Amicus Brief — New York v. Brown

Court, U. 3

FILED

No. 76-358 OCT 8 1976

In the Supreme Court of the Un

OCTOBER TERM, 1976

THE PEOPLE OF THE STATE OF NEW YORK. PETITIONER

Vv.

KING BROWN

ON PETITION FOR A WRIT OF CERTIORARI TO

THE NEW YORK STATE COURT OF APPEALS

_ MEMORANDUM FOR THE UNITED STATES AS

AMICUS CURIAE

ROBERT H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

-

OO ee

In the Supreme Court of the United States

OvcTOBER TERM, 1976

No. 76-358

THE PEOPLE OF THE STATE OF NEW YORK, PETITIONER

Vv.

KING BROWN

ON PETITION FOR A WRIT OF CERTIORARI TO

THE NEW YORK STATE COURT OF APPEALS

MEMORANDUM FOR THE UNITED STATES AS

AMICUS CURIAE

QUESTION PRESENTED

Whether the Double Jeopardy Clause forbids.a se-

cond trial, and consequently an appeal by the prosecution,

when an indictment is dismissed by the court in mid-

trial at the request of the accused.

INTEREST OF THE UNITED STATES

The Criminal Appeals Act, 18 U.S.C. 3731, allows the

United States to appeal in any criminal case from an

order dismissing an indictment. This Court has concluded

that the effect of the Criminal Appeals Act is to allow the

United States to appeal from any order terminating a

prosecution in favor of the accused, unless the Double

Jeopardy Clause would prohibit further proceedings if

the prosecution were to prevail on appeal. United States

(1)

2

v. Wilson, 420 U.S. 332, 336-339. Resolution of the question

presented in this case—whether the Double Jeopardy

Clause forbids further proceedings after an indictment has

been dismissed in the middle of a jury trial at the behest

of the accused—therefore would control the right of the

United States to appeal under the Criminal Appeals

Act no less than the right of a State to appeal under a

statute, such as that of New York (N.Y. Crim. P. Law

§§ 450.20 and 290.10 (McKinney 1971)), that explicitly

provides for such appeals.

The United States believes that the issue presented in

this case is currently the most important unresolved pro-

blem in the interpretation of the Double Jeopardy Clause.

If judgments entered in mid-trial at the request of the

accused—before submission of the case to the jury, with

the attendant exposure of the defendant to risk of convic-

tion—are insulated from review, defendants in substan-

tial numbers of cases will receive what we believe to

be unjustifiable windfall benefits. Because of the volume

of federal criminal litigation, the United States has a

pressing interest in the resolution of the question

presented here.

DISCUSSION

The New York State Court of Appeals, perceiving

itself to be “constrainfedJ” (Pet. App. 15a) by the decisions

of this Court in United States v. Wilson, supra; United

States v. Jenkins, 420 U.S. 358; and Serfass v. United

States, 420 U.S. 377, has overruled one of its recent cases

and held that the Double Jeopardy Clause forbids the State

to appeal from an order dismissing an indictment

entered in mid-trial at the request of the accused. It did

so because it read Wilson, Jenkins and Serfass as creat-

ing an inflexible rule that, once jeopardy has attached in

3

a criminal prosecution and proceedings have terminated

in favor of the accused, any further proceedings are

forbidden by the Double Jeopardy Clause. !

1. An inflexible rule such as that adopted by the court

in this case cannot properly be distilled from prior deci-

sions of this Court. Not only does the recent trilogy of

opinions two Terms ago abstain from such an approach,

but the approach is inconsistent with /ilinois v. Somer-

ville, 410 U.S. 458, in which a trial was terminated in

the defendant’s favor, after jeopardy had attached, by

the dismissal of a defective indictment. True, the termi-

nation in Somerville was labelled a mistrial, but this

Court has unequivocally rejected the notion that the label

attached to the trial court’s action is dispositive of the

double jeopardy question. See United States v. Sisson,

399 .U.S. 267, 290; United States v. Jorn, 400 U.S.

