author: Mr. Justice Harlan Me. Chief Justice Burger, Mr. Justice Stewart,

text:
    UNITED STATES v. JORN
    No. 19.
    Argued January 12, 1970 — Reargued October 22, 1970—
    Decided January 25, 1971

      Harlan, J., announced the judgment of the Court in an opinion in which Burger, C. J., and Douglas- and Marshall, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 487. Black and Brennan, JJ., filed a statement concurring in the judgment, post, p. 488. Stewart, J., filed a dissenting opinion in which White and Blackmun, JJ., joined, post, p.,488.

      Richard B. Stone argued the cause for the United States on the reargüment. Louis F. Claiborne argued the cause for the United States on the original argument. With Mr. Stone on the brief on the reargument were
      Solicitor General Griswold and Assistant Attorney General Walters. On the brief on the original argument were Solicitor General Griswold, Assistant Attorney General Walters, Peter L. Strauss, and Joseph M. Howard.

      Denis R. Morrill, by appointment of the Court, 396 U. S. 899, reargued the cause and filed briefs for appellee.
   Mr. Justice Harlan

announced the judgment of the Court in an opinion joined by The Chief Justice, Mr. Justice Douglas, and Mr. Justice Marshall.

The Government directly appeals the order of the United States District Court for the District of Utah dismissing, on the ground of former jeopardy, an information charging the defendant-appellee with willfully assisting in the preparation of fraudulent income tax returns, in violation of 26 U. S. C. § 7206 (2).

Appellee was_ originally charged in February 1968 with 25 counts of violating §7206 (2). He was . brought to trial before Chief Judge Ritter on August 27, 1968. After the jury was chosen and sworn, 14 of the counts were dismissed on the Government’s motion. The trial then commenced, the Government calling as its first witness an Internal Revenue Service agent in order to put in evidence the remaining 11 allegedly fraudulent income tax returns the defendant was charged with helping to prepare. At the trial judge’s suggestion, these exhibits were stipulated to and introduced in evidence without objection. The Government’s five remaining witnesses were taxpayers whom the defendant allegedly had aided in preparation of these returns.

After the first of these witnesses was called, but prior to the commencement of direct examination, defense counsel suggested that these witnesses be’warned of their constitutional rights. The trial court agreed, and proceeded, in careful detail, to spell out the witness’ right not to say anything that might be used in a subsequent criminal prosecution against him and his right, in the event of such a prosecution, to be represented by an attorney. The first witness expressed a willingness to testify and stated that he had been warned of his. constitutional rights when the Internal Revenue Service first contacted him. The trial judge indicated, however, that he did not believe the witness had been given any warning at the time he was first contacted by the IRS, and refused to permit him to testify until he had consulted an attorney.

The trial judge then asked the prosecuting attorney if his remaining four witnesses were similarly situated. The prosecutor responded that they had been warned of their rights by the' IRS upon initial contact. The judge, expressing the view that any warnings that might have been given were probably inadequate, proceéded to discharge the jury; he then called all the taxpayers, into court, and informed them of their constitutional rights and of the considerable dangers of unwittingly making damáging admissions in these factual circumstances. Finally, he aborted the trial so the witnesses could consult with attorneys.

The case was set for retrial before another jury, but on pretrial motion by the defendant, Judge Ritter dismissed the information on the ground of former jeopardy. The Government filed a direct appeal to this Court, and we. noted probable jurisdiction. 396 U. S. 810 (1969). The case was argued at the 1969 Term and thereafter set for reargument at the present Term. 397 U. S. 1060 (1970).

I

Appellee contends, at the threshold, that our decision in United States v. Sisson, 399 U. S. 267, 302-307 (1970), which followed our noting of probable jurisdiction in this case, forecloses appeal by the Government under the motion-in-bar provisions of 18 U. S. C. § 3731 prior to its recent amendment. The question was fully briefed and argued on reargument.

