*2 stаtement behalf of Dinitz. The crux Baldwin, Jr., Fletcher N. Univ. of Fla. government’s case both counts College Law, Gainesville, Fla. agent testimony to be Cox as defendant-appel- (Court-appointed), purchase to the circumstances of his lant. strategy from Dinitz. Stafford, Jr., Atty., William H. U. S. credibility Cox, to attack Crongeyer, Jr., Robert L. Nick P. Geek part strategy put of this towas before er, Attys., Pensacola, Fla., Asst. U. S. jury at the outset the idea Din plaintiff-appellee. up” itz had been “set with the sale to BELL, CLARK, Before DYER and predicate subsequent Cox aas for ex Judges. Circuit attempt. Wagner tortion intended to of- professor, Baldwin, participate aetually Fletcher advised in Dinitz’s triаl. didHe proceedings court at argue appeal. the outset of the brief and the instant attorney that he was not a trial and would not proof week after his arrest until the was to be selected. that a fer phone approve your call from do not behavior and had received Dinitz arrange attempt you for all offered to bait this court who someone going again charges dropped I am if Dinitz once to refuse to money. practice you law in this pay certain amount allow over a again. Wagner hoped Obviously, that Cox either infer from this evidence *3 Wagner opening his then continued with some he had the extortionist thаt was part bringing chronological statement, proof Ample of the in the scheme. recitation of what the evidence attempt to be at known was extortion up time show to the of the indictment. but, as it the defense subse- available to began point At that he this statement: developed, quently no be- connection days or ten Nat “some week later [Din- attempt and the extortion tween Cox began get telephone offering calls itz] to In the demonstrated.2 could ever be objection again government’s —.” The statement, opening part early of his jury to be the caused the removed from obviously Wagner an attack started jury’s In the the courtroom. absence aimed Cox. Wagner he was asked what about working Wagner: responded After on this to He that Mr. discuss. he was period ap- going it attempt time case over a to discuss the extortion peared if would have to me that we Dinitz. The court demanded given nomenclature, if proof we he had that he demonstrate that picked there could up have named this case so that Cox the man who was identifying question parcel it be no about it at the trash container. When future, called it apparent in the I would have defense no became had exchange proof, following the case— tran- such (still jury): spired in the of the absence Attorney): (Asst. Your Mr. Reed U. S. opin- honor, object personal You The Court: will leave this court- you immediately ions. room and will nev- again practice er law in this court Objection The The sustained. Court: Wagner. you I Mr. direct to leave opening purpose statement Marshal, now. Mr. that he see to summarize the facts [that] building immediately leaves show state the evidence will [and] [Wagner departs]. give personal opinions. issues, not to have exhibition This is worst I Wagner: you, your I Mr. Thank honor. I have ever heard since sat call the ease incredible plain the sassination, It is character as- bench. witness. hope and I Mr. Meldon responsible you nоt that part are jury, then, was removed you I it. ask now will Wagner courtroom and court warned you you Did discuss with Mr. are. following terms: Wagner opening statement what his going appeared of and the evi- was consist You at this Court: going attempt late, you up, you dence that was showed were not respect put record, you before this counsel of have never phone and extortion appearance. calls filed those This court attempts participation your ? aware of not reported promptly reported and under surveillance 2. Dinitz container had extortion envelope pick up attempt Investiga- but Federal he saw someone' to the Bureau apprehend pick-up and, FBI, suggestion man. How- an en- unable to tion at the physi- ever, velope