Appendix — Farmer v. New Jersey

Supreme Court brief1967

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APPENDIX A

(Opinion of etal _— of New Jersey— _ fe

. Reported i in 45 N. J. 520)

Supreme Courr of-New Jkrsey -

M-13 September Term 1965 : 3

Stare or New Jersey,

Plaintiff-Appellant, |

vs. °

Cuaries Farmer,

Defendant-Respondent.

Argued ——— 13, 1965—Deeided September 21,

1965.

Mr. Edward J. Dolan, Middlesex ‘County Proseeutor,

* argued the cause for appellant.

Mr. Raymond A. Brown argued the cause for respond-

ent (Mr. Irving 1. V ogelman, on the brief).

The opinion of the Court was deliver ed

Per CuriAm. Re es

The State seeks leave to appeal from ‘ateriogiatony

order gr anting defendant pretrial discov ery of grand jury

[la]

Appendia A

.- testimony and statements taken by the prosécutor from

persons other than defendant.: The trial court deemed the

~ eircumstances to be exceptional and to warrant a relaxa-

tion under R.R. 1:27A of the pertinent rules of Court.

R.R. 3:3-7; 3:5-41. See State v. Reynolds, 41 N. J. 163, .

182' (1963) ; State v. Clement, 40 N. J. 139 (1963); State v.

DiModica, 40 N. J. 404 (1963) ; State v. Moffa, 36 N. J.

219 (1961); State v. Johnson, 28 N. J. 133, 143-144 (1958).

We directed oral argument on the sealleation.

For a period after the alleged murder deténdant was

confined to mental institution under a judgment that he

‘was unable. to ‘défend against the indictnient. See Farmer

_v. State, 42 N. J. 579 (1964). Psychiatrists have testifiga

that the defendant claims he blacked out before the kill-

ing, and defendant has filed with us an affidavit that:: ‘‘I

_eannot to this day recall any of the events of September

18,. 1963 which surround the alleged shooting at my honie

invalving’ my wife and me.’’ In the circumstances defense

counsel believes he cannot prepare for trial without the in-

spection he sought.

The State apparently is paieantlg concerned with the

possible. precedential influence of the order in other cases.

Beyond a belief that some tactical advantage inheres in |

withholding disclosure until trial, the prosecutor can see

no harm. In other words, the prosecution will not be ham-

- pered, and neither the grand jury testimony nor the state-

ments in question contain anything which should be sealed --

even at trial in the public interest. At the argument, the

possibility was suggested that the papers in question might «|

’ contain statements by third persons which could not aid

defendant. but: the disclosure of which might embarrass *

such third persons or others. In this regard counsel -for

3a |

Appendix a... “

‘

. Pe ;

'* defendant expressed his willingness to cooperate, and in

any event the trial court can order, a modification of its

order. We note also that the State does not suggest re-

lief should have: been conditioned upon a like disclosure by

' defendant of statements of his wit esses, and counsel for

defendant says. that in fact: he has nothing to exchange.

See State v. Cook, 43 N. J. 560, 568 (1965) ; State v. Whit.

low; 45 N. J. 2, 21 (1965).

Defendant’s application was addressed to the discretion

of ‘the trial court. In view of the unusual circumstances

of this case, we are not persuaded that the trial court erred

in his decision, Leave to appeal is-accordingly denied.

Proctor, J. (Dissenting)

I would grant the State leave to appeal from the inter-

locutory order of the trial court relaxing R.R. 3:3-7 and.

_ 3:d-11.

If this defendant may examine before trial grand jury

testimony, I can see no. reason why any defendant, who

alleges that he was ‘not either. physically or mentally at

the scene of the crime, would not be accorded similar dis-

covery. Such an abandonment by this Court of R.R. 3 :3-7,

which has its origins in the early history of the common

law, should be effected through the rule-making power, or

at least after an appeal has been fully heard; certainly

it should not be done.on a motion for leave to appeal from

an interlocutory order. The public policy behind R.R. 3:3-

7 is set forth ini State v. Clement, 40°N. J. 139, 143-144

(1963). See also United States v. Rose, 215 F. 2-617, 628- °

- +629 (3 Cir. 1954).

“Tf we are to change the policy, it should be done,

not by going beyond the rule in particular ease °

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FR PERE Le IS BW Spc tah REM Mg 290 9

Apoendia A

as here, but by amending after full review and re-

evaluation of the many considerations involved.’’

~ Justice Hall dissenting in State v. Moffa, 36 N. J.

*219 at 228 (1961).

See also my dissent in the sanie case at page 225.

I know of no case in this state where grand jury testi-

mony of witnesses has been given to the defense before

trial solely on the grounds that it would assist in the prep- ©

aration of defendant’s case. Cf. State v. Clement, supra,

and State v. Moffa, supra. Because of the protection af-

. forded a defendant by the procedure permitted in State v.

* DiModica, 40 N. J. 404, 408-11 (1963), the compelling cir- .

cumstances which would call for the relaxation. of R.R.

3:3-7 on the basis of “surprise or injustice’’ -(R.R. 1:27A),

are not here present. Indeed, State vy. DiModica goés fur-

ther in tempering the strict rule of grand jury secrecy in

the interest of a fair trial than the federal courts have

found necessary. See Pittsburgh Plate Glass Co. v. United

U.S. 395, 3 L. Ed. 2d 1323 (1959).-

A a statements of witnesses taken by the prosecutor,

. 33-11 expressly excepts such statements from the

scope of defendant’s pre-trial discovery. My discussion

above of the secrecy of grand jury testimony is likewise

applicable here. A rule such as R.R. 3:5-11, firmly grounded .

in long established policies, ‘should not be eroded without

‘ffull review and reevaluation of the many considerations

involved. -

et eee ‘APPENDIX B

( Opinion of Supreme Court al New Jersey—

Reported in 48 N. ‘J. 145)

Supreme Courr or New Jersey

Strate or New Jersey,

Plaintiff-Respondent

‘Vs. —

Cuarues F'arMer, | .

Defendant-Appellant.

Mr. Raymond A. Brown argued’ the cause ‘for appel-

lant.

Mr. John P. Kozak, Assistant. Prosecutor, argued the

_ ease for respondent (Mr. Edward J. Dolan, Middle-

sex County Prosecutor, attorney; Mr. Kozak on the.

brief ).’ ee

‘The opinion of the court was delivered by

“ Franois, J.

The issue to be @etermined here is whether the defense

of double jeopardy is available as a bar to the proposed’

retrial of the defendant for murder, A previous trial came

to an early abortive end when the trial court declared a

mistrial sua sponte and oyer the. objection of both State and

defendant. Thereafter defendant’s motion to dismiss the

ale

PIO LITE ET LT A PE

TRIES TE

Appendix B

indictment on the ground that he could not be placed in

. jeopardy again was denied. We granted leave to ver

from the denial.

On November 15, 1963 the Grand Jury. of Middlesex

County indicted defendant Charles Farmer for first degree

murder after he fatally shot his wife Barbara Farmer on

September 18, 1963. There is no doubt Farmer killed the

deceased, or that immediately thereafter and as part of the

incident he shot himsef. The principal defense to the indict-

ment appears to be that he was insane at the time of the

shooting.

After wounding himself Farmer was taken to St. Peter’s

General Hospital in New Brunswick, N. J. where he re-

mained under treatment for some time. On February 3,

1964, following a hearing which began on January 22, 1964,

“the Superior Court, Law Division, found him mentally in-

competent to stand trial, and committed him to. the State

hospital for the criminally insane. ‘See, Farmer v. State,

42, N. J. 579 (1964). Subsequently, on.May 25, 1965, again

after a hearing, the Law Division declared him mentally

fit for trial, and the State prepared to proceed.

On July 14, 1965, Farmer moved in the trial court sie an

order to permit pretrial discovery of the State’s case. Spe-

cifically he asked leave ‘‘(a) To inspect, copy and photo-

_ graph all statements, papers and confessions cqncerned with

: the within indictment. (b) To inspect and copy all those

grand jury minutes concerned with the within indictment. .

logical reports pertaining to the defendant. (qd) To inspect

and copy all: ballistic reports and paraffin reports made iy

- connection with any firearms allegedly used in connection

with the-death of Barbara Farmer. (e) To examine any

' Ta

Appendia B

and all firearms and instruments concerned with the within

indictment. (f) To inspect, copy and photograph all photo-

‘gfaphs concerned with the within indictment.: (g) To in-

spect and examine any clothing worn by Barbara Farmer

or Charles Farmer on September 18, 1963.’ Defendant’s

affidavit supporting the motion alleges that at least four

psychiatrists have stated he was insane at the time of the

commission of the alleged crime. It then proceeds: ‘‘For

the above reasons, I respectfully represent to the Court

that I have need to,examine all Grand Jury testimony given

before the Grand Ju ury of Middlesex County concerning my _

case in order that I may prepare for my trial along with

my attorney, who represents me upon this motion for ex-:

_ amining the Grand Jury testimony. ***> The focus of the

affidavit was on the grand jury minufes. It concluded as

follows:

“T have retained send who has vigorously i inves-

tigated this case and the difficult of acquiring facts

at this posture convinces me that examination of all

the Grand Jury testimony is essential to my de-

fense.’’

No specific reference was made to a need for examination

of statements of witnesses obtained by the State, or a re-

quest for copies of any such statements.

At ihe argument of the motion defense counsel not only

sought leave to examine the grand jury minutes; he pur-

sued also permission ‘to inspect, copy and photograph all

statements * * *’’ as indicated in paragraph (a) of the no-*

tice described above.. The argument of the parties although

_ not included in the appendix has been examined by us. In-

substanee defendant asserted by his attorney that he needed

the State’s statements of Witnesses because he eould not

Appendia B

recall the ‘circumstances of - the shooting.! See Farmer v.

State, supra, 42 N. J., at p. 582. Apparently because of the

insanity defense and the allegation of lack of memory of —

198 argument defense counsel said:

. “But we stand before the bar ready to go to trial with a

defendant’ whom, I think, it has to be admitted suffered am-

nesia and was insane at the time. I am before the bar of Jus-

‘, tice. I don’t know what happened. The State does know

: what happened. |

“Now, this I submit to your Honor is the showing of par-

ticularized need.

e ‘ @ -% a ae

“This man présent was not present. This man ‘physically

functioning was not functioning within the concept of the law

considered under the -interdict of a criminal charge.

