United States v. Harvey

a technicality, of Appeals Court re- HARRIS, Before NEBEKER and Associ- versed and had to be tried PAIR, Judges, Judge, and Associate ate found, you, Jamison, you Jr., before and Retired. guilty what the of Appeals said offense, be a must lesser so the Court of HARRIS, Judge: Associate Appeals directed he be tried government appeals from trial degree, second and so it came back before dismissing court’s order indictment for you, Jamison, you Jr., did find guilty first-degree burglary, D.C.Code 22- § degree, of second and his father not 1801(a), larceny, id. petit 22-2202. guilty of degree. murder the second jurisdiction have to hear the We Again, I impress upon want to you that 23-104(c) of the Code unless the under § I telling you, what am this is history Jeopardy Double Clause the Fifth case, of the and in no being sense am I Amendment erects constitutional bаrrier. judgments critical you made in this not, We conclude that it does and reverse. just I you want to inform history of this case. I you want to thank on behalf coun- problem began Superior in another myself sel and you for the attention that brought against a Court case father and his provided in this and I excuse Jamison, son United States v. Cr. Nos. you now to return to the lounge for 80316-’74, aff’d, D.C.App., 80315 and your next you very case. Thank much. Earlier A.2d convictions men jurors courtroom, two in the United District Court As left several first-degree had been police murder reversed overheard a officer remark that ground jurors the circuit court on the that the wrong go. had let the man Shortly thereafter, constitutionally juror indictments were infirm. the same officer asked one Jamison, U.S.App.D.C. problem if the jury had a govern- Claybоrne 505 F.2d Jami- jurors ment’s case.1 Some other learned of dissenting magnify Brother has Our elected acterizes the conversation to which we have beyond beyond proportion just all indeed referred as follows: —and record—the incidents with which we are deal- police This same officer confronted one of ing. Illustratively, 417) (at p. char- dissent jurors the Jamison case outside the court- cases, he impartial in future instructed came incidents events. These attention, lounge. he them to return Judge Hannon’s He ad- his courtroom. return to jury panel appellee’s Later case part follows: them in dressed came the courtroom and sworn for of the verdict way critical I was in no Alexander, Judge voir appellee’s dire. with re- you returned judge, inquired: Jamison, Sr., I want to and to Mr. spect had, anyone Is who has what there now, that you right upon that impress shall a bad left in say, I taste his or her that ver- disagree I with not whether or prosecutor during a course mouth the will never something you that dict right. month? All We will take know, say anything will never I because at the bench. answers to conclude you cause one of that would lawyer? judge? Or Or a a defense verdict, because, I with that disagree that so, I would be effect I did then a castigated by prosecu- if been Anyone with intimidating you connection or a lawyer Judge? tor or a defense carrying idated Judge you, You are not and by what the out police I assume your to be intimidated officer. duties in that he said police officer said to If you the next case. are intim- it to by any you. that bench. All ^[*] category right. Jfc Those we ^[*] will take those at the you ^[*] who ^[*] fall }j! into of what wаs that virtue you If feel bench, the we take those at let Before a fair and you, you to cannot be said you prosecutors, lawyers me remind month, the juror for rest impartial and are and make Judges they human now, me I will excuse please tell and then mistakes, else, just anybody like and if now, not you should be you right but you have had an incident to occur which carrying your responsi- out intimidated you respect affects with to either one of that was jurors by anything as bilities may those be it can categories, hope, I you, I and want to to and said in another case. It you may affect be every to each and one of plain make that with you if I had remonstrated be- you understands that. you, so that each verdict, guilty cause a you returned then you like You persuaded Judge right not thаt. have a general A voir dire brief jurors be fair and not like it. that all the could to Hannon The house several know acquitted co-defendant. ing “You mean about” —whatever said, said. didn’t have to he together he said, over said dence.” shoot the man-—the said. [other He walked So, then, juror’s me, said, walked hangup?” the courtroom] to “They “They why He jurors] “The father “Not and he said, actual couldn’t reach” — on and when said we was enough father to me minutes and So, “What was the enough said, testimony then saw some I was I turned around and he [as gave evidence,” still fellow didn’t “not later evidence.” refused one—he telling going the son we enough” jurors were and demanded to says, have was with,” and then “They hangup,” his to convict the them what that’s out the door did. . enough “What name I think he and 1 . —I said follоws: He what I gun think and I leav- is—1 said, they girls was said evi- got he to However, shaken and that context that acquitted nature, transcript. The (and ble” because decision. The bother me at right away ered me was the liceman was upset at him? THE COURT: Jamisons’ THE COURT: wasn’t THE WITNESS: THE COURT: Were THE THE WITNESS: that of hearings dissent and resulted in a total of 687 ^[*] WITNESS, her defendant’s upset because . ^[*] testimony “I number of next wrong all. she juror shouldn’t It were rather what Now, you guilt. ^[*] No, states: stated No, Oh, you to do guilt. made clear her belief I wasn’t reveals happened only thing I didn’t no, exchange. you angry didn’t other ^[*] that she felt “terri- him? You weren’t have this? “The not It was didn’t freewheeling in jurors) know ^[*] get angry changed my concerning juror —it that both- get upset him. opposite: solely pages . at him? ^[*] didn’t him. was po- you be- true impartial If I have remonstrated and solely verdict based verdict, you guilty cause returned not testimony adduced from you not you may stand, like have logical witness inferences right to like it. not drawn and according therefrom Court’s instructions? you any-

