Ashe v. Swenson/Dissent Burger
Mr. Chief Justice BURGER, dissenting.
The Fifth Amendment to the Constitution of the United States provides in part: 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *.' Nothing in the language or gloss previously placed on this provision of the Fifth Amendment remotely justifies the treatment that the Court today accords to the collateral-estoppel doctrine. Nothing in the purpose of the authors of the Constitution commands or even justifies what the Court decides today; this is truly a case of expanding a sound basic principle beyond the bounds—or needs—of its rational and legitimate objectives to preclude harassment of an accused.
* Certain facts are not in dispute. The home of John Gladson was the scene of 'a friendly game of poker' in the early hours of the morning of January 10, 1960. Six men—Gladson Knight, Freeman, Goodwin, McClendon, and Roberts—were playing cards in the basement. While the game was in progress, three men, armed with a sawed-off shotgun and pistols, broke into the house and forced their way into the basement. They ordered the players to remove their trousers and tied them up, except for Gladson who had a heart condition of which the robbers seemed to be aware. Substantial amounts of currency and checks were taken from the poker table and items of personal property were taken from the persons of the players. During the same period in which the men were being robbed in the basement, one man entered Mrs. Gladson's bedroom three floors above, ripped out the telephone there, tied her with the telephone cord, and removed the wedding ring from her finger. The robbers then fled in a car belonging to Roberts.
Four men—Ashe, Johnson, Larson, and Brown—were arrested later in the morning of the robbery. Each was subsequently charged in a separate information with the robbery of each of the six victims. Ashe, Johnson, and Larson were also charged with the theft of the car belonging to Roberts.
Ashe went to trial on May 2, 1960, on the charge of robbing Knight. No charge as to other victims was presented. Four of the six men—Knight, Gladson, McClendon, and Roberts—testified about the robbery and described their individual losses. Mrs. Gladson did not testify because she was ill on the day of trial. As Mr. Justice BRENNAN has stated, the victims' testimony conflicted as to whether there were three or four robbers:
'Gladson testified that he saw four robbers, but could identify only one, a man named Brown. McClendon testified that he saw only three men at any one time during the course of the robbery, and he positively identified Brown, Larson, and Johnson; he also thought he heard petitioner's voice during the robbery, but said he was not sure. Knight thought only three men participated in the robbery, and he could not identify any one. Roberts said he saw four different men and he identified them as Brown, Larson, Johnson, and petitioner.' Ante, at 458.
Ashe put in no evidence whatever, as was his right, and even waived closing arguments to the jury; nonetheless, the jury did not reach a verdict of guilty but returned a somewhat unorthodox verdict of 'not guilty due to insufficient evidence.'
Then, on June 20, 1960, Ashe was tried for the robbery of Roberts. Mrs. Gladson testified at this trial, relating that she was asleep in her bedroom when one the robbers entered, awoke her, tied her up with a telephone cord, and took cash and her wedding ring. The robber stayed in her room for about 15 or 20 minutes, during which time she could hear scuffling and talking in the basement. She said that she was able to identify the robber by his voice, and that he was Johnson, not Ashe.
The Court's opinion omits some relevant facts. The other victims' testimony at the second trial corroborated that of Mrs. Gladson that four robbers were present during the time in which the robbery took place. Gladson identified three robbers—Brown, Larson, and Ashe—as having been in the basement for the first minutes of the robbery; also he stated that one or more of the robbers had left the basement after 20 or 25 minutes. Roberts identified Brown, Larson, and Ashe as the men who formed the original group who entered the basement and testified that after the robbery, two of the three men, including Ashe, left the room. Two men returned in a short time with car keys, but Johnson had replaced Ashe as one of the two. There can be no doubt that the record shows four persons in the robbery band. The jury found Ashe guilty of robbing Roberts—the only charge before it.
Thereafter, as described in the opinion of the majority, Ashe's conviction was reviewed and upheld by the Supreme Court of Missouri, the United States District Court for the Western District of Missouri, and the Court of Appeals for the Eighth Circuit; in turn each rejected Ashe's double-jeopardy claim.
The concept of double jeopardy and our firm constitutional commitment is against repeated trials 'for the same offence.' This Court, like most American jurisdictions, has expanded that part of the Constitution into a 'same evidence' test.  For example, in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), it was stated, so far as here relevant, that
'the test to be applied to determine whether there are two offenses or only one is whether each provision (i.e., each charge) requires proof of a fact which the other does not.' (Emphasis added).