The statute provided, in relevant part, for an appeal by the Government direct to the Supreme Court “[f]rom the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.” Appellee concedes, as indeed he must under the prior rulings of this Court, that his plea of former jeopardy constituted a “motion in bar” within the meaning of the statute. The issue is whether appellee had been “put in jeopardy” by virtue of the impaneling of the jury in the first proceeding before the declaration of mistrial. In Sisson, supra, the opinion of the Court— in discussing the applicability of the motion-in-bar provision to the Government's direct appeal of the trial judge's actions there — concluded, inter alia, that the “put in jeopardy” language applied whenever the jury had been impaneled, even if the defendant might constitutionally have been retried under the double jeopardy provisions of the Fifth Amendment. 399 U. S., at 302-307.

Here the jury in the first proceeding had been impaneled before the mistrial ruling, but appellee’s motion to dismiss on grounds of former jeopardy was made prior to the impaneling of the second jury. The Government contends that the impaneling of the jury must be understood to apply to the jury in the proceeding to which the plea of former jeopardy is offered as a bar, rather than the jury whose impaneling was, in the first instance, essential to sustain the plea on the merits. Ap-pellee contends that the construction put on the statute ' in the Sisson opinion requires the conclusion that the Government may not appeal when a jury in the prior proceeding for the offense in question has been impaneled.

We think the Government has the better of the argument. The Court’s opinion in Sisson dealt with the problem presented by the trial judge’s order puf porting to arrest the entry of judgment on the guilty verdict returned by the very jury whose impaneling was claimed to constitute “jeopardy” within the meaning of the motion-in-bar provision. The conclusion that jeopardy had attached by the impaneling of the jury in that proceeding rested on the view that the Congress was concerned, in granting the Government appeal rights in certain classes of eases, to avoid subjecting the defendant to a second trial where the first trial had terminated in á manner favorable to the defendant either because of a jury verdict or because of judicial action. . See Sisson, supra, at 293-300. The “compromise origins” of the Criminal Appeals Act, see id., at 307,. reflected this concern, and that concern is an important consideration supporting the canon of strict construction traditionally applied to this statute. See id., at 296-300; Will v. United States, 389 U. S. 90, 96-98 (1967).

In the mistrial situation, the judicial ruling that is chronologically analogous to the Sisson, facts would be the declaration of a mistrial after the first jury has been impaneled. Obviously, the Government could not have appealed Judge Ritter’s. original declaration of mistrial. Since a mistrial ruling explicitly contemplates reprosecution of the defendant, the nonappealability of this judicial action fits with congressional action in excluding pleas in abatement from the class of cases warranting appellate review. The nonappealable status of rulings of this sort is fully explainable in terms of a policy disfavoring appeals from interlocutory rulings. See the discussion in Will v. United States, supra, at 96-98.

But it does not follow from the nonappealability of rulings' which are essentially interlocutory insofar as they expressly contémplate resumption of the prosecution, that Congress intended to foreclose governmental appeal from the sustaining of a later motion in bar on the trial judge’s conclusion that constitutional double jeopardy policies require that the earlier mistrial ruling now be accorded the effect of barring reprosecution.' Indeed, when we recall that pleas of former jeopardy tyere the paradigm illustrations of motions in bar at common law, see n. 2, supra, it seems much more, likely that the congressional decision to allow governmental appeals from the judge’s decision sustaining a motion in bar was intended to permit review of later judicial, action possibly premised on erroneous theories concerning constitutional effects attaching to the earlier interlocutory ruling.

Consistently with the Court’s opinion in Sisson, the sustaining of a motion in bar based on a plea of former jeopardy would be appealable as long as the motion in bar was sustained prior to the impaneling of the jury in the subsequent proceeding. Since Judge Ritter in this case dismissed the information on appellee’s plea of former jeopardy prior , to the impaneling of the second jury, .we conclude that the decision is directly appealable by the Government as a motion in bar before the defendant was “put in jeopardy” within the meaning of the applicable statute. Hence we proceed to the merits of appellee’s claim that reprosecution after the declaration of mistrial in the earlier proceeding would violate his Fifth Amendment rights.

II

The Fifth Amendment’s prohibition against placing a defendant “twice in jeopardy” represents a constitutional policy of finality for the defendant’s benefit.in federal criminal proceedings. ' A power’ in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society’s awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness, to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. Both of these considerations are expressed in Green v. United States, 355 U. S. 184, 187-188 (1957), where the Court noted that the policy underlying this provision “is that the State 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,, as well as enhancing the possibility that even though innocent he may be found guilty.” These considerations have led this Court to conclude that a defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the • trier be a jury or a judge. See Green v. United States, supra, at 188; Wade v. Hunter, 336 U. S. 684, 688 (1949).

