Brief for Appellee — Crist v. Bretz

Supreme Court, U. &

mm FILED

AUG 5 jS77

MICHAEL RODAK, JR., CLERK

|

'

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

“Ne

No. 76-1200

ROGER CRIST,~* Warden of the Montana State

Penitentiar i y; Deer Lodge, Montana, et al.,

Appellants,

v.

MERREL CLINE and L. R. BRETZ,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR APPELLEE MERREL CLINE

W. WILLIAM LEAPHART

THE LEAPHART LAW FIRM

1 No. Last Chance Gulch

Suite 6

Helena, Montana 59601

Court-appointed counsel

for appellee Cline

Washington OC. © CLE PUBLIGHERE «¢ LAW PRINTING CO. « (207) 399-0875

————~w oo

OL LILO OO ieee

(i)

TABLE OF CONTENTS

Page

TSE MENS A 1

QUESTIONS PRESENTED. .............. 00. cccccecceceees 2

HISTORICAL PERSPECTIVE ........... 0.0. ccceccccucuees 6

SUMMARY OF ARGUMENT ...............0..0cccceeeuee 7

ES AE A a a ae 8

THE MONTANA COURTS HAVE MISINTER-

PRETED THE JURY TRIAL DECISIONS .............. 9

APPLICATION OF THE BILL OF RIGHTS TO THE

STATES MUST BE GOVERNED BY CONSTI-

TUTIONAL STANDARDS..............0.cccccceceees 1]

THE POINT IN TIME AT WHICH JEOPARDY

ATTACHES IS A STANDARD OF CONSTITU-

ne ceuncocccces 13

THE MONTANA RULE UNDERMINES CON-

STITUTIONAL POLICIES AND WORKS TO THE

PREJUDICE OF THE DEFENDANT.................. 16

THE FEDERAL COURTS, WITHOUT EXCEPTION,

HAVE IMPOSED THE SERFASS STANDARD

UPON THE VARIOUS STATES...................005. 19

i IEEE een aS ep aT 23

TABLE OF AUTHORITIES

Apodaca v. Oregon, 406 U.S. 404 (1972) ................ 9,10,11

Bartkus v. Illinois, 359 U.S. 121 (1959)...............0.0005. 6

Benton v. Maryland, 395 U.S. 784 (1969)........ 7,8,11,18,19,23

Breed v. Jones, 421 U.S. 519 (1975) ...... 2.0... ccc eee. 19,20,23

Cline v. Crist, 546 F.2d 1336 (9th Cir. 1976).................. 6

Cline v. Montana, 394 F. Supp. 803 (Mont. 1975) ............. 4

Cline v. Montana, 406 F. Supp. 430 (Mont. 1975) .......... 6,19

Dimick v. Schiedt, 293 U.S. 474 (1934)...........0.0.000005. 15

Downum v. United States, 372 U.S. 734 (1963). .... 7,13,17,21,23

Gori v. United States, 367 U.S. 364 (1961) .................. 17

(ii)

— Page

Green v. United States, 355 U.S. 184 (1957)....... 7,14,15,18,22

Illinois v. Somerville, 410 U.S. 458 (1973) ..........000000 7,13

Johnson v. Louisiana, 406 U.S. 356 (1972). ......... 60 eee eens 10

Ker v. California, 374 U.S. 23 (1963) ...... 0.0.5 c eee eeneee 7,12

Malloy v. Hogan, 378 U.S. 1 (1964).........- 6c eeee eee eeee 7,12

Palko v. Connecticut, 302 U.S. 319 (1937)..........5505: 8,9,18

Pointer v. Texas, 380 U.S. 400 (1964). ........655c eee eeees 7,12

Serfass v. United States, 420 U.S. 377 (1974) ........ 13,14,18,20

Smith v. Mississippi, 478 F.2d 88 (5th Cir.) cert. den. 414

U.S. 1113 (1973). 2... cece cece cece cree eee eeenneeees 21,22

State v. Cunningham, 535 P.2d 186 (Mont. 1975)..........++. 5

Thomas v. Beasley, 491 F.2d 507 (6th Cir. 1974)..........++- 21

United States ex rel. Webb v. Court of Common Pleas, 516

F.2d 1034 (3rd Cir. 1975)... 0... cece cece eee eee ene eeees 21

United States ex rel. Somerville v. Illinois, 447 F.2d 733

(Tth Cir, 1971)... . cc cece eccccccccccceeeseeeeccensssees 21

United States v. Jenkins, 490 F.2d 868 (2nd Cir.

IGTB) .ccccccccccccccccccccccccccccccccccccccscscscees 6

United States v. Jorn, 400 U.S. 470 (1970)...........++- passim

United States ex rel. Rogers v. LaVallee, 517 F.2d 1330

(2nd Cir.) cert. den. 423 U.S. 1078 (1976)... . 2... 6 cee eees 21

United States v. Martin Linen Supply Co., 51 L.Ed.2d #4

PB42 (ADTT). ..cccccccscccccccccdesccocscccsesecees 13,19

Whitfield v. Warden of Maryland, 486 F.2d 1118 (4th Cir.