Clearly and beyond dispute the charge against Ashe in the second trial required proof of a fact—robbery of Roberts—which the charge involving Knight did not. The Court, therefore, has had to reach out far beyond the accepted offense-defining rule to reach its decision in this case. What it has done is to superimpose on the same-evidence test a new and novel collateral-estoppel gloss.
The majority rests its holding in part on a series of cases beginning with United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), which did not involve constitutional double jeopardy but applied collateral estoppel as developed in civil litigation to federal criminal prosecutions as a matter of this Court's supervisory power over the federal court system. The Court now finds the federal collateral estoppel rule to be an 'ingredient' of the Fifth Amendment guarantee against double jeopardy and applies it to the States through the Fourteenth Amendment. This is an ingredient that eluded judges and justices for nearly two centuries; the Court finds itself endowed with a perception all our predecessors lacked and in an area of the law which encounters no new facts.
The collateral-estoppel concept—originally a product only of civil litigation—is a strange mutant as it is transformed to control this criminal case. In civil cases the doctrine was justified as conserving judicial resources as well as those of the parties to the actions and additionally as providing the finality needed to plan for the future. It ordinarily applies to parties on each side of the litigation who have the same interest as or who are identical with the parties in the initial litigation. Here the complainant in the second trial is not the same as in the first even though the State is a party in both cases. Very properly, in criminal cases, finality and conservation of private, public and judicial resources are lesser values than in civil litigation. Also, courts that have applied the collateral-estoppel concept to criminal actions would certainly not apply it to both parties, as is true in civil cases, i.e., here, if Ashe had been convicted at the first trial, presumably no court would then hold that he was thereby by foreclosed from litigating the identification issue at the second trial. 
Perhaps, then, it comes as no surprise to find that the only expressed rationale for the majority's decision is that Ashe has 'run the gantlet' once before. This is not a doctrine of the law or legal reasoning but a colorful and graphic phrase, which, as used originally in an opinion of the Court written by Mr. Justice Black, was intended to mean something entirely different. The full phrase is 'run the gantlet once on that charge * * *.' (emphasis added); it is to be found in Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225 (1957), where no question of multiple crimes against multiple victims was involved. Green, having been found guilty of second degree murder on a charge of first degree, secured a new trial. This Court held nothing more than that Green, once put in jeopardy—once having 'run the gantlet * * * on that charge'—of first degree murder, could not be compelled to defend against that charge again on retrial.
Today's step in this area of constitutional law ought not be taken on no more basis than casual reliance on the 'gantlet' phrase lifted out of the context in which it was originally used. This is decision by slogan.
Some commentators have concluded that the harassment inherent in standing trial a second time is a sufficient reason for use of collateral estoppel in criminal trials.  If the Court is today relying on a harassment concept to superimpose a new brand of collateral-estoppel gloss on the 'same evidence' test, there is a short answer; this case does not remotely suggest harassment of an accused who robbed six victims and the harassment aspect does not rise to constitutional levels. 
Finally, the majority's opinion tells us 'that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.' Ante, at 444.
With deference I am bound to pose the question: what is reasonable and rational about holding that an acquittal of Ashe for robbing Knight bars a trial for robbing Roberts? To borrow a phrase from the Court's opinion, what could conceivably be more 'hypertechnical and archaic' and more like the stilted formalisms of 17th and 18th century common-law England, than to stretch jeopardy for robbing Knight into jeopardy for robbing Roberts?
After examining the facts of this case the Court concludes that the first jury must have concluded that Ashe was not one of the robbers—that he was not present at the time.  Also, since the second jury necessarily reached its decision by finding he was present, the collateral-estoppel doctrine applies. But the majority's analysis of the facts completely disregards the confusion injected into the case by the robbery of Mrs. Gladson. To me, if we are to psychoanalyze the jury, the evidence adduced at the first trial could more reasonably be construed as indicating that Ashe had been at the Gladson home with the other three men but was not one of those involved in the basement robbery. Certainly, the evidence at the first trial was equivocal as to whether there were three or four robbers, whether the man who robbed Mrs. Gladson was one of the three who robbed the six male victims, and whether a man other than the three had robbed Mrs. Gladson. Then, since the jury could have thought that the 'acting together' instruction given by the trial court in both trials  only applied to the actual taking from the six card players, and not to Mrs. Gladson, the jury could well have acquitted Ashe but yet believed that he was present in the Gladson home. On the other hand, the evidence adduced at the second trial resolved issues other than identity that may have troubled the first jury. If believed, that evidence indicated that a fourth robber, Johnson, not Ashe, was with Mrs. Gladson when Ashe, Larson, and Brown were robbing the male victims. Johnson did go to the basement where the male victims were located, but only after the other three had already taken the stolen items and when the robbers were preparing for their departure in a car to be stolen from Roberts.
