Warren E. Burger: We will hear arguments first this morning in 76-1200, Crist against Cline and Bretz. Mr. Keller, you may proceed whenever you are ready.
Robert S. Keller: Mr. Chief Justice and members of the Court. Jurisdiction has been reserved in this case, a double jeopardy case proceeding out of Montana. We are proceeding under the provisions of 28 United States Code 1254 (2). The Ninth Circuit Court of Appeals in effect held that Montana Statute 95-1711 taken from the model penal code was unconstitutional. 1711 permits a retrial if the first trial has been terminated before the first witness is sworn as distinguished from the federal rule that when the jury is empaneled and sworn. Some of the facts in the case that give rise to the jurisdiction of the Court, this proceeded in 1974, a nine count information against Bretz and Cline and Mrs. Cline, and she is not relevant to this appeal. One of the counts and one of the gut counts was obtaining money by false pretenses alleged to have occurred between January and February of 1974. After the jury was empaneled and sworn the defendants moved, made several motions, but a motion in limine to confine the state to the confines of the information, January to February of 1974 and unfortunately a typographical error, it should have been January 1973 to February 1974. It put the trial judge in a dilemma for two reasons. The state moved to amend to correct the error and I bring this up because Justice Tuttle in the Ninth Circuit commented that this is simply a formal defect. The trial judge was in this dilemma; to permit the amendment meant we were talking an additional year of time against which the defendant had to defend at the last minute. Secondly, in 1973 the Montana legislature enacted a comprehensive sweeping Montana Criminal Code of 1973 that repealed all preexisting substantive law effective January 1, 1974. So in essence, they were going to Court on this particular count, there were three counts, but this particular one on an offense that had been repealed before it was alleged to have been committed. So the Trial Court was in a real dilemma and sua sponte dismissed the three counts that had the typographical error. The state as I indicated had moved to amend, and this had been strenuously objected to by the defendants and that is when the Court sua sponte dismissed. They then dismissed the remaining six counts. The state that of its own motion re filed a new information, corrected the defect and filed a two count information. The first count was grand larceny and it tracked one of the six counts that the state had moved to dismiss of its own motion and the second count was obtaining money by false pretenses with the typographical error corrected and the jury found, there was a new trial, and the jury found the defendants guilty of this obtaining money by false pretenses, one of the counts had the typographical error.
Potter Stewart: Mr. Keller, we postponed the question of whether or not we have a appellate jurisdiction over this case until the argument in the matter rather than noting probable jurisdiction.
Robert S. Keller: Yes, sir.
Potter Stewart: I gather that your opponent, the appellee does now concedes that there is an appellate jurisdiction, a new kind of thing so you do not discuss it in your brief.(Voice Overlap)
Robert S. Keller: It is the jurisdiction, that is correct Your Honor, and ordinarily I would say that, that is my position, that you are correct except that in one of the appellees' briefs, the Bretz brief, they contest our jurisdiction saying that we did not address the question and so I felt that under the rules I had to address it both in the opening shot in my brief and in opening shot in oral argument. If we are all satisfied in the jurisdiction, and I want to assure the Court that I am satisfied that we are under 1254 (2), I would be glad to go on to the --
Potter Stewart: Because the Court of Appeals has held invalid the statute at the state of Montana?
Robert S. Keller: That is correct. It never came right out and said 1711 is unconstitutional. It just said the Montana Supreme Court which was interpreting that statute was wrong and the effect of it is that it is unconstitutional. Our statute from the model penal code specifically says that jeopardy in essence has not attached and can have a retrial up until the time the first witness is sworn and the federal rule except in the federal system is at the time that the jury is empaneled and sworn. So our statute is unconstitutional.
Potter Stewart: But it is a sufficiently clear holding that your statute is unconstitutional?
John Paul Stevens: Mr. Keller, your statute does not say there can be a trial up till the time the witness is worn. It says there shall not be a trial after the witness is sworn?
Robert S. Keller: That is correct.
John Paul Stevens: So the statute literally, it does not do that it is not unconstitutional, is it?
Robert S. Keller: On Supreme Court interpretation in State against Cunningham which was just prior to Bretz, says just exactly what I have said. The time that jeopardy attaches in Montana is at the time the first witness is sworn, they are construing 95-1711, Mr. Justice Stevens.
John Paul Stevens: Do you think it is then the statute that permits it. Well, I still have some difficulty. I can understand that is the rule in Montana, but I am not quite sure that there is a statute that is unconstitutional?
Robert S. Keller: Well, if our statute permits a retrial on a termination of a case prior to the swearing of the first witness, but after the jury is empaneled and sworn, then we have a direct conflict with the federal system. Our Montana Supreme Court in the Cunningham case held just exactly that, that this is no bar to a retrial when the Cunningham case was dismissed after the jury was empaneled and sworn and before the first witness is sworn. I have to use Cunningham and I am sure you are familiar with it the briefs because it was a part of the consolidated petition for Writ of Habeas Corpus that lead to where we are now in this case.
John Paul Stevens: What I am trying to suggest is that perhaps the legislature could have repealed the statute, so you did not have a statute on the books and the Montana Supreme Court might nevertheless had made precisely the same holding, then there would not be any – just say it is a matter of Montana law, jeopardy does not attach till the witness is sworn. I do not think you would have an unconstitutional statute then.
Robert S. Keller: I see your point, yes.
William H. Rehnquist: You have to argue that by implication when the Montana statute says retrial may be had -- may not be had under certain circumstances, yet impliedly authorizes retrial under the circumstances where it does not prohibit it?
Robert S. Keller: Exactly. You said do we have to argue, that is our position, yes, and it is -- the point that we are here on today was addressed head on and directly in the Cunningham case. When appellee’s petition for a writ to the Montana Supreme Court, that was summarily denied citing the Cunningham case and it comes directly to this point and puts us in a conflict that we are.
Potter Stewart: So that is the meaning of your statute as authoritatively construed by the highest Court of your state?
Robert S. Keller: Correct, yes sir.
Potter Stewart: Alright.
Robert S. Keller: Going directed and passed that to the argument itself. We agree that the double jeopardy prohibition in the Fifth Amendment affects both under the federal system and the state system, we do not have any quarrel with that. We agree that there is a point in time in which jeopardy does attach and the reason that we are here is that we do not with the point in time that has been set forth. So the question that we have for the Court is this the point in time selected in the federal system, at the time that jury is empaneled and sworn mandated by the constitution.
Byron R. White: Mr. Keller, let me, before you get too deeply into this, do I understand that Cline has wanted a reversal of his conviction?
