# Illinois v. Somerville/Dissent White

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinions White Marshall
[p471] MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
For the purposes of the Double Jeopardy Clause, jeopardy attaches when a criminal trial commences before judge or jury, United States v. Jorn, 400 U.S. 470, 479-480 (1971); Green v. United States, 355 U.S. 184, 188 (1957); Wade v. Hunter, 336 U.S. 684, 688 (1949), and this point has arrived when a jury has been selected and sworn, even though no evidence has been taken. Downum v. United States, 372 U.S. 734 (1963). Clearly, Somerville was placed in jeopardy at his first trial despite the fact that the indictment against him was defective under Illinois law. Benton v. Maryland, 395 U.S. 784, 796-797 (1969); United States v. Ball, 163 U.S. 662 (1896). The question remains, however, whether the facts of this case present one of those circumstances where a trial, once begun, may be aborted over the defendant's objection and the defendant retried [p472] without twice being placed in jeopardy contrary to the Constitution.
The Court has frequently addressed itself to the general problem of mistrials and the Double Jeopardy Clause, most recently in United States v. Jorn, supra. We have abjured mechanical, per se rules and have preferred to rely upon the approach first announced in United States v. Perez, 9 Wheat. 579 (1824). Under the Perez analysis, a trial court has authority to discharge a jury prior to verdict, and the Double Jeopardy Clause will not prevent retrial, only if the trial court takes "all the circumstances into consideration" and in its "sound discretion" determines that "there is a manifest necessity for the fact, or the ends of public justice would otherwise be defeated." Id., at 580. See also United States v. Jorn, supra, at 480-481 (opinion of Harlan, J.); id., at 492 (STEWART, J., dissenting); Gori v. United States, 367 U.S. 364, 367-369 (1961); id., at 370-373 (DOUGLAS, J., dissenting); Downum v. United States, supra, at 735-736, id., at 740 (Clark, J., dissenting). Despite the generality of the Perez standard, some guidelines have evolved from past cases, as this Court has reviewed the exercise of trial court discretion in a variety of circumstances.
United States v. Jorn, supra, and Downum v. United States, supra, for example, make it abundantly clear that trial courts should have constantly in mind the purposes of the Double Jeopardy Clause to protect the defendant from continued exposure to embarrassment, anxiety, expense, and restrictions on his liberty, as well as to preserve his "'valued right to have his trial completed by a particular tribunal.'" United States v. Jorn, supra, at 484, quoting from Wade v. Hunter, 336 U.S., at 689.
   "[I]n the final analysis, the judge must always temper the decision whether or not to abort the trial [p473] by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." United States v. Jorn, supra, at 486.
It was in light of this interest that the Court in Downum reversed a conviction on double jeopardy grounds where a mistrial was declared to permit further efforts to secure the attendance of a key prosecution witness who should have been, but was, not subpoenaed. Although no prosecutorial misconduct other than mere oversight and mistake was claimed or proved, the policies of the Double Jeopardy Clause, and the interest of the defendant in taking his case to the jury that he had just accepted, were sufficient to raise the double jeopardy barrier to a second trial.
Similarly, in Jorn, a trial was terminated when the trial judge, sua sponte and mistakenly, declared a mistrial, apparently to protect nonparty witnesses from the possibility of self-incrimination. There was no showing of intent by the prosecutor or the judge to harass the defendant or to embrace chances of conviction at a second trial; the defendant was given a complete preview of the Government's case, and no specific prejudice to the defense at a second trial was shown. Noting that the courts "must bear in mind the potential risks of abuse by the defendant of society's unwillingness to unnecessarily subject him to repeated prosecutions," 400 U.S., at 486, this Court held that the defendant's interest in submitting his case to the initial jury was itself sufficient to invoke the Double Jeopardy Clause and, as in Downum, to override the Government's concern with enforcing the criminal laws by having another chance to try the defendant for the crime with which he was charged. In neither case was there "manifest necessity" for a mistrial and a double trial of the defendant.
