Gori v. United States, No. 486

• Court: United States Supreme Court
• Writing for the Court: Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE
• Citation: 81 S.Ct. 1523,367 U.S. 364,6 L.Ed.2d 901
• Decision Date: 12 June 1961
• Docket Number: No. 486
• Parties: Dante Edward GORI, Petitioner, v. UNITED STATES

367 U.S. 364 81 S.Ct. 1523 6 L.Ed.2d 901 Dante Edward GORI, Petitioner,

v.

UNITED STATES.

No. 486. Argued May 3, 1961. Decided June 12, 1961. Rehearing Denied Oct. 9, 1961.

See 82 S.Ct. 25.

Mr. Harry I. Rand, Washington, D.C., for petitioner.

Miss Beatrice Rosenberg, Washington, D.C., for respondent.

Opinion of the Court, by Mr. Justice FRANKFURTER, announced by Mr. Justice CLARK.

In view of this Court's prior decisions, our limited grant of certiorari in this case¹ brings a narrow question here. We are to determine whether, in the particular circumstances of this record, petitioner's conviction at his sec-

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ond trial² for violation of 18 U.S.C. § 659, 18 U.S.C.A. § 659,³ after his first trial had been terminated by the trial judge's declaration of a mistrial sua sponte and without petitioner's 'active and express consent,'⁴ violates the Fifth Amendment's prohibition of double jeopardy. The Court of Appeals for the Second Circuit in banc affirmed petitioner's conviction (one judge dissenting), holding his constitutional objection without merit. 282 F.2d 43. We agree that the Fifth Amendment does not require a contrary result.⁵

Petitioner was brought to trial before a jury in the District Court for the Eastern District of New York on February 4, 1959, on an information charging that he had knowingly received and possessed goods stolen in interstate commerce. That same afternoon, during the direct examination of the fourth witness for the Government, the presiding judge, on his own motion and with neither approval nor objection by petitioner's counsel,⁶ withdrew a juror and declared a mistrial. It is unclear what reasons caused the court to take this action, which the Court of Appeals characterized as 'overassiduous' and criticized

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as premature.⁷ Apparently the trial judge inferred that the prosecuting attorney's line of questioning presaged inquiry calculated to inform the jury of other crimes by the accused, and took action to forestall it. In any event, it is obvious, as the Court of Appeals concluded, that the judge 'was acting according to his convictions in protecting the rights of the accused.' 282 F.2d at page 46. The court below did not hold the mistrial ruling erroneous or an abuse of discretion. It did find the prosecutor's conduct unexceptionable and the reason for the mistrial, therefore, not 'entirely clear.' It did say that 'the judge should have awaited a definite question which would have permitted a clear-cut ruling,' and that, in failing to do so, he displayed an 'overzealousness' and acted 'too hastily.' Id., at pages 46, 48. But after discussing the wide range of discretion which the 'fundamental concepts of the federal administration of criminal justice' allow to the trial judge in determining whether or not a mistrial is appropriate—a responsibility which 'is particularly acute in the avoidance of prejudice arising from nuances in the heated atmosphere of trial, which cannot be fully depicted in the cold record on appeal,' id., at page 47—and the corresponding affirmative responsibility for the conduct of a criminal trial which the federal precedents impose, it concluded:

'On this basis we do not believe decision should be difficult, for the responsibility and discretion exer-

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cised by the judges below seem to us sound. * * * ' Id., at page 48.

Certainly, on the skimpy record before us⁸ it would exceed the appropriate scope of review were we ourselves to attempt to pass an independent judgment upon the propriety of the mistrial, even should we be prone to do so—as we are not, with due regard for the guiding familiarity with district judges and with district court conditions possessed by the Courts of Appeals.

On March 9, 1959, petitioner moved to dismiss the information on the ground that to try him again would constitute double jeopardy. The motion was denied and he was retried in April. He now attacks the conviction in which the second trial resulted.

In this state of the record, we are not required to pass upon the broad contentions pressed, respectively, by counsel for petitioner and for the Government. The case is one in which, viewing it most favorably to petitioner, the mistrial order upon which his claim of jeopardy is based was found neither apparently justified nor clearly erroneous by the Court of Appeals in its review of a cold record. What that court did find and what is unquestionable is that the order was the product of the trial judge's extreme solicitude—an overeager solicitude, it may be—in favor of the accused.

Since 1824 it has been settled law in this Court that 'The double-jeopardy provision of the Fifth Amendment-

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* * * does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.' Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Keerl v. State of Montana, 213 U.S. 135, 137—138, 29 S.Ct. 469, 470, 53 L.Ed. 734; see Ex parte Lange, 18 Wall. 163, 173—174, 21 L.Ed. 872; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 85—86, 23 S.Ct. 28, 32—33, 47 L.Ed. 79. It is also clear that 'This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served * * *,' Brock v. State of North Carolina, 344 U.S. 424, 427, 73 S.Ct. 349, 350, 97 L.Ed. 456,⁹ and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. See Lovato v. State of New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244; cf. Wade v. Hunter, supra. In the Perez case, the authoritative starting point of our law in this field, Mr. Justice Story, for a unanimous Court, thus stated the principles which have since guided the federal courts in their application of the concept of double jeopardy to situations giving rise to mistrials:

'* * * We think, that in all cases of this nature, the law has invested Courts of justice with the authority

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to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this...