No. 84-415 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19135 

STATE OF MONTANA, ex rel., JERRY 

PAUL FORSYTH, 

Petitioner, 

DISTRICT COURT OF THE ELEVENTH 

JUDICIAL DISTRICT OF THE STATE 

OF MONTANA, IN AND FOR THE COUNTY 

OF FLATHEAD, THE HONOFLABLE MICHAEL 

H. KEEDY, Judge presiding, 

Respondent. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioner: 

Robert S. Keller argued, Kalispell, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay Smith argued, Asst. Atty. General, Helena 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Submitted: MaY 21 1985 

Decided: July 2, 1985 

Filed: ~i(jk 2 1985 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The trial of defendant Jerry Paul Forsyth in the Lake 

County District Court on a charge of deliberate homicide 

resulted in a mistrial because of jury deadlock. Defendant 

filed a petition for writ of supervisory control claiming 

double jeopardy, denial of speedy trial and error of the 

District Court in ordering a change in the place of trial. 

By opinion dated January 3, 1985, this Court declined to take 

jurisdiction under the petition for writ of supervisory 

control-. Defendant filed a petition for reconsideration, and 

briefing and oral argument was ordered. We again decline to 

accept jurisdiction under the petition for supervisory 

control. 

The issues which we will consider in this additional 

opinion are: 

1. Do the Double Jeopardy Clauses of the Montana and 

[Jnited. States Constitutions bar retrial of the defendant? 

2. Should this Court grant a pretrial review of the 

speedy trial question? 

3. Did the District Court err in ordering a change of 

place of trial? 

The extensive facts of this case are set forth in some 

detail in our opinion dated January 3, 1985 and will not be 

restated here, except to the extent necessary to explain our 

analysis of the legal issues. 

I 

Do the Double Jeopardy Clauses of the Montana and United 

States Constitutions bar retrial of the defendant? 

Defendant argues that the double jeopardy provisions of 

the Montana and Federal Constitutions bar retrial. He contends that the misconduct on the part of the bailiff is 
chargeable to the State in the same manner as misconduct 

committed by a prosecutor or a judge. 

The State argues that jeopardy was not terminated by the 

declared mistrial following a jury deadlock. The State 

further argues that there is no standard which bars retrial 

under the present facts. 

It is first necessary to determine whether there has 

been any double jeopardy following a mistrial as a result of 

a hung jury. Richardson v. United States (1984) , 

U.S. , 104 S.Ct. 3081, carefully analyzed the question of whether double jeopardy had resulted in a fact situation similar to the present Forsyth case. In Richardson, the 

petitioner argued that the judicial declaration of a mistrial 

was an event that terminated -jeopardy and allowed him to 

assert a valid claim of double jeopardy. The United States 

Supreme Court stated: 

"We think that the principles governing 

our decision in Burks, and the principles 

governing our decisions in the hung jury 

cases, are readily reconciled when we 

recognize that the protection of the 

Double Jeopardy Clause by its terms 

applies only if there has been some 

event, such as an acquittal, which terminates the original jeopardy. . . an event 

which terminated jeopardy in his case and 

which allowed him to assert a valid claim 

of d-ouble jeopardy. 

"But this proposition is irreconcilable 

with cases such as Perez and Logan, and. 

we hold on the authority of these cases 

that the failure of the jury to reach a 

verdict is not an event which terminates 

jeopardy. . . Justice Holmes' aphorism 

that 'a page of history is worth a volume 

of logic' sensibly applies here, and we 

rea-ffirm the proposition tha.t a trial 

court's declaration -- of a mistrial-following a hung jury --- is not an event that 

termi:ates the oriqinal jeopardx to which 

petitioner was subjected. The 

Government, like the defendant, is 

entitled to resolution of the case by 

verdict from the jury, and jeopardy does 

not terminate when the jury is discharged 

because it is unable to a.gree." 
Richardson, 1-04 S.Ct. at 3086 (emphasis 

added). 

We conclude that in Montana a mistrial following a hung 

jury, as in the present case, does not terminate the original 

jeopardy. Defendant argues for an exception to this rule. 

It is true that Oregon v. Kennedy (1982), 456 U.S. 667, sets 

forth one exception. The Court held in Oregon v. Kennedy 

that where governmental conduct giving rise to a motion for 

mistrial was intended to provoke the defendant into moving 

for a mistrial, then retrial might properly be prohibited. 