If I remonstrated with it, thing, you may you may like There being response, no twelve is, but I’m proper, trying say what selected, and one alternate were any fear in this courtroom or don’t again anyone asked if felt unable you other courtroom because have a give impartial verdict. Throughout all very responsibility ‍​‌‌​‌‌‌​​‌‌‌​‌‌​‌​‌​​‌​‌‌​‌​‌​‌​‌‌​‌​​​​​‌‌‌‌​‌​‍and important people of these proceedings, juror no mentioned ought frighten you peo- like me Judge Hannon’s remarks police or the offi- ought you like me ple not make afraid to cer’s question comment and at the conclu- your do what conscience dictates. sion of the Jamisons’ trial. The jury then to job Your will be hear evidence. was sworn. credibility. will to determine It will It be The following morning, lawyer a defense that, apply you the facts that will in another ease moved a for continuance you. law find to the as the Court instructs based Upon Jamison incidents. you any one should make afraid to do No this, learning Judge of Alexander decided duties, those neither the whole coun- of transcripts to obtain of the earlier events me, try, prosecution, nor nor the nor hearings and hold to determine if jury, his defense. juror, included one Jamison had been frighten No nor you one should should prejudiced. Appellee’s counsel moved to fright- yourselves be allowed to have you dismiss the indictment on ground. To- ened. ward the lengthy end of the hearings, So, any engendered by have fear you if jury disсharged was without ever having anyone when come anybody, you any heard evidence. Their period jury of bench, can us you tell about too. over, they service was returned to their approach venirewoman did One pursuits. normal Approximately six bench, but not about Jamison incidents. later, months Judge Alexander issued a Later, Judge Alexander asked: written opinion dismissing the indictment.2 Now, gentlemen of pan- government ladies and appealed.

el, subject having heard the matters and II propounded questions and some answers given you some given, ideas Double jeopardy principles do not you about would what like do and preclude appeal.3 Ordinarily, this govern a you whether or would like be ex- appeal ment after has attached is cused. barrеd if sort, “further of proceedings some Any person panel on the who would not devoted to the resolution of factual issues particular like to sit in this case other going to the elements of the offense than indications that al- Court has charged, required upon would reversal [be] ready given? and remand.” United States v. any 358, Are there of the panel 370, 1006, 1013, members 420 U.S. 95 S.Ct. 43 (1975); who feel that he or she could render L.Ed.2d 250 see Finch paragraph 40-page opinion, In the final its The unfortunate but heinous circumstances Opinion concluded detailed the outset dictate the Indictment dismissed. police prosecutorial that prived de- misconduct accused, Harvey, Mr. of his Sixth course, jeopardy jury 3. Of attached when the rights impartial to a fair and Amendment States, was sworn. Sarfass United 420 pеers, of his as well as to the effective 1055, (1975); 95 S.Ct. 43 L.Ed.2d 265 such, Harvey assistance counsel. As Mr. Somerville, 458, 467, Illinois v. 410 U.S. process guaranteed by due denied law (1973). S.Ct. the Fifth Amendment to the Constitution. - 2909, 53 trial court’s action “was -, functionally indis- States, settled, well (U.S.1977). tinguishable It is from a declaration of mistrial.” L.Ed.2d - been -, which has however, a mistrial Lee v. United not bar retrial. does 2141, 2146, a defendant sought (foot- (1977) S.Ct. Dinitz, omitted). note Because the trial was abort- The ob- L.Ed.2d retrial, ed circumstances permitting under would jeopardy bar the double jectives properly appeal could from by allowing thwarted subsequent not be dismissal of the indictment event a defendant 23-104(c). when under D.C.Code trial. to a new subject Nonetheless, assuming arguen- even to take judge decided the trial When the trial court was correct in do that con un- the indictment motion dismissal cluding prejudiced,6 that the had been jurors.4 advisement, he excused der dismissing it went far in the indictment. too consent, counsel’s with defense he did This proper remedy trial before a shy away from sought to counsel although presumably tainted is a new trial be stated: acknowledging it. Counsel generally Shep fore an one. impartial See on the record appear mean to I don’t Maxwell, 333, 363, pard v. jury be dis- making a motion Doud, Irvin course, because, that would charged 6 L.Ed.2d have in claims we would on later reflect assumption that the Under could be to me It seems (an argument was tainted which was excused. by appellee’s made counsel both at trial and

