charge has not been proved, why should not the man go free simply because an additional error was committed.

Isn’t that what you are saying?

Mr. Frank H. Easterbrook: As the judge’s responsibility in that case maybe to grant a judgment of acquittal, but suppose he does not, the question is then what happens.

Let me come back --

Unknown Speaker: The hypothesis in all of your hypothetical cases, I assume, that the trial judge, whatever he should have done, did not do it, and it went to the jury and there was a conviction and now we are on appeal.

That was your hypothetical.

Mr. Frank H. Easterbrook: Those are all my hypotheticals.

Unknown Speaker: Nothing happened in the Trial Court except the conviction.

Mr. Frank H. Easterbrook: Except the conviction.

Let me bring back the Forman case.

Justice John Paul Stevens: But also your hypothesis is that on appeal the Appellate Court was able to identify the error that it was decided required reversal, and if it identified it as a failure of proof, one could say without terrible difficulty that requires acquittal, if one -- if he determines that it was prejudice because other conspiracies have proved, it would follow a new trial.

But isn’t that just a matter of deciding the issues?

Mr. Frank H. Easterbrook: I think sometimes it is hard to say whether it requires an acquittal.

Perhaps the Appellate Court could conclude with equal accuracy.

There was really a defect in the framing of the indictment and that what should have happened is the judge should have mistried the case rather than acquitting.

That is also a possible acquittal.

Justice John Paul Stevens: Then you have the Ball case that fits right into a neat category too, does not it?

Mr. Frank H. Easterbrook: Sometimes it is hard fit them into neat categories.

Justice John Paul Stevens: Well, there are a lot of the appellate decisions that are very, very difficult, but that does not mean we dispense with rules, does it?

Mr. Frank H. Easterbrook: I am not suggesting we dispense with rules.

I think we have suggested one.

But let me try once more with the Forman case, one that fits in, I think fairly, clearly to your hypothetical with the added wrinkle that the district judge was wrong.

Defendant is charged with income tax evasion.

He is charged about six years after the return was due to be filed.

His contention is that he cannot be convicted unless the prosecution proves the subsidiary conspiracy to conceal, because that is the only thing within the statute of limitations.

The district judge agrees with him whole heartedly and charges the jury on a subsidiary conspiracy to conceal argument, the charge that this Court determining Greenwall was erroneous.

There was, it turns out, absolutely no evidence to support that charge.

If the judge had believed this one legal conclusion, he should have acquitted.

If the jury had believed the judge’s charge, it should have acquitted.

Neither happened, the jury convicted.

The Court of Appeals then sent the case back for a new trial under the proper instructions.

The defendant’s argument was that his right to be acquitted (Inaudible) a trial when he should have been acquitted, and this Court's answer was that did not make any difference what should have happened at trial.

The fact is that he was not acquitted; he was convicted.

So his interest in preserving acquittal, which never took place, simply never came into being. That is the same thing here.

Chief Justice Warren E. Burger: We might be hearing with the sufficiency of the evidence case, isn’t that a fundamental distinction between reviewing a sufficient on sufficiency of the evidence and reviewing for all other purposes?

Mr. Frank H. Easterbrook: Mr. Chief Justice, I think there is an important distinction.

The distinction arises because the Double Jeopardy Clause was designed in part to prevent the prosecutor from making repeated attempts to assemble and introduce enough evidence to convict a defendant.

Defendant has an important interest in avoiding multiple trials, where the only difference between one trial and another is the ability or willingness of the prosecutor to introduce probative evidence.

But we have submitted that that interest is not enough to prevent a second trial in every event where you might characterize the defect and the first trial as insufficient evidence.

Petitioner here after all was not acquitted or deprived of his opportunity to be acquitted, he was convicted.

Allowing second trials does not provide an incentive for prosecutorial misconduct or overreaching.

It would be an exceptional fool-hearty prosecutor who intentionally failed to introduce enough evidence at the first trial hoping that in the teeth of the lack of evidence, the jury would convict, the Court of Appeals would reverse and he would have the opportunity to wax the defendant with a second trial.

The extraordinary, it does not happen.

The legitimate interest of the defendant do deserve recognition, but they were probably recognized here by the nature of the Court of Appeals are met.

This case was not remanded mechanically to hold a second trial.

It was remanded to determine why the evidence was insufficient in the first trial.

To determine that is whether this was a simple failure of the prosecutor to put on evidence that he had or a simple inability to assemble the evidence or whether it was not instead something more.

We think the ends of public justice in a particular case should be the guiding star, whether under the Double Jeopardy Clause or under Section 2106.

A second trial is just inappropriate if the first trial was defective because of a mistake of law, whether or not that mistake ultimately displayed itself in the insufficiency of the evidence.

Mistakes of law are too common to permit them to immunize defendants from prosecution, and the interest in accurate resolution of criminal charges outweighs the defendant’s interest in uniformly avoiding a second trial.

When the evidence is truly insufficient because of prosecutorial neglect or inability to prove the offense, we think that the presumption should be against a second trial.

A second trial would be appropriate if, first, it appears that the evidence can be supplied at that trial at a state trial.

Justice Byron R. White: I was thinking just what the federal rule should be under the statute or are you talking about a constitutional rule?

Mr. Frank H. Easterbrook: We believe that the statutory rule and the constitutional rule should not be any different Your Honor.

That is in part because the Court has said in Jorn and Tateo that the interests of justice determine the constitutional propriety of a second trial, but it is really often a balancing test.

Then 2106 uses --

Justice Byron R. White: So the constitutional rule should be that if the Appellate Court finds the evidence was insufficient and there does not appear to be any real excuse for it, the Constitution requires an acquittal.