SUED cnncccdcnecsccdeséebseonceseobddcoueseuscscoesess 21

Williams v. Florida, 399 U.S. 78 (1970) ...........6605. 9,10,11

Winsor v. The Queen, L.R. 1 Q.B. 289 (1866)...........0005: 7

Statutes Cited:

Revised Codes of Montana, 1947, §95-1711..........6.55005 l

Rule 23 (b) Federal Rules of Criminal Procedure .............. 9

2B U.S.C. $1284... ccccccccccccvvccceseessessvessseees 1

Treatises:

Blackstone’s Commentaries ...........--.0-eeecceeeeeeeeeees 6

Shulhofer, Jeopardy and Mistrials, Univ. of Pa. L. Rev. Vol.

12S Bo. 3 CIDTT). . ccccccccccccccccccccccscccssvcceees 6,7

cca iE, lll

IN THE

Supreme Court of the Anited 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 MERREL CLINE

JURISDICTION

The Court has postponed the question of jurisdiction to the

hearing on the merits. Appellee Cline has filed a motion to dismiss

the appeal. This motion is still pending.

Appellants pose three questions on appeal. The first two of

these questions concern the constitutionality of R.C.M., 1947,

§ 95-1711. It is Appellee’s position that the questions on which

this decision depends are so unsubstantial as not to need further

argument. This contention is based on the fact that the federal

courts, including the Supreme Court, have, without exception,

applied the rule that jeopardy attach upon the swearing of the jury

2

to the state courts. This issue is discussed fully in the following

brief.

Appellant’s third issue raises the question of “manifest

necessity”. The issue of “manifest necessity” does not come

within the jurisdiction of this Court under 28 U.S.C. 1254 (2),

since the issue does not involve the constitutionality of a state

statute. Further, Appellants have specifically admitted that the

Court lacks jurisdiction over the issue of “manifest necessity’’. See

Appellant’s brief, p. 14.

QUESTIONS PRESENTED

On page 3 of their Brief, the appellants pose the question, “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?”

Appellee Cline takes exception to the question as posed by the

appellants. Contrary to the tenor of the question as stated, the

attachment of jeopardy rule is not part of the Federal Rules of

Criminal Procedure. Rather, it is a product of United States

Supreme Court case law, as will be discussed in this brief.

Correctly stated, the question should read, “Whether the

attachment of jeopardy rule is a product of Constitutional exegesis

or rather an exercise of the Supreme Court’s supervisory power

over Federal Courts and officials?”

Secondly, on page 12, the Appellants’ Brief asserts that the

States are free to adopt “rules that cause jeopardy to attach even

earlier [than the Federal rule}... .”

This assertion misstates the issue before the Court. The Court is

concerned with a Montana statute which provides that jeopardy

attach upon the swearing of the first witness; this is a point in time

after the swearing of the jury which is the rule in the Federal

Courts as required by the Supreme Court.

STATEMENT OF THE CASE

This is an appeal by the State of Montana from the Ninth Circuit

Court of Appeals’ reversal of a denial of Appellees’ petition for a

Writ of Habeas Corpus. The facts and proceedings which lead to

this appeal are as follows:

1. On October 31, 1974, Appellees Cline and Bretz were

charged in a nine-count Information in Clause No. 3921 in the

State District Court of Lewis and Clark County, Montana.

Appellee Cline’s wife, Shirley, was also charged in Count Nine of

the same Information.

2. On March 10, 1975, the parties commenced a voir dire

examination of the jury panel.

3. On March 11, 1975, Count Nine was dismissed on motion of

the State, thus removing Shirley Cline as a defendant in the

prosecution.

4. On March 13, 1975, a jury was impaneled and sworn and

then excused; no witnesses were sworn. Defense counsei then

moved for an order restricting the State’s evidence to the

allegations in the Information, i.e., various counts of the

Information alleged acts occurring in 1974, and yet charged the

defendants with violating statutes which were repealed as of

December 31, 1973.

5. On March 24, 1975, the trial judge, on his own motion,

dismissed Counts II, VII, and VIII (Appendix pages 3-9) of the

Information for “the reason that said Counts are fatally defective

on their face; they allege crimes committed after January |, 1974,

under statutes that expired on that day; they therefore fail to

charge an offense.”

6. On March 24, 1975, counsel for the State of Montana

requested a continuance so that the State could petition the

Supreme Court of Montana for a Writ of Supervisory Control in

regards to the dismissal of the three Counts.

7. On March 28, 1975, counsel for Appellee and for the State

presented oral argument to the Montana Supreme Court

requesting an adversary hearing on the issuance of a Writ of

4

Supervisory Control. The Montana Supreme Court scheduled an

adversary hearing for April 2, 1975.

8. On April 2, 1975, the Montana Supreme Court refused to

having a public hearing in lieu of an in camera hearing. The

Montana Supreme Court ordered the parties to return to the

District Court and to proceed to trial.

9. On April 4, 1975, the State of Montana moved to dismiss the

remaining five counts on the Information for the exc‘usive purpose

of filing a new and different Information against the Appellees.

Defense counsel objected, refusing to join the State’s motion and

reserving all rights in the event of a dismissal. The trial court

10. On April 4, 1975, a new Information (No. 3963)

(Appendix 12-15) was filed charging Appellees Cline and Bretz,

along with Appellee’s wife, Shirley Cline, each with the

commission of two felonies; Grand Larceny and Obtaining

Money by False Pretenses. Both of these counts had been charged

in the original Information.