Defendant argues for an even stricter standard as set forth 

Sy the Oregon Supreme Court in State v. Kennedy (Or. 1983) , 

666 P.2d 1316. 

The transcript demonstrates that the comments on the 

part of the bailiff were not intended to provoke the defendant to move for a mistrial. We do not in any way approve of 

this type of comment by a bailiff. However, in the present 

case, the comments could at most be construed as an attempt 

to assist the State in obtaining a conviction. No conviction 

was obtained. The jury was unable to agree and a mistrial 

was granted. Under the specific circumstances of this case, 

we conclude that the defendant has not come within the Oregon 

v. Kennedy exception. We also conclude that the bailiff's 

comments were not so offensive as to require a dismissal, and 

we decline to adopt a standard similar to that of State v. 

Kennedy. 

In a similar manner with regard to the alleged prosecutorial. misconduct, we conclude that the record does not 

demonstrate an attempt by the prosecution to provoke a mistrial. The conduct was ineffective if the aim was to obtain 

a conviction. 
We hold that the Double Jeopardy Clauses of both the 

Montana and United States Constitution do not bar retrial of 

the defendant for the following reasons: 

1. Because the original jeopardy continued without 

change following the hung jury and declaration of mistrial, 

the defendant was not placed in double jeopardy. 

2. In addition, the facts do not warrant a conclusion 

that the defendant presented a colorable double jeopardy 

claim. 

Should this Court grant a pretrial review of the speedy 

trial question? 

Defendant in substance contends that the criminal. proceedings should be dismissed because he has been denied a 

speedy trial. Six hundred thirty days had elapsed since the 

second trial and hung jury. Defendant makes an extensive 

argument with regard to the various reasons for this extensive delay, arguing that ba.sically aJ-1 of the delay is 

chargeable to the State. 

The State argues that the delay is largely due to the 

defendant's procedural tactics, pointing out that the State 

has not been independently dilatory. The State makes extensive reference to the order of the District Court of May 23, 

1984, pointing out that virtually all of the delay was attributable to the defendant's various motions and supervisory 

writ proceedings before this Court. 

Because we do not conclude that this issue is ripe for 

review, we will not discuss the facts in detail or a.ttempt to 

weigh the same. 

United States v. McDonald (1978), 435 U.S. 850, contains 

an extensive discussion of the United States Supreme Court's 

reasoning in reaching a conclusion that, before trial, a 
defendant may not appeal an order denying his motion to 

dismiss for violation of his Sixth Amendment right to speedy 

trial. In February 1970, the wife and two daughters of 

Captain McDonald were murdered in his quarters on a military 

base. The Army charged McDonald with the murders, but after 

further investigation, the charges were dismissed. and 

McDonald was honorably discharged. His discharge barred any 

further military proceedings. After further investigation 

and almost five years later, a grand jury indicted McDonald 

on three counts of first degree murder in January 1975. 

McDonald sought d-ismissal of the indictment because he 

had been denied a speedy trial. The Court concluded that the 

double jeopardy holding could not be applied to the issue of 

speedy trial. 

"In sharp distinction to a denial of a 

motion to dismiss on double jeopardy 

grounds, a denial of a motion to dismiss 

on speedy trial grounds does not represent 'a complete, formal and, in the 

trial court, a final rejection' of the 

defendant's claim. Abney v. United 

States, 431 U.S., at 659. The resolution 

of a speedy trial claim necessitates a 

careful assessment of the particular 

facts of the case. As is reflected in 

the decisions of this Court, most speedy 

trial claims, therefore, -- are best considered only after the relevant facts have 

been develo~ed at trial. 

"In Barker v. Wingo, 407 U.S. 514 (1972), 

the Court listed four factors that are to 

be weighed in determining whether an 

accused has been deprived of his Sixth 

Amendment right to a speedy trial. They 

are the length of the delay, the reason 

for the delay, whether the defendant has 

asserted his right, and prejudice to the 

defendant from the delay. Id., at 530. 

The Court noted that prejuxce to the 

defendant must be considered in the light 

of the interests the speedy trial right 

was designed to protect: '(i) to prevent 

oppressive pretrial incarceration; (ii) 

to minimize anxiety and concern of the 

accused; and (iii) to limit the possibility that the defense will be impaired. 

Of these, the most serious is the last, 

because the inability of a defendant 
adequately to prepare his case skews the 

fairness of the entire system.' . . . 

"Before trial, of course, an estimate of 

the degree to which delay has impaired an 

adequate defense tends -- to be speculative. 

The denial of a pretrial motion to dismiss an indictment on speedy trial 

grounds does not indicate that a like 

motion made after trial--when prejudice 

can be better gauged--would also be 

denied. Hence, pretrial denial of a 

speedy trial claim can never be considered a complete, formal, and final rejection by the trial court of the 

defendant's contention; . . . 

