United States v. Dinitz, 424 U.S. 600 (1976)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

For repeated misconduct by respondent’s counsel (Wagner) during the opening statement period in respondent’s criminal trial, the trial judge expelled Wagner and asked respondent’s co-counsel (Meldon) if he was prepared to proceed with the trial. Upon being advised that Meldon had not discussed the case with witnesses, the judge gave him until the next morning to prepare. At that time, Meldon advised the judge that respondent wanted Wagner to try the case. After the judge had set forth the alternatives of (1) a delay pending appellate review of the propriety of Wagner’s expulsion, (2) continuation of the trial with Meldon as respondent’s main counsel, or (3) declaring a mistrial to permit respondent to obtain other counsel, Meldon made a motion for a mistrial, which the judge granted. Before his second trial, respondent filed a motion on double jeopardy grounds to dismiss the indictment, which the judge denied. Respondent represented himself at the second trial, which resulted in his conviction. The Court of Appeals reversed, holding that the exclusion of Wagner and the judge’s questioning of Meldon left respondent with "no choice" but to request a mistrial; that, under the circumstances, respondent could not be said to have voluntarily relinquished his right to proceed before the first jury; and that the Double Jeopardy Clause barred the second trial because there had been no manifest necessity for Wagner’s expulsion.

Held: The Double Jeopardy Clause does not bar respondent’s retrial. Pp. 606-612.

(a) Though this Court has held that whether there can be a new trial after a mistrial has been declared without the defendant’s request depends on whether "there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated," United States v. Perez, 9 Wheat. 579, 580, different considerations obtain when the mistrial has been declared at the instance of the defendant, whose request for a mistrial ordinarily removes any barrier to reprosecution even if necessitated by prosecutorial or judicial error. Pp. 606-608.

(b) The Court of Appeals erred in holding that the manifest necessity standard should be applied to a mistrial motion when the defendant has "no choice" but to request a mistrial. Though the Double Jeopardy Clause bars retrials where "bad faith conduct by judge or prosecutor," United States v. Jorn, 400 U.S. 470, 485 (plurality opinion), threatens the "[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant, Downum v. United States, 372 U.S. 734, 736, here there is no contention or record showing that the trial judge’s expulsion of Wagner was in bad faith to goad respondent into requesting a mistrial or to prejudice his acquittal prospects. Pp. 608-611.

504 F.2d 854, reversed and remanded.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 612. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 613. STEVENS, J., took no part in the consideration or decision of the case.