11. On April 25, 1975, Appellee filed a motion to dismiss the

prosecution on the grounds that he was twice in jeopardy in

violation of the Fifth Amendment to the United States

12. On May 1, 1975, the Trial Judge denied the Appellee’s

13. On May 21, 1975, Appellee requested the Federal District

Court to convene a three-judge court to enjoin the state

prosecution and to declare R.C.M., 1947, §95-1711(3\d)

unconstitutional. Appellee argued: that unless a double jeopardy

determination is made prior to a second trial, the Fifth

Amendment loses its substance; a second trial constitutes an

irretrievable denial of the Fifth Amendment guarantee against

being twice put in jeopardy.

14. On June 6, 1975, the United States District Court denied

the application for the convening of a three-judge court. Cline v.

Montana, 394 F. Supp. 803 (1975).

5

15. On June 9, 1975, Appellee appealed the District Court

denial of a three-judge court to the Circuit Cou:t of Appeals for the

Ninth Circuit.

16. On June 10, 1975, the United States District Judge refused

to order a stay pending the appeal to the Circuit Court.

17. On June 12, 1975, counsel for Appellees Cline and Bretz

submitted a petition to the Ninth Circuit for a stay of the

prosecution pending the appeal of the application for a three-judge

court.

18. On June 13, 1975, a two-judge panel of the Ninth Circuit

Court of Appeals denied Appellees’ motion for a stay pending

appeal.

19. On June 13, 1975, counsel for Appellees Cline and Bretz

applied to the United States Supreme Court for a stay pending

appeal to the Ninth Circuit Court of Appeals.

20. On June 14, 1975, the United States Supreme Court

(Justice Brennan ) denied the application for a stay pending appeal.

21. On June 16, 1975, trial commenced and on July 2, 1975,

Appellees Cline and Bretz, along with Appellee Cline’s wife,

Shirley, were found guilty of Obtaining Money by False

Pretenses.

22. On July 17, 1975, Appellees petitioned the Supreme Court

of Montana for a Writ of Habeas Corpus on the grounds they were

convicted in violation of the Fifth Amendment Guarantee against

being put twice in jeopardy.

23. On July 23, 1975, the Montana Supreme Court denied the

application for a Writ of Habeas Corpus relying on its decision in

State v. Cunningham, 535 P.2d 186 (1975). (App. 21-28). In

Cunningham, the Montana Supreme Court held that the United

States Supreme Court rulings that jeopardy attaches when a jury is

impaneled and sworn are not binding on the State, and that

R.C.M., 1947, §95-1711(3)\d), is constitutional.

24. On October 18, 1975, Appellees applied to the Federal

District Court for a Writ of Habeas Corpus on the grounds that the

second prosecution was in violation of the Fifth Amendment

Double Jeopardy Clause.

6

25. On December 31, 1975, the United States District Court

denied the application for a Writ of Habeas Corpus. Cline & Bretz

v. Montana, 406 F. Supp. 430 (1975) (Jur.St. p.42).

26. Appellee Cline then appealed to the Ninth Circuit Court of

Appeals. The Circuit Court reversed the judgment of the Federal

District Court in 546 F.2d 1336 (9th Cir. 1976) (Jur.St. p. 13).

27. The State of Montana then appealed to the United States

Supreme Court on December 13, 1976.

28. In the State court appeal, the Montana Supreme Court

reversed the conviction of Appellee Cline and affirmed the

conviction of Bretz. 555 P.2d 724 (Mont. 1976).

HISTORICAL PERSPECTIVE

The Fifth Amendment Double Jeopardy Clause embodies “‘one

of the cidest ideas found in Western Civilization.” Bartkus v.

Illinois, 359 U.S. 121, 151 (1959) (Black, J., dissenting). The

concept of Double Jeopardy dates back to early Greek, Roman

and Canon law. United States v. Jenkins, 490 F.2d 868, 879-81

(2nd Cir. 1973) (Friendly, J.), affirmed, 420 U.S. 358 (1975).

Blackstone stated that it is a “universal maxim of the common

law of Engjand, that no man is to be brought into jeopardy of his

life, more than once for the same offense.” 4 W. Blackstone,

Commentaries 335. Professor Shulhofer points out that the

common law plea of former jeopardy was unavailable when

proceedings were terminated prior to judgment because jeopardy

was not deemed to “attach”’ until the verdict was rendered and

duly recorded. Schulhofer, Jeopardy and Mistrials, Univ. of Pa.

L. R., Vol. 125, No. 3, p. 453, Jan. 1977. Further, a judge, before

recording a verdict, could ask the jury to reconsider its verdict. As

long as only one verdict was recorded, a verdict of acquittal could

be changed to one of conviction without imposing double

jeopardy. See, 4 W. Blackstone, Commentaries, 335-38.

