United States v. Jorn/Dissent Stewart

by Potter Stewart

United States Supreme Court

400 U.S. 470

United States  v.  Jorn

 Argued: Jan. 12, 1970. --- Decided: Oct 22, 1970

Mr. Justice STEWART, with whom Mr. Justice WHITE and Mr. Justice BLACKMUN join, dissenting.

The plurality opinion today says that whenever a trial judge in a criminal case has 'abused his discretion' in declaring a mistrial on his own motion, the constitutional guarantee against double jeopardy categorically operates to forestall a trial of the case on the merits. I cannot agree.

The District Judge's decision to declare a mistrial in this case was based on his belief that the prosecution witnesses, who were to testify that they had submitted false income tax returns prepared by the defendant, had not been adequately warned that they might themselves incur criminal liability by their testimony. The judge apparently intended simply to postpone the case so that the witnesses could be fully apprised of their constitutional rights, ^[1] and a second trial was scheduled before a new jury. However, before the new trial date defendant filed a motion to dismiss the information on the ground of former jeopardy, and the judge granted the motion. The Government appealed directly to this Court. ^[2]

It is, of course, common ground that there are many circumstances under which a trial judge may discharge a jury and order a new trial, without encountering any double jeopardy problems. One example is where the judge acts at the instance of the defendant himself. See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448. Another is where the jury cannot reach a verdict, and there the trial judge may proceed on his own initiative, even over the active objection of the defendant, to declare a mistrial. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165. Cf. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974. On the other hand, there are situations where the circumstances under which the mistrial was declared may be such as to bar a future prosecution. One example is where a 'judge exercises his authority to help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused.' Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901. I should suppose that whether misconduct of this kind occurs at the instance of the prosecutor or on the trial judge's sole initiative, there is no question but that the guarantee against double jeopardy would make another trial impermissible.

The present case does not fall neatly into any of these conventional categories. There was no request for a mistrial from defense counsel (although his suggestion that the witnesses be warned of their constitutional rights may have triggered the course of events that followed), and the case certainly cannot be analogized to that of a hung jury. Conversely, the mistrial was not requested by the prosecutor, and there is not the slightest indication that he desired it to occur. Nor is there any suggestion that this was a situation involving 'harassment,' or an attempt by judge or prosecutor to enhance the possibility of conviction in a second trial.

The plurality opinion purports to resolve the matter by adopting a rule of 'abuse of discretion' by the trial judge. This standard is said to derive from the statement of the Court in the leading case of United States v. Perez, supra, at 580:

'We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes * * *. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.'

The plurality opinion appears to construe this passage to mean that an appellate court, in determining the applicability of the double jeopardy guarantee, must measure the trial judge's action in declaring the mistrial against a standard of good trial practice. If the trial judge has conspicuously failed to meet such a standard, then, regardless of the nature or the consequences of the error, the Constitution bars another trial. In my view, this reasoning is both overbroad and flatly inconsistent with this Court's decision in Gori v. United States, supra.

In that case, the trial judge had discharged the jury during the first day of trial, taking such action apparently to forestall prejudicial error after inferring that the prosecuting attorney's line of questioning presaged inquiry calculated to inform the jury of other crimes by the accused. The Court of Appeals held that the declaration of a mistrial under these circumstances did not prevent a new trial on the merits:

'Here the defendant was in no way harmed by the brief trial which, indeed, revealed to him the prosecution's entire case. He was thus in a position to start anew with a clean slate, with all possibility of prejudice eliminated and with foreknowledge of the case against him. The situation was quite unlike the more troublesome problems found in various of the cases, as where the prosecution desires to strengthen his case on a new start or otherwise provokes the declaration of mistrial, or the court has acted to the prejudice of the accused, or the accused has actually been subject to two trials for essentially the same offense. On the other hand, for the defendant to receive absolution for his crime, later proven quite completely, because the judge acted too hastily in his interest, would be an injustice to the public in the particular case and a disastrous precedent for the future.' 282 F.2d 43, 48 (CA2 1960).

This Court declined to pass on the Court of Appeals' judgment that there had been no abuse of discretion, noted that the case involved neither harassment nor an attempt to augment the chances of conviction, and concluded:

'Suffice that we are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial. It would hark back to the formalistic artificialities of seventeenth century criminal procedure so to confine our federal trial courts by compelling them to navigate a narrow compass between Scylla and Charybdis. We would not thus make them unduly hesitant conscientiously to exercise their most sensitive judgment-according to their own lights in the immediate exigencies of trial-for the more effective protection of the criminal accused.' 367 U.S., at 369-370, 81 S.Ct., at 1527.

Gori established, I think correctly, that the simple phrase 'abuse of discretion' is not enough in itself to resolve double jeopardy questions in cases of this kind. Whether or not there has been an 'abuse of discretion' sufficient to bar retrial cannot be determined without reference to the purpose and effect of the mistrial ruling. The real question is whether there has been an 'abuse' of the trial process resulting in prejudice to the accused, by way of harassment or the like, such as to outweigh society's interest in the punishment of crime. It is in this context, rather than simply in terms of good trial practice, that the trial judge's 'abuse of discretion' must be assessed in deciding the question of double jeopardy. ^[3]

Applying these considerations to the record in this case, it seems clear to me that a trial on the merits would not violate the constitutional guarantee. It is quite true, as the plurality opinion insists, that the mistrial was declared for the benefit of the witnesses rather than in the 'sole interest of the defendant.' But except for the inconvenience of delay always caused by a mistrial, the judge's ruling could not possibly have injured the defendant. Had the witnesses heeded the trial judge's advice, it is at least possible that the defendant's position might have been very substantially improved by their refusal to testify upon the grounds of the guarantee against compulsory self-incrimination. The line of questioning that resulted in the mistrial may have been initiated by defense counsel with just such a result in mind. There is, of course, no showing of an intent on the part of either the prosecutor or the judge to harass the defendant or to enhance the chances of conviction in a second trial. And as in Gori, the defense was given a complete preview of the Government's case. Even assuming that the trial judge's action was plainly improper by any standard of good trial practice, the circumstances under which the mistrial was declared did not involve 'abuse' of a kind to invoke the constitutional guarantee against double jeopardy.

I respectfully dissent from the judgment of the Court.

Notes

1. The trial judge stated:
2. I agree that the Court has jurisdiction of this appeal, for the reasons set out in Part I of the plurality opinion.
3. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, is not to the contrary. As the plurality opinion today points out, that case recognized that 'lack of preparedness by the Government to continue the trial directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee,' supra, at 486. Failure of the prosecution to go forward with its case in an expeditious and orderly manner is quite different from even a serious error in trial procedure by the presiding judge. It is, of course, well settled that when a jury verdict is reversed on appeal because of an error by the trial judge, a new trial is permitted, e.g., Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412; Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335. And in United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448, the Court held retrial not barred by the Double Jeopardy Clause where the first trial was terminated on a plea of guilty coerced by clearly improper statements by the trial judge during the proceedings.