“But here this man, insane, helpless, must ask the State for

aid. : ; * oS

“He must say, ‘Give me the statements: of those who are

going to appear against me. Give me that which will tell me

what I did.”

' “This might even inflffence a plea. I doubt it very much in

this case because of a plea of insanity, of course precludes

such a thing, but it might conceivably do so. * * *

: a

“Now, in this case Mr. Farmer was not present at the scene

of the crime. In body, yes; apparently as far as,any cogniz-

able ability, he had none. He was unaware of what was hap-

pening, unable to know what was right, wrong, unable to -

know and unable to repeat for his counsel or, to recall for him- |

self the event.”

( ree on Silleuitian page)

SS ite

ni Appendia B

the shooting, the trial court granted the motion and signed °

_a discovery order in the’ precise language set forth above.

as paragraphs,(a) through (g) of the notice. -In doing so

Judge Convery commented that the decision “wernt further

than any court has.’’ The ruling required a liberal view of

Revised Criminal Practice rule R.R. 3:3-7, and relaxation

of R.R. 3:5-11, infra.

The State sought leave to. appeal from ‘paragraphs (a)

and (b) of the order which gave leave eae

“*(a) To inspect, copy and photograph all state- -

ments, papers and confessions concerned with the

within indictment ; fee. .

(Continued from ‘preceding. page)

- Counsel then referred to his understanding, that a young attorney,

D. T. Hague, was present at the shootirig, and he suggested “this

man’s testimony is necessary to tell Mr. Farmer, now that he has

been declared competent, what happened -at that time and place.”

Further he suggested Rule 3:5-11 be relaxed and Farmer given “the

right to inspect the testimony of somegne who will, for the first time,

_be able to say to him, ‘Mr. Farmer, this is what happened’ because

she cannot have known.” Pe | | :

_In opposing thé mction, the prosecutor skid he stood ‘squarely on

State v. Johnson, in which the Supreme Court had, while requiring

inspection of defendant’s confession. denied access to the statements

ot witnesses. ‘That the prosecutor was thinking in terms of state-

ment of witnesses with respect to the criminal event seems plain. He

a ;

- “* * * And if you give’ the statements of other witnesses —

then the next step would be the work product of the police who

investigated it, their reports, * * *"

‘There was no specific discussion as to the exact significance or the

exact nature of the discovery. covered by the ordet.

10a o

Arend B

“«(b) To inspedt and copy all those grand jury -

minutes concerned with te ‘within’ indictment.’’

Because of the unusual nature of the case, we heard oral ar-

gument on the application, Thereafter and before our deci- .

sion was announced, defendant filed an affidavit stating: ‘‘I -

cannot’to this day recall any of the events of September 18,

‘1963 which surround the alleged shooting at my home in-

volving my wife and me.’’ ‘Thereupon we affirmed the trial

court’s order.; State v. Farmer, 45 N. J. 520 (1965).

When the trial judge observed that his decision went be-

. yond the holding of any of our cases, he was correct. In

recent years, however, discovery in criminal cases has been

. undergoing an‘ evolutionary process, undoubtedly stimu-

lated in large measure by the opinion of thé United States

Supreme Court in Jencks v. United States, 353 U. S. 657, 77

S. Ct. 1007, 1 L. Ed. 2d 1103 (1957).

[1] At the time of Jencks New Jersey had and still has

two practice rules relating to the matters involved here:

R.R. 3:3-7 provides :. a —.

‘¢The requirements as to secrecy of proceedings of

the aad jury shall remain as heretofore:”’ -

This rule sinned the traditional vpit with wile grand

“jury proceedings have been surr ounded. But within the past

few years we have lifted that veil on being satisfied under

the. circumstances of a particular case that the policy of.

secrecy should be subordinate to the search for the whole -

_ truth. See, for example, State v. Mucci, 25 N. J. 423 (1957) ;

State v.. Moffa, 36 N. J. 219 (1961); State v. Clement, -

N. J. 139 —— State. Vv. Farmer, supra.

lla

4 \

Appendia B /

Moreover, following Jencks, supra, the Court -held in -

State v. Hunt, 25 N. J. 514 (1958), that when a witness for

_ the State in a criminal proceeding testifies that prior to

taking the witness stand he had refreshed his recollection

. from notes made earlier by him or some other person, de-

fendant was entitled to have such notes produced for his

examination and use on cross-examination, if desired. The

opinion plainly indicated also that if the witness had made

notes or a statement prior to trial covering the topics of his

testimony, the tiotes or statement were likewise subject to

' defendant’s demand, even though the witness had not used

' them to refresh his recollection before trial. See State v..

_ Johnson, 28 N. J. 133, 143 (1958). | :

R.R. 3:5-11 says: .

‘‘Upon motion of a defendant made at any time

after the filing of. the indictment or accusation, the

court shall order thé prosecutor to permit the ‘de-

fendant to inspeé¢t and copy or photograph desig-

nated books, tangible objects, papers or documents

other than written statements .or confessions made

‘by the defendant obtained from or belonging to the

defendant and may, if the interests of justice so re-

quire, order the prosecutor to’ permit the defendant

to inspect~and: copy’ or photograph written state-

ments or confessions made: by the defendant and

designated books, tangible objects, papers or docu-

_ ments obtained from others: except written state-

ments or confessions.”’ (Emphasis added.)

We interpreted this rule to require the State to permit a

defendant to. inspect‘ and copy a confession allegedly made

by him. It was said that sueh disclosure, although not re-

12a

Appendiz B

quired constitutionally, clearly promoted the quest for

truth. State v. Johnson, 28 N..J. 133 (1958). Since that

‘. time’it has become routine practice for county prosecutors

“to supply a defendant with a copy of his confession, when-

ever such P request is made.

The defense motion in Johnson, however, had another as-

pect. It. sought leave to inspect” sahanite made by pros-

pective witnesses for the prosecution. On its face such ‘re-

, quest was squarely within the express proscription of R.R.

335-11, supra. “As noted above, we had already held in

State v. Hunt, supra;that during the trial and when a wit-

ness is on the stand, thie-prosecution must yield to defend-

ant’s demand for production, of any pertinent notes or

statements made or used by tl@~witness prior to the giv-

v ing of his testimony. See also, State*v.,Reynolds, 41 N.:J.

163, 182 (1963).~ But although we were awWare of the ongo-

ing agitation for broader discovery in criminal cases, and

-the arguments for and against such discovery, we felt it

_ unwise to abangén! or revise our rule ‘without fuller ex-

perience with the practical operation of Hunt and more

information with respect -to experiencé in other jurisdic-

tions in which pretrial disclosure exceeds’’ what had ‘been

‘authorized in New Jersey. State v. Johnson, 28 N. J., at

p. 143.. It was pointed out-further that Johnson had bees

no showing which would invite relaxation of R.R. 3:5-11

under the provisions of R.R. 1: 27A. - Finally the eiliiien

suggested that the problem should: be explored at a judi- .

cial conference at such appropriate time in.the future when

all considerations relevant to the just and proper -adminis-

‘tgation of the criminal law could be presented.

Study of the pr oblem continued until another aspect of it

was submitted for judicial determination. In State v. Tate,

a ee LO LE LA TG Ey eee iE Cp a nn iain te

13a

Appendix Be ; 4

f . . &

47 N. J. 352 (1966), this Court decided that under the ‘cir- :

cumstances presented the defendant was not entitled to an

order to compel certain State’s witnesses (who were to be

produced at the trial) to testify on depositions in advance

of trial. In that opinion the bar was advised of the sched- -

uling of a Judicial Seminar in September 1966 to be open

to all who might contribute to solution of the problem of

discovery i in criminal cases. The Seminar was held and the

material presented is being assembled for this Court’ S con-

sideration. 89 N. J: L. J. 613 (1966). =

ah i

The development of discovery: in er iminal cases has been

outlined not. only to show its evolution in‘our State, but also

to indicate that the major controversy has centered around

efforts on the part of the defense to obtain copies of the

statements of the State’s witnesses, who saw the crime

committed or who furnished information tending to estab-

lish defendant’s criminal participation in it. There is no

reported case.in our State-in which-the defendant. moved

-for or Was allowed inspection of ' investigation reports of

police or detectives, or summaries of such reports, or re-

ports or written .opinions of such persons or members of

the prosecuton’s staff as to the guilt or ‘innocence of = oo

accused. Matters of that nature, which are generally.

thought. of as ‘‘work produet,’? have been free from in-

speetion demands. Tt was in this legal milieu that Farmer

moved-for the &bneralized and unspecific. discovery set out

in paragraph (a) of his notice. |

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Whéh the motion w as argued in the vial court, and the

propricty of the resulting order argued in thix. Court, it

was obyious that the foeus of the collective minds was on

the right of the defend&nt to inspect and copy the signed -

or unsigned statements of the State’s witnesses, in the

. »

LER OMP AT ORE TENET KSEMO PH ee)

. . - a

lda

Appendix B

sense that such statements were thought of ordinarily.

‘That is, attention was on statements signed or unsigned

taken by police authorities from witnesses. relating to the

criminal incident itself, rather than on statements or re-

ports of police officers concerning matters which occurred

after the shooting and which were not directly associated

with it. This is evidenced by defendant’s affidavit in this

Court that he could not recall any of the events wlfich sur-

rounded the ‘‘alleged shooting at my home, involving my

wife and me.’’’ Also, our per curiam opinion denying leave

to appeal from the order recites that the ‘‘State seeks to

appeal from an interlocutory order granting defendant

_ pretrial discovery of. grand jury testimony and statements ©

taken by the prosecutor from persons other than. defend-

ant.’? State v. Farmer, supra, 45 N.'J., at p. 521. More-

over, in the latest case of State v. ‘Tate, supra, when the

Chief Justice was speaking of the various types of dis- -

covery we had sanctioned pr eo meery, he desé¢ribed the Far-

mer holding as follows:

‘‘Where, because of insanity, a defendant: was un-

able to aid his counsel in reconstructing the criminal

event, we ordered the State to permit -pretrial in-

spection of both grand jury testimony and state-

ments taken by the State from persons other ‘than

the defendant.’’ (47 N. J., at p. 355; emphasis

added) |

All of the above discussion is not set downto demonstrate

that the prosecutor’s interpretation of the seope of his ob-

ligation under the discovery order (which precipitated the

controversy now before us), was correct. ..The purpose is

simply to reveal the climate in which he was talled upon to

construe the order. Although we agree that his interpreta-

15a

Appendia BD

tion was incorrect in the light of its‘broad and unrestrained

language, that climate is significant in evaluating his good

faith. Basically the difficulty arose when the prosecutor

consented to the form of the order prepared by defense

counsel, which granted leave:

‘“(a) To inspect, ‘copy and sige all siaiies

ments, papers and confessions concerned with the

within indictment.” :

‘

If there had’ been insistence upon more specificity in the

light of the argument, the difficulty might not have arisen.

