United States v. Jorn/Concurrence Burger

Mr. Chief Justice BURGER, concurring.

I join in the plurality opinion and in the judgment of the Court not without some reluctance, however, since the case represents a plain frustration of the right to have this case tried, attributable solely to the conduct of the trial judge. If the accused had brought about the erroneous mistrial ruling we would have a different case, but this record shows nothing to take appellee's claims outside the classic mold of being twice placed in jeopardy for the same offense.

Mr. Justice BLACK and Mr. Justice BRENNAN believe that the Court lacks jurisdiction over this appeal under 18 U.S.C. § 3731 because the action of the trial judge amounted to an acquittal of appellee and therefore there was no discretion left to the trial judge to put appellee again in jeopardy. However, in view of a decision by a majority of the Court to reach the merits, they join the judgment of the Court.

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