Mr. Frank H. Easterbrook: I believe that that is the correct constitutional rule.

Justice William H. Rehnquist: Where about is this ultimate determination made, when the man has brought for trial the second time in the District Court or in the Superior Court whatever the (Inaudible) court is.

Mr. Frank H. Easterbrook: We have not expressed an opinion on that in part, because that is probably most appropriately determined by the Courts of Appeals in the exercise of their supervisory power to determine where it is most appropriate.

Justice William H. Rehnquist: Well, what about the 50-State jurisdictions that are going to be affected by your argument?

Mr. Frank H. Easterbrook: I think too that those states should have the authority to determine where this kind of determination ought to be made.

Justice William H. Rehnquist: But you are turning some thousands of (Inaudible) judges lose to make this ad hoc determination, balancing of factors that can come up one way in one case and another way presumably in a very, very similar case.

Mr. Frank H. Easterbrook: Mr. Justice Rehnquist, we hope it is not entirely ad hoc.

It is certainly no more ad hoc than finding when after a mistrial has been declared, there was manifest necessity to do so, and we think --

Justice William H. Rehnquist: Well, why compound one sin with another?

Mr. Frank H. Easterbrook: We have not taken the view that one of those -- that manifest necessity argument was a sin.

Justice Lewis F. Powell: Mr. Easterbrook, the Court of Appeals for the Sixth Circuit in this case ended up by adapting the standards and procedure prescribed by the Fifth Circuit in Bass and this concise statement of those standards in its opinion.

Are those standards acceptable too and compatible with a position you are arguing here today?

Mr. Frank H. Easterbrook: We believe that they are Your Honor.

Justice Lewis F. Powell: It seemed to me that what you said on Pages 37 and 38 of your brief somewhat more complex.

Two basic inquiries will be made of a District Court on remand under the Bass standard.

First of all was that additional evidence that would be relevant to a verdict and secondly whether or not there had been some prosecutorial default in not having presented that evidence at the appropriate time.

Now, those two standards would not be too difficult, in my view, for lower courts to apply. I am thinking of a question that Mr. Justice Rehnquist has asked you.

Mr. Frank H. Easterbrook: Your Honor, we do not believe that would be too difficult to apply.

I think we were attempting in our brief to take very much the same position and to restate it.

The position we stated was whether there was some why it did not come in at the first trial and that is very much the same as asking whether it was prosecutorial neglect or a default or whether it had some other cause perhaps in this understanding of law or something other than simple default.

I think the standards that we have outlined in our brief are the same as the Bass standards.

I think they are the same as the one --

Justice Potter Stewart: That is the Bass case in 490 F. 2d?

Mr. Frank H. Easterbrook: Yes.

Justice Potter Stewart: That is another Fifth Circuit.

Mr. Frank H. Easterbrook: Right, the standards that were adapted here.

The Court of Appeals remanded this case to allow the District Court to make those inquiries.

Petitioner will not be tried a second time unless the prosecutor can persuade the District Court that he has the evidence the Court of Appeals found wanting, and that the reason it was not offered was something other than prosecutorial neglect or default.

There is no reason to forbid the District Court for making those inquiries.

Chief Justice Warren E. Burger: Does that not open a whole new area of appellate review up to now provided by appellate courts?

Mr. Frank H. Easterbrook: I do not think it does Your Honor.

Appellate courts now are by enlarge making the decision whether to send it back for a new trial, whether to acquit outright or whether to ask the District Court to make a decision.

Under 2106, the Court of Appeals has the undoubted power simply to order the defendant acquitted and to stop it there.

Since it has that power it must have some grounds for deciding when to do that and when to do something else.

You would ask that question now in every case and we think that the standards we have suggested for asking that question are more helpful to the courts and certainly do not require it to embark on any inquiry that it is now not making.

Thank you very much.

Chief Justice Warren E. Burger: Do you have anything further counsel?

Rebuttal of Bart C. Durham

Mr. Bart C. Durham: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

I want to give the Chief Justice a better answer to the last question that he asked me.

The question was, did I see any alternative between an acquittal and a new trial?

I suppose that I would not argue for absolutist rule here.

I think you might find exceptions.

Solicitor General has pointed out some with which I might agree, some he has pointed out then where the defendant was prevented or the defendant himself prevented the Government from going forward.

For example, in Smith I case in 1968 in the Sixth Circuit, the defendant in midtrial imposed the insanity defense, but he would not take it him himself and he would not allow a recess would not submit to an examination, and the Sixth Circuit said that was his own fault and he should not profit, because it is a well-known principle of law.

Counsel for the United States brought up other exceptions, a changing presumption or inference that District Court might not be aware of or variance between pleading and the proof, and some of those -- this Court I do not think is absolutely required in order to decide this case to render such an absolutist opinion, and the contours of this decision might well be left a later day.

But the facts of this case I think are such that we are not going anywhere near the limits that he urges.

And lastly Mr. Justice Powell mentioned the Bass rule, and I have mentioned the Smith rule in the Sixth Circuit, strangely enough that the Sixth Circuit in this case adapted the Bass rule and the Fifth Circuit.

But now as I read the Bass case that sends it back for a vague balancing of the equities, but the language that Bass used it says the Government got anymore evidence they would want to use.

Well, we do not want that, we want what they did in 1968 in the Sixth Circuit, what the Sixth Circuit has done before, it says the Government has got a reason why they did not use the evidence, not only if they have just got more evidence, but A- they have got more evidence and B - there are some good reason why they did not do that.

So we certainly do not agree with the Bass decision at all.

Thank You.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.