Accordingly, even the facts in this case, which the Court's opinion considers to 'lead to but one conclusion,' are susceptible of an interpretation that the first jury did not base its acquittal on the identity ground which the Court finds so compelling. The Court bases its holding on sheer 'guesswork,'  which should have no place particularly in our review of state convictions by way of habeas corpus. As Mr. Justice Holmes said in Guy v. Donald, 206 U.S. 399, 406, 27 S.Ct. 63, 64, 51 L.Ed. 245 (1906):
'As long as the matter to be considered is debated in artificial terms there is danger of being led by a technical definition to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied. * * *'
The essence of Mr. Justice BRENNAN's concurrence is that this was all one transaction, one episode, or, if I may so characterize it, one frolic, and, hence, only one crime. His approach, like that taken by the Court, totally overlooks the significance of there being six entirely separate charges of robbery against six individuals.
This 'single frolic' concept is not a novel notion; it has been urged in various courts including this Court.  One of the theses underlying the 'single frolic' notion is that the criminal episode is 'indivisible.' The short answer to that is that to the victims, the criminal conduct is readily divisible and intensely personal; each offense is an offense against a person. For me it demeans the dignity of the human personality and individuality to talk of 'a single transaction' in the context or six separate assaults on six individuals.
No court that elevates the individual rights and human dignity of the accused to a high place—as we should—ought to be so casual as to treat the victims as a single homogenized lump of human clay. I would grant the dignity of individual status to the victims as much as to those accused, not more but surely no less.
If it be suggested that multiple crimes can be separately punished but must be collectively tried, one can point to the firm trend in the law to allow severance of defendants and offenses into separate trials so as to avoid possible prjudice of one one criminal act or of the conduct of one defendant to 'spill over' on another.
What the Court holds today must be related to its impact on crimes more serious than ordinary housebreaking, followed by physical assault on six men and robbery of all of them. To understand its full impact we must view the holding in the context of four men who break and enter, rob, and then kill six victims. The concurrence tells us that unless all the crimes are joined in one trial the alleged killers cannot be tried for more than one of the killings even if the evidence is that they personally killed two, three, or more of the victims. Or alter the crime to four men breaking into a college dormitory and assaulting six girls. What the Court is holding is, in effect, that the second and third and fourth criminal acts are 'free,' unless the accused is tried for the multiple crimes in a single trial-something defendants frantically use every legal device to avoid, and often succeed in avoiding. This is the reality of what the Court holds today; it does not make good sense and it cannot make good law.
I therefore join with the four courts that have found no double jeopardy in this case.
To borrow some wise words from Mr. Justice Black in his separate opinion in Jackson v. Denno, 378 U.S. 368, 401, 407–408, 84 S.Ct. 1774, 1797, 12 L.Ed.2d 908 (1964), the conviction struck down in this case 'is in full accord with all the guarantees of the Federal Constitution and * * * should not be held invalid by this Court because of a belief that the Court can improve on the Constitution.'
^1 The test was first enunciated in The King v. Vandercomb, 2 Leach 708, 720, 168 Eng.Rep. 455, 461 (Crown 1796).
^2 If Knight and Roberts had been passengers in a car that collided with one driven by Ashe no one would seriously suggest that a jury verdict for Ashe in an action by Knight against Ashe would bar an action by Roberts against Ashe. To present this situation shows how far the Court here has distorted collateral estoppel beyond its traditional boundaries.
^3 See, e.g., Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 29-41 (1960); Comment, 24 Mo.L.Rev. 513 (1959); cf. Note, 75 Yale L.J. 262, 283-292 (1965).
^4 The weight of the harassment factor does not warrant elevating collateral-estoppel principles in criminal trials to the level of an 'ingredient' of the Fifth and Fourteenth Amendments. True harassment deserves serious consideration because of the strain of the new trial. But society has an urgent interest in protecting the public from criminal acts and we ought not endorse any concepts that put a premium on aggravated criminal conduct in multiple crimes committed at the same time.
^5 Arguably if Ashe had made a defense solely by alibi, that he was in Vietnam at the time and offered evidence of Army records etc., one might reasonably say the jury decided what the Court today says it probably decided. On this record however, such an analysis is baseless.
^7 For a criticism of the collateral-estoppel doctrine because of the 'guesswork' necessary to apply it to general criminal verdicts, see Note, 75 Yale L.J. 262, 285 (1965).