[p474] Very similar considerations govern this case. Somerville asserts a right to but one trial and to a verdict by the initial jury. A mistrial was directed at the instance of the State, over Somerville's objection, and was occasioned by official error in drafting the indictment—error unaccompanied by bad faith, overreaching, or specific prejudice to the defense at a later trial. The State may no more try the defendant a second time in these circumstances than could the United States in Downum and Jorn. Although the exact extent of the emotional and physical harm suffered by Somerville during the period between his first and second trial is open to debate, it cannot be gainsaid that Somerville lost "his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal." United States v. Jorn, 400 U.S., at 484. Downum and Jorn, over serious dissent, rejected the view that the Double Jeopardy Clause protects only against those mistrials that lend themselves to prosecutorial manipulation and underwrote the independent right of a defendant in a criminal case to have the verdict of the initial jury. Both cases made it quite clear that the discretion of the trial court to declare mistrials is reviewable and that the defendant's right to a verdict by his first jury is not to be overridden except for "manifest necessity." There was not, in this case any more than in Downum and Jorn, "manifest necessity" for the loss of that right.
The majority recognizes that "the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one," but finds that interest outweighed by the State's desire to avoid "conducting a second trial after verdict and reversal on appeal [on the basis of a defective indictment], thus wasting time, energy, and money for all concerned." The majority finds paramount the interest of the State in "keeping a verdict of conviction if its evidence pervaded the jury." Such [p475] analysis, however, completely ignores the possibility that the defendant might be acquitted by the initial jury. It is, after all, that possibility—the chance to "end the dispute then and there with an acquittal," United States v. Jorn, supra, at 484—that makes the right to a trial before a particular tribunal of importance to a defendant. In addition, the majority's balancing gives too little weight to the fundamental place of the Double Jeopardy Clause, and the purposes which it seeks to serve, in "the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial." Id., at 479.
Apparently the majority finds "manifest necessity" for a mistrial and the retrial of the defendant in "the State's policy of preserving the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury" and the implementation of that policy in the absence from Illinois procedural rules of any procedure for the amendment of indictments. Conceding the reasonableness of such a policy, it must be remembered that the inability to amend an indictment does not come into play, and a mistrial is not necessitated, unless an error on the part of the State in the framing of the indictment is committed. Only when the indictment is defective—only when the State has failed to properly execute its responsibility to frame a proper indictment—does the State's procedural framework necessitate a mistrial.
Although recognizing that "a criminal trial is, even in the best of circumstances, a complicated affair to manage," ibid., the Court has not previously thought prosecutorial error sufficient excuse for not applying the Double Jeopardy Clause. In Jorn, for instance, the Court declared that "unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an [p476] adversary criminal process," id., at 485-486, and cautioned, "The trial judge must recognize that lack of preparedness by the Government... directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee." Id., at 486. See also id., at 487-488 (BURGER, C.J., concurring); Downum v. United States, 372 U.S., at 737. Here, the prosecutorial error, not the independent operation of a state procedural rule, necessitated the mistrial. Judged by the standards of Downum and Jorn I cannot find, in the words of the majority, an "important countervailing interest of proper judicial administration" in this case; I cannot find "manifest necessity" for a mistrial to compensate for prosecutorial mistake.
Finally, the majority notes that "the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question." See United States v. Jorn, 400 U.S., at 479; Downum v. United States, supra; Green v. United States, 355 U.S., at 187-188. Surely there is no evidence of bad faith or overreaching on this record. However, the words of the Court in Ball seem particularly appropriate.
   "This case, in short, presents the novel and unheard of spectacle, of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect, as a reason for a second trial, when it is not pretended that the merits were not fairly in issue on the first.... If this practice be tolerated, when are trials of the accused to end? If a conviction take place, whether an indictment be good, or otherwise, it is ten to one that judgment passes; for, if he read the bill, it is not probably he will have penetration enough to discern its defects. His counsel, if any be assigned to him, will be content with hearing the substance of the charge without [p477] looking farther; and the court will hardly, of its own accord, think it a duty to examine the indictment to detect errors in it. Many hundreds, perhaps, are now in the state prison on erroneous indictments, who, however, have been fairly tried on the merits." 163 U.S., at 667-668.
I respectfully dissent.