In any event, after the execution of the broad order, the ~

prosecutor delivered to defense counsel the testimony of

the witnesses before the grand jury, copies of signed state-

ments of five witnesses and copies of the notes of oral state-

ments of several other witnesses. These statements squared .

vith the notion that defendant was to.be aided in the recon-

struction of the criminal event.

On January 4, 1966 trial of the indictment commenced

with the impaneling of a jury. As the jurors were drawn ,

and voir dire interrogation began, it was made clear by the

State that reliance was to be pene on the testimony of lay

witnesses to establish Farmer’s legal sanity and therefore

his criminal responsibility for the erime. For some reason,

which is of no moment on this appeal, a mistrial was de-

elared by consent of. the parties. Thereafter, there was.an

interval of 13 days before the cause was again.reached for

trial. During that period the defense knew the progecu-

tion intended to rely in rebuttal on lay testimony to pop

Farmer’s sanity. (See State v. Whitlow, 45 N. J. 3, 23

(1965)). Counsel knew also that he had not aes’ fur-

nished with any signed statements or notes of oral state-

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16a

- Appendia B

-_ments of any such witnesses. Yet the record reveals no

evidence of a demand for the names of such witnesses or -

. their statements. A permissible inference is that experi-

_ enced counsel construed the discovery order, in this respect

at least, in’the same fashion as the pr oscenter.

Drawing the jury for the second trial began on January

17, 1966, and two weeks were consumed before the full pahel

of 14 jurors was: completed. During the voir. dire interro-

gation it again appeared that the State would rely on lay

‘testimony in rebuttal to prove defendant’s sanity. The >

trial judge in his memorandum denying the later double

jeopardy plea recognized this. He said:

‘s* * * (S]uch voir dire disclosed that the state

apparently had no contrary professional psychiatric

testimony [to defendant’s claim of insanity] but -

would rely entirely upon lay opinion as ‘to the de-

fendant’s sanity.’’ (insertion ours)

. At defendant’s request during the voir dire, the State

gave him a list of the witnesses it intended to call at the

trial. This was done so an.inquiry could be made of each

prospective juror as he was called as to whether he knew

any of those witnesses. The list included the lay witnesses,

most of them police officers, who were to be called by the

State in rebuttal on the issue of insanity. Defendant’s at-

torney then knew that no signed or unsigned statements of

these persons had been furnished to him. Yet at no time

during the two. weeks of jury selection or after the intro-

_ duction of testimony and exhibits began, until the impasse -

~ to be discussed later was reached, does the record reveal

that he called this fact to the attention of the judge or |

‘made a motion that their statements; if any, be delivered

17a

_ Appendia B

. . to him, or that the suggestion was adyaiced that such state-

»ments were within the scope of the discovery order. More-

over, when the jury had been completed and sworn, the

State and defense presented their openings. Again the

assistant prosecutor made it plain that in meeting the claim

of insanity. the State would produce and would rely upon

the testimony of lay witnesses to counteract professional

psychiatric evidence to be offered by defendant. The sig-

nificance of this emphasis on lay testimony could not have

.escaped defense notice; nor can it be deemed likely that the

defense did not realize that witnesses would be called. in

addition to those whose statements had been turned | over

to defendant.

At this point, even though this senda is from an inter-

locutory order and the factual record is therefore incom-

plete, it seems ‘advisable to digress from the trial proceed-

ing in order to refer to certain background material which

beyond question was known to the defense.

- For some time before the shooting marital discord existed

between Farmer and his wife Barbara. Civil litigation was .

' pending between them in which each was represented by

counsel. In one pending aetion Farmer was seeking to have

his wife declared mentally incompetent. On August 16,

1963, Farmer’s attorneys in the eivil pr oceedings engaged

Pinkerton’s National Detective Ageney to provide guards

on the Farmer premises each night thereafter from 8 p.m.

to.7a.m. to deny entrance to Mrs. Farmer and certain. other

persons. In addition, the attorneys obtained an.or der from

the county judge, who later tried the homicide case, re-

straining Mrs. Farmer from entering the building thereon,

which was a combination residence and office. Thereafter,

and until September 18, the day of the }omicide, the Pink-

erton guards performed the required night duty.

apes Ne) He POE LOM TE EM RE LOE ICO a A 8

. :

18a

: Appendia B

On September 18 at about 5 p.m., by arrangement between -

the attorneys for Mr. and Mrs.-Farmer, Mrs. Farmer in

company with Douglas T. Hague, an associate with the law

firm representing her, and some other persons, went to the

premises to pick up some of her belongings. On arrival

there Mrs. Farmer and the attorney walked upstairs to a

second floor bedroom. Mr. Farmer followed them into the _

room and some words were exchanged. While she was en-

gaged in gathering her clothing and while the attorney was

still in the room, Farmer shot her and then turned the gun

on himself. The police and. Pinkerton representatives ap-

peared on the scene within a very short time thereafter.

We return now to the trial and the outline of its progress

after the opening. The State called two witnesses, one a

member of the local police department, the other an identi-

fication officer attached to the prosecutor’s staff. They de-

scribed the Farmér premises generally and the bedroom

“wherein the shooting occurred.. They identified a number

of relevant photographs including some showing the bodies |

of the defendant and his wife on the bedroom floor: shortly

after the fatal event.

Then a Sergeant Ear! F. Kichler of the local satis: de-

partment was produced. He and Officer Harry Emmons

arrived at the Farmer residence a very few minutes after

the fatal shooting, and while Mr. and Mrs. Farmer were

lying on the floor of the bedroom. On reaching the second

floor Eichler was handed a sweater by Hague. It. was

“wrapped around a revolver. Continuing into the bedroom-

he found Farmer lying on the floor with his head on a pik

low. Sergeant John Revie of the Pinkerton Agency was

kneeling to the right of him. Mrs. Farmer was lying on

the floor with ‘a portion of the upper part ef her body in

Son mitante haa nat Sa neste

19.

_. Appendia B

the clothes closet and the remainder in the bedroom. Kichler |

went to the left side of Farmer; Hague. was alongside

_ Kichler. Farmer’s eyes were open and he was conscious.

At.this point in the assistant prosecutor’s examination it

appeared that Hague had made a statement to Eichler

which Farmer had answered or commented upon. Defense

counsel objected and, after the jury was excused, he said

that the prosecutor had not given. him any statement from

Kichler prior to trial, as he was required: to do under: the

discovery order which we have diseussed above. ~*

The assistant prosecutor replied that he did not have

what he considered a statement from Wichler within ‘ the

meaning of the order. He did have a. three-page report

from Eichler entitled, ‘‘Supplementary Offense Report—

Department of Police,” made to His superior on the day

of the shooting, and later made available to the prosecu-

tor’s office. It set forth the circumstances under which he

was sént to. the Farmer premises, the officers who accom-

panied him there and what he saw and heard while there,

particularly the comment of Farmer in the presence of

Hague and the Pinkerton man which he was about to tes- -

tify to when the defense objection came. The report re- :

ferred. to a number of other persons who responded to ~

Kichler’s telephone call, such as a doctor, members of the

local rescue squad who. removed Farmer to the hospital,

additional police officers and representatives of the prose-

cutor’s office, who.took pietures and measutements. It

listed a number of articles, considered material to the ease,

such as a revolver and an automatic: pistol, cartridges, a

shoulder holster, ete., as well as objects, such as jewelry and

the like, removed from Mrs. Farmer’s body, and her hand-

bag and its contents. It reported’ finally that all of the ar- °°

OE nen te eee ee ee - Pam en

a ° s 20a

. Appendia B

ticles were delivered to police headquarters and locked in .

the safe. .The first page of this jo ropes was signed ua Ser-

- geant Hichler. .

During the argument as to whether Wichler’s oblast |

should’ have been furnished to defendant in advance of

trial, in. ‘answer to/ court questions it appeared that fhe

prosecutor had in his file a number of signed and unsigned _

reports of police officers and sheriff’s officers.. As it later

appeared when produced, they referred to investigational

efforts and other activity, such as guarding Farmer ‘during

his stay in the hospital; copies of reports and statements -

given by Pinkerton operatives to their superiors and per-

haps some statements of Pinkerton men given directly:to

the police; and affidavits and one signed statement of Ser-

geant John Revie, the Pinkerton officer who’ was‘on the

premises in the Farmer employ when the shooting occurred.

One, a lengthy affidavit dated September 26, 1963 covered,

among other things, Revie’s version of the conversation in

the bedroom which Sergeant Eichler was about to describe

when the objection came; the jurat thereto was taken by

an attorney associated With the office of Farmer’ s attor-

neys.. Some of the documents were summaries of the in-

vestigation and the case, prepared either by local police

and delivered to the prosecutor or by a detective on the

prosecutor’s staff. Two of the other three Revie ‘affidavits

were made before.'the homicide occurred and outlined his _

activities on the Farmer premises, including an account of

ar alleged unpleasant visit there by Mrs.-Farmer on Au-

gust 28, 1963. The jurats on these affidavits were signed

by attorneys representing Farmer, and of course were in

their possession, before the shooting. The fourth. state-

ment, undated but undoubtedly signed very shortly after

Any 0 2 ot aia Sim ta eri napha se Skies

21a

Appendia B

‘the shooting, is designated a ‘*report * * * relative to the

incident * * * on September 18, 1963”? apparently made to

the Pinkerton Agency. . It covers substantially the same

‘material as appears in the lengthy Revie affidavit already

described, sworn to before one of Farmer’s attorneys.

