Earl Warren: Number 282, Alma Schulz, Administratrix, et cetera versus Pennsylvania Railroad. Mr. Baker, you may proceed.
Nathan Baker: Mr. Chief Justice, may it please the Court. This case was brought under the Jones Act that recovered damages for the death of a fireman employed by the Pennsylvania Railroad by reason of the negligence of this defendant railroad. At the conclusion of the trial before the trial judge and the jury, the trial judge directed a verdict in favor of the defendant and took the case away from the jury. The trial judge in his opinion conceded there was some evidence of negligence. It was also conceded by the trial judge because of the concession by the defense during the course of the trial that there was an accidental death. But the trial judge felt that there was no causal relation between the negligence and the accidental death. There was mere speculation and refused to have the jury hear it and make the decision. On appeal to the Circuit Court of Appeals, it was affirmed on the same question of proximate cause. The major question involved on this appeal is the question as to whether or not there were facts presented from which inferences can be drawn by a jury to show causal relation between the negligence and the accidental death of this deceased. The facts in this case are quite interesting. There were no eyewitnesses to this accident, but there are certain facts, physical facts which were proven which I will soon show -- show to the Court, which physical facts are direct evidence and most of the facts to which I will now allude are uncontradicted. First, and it's not in the order of importance, it's just sending forth these facts and then I'll attempt to correlate them. The deceased was found drowned wearing only an underwear and with his shoes. Next, we have the -- and shoes, just underwear and his shoes. Next, have the fact that he was found with a searchlight in one of his hands. We next have the fact that this man, who was I fireman on this tug, an employee of the defendant railroad, that his clothes, his street clothes were found in the first tug and he was assigned to watch four tugs and the first tug was the Altoona, docked against the pier. And in the ordinary usual place where he undresses and changes his clothes, they found his street clothes there with the exception of his shoes. Next, we have the fact, the physical uncontradicted fact that in the same location, in the engine room where he had his street clothes in a bag, was found his working clothes and a little lunch basket all untouched. We have the next physical fact that the last time he was seen alive was seven o'clock at night when he was walking up the dock towards the Altoona, the vessel which was docked alongside of the pier. That was the time he was seen alive, walking towards this vessel. All of these facts so far are undisputed. We have additional fact that his duty was to take care of the fires and keep the steam up in the boilers. I think this was the Christmas Eve and they were to keep him going until the -- over Christmas until the following day and it's undisputed that with the following day that these tugs continued in the normal course of operation and his job was to keep those fires up, up to the time when his job was to be complete that night and he was to go off duty at one o'clock in the morning. At 11 o'clock that night and just to correlate the time, at seven o'clock, he was seen walking towards the Altoona. At 11 o'clock, another fireman who was to relieve him on that particular vessel noticed the fires had not been attended to for about three hours, that would bring back the time when he was apparently missing to about eight o'clock or an hour after he was last seen walking towards this vessel. And the same fireman who relieved him or was supposed to relieve him on this vessel, found an injector was on.
Speaker: Found what?
Nathan Baker: Injector was on the last vessel, the fourth vessel, which was named Williamsport. What is the injector? They inject in the cons would be undisputed evidence was apparatus operated manually for the purpose of putting water into the boiler when it needed water and that when the boiler would be dry and needed water that will be some sort of a whistling, sizzling sound which could be heard for half-mile around. Now, this injector was on at 11 o'clock that night. It's operated manually to put it on or take it off. The man who, last, was on that vessel before the deceased shows was a man by name of Barker and he testified all in the plaintiff's case that he shut off all the injectors about five o'clock that evening. So that the necessary inferences that there was no one that had put that injector on except Schulz who was the only person who followed Barker upon this vessel. That too, I submit to Your Honors are undisputed.
Hugo L. Black: Where was the injector?
Nathan Baker: The injector was on the fourth vessel out.
Hugo L. Black: What part of it?
Nathan Baker: In the engine room, in the boiler room, that's the Williamsport. The defense admitted that there's no foul play. They admitted in the record there was no suicide. They admitted that the man was sober. They admitted his not old man and in all -- other words, they admitted an accidental death, but, of course, denied any causal relation. There are other facts concerning the conditions that existed that night. Some of these are disputed to some extent mainly to proof that the plaintiff provides that there were no rights on the -- on -- on these tugs that it was dark from the outboard side of the Altoona, the first one next to the pier, to the fourth tug out the Williamsport. Three or four or more of the witnesses testify to this darkness condition. It was undisputed that none of the witnesses testified that in going from tug to tug they have to use flashlights. There was also proof in the case that the deceased was assigned to four tugs that night and that this is not -- time was actually not capable of taking care more of two tugs at a time. The evidence indicates that when he was relieved, he was relieved by man who took care of two tugs instead of the four tugs which he had. With these facts, the fact that an accident is admitted, admitted, a fact that there was proof of negligence, some of which may have been disputed. It is submitted to Your Honors that there were sufficient facts for which a reasonable inference could be drawn by a jury that the accidental death of the deceased was due to the negligence of this defendant. I submit to Your Honors that this case is quite similar to the Sadler Case against the Pennsylvania Railroad. And in that case, it was also quite similar where a man was drowned between several tugs. Thereto, the man that it -- thereto, it was necessary for the person to use flashlights to get around the tugs. There, too, the darkness was the cause of the -- of the injury or death of this man and the Court there held, and I've cited it on page 16 of my brief and was the Fourth Circuit opinion and without reading the law, the Court there held that while it is impossible to say what certainty what cause decedent to fall between the barges, it is a reasonable inference from the evidence that in attempting to go from one to the other, he fell between them as result of the defective lighting. We submit, Your Honor, that the reasonable inferences indicate the time when this accident happened. From all of these facts, the jury could have very easily found the time to be between seven and I said 10 o'clock in my brief, I think I can bring it down closest, seven to eight that night because it was 11, they found it was neglected about three hours and brought it down for about eight o'clock. So between seven and eight o'clock, his death took place.
Hugo L. Black: You said they found what for three hours?
Nathan Baker: They found the fires that he was supposed to attend on these tugs below and neglected indicating that there were neglected for a period of about three hours. So that he was missing during those three hours apparently from those facts. Now, the place, where could the jury reasonably find a place where this man was injured. He certainly wasn't running around the docks in his underwear and his shoes. He was on the vessel, the first vessel, the Altoona. His clothes were there. He was changing his clothes. That isn't the question of inferences. I think it's direct testimony. He had taken off his work -- regular clothes and they were hanging there in the first tug against the pier. His work clothes, he still didn't put him on. And during the course of changing his clothes, he was compelled to take a search light in his hand and do something, to do something in the requirement from the course of his work. And what happened --
Hugo L. Black: What was the weather?
Nathan Baker: The weather was very cold, freezing --
Hugo L. Black: Very cold?
Nathan Baker: Very cold. It was some ice around different locations of the various part of the barge. That's an evidence also with a temperature chart, weather charts. So what is the reasonable inference that the jury can draw up in those interesting facts? The fourth vessel out, the Williamsport, had the injector on. And I submit it to Your Honors that a reasonable inference can be drawn from those facts by a jury in an emergency roles which compelled him to the course to change his clothes to go to the fourth vessel across the other two intermediate vessels, get to the fourth vessel out, the Williamsport, put on the injector in order to put water into the boiler and on his way back in causing -- from tug to tug, something happened so as to cause him to fall in between the barges and drowned.
Hugo L. Black: What happened --
Nathan Baker: There was no question.
Hugo L. Black: What happened when the injectors is put on? Does it --
Nathan Baker: As I understand it, he then puts the water up to proper level.
Hugo L. Black: And then what happened?
Nathan Baker: And then everything is all right. Then, you have to take it off again manually. It's all manually.
Hugo L. Black: If you don't take it off, what happen? You say this was not taken off.
Nathan Baker: It was taken off. I don't know, Your Honor. I'm very frank to say, I don't know what the situation is. I know that it has to be taken off manually and usually taken off either a few minutes or an hour, whatever it is, but it have to be taken off also manually. This was not taken off manually.
Speaker: Take -- take it off so you can use it on another.
Nathan Baker: No, no, it's just they -- like a button or a lever that you press it, you press the lever and then up goes the water and you leave it alone.
Speaker: Each -- each boiler has an injector.
Nathan Baker: Each boiler has an injector and there's one boiler on each tug. And then when the -- you'd have to take the injector off manually, too. That is in the evidence.
Speaker: (Inaudible)
Nathan Baker: (Inaudible)
Speaker: Then, the water goes in (Inaudible)
Nathan Baker: No, no, it's put on and left on. That's in the evidence and then just let alone. It stays in the -- how much water it needs and then the person who find is suppose to go back and then take it off. This was not taken off.
Earl Warren: Did I understand you to say that when this injector needed some kind of --
Nathan Baker: Water.
Earl Warren: -- treatment that -- that there was an alarm sounded --
Nathan Baker: No.
Earl Warren: -- to be heard?
Nathan Baker: No, when the -- when there's a need of water so as to require an injector to put on, the steam starts in sizzling or making sizzling sound and according to one of the witnesses, he says you can hear it half-mile away.