[******] before us), the correct relief would granting g., of a mistrial. E. been Well, this Honor, so far Your as— States, 148, 142 v. United U.S. Simmons Court, pending before issue particular 154-55, 171, (1891); 12 968 S.Ct. 35 L.Ed. your ruling yesterday understоod [that 587, States, Parker v. 507 F.2d 588 United discharged or would be excused] denied, 916, 1974), 421 (8th cert. U.S. 95 Cir. why that’s I said brief- today. So as (1975); 1576, L.Ed.2d 782 United 43 5.Ct. objection yesterday to no ly that I had Chase, 453, (4th 372 F.2d 464-65 v. States to use the being released. I hate Cir.), denied, 907, cert. 387 87 U.S. S.Ct. dismissed, discharged, anything or word 1688, (1967); 626 United 18 L.Ed.2d States wants prosecutor] long that so like [the Rundle, 55, F.Supp. v. 342 60 ex rel. Peetros a mistrial. a motion for me to make mem., (3d F.2d 1399 (E.D.Pa.1972), aff’d 478 may not control quibbling Such semantic Warden, 1973); v. 486 Cir. see Whitfield of the realities interpretation our 1118, (4th 1122-23 Cir. F.2d discharge of a Surely the situation.5 876, 139, denied, 95 42 419 S.Ct. here, (or, as a verdict before it reaches statements) opening hears it even before granted at Henarie, The rule that a v. 32 a mistrial. Fisk constitutes request does not bar retrial ex rel. the defendant’s 417, (C.C.D.Or.1887); State F. 40, exception for bad faith Peterson, apprоpriate P.2d has an 64 Ariz. v. Sullivan Johnson, judicial conduct which is prosecutorial or 248 S.C. 309, (1946); State opportu- more favorable give 348, designed 350-51 149 S.E.2d Linen cf. United States Martin dissenting to minimize Brother strives 4. Our Co., jury, discharging Supply significance S.Ct. the but the fact (1977) (rejecting discharged incontest- the use 1354-55 that it was L.Ed.2d ruling determining if a court’s of mere labels able. acquittal). were rejected Supreme fine distinc has 5. The trial-aborting determining whether States, tions D.C.App., Grady United 6. But cf. States, - Lee v. United events are mistrials. 9859, 1977). (No. A.2d 437 n.9, -, 53 L.Ed.2d 2146 & 97 S.Ct. States, nity for conviction. Lee v. United Being satisfied that a new trial is consti- - U.S. at -, supra, at 2147- tutionally permissible, we need not inquire 48; Dinitz, further into the basis supra, trial court’s decision 1075; to dismiss the see, indictment.8 Be- g., e. United appellant cause will be tried before a new Kessler, 530 F.2d rehearing States jury, question of whether his first denied, en 1976) banc properly was prejudiced considered to be (knowing misrepresentation of physical evi its inclusion of one from the dence); States, cf. Downum v. United Jamisons’. case is moot. (1963) (mistrial granted due to absence of Reversed and remanded with instructions to reinstate the prosecution witness indictment. improper was retrial). However, barred there is no ra PAIR, Associate Judge, Retired, dissent- tional saying basis on this record for ing: Judge (in case, either Hannon the Jamisons’ view, In my neither case) majority’s which is once removed from analy- sis disposition nor its in this case the Assistant United can be Attorney reconciled with the constitutional guarantee guilty this case was of misconduct.7 Cf. - person no shall “be subject for the States, Lee v. supra, same offense tо put be twice in jeopardy of -, at 2148. Judge Once Han- life or limb.”1 the questions Since present- potential problem non was aware of a as an ed are of constitutional dimensions and aftermath of the Jamisons’ he took since the majority opinion fails adequate- prompt respect curative measures with ly address them in the context of the rec- jurors. Grady those Cf. v. United ord, I begin by recounting the facts and (No. 9859, D.C.App., 1977). 376 A.2d 437 sequence of events that up led ap- prosecutor understandably this case peal. Judge believed that Alexander’s extensive The appellee (Harvey) charged voir dire in an would have any possible cured indictment with first-degree burglary, D.C. prejudice might have resulted from 1973, 22-1801(a), Code petit larceny, concerning events which he D.C.Code 22-2202. Kyle second-hand information. Cf. v. Unit ed U.S.App.D.C. 141, 144-45, 469 Prior to the commencement of Harvey’s denied, F.2d 550-51 trial, the trial factually of a unrelated Jamison, United States v. Super.Ct. No. 80316-74, was concluded when jury re- any 7. To the extent it could be said that rather than declare a mistrial. The court of occurred, by appeals “misconduct” it was committed dealing considered itself to be with a police by officer who was baffled impression Means, the ac- case of first in and conclud- quittal of the senior in Jamison that case. nonappealable. ed the dismissals were That, however, only did not constitute The overall factual situation before us bears no “prosecutorial” (since police misconduct wit- recognizable similarity presented to that in prosecutоr), post- ness is not a but it occurred (Appellee’s Means. able counsel did not even proceeding. (As trial proprie- in another to the Means, although cite that case was decided 19 ty lawyer’s jurors, communicating of a see prior filing appellee’s months to the brief DR Responsi- 7-108 of the Code of Professional prior filing appellee’s and 23 months to the bility.) post-argument “Supplemental Memorandum on Ap- This Court’s Jurisdiction To Hear This heavy 8. The dissent’s reliance Here, peal.”) alia, opening inter not even Means, States v. given; jury