Fong Foo v. United States/Concurrence Harlan

Mr. Justice HARLAN, concurring.

Were I able to find, as Judge Aldrich did, that the District Court's judgment of acquittal was based solely on the Assistant United States Attorney's alleged misconduct, I would think that a retrial of the petitioners would not be prevented by the Double Jeopardy Clause of the Fifth Amendment. Even assuming that a trial court may have power, in extreme circumstances, to direct a judgment of acquittal, instead of declaring a mistrial, because of a prosecutor's misconduct-a proposition which I seriously doubt-I do not think that such power existed in the circumstances of this case. But since an examination of the record leaves me unable, as it did the majority of the Court of Appeals, to attribute the action of the District Court to this factor alone, I concur in the judgment of reversal.

Mr. Justice CLARK, dissenting.