# Brief for Appellee — Crist v. Bretz

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for Appellee
- **Published:** January 1, 1978
- **Citation:** 437 U.S. 28

## Text

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.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1720%3A06. Public record. Not legal advice.