Appellants Brief — Crist v. Bretz

In The — A, v7 CLERK |

Supreme Court of the United States

ROGER CRIST, as Warden of the Montana State

Penitentiary, Deer Lodge, Montana, et al.,

Appellant,

vs.

MERREL CLINE and L. R. BRETZ,

Respondents.

BRIEF FOR THE APPELLANTS

Micwae. T. GE

Attorney General

State of Montana

State Capitol

Helena, Montana 59601

By Roserr S. KrIAn

Special Assistant Attorney General

COCKLE PRINTING CO., 1822 St. Marys Ave, Omaha

TABLE OF CONTENTS

Pages

Jurisdiction . 1

Questions Presented 3

Statement of the Case 3

Opinions Below 6

Summary of Argument 6

Manifest Necessity 14

Conclusion 14

CASES CITED

Apodaca v. Oregon, 406 U. S. 404 (1972277 13

Benton v. Maryland, 395 U. S. 74 8

Bretz v. Sheriff, (1975) 539 P. 2d 11911 4,5

Cunningham, et al. v. Montana, 406 F. Supp. 430

e 5

Downum v. United States, 372 U. S. 374 (1963 7, 8, 9, 10

Downum v. United States, 300 F. 2d 137, 139-140

D ——̃ ee 90

Dutton v. Evans, 400 U. S. 74, 91 S. Ct. 210, 27

L. Ed. 2d 213 (1970) 2

Green v. United States, 355 U. S. 184, 198 (1957) — 10

Illinois v. Somerville, 410 U. S. 458 (1973 7, 8, 9, 11

In re Winship, 397 U. S. 358 (1970) — 10

if

CASES CITED—Continued

Pages

Johnson v. Louisiana, 406 U. S. 356 (19727 13

Serfass v. United States, 420 U. S. 377, at 388

(1975) — 7, 8, 9, 11

Simmons v. United States, 142 U. S. 148, 152 (1891) 8

U. S. v. Jorn, 400 U. S. 470 10, 11

Wade v. Hunter, 336 U. S. 684, 689 (1949) 10

Williams v. Florida, 399 U. S. 78 (1970) 13

STATUTES CITED

$8 U.G. . 600... ; 1,2

Section 95-1711 of the Revised Code of Montana,

1947, as amendel 3,7

Criminal Appeals Act of 1907 (Act of March 2,

100%, e. 00, 8 . . . 12

TEXTS CITED

1 Bishop Crim. Law §§ 1012, 1014, 1015 (8th Ed.

12009 ——.——ñ—ñ—ñ »«*.ô s

4 W. Blackstone, commentaries 335-3333 10

CONSTITUTION CITED

Fifth Amendment to the United States

sen 3, 8, 13

iii

OTHER AUTHORITIES

Pages

Model Penal Code § 100, Comment (Tent. Draft

EE

Model Penal Code § 108.4 (Proposed Official Draft,

77 Harv. Law Review 1272, 128% a — 10

In The

Supreme Court of the United States

No. 76-1200

°

ROGER CRIST, as Warden of the Montana State

Penitentiary, Deer Lodge, Montana, et al.,

Appellant,

vs.

MERREL CLINE and L. R. BRETZ,

Respondents.

JURISDICTION

The Ninth Cireuit Court of Appeals’ decision in effect

declared a Montana statute unconstitutional, and held er-

roneous the Montana Supreme Court's determination that

the statute is constitutional. The Supreme Court of the

United States has jurisdiction to review by direct appeal

the opinion complained of by the provisions of 28 U.S. C.

1254 (2).

Appellees Cline and Bretz were charged with nine

counts including obtaining money by false pretenses (App.

1). A jury was empaneled and sworn, and Appellees

moved to exclude any evidence with respect to the charge

of obtaining money by false pretenses (and two other

counts) for the reason that the Information (because of a

typographical error) alleged the crime to have been com-

mitted after it had been repealed. The State district court

dismissed the charge sua sponte. The State dismissed the

remaining counts and filed a new Information (App. 2),

setting forth the same count of obtaining money by false

pretenses that was in the original Information. The Ap-

pellees objected on the grounds of double jeopardy, denied.

The Appellees petitioned the Montana Supreme Court for

a writ of habeas corpus, denied. Trial was held, resulting

in a conviction, and Appellees petitioned for a writ of

habeas corpus in the United States District Court for Mon-

tana (App. 3), on the grounds of double jeopardy. The

writ was denied, and Appellees appealed to the Cireuit

Court of Appeals for the Ninth Cireuit. That Court re-

versed, in effect holding that the Montana statute (Jur.