But it is also true that- a criminal trial is, even in . the best of circumstances, a complicated affair to manage: The proceedings are dependent in the first instance oh the most elementary sort of considerations, e. g., the health of the various witnesses, parties, attorneys, jurors, etc., all of whom must be prepared to arrive at the courthouse at set times. And when one adds the scheduling problems arising from case overloads, and the Sixth Amendment’s requirement that the single trial to which the double jeopardy provision restricts the Governmént be conducted speedily, it becomes readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant's consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide. As the Court noted in Wade v. Hunter, supra, at 689, “a- defendant’s valued right to have his trial completed , by a particular tribunal must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments.”

Thus the conclusion that “jeopardy attaches” when the trial commences expresses a judgment that the constitutional policies underpinning the Fifth Amendment’s guarantee are implicated at that point in the proceed-' ings. The question remains, however, in what circumstances retrial is to be precluded when the initial proceedings are aborted prior to verdict without the defendant’s consent.

In dealing with that question^ this Court has,, for the most part, explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will , permit or preclude retrial. Thus, in United States v. Perez, 9 Wheat. 579 (1824), this Court held that a defendant in a capital case might be retried after the trial judge had, without the defendant’s consent, discharged a jury that reported itself unable to'agree. Mr. Justice Story’s opinion for the Court in Perez expressed the following thoughts on the problem of reprosecution after a mistrial had been declared without the consent of the defendant:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority 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 favour of the prisoner. But, after all, they have the right to order the discharge f and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.”. Id., at 580.

The Perez case has since been applied by this Court as a standard of appellate review for testing the trial judge’s exercise of his discretion in declaring a mistrial without the defendant’s consent. E. g., Simmons v. United States, 142 U. S. 148 (1891) (reprosecution not-barred where mistrial declared because letter published in newspaper rendered juror’s impartiality doubtful); Logan v. United States, 144 U. S. 263 (1892) (reprose-cution not barred where jury discharged after 40 hours of deliberation for inability to reach a verdict); Thompson v. United States, 155 U. S. 271 (1894) (reprosecution not barred where jury discharged because one juror had ■ served on grand jury indicting defendant); Wade v. Hunter, 336 U. S. 684 (1949) (retrial not barred where military .court-martial discharged due to- tactical necessity in the field).

But a more recent ease — Gori v. United States, 367 U. S. 364 (1961) — while adhering in the main to the Perez theme of a “manifest necessity” standard of appellate review — does suggest the possibility of a variation on that theme according to a determination by the appellate court as to which party to the case was the beneficiary of the mistrial ruling. In Gori, the Court was called upon to review the action of. a trial judge in discharging the jury when it appeared to the judge that the prosecution’s questioning of a witness might lead to the introduction of evidence of prior crimes. We upheld reprosecutiop after the mistrial in an opinion which, while applying the principle of Perez, appears to tie the judgment that there was no abuse of discretion in these circumstances to the fact that the judge- was acting “in the sole interest of the defendant.” 367 U. S., at 369; see also the dissenting opinion of Mr. Justice Douglas, id., at 370.

In the instant cáse, the Government, relying principally on Gori, contends that even if we conclude the trial judge here abused his discretion, reprosecution should be permitted because the judge’s ruling “benefited” the defendant and also clearly was not compelled by bad-faith prosecutorial conduct aimed at triggering a mistrial in order to get another day in court. If the judgment as to who was “benefited” by the mistrial ruling turns on the appellate court’s conclusion concerning which party the trial judge was, in point of personal motivation, trying to protect from prejudice,, it seems reasonably clear from the trial record here that the judge’s insistence on stopping the trial until the witnesses were properly warned was motivated by the desire, to protect the witnesses rather than the defendant. But the Government appears to view the question of “benefit” as turning on an appellate court’s post hoc assessment as to which party would in fact have been aided in the hypothetical event that the witnesses had been called to the stand after consulting with their own attorneys on the course of conduct that would best serve to insulate them personally from criminal and civil liability for the fraudu-. lent tax returns. That conception of benefit, however, involves. nothing more than an' exercise in pure speculation. In sum, we are unable to conclude on this record that this is a case of a mistrial made “in the sole interest of the defendant.” See Gori v. United States, supra.

