No. 84-415 INTHE SUPREME COURT OF THE STATE OF MONTANA 19135

STATE OF MONTANA, ex rel., JERRY PAUL FORSYTH, Petitioner,

DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT OFTHE STATE OF MONTANA, INAND FOR THE COUNTY OF FLATHEAD, THE HONOFLABLE MICHAEL H. KEEDY, Judge presiding, Respondent.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:

For Petitioner: Robert S. Kellerargued, Kalispell, Montana

For Respondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana ClaySmithargued, Asst. Atty. General, Helena Ted0. Lympus, CountyAttorney, Kalispell, Montana

Submitted: MaY 211985 Decided: July 2, 1985

Filed: 

### ~i(jk 

## 2 

## 1985Mr. JusticeFred 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 opiniondated January 3, 1985, this Courtdeclined to take jurisdiction under the petition for writ of supervisory control-. Defendant filed apetition for reconsideration,and briefing and oral argumentwas 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 Constitutionsbar retrialof 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 ischargeable to the State in the same manner as misconduct committedby aprosecutor or a judge. The State argues that jeopardywas not terminated by the declared mistrial following a jury deadlock. The State further argues that there is no standard which bars retrial under thepresent 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 jeopardyhad resulted in a fact situation similar to the present Forsyth case. InRichardson, the petitioner argued that the judicialdeclaration of amistrial

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 theprinciples 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 inhis case and which allowed him to assert avalid claim of d-oublejeopardy. "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 'apage ofhistory isworth avolume of logic' sensibly applies here, and we rea-ffirm the proposition tha.t a trial court's declaration -- of amistrial-follow

### ing a hung jury is not an event that 

### --- termi:ates the oriqinal jeopardx towhich petitioner was subjected. The Government, like the defendant, is entitled to resolution 

### of the case by verdict from the jury, and jeopardy does not terminatewhen the jury is discharged because it is unable to a.gree."Richardson, 1-04S.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 tomove for amistrial. We donot in anyway approve of this type of commentby a bailiff. However, in the present case, the comments could atmost be construed as an attempt to assist the State in obtaininga 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 defendanthas not comewithin the Oregon

v. Kennedy exception. We also conclude that the bailiff's comments were not sooffensiveas 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 conductwas ineffective if the aimwas to obtain

a conviction.We hold that the Double Jeopardy Clauses of both the Montana and United StatesConstitutiondo 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 defendantwas notplaced indouble 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 independentlydilatory. 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 thedefendant's various motions and supervisory writproceedings before thisCourt. Because we do not conclude that this issue is ripe for review,wewill not discuss the facts in detail or a.ttemptto weigh the same. United Statesv. 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, adefendant may not appeal an order denying his motion to dismiss forviolation 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 amilitary base. TheArmy charged McDonald with themurders, 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 degreemurder in January 1975. McDonald sought d-ismissalof 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,431U.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. "InBarkerv. Wingo, 407U.S. 514 (1972), theCourt 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 toprotect: '(i) toprevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused;and (iii)to limit thepossibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendantadequately to prepare his case skews the fairness of the entire system.' 

# . . . "Before trial, of course, an estimate of the degree towhich delayhas impaired

# an adequatedefense tends

### -- tobe 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 ofprejudice could be



### --- - - accurately measured before speedy trial claim nonetheless be sufficientlv inde~endentotrial, would f the

- - J. 

### - 

### --- come of the trial to warrant pretrial 

### --- - appellate review. The claim would be largely satisfiedby an acquittal result- - ing 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 Drocess at trial. The

2 a. 

### - essence 

## - of 

### - a defendant's Sixth Amendment claim in the usual case is that the 

## - - ---- Dassaae of time has frustrated his abili

L--- Q 

### - to establish his innocence 

### - of 

### - the crime charged. Normally, 

### - it 

### - is only after trial that that claimmay fairlybe 

### -- - assessed. 

# ".

..Unlike the protection afford-edby the Double Jeopardy Clause, the Speedy TrialClause doesnot,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 trialitself, that offends against the constitutional guaranteeof a speedy trial. If the factors outlined in Barkerv. 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 (emphasisadded)

# . In McDonald, the courtpointed 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.' Barkerv. 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~eedvTrial Clause. And some assertions of delay-caused rejudice would become-self-fulfillinq p:ophecies- -. durina the ~eriod necessarv for aweal." L 

# - ~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 supervisorycontrol. 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 thatwe 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 hisright to speedy trial is generically different fromhis claim of double ieopardy. We conclude that the contentions on the part of the d.efendantthat he has been denied a speedy trial cannotbe 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 controlonhis claimofdenial of speedy trial. I11 Did theDistrict 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 fromFlathead 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 shouldnotpresume in advance that theDistrict 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 stepsbe taken to insure a fair third trial. We concl-udethat the District Court did not err in ordering the change ofplace of trial.The petition for supervisory control is denied j.n all respects.