Robert S. Keller: Yes sir, after the petition for --
Byron R. White: Is not the case moot as to him then?
Robert S. Keller: I do not really think so, and I do not know this. My opponent, Mr. Leaphart represents him and was there for the trial and it may well be that it is not moot. I never raised it and I did not raise it because it is conceivable that the adamant reversal by the Montana Supreme Court may permit him to be retried anyhow. They are the ones on his appeal that reverse and set aside the conviction.
Byron R. White: (Inaudible) they are not going to dismiss it?
Robert S. Keller: I not know that.
Byron R. White: It seems to me he wants everything in the state appeal that he could possibly get in habeas?
Robert S. Keller: I want to say this is the one entrusted with the prosecution. We do not intend to re prosecute in that case, but I do not know whether it is moot or not. The position of both Cline and Bretz were identical and it made no difference to me if Cline came along or did not came along. The issue is there and it is certainly there with Bretz, so I did not explore it at all. It was raised for the first time by Solicitor General in his brief, in this Court. As a little bit of background, the Attorney General’s office in the State of Montana is brand new to all of us as of January this year and none of us was there when this all took place. Both accounts where the appellees were there throughout at all so they could probably more properly answer that. The first question that we have, is this point in time selected in the federal system mandated by the constitution? The ancillary question is if it is not, do we still have to follow it in our state under the doctrine of incorporation. Historically and this is conceded in appellee’s brief that the common law jeopardy was not a problem until there had been a conviction or an acquittal and at the time of the drafting the constitution this was a state of the common law. I have looked frankly, for the source of the federal rule that it commences at the time that the jury is empaneled and sworn and the closest that I can come to any suggestions to you is, there was a real problem for government appeals up until the Criminal Appeals Act of 1907. The language in the Criminal Appeals Act was such that it permitted a writ of error to be pursued inter alia from the decision or a judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy. But we do not know when that point was as such. The general rule at that time in the text books, encyclopedias was at the time the jury had been empaneled and sworn, but the minority view gave a distinction of after conviction of acquittal. There was a dichotomy that gave nothing in between. So the point that we are raising now had really never been touched then. The other suggestion that I have is going far back to Perez in 1824, which we have always contemplated as being the start of manifest necessity and if you read it and as you will recall, and I am sure you do from the yesterday’s argument, this was a case with a hung jury so all the evidence that was in the case was all over, and Justice Storey in a terse opinion is faced with the dilemma, what are you going to do when the jury – you have got a jury and you cannot get rid of it. You got to do something and somehow, as you read that opinion, in essence it says, giving rise to manifest necessity after the jury is there and it cannot arrive at something, there is a manifest necessity or to meet the end of justice. From that I have to assume that and as you all know we had a pretty liberal interpretation for a long time of what is manifest necessity, I have to believe that nobody worried about what occurred after the jury was empaneled and sworn and that just gradually evolved this cut off point. It never was a problem. As such this Court never even addressed until 1963 and that was in Downum, so we got a long period of time before the issue even comes up. Downum was not only handled as a manifest necessity case, the issue I am raising was not raised and it was a federal case to boot. So nobody questioned when Downum just simply came out and said jeopardy attaches when the jury is sworn -- empaneled and sworn in a jury case.
Potter Stewart: Of course it was not until 1969 that this question could have possibly risen, it was not until then in the Benton case where the double jeopardy protection after the (Voice Overlap) goes to the states.
Robert S. Keller: Goes to the states, exactly, and that is the first time it really came to a confrontation. Somerville against Illinois in 1973 and that is a state case, but unfortunately for our position, it is a state that has identical, the same rule as the federal rule. So Justice Tuttle comments in his opinion, that there was not a shred of evidence that this distinction made a difference to this Court in his opinion in 1973, and I submit I do not know of any reason why it had been raised. I do not know why Illinois would raise it.
Potter Stewart: Mr. Keller, you said you made an effort to find the origin and history of the federal rule of point being when the jury is empaneled and sworn, what is the history of your statute in your state, do you know?
Robert S. Keller: It was adapted in 1969, as my recollection of it judge. It came out of the model penal code and there was a tentative draft in 1956, and a final draft in 1962. The tentative draft in 1956 has just this terse comment, they see no difference between a jury and a non-jury for the point that jeopardy attaches and nothing better than that, but at least it explains why they did it, but nothing behind it.
Potter Stewart: Do you know what other states or how many other states if any?
Robert S. Keller: I know only two for sure and I do not know the others. We tried to research for that in point and ran into a quagmire. I know that Kentucky has from the modal penal code, Arizona did and I do not know if they still do. New York did and they just now held their own statute unconstitutional following the federal rules, so I do not know if I want to cite that as an authority and honestly Pennsylvania had something comparable to open up from the penal code and beyond that, no I do not know. One of the reasons for it is, in going through the state statutes, the way this thing is drafted, you have to look for a negative, you cannot find something as to when there is jeopardy attached. You have to go read several statutes to come back to find out what it does mean in that state, but I do not know for sure that there are two others along with us today that have it, Kentucky and Arizona. The Somerville case in any event followed Downum and just said without giving a reason and I am sure you noted in the brief we have emphasized this throughout, never has there been a reason given for the rule that had been followed the in the Federal Court and there was no as you pointed out, no reason to question until Benton, but the language in Serfass in 1975 is significant to us and I do not want to be out of line of trying to quote something that was said that is out of context, but the defense has relied upon Serfass because it followed Somerville and it followed Downum. We rely upon it because now for the first time, the Court has really looked at the point at which jeopardy attaches and as you recall in the Serfass, this was a point in time prior to even having the jury empaneled so the comments are somewhat relevant, but I do not want to take advantage of them. Nevertheless, eight of you concurred on this opinion and this is what we read from it. As an aid to the decision of cases in which the prohibition of the double jeopardy clause has been invoked, the Courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by a resort to the concept of attachment of jeopardy and goes on to say in a jury case, it is when the jury is empaneled and sworn and in a non jury, when the first witness is sworn. The Court has consistently adhered to the view that jeopardy does not attach and the constitutional prohibition can have no application until a defendant is put to trial before the trier of the facts whether the trier be a jury or a judge. The constitutional policies underpinning the Fifth Amendment’s guarantee are not implicated before that point in the proceedings at which jeopardy attaches. As we have noted above, the Court has consistently adhered to the view that jeopardy does not attach until a defendant is put to trial before the trier of the facts. This is by no means a mere technicality, nor is it a rigid mechanical rule. It is of course like most legal rules an attempt to impart content to an abstraction and you can appreciate why we like this language. Without risk of a determination of guilt, jeopardy does not attach and neither on appeal nor further prosecution constitutes double jeopardy and that is specifically our point. We take the position that as a matter of law, no jeopardy attaches until a witness says something incriminating. If at the time the jury was empaneled and sworn, the prosecution rested as a matter of law, the case would have to be dismissed. If at the time that the first witness is sworn, the prosecution rested, the case as a matter of law, the would have to be dismissed. It really means that in terms of when jeopardy attaches, that it varies with each case. The first witness in a homicide may be a pathologist. He does not have anything to do with guilt. He just wants to identify the corpus delicti. So somewhere in there, there is a risk of determination of guilt. Our position is that our point in time is sooner than jeopardy actually attaches and the federal system is even sooner than our point in time and it is an aid to the Court just exactly as Serfass said that it was, this is an aid to the Court that we use.