statements simply were was misplaced. There, following jury trial of sworn and discharged later was months before approximately length, 8V2 months in the trial Also, the indictment was dismissed. as we judge concluded that the had been noted, there is not even a hint of true guilty multiple prosecutorial acts of miscon- prosecutorial misconduct in this case. particular duct in that trial. At the time of ruling, existing jury, court’s there still was an 1. U.S.Const. amend. V. but the court elected to dismiss the indictments objection. without convicting one defendant This information was verdicts turned As the co-defendant. acquitting brought to the attention of either the verdicts, there jury read foreman trial court or defense counsel. After the by disapproval expressions were audible exercise of peremptory challenges and chal- Metropolitan Police members sides, lenges for cause both the Harvey for the had testified force who trial judge conducted a voir dire the jury the Jamison during from the bench which there was the Jamison, was not who judge trial colloquy quoted pages 413^414 of the case, then Harvey judge trial majority opinion. previous at a jury explained to The jury, containing the one member of convicted, had been both defendants trial Jamison and at least two other convictions had been reversed but that the jurors who heard the post-verdict about judge Jamison technicality.”2 The “a episode, was then impanelled and sworn. being the fact was further that explained explain their attention brought to following It was on the day, July so in that case were the indictments why possibility that the that the was jury’s on the old,3 not as a reflection brought contaminated was first to the at- the co-defendants. one of acquitting verdict Harvey tention of the judge and de- Nevertheless, jurors upset were some of thе fense counsel. The court decided sua judge eventually the Jamison trial sponte that a voir dire examination of the explain a second back called Harvey jurors necessary to determine being were not chastised. time the extent of contamination. After leaving the interim and after In the lengthy and exhaustive examination of the courtroom, jurors heard a several of the jurors by the trial defense counsel on Metropolitan Po- sergeant of the detective 23, 1975, August the in- moved dismiss loudly that Department declare lice dictment. wrong man. This jury had convicted It is clear to me from the record before confronted one of police officer same us that the motion to dismiss the indictment the courthouse jurors outside Jamison was not intended defense counsel as a demanded to later and minutes several appellee’s had refused to convict waiver of why the Fifth know Amendment juror was acquitted co-defendant. rights being placed twice against jeopar- exchange and re- upset shaken and dy same offense. Defense counsel potential to other the incident ported repeatedly pointed opinion, out in his assign- waiting for their next who were granted, should the motion be retrial would after ensued general A discussion ment. precluded. In his “Points and Authori- Supe- to a reported incident was which the motion, ties” in counsel stat- charge jurors. rior Court official ed: jury selection in process the of During States, undoubtedly, The United will Judge Alexander neither Harvey the remedy punitive, such a contend that dеfense counsel was (the judge) nor trial for the dismissal of the indictment un- recounted above. the incidents informed of litigation further doubtedly preclude will that the Assistant conceded It was later respectfully would in this case. Counsel rep- Attorney assigned to law would allow such a submit that the Harvey case in the government the resent remedy. punitive situation Jamison post-verdict of the knew vehemently urged Defense also that counsel the Jamison that one of knew also and in proper remedy would not be a Harvey juror potential awas fact, juror the case because: was, sworn as a and in case Jamison, U.S.App. 1971. The 3. The indictments were dated States v. 2. See United July in trial Jamison concluded second F.2d 407 D.C. two determining remedy In the the Court alternatives the court then fеlt were the seriousness of the mis- must consider open granting appellee’s to it —either mo- necessity plac- and the of alleged conduct tion the or declaring to dismiss indictment ing government officials on notice that sponte require mistrial sua would —neither will tolerated. If misconduct not be such presence the of the then continued mistrial, merely Court declares the impanelled.4 The discharged, then against is no effective deterrent there and September the matter was conduct future cases similar taken court. under advisement the trial 3,1976, On trial issued a March the court this late To declare a mistrial at date lengthy opinion granting ap- memorandum shifting be to the re- would tantamount indictment, pellee’s motion to the dismiss sponsibility unfortunate events ruling post-verdict the events the He will the the accused. bear burden to Jamison case resulted in the contamination raising of in another the issue Harvey of the The although jury. the record shows that none court said that to the blame is attributable him. this taint occurred direct of the as a result prosecutor’s court failure to inform the govern- the It should also be noted that knowledge his of the post-verdict events in fully appreciated potential impact ment the