Brief for Appellee — Crist v. Bretz

IN THE

Supreme Court of the Gnit

OCTOBER TERM. 1977

No. 76-1200

KOGER CRIST, as Warden of the Montana

State Penitentiary, Deer Lodge, Montana, et al.,

Appellants,

MERREL CLINE and L. R. BRETZ,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR APPELLEE L. R. BRETZ

CHARLES F. MOSES

The Terrace, Penthouse

300 North 25th Street

P.O. Box 2533

Billings, Montana 59103

Counsel for appellee Bretz

Warengtor OC © CLE PUBLIGHERT « LAW PRINTING CO « (207) 399-0675

(i)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......... 6.6: c cece eneeeee

OPINIONS BELOW ....... 0066. nnes

JURISDICTION. ......... ccc cece eee eeeeeeeeeeeeeneees

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED .... 2. ccc cece cere eee eereeeeeenneeceees

QUESTIONS AS PRESENTED BY APPELLANT ......

ADOPTION OF CLINE BRIEF BY REFERENCE......

STATEMENT. ..........cccccccccccrsccvceeeeceeeeces

ARGUMENT .......... PPPPTPTTTTTTTTTT ITT TTT TLL

A. IS THE MONTANA STATUTE THAT

JEOPARDY DOES NOT ATTACH UNTIL

AFTER THE FIRST WITNESS IS SWORN

UNCONSTITUTIONAL? .. «0.666

B. THE SOLICITOR GENERAL'S MEMO-

RANDUM AS AMICUS CURIAE 1S NOT

PROPER AND SHOULD NOT BE CON-

GEDGED .occcccccccccccccccccccccccccccecees

C. MANIFEST NECESSITY DOES NOT

ALLOW A SECOND TRIAL AFTER

JEOPARDY HAD PROPERLY ATTACHED....

CONCLUIGIONN once ccc ccccccccccccvvevesevvssenes

TABLE OF AUTHORITIES

Cases:

Adney v.U.S.,____ U.S. __, 52 L. Ed. 24 651, 97 S. Ct.

__. (decided June 9, 1977)... 6... ccc eee n wenn

Alexander v. Hall, D.C.S.C., 64 F.R.D. 152.........----.

Anderson v. Smith, 148 So. 2d 243 (Ala.).......----6055-

Baker v. State, 289 A.2d 348 (Md. 1972) ........---5055:

Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89S.

ITTY 4

pevcces 6

PT TTT 19

Ge, CODED cc ccccccccccccccccccccsccscccsccvcseooces 713,15

(ii)

Page

Bernard v. State, 481 S.W.2d 427 (Tex. 1972)...... 0.666. eees 12

Booker v. Phillips, 418 F.2d 434 (Kan. 1969).............-.005: 12

Bretz v. Crist, et al, 546 F.2d 1336 (9th Cir. 1976) (Decided

| PPTTTTITTTT TTT TTT 2

Bretz v. Sheriff, 539 P.2d 1191 (decided July 23, 1975)........... I

Brown v. Ohio, 45 L.W. 4697 (decided June 16, 1977) .......... 16

City of Tempe v. Prudential Ins. Co. of America, 510 P.2d

745, 109 Ariz. 429, App. dism. 414 U.S. 1088, 38

L. BG. 28 S66, 96 B. CB. FEF. .ccccccccccccccccccsccccccess 19

Cline and Bretz v. Montana, 406 F. Supp: 430 (decided

Dossier 34, ISTE) . ccccccccccccccccccccccsccccccccccces 1

Court v. Sanduski, C.A. Ill., 206 F.2d 915 ...... 6... e cece eeeuee 19

Curry v. Superior Court of the City and County of San

Francisco, 87 Cal. Rep. 361, 470 P.2d 345 (1970)........... 15

Ex parte Bornee, 76 W. Va. 360, 85 S.E. 529 ...... 0... ee ee eees 12

Ex parte Lange, 18 Wall. 163, 169, 21 L. Ed. 872 (1874)......... 4

Fornaris v. Ridge Too! Co., 400 U.S. 41, 27 L. Ed. 2d 174,

91 S. Ct. 156 (Puerto Rico, 1970) ... 2.6... cece cece e eee 18

Himmelfarb v. U.S., 175 F.2d 924 2.0.0... cece cece e eens 12,28

Bowand o. CG... PIS O.B8 BBG. cccccccccccccccccccccccsccccecs 12

1.T.S. Rubber Co. v. Essex Rubber Co., 272 U.S. 429, 71

L. Ed. 355, 45 S. Ct. 136 (Mass. 1926) ...... 2... . 6c ee eeees 18

Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35

i, Mh PE cttencedusdcudeddnsdsseseseosececceses 914,19

Kemp v. Rubin, 64 N.Y.S.2d 510, 187 Misc. 707 ............... 19

Klinefelter v. Superior Court, 502 P.2d 531 (Cal.)..........-.5.. 12

Lee v. U.S., 45 L.W. 4661 (decided June 13, 1977)....... 16,29,31

McNeal v. Hollowell, 481 F.2d 1145 (1973)....... 6.666 e eens 14

New Haven Inclusion Cases, 399 U.S., note 78, at page 481,

392, 26 L. Ed. 2d 691, 90 S. Ct. 2065 ....... 2... cece eee 18

Palko v. Connecticut, 302 U.S. 319,87 L. Ed. 288, 58S. Ct.

DE coddbnddeebeceasesteenseseheesnunenciededd 6,7

People v. Scott, 337 N.¥.S.2d 640 (1972). .... 6.6 ccc cece eens 12

Serfass v. U.S., 420 U.S. 337 (1975)... 2.2 eee eee eens 9.16

(iii)

Page

Slagle v. Ohio, 366 U.S. 259, 81 S. Ct. 1076 (1961) ............. 2

Smith v. State of Mississippi, 478 F.2d 88...................... 14

State v. Cline, et al, 555 P.2d 724 (decided October 10,

Sl hdididdenendiitmideniadbaamentosnennseonnéwenteane 18

State v. Gaimos, 162 Pac. 156, 53 Mont. 118................... 12

State v. Sheriff, et ai, 539 P.2d 1191 (1975)................04.. 8

State ex rel Bennett v. Bonner, 214 P.2d 747, 123 Mont. 414..... 19

State ex rel Kvallen v. Graybill, 496 P.2d 1127

Gee EE cemenntbbedbunsnececteetbonsensssceensnecsceses 19

U.S. v. Crescent Amusement Co., 323 U.S. 173, 89 L. Ed.

160, 65S S. Ce. 254 (Tomm. 1944) ......ccccccccccccccccee: 18

es Gh ee Ge Oe I Gl vc cccccccccccecccccccccses 11,24

U.S. v. Martin Linen Supply Co., _.. U.S. ___., 51

L. Ed. 2d 642 (decided April 4, 1977). ................0055. 8

nn 22 CJS 637, Criminal Law Section

RE Se ee Pr eee POE ee er eT TT 1]

Wade v. Hunter, 336 U.S. 684, 93 L. Ed. 974, 69

ES Renee Re 11,15,20,24

Constitutions and Statutes:

United States Constitution, Amendment 5 ................. passim

Montana Constitution, 1889, Art. ITI, Sec. 18......... pcamiieinae 3

Montana Constitution, 1972, Art. II, Sec. 25.............6055. 3,11

a i ee eee danssaueter 2.3.18

Revised Codes of Montana, !947, 95-1711 ............0.0055. 4.11

Other Authorities:

el NGL... onc cccbasedeueeseoosacoees 12

LSE SRR EP PRE yong enna ees ee meen 11

Wharton’s Criminal Evidence 396 ........ 2.6.6.6 eee 12

——_

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1200

ROGER CRIST, as Warden of the Montana

State Penitentiary, Deer Lodge, Montana, et al.,

Appellants,

MERREL CLINE and L. R. BRETZ,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR APPELLEE L. R. BRETZ

OPINIONS BELOW

A. Bretz v. Sheriff, 539 P.2d 1191 (decided July 23, 1975) is

the Montana Supreme Court decision denying appellees’ original

application for a writ of habeas corpus on double jeopardy

grounds.

B. Cline and Bretz v. Montana, 406 F. Supp. 430 (decided

December 31, 1975) is the Montana Federal District Court

decision denying appellees’ application for a writ of habeas

corpus.