American jurisdictions have greatly expanded the scope of the

common law doctrine of Double Jeopardy. Fifth Amendment

Double Jeopardy has been held to apply to both capital and non-

7

capital crimes despite the “life or limb” wording of the

Amendment. See, e.g., Green v. United States, 355 U.S. 184

(1957) (Black, J.). Under the common law, jeopardy did not

attach until a verdict was rendered. American courts have

expanded the protection of the doctrine by requiring that jeopardy

attach upon the swearing of the jury. Downum v. United States,

372 U.S. 734 (1963). This rule is rooted in the common law

doctrine that, once the jury is sworn, the case is committed to the

jurisdiction of the Court and the judge may not dismiss the jury

except in cases of “evident necessity.” 4 W. Blackstone,

Commentaries 360. The common law defendant, however, could

not prevail on a plea of former jeopardy after an improper

discharge of the jury by the trial judge. Winsor v. The Queen, L.R.

1 Q.B. 289 (1866).

The question presented by this appeal is whether or not the rule

that jeopardy attaches upon the swearing of the jury is

constitutionally mandated?

SUMMARY OF ARGUMENT

When a particular guarantee of the Bill of Rights is incorporated

in the Due Process Clause of the Fourteenth Amendment, the

same constitutional standards must be applied by both the Federal

and State Courts. Malloy v. Hogan, 378 U.S. 1, 11 (1964); Ker v.

California, 374 U.S. 23, 33 (1963); Pointer v. Texas, 380 U.S.

400, 406 (1964). The Double Jeopardy Clause of the Fifth

Amendment has been applied to the states through the Due

Process Clause of the Fourteenth Amendment. Benton v.

Maryland, 395 U.S. 784, 795 (1969). In interpreting the Double

Jeopardy Clause, the U. S. Supreme Court has held that jeopardy

attaches upon the impaneling and swearing of the jury. Downum v.

United States, 372 U.S. 734 (1963); United States v. Jorn, 400

U.S. 470 (1970); Illinois v. Somerville, 410 U.S. 458 (1973).

Appellee submits that the above authorities require the

conclusion that the attachment of jeopardy rule is constitutionally

mandated, and thus, no different ruie may be adopted by the State

Courts.

ARGUMENT

Prior to its decision in Benton v. Maryland, 395 U.S. 784

(1969), the Supreme Court employed the “fundamental fairness”

doctrine to test the constitutionality of prosecutions by State and

Federal authorities under the Double Jeopardy Clause of the Fifth

Amendment. Palko v. Connecticut, 302 U.S. 319 (1937).

In Palko, rather than look to the specific guarantees of the Bill of

Rights, the Court ascertained whether “due process” has been

satisfied. Under Palko, the states were free to differ from the

Federal standards governing application of the Fifth Amendment,

so long as the totality of the circumstances did not disclose a denial

of fundamental fairness. Only when a kind of doubie jeopardy

subjected a defendant to “. . . a hardship so acute and shocking

that our polity will not endure it,” did the Fourteenth Amendment

prohibit reprosecution. Palko, supra, at 328.

In Benton v. Maryland, supra, the Court rejected the Palko

“fundamental fairness” doctrine and held that state as well as

federal Courts are bound by constitutional standards under the Bill

of Rights.

“Palko represented an approach to basic constitutional

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

of the same cloth as Betts vs. Brady, 316 U.S. 455 (1942),

the case which held that a criminal defendant’s rights 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. . . . Our recent cases have

thoroughly rejected the Palko notion that basic con-

stitutional j rights can be denied by the states so 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 vs.Louisiana, supra, at 149, 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..”’

Benton, supra, at 794-795.

Thus, in Benton v. Maryland, the Court found that the double

jeopardy prohibition of the Fifth Amendment represents a

9

fundamental ideal in our constitutional heritage and applied that

guarantee to the states through the Fourteenth Amendment. The

validity of defendant Benton's larceny conviction was judged, not

by the watered-down standard enunciated in Pa/ko, but under the

specific provisions and standards of the Fifth Amendment Double

Jeopardy Clause.

THE MONTANA COURTS HAVE MISINTERPRETED

THE JURY TRIAL DECISIONS

The State of Montana now argues that, although the Montana

rule differs trom the Federal rule, in substance, it stili preserves

the holding of the Montana Supreme Court in its decision that

the Federal rule has no inherent merit as opposed to the Montana

rule. (App. 26-27). Likewise, the Federal District Court for the

District of Montana adhered to this reasoning and relied on the

fact that, although the Sixth Amendment Trial by Jury guarantee

is imposed upon the states, the states are not required to have

twelve-person juries nor are the states required to have

unanimous juries, both of which are requirements in the Federal!

system.

In Williams v. Florida, 399 U.S. 78, (1970), and Apodaca v.

Oregon, 406 U.S. 404 (1972), the Court ascertained what

standards or substrata are necessary to impart Constitutional

meaning to the Sixth Amendment guarantee to a jury trial. In

Williams, a majority of the Court found that the twelve-person

requirement is not of constitutional stature and, thus, the states

are allowed in implementing the Sixth Amendment guarantee to

a jury trial, to provide for less than a twelve-person jury.

The Williams decision is not authority for the proposition that

the states may ignore constitutional standards as to when

jeopardy attaches and instead adopt their own standards in that

regard.