Jamison case the to prior impanelling the for, dismiss the of the motion to indictment jury.5 The court concluded that as a opposition motion, in its strenuous to this, government argued result of counsel the defendant was denied his appropriate remedy, should Court right effectively challenge, per- to either on “[t]he thаt some remedial action is neces- conclude cause, emptory grounds jur- potential or for would to sary, be for Court declare a ors who the knew to be con- mistrial.” The trial court taminated. also held that governmental misconduct denied the trial consideration of the motion and the Upon thereto, access to a opposition trial court decided to memorandum discharge jury concluding to the Jamison matter. pertaining The judge, conferring Appeals provides 4. The trial with counsel for District of Columbia sides, p. said at 600 of the record: both as follows: prior stage ruling At this to a conclusive responsibility public prosecutor of a appear that this case will be allowed does advocate; from differs that of the usual his say that in to continue with and I all duty justice, merely is to seek to convict. you, you, gentlemen, to and ask candor special duty (1) This exists because: being the shall we situation continue prosecutor represents sovereign tomorrow? return therefore should use restraint in the discre- p. By day, the next as reflected at 655 of the tionary governmental powers, exercise of transcript, Judge Alexander had decided that prosecute; such inas selection cases to by grant- would either terminated (2) during prosecutor only trial the is not sponte ing the dismiss or a sua motion to advocate but he also make decisions mistrial, declaration of a dy and that neither reme- normally client, made an individual presence necessitated the continued affecting public those intеrest should be impanelled. jury then all; (3) system fair to in our of criminal suggestion yesterday The Court made the justice given accused is benefit there are two alternatives in the respect of all reasonable doubts. With witnesses, prosecutor evidence responsibilities has proceed this trial. One is not to different from those a law- grant are to the mo- two alternatives either yer practice: private prosecutor should is, indictment; made, that to dismiss the tion timely make disclosure the defense of or, two, a mistrial. Both sides have declare evidence, him, available known to that tends argued very strongly, cogently, the issues negate guilt accused, mitigate the just on the basis of what the Court has and offense, degree pun- or reduce the will be announced or reiterated the case de- prosecutor ishment. Further a should not cided on either those two issues intentionally pursuit avoid mere- evidence today. opinion will not issue that Court ly damage because he believes it will 7-13 of the Code of 5. Ethical Consideration prosecutor’s case or aid the accused. Responsibility by as amended Professional this, all of said the The effect of Court’s combined determination to dismiss “of his deprive appellee Sixth Indictment is not taken lightly, was to fair, necessary that the laws impartial to a be enforced right, Amendment swiftly surely, in order peers, as well as jury of his uncontaminated rights public justice preserved. of counsel.” assistance effective essential, however, Just as is that said also that: The court laws only fairly, not be enforсed but bear we will extent of the infection The true the appearance of fair and equal enforce- know; poisoned but one probably never ment. Convictions ‍​‌‌​‌‌‌​​‌‌‌​‌‌​‌​‌​​‌​‌‌​‌​‌​‌​‌‌​‌​​​​​‌‌‌‌​‌​‍cannot be brought juror alone is sufficient to contaminate about by methods that offend the “es- Here, one, jury. instead of we an entire justice.” sence of Rochin California, v. three. Nor can this Court Having the jury determined was con- tolerate play fast and loose with the ad- taminated, the trial court considered wheth- justice. ministration of United States v. proper remedy sponte was a sua er Dinitz, supra. totality of the circum- granting of a mistrial or the declaration stances evident here indicate that Mr. dismiss, appellee’s saying: motion Harvey was denied right his ancient to a trial by impartial a fair and circumstances, jury. of the two Under remedies, available mistrial and dismissal Indictment, justice cries out for totality of circumstances here re- [T]he only remedy the latter. It is the quire stronger measures consistent with shift the burden and brunt of would not supervisory powers by exercised Federal governmental overreaching to the ac- Courts, by and allowed Superior D.C. This is so because the former cused. (Crim.) Hence, Court R. 12. dismissal of remedy contemplates reprosecution of an hereby Indictment ordered. accused, Jorn, v. United States This followed. 27 L.Ed.2d 543 S.Ct. majority opinion begins with a con- and it is to be declared where dictat- cession that jeopardy attached when the necessity” “manifest or where the ed sworn, jury was but insists nevertheless and justice requires. public ends of nоtwithstanding the doctrine of United Perez, 9 Wheat. 6 Ed. 165 States States (1824). [Sic] (1975), 43 L.Ed.2d 250 that double There can be no doubt jeopardy principles are not a bar to this record, a mistrial grant the Court could conclusion, appeal. As for this it is Harvey’s that is not Mr. sponte. sua But authority said on the of United Moreover, if the “manifest ne motion. Dinitz, by governmental