C. State v. Cline, et al, 555 P.2d 724 (decided October 10,

1976) is the Montana Supreme Court decision which on appeal

2

affirmed appellee Bretz’s conviction. One of the errors claimed

was denial of his objection that double jeopardy barred this trial.

Appellee Cline’s conviction was here reversed and dismissed

which may affect his status here.

D. Bretz v. Crist, et al, 546 F.2d 1336 (9th Cir. 1976) (decided

November 18, 1976) is the Court of Appeals decision reversing

the Montana Federal District Court decision (B above) and which

is now here on appeal to the United States Supreme Court.

JURISDICTION

The decision of the Court of Appeals for the Ninth Circuit was

entered on November 18, 1976. Notice of appeal was filed on

December 13, 1976 in the Circuit Court. This case was docketed

and appellant’s Jurisdictional Statement was filed on February

18, 1977.

Appellee Cline filed a motion to dismiss or affirm on March 21,

1977.

Appellee Bretz filed a motion to affirm on March 21, 1977.

This court granted review on April 25, 1977, ordering that:

“Further consideration of the question of jurisdiction is

postponed to the hearing of the case on the merits.”

Appellant claims that jurisdiction rests upon United States

Supreme Court Rules 13(2) and 15, (Jur. St. p. 1) and 28 U.S.C.

1254(2) (App. Br. p. 1).

Rule 40(1)(b) requires that appellant’s brief on the merits

contain a “concise statement of the grounds on which the

jurisdiction of this court is invoked, with citation to the statutory

provision and to the time factors upon which such jurisdiction

rests’’. This also corresponds to the requirements of Rule 15(1)(b)

as to the jurisdictional statement. Appellant’s brief does not refer

to this court’s order granting review nor to its order postponing the

jurisdictional question, as required. Slagle v. Ohio, 366 U.S. 259,

81 S. Ct. 1076 (1961), hol¢s that where jurisdiction has been

postponed to the merits, the brief should show “‘fully”’ the basis for

3

Supreme Court jurisdiction, or the appeal may be dismissed and

appellant’s brief does not do this.

As raised in appellee Cline’s motion to dismiss or affirm,

adopted by reference in appellee Bretz’s motion to affirm, the third

question raised as to manifest necessity does not involve a state

statute held repugnant to the United States Constitution by the

Court of Appeals. Accordingly, there is not jurisdiction under 28

U.S.C. 1254(2) which provides:

“Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(2) By appeal by a party relying on a State statute held by a

court of appeals to be invalid as repugnant to the

Constitution, treaties or laws of the United States, but such

appeal shall preclude review by writ of certiorari at the

instance of such appellant, and the review on epee shall be

restricted to the Federal questions presented; .

Neither the jurisdictional statement nor Appellant’s Brief

contain the required citations as to authorities on this question of

jurisdiction.

However, appellant’s brief at page 14 abandons this third

question on appeal involving manifest necessity so this should

resolve this dispute.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Amendment 5, Constitution of the United States, in part:

“*...mor shall any person be subject for the same offense to be

twice put in jeopardy of life or limb;”

Art. ITI, Sec. 18, 1889 Montana Constitution, in part:

**.. nor shall any person be twice put in jeopardy for the same

offense.”

Art. II, Sec. 25, 1972 Montana Constitution, in part:

“No person shall again be put in jeopardy for the same

offense tried in any jurisdiction.”

4

Sec. 95-1711(3), Revised Codes of Montana, 1947, in part:

*. . @ prosecution based upon the same transaction as a

former prosecution is barred by such former prosecution

under the following circumstances:

ees

“(d) The former prosecution was improperly terminated.

Except as provided in this subsection, there is an improper

termination of a prosecution if the termination is for reasons

not amounting to an acquittal, and it takes place after the first

witness is sworn but before verdict.”

QUESTIONS AS PRESENTED BY APPELLANT

“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 attaches?

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

1947, 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 jeopardy attaches

in state proceedings when the jury is sworn, does the doctrine of

‘manifest necessity’ nevertheless require that a trial be held?”

(App. Br. p. 3).

ADOPTION OF CLINE BRIEF BY REFERENCE

Bretz here adopts by reference the brief for appellee Merrel

Cline filed herein. Bretz will try to not unnecessarily repeat law

and argument cited there.

STATEMENT

Bretz adopts the Statement set forth in appellee Cline’s brief,

and it should not be necessary to repeat the same here. However, it

5

should be noted that appellee Cline’s brief was filed prior to the

time the amicus curiae memorandum of the Solicitor General was

filed. As noted below, there are numerous errors contained in the

Solicitor General's statement. Bretz is well aware of these errors

and the correct facts. However, the Supreme Court rules require

that a statement of facts should be reflected by and decided

through that part of the record that supports the same. As the

Solicitor General’s memorandum also states, the record here does

not include the proceedings held in the state district court.

Therefore, it is not here possible for Bretz to correctly set forth all

of the facts as to the record below, with reference thereto, as the

same are not now before this Court.

As also noted below, these facts are not in any event proper

before this Court, as the only question properly that should be

considered here is the question as to the constitutionality of the

Montana statute, and the facts and record which would support the

Solicitor General's position as to manifest necessity.

However, Bretz must dispute certain statements made in the

Solicitor General's memorandum, so that his position can be

understood.

There was in fact below but one criminal offense, which the

State elected to attempt to charge in nine separate counts. This is

proven by the fact that the second trial court finally permitted only

one count to go to the jury.

The ninth count was not dismissed because of a repeal by the

recent Montana Penal Code revision, but because the statute on

which it had been predicated had been repealed long before that.

There is nothing in the record that reflects that Bretz withheld

raising any issues pending the attachment of jeopardy, and in fact

there are numerous references in briefs raising the point by Bretz

that certain of these matters should be determined and resolved by

the Court prior to the time jeopardy would attach. Specifically

Bretz’s counsel raised the point that the Court should grant his

motions to dismiss, so that all of these questions could be taken by

the State to the Montana Supreme Court prior to the time that

jeopardy attached, and then be resolved by that court prior to trial.

6

Bretz’s motion to restrict the factual proof to the period of time

set forth in the information related to the fact and to a contention

by Bretz that the particular crime involved did properly take place

within the time frame set forth in that information, and related to

the conclusion of the claim made to the Workmen’s Compensation

Board in Montana, by the filing of papers with that Board and the

attaining of the funds at that time, and that proof and facts prior to

that time were not proper.

Both sides applied to the Montana Supreme Court for

supervisory control relief, and argued for the same which was there

denied by the court.

The three counts were dismissed by the trial court, sua sponte,

and over the specific objections by Bretz, which also included his

specific statement that he was not waiving any rights he had

thereto.

These facts, which are correct and are reflected by the record

below, militate against, and destroy the factual position on which

the Solicitor General's brief relies.

ARGUMENT

A.Is the Montana Statute that Jeopardy does not Attach

until After the First Witness is Sworn Unconstitutional?

Bretz contends that the first two questions raised can properly

be considered together and as stated above. This Montana

Statutory attempt to define when jeopardy attaches is uncon-

stitutional under both the United States and Montana Con-

stitutions. The Montana Legislature does not have the power to

change the Constitution as interpreted by this Court.

Prior to 1969, Palko v. Connecticut, 302 U.S. 319, 87 L. Ed.

288, 58 S. Ct. 149 (1937) was the law of the land holding that the

Fifth Amendment double jeopardy provision did not apply to the

states, and they were free to then adopt their own rules thereon.

Thus, in 1962 a Model Penal Code provision was proposed which

7

sworn. Montana adopted this provision in 1973 as the statute now

in question. Thus, the 1964 Harvard Law Review cited in

appellant's brief at page 10, the law from which is now out of date,

this article did correctly predict Benton, below.

However, all this was changed in 1969 when Palko was

specifically overruled in Benton v. Maryland, 395 U.S. 784, 23

L. Ed. 2d 707, 89 S. Ct. (1969), holding that:

“The double jeopardy prohibition of the Fifth Amendment

represents a fundamental ideal in our constitutional heritage.

and that it should apply to the states through the Fourteenth

Amendment. Insofar as it is inconsistent with this holding,

Palko v. Connecticut is overruled.

‘Palko represented an approach to basic constitutional rights

which this Court’s recent decisions have rejected. It was cut

of the same cloth as Betts v. Brady, 316 U.S. 455, 86 L. Ed.