The requirement of a twelve-person jury in Federal Court is

contained in Rule 23(b) of the Federal Rules of Criminal

Procedure. The requirement as to the attaching of jeopardy, on

the other hand, is not a federal procedural rule, but rather is a

standard pronounced by the Supreme Court in interpreting a

fundamental constitutional guarantee. The two requirements are

not parallel. One is of constitutional stature and the other is not.

The case sub judice is also distinguishable from the Apodaca

decision. In Apodaca, a plurality of the Court rejected the claim

that a conviction of a crime by less than a unanimous jury

a. anes ie Enid © ceuien t Gen “Ou

be possible when both decisions stem from the Sixth Amend-

ment?” Johnson v. Louisiana, 406 U.S. 356, 383 (1972)

(Douglas, J., dissenting).

Despite the anomalous nature of Apodaca, Justice Brennan

admonishes:

“In any event, the affirmance must not obscure that the

jority of the Court remains of the view that as in the case

of every specific of the Bill of Rights that extends to the

States, the Sixth Amendment's jury trial guarariteec,

however it is to be construed, has identical application

against both State and Federal governments.” Johnson,

supra, at 395. (Brennan, J., dissenting.)

The Williams majority and the Apodaca plurality have chosen

to treat the twelve-person and unanimity requirements as non-

constitutional rules. Neither requirement was found to be an

indispensible element of the Sixth Amendment and, thus, neither

requirement is obligatory on the states.

The Williams and Apodaca decisions do not alter the

proposition that the Doctrin. of Incorporation requires that the

Bill of Rights be applied to both federal and state governments by

the same “constitutional” standards.

The right to a jury trial and the protection from Double

Jeopardy derive from parallel constitutional guarantees. How-

ever, the fact that the states are not bound by the twelve person

and unanimity requirements of a federal jury trial, does not mean

that the states are at liberty to vary from the rule as to the

attaching of jeopardy. The standards underpinning the various

constitutional guarantees must be individually analysed to

determine whether or not they are of constitutional stature.

Unlike the unanimity and twelve-person requirement, the rule

that jeopardy attaches upon the swearing of the jury is of

constitutional stature and must be applied by the states.

APPLICATION OF THE BILL OF RIGHTS TO THE

STATES MUST BE GOVERNED BY

CONSTITUTIONAL STANDARDS

In light of Benton v. Maryland, the question presently before

the Court is whether or not the time at which jeopardy attaches is

a constitutional “standard” or, whether, it is non-constitutional

consequence of the Supreme Court’s supervisory power over

Federal Courts which countenances different applications in

state and federal courts?

The decisions of this Court clearly indicate that once a

constitutional guarantee is found to be a fundamental right

mcorporated through the Fourteenth Amendment, the same

governments.

Each time this Court has interpreted the Fourteenth Amend-

ment as encompassing a particular guarantee of the Bill of

Rights, the Court has, without exception, ruled that the same

constitutional standards apply against both state and federal

12

authorities. In Malloy v. Hogan, 378 U.S. 1, 11 (1963), this

Court held:

only a “watered-down,

of the Bill of Rights,” (cases).’ Malloy v

supra, at 11

In Ker v. California, 374 U.S. 23, 30 (1963), the Court held

that the Fourteenth Amendment is enforceable against the states

“by the application of the same constitutional standard

prohibiting unreasonable searches and seizures.”” Likewise, in

Pointer v. Texas, 380 U.S. 400, 406 (1964), the Court held that

the Sixth Amendment confrontation clause “is to be enforced

against the states under the Fourteenth Amendment according to

the same standards that protect those personal rights against

federal encroachment”’.

Appellee submits that the states have no more liberty to

“water-down” the guarantees of the Fifth Amendment than they

have to “water-down”™ the guarantees of the First, Fourth and

involved in Malloy, Ker, and Pointer, it would be incongruous to

have different standards determine the validity of a claim of

Double Jeopardy depending on whether the claim was asserted

in a state or a federal court. Since it is the same fundamental

constitutional guarantee being asserted in both the federal and

ao-7- mee

13

state court, the same standards must determine at what point

Fifth Amendment Jeopardy attaches in both federal and state

proceedings.

THE POINT IN TIME AT WHICH JEOPARDY

ATTACHES IS A STANDARD OF

CONSTITUTIONAL DIMENSIONS

Appellants has cited no authority which would suggest that the

point in time at which jeopardy attaches is not of constitutional

stature. On numerous occasions, this Court has stated that, in a

jury trial, jeopardy attaches upon the impaneling and swearing of

the jury. Downum v. United States, 372 U.S. 734 (1963);

United States v. Jorn, 400 U.S. 470 (1970); Illinois v.

Somerville, 410 U.S. 458 (1973); United States v. Martin

Linen Supply Co., 51 L.Ed.2d, #4, p. 642 (1977). The rule

concerning the attaching of jeopardy is not a mere “technicality”,

arbitrarily chosen by the Court. On the contrary, the Court has

expressed sound policy reasons for having jeopardy attach when

a jury is impaneled and sworn.