Speaker: You mean, he might have heard that (Inaudible)
Nathan Baker: That's one of the reasonable inferences that a jury can draw from those circumstances. I submit to Your Honor that all of these facts including the fact that he did have the flashlight in his hand, he was found drowned with the flashlight in his hand. Its indication that he was doing his work, as I say, he was passing from tug to tug and the jury can reasonably find that. It also indicates, I submit, that at the point where he was doing his work at the time when he was drowned, it was dark and that's why he was using a flashlight.
Speaker: And -- and what's the negligence to failure to have -- the barge is all lighted?
Nathan Baker: Negligence is the fact that there was no light and that there was darkness in that vicinity of the barges.
Speaker: There's no light in the barge.
Nathan Baker: I might. No light in the barge. There's no question that there is no light in the barge. They all agree that there was no light. There were some testimony submitted by the defense that there was some sort of a light from the dock which might put some light in the vicinity of the barges. That was disputed by the plaintiff's evidence which indicated it was completely dark on the out port side of the -- of the Altoona and the other three vessels were completely dark, in complete darkness and that they were getting about with the use of this flashlight.
Speaker: Is there any evidences to whether the condition of the tug that evening was different from what he (Inaudible)
Nathan Baker: No, no evidence was submitted about that. There was -- there was no evidence of any lurching or improper luring. There was no evidence to that. There was this evidence of the darkness. There was evidence as I had pointed out that the -- they usually would used a man for two tugs and -- and here they used the man for four tugs because of the fact that -- I supposed of the shortage to help Christmas Eve or something like and which we also claim as one of the other evidence of negligence. I submit to Your Honor that these facts raised reasonable inferences for the jury from which they could draw the reasonable inference that there was a causal relation between the negligence, which I have outlined here, and the accidental death.
Speaker: What -- what do you mean by darkness, I suppose some -- some of these tugs have lights on for navigation purposes.
Nathan Baker: According to the evidence, there was complete darkness.
Speaker: I thought you said there were a lights on the outside of the --
Nathan Baker: No, there were lights on the dock.There was evidence of certain --
Speaker: (Voice Overlap) --
Nathan Baker: -- flashlight or searchlight.
Speaker: -- but there are also lights on the outside of it.
Nathan Baker: No, the evidence was, Your Honor --
Speaker: Completely dark.
Nathan Baker: It was completely dark. Every tug was completely dark, no lights whatsoever. Now, I submit to Your Honors -- yes, were different.
Speaker: (Voice Overlap) --
Nathan Baker: I submit to Your Honor also that this case comes within the Lavender versus Kurn case which I have cited in my brief that where the evidence is such that a jury may draw different inferences. The jury could choose what seems to them the most reasonable inference, it's my paraphrasing of the -- of the language in that case. I submit to Your Honor also that the most logical inference that the deceased is -- is that the deceased fell into the water while crossing from the tug to tug in the darkness. There's also evidence here of icy conditions.
Felix Frankfurter: What the fact --
Nathan Baker: Yes.
Felix Frankfurter: What the facts (Inaudible)
Nathan Baker: That he was crossing from tug to tug and the fact that his clothes where he changed was on the first tug. He had changed his clothes. And then complete change -- he start to change clothes and he was still in his underwear. He had a searchlight in his hand. He had his shoes on. The injector on the fourth vessel out was on. The only person who could put it on was the deceased on the unquestioned evidence. And therefore, the reasonable inference is that he went from the first tug to the fourth tug, put on the injector and on the way back, he fell between the tugs in darkness while he have this searchlight in his hand.
Speaker: Where -- where was the searchlight found?
Nathan Baker: In his hand. And he was found drowned and dead with the searchlight clogged in his hand and that's undisputed by the police evidence here. Quite an interesting -- quite interesting fact.
Hugo L. Black: Did the evidence show whether it was disputed to go from boat to boat --
Nathan Baker: Oh, yes.
Hugo L. Black: -- the he fell on?
Nathan Baker: Oh, yes, that was his job.
Hugo L. Black: That was his duty.
Nathan Baker: That was part of his job. Now, I submit to Your Honor that the court below recognized the fact that there was evidence of negligence and improperly directed the verdict and that it should been submitted to the jury from these facts to determine all of these factual questions. I have cited in my brief also other cases which is not necessary for me to discuss at this time. Now, I have another point, a -- a second point and that point was not dealt upon -- dealt with by the trial judge nor by the appellate judge of the Second Circuit, whether or not the deceased was a seaman or a member of the crew. And I feel that perhaps I ought to at least refer to it because after all in order for this man to sue under the Jones Act, he must be a seaman and a member of the crew. And I submit to Your Honor and very briefly, I'll do it, is that Mr. Schulz was an extra fireman, dispatched to different tugs each day, that this particular tug that day was dark and his job was known as a watch fireman for that day.
Earl Warren: How long had he been on that ship? Was this his first day or?
Nathan Baker: No
Earl Warren: Had he been out there some time?
Nathan Baker: Well, see, what he is, is on a -- he has what is known as an extra fireman. He gets on a -- a list, in a seniority list and they take that list and one day he goes on a ship that -- a tugboat as a fireman which is docked. The next day, it's a running tug that goes out for three to four days. The next day it's a boat that goes off for 24 hours. They have different names. This day, he was selected to be a watch fireman on the tug which is standing still in dock overnight. Now --
Earl Warren: But this was the first day that he'd -- he'd this combination of four -- four tugs --
Nathan Baker: Yes.
Earl Warren: -- as these -- these tugs were on this night.
Nathan Baker: Yes, this was the first day, Your Honor.
Earl Warren: Yes.
Nathan Baker: Now, the evidence indicate that the duties which he had to tend to fire, to keep the steam up, was the same duty as this fireman when he's on a running tug. There's no difference, the same requirement, the same qualifications. And I submit to Your Honors that -- that this case presents a question of fact at least to the jury as to whether he's a seaman or member of the crew and in view of the many decisions of this Court including the (Inaudible) case that the question of fact, the triers of the fact and those number of decisions that I quote in my brief on that point and -- and it's a question for the triers of the fact and it should have been submitted to jury to term that point. There's a recent decision of this Court, (Inaudible) against Texas, cited in my brief, November 07, 1955 where the Circuit Court decided the question of law, this question, the similar question and this Court, the Supreme Court reversed and decided that the lower court was right in treating of the question of facts. The (Inaudible) case cited in my brief shows that although vessel is dark, it's considered navigation. We have here a situation where this man was a fireman, definitely was an aid of navigation, he's not a longshoreman. The history of the legislation of the Longshore and Harbor Workers' Act shows that it's longshoreman and repair workers that are considered a shore workers, but it considered is not -- is not members of the crew, but this man was neither that he was an assistant of long shore work, he wasn't repairing the vessel. He was actually doing a -- a crew member's job. Actually, the same as any other crew members of fireman definitely. I submit Your Honor that he was a member of the crew and the fact that the railroad saw fit that particular day to give him more than one vessel. I submit to Your Honor, it does not deprive him the status of being the member of the crew.
Earl Warren: Mr. Allen.
Joseph P. Allen: May it please the Court. This case is here presenting two questions, whether or not the court below is in conflict with a decision of the Fourth Circuit in Sadler against Pennsylvania Railroad Company and whether or not in holding that proximate cause could not be established by circumstantial evidence and whether or not the court below deviated from the principles annunciated from Lavender v. Kurn. It is respectfully submitted that neither one of these questions are actually presented in this case. The court below neither the trial court nor the Court of Appeals held that proximate cause could not be established by a circumstantial evidence, but explicitly held that this case came within the language in Lavender v. Kurn that there was a complete absence of probative facts which we form evidentiary basis leading to a conclusion that any negligence in the part of the defendant contributed to the death of the decedent. Most of the facts have been developed through extensive use of a discovery and inspection procedure and most of the facts are not in dispute. The decedent was assigned to watch four tugboats on Christmas night, 1949. He reported late for work. In the meantime, another watch fireman had been assigned to check these four boats, that watched fireman built up the fires, pump water into the boilers and then turn the injectors off by which he had pumped water into the boilers. If the concluding of that job on the four boats to which the decedent had been assigned, he met decedent at approximately five o'clock. They then return to the crew dispatcher's office at which time the decedent announced to the crew dispatcher and the witness, Barker, that he was going to check his boats and he would return. He did check his boats and he did return to the crew dispatcher's office at seven o'clock. That is the last that anyone saw of the decedent. When he left the crew dispatcher's office, walking down Pier H towards the four boats to which he had been assigned. It was then approximately seven to 07:15 at night. Now from there, there is a almost a complete blank or a complete gap in the evidence with respect to what happened and disputably, the injector was turned off by Mr. Barker at five o'clock and disputably, Andre, the next watchman who came on duty at 11 o'clock found the injector on. Now, the injector according to the testimony in the record has a two full purpose. One, it is used to pump water into the boiler, and two, when the boiler gets hot, it is turn on, the injector is turned on manually. Again, the -- being to put water into the boiler, but this time the purpose is to all of the steam. Now, with the respect to the absence of any probative facts as held by the District Court and the Circuit Court, what the petition seeks to do in this case is not supply probative facts by either direct or circumstantial evidence, but he seeks to advance a theory not based on any facts in the record but substituted for facts which was permit reasonable inferences. Now, his theory is this, as I understand it from his brief, sometime while the -- while the decedent was changing his clothes preparatory to going to work, an emergency arose on the fourth tug, the outboard tug of the four to which he had been assigned, causing him or making it necessary for him to drop, to stop changing his clothes, pick up his flashlight and cross from the first boat to the fourth boat. Now, what is the nature of the emergency? That is based upon the fact that the injector was found open at 11 o'clock by the next watchman to come on and it indicates that the emergency was, of such a nature, that there was excessive pressure in the boiler indicating, if that were true, it would represent a dangerous situation with respect to that boat. But the undisputed testimony is that if there is excessive pressure in a boiler, each boiler is equipped with the safety valve and that safety valve blows off the excessive steam and thus at least temporarily would eliminate that emergency and that noise, which that safety valve gives off unquestionably from the witnesses' testimony, can be heard for a half-mile and there isn't any evidence in this record and any number of witnesses testified who were in this vicinity. There was no evidence at all that anyone heard such a noise as would be given off if the safety valve blew. Now --
Speaker: (Inaudible)
Joseph P. Allen: It was Christmas night, sir. Yes, sir and there were people around. There were two men in the crew dispatcher's office. There was an assistant road foreman engines and these boats were set up in tiers. They were tied, moored abreast to one side of the dock. And each boat or each tier of boats had a fire watchman. Most of whom testified the man on the next tier -- in the second tier testified some of the man -- one of the man on the fourth tier testified, nobody, who was present on that dock, on that evening, heard any noise.