1595, 62 S. Ct. 1252 (1942), the case which held that a

criminal defendant's right to counsel was to be determined by

deciding in each case whether the denial of that right was

‘shocking to the universal sense of justice’. Id., at 462, 86 L.

Ed. at 1602. It relied upon Twining v. New Jersey, 211 U.S.

78,53 L. Ed. 97,298. Ct. 14(1908) which held that the right

against compulsory self-incrimination was not an element of

Fourteenth Amendment due process. Betts was overruled by

Gideon v. Wainwright, 372 U.S. 335,9 L. Ed. 2d 799, 83 S.

Ct. 792, 93 ALR.2d 733 (1963); Twining, by Malloy v.

Hogan, 378 U.S. 1,12 L. Ed. 24 653, 84S. Ct. 1489 (1964).

Our recent cases have thoroughly rejected the Palko notion

that basic constitutional rights can be denied by the States as

long as the totality of the circumstances does not disclose a

denial of ‘fundamental fairness’. Once it is decided that a

particular Bill of Rights guarantee is ‘fundamental to the

American scheme of justice’, Duncan v. Louisiana, supra, at

149, 20 L. Ed. 2d at 496, the same constitutional standards

apply against both the State and Federal Governments.

Palko’s roots had thus been cut away years ago. We today

only recognize the inevitable.”

During argument in the cases below, appellant has conceded

that Benton applies to Montana, but the argument has been made

that this Court's holding that Fifth Amendment jeopardy attaches

8

when the jury has been empanelled and sworn does not apply to

Montana until this Court specifically so holds. The Montana

Supreme Court so held in State v. Sheriff, et al, 539 P.2d 1191

(1975), at page 1192, saying:

“*... in the absence of a definite ruling by the United States

Supreme Court .. .”

which was Bretz’s first appearance before that Court on this issue,

and again in affirming Bretz’s conviction on appeal in State v.

<n et al, S55 P.2d 724 at page 735, saying:

until this issue is finally resolved \

‘ee higher federal appeals court .

Bretz understands that neiinthetsieduiite United

States Supreme Court and all of the federal courts unanimously

hold and agree that jeopardy attaches in all federal courts when the

jury is empanelled and sworn. This ruling and the reasons

therefore were just recently again set forth by this Court in U.S. v.

Martin Linen Supply Co., __. U.S. ___., 51 L. Ed. 2d 642

(decided April 4, 1977), at page 649:

* “The development of the Double Jeopardy Clause from its

common: law origins . . . suggests that it was directed at the

threat of multiple prosecutions, not at Government appeals,

at least where those appeals would not require a new trial.’

Id., at 342, 43 L. Ed. 2d 232, 95 S. Ct. 1013. Thus Wilson

held that the ‘controlling constitutional principle’ focuses on

prohibitions against multiple trials. Id., at 346, 43 L. Ed. 2d

232,95 S. Ct. 1013. At the heart of this policy is the concern

that permitting the sovereign freely to subject the citizen to a

second trial for the same offense would arm government with

a potent instrument of oppression. The Clause, therefore,

guarantees that the State shall not be permitted to make

repeated attempts to convict the accused, ‘thereby subjecting

him to embarrassment, expense and ordeal and compelling

him to live in a continuing state of anxiety and insecurity as

well as enhancing the possibility that even though innocent he

may be found guilty.’ Green v. United States, 355 U.S. 184,

187-188, 2 L. Ed. 2d 199, 78 S. Ct. 221, 77 Ohio L. Abs.

202, 61 ALR.2d 1119 (1957); see also Downum v. United

States, 372 U.S. 734, 736, 10 L. Ed. 2d 100, 83 S. Ct. 1033

9

(1963). ‘(S)ociety’s awareness of the heavy personal strain

which a criminal trial represents for the individual defendant

is manifested in the willingness to limit the Government to a

single criminal proceeding to vindicate its very vital interest

in enforcement of criminal laws.’ United States v. Jorn, 400

U.S. 470, 479, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971)

(Harlan, J.).

“In animating this prohibition against multiple prosecutions,

the Double Jeopardy Clause rests upon two threshold

conditions. The protections afforded by the Clause are

implicated only when the accused has actually been placed in

y. Serfass v. United States, 420 U.S. "377, 43 L. Ed.

2d 265, 95 S. Ct. 1055 (1975). This state of jeopardy

attaches when a jury is empanelled and sworn, or, in a bench

trial, when the judge begins to receive evidence. Illinois v.

Somerville, 410 U.S. 458, 471, 35 L. Ed. 2d 425, 93 S. Ct.

1066 (1973) (White, J., dissenting); Downum v. United

States, supra.”

This Court has recently heard and decided numerous cases

involving jeopardy. However, these cases have principally arisen

because of questions raised as to the government's right of appeal,

which is now only restricted by this double jeopardy prohibition.

This is truly the only concern of the Solicitor General's

memorandum as filed herein, which is yet another illustration as

to why such memorandum is not proper here. This appeal relates

solely as to whether Bretz should have been subjected to a second

prosecution after he had once been placed in jeopardy on the same

charge. This constitutional guarantee is against being twice put to

trial for the same offense as held in Ex parte Lange, 18 Wall. 163.

169,21 L. Ed. 872 (1874) “the common law not only prohibited a

second punishment for the same offense, but it went further and

forbid a second trial for the same offense , whether the accused had

suffered punishment or not, and whether in the former trial he had

been acquitted or convicted.”

This question was recently determined by this Court in Adney v.

United States, _._ U.S. ___, 52 L. Ed. 2d 651,97S.Ct. __.,

(decided June 9, 1977) as follows:

10

‘Finally, the rights conferred on a criminal accused by the

Double Jeopardy Clause would be significantly undermined

if appellate review of double jeopardy claims were postponed

until after conviction and sentence. To be sure, the Double

Jeopardy Clause protects an individual against being twice

convicted for the same crime, and that aspect of the right can

be fully vindicated on an appeal following final judgment, as

the Government suggests. However, this Court has long

recognized that the Double Jeopardy Clause protects an

individual against more than being subjected to double

punishments. It is a guarantee against being twice put to fria/

for the same offense.

“* “The Constitution of the United States, in the Fifth

Amendment, declares, ‘nor shall any person be subject (for

the same offense) to be twice put in jeopardy of life or limb.

The prohibition is not against being twice punished, but

against being twice put in jeopardy...” ... The “twice put in

jeopardy” language of the Constitution thus relates to a

potential, i.e., the risk that an accused for a second time will

be convicted of the “‘same offense” for which he was initially

tried.’ Price v. Georgia, 398 U.S. 323, 326, 26 L.Ed.2d 300,

90 S. Ct. 1757 (1970).

“See also United States v. Jor, 400 U.S. 470, 479, 27 L.

Ed. 2d 543, 91 S. Ct. 547 (1971); Green v. United States,

355 U.S. 184, 187-188, 2 L. Ed. 2d 199, 78 S. Ct. 221, 77

Ohio L. Abs. 202,61 ALR.2d 1119(1957); United States v.

Ball, 163 U.S. 662, 669, 41 L. Ed. 300, 16S. Ct. 1192

(1896). Because of this focus on the ‘risk’ of conviction, the

guarantee against double jeopardy assures an individual that,

among other things, he will not be forced, with certain

exceptions, to endure the personal strain, public em-

barrassment, and expense of a criminal trial more than once

for the same offense. It thus protects interests wholly

unrelated to the propriety of any subsequent conviction.

Justice Black aptly described the purpose of the clause:

“ “The underlying idea, one that is deeply ingrained in at least

the Anglo-American system of jurisprudence, is that the

State with all its resources and power should not be allowed

to make repeated attempts to convict an individual for an

alleged offense, thereby subjecting him to embarrassnient,

expense and ordeal and compelling him to live in a continuing

state of anxiety and insecurity, as well as enhancing the

possibility that even though innocent he may be found guilty.”

Green, supra, at 187-188, 2 L. Ed. 2d 199, 78S. Ct. 221,7

Ohio L. Abs. 202, 61 ALR.2d 1119.

“Accord, Breen v. Jones, 421 U.S. 519, 529-530, 44 L. Ed.