2 The State had already delivered to the defense Revie’s lengthy

testimony. before the.grand jury. In addition the State had turned

over at the same time a 19-page statement of Revie in question and

answer form madé within a few hours after the shooting. In that

statement. Revie said he had given “depositions” previous to the

‘shooting to Farmer’s law firm, about matters occurring during his

guard duty on the Farmer estate. These “depositions” undoubtedly ...

are the Revie affidavits of August 29 and September 4, 1963 prepared

.by.and sworn to before Farmer’s attorneys. Copies of them. were

among the papers submitted to defendant ‘at {the trial. Moreover, on

Revie’s grand.jury appearance he said he had talked about the case

on two occasions with Farmer’s attorney (not present defense coun-

sel) before testifying. Therefore, Revie’s knowledge. of the case was

thoroughly in the hands of the defense before trial, and it is unlikely

in the extreme that Farmer suffered any prejudice in not receiving

the additional and largely repetitive statements about the: criminal

event and the circumstances preceding it,

The. report of Officer . Engel delivered at the trial referred to a

comment made by. Farmer after the shooting and while he was lying

_ on the floor, apparently in answer to'a comment by the witness Hague .

‘which Farmer overheard. Farmer’s alleged remark in the report ap-

_ pears to be the anly fact of any Consequence not contained in testi- °. :

“mony or other statements already in the defense possession before

trial. But the defense did have before trial Hague's extensive testi-

mony before the grand jury as well as his full 36-page statement in:

question’ and answer form made about two hours after the shooting. .

One of the police reports furnished at the trial and complained

about by defendant was made on August 24, 1965. and described the

purchase of the fatal gun by defendant from one Hoey in the .pres-

(Continued on following page)

we Sa

bt a tll is alice

ERT OPK RT

PCa ahaha Rh ib ie ee Sloe Ad eerie bhieonmnan Worble ee < " i vadaltiene..c4 &. w [eee

22a

Appendia B

Included among these papers-was an unsigned memoran- .

dum to the prosecutor dated May 26, 1965, a year and a half

after the.event, noting an unsolicited conversation with one.

of Farmer’s daughters. At oral argument we were ad-

vised that the State did not intend to call her as a witness. |

- Ineluded: also were a number of reports and statements

‘from police officers and sheriff’s men who had been detailed

to guard Farmer’s. room during his stay in the hospital.

They seem to be the ones most seriously objected to by de-

fense counsel. They reported Farmer's condition in the

hospital, his physical and mental activity while: there, his

conversatians with the officers and others,\such as members

‘\ of his family, his attorneys and an officer: of his engineer-"

jng company. It appears also from these reports that dur-

( Continued from preceding page )

» ence of Viekorees agent ‘Secliws. This was ‘not news to + aeleene

~ counsel. \ Ini Revie’s testimony before the grand jury he talked of

' Farmer’s application for a permit to buy a gun and his purchase of

it on September 13, five days before the fatality. Additignally, in the

ballistics report furnished to defense counsel'six months before trial,

a notation appears that-the revolver examined was purchased by

Farmer on September 13, 1963 from Frank Efinger. (The police

report showed the me of purchase as Efinger’s Sporting Goods.

Inc.) * We .

Other police reports delivered at the trial were in | large measure —

investigation summaries, repetitive of material already in the defense: —

possession, and*not particularly significant otherwise. However, a

-number of them, as has been said, reported on the officers’ »bserva-

tions of, conversations with and activities of Farmer in the hospital

after he shot himself. There is no doubt they contained substantial

2 material relevant to the issue of insanity later projected as a defense

by Farmer.: It is clear that under. the discovery order the defense

should have had them before trial.

. | 23a

.Appendia B«

ing the early part of the hospital confinement, at the re-

quest of Farmer’s attorneys, Pinkerton men also were ‘sta-

tioned in the hospital room.

The above outline is intended to indicate the nature of.

‘ the reports and statements which had not been delivered to

the defense in advance’ of trial. No attempt has been made

to set down their content in precise detail.

ee te el

While Kichler was on tlie witness stand and before any-

‘examination of the reports and statemeits by the court or

defense counsel, the judge expressed the view that, because

of the allegation of lack of recollection on Farmer’s part,

- | they constituted ‘‘statements,”’ or ‘‘papers’’ within the

_ broad scope of paragraph (a) of the dis ‘covery order, and

should have been turned over to the defense prior to- trial.

The judge inquired as tothe number of such papers which

were in the State’s file. He was told there were ‘quite _

a number. 7 fact 28 were produced.) 7 the follow-

in@ took place ::

“<The Court: When do you want them?

Mr. Brown: Now, sir.

The Court: Do you want a mistrial now? .

Mr. Brown: | am not moving for it. My gosh,

[ The Court: Well, I don’t want one. °

ery Mr. Brown: I don’t know why the Prosecutor ean-

| not cure this. If your Honor is in accord with my

argument I would be content if there are quite a few

to hav e them delivered to me now’ so that I ean de:

termite how fone it would take me {0 examine them

and ‘have the. trial continue at this. point, subject

to what I discover. I haye no purpose in pressing

~for a mistrial. | |

ees

~ 7. ) oe

Appendia B

- | further wish to state I limit my argumeyit to the

. conditions of what I consider an order of the Su-

‘preme Court. 1 cast no aspersions on anyone.’’

At this time the court examined Sergeant HKichler’s re-

port and suggested that it should have been made availablg ©

to defendant. In reply the assistant prosecutor said it

was his view that such repor ts. were of the type which un- ..

- der State v.. Hunt must merely be made available to the

| defendant at trial for cross-examination of the witnesses.

After some short colloquy Mr. Brown said:

‘"«Well, your Honor, if the Prosecutor refuses to

give me the. paper then I have no storaative but to

press for a ‘mistrial.

. *, “sa want to make clear to your Honor that I do

» - not press or push anybody, but ‘if I don’t get what

| the order says then | will ask for a mistrial.’ —

Counsel declined to proceed with the cross-examination of |

Kichler. or to let.the trial proceed any further until he re-

ceived all the statements and reports. He said:

‘‘Well, I object to proceeding with any other wit-

ness if I am to be limited in that way [referring to

the State’s offer to use other witnesses, and not to

_introduce ‘any matter contained in a report until all

papers were given to him]. I will therefore request

a mistrial ‘because thie Prosecutor has not obeyed the

er. order of the court.

>“*T ask for everything he has got. I ask for it now.

I ‘ask your Honor to permit me to have it prior to

continuing, and if your Honor does not see fit and

. Tules in aceordance with that, I ness ask for a mis-

* trial.

25a

Appendia B

“*T don’t wish to press it, but that is my position.’’ ~

(Insertion ours. )

. Thereafter the assistant prosecutor said:

‘Well, I’m the last one, your Honor, next to Mr.

Brown, who wants a mistrial’ to occur in this ease.

We have spent too much time on it already.’?

A recess was taken until: the following morning to permit

} the State to remove the pertinent papers from the file and

deliver them to the defense that afternoon. The State made~™

the delivery, except for the copies of the Pinkerton Agency

report and statements of its operators to their superiors

(described above) concerning their activities, on behalf of

‘Farmer prior to the fatal event. Appar ently the assistant

~prosecutor was not familiar with them but, since they had

_ been ‘‘specifically requested,’’ a search disclosed them in -

the office and they were’ given to Mr. Brown, presumably

on February 3.

- When the tr ial Was resumed, spparentiy: two days later,

_ February 3, defense counsel moved to suppress all of the

evidence disclosed by the stateménts and reports, -and all .

evidence which ‘would flow”? from them. And he said that

if the court declined-to suppress, then he moved for an

acquittal. A lengthy argument followed in which the prose-

eutor was charged with double dealing and violating the

discovery order and doing so contumaciously and in bad

faith in ‘failing’ to turn over the reports and statements long

before trial. At a subsequent’ point-he said he intended

* no personal attack on the prosecutor’s ‘‘ethies, his char- .

_aeter or his ability and-if this was-se construed I owe Mr.

Dolan an apology.’? He explained that the terms contu-

“s

‘5

Sais tak © Val SEG Sor

26a

Appendix B

macious and bad faith were used in the ‘‘légal sense’’ as

expressed in the cases. -The assistant prosecutor denied

there had been any attempt or intent to violate the dis-—

‘covery order. He and the prosecutor had discussed the

matter. The prosécutor who had’argued the*propriety of ©

the order in this Court advised him that the turning over

of police reports was never mentioned. They concluded

on the basis of the previous state of the law, the practice

rule, R.R. 3:5-11, supra, and the argument of the motion ©

in the trial court and Supreme Court, that such reports

were not intended to be included.

- After the trial court had indicated disagreement with the

State’s construction of the order, the assistant prosecutor

said: =

‘«* * *'T concede *that within the amuiark of the

first paragraph of the Order, where it refers to the .

statements, confessions and: papers, that is broad

enough in the abstract to cover each and every one

of these statements which were turned over to Mr..

Brown [two days previously]. In ary event, this

was examined very carefully, this entire aspect was

examined very carefully, before certain documents

were turned over to Mr. Brown pursuant to the court

order retidered by Judge Convery, and it was our

thought at-the time—and -again I represent to this

court that this was not done with any idea of chi- -

eanery, of double dealing, of cutting corners, but

on the honest conclusion that we were riot required

to submit to counsel for the defendant-police reports

rendered during the course of the investigation of |

the homicide and during the course of. guard duty

performed’ by the Highland Park Police and the

Sheriff’s officers.

27a

Appendia B

‘‘We felt then and we felt until two days ago

that these reports would be readily available to each

of these witnesses as the time for cross-examination

appreached, and that, of course, would be.in com-

plete consonance with the Supreme Court decision

in ‘State vs. Hunt, subsequently affirmed in other

cases * * *9)9 ‘

He called to the court’s attention further that while he was

preparing the case for trial he and Mr. Brown had dis-

cussed whether he was required to advise Mr. Brown of -

any pertinent information communicated to him orally by

’ prospective witnesses, which he had not already furnished

the defense. . This had resulted in a pretrial motion for a

ruling on the matter. After argument the trial judge .had

sustained the State’s position that any such oral statements

need not be given defendant in advance’ of ‘trial. The

question of duty to deliver police reports of the nature —

which later created the mistrial problem Was not pre-

sented at that time. Even though the court found at the

trial that the prosecutor had acted in good faith with re-

spect to these reports, the mistrial probably would have

been avoided had he-sought-a pretrial ruling on the matter.