Hugo L. Black: You mean none of them are members here though?
Joseph P. Allen: That maybe, sir, that maybe. But in any rate, there is no evidence. I might say too that Mr. -- that all of these -- most of these facts were developed in the plaintiff's case. The only testimony was the defendant put on was the formalization of a stipulation concerning the fact that the defendant had complied with the Longshoremen and Harbor Workers' Compensation Act.
Earl Warren: Mr. Allen, if -- if that noise had sounded, might it be an indication that the -- the watchman was not attending to his duties properly?
Joseph P. Allen: Certainly, it would be, sir.
Earl Warren: And that therefore, he might have hurried to that --- that boat to take care of the emergency before the -- the alarm did sound?
Joseph P. Allen: No because he couldn't hear it. The only testimony in the record, it's not an alarm, sir. It's a regular safety valve and the noise come from the steam admitting -- being admitted through the safety valve. Now, he went on board with those boats at seven o'clock and he testified that he had fire the boat. He -- he didn't testify, I beg your pardon. He told one of the witnesses that he had checked the boats at seven o'clock and Barker, the fellow who had checked them before him, said that he had fixed the fire so it will run for one-half to two hours, which would take the fire up to about seven o'clock. In other words, I think it's just as reasonable that Mr. Schulz turn that injector on, on the outboard boat when he went aboard at seven o'clock because that's about the time according to the preceding witness from this -- he would have had attend to those fires because the water would have lasted for an hour and half to two hours when he came on about between six or seven o'clock when he checked his boats. He would have put it on then and sometime in that interim. From then on, he unspeakably disappeared. Now, Mr. Baker mentioned something about ice. The only testimony with respect to the ice was one of the witnesses have said that the -- the temperature as far as he recollect was 10 above zero. On page 82 of the record, however, is the official weather report of the temperatures recorded at Battery Place, New York City which is just across the river from Pier H. And that weather report shows that the temperature varied from five o'clock in the night in question. It was 40 degrees until sometime later in the day -- later the next day. In the afternoon, the temperature kept rising until it was approximately 50 degrees and in middle 50s the following day. One witness testified there was ice and that was a witness who was assigned to watch boats in the next tier and he testified that he saw ice. But he testified that the only place he saw the ice was on the front bumping mat -- the front bumping mat of the four boats to which the decedent had been assigned. And in connection with that with respect to the lights, it's undisputed that there were two floodlights at the outer end of the pier, 500 watts was used to reflect this which shown down and there are also floodlights from the both head side of the pier from inland. It was also shown out in the pier and the testimony establishes that those lights illuminated the entire pier and portions of the boat at least at the very least portions of the boat, giving every -- given the benefit of every favorable inference to the petitioner. At least portion of the boats were illuminated. Now --
Earl Warren: Portions of all the boats?
Joseph P. Allen: Yes sir, the bows.
Earl Warren: How far -- how far would the nearest light be to the last tug?
Joseph P. Allen: Well, the -- the pier is 600 feet long, sir, and at the end of the pier 600 feet after Milan is a two-storey crew dispatcher's house. On top of which are two floodlights throwing light inland. The boats which we are concern are approximately 300 feet from that crew dispatcher's shack. Then, inland another 300 feet is the -- is the boat head and then 125 feet, I believe, further inland are another series or bank of floodlights projecting the light out. Now, one of the witnesses specifically said that that illuminated the bows of all the boats, but, of course, there were shadows resulting from the superstructures of the tugs. In addition to which the man, of course, carried flashlights as the decedent did. I think it was found incidentally -- he was found not -- over a month later January 31st. He was discovered floating in the water at a pier. I think two piers away from the pier on which he was assigned. In the court below, the petitioner strenuously urged that the ice, the presence of ice, the testimony with respect to the ice, was some evidence of negligence which could be causally related to the decedent's death. But in his brief on that point in this Court, that is apparently abandoned. And it's abandoned because the petitioner apparently agrees with the Court of Appeals. He states that concededly there was an ice all over the pier. There was an ice all over the docks. We don't know the place from where the decedent fell, hence, we can't say that -- that the -- that the ice is causally connected with decedent's death. The same exact reasoning, of course, applies to the situation with respect to the lights as the Court of Appeals so stated, that concededly not all the tugs were dark. The tugs themselves had no lights too. True, they were taken out of, they were temporarily removed from navigation for two days, but the lights -- the light was supplied by these series of floodlights and as one of the witnesses testified, by the atmospheric conditions. That's the witness who testified that seeing the ice on the front bumping mat.
Earl Warren: Well, if there was any -- if there was any ice in regardless of where it -- it was, I suppose that would be some evidence as to whether it was negligence to leave the tugs unlighted, wouldn't it?
Joseph P. Allen: I think yes, sir. It might be. I think that's what the District Court had in mind when the District Court said there -- there is some evidence. Of course, what trouble the District Court, what trouble the Court of Appeals, based on this case of Johnson versus Palma which was in this Court twice once under Rule 50 (b) on a technicality of the motion and the second time, certiorari was denied. But the Court of Appeals stated that this case was similar to the Johnson case in which the decedent on the Johnson case was assigned as a float man.
Speaker: Of what?
Joseph P. Allen: A float man, sir. His tugs were going to remove two floats which were tied up to two bridges in the East River. His job was to release the lines. Now, what he did was leave his tug across the float, release one line and then cross a bridge and release another line. When he did that, the captain of the ship lost sight of him, but the captain did hear a shout of all gone indicating that the line had been cleared. They never found the decedent. He was missing and some two hours later after they had made a short journey, they came back and the decedent's body was found in the water. Now, in that case, Judge (Inaudible) the District Court rely upon the original opinion of the Court of Appeals which have been reversed on the -- on different grounds stated that the complete absence of any evidence whether it would be circumstantial or direct as to the place of the accident, the wherever of the accident or the how of the accident may avoid a gap in the evidence which in the -- within the language of Lavender v. Kurn presented just the type of case, which there was a complete absence of any probative facts which could form the basis for an inference that any -- any negligence was causally related to the death of the decedent.
Hugo L. Black: Do you think it's an unreasonable inference that the -- the reason the man couldn't draw the inference, that the man who was in the boat, I suppose the reason they weren't -- they found later, and it's his duty to go out with his underclothes on, a flashlight in his hand as he went out of there because he wanted go out to perform his duty and that he didn't go out -- that he went out in the performance of his duty either by one cause or another --
Joseph P. Allen: I --
Hugo L. Black: -- and that he fell off the boat?
Joseph P. Allen: I would say -- with some qualifications, I would say yes, that it was reasonable to infer that something happened which caused him to leave the boat, something happened --
Hugo L. Black: Well, you --
Joseph P. Allen: -- personal or duty.
Hugo L. Black: Well, would you say that it also was a reasonable inference if he was in the performance of his duty that he had his flashlight in his hands --
Joseph P. Allen: Yes, sir, I would.
Hugo L. Black: -- like here.
Joseph P. Allen: With only one exception and I have tried to riddle out, if he dropped something. While changing his clothes, where he changes his clothes is levelled with the deck and the deck, as I understand, it steps right out. He might have taken off his trouser, dropped something, picked this flashlight up and gone out for his own purposes. But you see the difficulty with that, sir, is to where it gets us in this particular case is that we don't know where he went. And -- if -- when you read the record, you'll see it's quite clear that --
Hugo L. Black: You mean, he fell off the boat, would you suppose that the man would be a very unreasonable man in the ordinary walks of life if we reach the conclusion under those circumstances, if he knew the boat was unlighted and faced it, he didn't have -- had ice on it in some places. That the man in the performance of his duty probably fell off with his flashlight in his hand and stayed there with him after he died. Does that sound like an -- an inference that a reasonable man couldn't meet?