“As an aid to the decision of cases in which the prohibition

of the Double Jeopardy Clause has been invoked, the courts

have found it useful to define a point in criminal proceedings

at which the constitutional purposes and policies are

implicated vy Tesort to the concent of “attachment of

jeopardy”. See United States v. Jorn, supra, at 480. In the

case of a jury trial, jeopardy attaches when a jury is

empaneled and sworn. Downum v. United States, 372

U.S. 734 (1963); Illinois v. Somerville, 410 U.S. 458

(1973). In a nonjury trial, jeopardy attaches when the court

begins to hear evidence. McCarthy v. Zerbst, 85 F.2d 640,

642 (CAI10 1936). See Wade v. Hunter, 336 U.S. 684,

688 (1949). The Court has consistently adhered to the view

that jeopardy does not atfach, and the constitutional

prohibition can have no application until a defendant is “put

to trial before the trier of the facts, whether the trier be a

jury or a judge.” United States v. Jorn, supra, at 479.

[Further citations omitted.]"" Serfass v. United States, 420

U.S. 377, 388 (1974).

14

The policies alluded to in the Serfass decision are expressed in

Green v. U.S., 355 U.S. 184 (1957).

“The constitutional prohibition against double jeopardy

was designed to protect an individual from being subjected

to the hazards of trial and possible conviction more than

once for an alleged offense.”

s * eo

“The underlying idea, one that is deeply i in at

least the Anglo-American system of juris , is that

the state with all its resources and powers should not be

allowed to make repeated attempts to convict an individual

for an alleged offense, thereby subjecting him to embar-

rassment, expense, and ordeal and compelling him to live in

a state of anxiety and insecurity, as well as enhancing the

possibility that even though innocent he may be found

guilty.”

The policy behind having jeopardy attach when the jury

impaneled and sworn, is expressed as follows:

“Moreover it is not even essential that the verdict of guilt or

innocence be returned for a defendant to have once been

placed in jeopardy so as to bar a second trial on the same

charge. This Court, as well as most others, has taken the

position that a defendant is placed in jecpardy once if put on

trial before a jury so that if the jury is discharged without his

consent he cannot be tried again. [citations omitted]. This

prevents a prosecutor or judge from subjecting a defendant

to a second prosecution by discontinuing the trial when it

appears that a jury might not convict.” Green, supra, at

188.

The Court later elaborated on these policies in U.S. v. Jorn,

400 U.S. 470 (1970), wherein it held:

“The Fifth Amendment’s prohibition against placing a

defendant twice in jeopardy represents a constitutional

policy of finality for the defendant’s benefit in Federal

criminal proceedings. A power in government to subject the

individual to repeated prosecutions for the same offense

would cut deeply into the framework of procedural

protections which the Constitution establishes for the

conduct of a criminal trial. And society’s awareness of the

heavy personal strain which a criminal trial represents for

15

an individual defendant is manifest in the willingness to

limit the government to a single criminal proceeding to

vindicate its very vital interest in enforcement of criminal

laws. Both of these considerations are expressed in Green v.

U.S. . [quotation from Green omitted]. These

considerations have lead this court to conclude that a

defendant is placed in jeopardy in a criminal

once the defendant is put to trial before the trier of facts,

whether the trier be a jury or a judge. [citations omitted].

“Thus the conclusion that “jeopardy attaches” when the

trial commences expresses a judgment that the constitu-

tional policies underpinning the Fifth Amendment's

guarantee are implicated at that point in a proceeding.”

Jorn, supra, at 479-480.

The significance the Court places on the swearing of the jury is

consistent with the American scheme of justice. The jury is ‘the

most transcendant privilege which any subject can enjoy and is

justly dear to the American people.” Dimick v. Schiedt, 293

U.S. 474, 485 (1934). It is the jury which is the finder of fact and

which must ultimately determine guilt or innocence. Once a jury

of peers has been impaneled and sworn to sit in judgment of a

fellow citizen, the constitutional policies underpinning the double

jeopardy clause are brought into play. To allow z state to dismiss

the entire prosecution after the swearing of the jury is to thwart

the very policies the Court has chosen to protect by having

jeopardy attach at that point in time.

16

THE MONTANA RULE UNDERMINES

CONSTITUTIONAL POLICIES AND WORKS TO THE

PREJUDICE OF THE DEFENDANT

The rule that jeopardy attaches when a jury is impaneled and

sworn is much less subject to prosecutorial manipulation than is

the Montana rule. The time between the impaneling of the jury

and the swearing of the jury is negligible whereas the time

between the swearing of the jury and the swearing of the first

witness is, most often, considerable. Juries are invariably sworn

by the Court immediately upon being impaneled. If a prosecutor

were to make a motion to dismiss the prosecution after the jury

was impaneled but before it was sworn, the court would most

certainly suspect prosecutorial manipulation. Normally, there is

nothing that transpires after the jury has been impaneled but

before it is sworn which would warrant dismissal of the entire

prosecution.

The period of time between the swearing of the jury and the

swearing of the first witness is an entirely different matter.

Although the swearing of the first witness generally follows

shortly after the swearing of the jury, there still remains a very

crucial interim period during which counsel may make opening

statements and either side may make motions. This period of

time may take only a few hours or it may span a week-end recess,

thus taking days. Regardless of the length of time involved, the

fact remains, in Montana, that this is a period of time when the

state may contemplate the desirability of the jury panel which

has been sworn as well as hear the opening statement of the

defense counsel should he choose to make one. If a prosecutor

does not like what he hears in the opening statements or if he

decides that the jury is defense oriented, he can dismiss the entire

prosecution without justification, thus denying the defendant his

valued right to have his trial completed by a particular tribunal.