cessity” was created that “. .a mis- misconduct, the recent overreaching or sought by trial which has been a defendant against militates not authority difficulty does bar retrial.” The trend this is that the defendant sought by government. (appellee) remedy mistrial, case at bar did ask Dinitz, (5th rather F.2d he asked for a dismissal of the indictment. granted, 420 Cir. (1975);6 Unit crystal What is clear from the record is Walden, ed States judge, that the trial when confronted with 1971). good This Court cannot prosеcutorial what he believed to be over- conscience, reap allow the reaching, chose to the indictment dismiss wrongdoing of its own the benefits sponte rather than declare mistrial sua so Harvey with the burden of its appellee saddle Mr. prosecuted could government. misconduct. grounds. granting of a defendant’s reversed Dinitz on standard

6. Dinitz involved Dinitz, After the trial court’s United States v. 1075, motion for a mistrial. Supreme opinion in the instant 420 enough, majority appar which are not

Strangely prosecutori- attributable to only action the ently of the view that al judicial or overreaching, the motion is taken legally court could have “ordinarily assumed to any remove barri- of a mistrial. I do sponte sua declaration reprosecution, er to even if the defend- com not understand that conclusion ant’s by prosecuto- motion is necessitated any majority cites pelled by cases judicial rial 7, error.” citing [Id. Sheppard v. support proposition. Jorn, United v. supra, States 400 U.S. at 1507, Maxwell, 333, 384 86 16 U.S. S.Ct. 485, 547; 91 emphasis supplied.]8 S.Ct. Doud, (1966), and Irvin v. 366 L.Ed.2d 600 this, But very approach more than 1639, 717, (1961), 81 6 L.Ed.2d 751 U.S. S.Ct. by taken the majority point on this is illogi- of new trials on granting involved the both majority cal. The seems to conclude that a Par post-conviction relief. In motions declared, mistrial should have been States, (8th v. 507 F.2d 587 Cir. ker United then proceeds though it was declared. denied, 916, 1974), 421 95 cert. U.S. S.Ct. given No citations are or sanc- 1576, (1975), 43 L.Ed.2d 782 and Whitfield tion such appellate rewriting of the Warden, 1973), v. Cir. trial record. a quantum leap Such necessi- denied, 139, 876, cert. 419 U.S. 42 tates, view, my stronger a analysis than (1974), L.Ed.2d 116 mistrials were in fact “saying ijt it’s so makes so” approach. by Thompsоn declared the trial court. v. 73, 271, United 15 39 The majority attempts S.Ct. to strength its (1894), merely by L.Ed. 146 followed suggestion standard conclusion appellee ‍​‌‌​‌‌‌​​‌‌‌​‌‌​‌​‌​​‌​‌‌​‌​‌​‌​‌‌​‌​​​​​‌‌‌‌​‌​‍analysis holding, waived, in its factual either or came waiving, close to his context, jeopardy that the double clause did Fifth rights by moving Amendment to dis- following retrial bar declaration of miss the indictment. Such use of mistrial a mistrial. The simple fact is that none of analysis in non-mistrial cases met with dis- those cases purports to confine trial courts Jenkins, favor in United States to the declaration of a mistrial in all such (1975), S.Ct. 43 L.Ed.2d 250 States, - circumstances. Lee v. United Court, where the per Mr. Justice Rehnquist, -, S.Ct. 53 L.Ed.2d 80 rejected as position untenable similar tak- distinguishable on its facts.7 Cf. en a dissenting judge9 circuit in a case Jorn, United States involving the mid-trial dismissal of an in- (1971). dictment. Mr. Justice Rehnquist noted that: escape

It should not notice that none of majority the cases cited involves a dissenting circuit judge] analo- [The conscious decision a trial court to gized dismiss respondent’s case to mistrial cases an indictment rather than declare a mistrial “public’s which the interest in fair when confronted with “governmental over- designed trials just judgments” to end in Indeed, reaching or misconduct.” in United weighed. Somerville, Illinois Sanabria, (1st States 548 F.2d Cir. 458, 470, 1976), the court in a analogous somewhat interest, That he situation carefully pointed out that: felt, would not be by permitting served significantly

More clearly guilty when the go defendant free be- defendant moves for a mistrial as the cause interpretation erroneous developments prosecution result of the controlling law. . We disa- proviso 7.In Lee the motion to dismiss the indictment 8. This same is contained in the case attached, jeopardy principally was made before but the Sanabria court relied on. delayed ruling jeop- DiSilvio, trial court it until after See United States v. 520 F.2d ardy Supreme (3d denied, attached. The Court said that Cir. analogous defense-request- the motion was since, motion for a mistrial if it had been ed attached, ruled before a retrial See 490 F.2d precluded. (2d 1973) (Lumbard, J., would not have been dissenting).