470, 478 n. 7; Serfass v. United States, supra, 420 U.S. at

392.

The issue of the appealability of mid-jury-trial termina-

tions in favor of the accused is one of far-reaching practi-

cal importance, yet one which has been clouded by this

Court’s divergent approaches to double jeopardy problems

in various cases. There is considerable tension in the doc-

trines that have been developed to resolve claims arising

out of mid-trial terminations. In one line of cases, ex-

emplified by Somerville and Gori v. United States, 367

U.S. 364, the Court has emphasized flexibility and practi-

cal considerations; it has inquired whether the accused

has been deprived of an interest the Double Jeopardy

'The New York court's feeling of constraint appears unwarranted

in view of this Court's express reservation of questions such as that

presented here. Serfass, supra, 420 U.S. at 394.

4

Clause was designed to protect and, if he has been,

whether that deprivation was supported by manifest neces-

sity. It has allowed second trials even though the first

trial ended with a judgment in favor of the accused and

even though, as in Somerville, the first trial was

ended over the objection of the accused. Yet in another

line of cases, exemplified by Fong Foo v. United

States, 369 U.S. 141, the Court seemingly has followed

an absolutist rule, stating that if the first trial ends with

a decision in favor of the accused, a second trial is imper-

missible even if the decision was erroneous, was rendered

at the specific request of the accused, and effectively

removed the case from the consideration of the jury.

Wilson, Jenkins and Serfass can be read as belonging

to either of these lines of cases. In our view the Court

used the practical approach, for it allowed the prosecu-

tion to appeal in Wilson and Serfass from “judgments”

(as opposed to “verdicts”) terminating the case in favor

of the accused. It did so even though the judgment in

Wilson was entered after jeopardy had attached, and even

though the judgment in Serfass was based upon the dis-

trict court’s resolution of the general issue. The Court

explained these decisions, however, by pointing out that

a decision in favor of the prosecution would not lead to

further proceedings or to a second jeopardy in the dis-

trict court, and in so doing it may be thought to have im-

plied (although it did not say) that the possibility of further

proceedings would in every case violate the Doubie

Jeopardy Clause.

This latter implication cannot be reconciled with Gori,

Somerville, United States v. Dinitz (No. 74-928, decided

March 8, 1976), and the many other cases in which the

Court has upheld the propriety of additional proceedings

after the trial judge has aborted a trial and called the

termination a mistrial. It is also irreconcilable with the

or

5

Court’s numerous holdings that if a case proceeds to a

verdict of guilty, and the court of appeals or some other

court later sets aside the verdict because of a defect in the

indictment or trial, the Double Jeopardy Clause does not

bar a second trial. See, e.g., United States v. Tateo, 377

U.S. 463; United States v. Ball, 163 U.S. 662.

The tensions in the rationales advanced by the Court

have produced several lines of cases in the lower courts

reaching disparate results. Some of the cases consider the

policies underlying the Double Jeopardy Clause and con-

clude that further trial proceedings would not be barred.

See, e.g., United States v. Kehoe, 516 F. 2d 78 (C.A. 5),

certiorari denied, 424 U.S. 909 (allowing a second trial

after an indictment was dismissed in mid-trial at the

request of the accused). Others simply announce an in-

flexible rule that once a case has terminated in favor of

the accused no further proceedings can be held. See, e.g.,

United States v. Robbins, 510 F. 2d 301 (C.A. 6), certio-

rari denied, 423 U.S. 1048. These cases are catalogued at

Pet. 21-24, and (although we do not agree with the State’s

characterization of all of them) we believe that the con-

flict among the circuits and the state courts is an aggra-

vated one and that the confusion is growing daily. Prompt

resolution of the problem presented here is essential.