As the argument proceeded at the trial, the State sug-

gested.a recess be taken to enable the defense to make any

invstigation ‘or further preparation considered neeessary

as a result of the reports. The assistant prosecutor of.

fered to produce ‘fevery one” of the persons who made

- them at a place convenient for defense counsel so that he

could interrogate them privately and without’ limitation.

~ Mr. Brown declined the offer and advised the court it was

impossible to say how mucli time would be ‘required to do

28a

Appendix B

what ought to be done or. might develop to be necessary

once his investigation had begun. He felt the defense had

been prejudiced by the State’s disregard, of the discovery

order, and the prejudice could not be removed by an at-

tempt td do a hasty job of investigating, preparing for and

meeting the information revealed by the withheld reports.

Although it is probable that the persons making the re-

ports and the other persons mentioned. therein were acces-

‘. sible and many of them known to defense (such as Pinker-

ton agents, defendant’s attorneys, Farmer’s company en-

gineer and others who visited him at the hospital), and

‘probably available for interview on short notice, and others

such as police officers and, prosecutor’s: representatives

could have been produced quickly for interrogation, it can- -

not be said in fairness or with any degree of certainty

that forcing a recess and such a course of hasty prepara-

tion upon the defense would have been consistent with the

due administration of justice. The trial judge, who was

fully acquainted with all the facts and circumstances, felt

it would be unfair to defendant to push him into a-trial

recess and an immediate investigation, and that his inter-

ests required a more protective course of action. He in-

dicated a feeling also that to continue the trial, requiring

. defendant to meet as best he could the material covered by

‘the police reports, would probably result in a reversal. en_

appeal if defendant were convicted: On the other hand,

since the information contained in the reports was of great

importance to,the State, particularly on the issue of sanity,

to grant defendant’s motion to suppress them and any évi- |

dence flowing from them would prevent a meaningful trial

and probably result in‘a judgment of acquittal at the close

of anal prosecution’ s casé or in a jury y verdict of. acquittal.

29a

' Appendia B

Inquiz y by the court for the parties’. views about a mis-

' trial revealed opposition by the State. Likewise, the de-

fendant, who had insisted earlier that he-wanted a mis-

trial if the reports were not furnished to him before the.

trial proceeded any further, now having received and ex-

‘amined them, opposed a mistrial as well as the proposed

recess to permit investigation, and continued to press his -

‘motion to’ suppress them. After a recess, the judge de-

clared he was satisfied the failure of the State to submit ..

the reports to the defendant was the result of a misin-

terpretation of the discovery order and not a deliberate at-

tempt to deny defendant the information contained therein.

‘’ He went on to announce his ‘conviction (1 ) that it would not

' be practical to recess the trial to permit time for investi-

- gation of the reports and preparation by the defendant to

meet them, ( 2) that to strike the evidence revealed _by them

would prevent a ‘‘meaningful trial,’’ and (3) that.to allow

the case to proceed without excluding that evidence would

be ‘‘completely unfair to the defendant. Accordingly, over

objection of both defendant and fhe State he.was ‘‘re-

luctantly’’ declaring a mistrial.

A few weeks later defendant moved for a disiatenad of

the indictment on the ground that.a new trial aould place .

him: in double jeopardy in violation of the Fifth Amend-

ment to the United States Constitution; and of Article I,

paragraph 11 of the New Jersey Constitution. The mo-

tion was deiied in a written opinion in whieh the trial judge

reiterated his: belief that the pr osecutor had acted in good

faith in interpreting the discovery order. He declared

further that, even though the prosecntor’s interpretation

Was erroneous and must be regarded as the producing

- cause Of the mistrial, under all the circumstances of the

case it would not be fundamentally waists to require retrial |

of te defendant.

PR RPE A Net VrwOe 189

30a

. Appendia B .

[2] One of tine most’ basic ‘iichite possessed by the people

of this State and of the United States is freedom from be-

ing put in jeopardy a second time for the same criminal —

offense: State. v. Roller, 29 N. J. 339 (1959). This princi- ©

ple, which grew into the common, law and became rooted in

tradition and gonscience, was embodied in our Constitu-

tions of 1844, Art. I, par. 10, and of 1947, Art. I, par. 11.

Both paragraphs prohibit the trial of a person after ac- . |

quittal for the same offense. The Fifth Amendment to

the United States Constitution expresses the common law

- prohibition in more general terms, 7.e., ‘‘* * * nor shall any

person be subject for the same offense to be twice: put in

jeopardy ‘of life or limb.’’ In the light’of historical evo-

lution and.treatment, the difference in.language in the

context of the present case is without distinction in mean-

ing. The clauses are coextensive in application. State v.

| Wolf, 46 N. J. 301 (1966); State v.. Williams, 30 N. J. 105

-(1959).

[3, 4] The State contended and the trial court as

citing Brock v. State of North Carolina, 344 U. S. 424, 73

* 8. Ct. 349, 97 L. Ed. 456 (1952), that the double jeopardy

provision of the Fifth Amendment applies only to the Fed-

eral government and operates on criminal prosecutions

within that sphere alone. Assuming the contention were

correct it’ would be of no particular significance. As we

have said, the provisions of the two Constitutions, State

and Federal, noted above, are coextensive in principle and

scope, and so the views of the United States. Supreme |

Court on double Jeopardy, even if not controlling, would

be influential and persuasive. State v. Willtams, supra,

30 N. J. at p. 122.. Moreover, much water has passed | over

3la °

Appendix B p

the dam since brock y. State of North Carolina and in view *

of the more’ recent cases in that Court little doubt remains

that the double jeopardy, clause of the Fifth. Amendment

‘is binding on the’ States, by virtue of the Fourteenth

Amendment. See, Mapp v. Ohio, 367 U. S. 643, 81 §. Ct.

1684, 6 L. Ed. 2d 1081, (1961) ;' Gideon v. Wainwright, 372

U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Griffin v.

State of California; 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed.

2d 106 (1965), and concurring opinion of Justice Harlan,

' 880 U. S., at pp. 615-617, 85 S. Ct, at pp. 1233—1234

(1965) ; Miraiida v. State of Arizona; 384 U. S. 436, 86 S.

Ct. 2602,.16 L. Ed. 2d 694, 717 (1966). Although these

cases do not involve the double jeopardy clause, they clear-

ly reveal a disposition on the part of the Court to regard

protection of all of the basic rights encompassed by the

Fifth Amendment. as the inescapable obligation of both |

State and Federal sovereignties.

[5] In order for the defense of double or former jeopar-

dy to be available to an accused, it is not necessary that -

the previous criminal trial terminate in a verdict of not

guilty. The term ‘‘acquittal’’? in our Constitution has a

much broader significance. Under well- established princi-

ples s, Jeopar dy attaches to a defendant.when he is put on

trial in a court of competent jurisdiction upon a valid in-.

dictment and a jury is-empaneled and sworn to determine

the issue of his guilt or innocence of the crime charged.

‘Thereafter, ordinarily, he is. entitled to have the trial

proceed to its normal conclusion, i.e., judgement by the court

or verdict of the jury.. If the jury is discharged before

that time without his consent or without legal justifiea-

‘tion,. the abortive ending: is reap haps to acquittal and

bars’ retrial. State v. Romeo, 43 N. J. 188 (1964) ; State v.

Williams, supra; State v. Locklear,16 N. J. 232 (1954).

Aalhos > ine? We tee ove.

tee bens amoune

82a

Appendix B

[6] The requirement for ¢gompletion of a tridl once be-

gun is not an inexorable one, admitting of no qualifications

or exgeptions. The rule against double jeopardy does not

signify that every time a defendant is put on trial before

an appropriate court he is entitled to go free if the trial

falls short of final judgment.’ Such a doctrine, the United

States Supreme Court said in Wade v. Hunter, 336 U.S.

684, 69 S. Ct. 834, 93 L. Ed. 974 (1949), would create an

insuperable obstacle to the administration of jusfice in

many cases where there is no semblance of the oppressive

practices at which the double jeopardy provision is aimed.

~ It was recognized there that in some unusual instances a

defendant’s right to have his trial completed by a partic-

ular tribunal must be subordinated to the public interest. in

fair trials designed to end in just judgments. 336 U: S.

at pp. 688-689, 69 S. Ct., at pp. 836-837. In Wade the Court

quoted as follows from United States v. Perez, 22 U.S. (9

Whéat.) 579, 580, 6 L. Ed. 165, decided. in 1824, which has

been regarded ever since as establishing the test for de-

_ termining whether an early termination justifies a plea of

double jeopardy :

“8 *.* We think, that in all cases of this nature,

the law has invested Courts of: justice with the au- |

thority to discharge a jury. from giving any verdict

whenever, in their opinion, taking all the cireum-

stances into consideration, there is a manifest

necessity for the act, or the ends of public Justice

would otherwise be defeated. ‘They are to exercise

u<ound discretion on the subject;.and it is impos-_

sible to Uefine all the circumstances, which would =.)

refider 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. obvi-

33a

Appendia B:

ous causes; dnd, 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 ‘dis-

' charge; and the security which the-publie 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. * * *’ 336 U. S., at pp. 689-690, 69 S: Ct.,

at p. 837... = .

[7, 8] Jn succeeding years since Perez, the rubrie ‘of

‘“‘manifest necessity,’’ by which the exercise of a trial

judge’s discretion in granting’ a mistrial without defend-

ant’s consent was to be tested, has been expressed in varied

ways. Discontinuance of a trial is proper if under the cir-

cumstances the ‘‘ends of justice will be best served"? there-

by; if ‘‘[j]ustice to either or both. parties [indicates] to

the wise diseretion of the trial Judge that he declare a mis-

trial and require the defendant to stand trial before an-

other jury.’’ Brock vy. State of North ( ‘arolina, supra, 344.

