Gori v. United States

GORI UNITED STATES. Argued May 3,

No. 486. 1961.— Decided June Harry I. argued Rand petitioner. cause for With him on the brief Milton were C. Weisman and Jerome Lewis.

Beatrice Rosenberg argued the cause for the United States. her on With the briefs were former Solicitor Rankin, General Solicitor Cox, General Assistant Attor- ney General Miller Attorney and Assistant General Wilkey.

Emanuel filed a brief for the New York Civil Redfield curiae, Liberties Union, as amicus urging reversal. Opinion Court, Mr. by Frankfurter, Justice announced Mr. Justice Clark. In view of this Court’s prior decisions, our limited grant certiorari this brings case question narrow here.

areWe to determine whether, particular circum- stances of this record, petitioner’s conviction at his see-

1 364U. S. 917. 659,3 after his first § trial2 for violation of 18 S. C. ond declaration judge’s trial had terminated “active sponte of a mistrial sua petitioner’s without Fifth Amendment’s express consent,” and violates the Appeals of of The Court prohibition jeopardy. double in baric affirmed con- petitioner’s for the Second Circuit holding his constitutional (one judge dissenting), viction that objection agree merit. F. 2d 43. We without contrary a result.5 require Fifth Amendment does not the Dis- a the brought jury Petitioner was to trial before York on Feb- trict Court for the Eastern District of New had charging that he ruary 4, 1959, on an information in inter- knowingly possessed goods received and stolen during the direct afternoon, state commerce. That same Government, the examination of the fourth witness for and neither on his own motion presiding judge, approval by petitioner’s counsel,6 nor objection withdrew rea- a mistrial. It is unclear what juror declared which the Court action, sons caused the court to take this “overassiduous” and criticized Appeals of as characterized relevant for proceedings Prior to the in the two trials which are herein, present purposes, the “first” and “second” trials denominated petitioner. granted upon motion of there had been a mistrial unlawful, alia, receipt possession or The statute makes inter constituting, moving as, an any goods stolen from a vehicle freight, knowing goods shipment to be stolen. interstate 43,46. F. 2d cannot, course, would obtain had determine what result We light acquaintance with the local Appeals, of its close operated further situation, petitioner’s mistrial to bar his decided that prosecution, us. and were such a decision before light disposition, we not the Government’s In of our need reach adversely object suggestion petitioner’s the mistrial that failure to argument that, petitioner’s because of his claim. note affects We opportunity precipitous events, there was no for such course of objection. premature.7

as Apparently judge inferred that the prosecuting attorney’s questioning line of presaged inquiry calculated to inform of other crimes accused, and took action it. In to forestall any it event, obvious, as the Appeals Court of concluded, acting “was according to in protecting rights convictions of the accused.” 282 2d, F. at 46. The court below did not hold the mis- ruling an erroneous or abuse of discretion. It did prosecutor’s find the unexceptionable conduct and the reason for the mistrial, therefore, “entirely clear.” It say did that “the should have awaited a definite question which permitted ruling,” would have clear-cut that, failing so, displayed to do he an “overzealous- Id,., ness” and hastily.” acted “too at 46, 48. But after discussing range the wide of discretion which the “funda- mental concepts of federal administration of criminal the justice” allow to the in judge determining trial whether not mistrial is responsibility which “is appropriate —a particularly in prejudice acute the avoidance of arising from nuances in atmosphere 'the heated of trial, which fully id., cannot be depicted the cold record on appeal,” at 47—and corresponding the responsibility affirmative for the conduct of a criminal trial precedents which the federal it concluded: impose,

“On this basis we do not believe decision should difficult, be for the responsibility and discretion exer- colloquy [immediately preceding “The the . . . demon mistrial] prosecutor nothing strates instigate that the did to the declaration only performing assigned of a mistrial duty and that he was his under trying by transcript, conditions. This is borne out the entire includ ing covering morning also entirely that the session. Nor does it make act, though parties clear the reasons which led the to the appear agreed prevent prosecutor bring that he intended to the from ing by out so, evidence of other crimes the the accused. Even question should permitted have awaited a definite which would have ruling. 2d, a clear-cut . . 282 F. at 46. .” . .” . us sound. to seem below judges by cised the Id., at 48. it would us8 record before skimpy the on