William H. Rehnquist: If we were to follow or adopt your reasoning on this point, it would not change the rule in the Federal system, would it?
Robert S. Keller: I think that it would.
William H. Rehnquist: You are saying that as a matter of constitutional law, your concept of jeopardy is part of the bill of rights and incorporates the double jeopardy clause and that it would be applicable both in the federal and the state system?
Robert S. Keller: That is correct. The only reason I answer your question in front of this is the Criminal Appeals Act in essence permits the government to proceed before jeopardy attaches. It does not have a cut off day such as ours does. Ours is prior to the first witness being sworn, yours is in the language before jeopardy attaches. It has been assumed, I have to believe that this has always been when the jury was empaneled and sworn. If this Court now adopts our rationale, I have to assume that the government would be able to proceed in a federal case up to at least the time the first witness is sworn.
William H. Rehnquist: But you would also be assuming, would you not that when Benton v. Maryland said that double jeopardy was incorporated into the Fourteenth Amendment, it meant all the bag and baggage of the federal prohibition rather than just the general outline of it?
Robert S. Keller: Yes, I understand that is a view that has been espoused. I do not support the view. No. I believe that that said that we have the double jeopardy prohibition under the Fourteenth, just as you do in the federal system, but I do not believe that that means we have to take the rules as Justice Tuttle puts it, the supervisory rules of the Court as a constitutional mandate so we have to take the double jeopardy prohibition as a fundamental guarantee under Benton, but I do not think it means we have to take the rules that went along.
Potter Stewart: Therefore, it is conceivable at least is it not in line with my brother Rehnquist's question that the Court might hold that the constitution tolerates the Montana rule without at the same time holding that it requires the federal rule to be the same.
Robert S. Keller: Yes.
Potter Stewart: In other words, the Court has held that the guarantee of a jury trial under the federal constitution guarantees a 12 member jury in federal cases, but tolerates a smaller jury in state cases, state criminal cases?
Robert S. Keller: I am with you. My problem in answering your question is I was a step ahead, my colleague already posed the same questions. We are getting ready for this so we had gone one step further and expect some enterprising government lawyer to bring one up if you go our way. That is after the jury is empaneled and sworn and before the first witness is sworn and within our limited knowledge, I do not know how to stop him so I just really was not answering your question.
Warren E. Burger: What do you suggest happens significantly between the empaneling of the jury and the swearing of the first witness?
Robert S. Keller: Nothing. And I mean, I was -- I went to a matter of law and as a matter of practice nothing significant happened. As a matter of practice, the federal district judges in our state just before they swear that jury, now we hear everything that has to be heard and get rid of these motions because under the federal system, once the jury is sworn, we start. In the state level, we have until that first witness is sworn to get rid and dispose of all these things. As a matter of practice, nothing can be done to that jury, as a matter of law within those two periods of time that can have an effect upon the defendant.
Warren E. Burger: What about the opening statement to the prosecution?
Robert S. Keller: He can do that, but what does that do in terms of a jeopardy? Statements of counsel are not --
Warren E. Burger: My question to your point is that nothing happens?
Robert S. Keller: I see, of course. Things can occur.
Warren E. Burger: Could between opening statement -- that an opening statement may have an impact?
Robert S. Keller: Certainly it might, but if you do not go further and that jeopardy did not attach because that is statement of counsel. Yes, you certainly can have opening statements. In fact, it is what made this particular case almost ingenious. In using both the blending of the federal and the state rule, they were able to make their motion in limine after the jury was empaneled and sworn which in the federal system, they would have had to make it before the jury was paneled and sworn. They made it between the two periods of time. The last thing they wanted was a motion to dismiss. That puts them in real disadvantage, so when they make the motion, that they made in the manner that they made it, truly was in ingenious because they have got jeopardy attaching under the federal rule and they still can make their motion in limine before they have commenced under the state rule. I really looked for a basis for this and the only thing that I can find that is, I really do not want to use the word weakness in our position, but that is I guess for lack of a better phrase, the weakness, the only weakness I can come to is the valued right concept and the valued right concept has been espoused. It has been espoused by members of this Court as recently as 1973. I want to submit that the valued right is the valued right to get the case tried as distinguished from the valued right to this particular jury. In fact, if you take the position that it is a valued right to this particular tribunal then somehow that puts this Court in a position of saying the defendant has a constitutional right to a defect in the system. The only way that you can have a jury that is not impartial is because of a defect in the selection. The whole process is geared to an impartial jury. Now, all of us know as trial lawyers, you can have a good or bad jury. You can have a feeling that you have a good or bad jury, but that is not quite the same thing as the United States Supreme Court espousing that you have a constitutional right to a defect in the system to a good or bad jury.
John Paul Stevens: Is that a fair statement of their argument, could you not have phrased it just the other way that the defendant might be convinced that he has a good and impartial fair jury, but the prosecutor wants to have 12 more preemptory channels so he dismisses the prosecutor's, let us try and get a better jury from the prosecutor’s standpoint?
Robert S. Keller: Now, you are talking prosecutory manipulation, Justice Stevens and that was met head on by Justice Haswell in the Montana Supreme Court. If what you are talking about is prosecutory manipulation, that makes no difference whether the jury has been empaneled and sworn or the first witness is sworn. If I as a prosecutor can manipulate to get to this point, I can ask for my dismissal before you swear the jury. So the point that they are raising does not really get to the difference in point of time. This time, to do the prosecutory manipulation is just as valid in the federal system as it is in the state system. We first have to assume the prosecutor is manipulating, but the trial judge has not caught it and he can do it just as effectively in the federal system as they are suggesting it can be done in the state system.
John Paul Stevens: Immediately before the jury is sworn and you know who the jurors will be?