We concur: ,;-=T

Justices

Mr. Justice Frank E. Morrison, Jr., dissenting: Irespectfully dissent. Inview of the fact there have been two trials already Iwould decide the speedy trial issue at this time. Since the issue is reserved by themajority for later review in the event of conviction, Ichoose not to expressmyself on the subject at this time-.Mr. JusticeJohn C. Sheehy,dissenting:

I dissent to the opinion of the majority on rehearing,

as Idissented to the original opinion in this case. Because the majority in its decision on rehearinghas 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 amatter of concern amountingnearly to embarrassment,but not deterrence, to those of uswho 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 apparentlyregards them,are of momentous significanceto 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-owingconviction, or in a post-conviction proceeding." The majority relied on State ex rel. LaFlesch v. District Court (1.974),1.65Mont. 302, 306, 529 P.2d 1403, 1405, to reach that conclusion. The decision of this Court in LaFlesch is invalid now under fed-era1law 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 apretrial order in the fed-era1districtcourt denying a motion on double jeopardy grounds was reviewable on appeal under federal appellate practice before the defendant could be put to theburden 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 againstbeing twice put to trial for the sameoffense." 431U.S. at 660-1, 97S.Ct at 2014, 52L.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 issuehere Forsyth hasnotbrought 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 abailiff, amuch different situation. Themajority has also shifted itsview as tohow itwill regard the flagrant abuses by the bailiff in this case. In its original opinionhere, themajority seemingly agreed with the District Court in concluding that "none of the actions complained ofwas motivated by a desire or an.attemptby 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 orultimate judgmentof any juror." In their opinion on rehearing however, the majority concludes that the comments 

### of the bailiff "could have a.tmost been construed as an attempt to assist the State in obtaining a conviction,"as if thatwere 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 DebbiNeff,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 shewas 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 jurorswere 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

'andtellyou all the thingsyoudidn'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, shewas concerned that later shewould believe shehad voted thewrongway. 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 actionagai-nstForsyth. 5. During the lengthy days' cross-examination of the State

### 's principal witness by d.efensecounsel, the bailiffmade the remark on several occasions to memhers of the jury 'weknow who is gettingpaid.by the hour,' imputing deliberate delay to court appointed defense counsel. 6. During the trial, when distributing to the jurors their first expense checks, thebailiff 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 jurorswent 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 itonNew Year's Eve,December 31, 1982. Bourne told the jury that the Flathead County jury in the earlier casehad deliberated for approximately 8hours and that therefore the jurors in this case might anticipate reaching a conclusion in time for a 'HappyNew 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.ateconstitution 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 Oregonv. 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,ordelay." 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.ceto face; 

# . . . to have 

# .

# . . a speedy public trial by an impartial jury

# ..

# ." Art. 11, Sec. 24. 

# ".

.

# .No person shallbe 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. Ihave setout 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 themajority has tried to fit the decision in this case into the United States Supreme Court decision in Oregon v. Kennedy, supra. As I hope todemonstrate, that case is not applicablehere. 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'sdisfavor. We have no federal criteria thatwould 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 Iam. 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 buttressmy opinion of the applicationof 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 statuteprovides: "46-16-502. 

### -- View of relevant place or property. When the court deems it proper that t5jury 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 sherifforbailiff 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 

### -- thejury 

### -- 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 courtmay direct." (Emphasisadded.) 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 tryan 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 orto 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,whetherpermitted 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 theproper 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 thebailiff, 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 inhis 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 Oregonv. Kennedy, the United States Supreme Court case upon which the majority members base their decision ondouble 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.ryhim only if the conduct giving rise to the successful motion for a new trial was prosecutorial.or judicial misconduct intended toprovoke the defendant intomoving for amistrial. Just for starters, we may note the distinguishing characteristics of this case from Oregon v. Kennedy. Here, themistrialwas the resultof ahung jury, not onewhere the defendant moved for mistrial; secondly Oregon 