U.S., at p. 427, 73 S. Ct., at p. 391; if the circumstances sat- _

isfy the dispassionate judgment of the trial judge that an ;

‘“‘urgent necessity’? exists for a mistrial and the ends of ©

public justice will be accommodated ; Wade vy. Hunter,

. supra, 336 U. S., at pp. 690-691, 69 S. Ct, at pp. 837-838:

if the cireumstanees convince his sensitive and experi-.

enced judgment that’ an ‘imperious . necessity’’. for dis-

continuing the trial has come into being; Downum v. United

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

102 (1963); if the cireumstances ereate an ‘‘absolute or an —

overriding necessity’? or “sufficient legal“reason’’ for the

mistrial; State y. Locklear, supra, 16 N. J., at p. 243..° The

34a

s Appendia B r

‘important. and relevant conclision to be drawn from the

cases is that uo hard and fast or mechanistically applied

rule exists which compels a finding of. double jeopardy

whenever a criminal trial in progress is discontinued,- or

which suggests that every time such.a trial begins, the de-

fendant is entitled to go free if the trial does not end ina. -

final judgment. Gori v. United States, 367 U.S. 364, 81 S.

Ct. 1523, 6 L. Ed. 2d 901 (1961). A wide range of disere-

tion is recognized in the trial judge, who has his finger

on the pulse of the proceedings. If in his judgment emer- |

gent conditions come into being which persuade*him that

the ends of justice for. the defendant and the State cannot

be achieved without aborting the trial, neither the Federal

nor the State Constitution proseribes:. such an-order.. This

is particularly true where the circumstances which to him.

compel the order do not “bespeak bad faith or oppressive

conduct by the prosecution or a desire or effort to improve

the chances of conviction at a subséquent trial. See United

States v. Tateo, 377 U. S. 463; 468, fn. 3, 84S. Ct. 1587, 12

L. Ed. 2d 448, 452 (1964). In this sensitive area appellate

eourts;must realize that under our‘system the conduct of

a trial is committed to the trial judge, and that in apprais-

ing the exercise .of: his discretionary, action -a wise and

tolerant restraint must be practiced if the separate levels

of ‘the judicial process are to be. maintained. And appel-

late reluctance to interfere with a sua sponte declaration

_ of a mistrial should be.even more pronounced where it'is _

. plain that a primary motive for the trial judge’ S course °

was solicitude for the defendant’s interests. Gori v. United ©

States, supra; Scott v..United States, 91 U. S. App. D. C.

232, 202 F. 2d 354 (D. C. Cit. 1952) ; United States Vv. Giles,

19 F. Supp. 1009 (W. D. Okla. 1987), |

Appendiz B

*. Obviously there can. be no cataloguing of events or con-

duct which, without more, will require’ a-holding -of double

jeopardy when‘a mistrial is ordered without the defend-

- _ant’s consent. The circumstances must be examined with a

mind.conscious of the trial milieu and the fact that its -

atmosphere; vagaries, emotional stimuli and urgency of de-

.* ‘eision only rarely can be captured in a cold appellate rec-

‘ord. They must be looked at also with all awareness that a

person accused of crime has no natural constitutional right —

to be exempted from those procedural practices which are

deemed necessary in the effort of the State to make sure

: that the conduct and final result ofa trial shall be in ac- :

cordance with law and justice to all defendants and to the

public. |

As we have already noted, the orde? in this case by its

terms authorized a further intrusion into the pros r’s

file than had been permitted previously in New Jersey. It

was contrary to pre-existing case law as well as to the

specifié limitation of R.R. 3:5-14.- In fact, we are aware of~

no jurisdiction where such broad discovery has been sane-.

tioned. See,.Louisell, Criminal Discovery: Dilemma Real or

Apparent, 49 @al. L. Rev. 96 (1961). Moreover, it 4 ;

said with some sheepishness that the practically uflimited

seope of the order was not made the subject of fo:

written argument on the application for leave t8 appeal

_ therefrom. As indicated later in State.v. Tate, supra; 47

N. J., at p. 355, the direction of the argument was toward

’ p ’ 5 ra |

achieving accessibility to grand Jury testimony and state- .

ments. taken by the police from persons other. than the

defendant. which’ would aid him in ‘‘reconstrueting the

¢riminal event.’’ It is lik@wise fair to say on the basis of

the record at that tinie that no oné was thinking in terms

Se a ao ee een a te:

“a Het = 2 ° . ;

on ets A : .

36a

Nt es oe ‘ dppendia B

4 3

or post-event reports of police guards at the hospital con-

cerning defendaut’s conduct ‘there, unrelated to the cir-

_ cumstances surrounding: the shooting. ; But, be that as it

may, the prasecutor consented to the form of ‘the order

as prepared by defense counsel, without seeking specificity, -

and must be considered bound by it.. ‘This is said, not in

his construction.

eriticism of defense counsel, nor to excuse the State2s. mis-

interpretation, but by way of understanding the prosecu-

tor’s limited compliancé. Prior to trial the prosecutor. read

the order in light of what he believed to be its intended ex-

tension of exisfing case law and rule of practice. The.triah

court found that in doing so he acted in good faith and we

accept that finding. At the trial, defense counsel read the .

order in light of the compass of its language. He was.en-

titled to do-so, and the trial court was correct in aceépting

. . , sy :

[9] The problem anime by the State?s good faith exror

came after ' the jury had been selected and: -swvorn, ‘but it

arose on the morning of the first daydevoted to the presen-

_ tation-of evidence. Two police witnesses ‘had testified and

a third officer was on the starid. Up to this point the tes- -

- timony had been largely introductory. Once the trial judge

concluded that the State’s limited view of the discovery

order ‘was incorrect, and*the defendant wat ‘therefore en-

titled to the substantial number of papers which had not.

been delivered, he was faced with a dilemma requiring reso-

luction of certain alternatives: (1) If the assistant prose-

eutor declined to turn over the reports before the trial pro-

ceeded. further with the introduction of proof, defense

counsel would have pressed his motion for a mistrial,

Obviously both the court and the State wanted to avoid:

such’ a result. if ee. and sa the peeess W as taken to

« ) : Je , j 37a

Appendia B

canals the delivery. (2) When this had been done and the

trial resumed, defendant no longer spoke in terms of a

mistrial ; andoubtedly if. the motion had .been pursued, de-

nial thereo! would have been error. Instead he demanded

suppression of the reports. .A further recess could have

- been ordered. for a time fixed to enable defendant to ii-

vestigate and prepare to meet the additional evidence. The

court believed this course to be impractical and unfair to.

the defendant ( particularly since the j Jury was sequestered)

, because it could not be. estimated with any degree of prob-

_ ability what time would be. required reas: onably for the .-\. :

_ purpose. Assuming we felt, in view of the nature of the °

information in the reports, that a recess ‘for a reasonable

‘period was worthy of a try, we would refrain from ex-

pressing such an opinion now, for to do so would be an

unwise invasion of the wide scope of discretion intrusted

to the trial judge. (3) Since defendant epposed-a recess

for investigation purposes, the could could have denied his

motion to suppress the reports and ."’ rected the- trial to

procéed, thus requiring the. defenda::: to mect: the proof

as best he could. This action. w ould have been egregiously

appeal would be virtually certain. Compare. Logan v.

United States, 144 U. 8, 263, 12 S. Ct. 617, 36 L: Ed. 429.

(1892). (4) If the motion to suppress the reports and |

_ the proof emanating from them were granted, in the face .

of the State’s intention to rely on lay testimony (7. e., that

of the hospital guards) to overcome the claim of insanity

at the time of the shooting, an acquittal would almost cet-

tainly result. After ‘full argument and considerable de-

only viesdaillile solution fair to the defendant, and to the

State would be to discontinue the trial and set: the ease down

® -

‘

Da en ee ee a ee eh

* Ba

° a é

Appendia-B J

xy:

for retrial after such interval as would permit the defend---

ant to study and investigate the withheld reports: We

are satisfied from our examination of all the facts and

circumstances that his ‘reluctant declaration of a mistrial

constituted a reasonable exercise of judicial discretion,

and that it represented tlie most sensible balancing of the

interests of the defendant and the public. We have no.

doubt it came from a conscience acutely aware’ not only

of the sacredness of the life at stake before him, bit also

of the sacredness of the life’ that was taken. |

[10,11] As we have noted above, the double jeopardy

protection does not mean that once an accused has been

put on trial regularly, the. proceeding must run its ordinary ~

course to judgment of conviction or acquittal. )The rule

does not operate so mechanistically. If some unexpected,

untoward and undesigned incident or circumstarice arises’

which does not bespeak bad faith, inexcusable neglect or —

inadvertence or oppressive conduct on the part of the State,

but whith in the considered judgment of the trial court: -ere-

‘ates an urgent need to discgntinue the trial in order to

safeguard the defendant against real or apparent prejudice |

stemming therefrom, the Federal and State Constitutions -

do not stand in the way of declaration of a mistrial. And.

_this is true even if the’conscientious act of the trial judge

may be characterized as the product of ‘‘extreme solici-

_ tude’’ or ‘‘overeager solicitude’’ for the accused, See,~

Gori v. United States, supra, 367 U. S.; at p. 367, St S. Ct.,

at p. 1525. Moreover, if an incident or circumstance of that

nature moves the court to order a ‘mistrial not only to

safeguard the right of the defendant to a full and, \fair

trial; but also to protect the right of society to have its

trial processes applied fully and fairly in the due adminis-

39a

Appendia B ree

, meee F

; tration of the cuba law, there is even 1 less basis fora

; claim of trespass. upon the privilegd against ‘double jeop-

-ardy.. See, A. L._J. Proposed Officiat Draft, Model Penal

- Code ( 1962) §1.08. Clearly the societal right to have the | ac-

- cused tried and punished if found guilty stands side by

side with the right of the accused to be prosecuted fairly

and not oppressively. While the public right, when it must

be considered alone, may not weigh as\heavily in the seale

as that of. the defendant because of tha constitutional di- -

mensions of the privilege against double jeopardy and.

the superior capacity of the State to investigate and pre-

_ pare for prosecutions, nevertheless when exercise of the

trial court’s discretion may fairly be said to serve both —

' interests, there is certainly less substantial reason oor

~tion-its- “propriety. : aaal SHEE ee

There can be no doubt that the primary motive for the

mistrial here was a sincere effort on the court’s. part .to

protect and assist Farmer. Clearly that purpose has been

_ served because with passession of the police reports and,

mi ae information given to him in the voir dire examination |

of the\prospective jurors af the two abortive trials as to

the means by whieh the State expects to meet the-efense ’ oe

of insanity, he was full knowledge of the strength and. eee

weakness of the. case against him, and ample opportunity :

to prepare for it. Cf. Baited soya v. Gort, 282 F. 2d 48,

48 (2 Cir. 1960), affirmed 367 U. S. 364, 81 S.. Ct. 1523,

6 L. Ed. 2d 901. On the other mee there is No suggestion

that the State‘acted as it did to foster a mistrial and thus. ,

in some way to improve its position, The ‘publi was bene-

‘fited only by being allowed to retain its right to go to trial...