St. App. D) (which permits reprosecution unless the first

witness has been sworn) is unconstitutional, and that the

Montana Supreme Court’s determination that the statute

is constitutional (App. 4) was erroneous.

The State’s remedy by appeal is under the provisions

of 28 U.S.C. § 1254 (2). Dutton v. Evans, 400 U. S. 74,

91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).

3

QUESTIONS PRESENTED

1. Can Montana determine by statute that jeopardy

attaches in a trial when the first witness is sworn, or must

it conform to the Federal Procedural Rules which establish

the swearing of the jury as the point at which jeopardy at-

taches?

2. Or, is Section 95-1711 of the Revised Codes of Mon-

tana, 1947, as amended, constitutional in light of the double

jeopardy provisions of the Fifth Amendment to the United

States Constitution?

3. Assuming that this Court were to hold that jeop-

ardy attaches in state proceedings when the jury is sworn,

does the doctrine of “manifest necessity” nevertheless re-

quire that a trial be held?

—

3

STATEMENT OF THE CASE

The petition for writ of habeas corpus by Appellee

Bretz in the United States District Court was made a part

of the stipulated Appendix (App. 3) for the sole purpose

of setting out the background facts, and the State agrees

that the facts set forth therein are substantially correct.

The Information No. 3921 (App. 1) in this matter was

filed on October 3, 1974, in Lewis and Clark County, State

of Montana, charging Cline and Bretz with the commission

of nine felonies. On March 19, 1975, a jury was empaneled

and sworn; no witnesses were sworn. Before opening

statements and before any evidence had been offered, the

jury was excused as defense counsel presented several mo-

4

tions to the court. The most important of these motions

sought to restrict the State’s evidence to the allegations of

the Information. This was aimed at Count IT (obtaining

money and property by false pretenses), although two other

counts were similarly involved; the Information mistakenly

charged that the conduct constituting this offense had oc-

curred between January 13, 1974 (instead of 1973) and

February 19, 1974. The Montana Criminal Code, 1973, a

sweeping, comprehensive revision of the substantive law of

the State, took effect January 1, 1974, repealing all previ-

ous criminal laws, including the charging statute.

The State resisted the attempt to excise Count II from

its ease, and on March 21, 1975 moved to amend Count Il

to correct the typographical error. On Mareh 24, 1975, the

trial court denied this motion and sua sponte dismissed

Count II for failing to state an offense. After the Mon-

tana Supreme Court declined to grant the State’s petition

for a writ of supervisory control, the State returned to the

trial court and moved to dismiss the remaining counts in

order to file a new Information. The trial court granted

the motion, and discharged the jury on April 4, 1975; a

second Information, No. 3963 (App. 2), alleging the com-

mission of two felonies by Appellees was filed on the same

day. Count I, grand larceny, was the same as the first In-

formation, a count dismissed by the State. Count II, ob-

taining money by false pretenses, was the same as the first

Information, but with the corrected date. Appellees’ mo-

tions to dismiss on the grounds of double jeopardy were

filed on April 25, 1975 and denied on May 1, 1975. Appel-

lee Bretz filed a petition for habeas corpus with the Su—

preme Court of Montana alleging double jeopardy. This

was denied by that court on July 23, 1975, Brete v. Sheriff,

— rr

5

(1975) 539 P. 2d 1191. On September 2, 1975 the Supreme

Court denied a rehearing. A trial commenced in the State

District Court of the First Judicial District on June 16,

1975, and on July 2, 1975 Bretz and Cline were found guilty

of obtaining money by false pretenses—one of the same

counts that had been dismissed in the earlier proceeding

by the trial court because of a typographical error.

Bretz and Cline filed separate petitions for writs of

habeas corpus in the United States District Court for the

District of Montana, Billings Division (App. 3), and the

matters were ordered consolidated with that of a similar

petition filed by Clancy Cunningham. On December 31,

1975 the Honorable James F. Battin denied the petition.

Cunningham, et al. v. Montana, 406 F. Supp. 430 (D. Mt.

1975) (Jur. St. p. 42).

(State v. Cunningham (App. 4) involving the same

question, was decided by the Montana Supreme Court, and

is inserted in the Appendix here by reason of the fact that

the Montana Supreme Court refers to that opinion as con-

trolling in denying the writ of habeas corpus of app: "ee

Bretz, Bretz v. Sheriff, supra. Cunningham also petitioned

the United States District Court, and the petitions of Ap-

pellees here and Cunningham were consolidated. There—

after, Cunningham died, and his appeal to the Ninth Cir-

cuit Court of Appeals was dismissed. Thus, the reason

that his name figured so prominently in the proceedings

below, but not now.)