"Even --- if the degree - of prejudice could - be 

accurately measured before 

speedy trial claim nonetheless 

be sufficientlv inde~endent o 

trial, 

would 

- - - J. --- f the 

--- come of the trial - to warrant pretrial 

appellate review. The claim would be 

largely - - satisfied by an acquittal resulting from the prosecution's failure to 

carry its burden of proof. The d-ouble 

jeopardy motion in ~bne~ was separable 

from the issues at trial . . . In contrast, a central interest served by the 

Speedy Trial Clause is the protection of 

the factfindinu 2 Drocess a. at trial. - The 

essence - of - a defendant's Sixth Amendment 

claim - in - the usual case ---- is that the 

L--- Dassaae of time has frustrated his abili 

Q - to establish his innocence - of - the 

crime charged. Normally, - it - is only 

after trial that -- that claim may fairly - be 

assessed. 

". . . Unlike the protection afford-ed by 

the Double Jeopardy Clause, the Speedy 

Trial Clause does not, either on its face 

or according to the decisions of this 

Court, encompass a 'right not to be 

tried' which must be upheld prior to 

trial if it is to be enjoyed at all. It 

is the delay before trial, not the trial 

itself, that offends against the constitutional guarantee of a speedy trial. If 

the factors outlined in Barker v. Wingo, 

supra, combine to deprive an accused of 

his right to a speedy trial, that loss, 

by definition, occurs before trial. 

Proceeding with the trial does not cause 

or compound the deprivation already 

suffered." McDonald, 435 U.S. at 858-61 

(emphasis added) . 

In McDonald, the court pointed out a speedy trial problem which can result from any form of intermediate appeal. 
"Many defendants, of course, would be 

willing to tolerate the delay in a trial 

that is attendant upon a pretrial. appeal 

in the hope of winning that appeal. The 

right to a speedy trial, however, 'is 

generically different from any of the 

other rights enshrined in the Constitution for the protection of the accused1 

because 'there is a societal interest in 

providing a speedy trial which exists 

separate from, and at times in opposition 

to, the interests of the accused.' 

Barker v. Wingo, . . . Among other 

things, delay may prejudice the prosecution's ability to prove its case . . . and prolong the period during which 

defendants released on bail may commit 

other crimes. . . 

"Allowing an exception to the rule 

against pretrial appeals in criminal 

cases for speedy trial- claims would 

threaten precisely the values manifested 

in the S~eedv Trial Clause. And some 

assertions of delay-caused re judice 

would become-self-fulfillinq p:ophecies - -. 

durina L the ~eriod necessarv for - aweal." 

~c~onild, 435 U.S. at i62 (emphasis - - -. added) . 

In his diligent representation of the defendant, defendant's counsel has come before this Court a number of times 

on petitions for supervisory control. We in turn have taken 

extensive time to consider the petitions, to hear oral arguments and ultimately to give opinions, some of which granted 

supervisory control and some of which denied it. All of 

these proceedings, which are in the nature of an intermediate 

appeal, have become a part of the great delay which raises 

the speedy trial issue in this case. This underscores the 

difficult balancing problem this Court has in considering 

petitions for supervisory control, while seeking to protect 

the constitutional right of a speedy trial. Unfortunately, 

these ideas are in substantial part directly conflicting. 

However, we conclude that we need not reach a. decision on the 

speedy trial question at this time. 

We approve and adopt the reasoning quoted above from 

McDonald. We hold that defendant's claim of a denial of his 
right to speedy trial is generically different from his claim 

of double ieopardy. We conclude that the contentions on the 

part of the d.efendant that he has been denied a speedy trial 

cannot be considered until the retrial is held and all of the 

facts are presented to this Court on appeal. At that time, 

the issue will be ready for decision. At the present time, 

the record is not sufficiently complete to allow a decision 

on the speedy trial issue. 

We hold that the defendant is not entitled to supervisory control on his claim of denial of speedy trial. 

I11 

Did the District Court err in ordering a change of place 

of trial? 

Defendant argues that he has met a considerable burden 

in initially obtaining change of venue from Flathead County 

to Lake County. As appears from our original opinion, the 

trial court is granted the discretion to determine the place 

of trial. and the procedures to be followed. In advance of 

trial.., we are not able to determine if local prejudice in 

Flathead County might have some effect on the retrial. We 

should not presume in advance that the District Court and the 

State will not use appropriate procedures to protect the 

integrity of the jury process from any taint which may be 

present in Flathead County because of local prejudice. 

However, for the benefit of the District Court and counsel, 

we emphasize the need for stringent controls to insulate the 

trial- iury from any local prejudice. We insist that appropriate steps be taken to insure a fair third trial. 

We concl-ude that the District Court did not err in 

ordering the change of place of trial. 
The petition for supervisory control is denied j.n all 

respects. 