421 when the impanelled. we think analysis because United with this gree Sanford, whether importance 14, v. 429 20, it is of critical States U.S. 97 S.Ct. terminate the trial court proceedings (1976); Serfass v. United did in the Somerville as in a mistrial States, 377, 388, 43 favor, in the defendant’s of cases or line (1975); Jorn, L.Ed.2d 265 United States v. v. Jen- they did here. States as [United supra, 474-75, 400 U.S. 91 S.Ct. 547. n.7, 95 S.Ct. kins, 420 at 365 supra, jeopardy The double applied test to be 1011; citation omitted.] when a trial is terminated in a defendant’s pos does not know of the defendant When favor after the attachment of jeopardy was until, as his motion grounds sible laid down in United States v. impanelled, waiver here, already is supra, saying: the Court jeopardy rights Amendment double of Fifth Here there was a judgment discharging to dismiss. found in a motion should not be defendant, although we cannot say States, 420 v. United See Serfass was, with assurance whether it or was (1975). 265 43 L.Ed.2d not, a resolution of the factual issues 251, November People Key v. No. also See against the Government. But it Term, (Sup.Ct. 383 N.Y.S.2d enough purposes of the Double Jeop- 1976). Clause, ardy and therefore for the deter- proceeded had the case I assume that mination appealability . . acquittal been judgment and had a sort, proceedings further of some devoted evidence, at the close entered to the resolution of factual going issues we, as agree that whether majority would elements of the charged, offense judg- with that judges, agreed appellate required upon would been reversal propriety its be irrelevant since ment would and remand. Even if the District Court as retrial beyond our review would be evidence, were to receive no additional it the bar of former precluded by would be necessary would still be for it to make Foo United jeopardy. See Fong supplemental findings. trial, which could have resulted in judgment Thus, question which the narrow conviction, long has since terminated in not see fit to address majority did respondent’s subject favor. To him to when, result is mandated whether the same any further such proceedings at prosecutorial miscon- finding on a based stage Jeopardy would violate the Double preju- with duct, is dismissed an indictment .... Clause at 369- [Id. power of supervisory dice in exercise 70, 95 S.Ct. at 1013.] it is. I would hold the trial court. Appeals analogous respects in various we are not remembered that It must be the facts in recently the case before us have the dismissal of an indict- dealing here with Jeopardy been barred the Double Clause jeopardy. to the attachment prior ment See, light g., of Jenkins. e. Mack, D.C.App., Compare United States States v. Martin Co., Linen Supply (1972); United States Cum- 298 A.2d 509 564, 97 D.C.App., 301 A.2d Unit- mings, strikingly analogous, The case most how- Quinn, (8th Cir. ed States ever, Means, concedеs, is that of fact, majority 1976). In must, 1975).10 jeopardy attached F.2d 1329 indeed governed Appealability clause in Means was of the United States Consti- provides perti- prohibits prosecution. which tution U.S.C. further § part: applicable nent The relevant statute this case is 23-104(c), provides: appeal D.C.Code the United In a criminal case appeals The United States or the District of a court of Colum- shall He to from decision, appeal dismissing judgment, or of a district bia an order an indict- order dismissing terminating or informa- or otherwise an indictment ment information counts, except prosecution in as to one or more favor of a defendant or de- tion thereof, to one or more counts shall lie where the double fendants as that no The Means case dealt chаrges aris- defendant’s favor after jeopardy had at- ing from the American Indian tached, Movement this would be impermissible under Knee, occupation of Wounded South Dako- the Fifth Amendment 513 F.2d at [id. 1334]. ta. The trial court in Means treated a All of these present facts are in the case at judgment defense motion for a acquittal bar. as one for the dismissal of the indictment. The court in Means also forcefully reject- granted The court then that motion and ed the “mistrial by application of law” theo- pointedly rejected the sponte sua ry that the majority would have this court alternative because of what it characterized adopt. Said the court in Means: as five instances of prosecutorial over- The Government attempts to avoid the reаching. at While all evidence [Id. 1331.] applicability of the Double Jeopardy Means, had been heard in the dismissal of Clause and Supreme Court [recent cases] the indictment purport did not to find the by arguing that judgment before the defendant charged offense, innocent of the dismissal was entered a mistrial had oc- but instead was based completely prose- by operation curred of law. This “mis- cutorial misconduct. trial by operation of law” theory is im- The noted an and ap- plicitly bottomed on the belief that pellee Means contended before ‍​‌‌​‌‌‌​​‌‌‌​‌‌​‌​‌​​‌​‌‌​‌​‌​‌​‌‌​‌​​​​​‌‌‌‌​‌​‍the circuit District Court could do nothing but de- jeopardy court that double barred a rever- clare a mistrial. . . . The Govern- sal analysis and remand. After an of cases belief, however, ment’s is unsupported by supрorting retrial after the declaration of a action, District Court’s by as well as mistrial, the circuit court noted: law. at [Id. 1334.] policies Neither the facts nor the ex The circuit court goes on to note that pressed in the aforementioned apply cases trial court specifically rejected the mistrial present case. Defendants were not alternative deciding prosecutorial trial, convicted nor was a mistrial de misconduct necessitated a dismissal of the presented clared. The situation herein is indictment. The court concluded that a trial which terminated in defendants’ “even if we could conceive of a situation in attached, favor after before which a mistrial by operation would arise a finding guilt by the trier of fact law, we are convinced that this is not the Further, . . specifically court [here].” [Id. 1335.] rejected the mistrial alternative. Al

