Bartkus v. Illinois, 359 U.S. 121 (1959)

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Author: Justice Brennan

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Bartkus v. Illinois, 359 U.S. 121 (1959)

MR. JUSTICE BRENNAN, whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS join, dissenting.

Bartkus was tried and acquitted in a Federal District Court of robbing a federally insured savings and loan association in Cicero, Illinois. He was indicted for the same robbery by the State of Illinois less than three weeks later, and subsequently convicted and sentenced to life imprisonment. The single issue in dispute at both trials was whether Bartkus was the third participant in the robbery, along with two self-confessed perpetrators of the crime.

The Government’s case against Bartkus on the federal trial rested primarily upon the testimony of two of the robbers, Joseph Cosentino and James Brindis, who confessed their part in the crime and testified that Bartkus was their confederate. The defense was that Bartkus was getting a haircut in a barber shop several miles away at the time the robbery was committed. The owner of the barber shop, his son and other witnesses placed Bartkus in the shop at the time. The federal jury in acquitting Bartkus, apparently believed the alibi witnesses and not Cosentino and Brindis.

The federal authorities were highly displeased with the jury’s resolution of the conflicting testimony, and the trial judge sharply upbraided the jury for its verdict. See some of his remarks printed in United States v. Vasen, 222 F.2d 3, 9-10 (dissenting opinion). The federal authorities obviously decided immediately after the trial to make a second try at convicting Bartkus, and, since the federal courthouse was barred to them by the Fifth Amendment, they turned to a state prosecution for that purpose. It is clear that federal officers solicited the state indictment, arranged to assure the attendance of key witnesses, unearthed additional evidence to discredit Bartkus and one of his alibi witnesses, and, in general, prepared and guided the state prosecution. Thus, the State’s Attorney stated at the state trial: "I am particularly glad to see a case where the federal authorities came to see the state’s attorney." And Illinois conceded with commendable candor on the oral argument in this Court "that the federal officers did instigate and guide this state prosecution," and "actually prepared this case." Indeed, the State argued the case on the basis that the record showed as a matter of "fair inference" that the case was one in which

federal officers bring to the attention of the state prosecuting authority the commission of an act and furnish and provide him with evidence of defendant’s guilt.

I think that the record before us shows that the extent of participation of the federal authorities here constituted this state prosecution actually a second federal prosecution of Bartkus. The federal jury acquitted Bartkus late in December, 1953. Early in January, 1954, the Assistant United States Attorney who prosecuted the federal case summoned Cosentino to his office. Present also were the FBI agent who had investigated the robbery and the Assistant State’s Attorney for Cook County who later prosecuted the state case. The Assistant State’s Attorney said to Cosentino, "Look, we are going to get an indictment in the state court against Bartkus, will you testify against him?" Cosentino agreed that he would. Later, Brindis also agreed to testify. Although they pleaded guilty to the federal robbery charge in August, 1953, the Federal District Court postponed their sentencing until after they testified against Bartkus at the state trial, which was not held until April, 1954. The record does not disclose what sentences were imposed after they testified at the state trial or whether sentences have yet been imposed. Both Cosentino and Brindis were also released on bail pending the state trial, Brindis on his own recognizance.

In January, also, an FBI agent who had been active in the federal prosecution purposefully set about strengthening the proofs which had not sufficed to convict Bartkus on the federal trial. And he frankly admitted that he "was securing it [information] for the federal government," although what he gathered had "gone to the state authorities." These January efforts of the agent were singularly successful, and may well have tipped the scales in favor of conviction. He uncovered a new witness against Bartkus, one Grant Pursel, who had been enlarged on bail pending his sentencing on his plea of guilty to an indictment for violation of the Mann Act. Pursel testified that, "about two weeks after the federal trial, in the first part of January," the FBI agent sought him out to discuss an alleged conversation between Pursel and Bartkus during September, 1953, when both were in jail awaiting their respective federal trials. Pursel’s testimony at the state trial, that Bartkus had told him he participated in the robbery, was obviously very damaging. Yet, indicative of the attitude of the federal officials that this was actually a federal prosecution, the FBI agent arranged no interview between Pursel and any state authority. The first time that Pursel had any contact whatsoever with a state official connected with the case was the morning that he testified. And, as in the case of Cosentino and Brindis, Pursel’s sentencing was postponed until after he testified against Bartkus at the state trial. Here too, the record does not disclose what sentence was imposed, or whether any has yet been imposed.