We concur: ,;-=T 

Justices 

Mr. Justice Frank E. Morrison, Jr., dissenting: 

I respectfully dissent. In view of the fact there have 

been two trials already I would decide the speedy trial issue 

at this time. Since the issue is reserved by the majority for 

later review in the event of conviction, I choose not to 

express myself on the subject at this time-. 
Mr. Justice John C. Sheehy, dissenting: 

I dissent to the opinion of the majority on rehearing, 

as I dissented to the original opinion in this case. Because 

the majority in its decision on rehearing has shifted ground 

to some extent in its ratio decidendi on the issues presented 

here, I must again set forth at length my objections to the 

majority opinion. 

The length of this dissent is required in part because 

of the inadeauate discussion of the applicable lilw in the 

majority opinion. It is a matter of concern amounting nearly 

to embarrassment, but not deterrence, to those of us who have 

differing philosophies of criminal justice and constitutional 

rights from the majority, that we must resort in dissent to 

what must appear to the press and the public to be carping 

over trivialities. Yet these trivialities, as the majority 

apparently regards them, are of momentous significance to the 

individuals involved.. Here, Forsyth will be subjected to a 

third trial from which, under our state constitution, he 

ought to be insulated. 

I turn my attention first to the issue of double 

jeopardy. In its original opinion, the majority refused to 

grant supervisory control under our state procedure, saying 

that "the remedy of a criminal defendant lies in an appeal 

foll-owing conviction, or in a post-conviction proceeding." 

The majority relied on State ex rel. LaFlesch v. District 

Court (1.974), 1.65 Mont. 302, 306, 529 P.2d 1403, 1405, to 

reach that conclusion. The decision of this Court in 

LaFlesch is invalid now under fed-era1 law because of a 

decision in Abney v. United States (1977), 431 U.S. 651, 97 

S.Ct. 2034, 52 L.Ed.2d 651. 
In Abney, the United States Supreme Court determined 

that a pretrial order in the fed-era1 district court denying a 

motion on double jeopardy grounds was reviewable on appeal 

under federal appellate practice before the defendant could 

be put to the burden of a second trial, saying: 

"However, this Court ha.s long recognized that the 

Double Jeopardy Clause protects an individual 

against more than being subjected to double 

punishments. It is a guarantee against being twice 

put to trial for the sameoffense." 431U.S. at 

660-1, 97 S.Ct at 2014, 52 L.Ed.2d at 661. 

As I said, the majority has now shifted away from its 

original holding that Forsyth must undergo a second trial and 

then appeal if he is convicted in order to have the double 

jeopardy claim reviewed. Instead, in its opinion on 

rehearing, the majority nimbly jumped to Oregon v. Kennedy 

(1982), 456 U.S. 667, 102 S.Ct 2083, 72 L.Ed.2d 416 to find. 

that on the jury tampering issue here Forsyth has not brought 

himself in the exception allowed in Oregon v. Kennedy. 

Unexplained by the majority is how Oregon v. Kennedy, wh.ich 

applies to prosecutorial malfeasance, applies to jury 

tampering by a bailiff, a much different situation. 

The majority has also shifted its view as to how it will 

regard the flagrant abuses by the bailiff in this case. In 

its original opinion here, the majority seemingly agreed with 

the District Court in concluding that "none of the actions 

complained of was motivated by a desire or an. attempt by the 

bailiff to influence the jurors' perception of the trial or 

to affect the jury's deliberations or decision-making, and 

that none of the bailiff's comments influenced the attitude, 

perception or ultimate judgment of any juror." 

In their opinion on rehearing however, the majority 

concludes that the comments of the bailiff "could have a.t 
most been construed as an attempt to assist the State in 

obtaining a conviction," as if that were permissible. 

The comments that the bailiff made to the jury "to 

assist the State in obtaining a conviction" were these: 

1. Following the testimony of Debbi Neff, a former 

girlfriend of Forsyth, the bailiff told members of 

the jury that she must have been drugged to 

testify, that 'you should see in her medicine 

cabinet, ' implying that she was a drug abuser, and 

that she had nearly 'blown it' at the first trial. 

2. On another occasion during the trial, the 

bailiff told members of the jury 'I can say just 

one word and it would remove all doubt from your 

mind.. ' 

3. While the court and counsel were in chambers 

during the course of the trial, and the jurors were 

curious about what was going on in chambers, the 

bailiff stated that the county attorney, or the 

county attorney and defense counsel, or the judge 

and the attorneys would come in after the trial 

'and tell you all the things you didn't get to know 

during the trial and he would answer your 

questions.' One of the jurors stated that she 

feared during deliberations that if she voted not 

guilty and then the county attorney came in and 

told her about important evidence that had been 

suppressed, she was concerned that later she would 

believe she had voted the wrong way. 