Further, we think that a limitation on the abuse-of-discretion principle based on an appellate court’s assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision. Reprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge’s action. The Government contends, however, that the policies evinced by the double jeopardy provision do not reach this sort of injury; rather the unnecessarily inflicted second trial must, in the Government’s view, appear to be the result of a mistrial declaration which “unfairly aids the prosecution or harasses the defense.” Govt. Brief- 8.

Certainly it is clear beyond question that the Double Jeopardy Clause does not guarantee a defendant that the Government will be prepared, in' all circumstances, to vindicate the social interest in law enforcement through the vehicle of a single proceeding for a .given offense. Thus, for. example, reprosecution for the same offense is permitted where the defendant wins a reversal on appeal of a conviction. United States v. Ball, 163 U. S. 662 (1896); see Green v. United States, 355 U. S. 184, 189 (1957). The determination to allow reprosecution in these circumstances reflects the judgment that the defendant's double jeopardy interests, however defined, do not go so- far as to compel society to so mobilize its decisionihaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error. But it is also clear that recognition that the defendant can be reprosecuted for the same offense after successful appeal does not compel the conclusion that double jeopardy policies are confined to prevention of prosecutorial or judicial overreaching. For the crucial difference between reprosecution after appeal by the. defendant and reprosecution, after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the, dispute then and. there with an acquittal. On the’ other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has béen deprived of his “valued right to have his trial completed by a particular tribunal.” See Wade v. Hunter, 336 U. S., at 689.

If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat., at 580.

The conscious refusal of this Court to channel the exercise of that discretion according to rules based on categories of circumstances, see Wade v. Hunter, 336 U. S., at 691, reflects the elusive nature of the problem presented by judicial action. foreclosing the defendant from going to his jury. But that discretion must still be exercised; ■ unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process. Yet we cannot evolve rules based on the source of the particular problem giving rise to a question whether a mistrial should or should not be declared, because, even in circumstances where the problem reflects error on the part of one counsel or the other, the trial judge must still take care to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.

In sum, counsel for both sides perform in an imperfect world; in this area, bright-line rules based on either the source of the problem or the intended beneficiary of the ruling would only disserve the vital competing interests of the-' Government and the defendant. ■ The trial judge must recognise that lack of preparedness by the Government . to continue the trial directly implicates policies •underpinning both the double jeopardy provisión and the speedy trial guarantee. Cf. Downum v. United States, 372 U. S. 734 (1963). Alternatively, the judge must bear in mind the potential risks of abuse by the defendant of society’s unwillingness to unnecessarily subject him to repeated prosecutions. Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.

III

Applying these considerations to the record in this case, we must conclude that the trial judge here abused his discretion in discharging the jury. Despite assurances by both the first witness and the prosecuting attorney that the five taxpayers involved in the litigation had all been warned of their constitutional rights, the judge refused to permit them to testify, first expressing his disbelief that they were warned at all, and then ex-’ pressing his views that any- warnings that might have been given would be inadequate. App. 41^42. In probing the assumed inadequacy of the warnings that might have been given, the prosecutor was asked if he really intended to try a case for willfully aiding in the preparation of fraudulent returns on. a theory that would not incriminate the taxpayers. When the prosecutor started to answer that he intended to do just that, the judge cut him off in midstream and immediately discharged the jury. App. 42-43. It is apparent from the record that no consideration was given to. the possibility of a trial continuance; indeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do. so. When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial. United States v. Perez, 9 Wheat., at 580. Therefore, we must conclude that in the circumstances of this case, appellee’s reprosecution would violate the double jeopardy provision of the Fifth Amendment.

Affirmed.

Me. Chief Justice Burger,

concurring.

I join in the plurality opinion and in the judgment of the Court not without some reluctance, however, since the case represents a plain frustration. of the right to have this case tried, .attributable solely to the conduct of the trial judge, If the accused had brought about the erroneous mistrial ruling we would have a different case, but this record shows nothing to take appellee’s claims outside the classic mold of being twice placed in jeopardy for the same offense.