Also within a month after the federal acquittal, the FBI agent sought out the operator of the barber shop who had placed Bartkus in his shop at the time of the robbery. The barber testified at both federal and state trials that Bartkus entered his shop before 4 o’clock, about which time the robbery was committed. The agent testified as a rebuttal witness for the State that the barber had told him in January that it might have been after 4:30 o’clock when Bartkus entered the shop. And the significance of the federal participation in this prosecution is further evidenced by the Assistant State’s Attorney’s motion at the beginning of the trial, which was granted over defense objection, to permit the FBI agent to remain in the courtroom throughout the trial although other witnesses were excluded.

The Court, although not finding such to be the case here, apparently acknowledges that, under certain circumstances it would be necessary to set aside a state conviction brought about by federal authorities to avoid the prohibition of the Fifth Amendment against a second federal prosecution. Our task is to determine how much the federal authorities must participate in a state prosecution before it so infects the conviction that we must set it aside. The test, I submit, must be fashioned to secure the fundamental protection of the Fifth Amendment

that the . . . [Federal Government], with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. . . .

Green v. United States, 355 U.S. 184, 187. Under any test based upon these principles, this conviction cannot stand. In allowing the use of federal resources to bring about this second try at Bartkus, the Court denies Bartkus the protection which the Fifth Amendment assures him. Given the fact that there must always be state officials involved in a state prosecution, I cannot see how there can be more complete federal participation in a state prosecution than there was in this case. I see no escape from the conclusion that this particular state trial was, in actuality, a second federal prosecution -- a second federal try at Bartkus in the guise of a state prosecution. If this state conviction is not overturned, then, as a practical matter, there will be no restraints on the use of state machinery by federal officers to bring what is in effect a second federal prosecution.

To set aside this state conviction because infected with constitutional violations by federal officers implies no condemnation of the state processes as such. The conviction is set aside not because of any infirmities resulting from fault of the State, but because it is the product of unconstitutional federal action. I cannot grasp the merit of an argument that protection against federal oppression in the circumstances shown by this record would do violence to the principles of federalism. Of course, cooperation between federal and state authorities in criminal law enforcement is to be desired and encouraged, for cooperative federalism in this field can indeed profit the Nation and the States in improving methods for carrying out the endless fight against crime. But the normal and healthy situation consists of state and federal officers cooperating to apprehend lawbreakers and present the strongest case against them at a single trial, be it state or federal. Cooperation in order to permit the Federal Government to harass the accused so as to deny him his protection under the Fifth Amendment is not to be tolerated as a legitimate requirement of federalism. The lesson of the history which wrought the Fifth Amendment’s protection has taught us little if that shield may be shattered by reliance upon the requirements of federalism and state sovereignty to sustain this transparent attempt of the Federal Government to have two tries at convicting Bartkus for the same alleged crime. What happened here was simply that the federal effort which failed in the federal courthouse was renewed a second time in the state courthouse across the street. Not content with the federal jury’s resolution of conflicting testimony in Bartkus’ favor, the federal officers engineered this second prosecution, and, on the second try, obtained the desired conviction. It is exactly this kind of successive prosecution by federal officers that the Fifth Amendment was intended to prohibit. This Court has declared principles in clearly analogous situations which I think should control here. In Rea v. United States, 350 U.S. 214, the Court held that an injunction should issue against a federal agent’s transference of illegally obtained evidence to state authorities for use as the basis of a state charge. If the federal courts have power to defeat a state prosecution by force of their supervision of federal officers, surely the federal courts have power to defeat a state prosecution transparently employed by federal authorities in violation of the Fifth Amendment. In Knapp v. Schweitzer, 357 U.S. 371, 380, we declared: "Of course, the Federal Government may not take advantage of . . . the States’ autonomy in order to evade the Bill of Rights." See also Feldman v. United States, 322 U.S. 487, 494; cf. Byars v. United States, 273 U.S. 28. These principles require, I think, that we set aside this state conviction.

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Chicago: Brennan, "Brennan, J., Dissenting," Bartkus v. Illinois, 359 U.S. 121 (1959) in 359 U.S. 121 359 U.S. 165–359 U.S. 170. Original Sources, accessed September 25, 2018, http://www.originalsources.com/Document.aspx?DocID=CPKJGCJZ6PSREGS.

MLA: Brennan. "Brennan, J., Dissenting." Bartkus v. Illinois, 359 U.S. 121 (1959), in 359 U.S. 121, pp. 359 U.S. 165–359 U.S. 170. Original Sources. 25 Sep. 2018. www.originalsources.com/Document.aspx?DocID=CPKJGCJZ6PSREGS.

Harvard: Brennan, 'Brennan, J., Dissenting' in Bartkus v. Illinois, 359 U.S. 121 (1959). cited in 1959, 359 U.S. 121, pp.359 U.S. 165–359 U.S. 170. Original Sources, retrieved 25 September 2018, from http://www.originalsources.com/Document.aspx?DocID=CPKJGCJZ6PSREGS.