paper placed was able to describe Johnson filled with under- up picking en- supposed appearance large the man trash container at the cal velope neath any way subject spot. Johnson, pick-up agent, did not an FBI attempt kept the trash semble Cox. to catch the extortionist honor, pre- I did Mr. I need time to Your not Meldon: additional Meldon: Mr. statement, prepare opening pare and Mr. I discussed have not Wag- opening Wagner prepared it with the and Mr. state- witnesses independently. preparation. ner done all of ment has is the exhibition This worst Court: your responsibility It The Court: going inquire seen. I am your contact witnesses and discuss knowledge you your further as to now this case with them between attempt- Mr. what morning, and 9:00 o’clocktomorrow ing do. knew with- Mr. contin- because that when we will inadmissible, out doubt this was ue. nothing prejudicial highly but following morning in At cham- 9:00 the assassination, character and I am again court that bers Meldon advised the going you further, inquire try him to Dinitz did want case anything you if I find that had *4 any event, unpre- and in that he was going do it I am fur- to take pared in at to take the lead the trial your regard, ther in action too. judge counsеl time. The advised Attorney After the Assistant U. S. in- govern- that he did not think that terjected might that Meldon well get could a fair ment or the defendant been in aware advance of in- seriously that he trial and stated was tactics, tended trial the court continued considering granting He a mistrial. to address Meldon as follows: thirty then minute and declared recess requested con- counsel for both sides to right, me, All Court: convince Mr. recess, alternatives. After sider Meldon, you had no control transcript colloquy: shows this Wagner. over Mr. You were the Apparent- lead ly, in counsel this case. Honor, Mr. con- Weldon: Your I have you called him in to be associat- ferred with and he the Defendant you. Explain ed with to me to for a at wishes move mistrial you had control over no his activi- this time and after full considera- knowledge ties and had no he expla- tion of the situation and planning present to in this case nation the alternatives before this manner. him, he feels that he would move mistrial this in and that would be thereupon telling Meldon denied ever his best interest. Wagner that Cox was the extortionist any and responsibility disclaimed for The Court: What does Government Wagner’s planned opening statement. say? have to inquired The court then of Meldon if he Crongeyer: Honor, Mr. Your we have prepared proceed time, at that length discussed this some whereupon following exchanges oc- we think you that for the reasons curred : already have set forth on the record Mr. Meldon: The Defendant has stated might appropriate a mistrial to me that since I was not hired case, this and the Government argue the quandary case he is in a oppose would not a mistrial. because he hired Mr. going I Then am Court: declare argue the case and feels he needs gentlemen. un- I think more time to obtain outside counsel der all circumstances argue the case for him. ease that it would be the interest The Court: justice That too comes You late. to declare a mistrial and are his counsel and plan have been. that is what I to do. will consider it between now and granted Subsequently, Mel- morning. 9:00 o’clock tomorrow don leave to withdraw Dinitz’s coun- [*] [*] [*] -X- [*] [*] sel. Prior his second trial, Dinitz
57
necessity”
“ends
or
“manifest
the indictment
moved to dismiss
4
public justice.”
alternative-
of double
basis
ly
reinstated as his
to have
Somerville,
year
in Illinois v.
Last
counsel,
denied.
motions were
but both
L.Ed.2d
U.S.
represented
trial Dinitz
his second
At
previous
(1973)
the Court distilled
on both
convicted
himself
“general approach”
mistrial-
cases
in the indictment.
counts
premised on the
jeopardy cases
double
policy
justice”
“public
of Perez.
II.
supra,
Mississippi,
v.