2d 346, 95 S. Ct. 1779 (1975); Serfass v. United States, 420

U.S. 377, 387-388, 43 L. Ed. 2d 265,95S.Ct. 1055 (1975);

Jorn, supra, at 479, 27 L. Ed. 2d 543, 91 S. Ct. 547.”

The facts raise a simple issue. In Bretz's first case, the jury was

duly empanelled and sworn. The case thereafter was dismissed on

motion of the State without his consent and over his objections that

he was entitled to have the case tried before the jury then

empanelled and sworn. Even though three counts had been

dismissed by the trial court, sua sponte, there were still then five

counts remaining. The position adopted by the State was that the

Montana statute, 95-1711, R.C.M. 1947, providing that jeopardy

does not attach until after the first witness is sworn can change the

constitutional double jeopardy clause and that jeopardy had not

attached. The State filed the new information, and over Bretz's

unsuccessful objections on the grounds of double jeopardy, he was

tried, convicted and imprisoned. It is Bretz’s position that under

both the United States and Montana Constitutional provisions

that jeopardy properly attached when the jury is empanelled and

sworn and the Montana Statute is unconstitutional.

Thus, the question in this case is simply whether this Montana

Statute is constitutional in view of the Fifth Amendment to the

United States Constitution and the Montana Constitution, Article

II, Section 25.

There are no cases by the Supreme Court of the United States

which depart from this rule that jeopardy attaches when the jury is

empanelled and sworn and this constitutional standard under “the

law of the land”’ is thus established.

In the federal courts in Montana, the rule is the same. In U.S. v.

LeMay, 330 F. Supp. 628, the court ruled that jeopardy attaches

when a jury is empanelled and sworn, citing Wade v. Hunter, 336

U.S. 684, 93 L. Ed. 974, 69 S. Ct. 834. In 1971, the Honorable

W.J. Jameson held in U.S. v. Minyard, quoting 22 C.J.S. 637,

Criminal Law Section 241, that jeopardy attaches when a jury is

12

empanelled and sworn. This is also the rule in the Ninth Circuit.

See Himmelfarb v. U.S., 175 F.2d 924, and Howard v. U.S., 372

F.2d 294.

In Montana, under the 1889 constitutional clause, identical to

the present clause in the 1972 Constitution, the highest court of

Montana ruled to the same effect in State v. Gaimos, 162 Pac.

156, 53 Mont. 118.

The text authorities are no less explicit. See Wharton's

Criminal Evidence, page 396; 22 C.J.S. Criminal Law 241; 15

Am. Jur. Criminal Law 40.

In Ex parte Bornee, 76 W. Va. 360, 85 S.E. 529, the court said:

“The West Virginia constitutional amendment of 1870-80,

having for its purpose the revision of the judicial department,

did not, wherein it provided that the supreme court should

have ‘such other appellate jurisdiction in both civil and

criminal — - may be puames by law,” give legislative

power to alter the originally understood meaning of }

in the Bill of Rights.” ae

In Booker v. Phillips, 418 F.2d 434 (Kan. 1969), the court

said:

“Accordingly, it is now clear that the validity of the

Appellate’s conviction must be judged under the Federal

double jeopardy standards.” (Emphasis supplied.)

To the same effect is Klinefelter v. Superior Court, 502 P.2d

531 (Cal.).

In Baker v. State, 289 A.2d 348, (Md. 1972), the court said:

“In State prosecutions as in federal prosecutions, double

jeopardy must be applied in accordance with the Supreme

Court's Constitutional construction and interpretations,

from time to time of the Fifth Amendment Clause."

In Bernard v. State, 481 S.W.2d 427 (Tex. 1972), the court

applied the rule and the standard adopted by the Supreme Court of

the United States, even though there was a state statute that a

higher prosecution was no bar if the proceeding was a

misdemeanor.

Then there is the case of People v. Scott, 337 N.Y.S.2d 640

(1972).

<>

all

——_

13

“Appellant was convicted of criminally selling a dangerous

drug in the third degree. His guilt was established beyond a

reasonable doubt and we find no error during the trial to

warrant a reversal. It is necessary, however, to discuss the

appellant's motion to dismiss the indictment on the ground

that he was being subjected to double jeopardy. On

December 1, 1971, after four jurors had been selected

sworn, the court granted People’s motion for a mistrial on the

ground that an indispensable witness was out of the state and

would not be available for the trial. On January 3, 1972,

when the case was again called for trial, appellant moved to

dismiss the indictment on the ground that he was being

subjected to double jeopardy, contending that the trial had

commenced by the previous selection of four jurors. In

support of that claim, appellant relied on section 260.30 of

the Criminal Procedure Law which, in prescribing the order

in which a jury shall proceed, provides: ‘1. The jury must be

selected and sworn.’ However, in view of other sections of the

Criminal Procedure Law directed specifically to the subject

of double jeopardy, we think the section relied on by

appellant is neither relevant nor determinative. Prior to the

adoption of the Criminal Procedure Law, the traditional

double jeopardy rule in New York was that a person was not

placed in jeopardy until the jury had been examined and

sworn and evidence given (Matter of Bland v. Supreme

Court, 20 N.Y.2d 552, 554, 285 N.Y.S.2d 597, 598, 232 -

N.E.2d 633, 634.) The new criminal procedure statute,

effective September 1, 1971, includes section 40.20, which

provides that a person may not be twice prosecuted for the

same offense. (N.Y. Const., Art. I, Section 6). By way of

implementation of this provision, Section 40.30, subd. 1(b)

states that a person ‘is prosecuted’ for an offense within the

meaning of section 40.20, when the action proceeds to the

trial state and a witness is sworn. By this provision it is clear

that, under the Criminal Procedure law, jeopardy attaches,

not on the selection and swearing of the jury as described in

section 260.30, but on the subsequent swearing of a witness,

as provided in section 40.30. There is another consideration

which must be borne in mind in resolving a claim of double

jeopardy. Under Benton v. Maryland, 395 U.S. 784, 89 S.

Ct. 2056, 23 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100,

holding that jeopardy attaches when a jury has been

impaneled and sworn, is now applicable to state prose-

14

cutions. In Benton the court found at page 794, 89 S. Ct. at

page 2062, ‘that the double jeopardy prohibition of the Fifth

Amendment represents a fundamental ideal in our con-

stitutional heritage and that it should apply to the state

through the Fourteenth Amendment.’ In view of these

decisions, Criminal Procedure Law 40.30 should be

amended to comply with the rule of Downum.”

The rationale for jeopardy attaching at this point is well

discussed in Smith v. State of Mississippi, 478 F.2d 88 at page

93:

“The respondent's contention that petitioner was not ‘put to

trial’ or was in no way prejudiced by. the dismissal of the

proceedings before testimony was presented has been

decided adversely to it by the Supreme Court in Downum v.

United States, 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct.

1033 (1963), and recently reaffirmed in Illinois v.

Somerville, 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066

(1973). In both cases the Supreme Court held that jeopardy

attached when the first jury was selected and sworn. The

mere introduction of evidence has no spontaneous effect on a

defendant which can be said to automatically charge him

with an appreciable degree of insecurity once he has made the

preparations for trial and selected those of his peers who will

determine his fate.”

y. . Maryland S.

S. Ct. 2056, 23 L. Ed. 2d 707, see at re’

398 U.S. 323, 331 N. 9, 90S. Ct. 1 .

Ashe v. Swenson, 1970, 397 U.S. 4 ,N.1 '

1189, 25 L. Ed. 2d 469; Waller v. Florida, 1970, 397 U.S.

387, 391, n. 2, 90 S. Ct. 1184, 25 L. Ed. 2d 435; North

Carolina v. Pearce, 1969, 395 U.S. 711, 89 S. Ct. 2082, 23

L. Ed. 2d 656; Galloway v. Beto, 5 Cir. 1970, 421 F.2d 284,

cert. den. 400 U.S. 913. 91 S. Ct. 137, 27 L. Ed. 2d 251.

States v. Gall, 1896, 183 U.S. 662, 669, 16 S. Ct. 1192,

1194, 41 L. Ed. 300, it is necessary to determine when

y attaches in a jury trial. In Downum v. United

States, 1963. 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d

100, the Supreme Court recognized that this occurs when the

jury is impaneled and sworn, thus vesting the defendant with

the valued right to have his trial completed before that

tribunal and that jury. See Wade v. Hunter, 1949, 336 U.S.

684, 689, 69 S. Ct. 834, 93 L. Ed. 974.”