again without loss. of what appears to be its only ‘evi- (

deneé in opposition to the claim of insanity. To equate .

the mistrial with an acquittal i is tov est defendants i in cases:

RRO i ie AM SR ae Ne DSA nomen Nt Dali. abet Gi hg Ailes Wa tie wane te ps DE tii rane sole edi -® é

Appentiz B

like this with a veto power over such action by trial jen

- and to deprive judges of a measure of discretion which

has been a traditional ‘and essential component of court-

room control. - :. ars

If the court hed not senntreea the discovery order as re-’

quiring delivery of the police reports to defendant and the

trial had proceeded to a conviction; undoubtedly a reversal

would have: ensued on appeal. Tf after receiving the re-

ports defendant had béen directed to continue at once with

the trial, and he had been convicted, it is virtually.certain

this évent a new trial would: be ordered, and a claim of

double jeopardy would be without merit. HH would be

anomalous, therefore, to hold that when the defendant de-

clines the State’s offer of recess and the production of the °

witnesses making the report for his im camera interroga-

s tion, and declines also an offer of recess to permit any in-

vestigation made, necessary by the reports, and insists on

suppression of the reports and any evidence flowing there-

- from, which means emasculation of an essential part of

_ the State’s case, the only choices open to the court are (1)

_ to ineur the likelihood of reversible error by- -procéeding,

~~ (2) to make an acquittal inevitable; or (3) to order a mis-’

trial which will bring into operation the dquble jeopardy

bar against retrial. Such a ruling would mean that, in

spite of this kind of good faith error on the part of a rep- —

‘resentative of the State, and a conscientious effort by the

court to protect the defendant against possible prejudicial

_ consequences of the error, command of the situation passes

to the defendant and he can-either foree the court to com-

mit reversible error or, by means of asserted opposition

to a mistrial, in effect confer immunity upon himself if

4la

Appendia 2.

. the mistrial is granted. That indeed would be a high price

to require society to pay for a, good faith mistake of a

‘ prosecutor and an honest effort by a court to safeguard

the defendant and the public from its consequences. ‘

If a mistrial of the nature now before us were: to be.

equated with an acquittal, the psychelogical impact on trial

judges would probably motivate them against such action

in the future unless the defendant requests it or consents’

to it. If the defendant does not so move or give his con-.

sent, the judges may consider: it preferable to allow the

trial to run its course to the probably reversihle conclusion

and permissible retrial, rather than to-immunize the defend-

_ant by ordering a mistrial.. See Note, ‘Double J eopardy:

The Reprosecution Problem,” 77 Har... Rev. 1272, 1279-

1281 (1964). This would be an understandable (though

neither a healthy nor desirable) result. Obviously a de-

fendant is.no less wronged by a finding of guilt after. an

unfair trial than by a mistrial order opposed by the State

and the defendant and not made necessary by*an inten-—

tional effort by the prosecutor to obtain an unfair and op-

pressive advantage, but conscientiously believed necessary

by the trial judge to protect both the defendant’s and the.

public’s interest. A distinction between the two ‘‘affords

no sensible basis for differentiation with.regard to retrial.’’

United States v. Tateo, supra, 377 U. S., at p. 467, 84 S.Ct.

at p. 1589. Judicial inaction at the trial level, whether

through # felt impotence or even excessive caution, in the

face of a plain’ need to meet a trial challenge such as was

-- presented here -would: probably do the administration of —

criminal justice more harm than the granting of a mistrial.

Since there is no over-all formula, no hard and fast rule

for determining “when an order ‘of mistrial will cause. the

was

ee te re eee

—_———-—_—_g

NeSRAR Ean ncn

——

pea

Serene ®

jeopardy bar to spring inte being, oath case must! dicena

upon its own facts and the urgency of its- circumstances. .—;~ |

_And as might be expected, therefore, no case:has been Cited °

to us which presented to. the trial —— emergent situa-

tion like this‘one. = \—— ¢

_—In Wade v. v. Hunter, supra, Wade, an American sildier.

“with the combat forces in Germany: in World War II, was

charged with rape. When. he was put to ‘court martial

trial, the troops had advanced a considerable distance from

_ the scene of the crime. Nevertheless the trial proceeded,

—~ the evidénce was heard, arguments of counsel made, and the

court martial closed’ to:consider the case. Later the same

day the trial was reopened and an announcement made that

it would be continued: until a later date in order to: hear,

some additional witness¢s. A week later the Commandiig

~ General withdrew the charges from ’the court martial, di. -

recting it to°take no further proceedings. The General

then transmitted the charges to the Commanding General

- of the Third Army, recommending trial by a new court

martial. The reason given was that two witnesses, father

and mother of the rape victim, were unable to be present

"pecause of illness, andthe trial -had been continued so their |

testimony could be taken. The General noted also that,

. because of the ‘‘tactical situation’’ of his command and its

considerable distance from the residence of ‘the witnesses,

able time. The Third Army General, finding his tactical

situation to be similar, in turn forwarded the matter to

the Commanding General of the Fifteenth Army, who con-

véned the court martial. At this time Wade pleaded that

he could not be tried again as he had-been put in jeopardy

by the first court martial. .The-plea was denied, and after

his conviction the matter ultimately reached the United

States Supreme Court.

. 4

3 Mg oral tne 925 BD eee Cire SS tae

— 7

, o . 7 Appendix B ° o. tee

In rejecting the defense, Justice Black, writing for the

Court, declared. that the double jeopardy provision of the

Fifth Amendment does not mean that every time a defend- .

ant is. ppt to trial ‘in cA ral nneiy he must go free if’

_ the proceeding fails to end in a

rule would create an insuperable obstacle to the adminis-

tration of justice in many eases in bs sr there is no sem-|

-blance ofthe type of oppressive practices at which the

double-jeopardy prohibition is aimed.” 336 U. S., at pp.

688-689, 69 S: Ct., at p. 837. It was said further that a _

defendant’s right to have the trial go to final judgment must

_ on oeéasion be subordinated to the ‘« publie’s interest in fair —

trials designed to end in just judgments”’; and that a rigid

rule banning discontinuance of: a trial because of absence

of ‘witnesses, come what may, was not acceptable. Such

nal judgment. ‘‘Such a |

a.rule would be inconsistent with the guiding prineiples of ~

_ United States v. Perez, supra, ‘‘to which. we’ adhere,”

namely that whether justice requires discontinuance of a»

particular trial should be decided by ‘persons conversant

with factors relevang to the determination.’? 336 U: S.; at

_ p. 689, 69 S.Ct, at p. 837. It is obvious. that the Court -.

was referrirfg to trial judges, and reiterating thé view of ae,

Perez,:-‘ [which] has. been the basis for all later decisions

[of the Supreme Court] on double jeopardy,”’ 7. e., that .

Such judges have the right to order a mistrial when, in the

« conscientious’ exercise of their discretion, particular cir-

cumstances manifest a necessity for so doing and failure.

to do so would defeat the ends of Justice. 336 U. S., at

p, 690, 69 S:.Ct., at p. 888. See also, Lovato v. State of

New Mexico; 242 U. S. 199,-37 S. Ct. 107, 61 L. Ed. 244

(1916); Brock v. State of North Carolina, 344 U. S. 424,

73 §. Ct. 349, 97 L. Ed. 456 (1952), decided in terms of the

Fourteenth Amendment; United States v. Tateo, 377 U.S.

dda

Append B

_-/ 463, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964) ; United Pisses, 7

v. Giles, 19 F. Supp. 1009 (W.. D. Okla. 1937) ;-Sdéott vy.

United States, U.S, App. D..C. me, 202 F’. 2d 354 (D. C.

The two most recent.cases in the United States ‘Supr eme

Court are Gori v. United States, 367 U. S. 364, 81,8. Ct.

1523, 6 L. Ed. 2d 901 (1961) and Pe ig v. United “States;

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

had been indicted for knowingly receiving goods stolen in. :

> interstate commerce. A jury was impaneled and _ government

evidence was introduced throughout the morning and was

continuing in the afternoon when a situation arose. which ih

the trial judge’s opinion required.a.mistrial. The case was

retried later over defendant’s double jeopardy objection

and he was convicted. The conviction was sustained in the

Court of Appeals for. the Second Circuit, 282 F. 2d 43

(1960),.and by°the United States Supreme Court. . i

The incident which provoked the mistrial was not very.

_ clear froni the record. Apparently, while one of the prosecu-

tiott witnesse was being questioned on direct examination, —

the trial court got the impression that the government attor-

ney was endeavoring to insinuate to the jury that the de-

fendant had been ‘convicted of other crimes. 282 F. 2d, at

_p. 46. Actually no such question was -put specifically, nor

did the cold appellate record reveal clearly that such was °

‘the intention of the United States attorney. The parties

agreed, however, that the mistrial was declared pursuant

to the-trial judgé’s intention to prevent evidence of other

crimes by the accused. The Court of Appeals abserved that °

the trial court should not have aeted so liastily, but should °

have aw aited a definite question which would have permitted :

pom tenin seh Caan wirin # rN hi Ah ee lity EO att AE nits

7 vg a C . iu é ~ 45a

_, Appendia B

ie ” \ .

a clear-cut ruling. Judge Clark pointed out that the Fed-

4 eral system takes pride’in the fact that its-judges are not

“mere automatons or referees, but bear an affirmative re .

sponsibility for the proper conduct of a criminal trial. And ~

he indicated that, even though it may-appear’in a -tare ’

ease that a judge in ordering a mistrial: may have been

overzealous in his protection of the rights of an accused, ~

the law is better served by continued acceptance of the con, »

- eretioh in declaring a ‘mistrial. ine

The Court concluded with a statement pertinent to the.

-présent case: = ae

‘Here, the defendant was in no way harmed by <

the brief trial which,-indeed, revealed to him the _

to start anew with clean slate, with all possibility

‘of prejudice eliminated and with foreknowledge of |

the case agaffist him. .The situation was quite unlike’

. the more troublesome problems found in. various of

the cases, as where the prosecution desires: to

‘strengthen his case on a new start or otherwise pro- ‘‘s

vokes the declaration ‘of mistrial, or. the court has

acted.to‘the prejudice of the accused, or the accused

has ‘actually been subject to two. trial for essentially |

the same offense. On the other hand, for the de-

fendant to receive absolution for his crime, fater

. proven quite completely, because the jydge acted too.