also Smith
(5th
Hollowell,
would havе been a real prejudice releasing inherent III. jurors go about their normal affairs in- instant case unusual one general public in contact with unique deed, and its facts must period media for news such a of time. placed proper perspective before these Sequestering them would out have been legal principles applied. can be After question. Additionally, the break Wagner’s and the ex- banishment court’s continuity poor- of the trial would plicit severely threats deal with Mel- ly juror’s impor- serve memories. Most Wag- don had ever been aware of tantly, however, a continuance would sad- proposed opening statement, ner’s the dle Dinitz with the infer- unfavorable possible court was faced with three jurors surely ences the draw from pro- (1) courses action: it could have delay itself and from ab- trial; (2) ceeded with it could have sence the rescheduled trial. granted a continuance and reconvened Usually, the declaration aof mistrial date;5 with the same at a later contemporaneous event (3) or it could have declared a mistrial. judgment operates which in the court’s *6 Proceeding necessary. with to make a sult, the trial would mistrial re- aAs appellate the normally altogether tests been so unreasonable as to to precipitating determine whether the carry probability the of a on reversal requisite event created the ne- manifest appeal. supra. Somerville, cessity to abort the trial. The instant expulsion Wagner court’s of left Dinitz case does not fit this mold. The actions employed he without the counsel had to n banishing Wagner of the court in lead the conduct of his defense. The threatening inexorably Meldon led the placed only to threats Meldon re- the path trial down the to mistrial. theAs maining attorney trial in the inconsist- government forcefully argues manifest position having protect ent of to own his necessity present when the mistrial standing as a member of the bar the of finally granted, but we would be Northern of wrong District Florida to inquiry focus there.7 suggestion complicity of with the judge’s die was cast the trial re- begun line of had and sponse defense to the conduct of defense counsel. grounds 5. granting The continuance have had the effect the mistrial at the time jury granted. of a mistrial if the same recon- highly was not it was The case had been jeopardy jury vened, publicized, reported since attaches when the it had been sworn, 3, supra. jurors see footnote court before trial that some of the had potentially prejudicial overheard comment Dinitz, year time, 6. security a third guard. However, law student at thе Dinitz similarly unprepared represent long himself. court was aware these reasons before thought was excluded and if it them government argues judge granting and the trial sufficient to warrant aof might indicated that there have been other it would have acted earlier. V. testing validity this Before is- the threshold must resolve sponse, we at the actions court’s Since to the consent Dinitz’s of whether sue Wagner’s banishment made time subsequent his operated bar grant subsequent inevita of mistrial not so plea.8 If it did jeopardy double ble, appellate must center review wheth- then determine must operate, we than on the result actions rather these ing judge time did at trial whаt er of an attor Dismissal declaration. mani- Wagner’s met the disbarment trial ney of a criminal in the midst requirements of Perez necessity fest wrong. per re The discretion not posed se Somerville. that the in the trial court to see justice proceedings it accord before abstract, litigants is, in the broad IV. enough encompass a removal. such to a mis consented Dinitz When example, For counsel his defense raising the himself trial did bar trying prejudices jury his actions so answering jeopardy issue? double necessity that manifest exists client characterize question need not this may expelled mistrial; he be declare a judicial over judge’s actions the trial reaching and a mistrial declared. The fact that supra, under which may the mistrial to the attributed ab jeopardy plead double Dinitz allow De sence of counsel is of no moment. spite part. notwithstanding on his consent characterization, such formal Using a mis consent to a defendant’s ultimate of the mistrial remains cause complaint subsequent trial to bar his counsel-provoked jury prejudice. implies he has possible Additionally, it that an attor accept an abandonment bound himself to ney’s disruptive conduct can be so by exercising some orderly processes justice require toas thing a Hobson’s more than substantial proceedings removal from and an able to contin If a defendant is choice. ensuing Again, manifest though harmed even ue the trial prosecutorial declaring a mistrial would error, but de be found the state of affairs created proceeding, he has to abort that sires by counsel before court takes action. right proceed before the waived scrutiny our be directed Here must first case, In the instant first selected. impact to the however, the actions of the trial activity point to determine if rendering Dinitz un