Robert S. Keller: Exactly and you just exhausted it all and you know right then this does not look like a hang man’s jury, maybe we better get rid of it and try 12 more and that point in time is just as valid before you swear that jury as it is when the first witness is sworn. I really think the valued right concept and it was expressed as policies underpinning in one of your opinions Justice White. This point go both to speedy trial and double jeopardy and the right as such is the right to get the case tried and – but it does not put the valued right to get the case tried right now, quite in the point of a constitutional right. It certainly is a constitutional right under speedy trial and there is overtones from that in this situation, but that puts us back to the question of what kind of passage of time are we talking about, as between just before the jury is sworn and just before the first witness is sworn. I would like to reserve the remainder of my time.
Speaker: Let me ask you before you sit down, you in your brief seem have to abandoned the notion, the argument on manifest necessity.
Robert S. Keller: Yes sir.
Speaker: Let us assume you are wrong on your thought that it is not properly here. It is not properly subject to appellate jurisdiction here. Assume you are wrong on that, do you mean -- would you mean to abandon it or not?
Robert S. Keller: Yes, sir, intellectual honesty compels me to answer yes.
Speaker: Under what, under what case?
Robert S. Keller: Under what case?
Speaker: Why do you abandon it?
Robert S. Keller: Because our whole thrust is the Montana statute when we came into taking over this prosecution. I think that the manifest necessity was raised for the first time by the federal district judge Batton when this case was heard and I do not -- in my mind, I do not believe that the state even raised it at the outset.
Speaker: So you do not think it has ever been presented to the Montana Supreme Court?
Robert S. Keller: It has not, no.
Speaker: So there has been no or is there any necessity for that?
Robert S. Keller: You mean necessity for raising to the Montana Supreme Court?
Speaker: In a federal habeas corpus proceeding, is there any necessity for you to in order to argue manifest necessity to have it gone through the state system? There is a requirement for exhaustion on the state, is it not?
Robert S. Keller: That is right. I do not no, there is no requirement of state.
Speaker: Well then why do you say that the manifest necessity is not properly here?
Robert S. Keller: I had two reasons frankly and the one is the one that I gave. I think from the outset, the state has taken the position prior to my time that they are concerned about the statute in this point in time.
Speaker: Well, if you just did not want to raise it, that may be so, but what if you lose on the statute?
Robert S. Keller: Then I lost.
Speaker: And you do not want us to consider? You do not want that issue of manifest necessity adjudicated here, is that it?
Robert S. Keller: That is correct. That is the second point. I think that we are grossly weak on manifest necessity.
William H. Rehnquist: Because that is ultimately a decision for this Court, not for you?
Robert S. Keller: Well, I did not intend to pursue it.
Speaker: So you do not think it is worth anything under Lee, did you read the Lee case?
Robert S. Keller: Yes sir.
Speaker: You do not think it is worth anything under Lee?
Robert S. Keller: We were asked by the Solicitor General to move for continuance before we had to first file anything so that Lee could come down in time before we got Truman before even we presented our brief and at that time made a decision we were going to proceed on the issue that we felt was there from the outset and not manifest necessity so our brief was in before the opinion came down on Lee. Now, I summarized a lot of things, but we had a pretty in depth discussion with the Solicitor General and the facts in our case and all I can say is that was also a factor in deciding not to --
Speaker: He does not seem to agree with you it is such a weak point?
Robert S. Keller: I have to concur with some of the points made by counsel for Bretz.
Speaker: Because he would sustain – he would think that there was manifest necessity if the merits are reached here?
Robert S. Keller: I do not think he has the right facts in this case, Justice White and I concur with Bretz counsel in that point.
Speaker: We have got enough issues without reaching for one?
Robert S. Keller: Thank you.
Warren E. Burger: Mr. Leaphart?
W. William Leaphart: Mr. Chief Justice and may it please the Court. The issue of mootness has been raised so I will direct myself to that initially. The Solicitor General in his brief in a footnote on page 5 has noted the fact that Mr. Cline’s conviction was reversed by the Montana Supreme Court and the Solicitor expresses his opinion that Mr. Cline has received all the relief that the writ of habeas of corpus can provide. I suggest to the Court that that assertion assumes that the writ of habeas corpus statute can do nothing more than affect the release of a man prison and I would direct the Court’s attention to this Court’s opinion and Carafas v. Lavallee, 391 US, 234 in which this issue of mootness was answered.
Thurgood Marshall: In the court after that I think you left out one point, the Court not only reversed, but also dismissed the charges?
W. William Leaphart: That is correct Your Honor.
Thurgood Marshall: It is a little different from just a reversal?
W. William Leaphart: Well, I have no quarrel if the charges were dismissed.
Thurgood Marshall: What can the State do after that, under this non kind of State Law?
W. William Leaphart: I maintain Your Honor that --
Thurgood Marshall: What can Montana do as to these charges against this man after the Supreme Court of Montana dismisses them?
W. William Leaphart: Your Honor at the first trial that we are talking about, that was aborted, there were nine counts. The State voluntarily dismissed one. The judge on his own motion dismissed three more and then the prosecution came in and dismissed the remaining counts. It came back and filed a two count information. We went to trial on that. It is my position that Mr. Cline still has a very vested interest and the determination as to whether or not jeopardy attached at that first trial.
Speaker: Even if they cannot try them again, even if they do not try him again?
W. William Leaphart: Well, Mr. Cline right now is depending this appeal. He has been named by the State as an FLE. It is Mr. Keller’s representation today that they do not intend to further pursue the matter. It is the first that I have ever heard of that. As his counsel I have to you assume that since they are prosecuting the appeal that they intend to pursue the matter.
Thurgood Marshall: But you still have not told me how they can?
W. William Leaphart: What I am saying Your Honor is that there still are five counts remaining from that first prosecution that if jeopardy had not attached, conceivably the State can come in and charge him on those five counts. They only filed two counts the second time.
Byron R. White: So the conviction is only reversed on two counts?
W. William Leaphart: That is correct. We still have a five accounts that are kind of hanging there.
Speaker: But as it stands right now, he is clean with the State and there is no charges pending against him?
W. William Leaphart: That is correct.
Speaker: And there is no lingering consequences from his conviction?
W. William Leaphart: That is correct.
Thurgood Marshall: And I thought you said the charges were dismissed by the Court?
W. William Leaphart: True Your Honor.
Thurgood Marshall: Well, can they be retried?
W. William Leaphart: No.
Thurgood Marshall: Well, where are these counts that they can retry?