Notices of appeal to the Ninth Cireuit Court of Ap-

peals were filed by Bretz and Cline, and the matters were

again consolidated. In their opinion filed November 19,

1976 (Jur. St. p. 13), the Ninth Cireuit Court of Appeals

reversed the lower court, ruling that the State’s statute

did not control when jeopardy attached in the first pro-

ceeding and that under federal rule the defendants had

been placed in jeopardy in violation of the Fifth Amend-

ment. The court went on to reverse the other part of the

lower court’s decision which held that even if jeopardy

had attached, the doctrine of ‘‘manifest necessity’’ required

that the trial be held. The Appellants herein duly filed

their notice of appeal.

The opinion of the United States Court of Appeals for

the Ninth Cireuit was decided and filed on November 19,

1976, and is in the Jurisdictional Statement at page 13.

The opinion of the United States District Court, District

of Montana, reversed by the Ninth Cireuit Court of Ap-

peals is in the Jurisdictional Statement, at page 42.

SUMMARY OF ARGUMENT

„(The United States Supreme) Court has consistent-

ly adhered to the view that jeopardy does not attach, and

the constitutional prohibition can have no application,

until a defendant is ‘put to trial before the trier of the

facts, whether the trier be a jury or a judge’, C. S. v. Jorn,

400 U. S. 470, at 479. See Kepner v. United States, 195 U.

S. 100, 128, 130-131 (1904); United States v. Macdonald,

7

207 U. S. 120, 127 (1907); Bassing v. Cady, 208 U. S. 386,

391-392 (1908) ; Collins v. Loisel, 262 U. S. 426, 429 (1923),

Serfass v. United States, 420 U. S. 377, at 388 (1975).

Montana statutes provide that the defendant is not put

to trial before the trier of the facts until the first witness

is sworn, Section 95-1711, R. C. M. 1947, as amended. Jur.

St. p. 55). (That lengthy statute can be condensed to read

as follows:

3) When Prosecution Barred by Former Prosecu-

tion.

. . . A prosecution based upon the same transaction

as a former prosecution is barred by such former

prosecution under the following circumstances:

(a)-(e)...

(d) the former prosecution was improperly

terminated. Except as provided in this sub-

section, there is an improper termination of

a prosecution if the termination is for rea-

sons not amounting to an acquittal, and it

takes place after the first witness is sworn

but before verdict. . . .’’)

The Ninth Circuit Court of Appeals takes the posi-

tion that jeopardy attaches, in a jury trial, when a jury

is empaneled and sworn, citing Downum v. United States,

372 U. S. 374 (1963), IMinois v. Somerville, 410 U. S. 458

(1973), and Serfass v. United States, supra. It is the posi-

tion of the Appellant that there is ‘‘a point in criminal

proceedings at which the constitutional purposes and pol-

icies are implicated”. United States v. Jorn, supra, at 480;

Serfass v. United States, at 388, and that that point is

when the court begins to hear evidence, i. e., at the point

when the first witness is sworn, as is recognized in a non-

jury trial, Serfass v. United States, at 388. And, that the

8

pronouncements of this Court in the past that in a jury

trial, jeopardy attaches when a jury is empaneled and

sworn, have arisen under circumsances when this precise

point was not in dispute.

Putting it another way, the rule has previously been

announced, but the reason for the rule has never been.

The background of the federal rule is obscure, at best.

1 Bishop Crim. Law §§ 1012, 1014, 1015 (8th Ed. 1892)

states that the greater weight of authority has jeopardy

attaching when the jury is sworn, and cites a number of

State cases for the authority. And See: Simmons v.

United States, 142 U. S. 148, 152 (1891) for a similar

determination. There is no starting point, it just emerged,

without opposition. The states were not bound by the

rule, and the Doctrine of Manifest Necessity was suffi-

ciently liberal as to not make much difference. The point

is, for at least this century, there has been no other rule

in federal courts. This has not always been the rule in

the States, but not until 1969, in Benton v. Maryland, 395

U. S. 784, is the Fifth Amendment applicable to the states,

i. e., not until then does the occasion arise to examine the

federal rule in the light of the state rule, as to when

jeopardy attaches. Again, putting it another way, Serfass

v. United States, supra, simply states that jeopardy at-

taches when a jury is empaneled and sworn, and cites

Downum v. United States, supra, and Illinois v. Somer-

ville, supra. The reason for the rule was not given, nor

did it need to be, for Serfass was concerned with a fact

situation arising before a jury trial had been set.