4. The bailiff informed members of the jury that 

his son was member of the Kalispell police 

department which was involved in the prosecution of 

the action agai-nst Forsyth. 

5. During the lengthy days' cross-examination of 

the State ' s principal witness by d.efense counsel, 

the bailiff made the remark on several occasions to 

memhers of the jury 'we know who is getting paid. by 

the hour,' imputing deliberate delay to court 

appointed defense counsel. 

6. During the trial, when distributing to the 

jurors their first expense checks, the bailiff told 

the jury that the cost of the trial to the State 

had already reached $6,000. 

7. The bailiff pointed out to the jurors the 

parents of the victim who were seated in the 

courtroom. 

8. When the jurors went to the scene of the crime, 

they were told by the bailiff to stay together 

because 'they were afraid that something would 

happen or some comment would be made that they 

would get a retrial.' 
9. The jurors wanted to send a Christmas gift to 

one of the witnesses, Norman Calvert, and Bourne, 

the bailiff, volunteered to ask his son, as a 

member of the Kalispell Police Department to insure 

that Calvert received it. 

10. The jury began deliberating the case after it 

was submitted to it on New Year's Eve, December 31, 

1982. Bourne told the jury that the Flathead 

County jury in the earlier case had deliberated for 

approximately 8 hours and that therefore the jurors 

in this case might anticipate reaching a conclusion 

in time for a 'Happy New Year.' 

In their original opinion, th.e majority found 

"substantial evidence to support the District Court's 

findings" that the bailiff's remarks had no effect on the 

trial jury. Now, the majority sees those comments as an 

inconsequential attempt "to assist in obtaining a 

conviction." 

I would hold that the remarks of the bailiff to the 

jurors prejudiced the jury as a matter of law to prevent 

Forsyth from getting a fair second trial; that the bailiff's 

statements are not covered by the decision of the United 

States Supreme Court in Oregon v. Kennedy, supra; and that 

under our st.ate constitution the criminal proceedings against 

Forsyth in this case should now be dismissed on double 

jeopardy grounds. 

No discussion appears in the majority opinion as to 

whether it is determining the case on federal or state 

ground-s. Because, however, it relies on Oregon v. Kennedy in 

reaching its decision, I must assume that it regarded the 

case solely from the viewpoint of the federal constitution 

without any regard to our state constitution. 

The following state constitutional provisions apply to 

Forsyth in this case: 

"Right and justice shall be administered without 

sale, denial, or delay." Art. 11, Sec. 16. 
"No person shall be deprived of life, liberty, or 

without due process of law." ~rti 11, 

Sec. 17. 

"In all criminal prosecutions the accused shall 

have the right . . . to meet the witnesses against 

him fa.ce to face; . . . to have . . . a speedy 

public trial by an impartial jury . . ." Art. 11, 

Sec. 24. 

". . . No person shall be again put in jeopardy for 

the same offense previously tried in any 

lurisdiction." Art. 11, Sec. 25. 

"The right of trial by jury is secured to all and 

shall remain inviolate . . . I' Art. 11, Sec. 26. 

Everyone of those state constitutional rights have been 

taken from Forsyth by the State either through its jury 

tampering by the bailiff or by its denial of a speedy trial. 

I have set out the state constitutional provisions above 

because I feel that our state constitution controls this case 

and because the majority opinion has not made any reference 

to the state constitution. The majority members apparently 

feel that double jeopardy rights under our state constitution 

are co-terminous with such rights under the federal 

constitution. This is evinced because the majority has tried 

to fit the decision in this case into the United States 

Supreme Court decision in Oregon v. Kennedy, supra. As I 

hope to demonstrate, that case is not applicable here. 

There is no United States Supreme Court d.ecision 

directly determining the effect on a defendant's right to 

fair trial when a bailiff has tampered. with the jury in the 

defendant's disfavor. We have no federal criteria that would 

guide us as to how the present United States Supreme Court 

would view double jeopardy under the facts of this case from 

the federal viewpoint. I sense that the United States 

Supreme Court is considerably less concerned about the 

constitutional rights of defendants than I am. I, therefore, 
confine myself in this dissent to an examination of this case 

from the viewpoint of our state constitution and statutes. 

If I advert in this opinion to federal decisions, it is only 

for the purpose of attempting to explain them, or to use the 

rationale of the federal decisions to buttress my opinion of 

the application of our state's constitution. 

There are Montana statutes that directly instruct a 

ba.iliff as to his duties when the jury is placed in his 

charge. When a jury is to view the premises, under § 

46-16-502, MCA, the jurors are conducted in a body under the 

custody of the sheriff or bailiff to view said place. The 

bailiff may not then communicate with them concerning any 

subject, for the statute provides: 

"46-16-502. -- View of relevant place or property. 