W. William Leaphart: We got two separate trials that we are talking about. We started out with a nine count information which was knocked down to eight counts and down to five counts and then the prosecution dismissed those five and came back and only filed two.
Thurgood Marshall: Well, is that all -- it is all there is?
Byron R. White: There is no bar for – is there any – there is no bar under Montana Law for the refilling of those recounts?
W. William Leaphart: The remaining counts?
Byron R. White: Yes, the ones they dismissed.
W. William Leaphart: Pardon me?
Byron R. White: The ones the prosecution dismissed, those --
W. William Leaphart: I think that it is arguable. I think that they can certainly come in and try to re-file them.
Thurgood Marshall: Well, they could try and file without filing at all. Under Montana Law charges that are dismissed by a Court can be retried?
W. William Leaphart: No, sir. I am saying that there are still five counts that were not dismissed by the Court.
Potter Stewart: Dismissed by the prosecutor?
W. William Leaphart: That is correct.
Potter Stewart: And has the statute of limitations run by now?
W. William Leaphart: No sir.
William H. Rehnquist: Under the Ninth Circuit's ruling in effect you get a complete immunity on all nine counts or you just say you are uncertain with respect to the result if it is just depends on the decisions of Supreme --
W. William Leaphart: That is correct, we still have a lingering uncertainty as to those remaining counts.
William H. Rehnquist: And you say that is enough to justify habeas?
W. William Leaphart: I think so and I would further submit to the Court that should this Court declare that Mr. Cline’s position is moot that the effect of that decision is to say that double jeopardy rights had been violated only has a remedy if he has been convicted and I think the double jeopardy protection is broader than that. It protects the man from having to stand trial twice not just be convicted.
Thurgood Marshall: Where is a standard trial twice here?
Warren E. Burger: And I suppose you do not know yet is not that your point? You do not know that he may be charged again?
W. William Leaphart: That is correct.
Warren E. Burger: That is what is the concern?
W. William Leaphart: Assuming my position is correct on the merits of this case that jeopardy did attach at that first trial and we have the trial twice. We have gone through two trials. I am projecting an uncertainty about a third trial that they could come back in and refile in those remaining five counts which should in fact can be a third trial.
Thurgood Marshall: There is no threat of that at all?
W. William Leaphart: Well, as in the fact that I am here --
Thurgood Marshall: In addition we have the statement from the Attorney General that he will not do it.
W. William Leaphart: You have do that, I --
Thurgood Marshall: Now, where is the threat that the next Attorney General might do it or his grandson might do it?
W. William Leaphart: Well, Your Honor, my position is that the fact that I am here defending this appeal to me indicates that they are still pursuing this matter and this is the first that I have ever heard that they do not intend re-cross the case --
Thurgood Marshall: I do not think that both of you by agreeing with again was jurisdiction, if it is not here?
W. William Leaphart: Well, I think the jurisdiction is there Your Honor. The issue has been raised. Mr. Cline was in custody at the time the District Court assumed jurisdiction.
Thurgood Marshall: But as of now he is not in custody, he is not subject to trial --
Speaker: Can I ask the similar question much the same way I suppose, but habeas corpus is a collateral attack on the judgment?
W. William Leaphart: Yes sir.
Speaker: Now, what judgment is outstanding of being collaterally attacked by your client?
W. William Leaphart: I think the answer to that Your Honor is that we have to put this in the context of the jurisdiction attaching in the Federal District Court.
Speaker: It had attached as to a judgment which has now been set aside?
W. William Leaphart: That is correct.
Speaker: Now, these five other counts have never been reduced to judgment, have they?
W. William Leaphart: That is correct.
Speaker: How can they provide this basis for collateral attack?
W. William Leaphart: My answer Your Honor is that in this Court in the Carafas decision said that once habeas jurisdiction --
Speaker: I understand that case. There was a judgment outstanding that was involved in the appeal. The judgment survived the service of a sentence, but that does not hold that you can attack a non existent judgment, the judgment entered by a Court?
W. William Leaphart: In a double jeopardy context Your Honor, the fact still remains that my client had --
Speaker: May be items for related offense to what you would say, well, that is really encompass within what you have been acquitted over something like that. There is always a possibility of somebody indicting you and you are making a plea and abatement or claiming bar, claiming double jeopardy. The Court is never found at a basis for collateral attack that I know off?
W. William Leaphart: Well, I would submit that I am not merely engaging in speculation when I am defending this appeal by the Sate of Montana who and the State which has already tried my client twice and still has five outstanding counts that unless jeopardy attached, they can re-file.
Warren E. Burger: And in any event that basic issue will be presented by the other case or resolution that support --
W. William Leaphart: I submit that my client has a very significant interest.
Warren E. Burger: Apart from your client's interest the basic issue will be decided in the other case?
W. William Leaphart: Yes, Your Honor. Now, as to the merits of the case, Mr. Keller throughout this litigation has maintained that there are no constitutional policies underlying the federal rule, the rule announced by this Court and Downum v. United States. He has taken the position at the Montana rule offers as much protection to a defendant as does the Downum rule. On the contrary, I would submit to the Court that historically the Downum rule has protected two basic interests. First of all, it protects the defendant from having a judge or a prosecutor dismiss a case when it becomes apparent to either one of them that a conviction is going to be unlikely. Secondly it protects, it ensures the defendant that he can proceed to trial before a particularly chosen tribunal. Now, both of these interests are best served by having jeopardy attached at an early stage in the trial proceeding. And the point at which jeopardy attaches as it had been pointed out in the Somerville decision merely begins the inquiry as to whether or not there a double jeopardy interest involved. The mere fact that it is attached does not necessarily mean that the defendant’s double jeopardy interests are going to prevail. For example in the Somerville case the interest, in sound judicial administration and the ends of public justice were the prevailing factors and so it is just a matter of balancing those interest out. The problem with moving the point of attachment to a later stage in the proceeding is that you then trade a period of time during which the prosecutor can ask for a mistrial or dismissal and he can do so without making any showing of manifest necessity or extraordinary circumstances.
Warren E. Burger: Well, of course there is still the factor of the sound judicial discretion of the trial judge as to whether to grant that protection?
W. William Leaphart: That is correct Your Honor, but I do not think that there is sufficient protection because the trial judge does have the guidelines that are brought into play by the attachment of jeopardy.
Warren E. Burger: Are you saying that there is some really imperative need, I am not sure what manifest necessity means, but that there is some significant element of the administration of justice that requires the federal and the state time frame to be the same?