Illinois v. Somerville, supra, at page 467, gives the

rule, and cites Downum, supra, as authority, without going

into the reason. The fact of the matter is, the rule was

assumed, and Somerville was a ‘‘manifest necessity’’ case.

No one argued the rule, for the Illinois Rule and the Fed-

eral Rules were the same. (Justice Tuttle, speaking for

the Ninth Cireuit Court of Appeals [Jur. St. p. 27], stated

that this argument ‘‘erroneously equates a circuiustance

with a dispositive factor in a Supreme Court opinion.

The Somerville court never mentions the state rule, and

a thorough sifting of the opinion fails to discover even

a shard of evidence suggesting that the court did not con-

sider federal standards controlling“. It may have been

just a circumstance, but there was no reason for Illinois

to raise the point. Illinois had no alternative. ‘‘Mani-

fest necessity’? was the only point in issue, whether a cir-

cumstance or dispositive.) And Somerville cited Downum.

Downum was clearly a manifest necessity’’ case

the federal rule as to when jeopardy attaches was assumed,

and never debated. The fact situation in Downum arose

at a point when the jury had been empaneled and sworn,

but before any witness had been sworn. Justice Tuttle

put Montana’s dilemma very succinctly when he stated,

„Since the mistrial in Downum had been declared after

the first jury was empaneled but beiore any evidence had

been introduced, 372 U. S. at 741 (Clark, J., dissenting) ;

Downum v. United States, 300 F. 2d 137, 139-40 (5th Cir.

1962), the case necessarily stands for the proposition that

jeopardy attaches when a jury is empaneled. The court

explicitly adopted this reading of Downum in //linois v.

Somerville, 410 U. S. 458, 467-68 (1973), and Serfass v.

United States, 420 U. S. 377, 388 (1975).”

We know that this was not the rule at the common

law, nor at the time that the Constitution was adopted.

10

4 W. Blackstone, commentaries 335-38; Green v. United

States, 355 U. S. 184, 198 (1957) (Frankfurter, J. dissent-

ing). It is not fair to say that it emerged as a part of

the American common law, in much the same manner as

beyond a reasonable doubt’’. In re Winship, 397 U. 8.

358 (1970), for the model penal code commission, a learned

group, formulated the rule that Montana adopted, with a

tentative draft in 1956, Model Penal Code § 109, Comment

(Tent. Draft No. 5, 1956), and an official Draft in 1962,

Model Penal Code § 108.4 (Proposed Official Draft, 1962),

both before Downum. And See: 77 Harv. Law Review

1272, 1286, for a number of states that do not follow the

federal rule.

So is there a reason for the rule? And a reason that

approaches constitutional mass? The difference in time

between the federal rule and the Montana rule is negli-

gible, and the only intervening factor of any significance

is that cited by Wade v. Hunter, 336 U. S. 684, 689 (1949),

What has been said is enough to show that a defendant’s

valued right to have his trial completed by a particular

tribunal must in some instances be subordinated to the

public’s interest in fair trials designed to end in just judg-

ments“. (That was a General Courts Martial where the

tribunal had heard all but two witnesses.) This has been

construed to mean that a defendant has a valued right

to a particular jury that has just been selected, a right of

constitutional dimensions. We submit that the right is

more akin to the speedy trial right for the defendant to

have his trial completed, to get it over with, rather than

to have a mistrial declared, and a retrial later. ‘‘It is,

after all, that possibility—the chance to ‘end the dispute

then and there with an acquittal,’ United States v. Jorn,

11

supra, at 484—that makes the right to a trial before a

particular tribunal of importance to a defendant’’. Illinois

v. Somerville, supra, at p. 475 (White, J., dissenting) and

continuing, at 476, ‘‘ ‘the trial judge must recognize that

lack of preparedness by the government. .. directly im-

plicates policies underpinning both the double jeopardy

provisions and the speedy trial guarantee.’ (Jorn), at

486”’.

But that right has nothing to do with not being twice

tried, for nothing has been submitted to that jury until the

first witness is sworn. ‘‘Without risk of a determination

of guilt, jeopardy does not attach, and neither an appeal

nor further prosecution constitutes double jeopardy.” Ser-

fass, supra, at 391.