When the court deems it proper that t5 jury view 

any place or personal. property pertinent to the 

case, it will order the jury to be conducted in a 

body under the custody of the sheriff or bailiff to 

view said place or personal property in the 

presence of the defendant and his counsel. The 

place or personal property will be shown them by a 

person appointed by the court for that purpose, and 

they may personally inspect the same. The sheriff 

or bailiff must -- be sworn to suffer no person to 

speak or otherwise communicze with -- the jury -- or to 

- do - so himself on any subject connected with the -- 

trial and to return them into the courtroom without 

unnecessary delay or at a specified time, as the 

court may direct." (Emphasis added.) 

The bailiff here violated that statute when he informed 

the jury that they must stay together because otherwise the 

defendant might get a retrial. 

When the bailiff is in charge of the jury, the duty of 

the bailiff is statutorily clear: 

"46-16-501. Conduct of jury during trial. (1) 

The jurors sworn to try an action may at any time 

before the submission of the case, in the 

discretion of the court, be permitted to separate 

or be kept in charge of a proper officer. The 

officer must be sworn to keep the jurors together 

until the next meeting of the court, to suffer no 

person to speak to them or communicate with them or 
to do so himself on any subject connected with the 

trial, and to return them into court at the next 

meeting thereof. 

"(2) (a) The jury must also at each adjournment 

of the court, whether permitted to separate or kept 

in charge of officers, be admonished by the court 

that it is their duty not to converse among 

themselves or with anyone else on any subject 

connected with the trial or to form or express any 

opinion thereon until the cause is final1.y 

submitted to them. 

" (b) In al.1 cases appealed to the supreme court, 

it shall be conclusively deemed that the court or 

judge gave the proper admonition in accordance with 

the provision of subsection (2) (a) unless the 

record affirmatively shows to the contrary." 

Under Montana practice, each time that the jury is 

delivered to the charge of the bailiff, the bailiff takes an 

oath before the court, an oath that is couched in the 

language of the foregoing statutes, that he will obey those 

statutes when the jury is in his ch.arge. 

Without quaver, we can assert that the bailiff Bourne 

flagrantly violated. his oath and the statutes in this case. 

It is time now to examine Oregon v. Kennedy, the United 

States Supreme Court case upon which the majority members 

base their decision on double jeopardy in this case. 

The U.S. Supreme Court decision in Kennedy can be 

summarized: when a defendant in a criminal case successfully 

moves for a mistrial, he may invoke the bar of double 

jeopardy in a second effort to t.ry him only if the conduct 

giving rise to the successful motion for a new trial was 

prosecutorial. or judicial misconduct intended to provoke the 

defendant into moving for a mistrial. 

Just for starters, we may note the distinguishing 

characteristics of this case from Oregon v. Kennedy. Here, 

the mistrial was the result of a hung jury, not one where the 

defendant moved for mistrial; secondly Oregon v. Kennedy 
discusses prosecutorial or judicial misconduct; here we have 

a case of bailiff misconduct. 

In Oregon state court, Kennedy was tried for stealing an 

oriental rug. During the cross-examination of an expert on 

the value of the rug, the prosecutor asked the expert whether 

he had done business with the Kennedys. The expert answered 

that he had not. The prosecutor asked: "Is that because he 

is a crook?" 

The trial judge granted defendant's motion for a 

mistrial- on the ground of prosecutorial misconduct. 

The double jeopardy hearing in the trial court in 

Kennedy was to a judge different from the one who had granted 

the mistrial. The trial judge determined that while the 

prosecutorial questioning was "overreaching," he did not find 

that the prosecutor intended to provoke the defendant into 

moving for a mistrial. Therefore, the trial judge denied the 

double jeopardy motion. The denial was appealed to the 

Oregon Court of Appeals. 

In State v. Kennedy (Oregon 1980), 619 P.2d 948, rev. 

den. 290 Or. 551 (1981), the Oregon Court of Appeals held 

that double jeopardy applied under the United States 

Constitution and that the defendant could not be retried. 

The Court of Appeals based its decision on the proposition 

that the prosecutor was indeed "overreaching." The Oregon 

Supreme Court, without comment, denied the state's petition 

for a review of the decision of the Court of Appeals. 

The case came before the United States Supreme Court on 

certiorari and was decided in Oregon v. Kennedy, supra. The 

U.S. Supreme Court decided that the Oregon Court of Appeals 

had acted on federal constitutional groumds and therefore the 

matter was properly reviewable in the Washington D.C. Court. 
It then reached a d-ecision which I have summarized above, 

remanding the cause to the Oregon Court of Appeals to 

determine if i.n fact the prosecutor had "intended" to provoke 

the defendant into moving for a mistrial-. 