Certainly, our- we were scope of review appropriate the exceed upon judgment independent an pass to attempt to selves to prone bewe should mistrial, even propriety of guiding for the regard due with not, arewe so—as do court district judges district familiarity with Appeals. of the Courts possessed conditions dismiss to moved 1959, petitioner On March would again him try that ground on information denied was The motion jeopardy. double constitute the conviction attacks He now April. retried was he resulted. second which pass required record, we are state In this by coun- respectively, pressed, contentions the broad upon is The case for Government. petitioner sel for petitioner, favorably it most viewing which, one is based jeopardy of claim which upon order mistrial clearly errone- nor justified apparently neither found was record. a cold its review Appeals Court ous is unquestionable find and what did court What that extreme judge’s product was the order that favor may be—in it solicitude, overeager solicitude —an the accused. in this law settled has been it Since Amend- Fifth of provision double-jeopardy “The trial, 8 February 4 respect to contains, with record here The paragraphs opening, four Government’s from paragraphs two the court colloquy between a six-line opening, petitioner’s from the third of the of examination portion counsel, a prosecuting transcript witnesses, the entire three first of Government’s items are two last witness. testimony of the fourth of the Attorney in States United the Assistant the affidavit out in set following the information to dismiss motion petitioner’s to opposition the mistrial.

ment .. . does not mean that every time defendant put to trial before competent tribunal he is to entitled go if free the trial fails to end in a final judgment.” Wade Hunter, v. 684, U. S. Perez, 688. United States v. Wheat. Thompson States, v. United S.U. Keerl Montana, 135, 213 U. S. 137-138; see Ex parte Lange, 18 163, Wall. 173-174; States, Green v. United 184, U. S. for Where, reasons deemed compelling the trial judge, who is best situated intelligently make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a may mistrial be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons States, v. United 148; Logan U. S. States, United S. 263; Dreyer Illinois, 187 U. S. 71, 85-86. It is also clear that “This Court has long favored the rule of discretion in the trial judge to declare a mistrial and require panel another try the defendant if the ends justice will be best served . . . ,” Brock v. Carolina, North U. S. 427,9 and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. See Lovato v. Mexico, New U. S. cf. Wade Hunter, supra. In the Perez case, the authoritative starting point of our law this field, Mr. Justice Story, for a unanimous Court, thus stated principles which have guided since the federal courts in their application of the concept of double jeopardy to situations giving rise to mistrials:

“. . . think, We that in all cases of this nature, law has invested Courts justice with the authority 9Brock v. North prosecution Carolina was a state and therefore arose, course, under the Due Process Clause of the Fourteenth quoted Amendment. The passage Brock, however, from related to application prosecutions in federal jeopardy double provision of the Fifth. when- any verdict, giving from discharge all the circumstances taking in opinion, their ever, necessity for a manifest there is consideration, into would otherwise justice public the ends of act, the or discretion a sound are to exercise They be defeated. the all to define impossible it is subject; the and on to inter- proper it render would circumstances, which ought to be used power the sure, be fere. To circumstances, urgent under greatest caution, the capital in and, causes; and obvious very plain for extremely careful be courts should especially, cases life, any of chances interfere with they how they have all, after But, the prisoner. favor of security which and the discharge; right to order conscien- sound, faithful, have for the public inas this, discretion, rests, this tious exercise judges, of the responsibility cases, upon other Wheat., at 580. ...” of office. their oaths under considerations. these broad falls within case present hypotheti- against-anticipating wisdom counsels Judicial the discretion which cal situations the Fifth safeguard call for and so may be abused be would the defendant in which Amendment —cases prosecutions, oppressive by successive, harassed prosecu- authority help exercises which a affording badly, is going its case a trial in which tion, at to convict opportunity favorable another, more it clearly it unwilling, where that we are accused. Suffice inter- sole granted has a mistrial appears necessary consequence its hold that defendant, to est of the formalistic hark back to the It would all is to bar retrial. procedure century criminal of seventeenth artificialities them by compelling courts federal trial our so to confine Charyb- Scylla between compass narrow navigate unduly hesitant make them thus dis. We would conscientiously judg- to exercise their most sensitive in according lights to their own the immediate ment — exigencies protection of trial —for the more effective the criminal accused.

Affirmed. Justice, whom Mr. Justice The Chief Douglas, Mr. Justice Black and Mr. Justice Brennan concur, dissenting. place out, one comes when faced problem with the case, depends

of this largely on where one starts. Today the phrases problem in terms of whether a mistrial has been granted help prosecu- “to tion” on the one hand “in the sole interest of the defendant” on the plainly other. The former is in viola- tion of provision Fifth Amendment that no person shall “. . . subject be for the same offence to be put twice jeopardy of life or . limb . . .” That was what we States, said Green v. United U. S. 188. But not until I today, believe, have we inti- ever mated that a mistrial “in ordered the sole interest of the defendant” was no bar to a second trial where the mis- trial was not ordered at request of the defendant or with his consent. Yet is the presented situation for the Court of here, Appeals found that the trial judge “was acting according to his convictions protecting the rights of the accused.”