See also Curry v. Superior Court of the City and County of San

All trial lawyers recognize that their pre-trial preparations must be

long completed and that they are all the way in the water by the

time the jury has been selected.

In McNeal v. Hollowell, 481 F.2d 1145 (1973), the court

stated as follows:

Francisco, 87 Cal. Rep. 361, 470 P.2d 345 (1970), wherein the

Supreme Court of California was construing Article 1, Section 13

of the California Constitution which states “No person shall be

twice put in jeopardy for the same offense .. .’ The Court in Curry

construed this section as follows:

“The law regarding double jeopardy has recently been

carefully reviewed and explained by the Supreme Court in

Illinois v. Somerville, 1973, 410 U.S. 458, 93 S. Ct. 1066,

35 L. Ed. 2d 425, and by this Court in Smith v. Mississippi, 5

Cir. 1973, 478 F.2d 88. Therefore, with reference to these

two cases we refrain from treating in extenso all of the

principles and policies inherent in the theory of double

jeopardy and instead direct our attention to the particular

— which have a bearing on the resolution of the issue

before us.

“Article I, section 13, of the California Constitution declares

that ‘No person shall be twice put in jeopardy for the same

offense * * *.” Implementing this constitutional command, the

decisions of this court have settled the now familiar rules that

(1) jeopardy attaches when a defendant is placed on trial in

the court of competent jurisdiction, on a valid accusatory

pleading, before a jury duly impaneled and sworn, and (2) a

discharge of that jury without a verdict is equivalent in law to

an acquittal and bars a retrial, unless the defendant consented

thereto or legal necessity required it. (Paulson v. Superior

Court (1962) supra, 68 Cal.2d 1, 5, 22 Cal. Rep. 649, 372

16

P.2d 641; Cardenas v. ior Court, (1961) 56 Cal.2d

273, 275, 14 Cal. Rep. 657, 363 P.2d 889; Jackson v.

Superior Court (1937) 10 Cal.2d 350, 352-357, 74 P.2d

243, and cases cited; see also Pen. Code § § 654, 687, 1023,

1140, and 1141.)

“In the case at bar the record demonstrates that at the time

the court declared a mistrial and discharged the jury,

jeopardy had attached pursuant to the foregoing rules; the

sole remaining issues, therefore, are consent and legal

necessity.

“At no time did petitioner, in person or through coungel,

expressly consent to the granting of the mistrial or the

discharge of the jury. The People maintain that petitioners

impliedly gave such consent, but the contention does not

withstand analysis. When a trial court proposes to discharge

a jury without legal necessity therefor, the defendant is under

no duty to object in order to claim the protection of the

constitutional guarantee, and his mere silence in the face of

an ensuing discharge cannot be deemed a waiver.”

If there was any question previously as to when jeopardy

attaches in a jury case, the U.S. Supreme Court has just recently

laid this question to rest. In Serfass v. U.S., 420 U.S. 337 (1975),

the question to be decided was the:

“point in criminal proceedings at which the constitutional

purposes and policies are implicated by resort to the concept

of ‘attachment of jeopardy.’ ”’

and the Court held that:

“In the case of a jury trial jeopardy attaches when a jury is

empaneled and sworn.”

In Brown v. Ohio, 45 L.W. 4697 (decided June 16, 1977), this

Court reversed the Ohio court’s determination that double

jeopardy did not apply because joy riding and auto theft were

claimed to be two separate offenses.

This position was also recognized in Lee v. U.S., 45 L.W. 4661

(decided June 13, 1977), in Note 3 as follows:

As this was a bench trial, jeopardy did not attach until the

court began to hear evidence. Serfass v. U.S., 420 U.S. 377,

388 (1975).”

17

The law as decided by this Court, by all federal court decisions

we have located, and by every state court decision we have

located, with the exception of Montana and possibly Arizona, all

agree that jeopardy attaches when a jury is empanelled and sworn.

This is a constitutional right, and Bretz respectfully contends that

the State of Montana has no power to adopt a different standard.

As a citizen of Montana, Bretz is entitled to the same

constitutional protections he would have if present in any one of

the other states. This Montana statute is unconstitutional.

B. The Solicitor General’s Memorandum as Amicus Curiae

is not proper and Should Not be Considered.

The Solicitor General's office was courteous in advising that

his office intended to file a memorandum for the United States as

amicus curiae so that Bretz was then able to secure an extension

of time to file this brief and which permits him to reply to the

Solicitor General’s Memorandum received July 28, 1977. This

memorandum takes “no position” on the first two questions

presented as to the constitutionality of the Montana statute

which states that jeopardy does not attach until after the first

witness has been sworn, stating ““We do not address the first —

the time at which jeopardy attaches — because this Court's

decision i§ not likely to affect the interests of the United States”. .

(Sol. Gen. Mem. p. 1), and discusses only the third question

presented by appellant, which is:

3. Assuming that this Court were to hold that jeopardy

attaches in state proceedings when the jury is sworn, does

the doctrine of ‘manifest necessity’ nevertheless require that

a trial be held?”

Bretz objects to any consideration of such memerandum for

the following reasons:

(1) As raised by appellee Cline’s motion to dismiss or affirm,

which was adopted by reference in appellee Bretz's motion to

affirm, any question as to “manifest necessity” does not involve

a State statute held by a court of appeals to be unconstitutional

18

which is one of the requirements of 28 U.S.C.A. 1254(2), the

statute relied on by appellant for the jurisdiction of this Court for

this direct appeal. This statute also requires that any such

“review on appeal shall be restricted to the federal questions

presented”. This Court’s practice is to strictly construe statutes

authorizing appeals. Fornaris v. Ridge Tool Co., 400 U.S. 41, 27

L.Ed.2d 174, 91 S. Ct. 156 (Puerto Rico, 1970).

(2) Any question as to manifest necessity was never presented

to or ruled upon by any state court in this action. This double

jeopardy question was presented by Bretz to the State District

Trial Court, the Montana Supreme Court by an application for a

writ of habeas corpus, and finally by appeal! to the Montana

Supreme Court and in none of these did the State raise this issue.

As noted on page 14 of appeilant’s brief, this question was not

ruled upon by any of these State Courts and appeared for the first

time in the Federal District Court decision. e

(3) This third issue has been abandoned by the appellant. As

shown by page 14 of appellant's brief, this issue appears to have

been specifically abandoned by appellant and is not a proper

subject for consideration here. Bretz agrees with the Solicitor

General's statement that “their approach (appellant’s) amounts

to an abandonment of the question”. If appellant has not

specifically abandoned the same, this issue has been foreclosed

by their failure to brief the same. Supreme Court Rule 40.,1.,(g)

requires that the brief contain “The argument, exhibiting clearly

the points of fact and of law being presented, citing the

authorities and statutes relied upon’’. Only errors assigned will

be considered. U.S. v. Crescent Amusement Co., 323 U.S. 173,

89 L.Ed. 160, 655 S. Ct. 254 (Tenn. 1944), rehearing denied,

323 U.S. 818, 89 L.Ed. 650, 65 S. Ct. 734, and matters not

argued need not be considered. /.7.S. Rubber Co. v. Essex

Rubber Co., 272 U.S. 429, 71 L.Ed. 355, 45 S. Ct. 136 (Mass.

1926). In the New Haven Inclusion Cases, 399 U.S. note 78 at

page 481, 392, 26 L.Ed.2d 691, 90 S. Ct. 2065, this Court held

that “The Committee has not revived the issue in its brief, nor

has it responded in its reply brief to the government's contention

that it has abandoned the claim. Accordingly, we do not consider

19

the matter further’.

(4) The record does not contain a transcript of the State Court

proceedings nor the principal portion of the pleadings therein,

and the Solicitor General's Memorandum contains erroneous

assumptions of facts thereon. See certain of these errors pointed

out below. Bretz agrees with the Solicitor General's statement on

this that “the record in this case appears to be inadequate to

permit consideration .. .”

(5) Amicus curiae must take the case as it is and cannot

expand on the issues presented to the Court. He is not a party to

the action. Court v. Sanduski, C.A.. Ill. 206 F.2d 915:

Alexander v. Hall, D.C.S.C., 64 F.R.D. 152. He cannot assume

the functions of a party. Kemp v. Rubin, 64 N.Y.S.2d 510, 187

Misc. 707. He cannot take upon himself the management of the

action as counsel, and has no control over the proceedings. State

ex rel Bennett v. Bonner, 214 P.2d 747, 123 Mont. 414. He

takes the case as he finds it, with the issues made by the parties,

and cannot raise separate issues. State ex rel Kvallen v.

