# Illinois v. Somerville/Dissent Marshall

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* Opinion of the Court
* Dissenting Opinions White Marshall
[p477] MR. JUSTICE MARSHALL, dissenting.
The opinion of the Court explicitly disclaims the suggestion that it overrules the recent cases of United States v. Jorn, 400 U.S. 470 (1971), and Downum v. United States, 372 U.S. 734 (1963). Ante, at 469. But the Court substantially eviscerates the rationale of those cases. Jorn and Downum appeared to give judges some guidance in determining what constituted a "manifest necessity" for declaring a mistrial over a defendant's objection. Today the Court seems to revert to a totally unstructured analysis of such cases. I believe that one of the strengths of the articulation of legal rules in a series of cases is that successive cases present in a clearer focus considerations only vaguely seen earlier. Cases help delineate the factors to be considered and suggest how they ought to affect the result in particular situations. That is what Jorn and Downum did. The Court, it seems to me, today abandons the effort in those cases to suggest the importance of particular factors, and adopts a general "balancing" test which, even on its own terms, the Court improperly applies to this case.
The majority purports to balance the manifest necessity for declaring a mistrial, ante, at 463, the public interest "in seeing that a criminal prosecution proceed to verdict," ibid., and the interest in assuring impartial verdicts, ante, at 464. The second interest is obviously present in every case, and placing it in the balance cannot alter the result of the analysis of different [p478] cases. It is, at most, a constant whose importance a judge must consider when weighing other factors on which the availability of the double jeopardy defense depends.
At the same time, the balance that the majority strikes essentially ignores the importance of a factor which was determinative in Jorn and Downum: the accused's interest in his "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689 (1949), quoted in United States v. Jorn, 400 U.S., at 484. This is not a factor which is excised from isolated passages of Jorn, as the majority would have it, ante, at 469; it is the core of that case, as even the most cursory reading will disclose. See, e.g., 400 U.S., at 479, 484-486.
By mischaracterizing Jorn and Downum, the Court finds it possible to reach today's result. A fair reading of those cases shows how the balance should properly be struck here. The first element to be considered is the necessity for declaring a mistrial. That I take to mean consideration of the alternatives available to the judge confronted with a situation in the midst of trial that seems to require correction. In Downum, for example, a key prosecution witness was not available when the case was called for trial, because of the prosecutor's negligence. Because the witness was essential to presentation of only two of the six counts concerning Downum, there was no necessity to declare a mistrial as to all six. Trial could have proceeded on the four counts for which the prosecution was ready. Downum v. United States, 372 U.S., at 737. Similarly, in Jorn, the District Judge precipitately aborted the trial in order to protect the rights of prospective witnesses. Again, the alternative of interpreting the trial briefly so that the witnesses might consult with attorneys was available but not invoked. United States v. Jorn, 400 U.S., at 487.
[p479] A superficial examination of this case might suggest that there were no alternatives except to proceed where "reversal on appeal [would be] a certainty" ante, at 464. Respondent had been indicted for "knowingly obtain[ing] unauthorized control over stolen property, to wit: thirteen hundred dollars in United States Currency, the property of Zayre of Bridgeview, Inc., a corporation, knowing the same to have been stolen by another in violation of Chapter 38, Section 16-1 (d) of the Illinois Revised Statutes." Petition for Writ of Certiorari 3. The statute named in the indictment requires that the defendant have "[i]ntend[ed] to deprive the owner permanently of the use or benefit of the property." Ill. Rev. Stat., c. 38, § 16-1 (d)(1) (1963).
The majority treats it as unquestionably clear that the failure to allege that intent in the indictment made the indictment fatally defective. And indeed, since the time of the trial of this case, Illinois courts have so held. See, e.g., People v. Matthews, 122 Ill.App.2d 264, 258 N.E.2d 378 (1970); People v. Hayn, 116 Ill.App.2d 241, 253 N.E.2d 575 (1969). But the answer was not so clear when the trial judge made his decision. The Illinois Code of Criminal Procedure had just recently been amended to require that an indictment name the offense and the statutory provision alleged to have been violated, and that it set forth the nature and elements of the offense charged. Ill. Rev. Stat., c. 38, § 111-3 (a) (1963). The indictment here was sufficiently detailed to meet the federal requirement that the indictment "contains the elements of the offense included to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet,'" Hagner v. United States, 285 U.S. 427, 431 (1932); see also Russell v. United States, 369 U.S. 749 (1962).