“ . the constitutional policies underpinning the Fifth

Amendment guarantee’ are not implicated before that point

in the proceedings at which ‘jeopardy attaches’. United

States v. Jorn, 400 CL. S. at 480. As we have noted above,

the court has consistently adhered to the view that jeop-

ardy does not attach until a defendant is ‘put to trial be-

fore the trier of the facts, whether the trier be a jury or a

judge’. Id. at 479. This is by no means a mere technicality,

nor is it a ‘rigid’ mechanical rule. It is, of course, like

most legal rules, an attempt to impart content to an ab-

traction.” Serfass v. United States, at 390. Justice Tuttle

commenced his opinion by stating, “the tension between

federalism and the doctrine of selective incorporation of

Bill of Rights guarantees via the Fourteenth Amendment

inevitably generates appeals such as this.” (Jur. St. p. 13).

It may well be that his observation is the reason why this

case was accepted, but we don’t see that dichotomy. We

12

think this court has imparted content to an abstraction, by

determining that jeopardy attaches when the defendant is

put to trial before the trier of the facts, whether the trier

be a jury or a judge. We think that the Montana rule is

within that point. We think that if the States want to

adopt more rigid rules, rules that cause jeopardy to attach

even earlier, it is not only within their prerogative, but it

breaches no constitutional right.

[illustrative of the point is the Criminal Appeals Act

of 1907 (Act of March 2, 1907, c. 2564, 34 Stat. L. 1246)

where the government was permitted to take a writ of er-

ror “. .. From the decision or judgment sustaining a spe-

ical plea in bar, when the defendant has not been put in

jeopardy ...”. Congress could just as easily have added,

“after the first witness is sworn” (in which case we would

not be here today), or, “after the jury is empaneled and

sworn”. Neither would infringe upon the constitutional

right of the defendant against double jeopardy, one would

just be more rigid, as in the case of some states. Putting

it another way, have the federal rules of evidence, enacted

by Congress, obtained constitutional stature, for they cer-

tainly affect substantive rights? If Congress were now to

permit appeals by the government until after the first wit

ness is sworn, in jury cases, would this be unconstitutional?

All of the other arguments advanced relative to the

burdens upon the defendant, e. g., the anxiety of getting

ready for trial, the financial strain of preparing for the

first trial, ete., in the final analysis, are just as true in a

non-jury case, and just as true just before the impaneled

jury was sworn as they are just after the first witness is

sworn. They may well fall within the realm of the desires

13

of the defendant, but the controlling question is when do

they reach constitutional mass under the double jeopardy

provisions of the Fifth Amendment?

“The threshold question is thus whether the federal

attachment of jeopardy rule is a product of constitutional

exegesis or simply a nonconstitutional consequence of the

Supreme Court’s supervisory power over federal courts

and federal officials“, Justice Tuttle, in the opinion below

(Jur. St. p. 20). The opinion distinguishes Williams v.

Florida, 399 U. S. 78 (1970), and Apodaca v. Oregon, 406

U. S. 404 (1972) (and, presumably, Johnson v. Louisiana,

406 U. S. 356 (1972) ), as non-constitutional rules in federal

as well as state courts. That is, neither requirement was

termed a sine qua non of the jury trial right protected

by the Sixth Amendment in federal court, and thus neither

—under established incorporation doctrine—was found to

be indispensable in state proceedings.” (Jur. St. p. 23). Is

the distinction in the instant case “indispensable”? The

Model Penal Code finds no distinetion, and places the

point of attachment of jeopardy at the same place, in both

jury and non-jury cases. The “valued right” concept, as

applied to the particular tribunal, ought to be even more

important in the non-jury ease, for at least then counsel

has some knowledge of the predilections of the trier of the

facts.

We submit that the distinetions in the past have arisen

when the choice as to when jeopardy should attach centered

on when the jury was sworn versus when the jury had

reached its verdict. The Model Penal Code used “after

the first witness was worn“, to make the rule the same

in beth jure and non-jury eases. No case has argued that

distinetion.

14

MANIFEST NECESSITY

“Manifest Necessity” does not appear to be a proper

subject for this appeal, jurisdictionally. Since the State

found that jeopardy had not attached, the question of mani-

fest necessity has not been ruled upon by any state court

in this action. It appears for the first time in the federal

district court.

0

In conclusion, Appellant asks that the Ninth Cireuit

Court of Appeals’ decision be reversed, and that the Mon-

tana statute, holding that jeopardy attaches in a jury

trial at the time when the first witness is sworn be held

constitutional.

Respectfully submitted this 6th day of June, 1977.

Respectfully submitted,

Micuae. T. Garti

Attorney General of Montana

By Ronzur S. Keiier

Special Assistant Attorney General