Joseph P. Allen: On the basis of the evidence, sir, I would say this, I -- I would say in -- in reaching that inference, I would have -- may I answer the question, sir?
Earl Warren: You may finish your -- your statement.
Joseph P. Allen: I would have to tie them with the question of -- of the burden of proof and I can formulate any number of theories or postulates each one of which on the basis of this record will be equally probable. And I say that when you have a hypothesis or a postulate which entails liability and postulate or hypothesis which does not entail liability both equal, then the plaintiff has failed to sustain the burden of proof required under the Jones Act. Thank you very much sir.
Earl Warren: We'll recess now.


Warren E. Burger: We'll hear arguments first this morning in Number 75-6521 Abney and others against the United States. Mr. Samuel, you may proceed whenever you're ready.
Ralph David Samuel: Mr. Chief Justice, may it please the Court. This case involves petitioner's claim that the Double Jeopardy Clause bars their retrial after reversal of their conviction on a duplicitous indictment for violation of the Hobbs Act. The petitioners were tried and convicted on a duplicitous indictment which charged in one count, two separate offenses, conspiracy and attempt to violate the Hobbs Act. Thereafter, they appealed to the Third Circuit Court of Appeals which reversed on other grounds and remanded for a retrial. Three times during the trial, initial trial of this case, petitioners moved to require the Government to elect to proceed on one prong or the other of the duplicitous indictment. This, the Government steadfastly refused to do. But for the Government's steadfast refusal, this case would not be here today. Now that the case has been remanded for retrial, the Government proposes to retry these petitioners on the conspiracy prong of the duplicitous indictment. There are substantial problems with retrying these petitioners on the conspiracy prong, one of which is the indictment as now framed simply fails to state a federal offense. The indictment now charges conspiracy to commit attempt extortion, something which simply isn't not a crime under the Hobbs Act. The other problem, of course, is that retrying these petitioners on one prong of the duplicitous indictment will expose them to double jeopardy. The petitioners --
John Paul Stevens: Is there an issue of appealability in here?
Ralph David Samuel: Your Honor, we will get to that shortly.
John Paul Stevens: Well, isn't that the threshold issue of a jurisdiction?
Ralph David Samuel: The -- the petitioners appealed their --
John Paul Stevens: Well, isn't it -- isn't the special issue usually the jurisdictional question?
Ralph David Samuel: In this case the -- the Third Circuit Court of Appeals properly, we believe, took jurisdiction of the appeal from their motions to dismiss the indictment. Now --
Byron R. White: Do you have some authority for that one?
Ralph David Samuel: In -- in this Court, the Government has raised the question of jurisdiction and I would direct myself to that question. The Appellate Court Jurisdiction Act confers on the Courts of Appeals' jurisdiction to hear final decisions of the District Courts, a well-known Act. We believe, and we believe that there is substantial precedent for the idea that the denial of motion to dismiss on double jeopardy grounds is, in fact, a final decision. And if the Court of Appeals properly assumes jurisdiction over that question, this Court, in Harris versus Washington, addressed a substantially similar issue and held that the – the Court had proper jurisdiction under 28 U.S.C Section 1257, the standards of which has held -- been held or has been approached by this Court on the same basis as the standards of finality under Section 1291.
Thurgood Marshall: Which you understand as a criminal case?
Ralph David Samuel: That was a criminal case, Your Honor.
William H. Rehnquist: In that case, the State appellate system had permitted appellate review of the dismissal order and isn't that really the question here whether the federal appellate system permits review at all?
Ralph David Samuel: The case is not similar because the federal appellate system permits a review only by a writ of prohibition in the intermediate state court. Here, obviously, the Court of Appeals would have the power to entertain a motion for a writ of prohibition so that there was no special appellate statute involved in that case.
William H. Rehnquist: Well, but if there's a policy against piecemeal appeals in the federal system, that policy may or may not be followed by the States and if they'd choose or chosen to allow their process to be interrupted by appellate review of this kind of an issue, that's up to them. But I take it the argument of the other side is that the federal policy is against that sort of thing.
Ralph David Samuel: Well, I think that the -- the discussion by Mr. Justice Frankfurter in the Cobbledick case is particularly appropriate here where he noted that the right to statutory appeal must not be interpreted in such a way as to deny all opportunity for appeal under -- contemplated by the statutes. In other words, he said, exactly, due regard for efficiency in litigation must not be carried so far as to deny all opportunity for the appeal contemplated by the statutes. Now, the nature of the protection in a Double Jeopardy Clause is such that it creates the statutory right to appeal. It is -- there – there is no decision more final than the decision of a trial court cutting off a Double Jeopardy claim. The only event looming on the horizon of the accused at that point is the second trial. The -- the issues are -- are completely dissimilar, the issues on the question of Double Jeopardy and the issue to be tried in the second trial.
Thurgood Marshall: Mr. Samuel, are you just abandoning the language of the Fifth Amendment? It doesn't say you can be convicted, so you shall not be put in jeopardy. You could say you shall not be convicted.
Ralph David Samuel: Mr. Justice Marshall, I -- I agree --
Thurgood Marshall: Are you going to get to that?
Ralph David Samuel: -- with that that the -- the nature to protection again is based on the Fifth Amendment, which bars a second trial, and this Court has so held it in a long line cases from Ex parte Lange through United States versus Ball and most recently, in United States versus Dinitz. In that sense, it is a – a very special type of protection. It involves a decision of the District Court whether or not to violate the protection, and -- and there really is no other constitutional protection quite like that. If any decision is final, this one should be in light of, for instance, Stack versus Boyle where this Court held that the question of bail could be appealed pre trial because it was final decision and that it was collateral and did not merge with the trial issue. Here, we have the same -- the same type of situation. The question of -- of double jeopardy does not merge. It is a -- a collateral issue and the issues -- there are no facts required to be adduced at trial to bear on this issue. All of the necessary record facts are before the Court. The Government has become apparently quite concerned about the jurisdictional issue and I know recently that Mr. -- that Judge Friendly in the Second Circuit has written an extensive opinion in which he discusses the question of jurisdiction. I would be arguing with blinders on if I were not -- do not take cognizance of the concern of the courts that granting the right of appeal from this type of decision would open the floodgates and that every criminal defendant would immediately a double jeopardy claim. I think that that analysis misses a very important distinction, and that distinction is between the appellate jurisdiction, that is, does the -- the question is does the Appeals Court have jurisdiction to entertain and to hear these cases which we argue on the one hand and the question of whether or not every defendant has a right to have this trial stayed which is really a separate question. And the practice is, today, in the eastern District of Pennsylvania, where this case arose, that the -- the courts do not consider that every appellant has a right to have his trial stayed. And that the appellant must seek a stay based on the merits of this to having a substantial double jeopardy claim. And of course that, really has kept the floodgates from opening because the Government has only been able to point to 10 cases in which appeals have been entertained in four years since Lansdown was decided which -- in the Fourth Circuit, which created initially the -- or held initially that this was a final decision appropriate for appellate review.
Warren E. Burger: Have you -- have you calculated the amount of delay that was involved in those 10 cases for before they went to trial?
Ralph David Samuel: Mr. Chief Justice, I have not sat down with a calculator and attempted to see the amount of delay involved in those cases. But given that the extensive case load of the Federal District Courts in criminal cases, I think that 10 cases in four years really represent a very small number of cases and the amount of delay involved is -- is not overbearing. And again, the -- the words of Mr. Justice Frankfurter I think, are very appropriate as a due regard for efficiency and litigation, must not be carried so far to deny all opportunity for the appeal contemplated by the statutes, but even if --
Warren E. Burger: But if you can reduce it to statistics, then what happened to these 10 cases that went up on the interlocutory appeal?
Ralph David Samuel: In most of them, the Courts of Appeals found against some on the merits.
Warren E. Burger: Most of them or all of them?
Ralph David Samuel: I -- I believe there is one in which they -- they found for the petitioners on the merits. Nevertheless, there, a judge, at some point, in the proceedings, made a decision as in these proceedings that there was a serious double jeopardy question involved and -- and either a stay was issued or the Court took no steps to -- to move forward to trial. Now, in the Leslie case, the Leslie 2 case, which Judge Friendly -- which Judge Friendly has written his lengthy opinion, the case was scheduled to go for a retrial. And finally, I assume Judge Friendly is the judge who granted the writ of prohibition stopping the -- the trial on that case. And there, there was not -- it was not even a double jeopardy claim. It was a due process claim based on a plea bargain which the defendant had --
Byron R. White: What do you -- what do you argue from Judge Friendly's opinion?
Ralph David Samuel: Well --
Byron R. White: That it's appealable or that it isn't?
Ralph David Samuel: That -- that Judge Friendly's opinion in a Leslie is appealable to this Court or --
Byron R. White: What do you -- what do you argue from Judge Friendly's opinion as to the jurisdiction of the Court of Appeals in this case?
Ralph David Samuel: I think that the jurisdiction of the Court in -- unless he did have jurisdiction to hear the appeal. Nevertheless, it was not necessary for the judge to enter a stay or to grant the writ of prohibition stay in the trial. He must have thought that there was a serious issue that had to be dealt with before doing that.