United States v. Jorn, 400 U.S. at 484, The Montana statute not

only defeats the policies underpinning the Double Jeopardy

Clause, but also lends itself to covert manipulation.

17

The Supreme Court has emphatically discouraged pre-verdict

dismissals of juries.

“Harassment of an accused by successive prosecutions or

declaration of a mistrial so as to afford the prosecution a

more favorable opportunity to convict are examples when

jeopardy attaches. Gori ». U.S., 367 U.S. 364 (1961),

“The discretion to discharge the jury before it has reached a

verdict is to be exercised only in the very extraordinary and

eg Ry ge = SAggd Ay A-D

U.S. v. Coolidge. . . For the prohibition of the

Jeopardy Clause is not against being twice punished

but against being twice put in jeopardy."’ Downum vy. U.S.,

372 U.S. 734, at 736.

Contrary to the pronouncements of the Supreme Court that

discharge of a jury prior to verdict is to be exercised only in “very

extraordinary and striking circumstances’, Downum, supra, the

Montana procedure allows the prosecution to dismiss a jury prior

to verdict without any showing of “extraordinary circumstances”

or “manifest necessity.” In essence, the Montana procedure

gives the prosecution an infinite number of peremptory

challenges by allowing the prosecution to dismiss, arbitrarily, an

entire prosecution, discharge the jury; refile an Information and

pick a new jury of twelve men and women. This alone offends al!

concepts of fair play and due process and subjects the defendant

to considerable prejudice. Most importantly, the defendant is

“deprived of his valued right to have his trial completed by a

particular tribunal.” U.S. v. Jorn, 400 U.S. at 484, The Supreme

Court does not look lightly upon the circumventing of this

“valued right.” See Wade v. Hunter, 336 U.S. 684, 689 (1948).

Additionally, such a premature dismissal denies the defendant

his right to proceed to verdict on the viable counts of the

Information. Finally, the defendant is further prejudiced by the

fact that he has no corresponding privilege of aborting the entire

proceeding at his whim and picking a new jury more to his liking.

The Montana defendant is denied the privilege afforded the

prosecutor of examining the jury as a whole and the option of

challenging all twelve jurors and starting anew. The Montana

Rule not only deprives defendant of his right to have his trial

completed by a particular tribunal, but also, it fails to put the

defendant on an equal footung with the prosecution in terms of

challenging jurors.

The pronouncements by the Court in Jorn and Green, clearly

indicate that the time at which jeopardy attaches is not a mere

“technicality,” Serfass v. United States, 420 U.S. 377, 391

(1974), but rather is a statement of policy designed to protect

both state and federal defendants from repeated prosecutions and

to prevent the prosecution from enhancing its opportunities to

convict. It establishes a point in time beyond which a jury may

not be dismissed without a showing of manifest necessity or

extraordinary circumstances. The Montana rule, on the other

hand, defeats these very policies by allowing the prosecution a

considerable period of time to dismiss the jury prior to verdict

without any showing of manifest necessity. Conceivably, this

process could continue ad infinitum until the prosecution

obtained a jury to its liking. Appellee submits that this is entirely

contrary to the “incorporation” of the Fifth Amendment under

Benton v. Maryland, supra, and does not even satisfy the

“watered-down” fundamental fairness standard of Palko which

has been rejected by this Court.

19

THE FEDERAL COURTS, WITHOUT

EXCEPTION, HAVE IMPOSED THE

SERFASS STANDARD UPON THE

VARIOUS STATES

The point at which jeopardy attaches is a standard enunciated

by the Supreme Court most recently in United States v. Martin

Linen Supply Company, supra, and is not a rule of Federal

Criminal Procedure. This standard must be applied as an

element of the Fifth Amendment, “lock, stock and barrel”’ to the

states. Benton v. Maryland, supra, at 801 (Harlan, J.,

dissenting, and characterizing the majority's approach to

“incorporation”).

Nothing could be more crucial to the “application” of double

jeopardy than the determination at what point jeopardy attaches.

This is precisely why the Federal courts, when reviewing state

court proceedings, have not only determined what constitutes a

“trial” for purposes of the Fifth Amendment, but also have told

the states at what point jeopardy attaches.

For example, in Breed v. Jones, 421 U.S. 519 (1975), the

Court held that the prosecution of Breed as an adult in California

Superior Court, after an adjudicatory finding in juvenile court

that he had violated a criminal! statute and a subsequent finding

that he was unfit for treatment as a juvenile, violated the Double

Jeopardy Clause of the Fifth Amendment as applied to the states

through the Fourteenth Amendment. In interpreting the Breed

case, the Federal District Court for the District of Montana held:

“Nowhere in the opinion [Breed] does the Court baldly

assert that a state cannot determine at what point trial

commences. Nor does the Court ever attempt to impose any

federal procedural rule upon the California Juvenile Court.

The sole concern in Breed, as it is in the instant case, is not

whether federal procedures were followed, but whether

federally guaranteed rights were violated.” Cline vy.

Montana, 406 F. Supp. 430 (1975) (Jur. St. p. 42).