W. William Leaphart: Well, what I am saying is that I think that the attachment of jeopardy rule protects essentially two interests. Number one protecting the defendant’s right to proceed before a particular tribunal and secondly, ensuring a judge or prosecutor cannot dismiss when they think that a conviction is unlikely without showing manifest necessity. I think that is sufficiently protected under the Downum rule and what I am saying is that if you move the point in time as Montana has done, then you start to jeopardize those two interests. Because as you pointed out, during that period of time, you got such things as the opening statement of the prosecutor and more importantly, you have got the possibility of an opening statement by the defense counsel.
Warren E. Burger: Well, I am not arguing or suggesting or intimating that one or the other is better. I am simply saying is there any need that the federal rule bind all the 50 states as to this time factor?
W. William Leaphart: Well, I think if we are going to make any sense out of double jeopardy protection in the state's areas, if we open the door, if the Court opens the door and allows the states to adopt their own rules as to when jeopardy attaches, then conceivably the state of Montana is free to adopt a rule such as the common law rule that jeopardy does not attach until the jury verdict comes down and I do not think that anybody is going to argue that that is going to protect the interest which have become associated with double jeopardy protection. I think that this Court has specifically said in the Jorn case that at that point in time represents a point in time at which time constitutional policies come into play.
Warren E. Burger: That was a federal case, was it not, Jorn?
W. William Leaphart: Yes, sir.
William H. Rehnquist: Was Jorn a Court opinion or was it just a plurality opinion?
W. William Leaphart: Justice Hurl, I think writing for plurality. I should point out that this Court in Illinois v. Somerville and in Grieve v. Jones has applied the Downum rule to the state of Illinois and the state of California.
Potter Stewart: It is clear is, it not, that in the federal system, in a non jury trial jeopardy attaches -- does not attach until after the first witness is sworn?
W. William Leaphart: That is correct.
Potter Stewart: That is clear?
W. William Leaphart: I think so yes. I think a distinction between the jury and a non jury trial is that in terms of practice in a non jury trial, most often if there is a mistrial or dismissal when it is refilled it comes back in front of the same judge which is the same tribunal, so you have not jeopardized the defendant.
Potter Stewart: That is really not necessarily so in many cases?
W. William Leaphart: I know it is not necessarily so, but in Montana as a matter of practice, I think it is, whereas in the jury trial, once you have a dismissal or a mistrial, the second time around, you have got an entirely new tribunal.
Potter Stewart: Without question.
Byron R. White: In Montana, does the judge impose a sentence?
W. William Leaphart: Yes, sir.
Byron R. White: Well, then some of your double jeopardy considerations then apply even to a bench trial, I am thinking of the opening statement, stress and anxiety and the possible impression upon the trier of the fact?
W. William Leaphart: Your question, Your Honor is do those things affecting the tribunal and the trier of fact?
Byron R. White: Would not all of those considerations kind of exempt the rule that jeopardy attaches before the first witness is sworn?
W. William Leaphart: Yes. In fact, I think a very good argument can be made for having jeopardy attached in an earlier time.
Byron R. White: I am just not following you in trying to draw the distinction between the two?
W. William Leaphart: But the counsel for the appellant, my time?
Warren E. Burger: Go ahead and respond, we will extend your time two minutes.
W. William Leaphart: The counsel for the appellant has put forth really only one rationale for the Montana rule and that is that the jury prior to the swearing of the first witness has nothing to consider. Well, there is essentially at least three fallacies with that argument I submit because number one, the jury does have something to consider prior to the swearing of the first witness. The jury has the opening statement of the prosecutor and possibly the opening statement of the defense counsel and I was listening to the argument in Court here yesterday on the propriety of remarks made during voir dire and opening statements and so that is another element is, questions that come out during voir dire can certainly affect the jury.
Warren E. Burger: Or damaging statements made during the jury selection process unless you have a trial judge who is going to protect the case are beyond the reach of --
W. William Leaphart: Well, Your Honor, I am thinking of more than just damaging statements. I am thinking of things that oftentimes a defense counsel will ask the jurors what their thoughts are if a defendant chooses not to take the stand and try to feel them out on that point. He is tipping his hand to the prosecution as to the approach he is going to take in the case.
William H. Rehnquist: How about pretrial publicity that occurs a month before the case is set for trial? That can have some influence on the jurors. Surely you would not argue that jeopardy attaches a month before the case is set for trial?
W. William Leaphart: I would have a difficult time arguing the jeopardy should attach any time prior to the point where we actually know what the composition of the jury panel is before we have actually chosen the tribunal.
John Paul Stevens: In this case, in the opening statement had not been there, had it?
W. William Leaphart: No, sir.
John Paul Stevens: By the counsel for defendant, made immediately after the swearing of the jury, as I understand it?
W. William Leaphart: That is correct. Thank you.
Warren E. Burger: Mr. Moses?
Charles S. Moses: Mr. Chief Justice and may it please the Court. In the argument presented before this Court, there was an issue raised that I would like to respond specifically to. In Benton v. Maryland, the Court said that the same constitutional standards apply against both the state and the federal government. As I see this case, this is an effort to spin off the non-constitutional baggage of the Benton decision. That is the way I see it. In other words, we are trying to create a non-constitutional parsing of what Benton v. Maryland has said. Now, that may be fine, but I think that is what the issue is as I see it. We are trying to say that it is a non-constitutional issue as to how this constitution should be applied in the state of Montana. I see that as the issue. Now, I do not think that is a valid theory. I do not think the state of Montana either legislatively or judicially should be examining decisions of the Supreme Court of the United States to determine what is non-constitutional baggage in terms of time. The Supreme Court applies the rule. It decides when the constitutional rule should be applied and the states and the legislatures should follow it in my judgment. Now, the question is also raised as to whether there is any significant difference as to the time when jeopardy attaches. I think it is a very important question. Let me suggest one point to you before I approach that question and that is the burden of proof. It used to be and perhaps I am adopting from the equal protection cases the rule of compelling state interest or at least some rationale rule. What we are doing here is not justifying, the state is not up here justifying and saying there is some compelling need not to have this rule that has been announced in Downum and Somerville and all of the rest. There is some compelling reason in the state of Montana why we should not have this rule. So that when we talk about the difference, I to not want to be on the defensive by simply saying to you that maybe I can satisfy you as to the significant difference and maybe I cannot.
William H. Rehnquist: I thought all statutes were presumed constitutional, counsel?