Mr. Justice Black and Mr. Justice Brennan believe that the Court lacks jurisdiction over this appeal under 18. U. S. C. § 3731 because the action of the trial judge amounted to an acquittal of appellee and therefore there was no discretion left, to the trial judge to put appellee again in jeopardy. However, in view of a decision by a majority of the Court to reach the merits, they join the judgment of the Court.

Mr. Justice Stewart,

with whom Mr. Justice White and Mr. Justice Blackmun join,

dissenting.

The plurality opinion today says that whenever a trial judge in a criminal case has “abused his discretion” in declaring a mistrial on his own motion, the constitutional guarantee against double jeopardy categorically operates to forestall a trial of the casé on the merits. I cannot agree.

The District Judge’s decision to declare a mistrial in this case was based on his belief that the prosecution witnesses, who were to testify that they had submitted false income tax returns prepared by the defendant, had not been adequately warned that they might themselves incur criminal liability by their testimony. The judge apparently intended simply to postpone the case so that the witnesses could be. fully apprised of their constitutional rights, and a second trial was scheduled before a new jury. However,, before the new trial date defendant filed a motion to dismiss the information on the ground of former jeopardy, and the judge granted the motion. The Government appealed directly to this Court.-

It is, of course, common ground that there are many circumstances under which a trial judge may discharge a jury and order a new trial, without encountering any double jeopardy problems. One example is where the judge acts at the instance of the defendant himself. See United States v. Tateo, 377 U. S. 463, 467. Another is where the jury cannot reach a verdict, and there the trial judge may proceed on his own initiative, even over the active objection of the defendant, to declare a mistrial. United States v. Perez, 9 Wheat. 679, Cf. Simmons v. United States, 142 U. S. 148; Wade v. Hunter, 336 U. S. 684. On the other hand, there are situations where the circumstances under which the mistrial was declared may be such as to bar a future prosecution. One example is where a “judge exercises his authority to help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused.” Gori v. United States, 367 U. S. 364, 369. I should suppose that whether misconduct of this kind occurs at the instance of the prosecutor or on the trial judge’s sole initiative, there is no question but that the guarantee against double jeopardy would make another trial impermissible.

The present case does not fall neatly into any of these conventional categories. There was no request for a mistrial from defense counsel (although his suggestion that the witnesses be warned of their constitutional rights may have triggered the course of events that followed), and the case certainly cannot be analogized to that, of a hung jury. Conversely, the mistrial was not requested by the prosecutor, and there is not the slightest indication that he' desired it to occur. Nor is there any suggestion that this was a situation involving “harassment,” or an attempt by judge or prosecutor to enhance the possibility of conviction in a second trial.

The plurality opinion purports to resolve the matter by adopting a rule of “abuse of discretion” by the trial judge. This standard is said to derive from the statement of the Court in the leading case of United States v. Perez, supra, at 580:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority 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 .... 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 discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.”

The plurality opinion appears to construe this passage to mean that an appellate court, in determining the applicability of the double jeopardy guarantee, must measure the trial judge’s action in declaring the mistrial against a standard of good trial practice. If the trial judge has conspicuously failed to meet such a standard, then, regardless of the nature or the consequences of the error, the Constitution bars another trial. In my view, this reasoning is both overbroad and flatly inconsistent with this Court’s decision in Gori v. United States, supra.

In that case, the trial judge had discharged the jury during the first day of trial, taking such action apparently to forestall prejudicial error after inferring that the prosecuting attorney’s line of questioning presaged inquiry calculated to inform the jury of other crimes by the accused. The Court of Appeals held that the declaration of a mistrial under these circumstances did not prevent a new trial on the merits:

“Here the defendant was in no way harmed by the brief trial which, indeed, revealed to him the prosecution’s entire case. He was thus in a position to start anew with a clean slate, with all possibility of prejudice eliminated and. with foreknowledge of the case against him. The situation was quite unlike the more troublesome problems found in various of the cases, as where the prosecution desires to strengthen his case on a new start or otherwise provokes the declaration of mistrial, or the court has acted to the prejudice of the accused, or the accused has actually been subject to two trials for essentially, the same offense. On the other hand, for the defendant to receive absolution for his crime, later proven quite completely, because the judge acted too hastily in his interest, would be an injustice to the public in the particular case and a disastrous precedent for the future.” 282 F. 2d 43, 48 (CA2 1960).'