### v. Kennedydiscusses prosecutorial or judicial misconduct; here we have

a case of bailiffmisconduct. In Oregon state court,Kennedywas tried for stealing an oriental rug. During the cross-examination of an expert on the value of the rug,theprosecutor asked the expertwhether 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 prosecutorialmisconduct. The double jeopardy hearing in the trial court in Kennedywas to a judge different from the one whohad granted the mistrial. The trial judge determined that while the prosecutorial questioningwas "overreaching,"he did not find that the prosecutor intended to provoke the defendant into moving for amistrial. Therefore, the trial judge denied the double jeopardy motion. The denial was appealed to the Oregon Court ofAppeals. 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 reviewof thedecision of the Court ofAppeals. 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 constitutionalgroumds and therefore the matter was properly reviewable in theWashington D.C. Court.It then reached a d-ecisionwhich I have summarized above, remanding the cause to the Oregon Court of Appeals to determine if i.nfact theprosecutor had "intended" to provoke the defendant intomoving for amistrial-. The Kennedy case returned to the Oregon Court of Appeals, reported in Statev. Kennedy (Oregon1983), 657P.2d 717. Because the trial courthad 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 afterprosecutor-induced mistrialswas identicaland co-terminous with the view of the federal jeopardy clause expressed by the U.S. Supreme Court in Oregon v. Kennedy. Thematter came againbefore the Oregon SupremeCourt in State v. Kennedy (Oregon 1983), 666 P.2d 1316. The Oregon SupremeCourtdecided that its lawwas 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 inmaking 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 SupremeCourt thenwent on to find that in theKennedy case, it could not say that the official intended to provokea mistrial, or that the prosecutor was indifferent to the result of his questioning and a.ffirmedth.eCourt ofAppeals. 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 differentquestion. 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 recitationhere. 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 itwas 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 beenmade by the court'sba.iliffto the juryduring 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 conductand its effect on the jurors. The case reached the Oregon Supreme Court after the Court of Appeals reversed the District Court which had held thatd-oublejeopardy applied. The Oregon Supreme Court first considered whether there

was a causal relationship between the improper remarksof the bailiff and the inability of the jury to agree upon a verdict. During the interrogation, each and every juror had denied being influencedby thebailiff's remarks. TheOregon Supreme Court determined that no court could attemptby some method of mind reading to knowwhether the bailiff's conductactually 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 judicialmisconducthad.no applicationhere: "We agree with the Court of Appeals that this is not a case inwhich the mistrial was 'triggeredby 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 courtwho, 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 (whichis substantially similar to our state law): "In theUnited StatesSupremeCourtdecisions cited by theparties concerning prosecutorialor judicial misconduct the misconduct was perpetrated for the very purpose of triggering a motion by the defendant for amistrial. Here there isnothing to suggest thebailiff sought to cause amistrial. We daresay that nothingwas further fromhermind than causing a hung jury by her prejudicial discourse. On the contrary, her apparent purpose, as appears from themotion judge's findings,was 

### -- to assist the state - in securinq

### - a conviction. "Themisconduct 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 toprovoke amistrial. The state put this officer of the court in theposition towreak havoc and must bear the same burden as when its prosecutor or judge in like manner offends." 600 P.2d a.t398. (Emphasissupplied.) TheOregon SupremeCourt found itabhorrent 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 assistancepermissible.I would agreewith theOregon Supreme Court inOregon v. Rathbun, and hold that in this case double ieopardy applied toprevent any furtherprosecution of Forsythbecause of the bailiff'smisconduct. Porsyth alsocharges in thiscase thathe isentitledto double jeopardy on the grounds of prosecutorial misfeasance. The majority members have dismissed that charge without any discussionof either statelaw ortheexceptioncarved outin the United States Supreme Court under Oregon v. Kennedy, supra. I willnot belabor the point, since I have already determined, for my purposes that double jeopardy ought to applybecause of thebailiff'smisconduct. Turning now tothe speedy trial issue, I disagreewith 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 matterhow longthe trialhas been delayed, thedefendant has

no recourse to an adverse decision on his right to speedy trial in the district court until the trialwhich has been deniedhim speedilyhas occurred. In this case, two and half years have now elapsed since the second trialof Forsyth. Much, if not allof the delay is attributable tothe State both because it has resolutely refused to provide him with the tools of his defense, and resolutely determined totryhim again inFlathead County, a site where it has already been determined that he could not receive a fairtrial. 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 todistinguish 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 federalpractice 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,isnevertheless committingerror. 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 littlehope that such interestwillbe 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 theplace of trial. That sectionprovides inpertinent 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 trialmay be had; 

### "(b) direct that a jury be selected in any county where a fair trialmay 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. TheDistrictCourt has never determined that there existed in LakeCounty suchprejudice that a fair trial could notbe had there. Therefore,the district courthad 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 cannotbe explained where the District Court got the authority to change the place of trialhere. 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 atwhatever cost to constitutional rights, to statutorydirections, or to commonly accepted notions of fair trial make his further prosecution unacceptable to me. I would order his prosecutiondismissed. 

## n ! Justice

Mr. JusticeWilliam E. Hunt, Sr., eoncurswith the foregoing dissent. 

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