though precise question our majority [has] seems to suggest that a answered the Supreme [been] mistrial occurred operation of law when policies expressed [Ser discharged by the trial court. supra; fass United Neither United Sedgwick, States v. D.C. Wilson, States v. 95 S.Ct. App., (1975), denied, A.2d 465 L.Ed.2d and United Jenkins, supra require our con ] (1976), which involved the discharge of a government appeal clusion that a in this jury after the declaration of a mistrial by case would violate the Double Jeopardy the trial nor United States v. Sanab Clause of the Constitution. [United ria, (1st which did not Means, supra States v. at 1333.] involve allegation prosecutorial over that, The court reaching, concluded as in suрport the conclusion that a mis findings further of fact would have been trial occurs by operation of law when the required on remand and since the dis- trial court discharges but specifically missal of the indictment ended the trial in reserves for later decision whether a mis- except acquittal finding where there is an on the that statute is unconstitutional. See, g., Brown, merits. People e. 40 N.Y.2d course, jeopardy warning Of double that is N.Y.S.2d nied, 353 N.E.2d 811 cert. de

explicit in the federal statute must be deemed to be inherent in our local statute to avoid a will of an indictment trial or a dismissal in the case. As the trial

the final outcome Reginald DEAN, Appellant, out, repeatedly pointed discharge of with the dismissal is as consistent as it is with the declara- of an indictment STATES, Appellee. UNITED remedy tion of a mistrial since neither con- Terry TRICE, Appellant, D. use then im- templates further panelled.11 majority concludes that the action STATES, Appellee. UNITED wrong, court was but this

taken the trial Nos. 10469 and 10485. alone will not a substitution of our Means, appeal. In the circuit viewpoint on District of Columbia Appeals. Court of court made it clear that: Argued April 1977. Whether or not trial dis- court’s] [the missal of the indictments was correct is Decided Aug. 1977. we question not the before this opinion intimate no as to whether spec-

instances of misconduct are supported

ified [the court] war- enough

the record or were severe Instead, question our

rant dismissal. appealable.

whether the dismissal terminated the trial in the dismissal

Since favor, jeopardy after had at-

defendant’s

tached, way and there is no that a retrial

could be avoided in the event of reversal remand, we hold that the Govern-

ment’s is barred the Double

Jeopardy Clause and must be dismissed. Means, supra . [United 1335; footnote omitted.] say

The court went on to that since the trial

court determined that miscon-

duct warranted dismissal of indictments supervisory power

under the of the court conclusion, coming after

“[t]his verdict, and before is effec-

had attached

tively unreviewable.” The court con- [Jdf.].

cluded:

[Although particu- Government feels the] ‍​‌‌​‌‌‌​​‌‌‌​‌‌​‌​‌​​‌​‌‌​‌​‌​‌​‌‌​‌​​​​​‌‌‌‌​‌​‍aggrieved charges prosecu- at the

larly misconduct,

torial . .

charges findings the court’s thereon

must be left unreached unresolved on appeal. [Id. 1336.] squarely point Means is my opinion,

In holding

and I would follow its the instant reasons, respectfully

For the above dis-

sent. 4, supra. See note

Case Details

Case Name: United States v. Harvey

Court Name: District of Columbia Court of Appeals

Date Published: Nov 23, 1977

Citation: 377 A.2d 411

Docket Number: 10843

Court Abbreviation: D.C.