The Kennedy case returned to the Oregon Court of 

Appeals, reported in State v. Kennedy (Oregon 1983), 657 P.2d 

717. Because the trial court had found that the prosecutor's 

question was not intentional., the Court of Appeals then 

reversed itself saying that double jeopardy was not a bar. 

The Court of Appeals assumed that the Oregon law concerning 

retrials after prosecutor-induced mistrials was identical and 

co-terminous with the view of the federal jeopardy clause 

expressed by the U.S. Supreme Court in Oregon v. Kennedy. 

The matter came again before the Oregon Supreme Court in 

State v. Kennedy (Oregon 1983), 666 P.2d 1316. The Oregon 

Supreme Court decided that its law was not identical with the 

federal view of the double jeopardy clause in the facts 

pertaining to the prosecutorial misfeasance case, mainly 

because the Oregon Supreme Court recognized as difficult 

obstacles, proving "intent" on the part of the prosecutor, 

and the difficulty faced by trial courts in making decisions 

which could lead to the disbarment or other punishment of the 

prosecutors. The Oregon Supreme Court concluded that it 

would hold under its constitution and state law that double 

ieopardy applied if the prosecutorial conduct was so 

prejudicial to the defendant that it could not be cured by 

any means short of a mistrial, --- and if the official -- knew the 

conduct was improper - and prejudicial and either intended - or 

was indifferent -- to the resulting mistrial - or reversal. The 

Oregon Supreme Court then went on to find that in the Kennedy 

case, it could not say that the official intended to provoke 
a mistrial, or that the prosecutor was indifferent to the 

result of his questioning and a.ffirmed th.e Court of Appeals. 

It should be apparent that Oregon v. Kennedy, in any of 

its phases, has no connection with bailiff tampering of a 

jury to aid the state, a completely different question. 

Not discussed by the majority is another Oregon case 

which is directly in point. That case is Oregon v. Rathbun 

(Oregon 1979), 600 P.2d 392. The facts are so nearly 

parallel to the facts of the Forsyth case that they bear some 

recitation here. 

Rathbun was charged with first degree robbery and the 

case was submitted to a jury which deliberated for a day and 

a half and then reported to the trial judge that it was at an 

impasse. Defendant's motion for a mistrial was allowed. On 

the evening of the order granting mistrial, two of the jurors 

went to the district attorney and advised him about comments 

which had been made by the court's ba.iliff to the jury during 

the recesses in the trial and during the deliberations. Six 

days later, in the presence of counsel the jurors were 

j.ndivid.ually interrogated by another judge concerning the 

bailiff's conduct and its effect on the jurors. 

The case reached the Oregon Supreme Court after the 

Court of Appeals reversed the District Court which had held 

that d-ouble jeopardy applied. 

The Oregon Supreme Court first considered whether there 

was a causal relationship between the improper remarks of the 

bailiff and the inability of the jury to agree upon a 

verdict. During the interrogation, each and every juror had 

denied being influenced by the bailiff's remarks. The Oregon 

Supreme Court determined that no court could attempt by some 

method of mind reading to know whether the bailiff's conduct 
actually influenced the mental process of any of the jurors 

and held with respect to that situation it would assume, 

without proof, that there was a causal relationship between 

the misconduct and the mistrial. The Oregon Supreme Court 

determined that those cases applying to prosecutorial and 

judicial misconduct had. no application here: 

"We agree with the Court of Appeals that this is 

not a case in which the mistrial was 'triggered by 

prosecutorial or judicial desire to harass the 

defendant or afford the prosecution a more 

favorable opportunity to convict.' (Citing a 

case.) We further agree that this is a case of an 

officer of the court who, on her own, was guilty of 

improper conduct which caused the mistrial in 

question. We cannot agree that the want of 

prosecutorial and judicial misconduct leaves the 

case in the same situation in which jury 

contamination resulting from ordinary third party 

misconduct causes a mistrial and is, therefore, no 

bar to retrial." 600 P.2d at 397. 

The Oregon Supreme Court then held, under Oregon law 

(which is substantially similar to our state law): 

"In the United States Supreme Court decisions cited 

by the parties concerning prosecutorial or judicial 

misconduct the misconduct was perpetrated for the 

very purpose of triggering a motion by the 

defendant for a mistrial. Here there is nothing to 

suggest the bailiff sought to cause a mistrial. We 

daresay that nothing was further from her mind than 

causing a hung jury by her prejudicial discourse. 

On the contrary, her apparent purpose, as appears 

from the motion judge's findings, was -- to assist the 

state - in securinq - a conviction. 