Graybill, 496 P.2d 1127, Mont. . Anderson v. Smith,

148 So. 2d 243 (Ala.) holds that where an appellant waived an

assignment of error, the same could not be injected into a

Supreme Court review of that case by any action on the part of

amicus curiae. Amicus curiae has no right to create. extend or

enlarge issues. City of Tempe v. Prudential Ins. Co. of America,

510 P.2d 745, 109 Ariz. 429, app. dism., 414 U.S. 1088, 38

L.Ed.2d 546, 94 S. Ct. 717.

C. Manifest Necessity does not Allow a Second Trial After

Jeopardy had Properly Attached.

As noted above, Bretz contends that this question is not

properly before the Court. and the Solicitor General's Mem-

orandum should not be considered thereon.

A leading United States Supreme Court decision on this point

is Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35

L.Ed.2d 425. The basis for those certain recognized exceptions

20

to this general rule are ably discussed beginning at page 1069 of

93 S. Ct

“The fountainhead decision construing the Double Jeop-

ardy Clause in the context of a declaration of a mistrial over

a defendant's objections is United States v. Perez, 9 Wheat.

579 (1824). Mr. Justice Story, writing for a unanimous

Court, set forth the standards for determining whether a

retrial, following a declaration of a mistrial over a

defendant’s objection, constitutes double jeopardy within

the meaning of the Fifth Amendment. In holding that the

failure of the jury to agree on a verdict of either acquittal or

conviction did not bar retrial of the defendant. Mr. Justice

Story wrote:

“We think, that in all cases of this nature, the law has

invested Courts of justice with the authority to discharge a

jury from giving any verdict, whenever, in their opinion,

taking all the circumstances into consideration, there is a

manifest necessity for the act, or the ends of public justice

would otherwise be defeated. They are to exercise a sound

discretion on the subject; and it is impossible to define all

the circumstances, which would render it proper to

interfere. To be sure, the power ought to be used with the

greatest caution, under urgent circumstances, and for very

plain and obvious causes; and, in capital cases especially,

Courts should be extremely careful how they interfere with

any of the chances of life, in favour of the prisoner. But,

after all, they have the right to order the discharge; and the

security which the public have for the faithful, sound, and

conscientious exercise of this discretion rests, in this, as in

other cases, upon the responsibility of the Judges, under

their oaths of office.” Id., at 580.

“This formulation, consistently adhered to by this Court in

subsequent decisions, abjures the ~~ of any

mechanical formula by which to judge the propriety of

declaring a mistrial in the varying and often _ unique

situations arising during the course of a criminal trial. The

broad discretion reserved to the trial judge in such

circumstances has been consistently reiterated in decisions

of this Court. In Wade v. Hunter, 336 U.S. 684, 69 S. Ct.

834, 93 L.Ed. 974 (1949), the Court, in reaffirming this

flexible standard, wrote:

eee

err”

21

a

“ “We are asked to adopt the Cornero (v. United States, 48

F.2d 69) rule under which petitioner contends the absence

of witnesses can never justify discontinuance of a trial. Such

a rigid formula is inconsistent with the guiding principles of

the Perez decision to which we adhere. Those principles

command courts in considering whether a trial should be

terminated without judgment to take “all circumstances into

account”’ and thereby forbid the mechanical application of

an abstract formula. The value of the Perez principles thus

lies in their capacity for informed application under widely

different circumstances, without injury to defendants or to

the public interest.’ Id., at 691, 69 S. Ct at 838.

“Similarly in Gori v. United States, 367 U.S. 364, 81 S.

Ct. 1523, 6 L.Ed.2d 901 (1961), the Court again

underscored the breadth of a trial judge's discretion, and the

reasons therefor, to declare a mistrial.

“Where, for reasons deemed compelling by the trial judge.

who is best situated intelligently to make such a decision,

the ends of substantial justice cannot be attained without

discontinuing the trial, a mistrial may be declared without

the defendant's injections, and he may be retried consist-

ently with the Fifth Amendment.” Id., at 368, 81 S. Ct.. at

1526.

“In reviewing the propriety of the trial judge's exercise of

his discretion, this Court, following the counsel of Mr.

Justice Story, has scrutinized the action to determine

whether, in the context of that particular trial, the

declaration of a mistrial was dictated by ‘manifest

necessity’ or the ‘ends of public justice’. The interests of the

public in seeing that a criminal prosecution proceed to

verdict, either of acquittal or conviction, need not be

forsaken by the formulation or application of rigid rules that

necessarily preclude the vindication of that interest. This

consideration, whether termed the ‘ends of public justice.”

United States v. Perez, supra, at 580 of 22 U.S. or, more

precisely, ‘the public's interest in fair trials designed to end

in just judgments,” Wade v. Hunter, supra, at 689 of 336 S.

Ct. has not been disregarded by this Court.

“In United States v. Perez, supra, and in Logan v. United

States, 144 U.S. 263, 12 S. Ct. 617, 36 L.Ed. 429 (1892).

this Court held that ‘manifest necessity’ justified the

discharge of juries unable to reason verdict. and, therefore.

22

the Double Jeopardy Clause did not bar retrial. Cf. Keerl v.

Montana, 213 U.S. 135, 29 S. Ct. 469, 53 L.Ed. 734

(1909); Dreyer v. Illinois, 187 U.S. 71, 23 S. Ct. 28, 47

L.Ed. 79 (1902). In Simmons v. United States, 142 U.S.

148, 12 S. Ct. 171, 35 L.Ed. 968 (1891), a trial judge

dismissed the jury, over defendant's objections, because one

of the jurors had been acquainted with the defendant, and,

therefore, was probably prejudiced against the Govern-

ment; this Court held that the trial judge properly exercised

his power 1 ee Ce Gms & Se Soe

justice.” Id., at 154, 12 S. Ct. at 172. In

United States, 155 U.S. 271, 15 S. Ct. 73, 39 L.Ed. 146

(1894), a mistrial was declared after the trial judge learned

that one of the jurors was disqualified, he having been a

member of the grand jury that indicted the defendant.

Similarly, in Lovato v. New Mexico, 242 U.S. 199, 37 S.

Ct 107, 61 L.Ed. 244 (1916), the defendant demurred to

the indictment, his demurrer was overruled, and a jury

swom. The district attorney, realizing that the defendant

had not pleaded to the indictment after the demurrer had

been overruled, moved for the cischarge of the jury and

arraignment of the defendant for pleading: the jury was

discharged, the defendant pleaded not guilty, the same jury

was again impaneled, and a verdict of guilty rendered. In

both of those cases this Court held that the Double

Jeopardy Clause did not bar reprosecution.

(2) While virtually all of the cases turn on the particular

facts and thus escape meaningful categorization, see Gon v.

United States, supra; Wade v. Hunter, supra, it is possible

to distill from them a general approach, premised on the

‘public justice’ policy enunciated in United States v. Perez,

to situations such as that presented by this case. A trial

judge properly exercises his discretion to declare a mistrial

if an impartial verdict cannot be reached, or if a verdict of

conviction could be reached but would have to be reversed

on appeal due to an obvious procedural error in the trial. If

an error would make reversal on appeal a certainty, it would

not serve ‘the ends of public justice’ to require that the

Government proceed with its proof when, if it succeeded

before the jury, it would automatically be stripped of that

success by an appellate court. This was substantially the

situation in both Thompson v. United States, supra, and

23

Lovato v. New Mexico, supra. While the declaration of a

mistrial on the basis of a rule or a defective procedure tha

would lend itself to prosecutorial manipulation would

involve an entirely different question, cf. Downum v.

United States, supra, such was not the situation in the

above cases or in the instant case.

“In Downum v. United States, the defendant was charged

with six counts of mail theft, and forging and uttering

stolen checks. A jury was selected and sworn in the

morning, and instructed to return that afternoon. When the

jury returned, the Government moved for the discharge of

the jury on the ground that a key prosecution witness, for

two of the six counts against defendant, was not present.