Byron R. White: Well, I take it also that even if there is jurisdiction to review the double jeopardy issue in the Court of Appeals, it doesn't necessarily mean that the duplicity issue would piggy back on that.
Ralph David Samuel: Well, Mr. Justice White, the -- the duplicity issue I -- I think is -- well, the duplicity issue and the double jeopardy issue are really one and the same.
Byron R. White: Because if they weren't, if the -- the double jeopardy question weren't there, you certainly wouldn't argue the duplicity -- the duplicity issue was appealable by itself.
Ralph David Samuel: In this case, the Third Circuit found that there was --
Byron R. White: But would you or not?
Ralph David Samuel: Well, I -- I believe that the -- the pending issue here is the failure of the indictment to state an offense.
Byron R. White: All right. Then take that one too, then.
Ralph David Samuel: All right.
Byron R. White: Well, how about the denial of that, of the motion to dismiss an indictment for failure to state an offense? Now, is that an appealable issue or not by itself?
Ralph David Samuel: This -- that is not an appealable issue by itself, but this Court has held in a series of cases that where a pending issue is raised with a properly raised appealable issue, that the Court -- if -- if decision of that pending issue will have the effect of terminating a litigation, that the Court will reach that issue. And the reason is, is that the -- the considerations of efficiency and -- and avoidance of piecemeal review are turned around once there's a proper appeal. And at that point, those considerations militate in favor of granting the motion to dismiss or -- or whatever terminating action the Court may take. That's precisely the case that we have here. Here, the District Court felt there was a serious double jeopardy claim and granted a stay, went up on appeal, we believe, properly, and we raised, once again, the failure of the indictment to state an offense. And we -- we submit that was raised properly under Rule 12b because it can be raised at any stage of the proceedings like jurisdiction.
Thurgood Marshall: What if luckily if -- if we decide that there's no double jeopardy point here, we then move to the other one?
Ralph David Samuel: Mr. Justice Marshall, I believe that the decisions of the Court support the idea that even though the -- the properly raised issue is decided against on the merits or the Court feels that it not sufficient on the merits, they can -- they can still reach the pending issue.
Thurgood Marshall: So that now anytime you fail to get an indictment dismissed, you say double jeopardy and automatically it's appealable.
Ralph David Samuel: I -- I think that -- that there -- the question, as I said before, there's a division in the question between whether or not the Court of Appeals has jurisdiction and -- and we say that if it does.
Thurgood Marshall: Would they ever have jurisdiction in that case?
Ralph David Samuel: They would certainly have jurisdiction, we argue, to review any double jeopardy claim. Nevertheless --
Thurgood Marshall: And then they find that there was no double jeopardy claim?
Ralph David Samuel: That's right.
Thurgood Marshall: Then they go to the other one?
Ralph David Samuel: The -- the Court has the discretion to do so. It does not have to. There is no requirement.
Thurgood Marshall: Now, where does it get that discretion?
Ralph David Samuel: The -- this Court has --
Thurgood Marshall: From the fact that you alleged double jeopardy.
Ralph David Samuel: That's right.
Thurgood Marshall: And no more?
Ralph David Samuel: That's right.
Thurgood Marshall: Well, that's part of the law.
Ralph David Samuel: But nevertheless, Mr. Justice Marshall --
Thurgood Marshall: You have anything to back you up on that, do you?
Ralph David Samuel: The -- the discretion does not have to be followed. It is simply a matter of discretion, whether or not to reach the pending issue, whether or not to even consider it.
Thurgood Marshall: I thought that this case raised the question, the important question of whether or not you could appeal the denial of the double jeopardy point, without getting involved with the rest of it. I'm wrong.
Ralph David Samuel: Mr. Justice Marshall, the petition --
Thurgood Marshall: If -- If we give you relief on the double jeopardy, what do you need the other one for?
Ralph David Samuel: In the petition, we raised both issues.We raised both issues.
Thurgood Marshall: Why do you need them?
Ralph David Samuel: We -- it is -- it is true that if we have relief from the Double Jeopardy Clause, we do not need relief on the pending issue. Nevertheless, because the indictment in this case does not state an offense that is, as it is now framed because it charges something which is not a crime under the Hobbs Act at all. We think that that is such a glaring error in the lower courts that this Court exercising its discretion should reach that issue and require the indictments.
Thurgood Marshall: Well, suppose you have a grand jury indictment with two grand jurors in it. Could you bring that one up straight? No, you'll have to go through a trial, wouldn't you? Wouldn't you?
Ralph David Samuel: The finality -- I believe that you would. The finality decision here, the question here is really, goes to where there is a double jeopardy question which has been raised. Now -- now deciding that the Courts of Appeals have jurisdiction to hear the denial of the double jeopardy claim does not -- not mean that they will hear every double jeopardy claim. It means because in most cases where there's a frivolous claim raised, it would be rendered moot. By the time the Court of Appeals reaches the issue, the -- the second trial will have taken place.
Thurgood Marshall: You have to raise the question of denial or motion for a bill of particulars or something like that?
Ralph David Samuel: I don't think so. The -- the constitutional protection, the nature of the protection of the -- of the Fifth Amendment is a special -- very special type of protection. It is -- it requires the Court to make a prospective decision as to whether or a -- the Constitution will be violated. There are -- there is no other procedural constitutional writing in criminal law that it is -- it is quite like that. Now, should the Court, nevertheless, find that no double jeopardy that -- that no appellate jurisdiction existed in the Third Circuit Court of Appeals to review the merits of this -- of this issue, we believe that, nevertheless, the Court of Appeals could have reached the issue under its mandamus power. There is a long line of decisions which holds that if a – that if an appeal was improvidently filed in the Court of Appeals, that the Court of Appeals may -- may treat it as a petition for mandamus if the issue was appropriate from mandamus review and --
William J. Brennan, Jr.: But Mr. Samuel, here, the Court of Appeals did not do that?
Ralph David Samuel: That's correct, it did not. Nevertheless, we feel that -- that since the issue was one appropriate for mandamus review or would have been that the Court of Appeals could have reached it. And accordingly, since they did pass on the merits that under the rule in Magnetic Engineering and Manufacturing Company versus Dings in the -- in the Second Circuit and Hackett versus General Host Corporation in the Third Circuit in which cert was denied in 1972 that the Court of Appeals -- that -- that this Court can -- can reach the merits because the Court of Appeals would have had mandamus power to do so. And it could have done it without requiring that the petitioners file a petition for a writ of mandamus. The Third Circuit could have done this.
William H. Rehnquist: Wouldn't that involve a judgment on our part as to how the Third Circuit should have exercised its discretionary power to grant or deny mandamus?
Ralph David Samuel: The -- the cases, the circuit court cases that deal with this involve questions where there is a patently obvious issue which is available for mandamus review. I think that in this case we have such a case and therefore, since it meets the criteria that -- that the short answer is, yes, it would require a decision but that the decision is a -- a formality.
William H. Rehnquist: Well, but the Court -- you're referring to Courts of Appeals' cases where the same court in which the appeal was filed says, “No, we don't have appellate jurisdiction but we choose to treat is as a petition for mandamus and exercise our jurisdiction to allow it. If -- if you ask us to do that, that it's -- it's one level removed because you would say, “We're saying the Court of Appeals has no jurisdiction but that it should have exercised its discretionary jurisdiction.”
Ralph David Samuel: I don't deny that's the case. Nevertheless, the Court of Appeals did reach the merits in this case on an appeal and that the -- the merits of the case are such that they are patently the kind of issue which mandamus will reach. That is, that the District Court, in denying the motions to dismiss here, held that he had no basis to reach the merits following the Third Circuit's opinion after the appeal of the first trial. He felt that the Third Circuit opinion precluded him from reaching the merits and -- and made his decision accordingly. Now that we think that's an abdication of nisi prius jurisdiction that the issue of double jeopardy had not been argued, briefed or decided by the Third Circuit. And accordingly, that this is a case appropriate from mandamus review by the Third Circuit on its phase. Turning to the double jeopardy argument itself, the Third Circuit, in reviewing the decision, the indictment held that it was duplicitous and noted the evils of a duplicitous indictment. These are confusion and ambiguity. These are well-known. They've been set forth in a whole line of cases. The principal evil of an -- a duplicitous indictment is that it requires the jury to answer two separate questions with one yes or no answer, something which is almost beyond the -- the scope of logic. Accordingly, a guilty verdict under such a -- an indictment is -- is capable of various equally possible interpretations. One such interpretation is that the jury found the defendants not guilty of the conspiracy charge and we believe that because of -- of the presumption of innocence that we must adopt the most favorable of the equally possible interpretations, that being that the defendants were found not guilty of the charge on which they are now sought to be retried by the Government. That presents a clear double jeopardy situation and their retrial should be barred.The Government argues in its brief that the act of appealing to the Third Circuit from the first conviction wipes clean the slate. The -- and thus prohibits the double jeopardy claim from being raised. Nevertheless, this is not that type of situation. That is the general rule and it is a general rule which exists and we -- we agree with. This is a situation where the petitioners claim that they were acquitted of the conspiracy charge the first time around, taking the -- adopting the most favorable interpretation of this ambiguous guilty verdict. Accordingly, appeal from the first conviction cannot have the affect of wiping clean an acquittal. It simply -- simply cannot be done. The -- once acquitted, the petitioners are forever barred from having to stand trial a second time on the same charge. The Government also argues that the charge of the District Court at the -- the trial court on the first trial cured the -- the infirmity of the indictment. The Government cites no law for this proposition. It seems that it is completely unfounded and moreover, the charge of the Court, which is set forth in full beginning at page 11 of the appendix, demonstrates beyond peradventure, that the charge of the Court was just as confusing as the indictment itself. Accordingly, we request that this Court hold that the Court of Appeals had proper appellate jurisdiction to review the dismissal -- the denial of the motion is dismissed, reversed, the Court of Appeals with -- and remand with instructions to dismiss the indictment. Thank you. I'd like to reserve a couple of minutes for rebuttal.