-hastily in his: interest, would be an injustice to the

'. public in the particular case and a disastrous prece-

dent for the future.’ 282 F. 2d, at p. 48. | |

; e * j ” . ¢ cS

. . . . . tid 2

On certiorari the United States Supreme Court affirmed. -—

The majority opinion described the case as oneein which, ~

46a

Tie oe OS Appendia B

- ay

' viewing’ it most Cccuaile to-the accused, the mistxial order

‘twas found neither apparently justified nor clearly errone-

ous’’ by the Court of Appeals. Reference was made to the |

necessarily. wide range of discretion which is and must con-

tinue to be vested in trial judges in this area of trial prac-

“tice. It was said also that ‘‘ Where, for reasons deemed -

compelling by the trial. judge, who is best situated ‘intelli-

gently to make such a decision, the ends-of substantial jus-

tice caknot be attained without discontinuing the trial, a

mistrial may be declared without the defendant’s consent

and even over his objection, and he may be. retried consist-

ently with the Fifth Amendment.’’ 367 U. S.; at p. 368, 81

S. Ct., at p. 1526. Finally the Court indicated that error of

constitutional dimensions could not be found oni the record *

presented; it ‘‘would not thus make [trial judges] unduly

hestitant conscientiously to exercise their most sensitive -

judgment—according to their own lights in the immediate

exigencies of trial—for the more effective protection of the

_ eriminal accused.’ 367 U. S., at p. 369, 81 S. Ct., at p. 1527.

In. Downum v. United States, supra, the Court reached

the opposite conclusion as to the effect of a mistrial, but in

-a different factual setting. Downum had been diareka in

six counts of an indictment with forging and passing gov-

ernment checks, and with conspiring with two codefendants

(who pleaded guilty) to commit those acts. During the week

previous to the mistrial, 12 cases, including Downum’s,

were. set for trial the following Monday. The trial judge

commented later that this was ‘‘very:short notice.’’ The

cases involved about 100 witnesses, and subpoenas had

been issued to the marshal for service. The Downum case

_ was number 10 on the list; and the prosecutor did not expect

it to be reached on Monday or Tuesday. On Monday after-

noon the marshal advised the prosecutor he had learned

47a°

Le Appendix B

that the wife of the key witness on two of. the counts in the.

indictments would inform them of her husband’s where- .. |

-“ abouts ‘‘if she should learn it.’’ When Downum was called

on Tuesday morning, the prosecutor, who was then trying

another case; marked it ready withouf ascertaining from

the marshal whether the particilar witness was in court.

A jury .was selected and then excused until 2:00 p.m. so the

prosecutor could eomplete the case on trial. Upon -checking

with the marshal’s office during the noon recess, the prose-

cutor learned the witness was not present. He ‘immediately |

- _ informed ‘the judge in chambers, and at the opening of the

_ afternoon session defense counsel was advised of the miss-

ing witness and that the case would have to go over. for a_

few days. Defendant thereupon moved to dismiss the two

counts of the indictment involving that witness for lack of

prosecution, and to require the trial to proceed on the re-

maining counts. The -trial court denied the. motion, and dis- “ '

_ charged the jury over the defense objection. )

Two days-later the case was called again and the defend- ;

ant pleaded double jeopardy. The plea was rejected, the | f

tria) proceeded and resulted in'a conviction On all counts 3

involving’ Downum. The Court of Appeals for the Fifth-

“Circuit agreed that the first abortive proceeding, at which ne

nothing was done beyond selection and swearing of the jury,

did not justify application. of the Fifth Amendment to bar

the later completed trial. It held the trial court had not «= |

abused its discretion wider the circumstances in orderi se

the mistrial. 300 I. 2d 137 (5 Cir..1962). in eee E

On certiorari, the United States Supreme Court reversed ;

‘by -a five-to-four vote: It took the view that the situation .

was simply one where the *pr osecutor had entered upon the |

trial of the case without sufficient ev idence to convict. At the,

¥ ere

? .

48a

Appendix’ B :

end of a short opinion J ustice Douglas said tersely that any

doubt as to what rule should be applied in such a situation

would be. resolved by the majority ‘‘in favor of thé liberty

of the citizen, rather than ‘exercise what would be an un-

' limited, uncertain, and arbitrary judicia! discretion.’’ .372

U.'S., at P 738, 83 S. Ct., at p. 1035. We do not take this -

language in its context to signifiy an intention to deny in

the future the existence of any: judicial discretion to grant a

mistrial during the course of a criminal trial.

This decision apparently repré€ents the first time since

the adoption of the Federal Constitgition that the. United

States Supreme Court interfered with the determination of

a trial court that justice required a mistrial, and held that

in granting the mistrial it had abused its discretion. (See

- Note,‘‘‘Double Jeopardy, The Reprosecution Problem.’’

supra, 77 Har. L. Rev., at p. 1277). The result is the most

extreme recorded example of application ef the double >

jeopardy bar that has been brought to our attention, and

raises considerable question as to the extent to which it has

drawn in the long recognized perimeter of the trial judge’s

discretionary contro! over the conduct of criminal trials. In

any event, the case is probably a binding precedent on this

Court and we accept our obligation to follow it in the same

or indistinguishable fact pattern. It may be noted, however,

that Downum did not criticize or, overrule Gori y. United

States; moreover, it adhered: to the principle that in deeid-

ing whether the jeopardy bar is to be applied, each case .

must turn on its own facts. 372 U.S., at p. 737, 83 S. Ct,

at p. 1035.

The present case is distinguishable from ie and

brings facts to us which, in our judgment, are even .more

influential against application: of the double jeopardy «loc-

sR Ti iS el lt 8 tai Ai

‘

| 49a

Appendiz B

trine than those in Gori. Or,-put in: terms commonly found

in the cases, the unusual facts and cireumstan¢es here clear-

ly provided a reasonable basis for the trial judge to con-

clude that an urgent need existed to abort the trial in the

interest of the defendant and the State. .\s we have already

explained, the unusual and novel discovery order must- be

considered in the ambiance of its time.. The prosecutor’s in-

- terpretation of it was too narrow when measured by its

. language. His construction, however, found as it was by:

the trial court to have been made. in good faith, though

. erroneous, was not without some basis in reason when re-

lated to the arguments of ‘the parties to the various courts

which considered the discovery motion. The arguments

dealt almost exclusively with the desifability of extending

the established scope of discovery to the statements of wit-

nesses other than the accused in order to enable him to re-

construct the criminal event. That the prosecutor believed

this was the purport of the order is indicated by the de-

livery months before the trial began, of the entire 274-page

transcript of the grand jury testimony covering circum-

stances preceding, surrounding and immediately after the

homicide incident. It is shown also b} the delivery at the

same time of the comprehensive statements obtained from

the persons who appeared before the grand jury, as well as

notes of interviews with six other perséns who shed light

on the relations between Farmer and his wife prior to the

shooting. When at the early stage of the trial the court

decided there had been incomplete compliance with the dis-

covery directive, it is plain that the prinicpal deficiency

was considered to be the failure to turn over the reports |

of the police officers who had guarded Farmer’s hospital

room for days after the homicide. ‘This was because the

testimony derived from those reports represented in: large

- &

1. ee vemniten toate

50a

Appendix B

part the ‘inl upon which the State ree to rebut the .

defense of insanity. Although satisfied that the prosecutor

had acted in good faith, the trial court felt in all good-con- —

science that it would ‘‘be completely unfair’’ to the defend-

ant to force him to proceed with the trial without giving

him an opportunity to investigate and prepare to meet this

lay proof of sanity. Also in view of the good faith deter-—

‘ mination, the court felt it would be transgressive of the

public interest to suppress the testimony and thus in all

probability produce an acquittal. The dilemma facing him

was aggravated. by the awareness that to force defendant |

to continue the tria! and meet the lay rebuttal testimony

as best he could would result in virtually certain reversal,

_ if conviction ensued. The pressure of all the circumstances

led him to conclude that mistrial was the only just solution.

for the. defendant and the public. That solution,\born of

the unusual trial travail, should not be considered so un:

reasonable by, a reviewing court as to constitute an abuse

of discretion. .

In short, here, as in Gort, the defendant has not safféred

any substantial prejudice because of the mistrial. He now

has foreknowledge of the substance of the State’s case

against him, and ample time to prepare to meet it. More-

over, as the trial court found, the mistrial was not caused -

by any intention of the prosecution to take an undue ad-

vantage, or to ita Farmer in his effort to defend him-

self.

Accordingly, the interlocutory order of the trial court re-

jecting the defense of double jeopardy is affirmed, and the

cause may be listed for trial. '

For affirmance—Chief Justice WEINTRAUB and Justices.

Jacoss, Francis, Proctor, ScHETTING aud Haneman—t.

For reversal—None.

| dla

APPENDIX ¢C

(Mandate on Affirmance)

* (Filed—November 21, 1966)

Supreme Covurr yr New J ERSEY

* Appeal Docker No. 5171

aoan ere

Srare or New JERSEY, 2 as

ii einen Plaintiff-Respondent,

vs. ‘

CHARLEs Farmer, ,

; Defendant-Appellant.

+ eee

This cause having been duly argued before this Court by

Mr. Raymond <A. Brown, counsel for the appellant and~

Mr. John P. KXosak, counsel for the respondent,: and the

- Court having considered the ‘same, Ju = a

It is hereupon ordered and adjudged that the judgment:

of the said Middlesex County Court is- affirmed with costs;

_ and it is further ordered that this mandate shall issue ten

"days. héreafter, unless an application for rehearing shall

have been granted or jis pending, or unless otherwise or--

dered by this Court, and that the record be remitted to the

Middlesex County Court to be there proceeded with in ac-

cordance with the rules and practice relating to that court,

consistent with the opinion of this Court. |

-Wiryess the Honorable Joseph Weintraub, Chief Jus-

tice, at Trenton on the 21st day of November, 1966, °

Mortimer S. Newman, Jr,

Acting Clerk of the Supreme Court |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.