The prosecution knew, prior to the selection and swearing

of the jury, that this witness could not be found and had not

been served with a subpoena. The trial judge discharged the

jury over the defendant's motions to dismiss two counts for

failure to prosecute and to continue the other four. This

Court, in reversing the convictions on the ground of double

jeopardy, emphasized that ‘(e)ach case must turn on its

facts,” 372 U.S., at 737, 83 S. Ct., at 1035 and held that the

second prosecution constituted double jeopardy, because

the absence of the witness and the reason therefor did not

there justify, in terms of ‘manifest necessity’, the declaration

of a mistrial.

“In United States v. Jorn, supra, the Government called a

taxpayer witness in a prosecution for willfully assisting in

the preparation of fraudulent income tax returns. Prior to

his testimony, defense counsel suggested he be warned of

his constitutional might against compulsory _ self-

incrimination. The trial judge warned him of his rights, and

the witness stated that he was willing to testify and that the

Internal Revenue Service agent who first contacted him

warned him of his rights. The trial judge, however, did not

believe the witness’ declaration that the IRS had so warned

him, and refused to allow him to testify until after he had

consulted with ar attorney. After learning from the

Government that the remaining four witnesses were

‘similarly situated’, and after surmising that they, too, had

not been properly informed of their rights, the trial judge

declared a mistrial to give the witnesses the opportunity to

consult with attorneys. In sustaining a plea in bar of double

24

jeopardy to an attempted second trial of the defendant, the

plurality opinion of the Court, emphasizing the importance

to the defendant of proceeding before the firs: jury sworn,

concluded:

“ “It is apparent from the record that no consideration was

given to the possibility of a trial continuance; indeed, the

trial judge acted too abruptly in discharging the jury that,

had the prosecutor been disposed to suggest a continuance,

or the defendant to object to the discharge of the jury, there

would have been no opportunity to do so. When one

examines the circumstances surrounding the discharge of

this jury, it seems abundantly apparent that the trial judge

made no effort to exercise a sound discretion to assure that,

taking all the circumstances into account, there was

manifest necessity for the sua sponte declaration of this

mistrial. United States v. Perez, 9 Wheat., at 580.

Therefore, we must conclude that in the circumstances of

this case, appellee's reprosecution would violate the double

jeopardy provision of the Fifth Amendment.’ 400 U.S.., at

487, 91 S. Ct, at 558."”

25

“The manifest necessity for dismissal of the jury without a

verdict was found in Brock v. North Carolina, 344 U.S.

424, 73 S. Ct. 439, 97 L.Ed. 456 (1953), in the refusal of

the state’s witnesses to testify against the defendant. In

affirming the trial court’s denial of the defendant's plea of

double jeopardy, the Court said:

“*This court has long favored the rule of discretion in the

trial judge to declare a mistrial and to require another panel

to try the defendant if the ends of justice will best be served.’

Brock, at 427, 73 S. Ct. 349, at 350.

“In United States v. Chase, 372 F.2d 453 (4th Cir. 1967),

the defendant moved for a mistrial on the basis of jury

prejudice from a newspaper article found in the jury room.

A new trial was granted and one of the jury-trial defendants

moved for dismissal on the basis of double jeopardy.

Another of the jury-trial defendants did not move for a

mistrial and neither of the non-jury trial defendants asked

for severance of the case. The Court there found a necessity

in dismissing the case as to all of the defendants, both jury

and non-jury, because of the effect on the defendants on a

A 1971 Montana Federal District Court case, U.S. v. LeMay, jury trial of any decisions rendered as to the defendants on

330 F. Supp. 628, has striking similarities, and we quote from the non-jury trial.

this decision at length: “The finding of a manifest necessity is not automatic,

“If an indictment is sufficient to support a conviction,

jeopardy is held to attach when a jury is impaneled and

swom. Crawford v. United States, 109 U.S. App. D.C.,

219, 285 F.2d 661, (1960), citing Wade v. Hunter, 336

U.S. 684, 69 S. Ct. 834, 93 L.Ed. 974 (1940). There are,

however, exceptions to this general rule. In United States v.

Perez, 9 Wheat. 479, 22 U.S. 579, 6 L.Ed. 165 (1824), the

Supreme Court of the United States held that discharge of

the jury after they were unable to reach a verdict did not bar

a future trial for the same offense. In Wade v. Hunter,

supra, the Court relying on the Perez decision held that the

double jeopardy provision of the Fifth Amendment did not

require that a defendant be permitted to go free in every

case in which a trial failed to end in a final judgment. The

Court cited the Perez language, which indicated that, if a

manifest necessity for dismissal of the jury prior to a final

verdict existed, there would be no bar to a future trial for the

same offense.

however. In Cornero v. United States, 48 F.2d 69 (9th Cir.

1931), the United States Attorney failed to have his

witnesses present for the trial. The court dismissed the jury

and a new jury was later impaneled for trial. The defendant

thereupon pleaded that he was placed in double jeopardy.

The Ninth Circuit recognized that jeopardy attaches when

the jury is impaneled, with certain exceptions. It denied the

Government's claim that this particular case fell within

those exceptions.

“The Court, relying on the fact that the District Attorney

had suggested the impaneling of the jury, knowing that his

witnesses were not present, said:

* “We are here dealing, however, with a fundamental right

of a person accused of crime, guaranteed to him by the

Constitution, and such right cannot be frittered away or

abridged by general rules concerning the importance of

advancing public justice * * * (N)o court has gone to the

extent of holding that, after the impanelment of the jury for

26

the trial of a criminal case, the failure of the district attorney

to have present sufficient witnesses, or evidence to prove

the offenses charged, is an exception to the rule that the

discharge of a jury after its impanelment for the trial of a

ya, enema

same cause.’ Cornero, at 71.

“The Supreme Court in Downum v. United States, 372

U.S. 734, 83 S. Ct. 1033, 10 L.Ed.2d 100 (1963), upheld

the ruling of the Ninth Circuit Court of Appeals in the

Cornero case, quoting the above language in its opinion. In

view of this precedent, the issue to be resolved in the instant

case is whether there existed a manifest necessity, within

the meaning of Wade, for dismissal of the jury or whether

the case falls within the confines of Downum and Cornero.

“Three factors weigh heavily in deciding this issue. The

United States Attorney drew the indictment and should

have known the offense occurred in Brockton and not

Poplar. The United States Attorney could have dismissed

the indictment and obtained a correct indictment before the

jury was impaneled and sworn, without any prejudice to his

case. United States v. Kimbrew, 380 F.2d 538 (6th Cir.

1967). The first indictment would have supported a

conviction if the United States Attorney had proceeded

with his case, since the verdict would have cured the

variance and the variance would not have been misleading

to the defendant. Ledbetter v. United States, supra; United

States v. Ansani, supra.

“When these facts are considered, the of the United

States Supreme Court in United States v. Jorn, 400 U.S.

470, 91 S. Ct. 547, 27 L.Ed.2d 543 (1971), must be

considered in determining whether a manifest necessity

existed for dismissal of the jury without a verdict. In that

case, the Court held that in the absence of a motion for

dismissal by defendant the rule of Perez is a

“* * * © command to trial judges not to foreclose the

defendant's option (to have the original jury decide his fate)

until a scrupulous exercise of judicial discretion leads to the

conclusion that the ends of justice would not be

served by a continuation of the ings.’ Jorn, at 485,

91 S. Ct. at 557.

Jorn from those of the trial court in Gori v. United States,

367 U.S. 364, 81 S. Ct. 1523, 6 L.Ed.2d 901 (1961). In

Gori, the trial court was held to have acted within its

discretion in stopping the trial when it appeared to it that the

prosecution’s improper questioning would seriously pre-

judice defendant. In Jorn, on the other hand, the trial court

dismissed the jury so that government witnesses could

confer with their attorneys before answering more ques-

tions, even though the prosecution advised the court that the

witnesses had been fully advised of their right to refuse to

testify where their answers would be self-incriminating. The

trial court then dismissed a subsequent information against

the same defendants because of former jeopardy.

“In comparing the facts of Jorn with those of Gori, the

Court found that under any circumstances the action of the

trial court in Jorn was not taken for the benefit of the

defendant, as it had been in Gori. Therefore, the ruling in

Gori was not controlling.

“In regard to the issue of abuse of discretion by the trial

court, the Jorn Court said:

“*Reprosecution after a mistrial has unnecessarily been

declared by the trial court obviously subjects the defendant

to the same personal strain and insecurity regardless of the

motivation underlying the trial judge’s action.’ Jorn, 400

U.S. at 483, 91 S. Ct. at 556.