2. If the trial court in this case had declared a mistrial

over respondent’s objection, based on a defect in the in-

dictment, a new trial would have been permitted under

Somerville so long as the trial court’s decision were ar-

guably correct. If the trial court had denied respondent's

motion to dismiss, the case had proceeded to verdict

under an indictment later determined to be invalid,

and the conviction therefore had been set aside on re-

spondent’s appeal or on collateral attack, a new trial

would have been permitted under Tateo and Ball. These

6

results would be consistent with the entirely practical

way the Court usually has interpreted the protections of

the Double Jeopardy Clause. That jeopardy may attach

before proceedings conclude in favor of an accused begins

rather than ends the analysis (Serfass, supra, 420 U.S.

at 390), and the defendant's right to be free of multiple

trials must be weighed against (and at times subordi-

nated to) other considerations of policy. See United

States v. Jorn, supra, 400 U.S. at 484.

In our view, the substantial protections of the Double

Jeopardy Clause are not called into question when an

accused voluntarily surrenders his right to have the jury

pass upon his guilt or innocence and instead asks the trial

judge, who cannot convict him, to terminate the pro-

ceedings. In such cases there is no risk of conviction,

no risk that a second prosecution will re-examine facts

found in the first prosecution, no risk that a “verdict”

in favor of the accused will be set aside. The careful bal-

ancing of interests carried out in Dinitz, Somerville, and

like cases is no less appropriate when a trial ends in an

order dismissing an indictment than when it ends in

a mistrial.

The instant case is in fact stronger for the prosecution

than Somerville was in one important respect: in Somer-

ville the accused objected to termination of the trial and

asserted his “valued right” to proceed to verdict before the

jury then empaneled; here, by contrast, the trial

ended in response to a motion filed by the accused

himself. In such circumstances there would seem to be

little reason for precluding a second trial if the termina-

tion of the first trial was erroneous. Otherwise a motion

to terminate the trial would travel a one-way street, in

which the accused could receive windfall benefits of

errors in his favor without facing even the possibility of

correction or conviction. The toleration of such errors

is, to be sure, part of the constitutional scheme in cer-

tain circumstances, but that is so only when the accused

7

has faced the risk of conviction and the error comes to be

embodied in a verdict by the authorized factfinder. An

accused who moves in mid-trial to abort the proceedings

does not receive the benefits of such a verdict, however,

and has no interest in its finality; indeed, the advantage

to the accused of such a mid-trial dismissal is precisely

that it avoids the possibility that the jury will be allowed

to consider the case and return a verdict.

3. Two other double jeopardy problems inspired by the

tension in this Court's cases already are before the Court.

Three petitions filed by the United States raise the ques-

tion whether the prosecution can appeal from a post-

verdict order suppressing evidence in a bench trial;

the Tenth Circuit has held that because such orders “termi-

nate” a case in favor of the accused, further proceedings

are forbidden.? Two petitions filed by the United States

raise the question whether the prosecution can appeal

from an order dismissing an indictment entered after

the jury has been unable to agree and a mistrial has been

declared; the Fifth and Ninth Circuits have held, although

for different reasons, that once one trial has been com-

pleted another cannot be held, even though the first trial

ended in a mistrial, when the trial court’s action

between the first and second trials constituted a “termi-

nation” in favor of the accused.’ We believe that the error

of the New York State Court of Appeals and the errors of

the Fifth, Ninth and Tenth Circuits stem from a common

misunderstanding of the nature of the protections afforded

2United States v. Morrison, No. 75-1534; United States v. Rose,

No. 75-1535; United States v. Kopp, No. 75-1536.

‘United States v. Sanford, No. 75-1867; United States v. Martin

Linen Supply Co., No. 76-120.

ee ag

by the Double Jeopardy Clause and from an improper in-

terpretation of Wilson, Jenkins and Serfass. We there-

fore believe that it would be advantageous for the Court

to consider this Term all three questions concerning

appeals by the prosecution.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

OcToBER 1976.

DOJ-1976-10

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