Warren E. Burger: Very well. Mr. Thornburgh.
Richard L. Thornburgh: Mr. Chief Justice, may it please the Court. Since the Government deems the issue of appealability to be the most important of those raised in this case, I would like to defer the statement of our position on the other substantive issues unless and until the Court otherwise desires. It's the position of the Government in this case that the interruption of the trial process by the Third Circuit Court of Appeals was not justified. That Court was without jurisdiction to hear an appeal from an order denying dismissal on double jeopardy grounds before the case was retried following its reversal. The right to appeal is a statutory one, not a constitutional right. It arises in this case under the provisions of Title 28 USC § 1291 which provides for a right of appeal only of final decisions in the District Court. As pointed out in our brief --
Byron R. White: Mr. Thornburgh, is it not correct that the District Court has made a final decision on the question whether the defendant must stand trial?
Richard L. Thornburgh: I think in the colloquial sense, final decisions are made by the District Court in a whole panoply of matters in the course of hearing a trial. The question is whether it is a final decision as the courts have interpreted that phrase under 1291, and I would suggest that beginning with a line of authority that's founded in the Hickey case that in matters respecting double jeopardy, there has been with the exception of the cases that bring us here today from the Circuit Courts, a recognition by this Court that a double jeopardy claim denial is not final, a final decision for the purposes of being appealable.
Thurgood Marshall: How do you remedy the fact that the man was put in jeopardy, which is the language in the Fifth Amendment?
Richard L. Thornburgh: I would submit --
Thurgood Marshall: How do you prevent a court from violating an expressed provision of the Constitution?
Richard L. Thornburgh: Well, I think, Mr. Justice Marshall, what we are talking about here and it's -- and it's important, I think, to state, is not a denial of a right of appeal but the timing of that appeal, whether that appeal is to be permitted to interrupt the flow of the criminal justice process. There are any number of --
Thurgood Marshall: The Constitution says, “You shall not start that process.”
Richard L. Thornburgh: And the Constitution says indeed that no legally obtained evidence shall be used against a defendant that he shall not be brought --
Thurgood Marshall: Does that say jeopardy and where do you see that in the Constitution?
Richard L. Thornburgh: Where do I --
Thurgood Marshall: I'm talking about language expressly in the Constitution.
Richard L. Thornburgh: Well, that is --
Thurgood Marshall: The rules of evidence are not in the Constitution.
Richard L. Thornburgh: No, they have interpreted to -- have been interpreted by this Court.
Thurgood Marshall: But this, we don't have to interpret jeopardy, do we? We know where jeopardy is.
Richard L. Thornburgh: We know where jeopardy is, we know that jeopardy attaches when the trial takes place.
Thurgood Marshall: And Congress -- and the Constitution says no jeopardy.
Richard L. Thornburgh: But the right of appeal --
Thurgood Marshall: And the Court says, “We will put this man in jeopardy and there's no way of stopping that.”
Richard L. Thornburgh: There is a right.
Warren E. Burger: Is the speedy -- is the right to a speedy trial explicit in the Constitution?
Richard L. Thornburgh: Yes it is, Mr. Chief Justice.
Warren E. Burger: If it denies a motion to dismiss for wanting a speedy trial is that in the same sense final in its judgment as the double jeopardy is final?
Richard L. Thornburgh: The Fourth Circuit has so held in that case is of great concern to the Government with regard to the finality doctrine. I think that with respect to the double jeopardy issue, I recognize that the Courts of Appeals have succumbed to what Judge Friendly refers to as the seductive argument that the -- that the -- the right of not being placed in jeopardy twice is not a meaningful right unless it has a handmaiden of pretrial appeal to a company it. But I think that that represents a misreading of the lines of authority that have been developed in this Court, not only under the Cohen doctrine of collateral decisions but the state cases which are relied upon by petitioner here. With respect to Cohen, that case was really the -- the first breach in the application of the finality doctrine. And when you look at the facts of that case, which involved a shareholder suit upon which the -- with respect to which the District Court had to decide a question of cause on the petitioner, and that question was then reviewed in the appellate courts. This Court found ultimately in Cohen in its decision that that was one of what they styled a small class of cases where a determination is made of claims of right which are separable from and collateral to the rights asserted in that particular civil action.That it was too important to be denied review and in fact, would be lost itself if it were not decided at that time. It's analog in the -- in the criminal area is Stack v. Boyle involving a determination of bail in a criminal case, again.
John Paul Stevens: Mr. Thornburgh, just before you go on it, why won't the right not to be tried a second time be irrevocably lost if it's not predicted right at this very point? Why doesn't that reasoning apply here?
Richard L. Thornburgh: Well, I think --
Byron R. White: In other words, why doesn't Cohen fit this case like a glove if one can say that Cohen's theory applies to the criminal side?
Richard L. Thornburgh: Because I don't think the -- the double jeopardy issue is separable from and collateral to the rights to assert in the action. The double jeopardy issue is part and parcel of the entire package of decisions on factual and legal matters that have to be decided in the case on its trial and has to be, as in Hickey with the so-called right not to be tried once transactional immunity had been granted has to await the determination of the trial and all of its issues so that piecemeal review will give way to a consideration of that entire package upon appellate review.
Byron R. White: Of course, Hickey did not involve a right based in the Constitution, did it?
Richard L. Thornburgh: Well, I would submit that at that time, it might well have been thought to encompass such a right because it -- the statute was a substitute for the Fifth Amendment right, which prohibits the use of testimony in an incriminating sense. So I think that there is a -- as the Court noted in Hickey, a distinct parallel to the transactional immunity argument and the double jeopardy argument. Indeed, the Court in Hickey noted and more or less assumed that a -- a claim of double jeopardy would be treated in the same way. That is, that -- that it would not have the affect of interrupting the process but would have to await determination of the case itself. Now, Hickey, in a sense, I would submit, if it -- it remains good law today and we urge that it does, really answers the questions that are raised in this case. I think what has happened that the development that brings us to the consideration of the double jeopardy question out of the Circuits today represents the false sense that have been followed in a number of circuit courts which have lead them, on the basis of Cohen, into a path of error. I think, as I mentioned first of all, they have looked at the seductive argument of the uniqueness of double jeopardy drawing on cases like Ball and Green which contained descriptive language about the double jeopardy right which are unassailable, but said not in the context of the appealability of a pre-trial order denying a motion to dismiss on double jeopardy grounds. This is an argument that was really first raised in the Fifth Circuit in Gilmore where now, Chief Judge Brown, noted that all appeal rights are statutory and not constitutional and then continued in dealing with double jeopardy as follows and I quote, “There are many instances in which it is ultimately determined that constitutional rights have been violated, but the nature of the asserted right, that is to say, a constitutional one, does not distinguish appellate review of any such question from the assertion of other rights, whether statutory or common law or from a procedural rule. At least, so long as a criminal case is pending, review of such matters as for example, unlawful search and seizure, unlawful arrest, unlawful detention, unlawful indictment, unlawful confession must await the trial and its outcome.” The Fourth Circuit in Lansdown disagreed and enunciated a view of Cohen which has found double jeopardy claims to be collateral in the Cohen sense and in gender, the line of cases that bring us here today. The premise on which these holdings of the Courts of Appeal rely has not been examined in this Court since Hickey, and needless to say, it has not occasioned any action by the Congress to extend the scope of review of interlocutory orders. I think, when you examine the rationale in Lansdown, in the Fourth Circuit, against the rationale expressed for denying these rights of interlocutory appeal in Cobbledick, Justice Frankfurter's opinion of 1940, the deficiency in the Courts of Appeals' reasoning appears. That is to say, in Lansdown, the Court said, “Even if an appellate court reverses the conviction in a second trial on the grounds of double jeopardy, a defendant has still not been afforded the full protection of the Fifth Amendment since he has been subjected to the embarrassment, expense, anxiety and insecurity involved in the second trial.” Compare this with Justice Frankfurter's language in Cobbledick where he said to the point, “Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.” That is a painful document – doctrine, I will acknowledge, but as pointed out by Judge Brown, there are numerous cases where an error can be made by the District Court that will occasion embarrassment, expense, anxiety and insecurity to a defendant who later obtains a reversal of a conviction that was obtained through error.