Appellee Cline agrees that the Supreme Court did not baldly

assert that a state cannot determine at what point a trial

respondent was

facts,” ibid., that is, when the juvenile court, as the trier of

the facts, to hear evidence. See Serfass v.

States, 420 U.S. 388." Breed v. Jones, 421 U.S, 519, 531

(1974).

Although the Court did not “baldly assert” that California

could not determine at what point a trial commenced, it did

impose the federal standard as to when jeopardy attaches upon

the California State Juvenile Court.

Although the Breed case involved a judge trial rather than a

jury trial, the case is significant because the Court imposed the

federal standard on the California Court and cited Serfass v.

United States as authority. The Serfass decision states that in the

case of a nonjury trial, jeopardy attaches when the court begins to

hear evidence, however, “In the case of a jury trial, jeopardy

attaches when a jury is empaneled and sworn.” Serfass, supra, at

388.

Appellee Cline submits that had the Breed case been a jury

trial, the Supreme Court likewise would have cited Serfass and

held that jeopardy attached when a jury was impaneled and

sworn. The conclusion of the District Court that the states may

determine for themselves when jeopardy attaches is incorrect as

is evidenced by the Supreme Court's specifically applying the

federal standard to the State of California. In Breed, the Supreme

Court effectively held that the standard enunciated in Serfass is

of constitutional stature and that the states may not determine

for themselves at what time jeopardy attaches.

Seven Circuit Courts of Appeals (including the 9th Circuit)

have addressed themselves to habeas corpus petitions from state

21

prisoners and all seven Circuits have held that the decisions of

the United States Supreme Court require that jeopardy attach

when the jury is impaneled and sworn. Four of the Circuits have

applied the federal rule to the states as a matter of course with no

discussion of the issue. United States ex rel. Rogers v. LaVallee,

517 F.2d 1330, 1333 (2nd Cir. 1975); cert. den., 423 U.S, 1078

(1976); United States ex rel. Webb v. Court af Common Pleas,

516 F.2d 1034, 1039 (3rd Cir. 1975); Whigfield v. Warden of

Maryland, 48€ F.2d 1118, 1122 (4th Cir. 1973) Thomas v.

Beasley, 491 F.2d 507, 508 (6th Cir. 1974).

In United States ex rei. Somerville v. Illinois, 447 F.2d 733,

735 (7th Cir, 1971), rev'd. on other grounds, 410 U.S. 458

(1973), the Seventh Circuit was presented with an argument

identical to the argument made here, and ruled that federal, not

state, law “is controlling on the issues as to when jeopardy

attaches.” In Smith v. Mississippi, 478 F.2d 88, 93 (Sth Cir.)

cert. den., 414 U.S. 1113 (1973), the Fifth Circuit addressed a

double jeopardy claim of a state prisoner and concluded:

“The [state's] contention that petitioner was not put to trail

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 .. .

and Somerville... . 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 spon-

taneous affect on the defendant which can be said to

automaiically 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.”

Implicit in the Fifth Circuit's reliance on Downum and

Somerville is the reasoning that sound policy dictates having

jeopardy attach upon the swearing of the jury. The Montana

Supreme Court ignored these policy considerations when it held

that jeopardy does not attach until the swearing of the first

witness. (App. p. 27). The Montana Court based its decision on

the premise that the jury has nothing to consider prior to the

swearing of the first witness. This premise is inaccurate. First of

all, as pointed out earlier, the jury does have the opening

22

statements of counsel to consider prior to the swearing of the first

witness. Secondly, the jury has nothing other than the opening

statements to consider after the swearing of the witness because

the witness has not yet begun to testify. Even assuming,

arguendo, that jeopardy attaches at a point later in time [after the

testimony commences], the Smith decision points out, “The

mere introduction of evidence has no spontane¢ous affect on the

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.” Smith, supra at 93.

Not only does the Montana rule work to the distinct prejudice

of the criminal defendant, but also, it has no supporting basis in

policy or logic. It opens the door to dismissals after the jury is

sworn thus depriving the defendant of his valued right to have his

trial completed by a particular tribunal. United States v. Jorn,

400 U.S. at 484-485. It undermines the defendant's right to be

free from financial, physical and psychological intervention

worked by repetitive prosecutions. Green v. United States, 355

U.S. 184, 187-88 (1957). Also, as pointed out previously, the

Montana rule in effect allows the prosecution an infinite number

of peremptory challenges to the jury.

23

CONCLUSION

Appellee Cline submits that the decisions of this Court in

Downum v. United States, 372 U.S. at 735-36, (that jeopardy

attaches when a jury is impaneled and sworn), and Benton v.

Maryland, 395 U.S. at 795 (“the same constitutional [double

jeopardy] standards apply against both the state and federal

governments”’), and Breed v. Jones, 421 U.S. 519 (applying the

attachment of jeupardy rule to the State of California), mandate

that the Ninth Circuit Court of Appeals be affirmed in its ruling

that the attachment of jeopardy rule is of constitutional! stature

and thus must be followed by the state courts.

THE LEAPHART LAW FIRM

Attorneys for Appellee Cline

/s/ W. William Leaphart

By: W. William Leaphart

1 No. Last Chance Gulch, #6

Helena, Montana $9601