This Court declined to pass on the Court of Appeals’ judgment that there had been no abuse of discretion, noted that the case involved neither harassment nor an attempt to augment the chances of conviction, and concluded:

“Suffice that we are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial. It would hark back to the formalistic artificialities of seventeenth century criminal procedure so to confine our federal trial courts by compelling them to navigate a narrow compass between Scylla and.Charybdis. We would not thus make them unduly hesitant conscientiously to exercise their most sensitive judgment — according to their own lights in the immediate exigencies of trial — for the more effective protection of the criminal accused.” 367 U. S., at 369-370.

Gori established, I think correctly, that the simple phrase “abuse of discretion” is not enough in itself to resolve double jeopardy questions in cases of this kind. Whether or not there has been an “abuse of discretion” sufficient to bar retrial cannot be determined without reference to the purpose and effect of the mistrial ruling. The real question is whether there has been an “abuse” of the trial process resulting in prejudice to the accused, by way of harassment or the like, such as to outweigh society’s interest- in the punishment of crime. It is in this context, rather than simply in terms of good trial practice, that the trial judge’s “abuse of discretion” must be assessed in deciding the question of double jeopardy.

Applying these considerations to the record in this case, it seems clear to me that a trial on the merits would not violate the constitutional guarantee. It is quite true, as the plurality opinion, insists, that the mistrial was declared for the benefit of the witnesses rather than in the “sole interest of the defendant.” But except for the inconvenience of delay always caused by a mistrial, the judge’s ruling could not possibly have injured the defendant. Had the witnesses heeded the trial judge’s advice, it is at least possible that the defendant’s position might have been very substantially improved by their refusal to testify upon the grounds of the guarantee against compulsory self-incrimination. The line of questioning that resulted in the mistrial may have been initiated by defense counsel with just such a result in mind. There is, of course, no showing of an intent on the part of either the prosecutor or the judges to harass the defendant or to enhance the chances of conviction in a second trial. And as in Gori, the defense was given a complete preview of the Government’s case. Even assuming that the trial judge’s action was plainly improper by any standard of good trial practice, the circumstances under which the mistrial was declared did not involve “abuse” of a kind to invoke the constitutional guarantee against double jeopardy.

I respectfully dissent from the judgment of the-Court.

       These provisions of the Criminal Appeals Act have recently been amended. See n. 6, infra. However, the new amendment does not apply to cases begun in the District Court before the effective date of enactment. Ibid. Our jurisdiction over the present appeal is therefore controlled by the terms of the Criminal Appeals Act as codified at 18 U. S. C. § 3731.

       The common-law equivalent of the motion in bar was used to raise the defenses of prior acquittal, prior conviction, and pardon. See United States v. Murdock, 284 U. S. 141, 151 (1931). Whether the motion-in-bar provision is construed broadly to reach any plea having the effect of preventing further prosecutions, see United States v. Mersky, 361 U. S. 431, 441-443 (1960) (BreiínaN, J., concurring), or narrowly to reach only pleas in the nature of confession and avoidance, see id., at 455-458 (Stewart, J., dissenting), appellee’s plea of former jeopardy based on the prior declaration of mistrial would be included. Cf. United States v. Blue, 384 U. S. 251, 254 (1966). See generally United States v. Sisson, 399 U. S. 267, 300 n. 53 (1970).

       The portion of the Court’s opinion in Sisson under discussion here was joined in by only four members of the Court.

       Mr. ■ Justice White’s , dissenting opinion contended that the jeopardy language applies to preclude governmental appeal only where the defendant’s reprosecution would be barred by the Constitution.