There are occasions where a second trial may had, be although 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 un- able agree is the classic example; and that was the criti-

1In this case the trial said: “I declare a mistrial I don’t care whether the action is dis- missed or not. I declare a mistrial because of the conduct of the attorney.” district Perez, United States 515; 9 Wheat.

cal circumstance Illinois, States, Dreyer v. United Logan U. S. Glenn, Keerl v. Mon- Moss S. 189 U. S.U. tana, army an in the Tactical situations of S. 135. a court- the withdrawal of justify field have been held another one and the institution of proceeding martial Hunter, Discovery Wade days. 336 U. S. 684. calmer trial that or more members judge during “one or the jury might against be biased Government discharge has held to warrant defendant” Id., And see Simmons trial. and direction of new States, 148; Thompson United v. v. United 142 S. U. States, That is “a defendant’s say, 155 S. 271. to U. particular to his trial a right completed valued have to the tribunal must some instances be subordinated in just judg- in fair trials to end public’s designed interest 2 Hunter, supra, ments.” Wade v. 689. the mat- While trial court, ter is said to be the sound discretion of the trial guidelines that discretion has some can be —“a particular discontinued circumstances manifest a when to discontinue necessity doing, for so when failure Id., justice.” would defeat the ends of narrowly date these have been confined. exceptions To impanelled sworn, jeopardy Once a has been jury is if a mis- subsequent prosecution barred, attaches and a showing imperious is ordered —absent a neces- United States v. sity.3 Story As Mr. Justice stated 2 201, Mexico, Lovato v. New 199, jury 242 S. dis In was arraigned plead; missed so that the defendant could be and could again. impanelled stands for no more than and it was then case irregularity procedure” proposition “a does the settled mere always jeopardy. amount to double 3 Watson, States v. 499; See United States v. United 28 Fed. Cas. Whitlow, parte Ulrich, Ex 871; Supp. F. 42 F. 587. 110 cases, prosecution

In has been barred where the state second discharged through judge’s of the law. was misconstruction Superior Court, 350, 243, A. R. Jackson v. Cal. 2d 74 P. 2d 113 L. the discretion is to be exercised Coolidge, 622, Fed. Cas. striking circumstances.” “only very extraordinary Jeop- I read the Double my starting point. That is prohi- a strict standard. “The ardy applying as Clause against but against being punished; bition is not twice Ball, v. being put jeopardy.” twice United States designed help equalize position 669. It is 662, U. S. government individual, discourage and the abusive society. power use of the awesome Once a trial starts jeopardy prosecution attaches. The must stand or fall on its at trial. I performance do not see how mistrial prosecutor directed because the has no witnesses is dif- ferent from a mistrial prosecutor directed because the and is In guilty abuses office of misconduct. neither in judicial machinery is there a breakdown such as hap- pens stricken, juror when the or a has been dis- covered disqualified sit, to be or when it is impossible Spayde, 1422; State v. State 726, 1058; 110 Iowa v. Cal 80 N. W. lendine, Commonwealth, 8 Iowa Lillard v. 267 S. 2d 712 W. Commonwealth, Mullins (Ky.); Ky. 529, v. 80 S. W. 2d Commonwealth, Robinson Ky. Williams 386, S. W. Commonwealth, Ky. 93; Yarbrough State, 74, 90 Okla. Cr. 375; Loyd State, 2d P. 6 Okla. Cr. 116 P. 959. Where the concluding has made a mistake in illegally impanelled, biased, prosecution was or a second has State, 271; Gillespie State, barred. Whitmore v. 43 Ark. v. Commonwealth, Ky. 333; People O’Brian v. 298, 829; Ind. 80 N. E. Parker, Nelson, 488, v. State v. Mich. 108 N. W. I.R. M’Kee, State v. Bail.) (1 651, S. C. L. 21 Am. Dec. State, Tomasson v. 79 S. W. 802. See also Hilands v. 596, Tenn. Commonwealth, 1, 70, Rep. 111 Pa. 235, St. A. 56 Am. as limited Simpson, by Commonwealth 165 A. 498. Cf. Maden 380, 310 Pa. Emmons, 83 Ind. 331. discharged The accused has also been where the trial erred prejudicial in his quality estimate of the of the remarks made State, Armentrout accused, 273, counsel for the 214 Ind. E.N. 363, jurors’ drinking brought 2d or of the beer which had been Leunig, the bailiff. State 42 Ind. 541. place at time and set. hold a trial impractical Appeals thought, not, as question receive absolution for a defendant is “to

whether Bill policy F. 2d 48. The crime.” 282 the citi- indeed the occasions when is to make rare Rights required gantlet offense be to run the zen can for the same judicial where, arbitrariness rests The risk of twice. puts it—on Government. my view, the Constitution

Case Details

Case Name: Gori v. United States

Court Name: Supreme Court of the United States

Date Published: Oct 9, 1961

Citation: 367 U.S. 364

Docket Number: 486

Court Abbreviation: SCOTUS