"The misconduct by this bailiff is so abhorrent to 

the sense of justice that we find the same sanction 

is required to effectuate the con.stitutiona1 

command as in the case where the prosecutor or the 

iudge intends to provoke a mistrial. The state put 

this officer of the court in the position to wreak 

havoc and must bear the same burden as when its 

prosecutor or judge in like manner offends." 600 

P.2d a.t 398. (Emphasis supplied.) 

The Oregon Supreme Court found it abhorrent to its sense 

of justice that a bailiff would attempt "to assist the state 

in securing a. conviction." The majori.ty members of the 

Montana Supreme Court find such assistance permissible. 
I would agree with the Oregon Supreme Court in Oregon v. 

Rathbun, and hold that in this case double ieopardy applied 

to prevent any further prosecution of Forsyth because of the 

bailiff's misconduct. 

Porsyth also charges in this case that he is entitled to 

double jeopardy on the grounds of prosecutorial misfeasance. 

The majority members have dismissed that charge without any 

discussion of either state law or the exception carved out in 

the United States Supreme Court under Oregon v. Kennedy, 

supra. I will not belabor the point, since I have already 

determined, for my purposes that double jeopardy ought to 

apply because of the bailiff's misconduct. 

Turning now to the speedy trial issue, I disagree with 

the majority holding that a defendant must wait until after 

trial before he can have an appellate review of a speedy 

trial issue. Such a holding means that in all cases, no 

matter how long the trial has been delayed, the defendant has 

no recourse to an adverse decision on his right to speedy 

trial in the district court until the trial which has been 

denied him speedily has occurred. 

In this case, two and half years have now elapsed since 

the second trial of Forsyth. Much, if not all of the delay 

is attributable to the State both because it has resolutely 

refused to provide him with the tools of his defense, and 

resolutely determined to try him again in Flathead County, a 

site where it has already been determined that he could not 

receive a fair trial. 

Again, the reliance of the majority members on the 

federal decision of United States v. PriacDonald (1978), 435 

U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18, relating to speedy 

trial is misplaced. The MacDonald case is careful to 
distinguish a speedy trial issue from a double ieopardy 

issue. It made that distinction because under Abney v. 

United States, supra, a denial of a double jeopardy claim is 

a full and final resolution of that issue separate and apart 

from a trial and under federal practice there is a right of 

review of such a denial. There is no right of review of a 

denial by a federal district court of a speedy trial claim 

because the speedy trial issue is "not sufficiently 

independent of the outcome of the trial to warrant pretrial 

appellate review. " In other words, under federal- practice, 

there is no provision for an appeal from a federal district 

court to a higher Court of Appeals of a speedy trial issue, 

before the trial actually occurs. 

That is not the case under our law. Our constitutional 

provision for supervisory control allows this Court to 

intervene in interlocutory manner in cases pending in the 

district courts when the district court, though acting in 

iurisdiction, is nevertheless committing error. 

If the interest of this Court cannot be aroused when 

faced with a 2% year delay in trial, especially when most of 

the reasons for the delay exist in the records of our Court, 

there is little hope that such interest will be aroused after 

the next trial, if Forsyth is convicted. 

Finally, with respect to the issue of change of venue, 

the majority decides that issue without any reference to S 

46-13-203, MCA, the statute controlling the power of the 

courts to change the place of trial. 

That section provides in pertinent part: 

"If the court determines that there exists -- in the 

county in which the prosecution is pending such 

prejudice that afair trial cannot he had, it 

shall: 
"(a) transfer the cause to any other court of 

competent jurisdiction in any county in which a 

fair trial may be had; 

" (b) direct that a jury be selected in any county 

where a fair trial may be had and then returned to 

the county where the prosecution is pending to try 

the case; or 

" (c) take any other action designed to insure that 

a fair trial may be had." (Emphasis supplied.) 

Section 46-13-203, MCA, defines the power of the 

district court to change the place of trial in a criminal 

case. In this case, the prosecution of Forsyth was pending 

in Lake County. The District Court has never determined that 

there existed in Lake County such prejudice that a fair trial 

could not be had there. Therefore, the district court had no 

power to move the venue of the trial from Lake County. The 

reason that the majority members do not discuss S 46-13-203 

is understandable. Under the statute, it cannot be explained 

where the District Court got the authority to change the 

place of trial here. 

Forsyth may well. be guilty of killing his wife, or 

plotting to kill her. The headstrong determination of the 

bailiffs, the District Court, the prosecution and this Court 

to convict him at whatever cost to constitutional rights, to 

statutory directions, or to commonly accepted notions of fair 

trial make his further prosecution unacceptable to me. I 

would order his prosecution dismissed. 

n ! 

Justice 

Mr. Justice William E. Hunt, Sr., eoncurs with the foregoing 

dissent. 

P