Byron R. White: Well, Mr. -- it is a painful obligation of citizenship perhaps to be tried once, but the Constitution makes very clear that it's not a painful obligation to be tried the second time after you've been convicted or acquitted the first time. That's the big difference between what you read to us and the case now before us.
Richard L. Thornburgh: That is --
Byron R. White: They've all been tried twice and that's what the Constitution makes very clear is not a painful obligation of citizenship. The Constitution protects against precisely that.
Richard L. Thornburgh: Indeed, it does but the question remains as to whether there is a statutory right to vindicate that constitutional right before the trial has taken place. There is no question and I urge again that we not fall into the error that I find myself sometimes into thinking that we are talking about whether there exists a right of double jeopardy. What I submit we are just examining is whether there is a statutory right. Indeed, where there was once no right to appeal in a criminal case, the question becomes, do we have now a statutory right that encompasses the vindication of a double jeopardy claim prior to trial.
William H. Rehnquist: Mr. Thornburgh, supposing that a motion similar to the one made in this case was made in the District Court and the District Judge, rather than denying it simply said, “I'm going to take it under advisement but I think it's fairly debatable,” and kept it under advisement until the end of the trial. Do you suppose that the defendant would have had any constitutional right to get a writ of mandamus from the Third Circuit?
Richard L. Thornburgh: I think, in all probability, that the judge would have the power to that. It's frequently done in my experience on matters that are raised pre-trial or during the trial and having the power to do so, I would see no reason why the extraordinary writ would issue in the face of the exercise of that power.
Potter Stewart: But are you saying there would be no power to issue an extraordinary writ pursuant to this at Section 1291, the all writ sec?
Richard L. Thornburgh: Well, I -- I think there -- there certainly would be the power to do so, in the -- in the egregious case but it would -- it would not reach the question of the power of the District Court to defer consideration of such a motion until the end of the trial.
Thurgood Marshall: Mr. Thornburgh, assuming not uncommon 18-month trials that a double jeopardy claim is made, and in if its appeal, would it not only save the defendant? Wouldn't also save the Government?
Richard L. Thornburgh: I suppose that such a prospect could result, but I would submit that that's something that the Congress could well take into consideration?
Thurgood Marshall: I didn't ask a thing about Congress or the statutes at all. I asked you a question of fact. If there was a clear-cut, double jeopardy point that you and everybody else knew was there, wouldn't it be better to get it over with? I think the answer is, that if it was a good one you just wouldn't proceed.You'd save your money. But if it was a question where one, you'd make the defendant go out and pay the money for his lawyers and everything else.
Richard L. Thornburgh: Well, I think this Court so held in Roche against Evaporated Milk Association where that very point was -- was raised in an antitrust case.
Thurgood Marshall: Well, I think Evaporated Milk has got more money than the average defendant.
Richard L. Thornburgh: I think that's right, Mr. Justice Marshall. I'm not going to argue about Evaporated Milk against the ordinary defendant or the defendant in this case, but I submit that that kind of an argument, given the statutory framework within which rights of appeal in criminal cases exist is one that must, of necessity, be decided in the Congress by a balancing of an empirical assessment of Evaporated Milk against the number of -- of cases where appeal has been taken --
Thurgood Marshall: But what is --
Richard L. Thornburgh: -- on double jeopardy grounds that are --
Thurgood Marshall: But what is the --
Richard L. Thornburgh: -- frivolous.
Thurgood Marshall: -- none -- you don't have any non-legal ground for supporting your argument like saving money or anything like that.
Richard L. Thornburgh: I have -- I have a great many non-legal grounds I think your -- if -- if --
Thurgood Marshall: If you're not to say anything about them.
Richard L. Thornburgh: I should not assert them?
Thurgood Marshall: I say are you?
Richard L. Thornburgh: I -- I will assert them, yes. I think that the problem here is one of judicial administration as Mr. Justice Frankfurter noted in the Cobbledick case, the theory of piecemeal review is not consonant with sound judicial administration. I don't want to be involved in parading horribles before this Court on this Monday morning, but one can easily foresee from the cases that have been decided in the wake of these Circuit Court decisions that relate to the appealability of double jeopardy cases, that we are going to be faced with claims, at least, that will rise to the Circuit Courts and eat up the time that they have available to consider appellate matters in areas such as the speedy trial provisions of the Constitution.McDonald has done that. In the Leslie --
John Paul Stevens: Mr. Thornburgh, couldn't we take care all of those by writing a narrow opinion, making it clear we're not deciding that? And if the theory of this is that it's a right not to be tried expressed in the -- in the Fifth Amendment, why wouldn't that provide an answer to that -- to that particular risk?
Richard L. Thornburgh: Well, I would obviously urge that this Court not open this Pandora's Box because --
John Paul Stevens: What's the reason --
Richard L. Thornburgh: -- I think these are --
John Paul Stevens: What is -- what is your reason to its -- what is your basic explanation why the Cohen case does not apply?
Richard L. Thornburgh: I think the -- the real difference between this and Cohen is that Cohen involved, as did the -- the Bailey case, a kind of a turn style phenomenon. That is the cause of the case, the amount of bail are clearly separable from the kind of --
John Paul Stevens: Well, is it your -- is it your theory that the case can go on without deciding that issue?It doesn't interrupt the proceeding? That what's you seem to be saying in your brief?
Richard L. Thornburgh: Well, it would --
John Paul Stevens: Which would be true on the Bailey situation, but I don't think it would really be true in the Cohen situation. Wasn't the theory of that that requiring this security for cause would have actually terminated the litigation of the District Court on where it stood?
Richard L. Thornburgh: Well, that was looking it as a practical matter?
John Paul Stevens: Yes. And isn't that --
Richard L. Thornburgh: That may well be so.
John Paul Stevens: -- the same situation here that if you allow the order to stand, the defendant losses his right not to be tried a second time. Well, why are they different? I'm just a little puzzled.
Richard L. Thornburgh: Well, I think that again I -- I get back to the point of the easy equivalency of the existence of the double jeopardy right in the Constitution and the right to pre-trial appeal. There are -- I again, submit on the basis of Judge Brown's litany of -- of cases that might occasion equally serious constitutional depredations.
John Paul Stevens: But you've already agreed that none of those involves a depredation cause by the trial itself. It is the trial which involves the violations of the man's --
Richard L. Thornburgh: Well --
John Paul Stevens: -- constitutional rights.
Richard L. Thornburgh: -- I would -- I would urge that if we are to look at the practical aspects of the case in Cohen that we should also look at the practical aspects of the case in a criminal case. That is to say, the double jeopardy right might pale in -- in comparison with a supposed egregious error on the question of admissibility of evidence of constitutionality of a particular statute under which the individual is charged whether he had been given proper warnings, whether he had been tortured or confession had been extracted from. I think if we look at the practical side, although your suggestion in Cohen that there any number of -- of problems which would rise to the level of the double jeopardy claim. And again, reverting to the -- the basic framework within which appellate rights exist, it still does not deal with the question of whether or not the Congress has seen fit to provide in this type of case knowledgeable of the developments in Cobbledick, DiBella, Hickey and the like, any kind of pre-trial appeal for the denial of double jeopardy of the type involved in this case. I -- I'd like to deal briefly --
John Paul Stevens: Can I just ask one other question? Assume a state system provides for appeal in this sort of situation without the complication, extraordinary writ that you had in one of those state cases. Just say it was a direct appeal for the state system and the State Supreme Court rejected the claim, would that be a final decision under --
Richard L. Thornburgh: It's -- it's been so held and I think that's the second thread that has lead the Circuit Courts in -- in these cases in the Order --
John Paul Stevens: Do you think there's a greater that the requirement of finality is – that it poses a stricter standard on federal and the federal review than it does on review of State Court decisions?
Richard L. Thornburgh: Well, they are, if I might say, apples and oranges. The state determination of the federal issue is final because it's the only federal issue. Whereas in the cases that come out of the federal courts, there is a vast catalogue of federal issues that could be presented --
John Paul Stevens: Would you suggest the state decision would not be final within that document cases if there lurked the possibility of a search and seizure issue on the case or a Fifth Amendment or some other Federal constitutional issue relating to the merits?
Richard L. Thornburgh: Well, in having run its course and reach --
John Paul Stevens: We're still at pre-trial. We just know that there are often federal issues in state criminal trials and you're saying those -- the existence of those would deprive the order of finality? Or are you saying they don't make any difference?
Richard L. Thornburgh: Well, I think again what we get back to is -- is the difference between the two systems that if the State has countenance stay threshold arrival of this issue, this federal issue at its highest court level that this Court is in entitled to determine that that is final for state purposes and therefore, appropriate under 1257 for appeal in this Court. But the specter of which --
John Paul Stevens: Well, just to be sure I had your answer. You do not rely on the fact that there's only one federal issue in the State proceedings. But that's not your rationale.
Richard L. Thornburgh: Well --
John Paul Stevens: It's rather that the State is willing to allow an appeal so we might as well do the same thing.
Richard L. Thornburgh: That -- that -- I think that the -- the former issue has been present in every case that this Court has decided on that issue.
John Paul Stevens: Well then, I may ask you, does -- is that critical to those decisions in your view? I think it was in Judge Friendly's view.