Had the Illinois courts been made aware of the substantial constitutional questions raised by rigid application [p480] of an archaic mode of reading indictments, they might well have refused to hold that the defect in the indictment here was jurisdictional and nonwaivable. Conscientious state trial judges certainly must attempt to anticipate the course of interpretation of state law. But they must also contribute to that course by pointing out the constitutional implications of alternative interpretations. By doing so, they would themselves help the interpretation of state law. Here, for example, had the trial judge refused to declare a mistrial because of his constitutional misgivings about the implications of that course, he might have prevented what Chief Justice Underwood has called a "reversion to an overly technical, highly unrealistic and completely undesirable type of formalism in pleading which... serves no useful purpose," in interpreting the Code of Criminal procedure. People ex rel. Ledford v. Brantley, 46 Ill.2d 419, 423, 263 N.E.2d 27, 29 (1970) (Underwood, C.J., dissenting). A trial judge in 1965 might have forestalled that unhappy development. Thus, he could have proceeded to try the case on the first indictment, risking reversal as any trial judge does when making rulings of law, but with no guarantee of reversal. In proceeding with the trial, he would have fully protected the defendant's interest in having his trial completed by the jury already chosen.
If the only alternative to declaring a mistrial did require the trial judge to ignore the tenor of previous state decisional law, though, perhaps declaring a mistrial would have been a manifest necessity. But there obviously was another alternative. The trial judge could have continued the trial. The majority suggests that this would have been a useless charade. But to a defendant, forcing the Government to proceed with its proof would almost certainly not be useless. The Government might not persuade the jury of the defendant's guilty. The majority [p481] concedes that the Double Jeopardy Clause would then bar a retrial. Ante, at 467; United States v. Ball, 163 U.S. 662 (1896). To assume that continuing the trial would be useless is to assume that conviction is inevitable. I would not structure the analysis of problems under the Double Jeopardy Clause on an assumption that appears to be inconsistent with the presumption of innocence.
Once it is shown that alternatives to the declaration of a mistrial existed, as they did here, we must consider whether the reasons which led to the declaration were sufficient, in light of those alternatives, to overcome the defendant's interest in trying the case to the jury. Here Jorn and Downum run directly counter to the holding today.
I would not characterize the District Judge's behavior in Jorn as "erratic," as the Court does, ante, at 469. His desire to protect the rights of prospective witnesses, who might have unknowingly implicated them in criminal activities if they testified, was hardly irrational. It, too, was "a legitimate state policy." Ibid. The defect in Jorn was the District Judge's failure to consider alternative courses of action, not the irrationality of the policy he sought to promote.
But even if I agreed with the majority's description of Jorn, that would not end the inquiry. I would turn to a consideration of the importance of the state policy that seemed to require declaring a mistrial, when weighed against the defendant's interest in concluding the trial with the jury already chosen.
Here again the majority mischaracterizes the state policy at stake here. What is involved is not, as the majority says, "the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury." Ante, at 468. Rather, the interest is in making the defect in the indictment here jurisdictional and not waivable by a defendant. [p482] Ordinarily, a defect in jurisdiction means that one institution has invaded the proper province of another. Such defects are not waivable because the State has an interest in preserving the allocation of competence between those institutions. Here, for example, the petit jury would invade the province of the grand jury if it returned a verdict of guilty on an improper indictment. However, allocation of jurisdiction is most important when one continuing body acts in the area of competence reserved to another continuing body. While it may be desirable to keep a single petit jury from invading the province of a single grand jury, surely that interest is not so substantial as to outweigh the "defendant's valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689 (1949). Cf. Henry v. Mississippi, 379 U.S. 443 (1965).
Downum v. United States, 372 U.S. 734 (1963), is an even harder case for the majority, which succeeds in distinguishing it only by misrepresenting the facts of the case. The majority treats Downum as a case involving a procedure "that would lend itself to prosecutorial manipulation." Ante, at 464. However, the facts in Downum, set out at 372 U.S., at 740-742 (Clark, J., dissenting), clearly show that the prosecutor's failure to have a crucial witness present was a negligent oversight. Except in the most attenuated sense that it may induce a prosecutor to fail to take steps to prevent such oversights, I cannot understand how negligence lends itself to manipulation. And even if I could understand that, I cannot understand how negligence in failing to draw an adequate indictment is different from negligence in failing to assure the presence of a crucial witness.
[p483] I believe that Downum and Jorn are controlling. As in those cases, the trial judge here did not pursue an available alternative, and the reason which led him to declare a mistrial was prosecutorial negligence, a reason that this Court found insufficient in Downum. Jorn and Downum were in the tradition of elaboration of rules which give increasing guidance as case after case is decided. I see no reason to abandon that tradition in this case and to adopt a new balancing test whose elements are stated on such a high level of abstraction as to give judges virtually no guidance at all in deciding subsequent cases. I therefore respectfully dissent.