Charles S. Moses: That is, all statutes are presumed constitutional, but that is one of the problems we get, if I may just make a brief comment on that point. In the state of Montana, we have conclusive presumption contrary to Murray v. U.S. and the teachings of the Supreme Court. So that if we take the rule in Montana that we have a presumption to that effect which is conclusive, then we have presumptions which are again non-constitutional issues. You see my point is that the states in my view sir, we have that presumption, but if you were to apply it in the state of Montana, you would find it conclusive in the --
William H. Rehnquist: Well certainly, no one suggests it is a conclusive presumption. 180 years of decision of this Court show otherwise, but you are talking about who the burden of proof should be on as to unconstitutionality?
Charles S. Moses: Yes, I understand the point. I am going to make that extra point in that it is my judgment that state of Montana does not follow at all the Supreme Court decision. You are right there is that presumption, but my understanding is that if you are going to depart from the constitution you must show some compelling reason for doing so.
William H. Rehnquist: Well, you have to -- I would think if you are going to depart from the constitution no showing would justify it.
Charles S. Moses: Well, that is why the issue is very narrowly drawn in this case Your Honor because if the Supreme Court in Downum, Somerville and all the others, if that is an application of the Supreme Court then the State of Montana cannot change it, that is clear. The issue in this case seems to be as to whether we can take of a portion of what the Court has said and say that that is non-constitutional baggage. Now, that is as I see it. If it is a non-constitutional issue as to the time when jeopardy attaches then of course there is not any significance and of course the thing can apply. When you talk about the question of whether there is any significant difference, the question is whether you have a valued right to have his trial completed by a particular tribunal that US v. Jorn and US v. Sisson. I think there is some merit as to permitting the prosecution a preemptory challenge to the entire panel. I think there is a lack of reciprocity, perhaps like in voir dire. What I am saying to the Court I think is simply that that issue was addressed to the Court in the issue by Mr. Chief Justice Tuttle in this particular manner in which he said on page 15 is that the valued right to have this trial completed by a particular tribunal independent of the threat of bad faith conduct by the Judge or prosecutor. Now, I take that to mean that you are entitled to the double jeopardy argument regardless of whether the discretion of the Court in dismissing was in good faith or in bad faith. I think that when we come to a valued right, the question is simply, is the person in jeopardy when the jury is empaneled and sworn. I think that he is. I think the opportunity to have preemptory challenge to the entire panel, in our state, we are now giving some preliminary instructions as to what the law is in this particular case, we have opening statements in which there are outlines of what they intended to prove.
John Paul Stevens: Mr. Moses from that point of the preemptory challenge to the entire panel which concerned me before, under Montana Law does the prosecutor have a right to have the prosecution dismissed after the jury is sworn, but before the first witness is sworn or is it subject to permission by the Trial Court?
Charles S. Moses: In my judgment it is subject to permission by the Trial Court. I do not think he has an absolute right, no sir.
John Paul Stevens: Well, then his argument, and I did mention your response to that, his argument is that if you have a prosecutor who seeks to manipulate by dismissing the panel, he can do it equally before the swearing and then equally as well before the jury is sworn as immediately thereafter.
Charles S. Moses: I think is is a point well made by Mr. Keller. I think that is true, but I think it points out the problems that we are having. We are just taking another single step down the line, but the manipulation according to Justice Tuttle, the right here preserved is independent of the threat of bad faith conduct by Judge or prosecutor, whatever they do, jeopardy has attached.
John Paul Stevens: I suppose the countervailing consideration, I am just trying to think it through is that before you really start questioning witnesses and the like, you do need a point in the procedure, proceedings where there is kind of a cleanup of all outstanding motions and odds and ends before, whereas which might have involve a dismissal or retrial or change in the date of indictment or something like that and is not there some sense to saying that an orderly procedure would have that come right before you put the witness on or before you make your opening statements rather than right in the midst of the jury selection processes and before the jury. Just in terms of an orderly way to get the trial going is not there something that favor his argument here?
Charles S. Moses: I do not think so, but I am not sure I understand the point completely. The pre trial motions and everything that is done ordinarily is done before the selection of the jury. We had two judges to rule on these motions that we urged and urged and urged.
John Paul Stevens: But is it not true that in this case they waited until after the jury was sworn before they presented some motion which the judge regarded as timely?
Charles S. Moses: Those motions were evidentiary in nature only. What I do is that I present all of my pretrial motions. I argue them again and again and at the time of the trial, I have the motions in limine. Now, I could have waited, there is no question, I could have waited until the first witness, that was not the issue at that particular time. It was not the issue. It was not ingenious. My issue was at that time that the entire nine counts did not stayed a claim for relief and they dismissed all of them, but the two of them and I am still maintaining, despite the Circuit Court of Appeals that the First Count was never any good and that was the issue. And I felt that ought to be resolved because if you had to go on with the case with the other five counts then it is difficult under Ashe v. Swenson and Turner v. Arkansas to go back and try the other issues that had been kicked out by the Court and I put that in my brief and addressed it to the attention of the Attorney General and to the Court. Here is the dilemma, let us go to the Supreme Court and get it all decided.
Speaker: Mr. Moses, may I interrupt a minute. Did you make this motion before the jury had been sworn? Did you make the motion to restrict the States evidence?
Charles S. Moses: No sir I did not.
Speaker: Could you have made it under Montana Law prior to the swearing of the jury?
Charles S. Moses: I do not know the answer to that sir and the reason that I do not know --
Speaker: Is there anything in Montana law that would have prevented you making it?
Charles S. Moses: No sir, I know of no law that prevents it. The Attorney General at that time argued that motions in limine were unknown to the State of Montana as far as evidentiary rules are concerned.
Speaker: The information was defective because of this typographical error on its face?
Charles S. Moses: No sir.
Speaker: What was your motion then?
Charles S. Moses: My motions that were presented before two Courts prior to any having the trial commence.
Speaker: But the jury had been sworn?
Charles S. Moses: No sir. I presented these motions in full, supported by briefs that there was not under any of the counts sufficient claim for a criminal violation. Those motions were not defeated twice. Then I went into Court after the jury had been empaneled and sworn to be consistent. Alright, if that is your view that they do state a cause of action then my motions were to require them to prove the venue as laid, to prove that there were false and forged documents. Those were the nature of my objections and also to confine them to the proof of a particular time of which I happen to think would not win, but the other motions where what was important preparing false evidence, those motions in limine, that was what --
Speaker: But the motion that precipitated the controversy that is here today was to restrict evidence to the dates in the information as I understand it --
Charles S. Moses: Well, they have extracted that from my point of view, so that was not the vitality of the motions that were presented. For instance in Montana, you have to determine whether the time is relevant, whether it is significant and whether you can prove it in sometime prior to five years before the filing of the complaint. I really did not think that was that relevant. I think it is necessary when they do not, when it is consistent with pretrial motions and we have argued vigorously and supported in our trial brief.