Richard L. Thornburgh: I -- I was -- I was going to say that but I -- I – (Voice overlap)
John Paul Stevens: It doesn't really make much sense, does it? To say that because there -- that it will be appealable to -- if there can be showing that there's no potential additional federal issue on the case. That's kind of a --
Richard L. Thornburgh: One could conceive of a state equivalent of 2255 or other types of things that might raise constitutional issues to be sure. But in the course of that particular litigation, litigative track, it is final and for state purposes and right for appeal, I -- I would analyze under 1257 as distinguished from what we're dealing with under 1291. And I think those state cases --
John Paul Stevens: Literally the language of the federal statute is a little more favorable for appeal because it talks about final decisions and the underlying statute talks about final judgments, doesn't it?
Richard L. Thornburgh: Yeah. I -- I must say I -- I don't know how to assess that. I -- there is, I realize, a treatment of that difference in -- in decisions of this Court but I -- I can't divine any difference that would produce a more favorable treatment or one way or another. I would urge that the -- the language be treated as its equivalent.
Harry A. Blackmun: Mr. Thornburgh, in your parade of anticipated horribles, if you lose on the double jeopardy issue, would you also include an issue having to do with the speech and debate clause?
Richard L. Thornburgh: That was the reference suggested by Judge Friendly. I -- I don't know, Mr. Justice Blackmun. I don't know.
Harry A. Blackmun: I suppose you do conceive that the -- the lynchpin of this case is the nature of double jeopardy.
Richard L. Thornburgh: I think that what the Courts of Appeals have found to be the lynchpin for deviating from the finality rule in criminal cases has been the nature of double jeopardy. But I -- I don't -- I urge on this Court that it is not a distinguishable factor from a broad variety of other serious constitutional problems which might be justice apt to candidates for pretrial review if one is to indulge oneself in permitting that kind of review.
Byron R. White: Would you take the same position, General Thornburgh, if the double jeopardy issue was that this that the -- not that he was subjected to another trial but that he was being subjected to a second conviction for the same crime?
Richard L. Thornburgh: I think that the -- let's say, distinction without a difference in -- in my view.
Byron R. White: Pardon me? Because after all the Double Jeopardy Clause is a -- say it, it does talk about double jeopardy but it certainly is the aims -- it also aims at preventing double convictions or double punishments for the same -- same crime, doesn't it?
Richard L. Thornburgh: Well, that could only be determined after the second conviction had been obtained and that was --
Byron R. White: That was -- that was I said. I (Voice Overlap) --
Richard L. Thornburgh: I'm sorry.
Byron R. White: I think the same --
Richard L. Thornburgh: Then it -- no. Certainly, then it is appropriate for review because the process has played itself out --
Byron R. White: I understand that, but at -- at -- before the trial. Before the second trial, the claim may have -- the defendant says, “I don't mind. I'm not objecting to having to go to trial. My object is the fact that I'm threatened with another conviction for what I claim is the same kind as I was convicted last week for.”
Richard L. Thornburgh: That I must revert to seeing a -- a distinction without difference because the claim is anticipatory until the trial plays itself out. He may be acquitted. The trial may abort for some other reason. I don't think that that is a particularly persuasive addition to the argument with respect to exposure to trial.
John Paul Stevens: But Mr. Thornburgh if the question of appealability should go against you, you have only a minute or two, I noticed.Are you to say anything the merits?
Richard L. Thornburgh: I would like to take my remaining time to address the merits, briefly. The case as presented by the petitioner states that because of the duplicity of the indictment, it is difficult, if not impossible, to determine what the verdict was in the first trial. I think a search of the record, particularly the charge of the Court in this case, with its final words to the jury being emphasized, makes it clear that what the Government was doing here was not overreaching as the petitioner alleges but underreaching. They were setting a task much greater for themselves, which I would certainly not want to do of securing convictions on both of these offenses. The trial judge defined the statute in terms of conspiracy or attempt and then proceeded to charge on the necessity of convicting for conspiracy and attempt, even going to the length in his last words to the jury of pointing out that both of those offenses had to be, result in conviction. I don't think that we can assume that the jury did not follow those instructions. The colloquy which is relied upon by counsel for the petitioner was not communicated to the jury and I think what we must do is -- is to look at those instructions that were given to the jury and they clearly indicate that they were under an -- a charge to convict of both offenses, conspiracy and attempt. And in that event, it strikes me that we -- we need proceed no further. Now, with respect to the statement of an offense, the so-called pendent claim, if one refers to the brief and our analysis of the Hobbs Act, the -- the charge, it's -- it seems clear that the acts of what is charged is that the acts amounting to attempted extortion were performed in furtherance of a properly alleged conspiracy and that there was no failure to charge in the terms of the Hobbs Act. So, that I think that when we do get to the merits after this trail regarding the appealability of pre-trial, that we find, indeed, that if this is the type of claim that is going to inject itself into our appellate process, willy-nilly, on a piecemeal basis, we will suffer considerable delay and misuse of appellate time.
Byron R. White: And I take it your position is though, that even if the -- even if the double jeopardy issue is appealable, the others aren't?
Richard L. Thornburgh: Absolutely not.
Warren E. Burger: Mr. Samuel, you have about five minutes left.
Ralph David Samuel: Mr. Chief Justice, may it please the Court. Turning first to the last comments of -- of the Attorney General. The indictment here is reproduced at page 9 of the appendix and it -- it only takes up a-- a short -- excuse me. I may have -- page 5 of the appendix. It only takes up a little bit more than a page and that it really is very instructive to read that indictment because that indictment does not charge, properly charge a conspiracy. It does not charge any agreement. It charges a conspiracy and attempt by attempt. There is no language in there to suggest in anyway that these defendants agreed to commit an attempt. They charge they attempt it. It doesn't say that they attempt it together, that they agreed to attempt they -- that they -- they conspire in any way, except the -- the single bare word conspiracy. For that reason, we believe that the indictment fails to state an offense because now with the attempt portion of the charge deleted, it charges a conspiracy to commit attempted extortion, which we have noted is not a crime under the Hobbs Act. The -- the charge of the Court cannot, we -- we submit, correct the deficiencies of the duplicitous indictment. The charge at page 22 of the appendix talks about the charge against each individual defendant. Now, here, we have two separate charges.The Court lumps them together as the charge.He then goes on. On page 26 of the appendix, the offense charged, lumps them together again and so forth throughout the remaining part of the charge of the Court. Now, the -- the position of the -- of the petitioners is that -- that where there are two separate charges, where there is a duplicitous indictment to lump them together as one, creates something which is incognizable by the jury. It -- the jury is considering something which is completely separate from the two crimes charged. They're -- they are asked to consider something which is -- which is not within the province of the criminal law. Turning back to the appealability question, I think it's important to note that -- that the petitioners here are not trying to get into the Third Circuit. They are not testing their right to appeal. They were there. The question is, did the Third Circuit have appropriate and proper federal jurisdiction to consider their claims and -- and that I think is an -- an important question. The -- in reaching that question, the question of finality becomes very important whether or not it is a final decision. And in Stack versus Boyle, very similar situation to this where bail was considered to be a final decision and reviewable pre-trial and whether or not the trial went on before the Appellate Court reached that, made no difference. The fact is, is that the -- the appellants in Stack versus Boyle had a right to have the Appellate Court reach the question of whether the bail was excessive. In Harris versus Washington, here, I think Harris is a very important case here. Albeit in utilizing the state courts, but the -- it was a motion to dismiss on double jeopardy grounds in the trial court which was denied. A writ of prohibition was entered by the Court of Appeals and reversed by the State Supreme Court. So, this Court had before it only one issue whether or not the denial of a -- of a motion to dismiss on double jeopardy grounds was a final judgment in the words of that statute, for purposes of review. And as we pointed and as the Government agrees, the criteria for final judgment and final decision are the same and have been held to be the same.
Potter Stewart: Wouldn't it all, sometimes be true, at least sometimes, Mr. Samuel, that whether or not the bar against double jeopardy where it's applicable would not clearly appear until at least the start of the second prosecution. I'm thinking of an Ashe against Swenson kind of case.
Ralph David Samuel: I'm not sure that -- that I understand the question exactly, but the -- the --
Potter Stewart: I'm thinking of a collateral estoppel kind of a case.
Ralph David Samuel: Where --
Potter Stewart: Where it might not be clear until the --
Ralph David Samuel: It's certainly clear --
Potter Stewart: At least the prosecution began by putting it on this case?
Ralph David Samuel: It's certainly clear where the Government seeks to retrial on the same indictment.
Potter Stewart: Yes.
Ralph David Samuel: Where there is a -- a question of collateral estoppel, it seems to me that the -- if the indictment is properly framed so as to adequately advise the defendant of the charge against him that it can be -- that the defendant at that point can make the double jeopardy claim. And --
Potter Stewart: He can make it, but no court can very intelligently decide it. That's why – that's -- that was the -- what prompted my question.
Ralph David Samuel: I -- I'm not sure that I have that much familiarity with the potential possibilities here to -- to discuss that, but that's not the case here. Here, we have attempted re-trial on the same indictment and accordingly, we request that the Court grant the requested relief. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.