“Finally, the Court concluded that the trial court abused its

discretion in discharging the jury without the consent of the

defendant and that his action was therefore a bar to further

prosecution.

“In terms of the Gori decision, the dismissal of the first

indictment in the instant case cannot be said to have been

necessary to prevent an injustice. Gori, 367 U.S. at 368, 81

S. Ct. 1523, rather, it was done only after the United States

Attorney announced that he was not ready to proceed. On

the basis of the Supreme Court decisions, including Jorn, to

allow the defendant a ‘manifest necessity’ must have existed

for the dismissal. Unless that necessity existed, the Fifth

Amendment prevents a trial on the new indictment.

“(5) As stated in Wade, there is no rigid rule to determine

when former jeopardy will bar further prosecution. Each

28

case must be decided after a careful consideration of all its

facts.

(6) The facts that must be considered in this case prevent

the finding of a manifest necessity. The error in the

indictment was not misleading to the defendant and, since

the whole record is available to defendant, a conviction

would not have left her open to additional charges for the

same offense. In addition, the Government, which origi-

nally drew the indictment, could have moved for dismissal

of the indictment before the jury was sworn and impaneled

without endangering prosecution on a corrected indictment

issued by a grand jury.

“Thus, the government allowed two permissible alterna-

tives for correcting the error in the indictment to go unused

and chose the one method which was closed to it. Rather

than showing a ‘manifest necessity’ for dismissal of the jury,

these facts appear to bring the case within the Downum

decision. As in Downum, the prosecution allowed the jury

to be sworn with knowledge that it did not have a proper

indictment and that the proof would be different from the

facts charged.

“(7) If, however, the defendant can be said to have agreed

to the dismissal of the jury, then she waived her right to

claim double jeopardy on the second indictment. Green v.

United States, 355 U.S. 184, 78 S. Ct. 221, 2 L.Ed.2d 199

(1957); Raslich v. Bannan, 273 F.2d 420 (6th Cir. 1959);

Haugen v. United States, 153 F.2d 850 (9th Cir. 1946).

“In United States v. Armco Steel Corp., 252 F. Supp. 364

(S.C. Cal. 1966), the court held that the right of the

defendant to not be placed in double jeopardy can

waived, but that it must be shown that there was

intentional relinquishment of a known right or privilege.

Citing Himmelfarb v. United States, 175 F.2d 924 (9th Ci

1949).

“In Himmelfarb, the Ninth Circuit Court of Appeals held

that ‘(i)n the absence of express authority, an attorney has

no power to surrender substantial legal rights of his client.’

Himmelfarb at 931. The court went on to add that such

consent should appear on the minutes and that the absence

of rejection of the waiver does not preclude the defendant

from pleading double jeopardy. See also, United States v.

°*

29

El Rancho Adolphus Products, Inc., 140 F. Supp. 645

(M.D. Pa. 1956), aff. 3 Cir., 243 F.2d 367.

“A review of the record reveals that the defendant did not

specifically waive her right to protection against double

jeopardy and rather that her counsel specifically stated that

he wished not to be considered as having made any

proceedings which would waive the plea of double jeopardy.

“The motion by defendant to dismiss the original indict-

ment was based on the failure of the Government to proceed

with the case. The court granted the motion by the

government to dismiss rather than the motion by the

defendant. Therefore, the defendant cannot be said to have

concurred in the dismissal of the jury without a verdict so as

to have waived her right to plead double jeopardy to a later

indictment on the same offense. Defendant’s motion must

be treated as a motion to dismiss for failure to prosecute.

“It is the opinion of the court, therefore, that the original

indictment was sufficier* to support a conviction on the

proof which would have been offered, that the defendant

would not have been misled nor placed in danger of

conviction twice for the same offense, that there was not a

manifest necessity for the motion of the United States to

dismiss, so as to outweigh the guarantee of the Fifth

Amendment against double jeopardy, and that the defend-

ant did not concur in the motion of the United States to

dismiss the indictment.

“It is therefore ordered and adjudged that the motion of the

defendant is granted and the charges against her are

dismissed.”

The Solicitor General’s memorandum relies on Lee v. United

States, cited above, but this is based on an erroneous factual

foundation. This citation from Lee at 45 L.W. 4663 supports

Bretz’s position:

“We conclude that the distinction between dismissals and

mistrials has no significance in the circumstances here

presented and that established double jeopardy principles

governing the permissibility of retrial after a declaration of

mistrial are fully applicable.

“When the District Court terminated the first trial in this

case it did not act sua sponte but in response to a motion by

30

defense counsel. In United States v. Dinitz, we examined

the permissibility of retrial in an analogous situation where

the trial court had granted a defense motion for mistrial.

“In that case, after jeopardy had attached but well before

verdict, the trial judge had excluded one of the defendant's

lawyers from the courtroom for repeatedly disregarding his

instructions. The defendant’s remaining lawyer moved for a

mistrial and the court granted the motion. The defendant

was indicted again on the same charge, his double jeopardy

claims were rejected, and he was convicted. When the

double jeopardy issue reached this Court, we held that the

defendant's second trial on the same charge did not violate

the Fifth Amendment.

“Writing for the Court, Mr. Justice Stewart reiterated the

rule that ‘where circumstances develop not attributable to

prosecutorial or judicial overreaching, a motion by the

defendant for mistrial is ordinarily assumed to remove any

barrier to reprosecution, even if the defendant’s motion is

necessitated by prosecutorial or judicial error.’ Jd., at 607,

quoting United States v. Jorn, 400 U.S., at 485 (plurality

opinion). Recognizing that a prejudicial error committed by

court or prosecutor generally presents the defendant with a

‘Hobson’s choice’, Mr. Justice Stewart nevertheless

stressed the importance of preserving the defendant's

‘primary control over the course to be followed in the event

of such error.’ Id., at 609.

“*Even when judicial or prosecutorial error prejudices a

defendant’s prospects of securing an acquittal, he may

nonetheless desire “to go to the first jury and, perhaps, end

the dispute then and there with an acquittal”. United States

v. Jorn, supra, at 484. Out prior decisions recognize the

defendant’s right to pursue this course in the absence of

circumstances of manifest necessity requiring a sua sponte

judicial declaration of mistrial. But it is evident that when

prejudicial or prosecutorial error seriously prejudices a

defendant, he may have little interest in completing the trial

and obtaining a verdict from the first jury. The defendant

may reasonably conclude that a continuation followed by a

lengthy appeal and, if a reversal is secured, by a second

prosecution. In such circumstances, a defendant’s mistrial

request has objectives not unlike the interests served by the

Double Jeopardy Clause — the avoidance of the anxiety,

3]

expense, and delay occasioned by multiple prosecutions.’

Id., at 608.

“Where the defendant, by requesting a mistrial, exercised

his choice in favor of terminating the trial, the Double

Jeopardy Clause aed would not stand in the way of

reprosecution .

In this case lias one of the nine counts was dismissed by the

State because the statute on which it had been based had been

repealed long before. This dismissal was prior to the attachment

of jeopardy. Then the Court, of its own motion, dismissed three

counts. This left five counts on which a jury had been selected,

empanelled and sworn, and on which the State had taken the

position that it had sufficient evidence to convict, and that it was

ready for trial. Over specific objections by Bretz, the State

dismissed these counts, and over Bretz’s specific position that he

was then entitled to go to trial before this jury and on these

counts. As noted in Lee, the defendant Bretz did not control the

course of the action taken by the trial court, and in fact the

opposite was true and the course was controlled entirely by the

trial court and by the prosecution, and over his objections

thereto.

In any event, manifest necessity is not properly found here.

32

CONCLUSION

The Montana statute is unconstitutional. Jeopardy attached

when the jury was empanelled and sworn, and the second

prosecution was barred by the Fifth Amendment Double

Jeopardy Clause. Appellant has abandoned its third question

presented as to manifest necessity and this should not be

considered. As the amicus curiae memorandum by the Solicitor

General relates only to this third question, the same is not proper

and should not be considered.

Respectfully submitted,

MOSES, TOLLIVER & WRIGHT

By /s/Charles F. Moses

CHARLES F. MOSES

Counsel for Appellee

L. R. BRETZ