Speaker: The effect of your motion was to bring about a dismissal of the information?
Charles S. Moses: Oh! Yes, ultimately dismissal of these other counts.
Speaker: Yes, in practical effect your motion was to dismiss because the state had no evidence of the offense that was charged?
Charles S. Moses: I disagree with that sir. The State had evidence of those charges as to that particular time. There was the filing of the application. There was other information submitted. There was a final settlement in the Workmen’s Compensation covering a spectrum of time of almost a year. They could have prevailed on the first application to show that it was fraudulent within the time span stated.
Speaker: Is your motion in the appendix, I do not recall? I do not think it is in --
Charles S. Moses: I do not believe that it is sir, no sir. I think one of the, to conclude my argument, one of the things that concerned me theoretically if I may place it it in that light is the question of raising non-constitutional issues as a theory to be adopted by this Court. For instance, I think Justice Stewart addressed the attention to Williams v. Florida and Apodaca v. Oregon. It is necessary I think to approach that directly. Is there a difference or a distinction between those cases and this case? I happen to believe that there are. First of all, we have an authoritative statement in the Supreme Court of the United States as to this particular issue. In other words, that jeopardy attaches when the jury is empaneled and sworn. I think that is a difference and a distinction. There was something bag and baggage, that was a part of double jeopardy as enunciated by the Supreme Court. I think that is a difference and the distinction in Williams v. Florida and Apodaca. Furthermore, it is my belief that there is a difference because the application, the Court is called upon to apply this constitutional standard and the question is when should it be applied. It is implicit in the constitutional provision itself as to when it should be applied and I think that that makes it – it involves itself more than the issues raised on just those jury issues. For those reasons and others, we think that the decision of the Circuit Court of Appeals should be affirmed. Thank you.
Warren E. Burger: Thank you Mr. Moses. Mr. Keller before you begin. Let me put this question for you, relating to some questions I put earlier. After the swearing of the jury, in Montana and I take it the prosecutor is permitted to make the first opening statement, if he elects to do so, is that correct?
Robert S. Keller: Yes, sir. Ordinarily there is a brief statement made by the trial judge before the jury is even voir dire to give them some concept of why they are here and then the question starts.
Warren E. Burger: I am addressing myself now to the possible damage or injury to the defendant that can occur from the opening statement. If an opening statement is let us assume one that is outrageously bad and misrepresentation by the prosecutor. Of course the prosecutor is not going to move for a mistrial on that ground, but the defense might do so and I suppose under Montana procedure and practice, if the opening statements have been excessively bad, the Court could grant that motion?
Robert S. Keller: Yes sir.
Warren E. Burger: Then there would be no double jeopardy problem?
Robert S. Keller: I do not know about that, but yes the Court could grant that motion.
Warren E. Burger: Well, if (Voice Overlap) that motion at the request of the defendant, the defendant would be in rather a difficult position to raise --
Robert S. Keller: Well, his position I am sure and knowing the talent that we have in Montana would be that he was forced to do this and it is double jeopardy and I think there would be some merit to that approach in the proper situation, but I am sure that is not why you asked the question. We do not need to get that far. Yes, if the conduct of the prosecutor were outrageous, it would be the defense move for a mistrial or conceivably the Court of its own motion grant a mistrial just for this reason. It would not be too unlike yesterday’s case when you spell out the reason.
Warren E. Burger: Presumably if the Court granted a mistrial of its own motion, a double jeopardy question could well be preserved. It would be much less likely if the defendant moved for it and of course we could assume that the prosecution is not going to move for it?
Robert S. Keller: Not under those circumstances, no sir.
Warren E. Burger: Unless a senior officer happened to walk in the courtroom and wanted to avoid the problem, well, go ahead.
Robert S. Keller: Just to respond to some of the comments; we did not extract this part out of the motion in limine. This motion at that time which at that time leaves the state in the position of trying to convict for an offense that was repealed a month before it is alleged to have taken place, is not an extraction, that went to the heart of everything. They had to do something with those three counts. A part of the confusion that arose here is of the nine counts, three were subject to the problem so the judge dismissed them sua sponte. The state dismissed of its own motion the remaining six and I think this is Mr. Leaphart’s point that he is still sweating out, then on the retrial, one of the defective counts and one of the counts that state dismissed were all that were charged, so there is still five counts sitting out and I see what his point is and we do not intend to prosecute, but that is not just something we just brought up. We did not even know anything about this until it just came out in the Solicitor General’s opinion and this is the first time that we even thought about it, no we will not. The voir dire questions that were that were commented on as true in both systems, federal or state. If you are going to talk about opening statements, that is fine. That can come up under the state system, but if you are going to affect that jury by your voir dire questions, you affect them under either system, so that is not a distinction between the two systems, if you want to affect your jury because they are not empaneled and sworn yet. The valued right concept may be a valuable one, but I would like to call the Court’s attention that we do not see it from this Court until 1948 in Wade against Hunter and then we are talking about a court marshal. In all candor with the Court, Justice Douglas relied on Cornero, a lower Court case of 1931 that refers to the valued right and in further candor, I found the valued right as such clear back in United States against Simmons, United States against Shoemaker and that is back in 1840, but nobody said what it was and the most that I have a feel of it was because that is the overall concept, is let us get the case tried now as distinguished from we have a right to this particular tribunal. The question of judge trial in Montana needs to be tempered a little bit by the fact that Montana has an extremely liberal disqualification feature. So we can disqualify for no reason, either side one judge in a criminal case, two in a civil case. You do not have that same rule in federal cases. It is tough to get a federal judge disqualified. Does this mean if we are going to adopt this as part of the constitutional baggage that we know are going to have to be faced with what you can do disqualify a judge if you have a vested right to this judge in a judge trial. I really do not mention to complicate it, but Montana is that way, going back to the wars of the copper kings, it is not hard to get rid of a judge in Montana in either criminal or civil cases and I do not say that disrespectfully. I was seven years on the bench so I just know it is not hard to get rid of them. The only other thing I have to conclude with the argument is I want to pose this question. Suppose in Congress in 1970, in the Criminal Appeals Act had instead of saying until jeopardy attaches had said when the first witness is sworn, would that have been unconstitutional? Would we be here today? Supposing Congress today enacts legislation that says in the federal system, jeopardy does not attach until the first witness is sworn or enacts the model penal code, is that unconstitutional and I think to me that that is the crutch of the issue.
Warren E. Burger: Thank you gentlemen. You have all been most helpful. The case is submitted.