Gori v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.

The place one comes out, when faced with the problem of this case, depends largely on where one atarts.

Today the Court phrases the problem in terms of whether a mistrial has been granted 'to help the prosecution' on the one hand or 'in the sole interest of the defendant' on the other. The former is plainly in violation of the provision of the Fifth Amendment that no person shall ' * *  * be subject for the same offence to be twice put in jeopardy of life or limb *  *  * .' That was what we said in Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. But not until today, I believe, have we ever intimated that a mistrial ordered 'in the sole interest of the defendant' was no bar to a second trial where the mistrial was not ordered at the request of the defendant or with his consent. Yet that is the situation presented here, for the Court of Appeals found that the trial judge 'was acting according to his convictions in protecting the rights of the accused.' (282 F.2d 46)

There are occasions where a second trial may be had, although the jury which was impanelled for the first trial was discharged without reaching a verdict and without the defendant's consent. Mistrial because the jury was unable to agree is the classic example; and that was the critical circumstance in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617. 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; Moss v. Glenn, 189 U.S. 506, 23 S.Ct. 851, 47 L.Ed. 921; Keerl v. State of Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734. Tactical situations of an army in the field have been held to justify the withdrawal of a court-martial proceeding and the institution of another one in calmer days. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 837, 93 L.Ed. 974. Discovery by the judge during the trial that 'one or more members of a jury might be biased against the Government or the defendant' has been held to warrant discharge of the jury and direction of a new trial. Id., 336 U.S. 689, 69 S.Ct. 837. And see Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Thompson v. United t ates, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146. That is to say, 'a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.' Wade v. Hunter, supra, 336 U.S. 689, 69 S.Ct. 837. While the matter is said to be in the sound discretion of the trial court, that discretion has some guidelines-' a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice.' Id., 336 U.S. 690, 69 S.Ct. 838.

To date these exceptions have been narrowly confined. Once a jury has been impanelled and sworn, jeopardy attaches and a subsequent prosecution is barred, if a mistrial is ordered-absent a showing of imperious necessity. As stated by Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. page 622, No.14,858, the discretion is to be exercised 'only in very extraordinary and striking circumstances.'

That is my starting point. I read the Double Jeopardy Clause as applying a strict standard. 'The prohibition is not against being twice punished, but against being twice put in jeopardy.' United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300. It is designed to help equalize the position of government and the individual, to discourage abusive use of the awesome power of society. Once a trial starts jeopardy attaches. The prosecution must stand or fall on its performance at the trial. I do not see how a mistrial directed because the prosecutor has no witnesses is different from a mistrial directed because the prosecutor abuses his office and is guilty of misconduct. In neither is there a breakdown in judicial machinery such as happens when the judge is stricken, or a juror has been discovered to be disqualified to sit, or when it is impossible or impractical to hold a trial at the time and place set. The question is not, as the Court of Ap eals thought, whether a defendant is 'to receive absolution for his crime.' 282 F.2d 43, 48. The policy of the Bill of Rights is to make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice. The risk of judicial arbitrariness rests where, in my view, the Constitution puts it-on the Government.