had the effect of ousting jury prejudice can sustain the Wag able conduct With his defense. Wagner and the of a similar fate threats *7 disabled, Dinitz ner excludеd and Meldon for Meldon. accept had choice but move for or no Wagner’s beginning the a mistrial. Under circumstances conduct Walden, ending ease, suppress this see United States v. with the motion to supra, hardly phone re he can be to have re the had said with call statement retiring linquished right pro quired jury voluntarily the from the court his jury.9 Although ceed the in- before first room several times. these argument 8. do not reach that have either misread or Jorn. We Dinitz’s misunderstood position analysis holding loyalty Meldon’s of divided between As his of the law of that shows, representing protecting his his own that is not the source of our difference. client purely analysis. operated require personal Bather, con it is due to fact For interests a emphasis, reiterate record dis- sent from Dinitz to the mistrial. we that this Glasser Cf. judge’s response States, 457, closes to us that the trial v. United 815 U.S. 62 S.Ct. deprived (1942). defense Di- 680 the conduct of counsel 86 L.Ed.2d necessary a mistrial of its nitz’s motion for Judge incorrectly premises consensual Bell dissent- character. supposition ing upon remarks the that 60 admissibility vexatious, it permissibility certain ter of the térruptions or were individually attempt the ly that, of Except extortion said line cannot be of defense. single lapse they made cumulatively, impartial would'have in “in the impossible. comment, Wagner See Som credible witness” verdict had recog unwillingness erville, Furthermore, we not demonstrated an supra. Wagner guilty comply rulings. of im nize proper the court’s that Thus despite disbarring the court’s an obvious Wagner when, conduct alternative proceeding ruling, precipitating the as he “labeled” a mistrial ruling How prohibiting the case of the incredible witness. ever, a would have been transgression cor had attempt this been reference to the extortion past jury warning Wagner against rected before and was in future post- terjection when comment about matter this without first phone stopped establishing arrest call to Dinitz was proof. a valid basis In in by objection. in This Whitlow, F.Supp. mid-sentence United States v. 110 record no contains intimation that (D.C.D.C.1953) 871 the court that held thought judge jury trial had been rights against the defendant’s prejudiced Wagner’s by mistakes of con retrial, by would be violated up they duct to the time were excused mistrial, after attorney because the defendant’s upon government’s objection to the had exceeded the bounds set phone call statement. Even at that examining the court in In witnesses. point expressed only the court’s concern grant Whitlow the court stated anticipat was to determine whether the mistrial for misconduct coun defense sup ed comment was one that be could propеr except would not sel case ported by Even if admissible evidence. going very misconduct vitals we were to assume that counsel’s actions the trial “Minor itself. misconduct jury, were intended to affect overstepping defense counsel, such facts in the record at time will not this the limits set the court for exam permit justifying jury prejudice, the mistrial because witness, ination of the does under jury never heard this authority warrant a there right judge the matter which the termed by depriving the defendant of his “character assassination.”10 If the court to secure a verdict below considered that try has been F. sworn to him.” Wag prejudiced by been case had Supp. at 876. up point, prej ner’s conduct such Assuming for ar the sake of udice could have been cured a cau gument engaged delib tionary being so, instruction. This erate, baiting contemptuous course of prejudice existence such curable improperly attempting court and as support would not See Car principal sassinate the character sey U.S.App.D.C. v. United States, 129 prosecution witness, ne still no manifest (1967). F.2d cessity dispatch for his immediate Jorn, United States v. have existed.11 Such misconduct could (1971), condoned, L.Ed.2d never be but insofar as holding concerned, court based its the mistrial' progress then trial supported by was not manifest other available аlternatives to the judge’s
on the trial
failure to consider
judge had to be considered. See United
supra.
example, the
other
also
For
alternatives.
States
could
Cheung, supra.
have warned
States
In the instant
contempt
such
he would be cited for
mat-
had not ruled on the
case,
*8
proof
only
the
concerned with
existence of
was
making
10. In
this determination we liave not
agent
same
the
Cox
the
that
undercover
give full
to the trial
failed to
consideration
up
picked
for
man who had
the
left
bundle
judge’s superior opportunity
the
to observe
If the court ever considered
the extortionist.
particular
jury.
effect of
statements
on thе
Wagner may
urging a
have been
broader
that
See,
g.,
States,
364,
e.
v. United
367 U.S.
Gori
up
Dinitz had
been set
contention —that
1523,
(1961).
81