       The Government relies in part on United States v. Toteo, 377 U. S. 463 (1964), and United States v. Oppenheimer, 242 U. S. 85 (1916), as sustaining jurisdiction under 18 U. S. C. §3731 to review the trial court’s action- in granting a pretrial motion to dismiss on double jeopardy grounds after the prior proceeding ended in a mistrial. In Tateo, however, jurisdiction was neither raised by the parties nor considered by the Court; therefore, it is of little significance on the jurisdiction point. In Oppenheimer, the motion in bar in the second proceeding rested on an earlier pretrial motion based on the statute of limitations; the theory of the second plea ivas res judieata.

       Appellee points out that Rule 12 (b)(1) of the Federal Rules of Criminal Procedure permits the defendant to raise the defense of former jeopardy on motion before or after the impaneling of the jury. See Notes of the Advisory Committee, 8 J. Moore, Federal Practice ¶ 12.01 [2] (2d ed. 1970). Thus, it is suggested that the defendant may deprive the Government of its appeal simply by delaying his motion to dismiss until the jury has been impaneled. This' problem, of course,1 is inherent in the structure of the Criminal Appeals Act prior' to amendment; for example, the defendant under Rule 12 (b) (1) may also delay his statute of limitations plea until after the impaneling of the jury, see ibid., thereby depriving the Government of its § 3731 appeal to this Court. Soon after the passage of the original Act, the Attorney General recognized the problem and proposed that the Act be amended to require'counsel for the defendant to raise and argue such questions before jeopardy attaches. See Sisson, supra, at 305-306. A recently enacted amendment to the Criminal Appeals Act undertakes to. deal with the problem by allowing the Government to appeal “to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” Omnibus Crime-Control Act of 1970, § 14 (a) (1), 84 Stat. 1890 (January 2, 1971). However, the amendment is not applicable -to any criminal case begun in any district court before the effective date of the amendment. Id., § 14 (b)'. See also S. Rep. No. 91-1296, pp. 6-7-

       It is clear from the record in this case that Judge Ritter’s action cannot, as two members of the Court suggest, be classified as an “acquittal” for purposes of this Court’s jurisdiction over the appeal under 18 U. S. C. § 3731. First, Judge Ritter’s action at the original trial clearly contemplated reprosecution of the defendant after the witnesses had consulted with attorneys. See App. 46 and-Mr. Justice Stewart’s dissent, post, at 488-489, n. 1. Judge Ritter’s subsequent action dismissing the information was simply put on the ground of defendant’s plea of former jeopardy, without further explanation. App. 60. But the parties below put the question of former jeopardy to Judge Ritter exclusively in terms of the Court’s line of cases concerning reprosecutability after mistrial declarations without the defendant’s consent. See App. 55-59, which contain the entire post-mistrial proceedings before Judge Ritter.
      Of course, as we noted in Sisson, supra, at 290, the trial judge’s characterization of his own action 'cannot control the classification of the action for purposes of our appellate jurisdiction. But Sisson goes on to articulate the criterion of an “acquittal” for purposes of assessing our jurisdiction to review: the trial judge’s disposition is an “acquittal” if it is “a legal determination on the basis of facts adduced at the trial relating to the general issue of the case . . . .” Sisson, supra, at 290 n. 19. The record in this case is utterly devoid of any indication of reliance by Judge Ritter on facts relating to the general issue of the case, thereby surely distinguishing this case from Sisson, and, one would think, under the very reasoning of Sisson, compelling the conclusion that whatever else Judge Ritter may have done, he did not “acquit” the defendant in the relevant sense:

       Two Terms ago the double jeopardy provision of the Fifth Amendment was made directly applicable to the States. See Benton V. Maryland, 395 U. S. 784 (1969).

       See also Annotation,: Double Jeopardy — Mistrial, 6 L. Ed) 2d 1509; J. Sigler, Double Jeopardy 39-47 (1969).

       And see Annotation, supra, n. 9, at 1511; Sigler, supra, n. 9, at 44-45.

       We think, that nothing said in United States v. Tateo, 377 U. S. 463, 467 (1964), can properly be taken as indicating a contrary view. For there, even though defendant’s ■ guilty plea which aborted the trial was subsequently held to have been coerced by judicial action, the defendant nonetheless was hot foreclosed of his option to go to the jury if he chose to do so, and thereafter rely on post-eonviction proceedings to redress the wrong done to him by the judge. In other words, the question of “voluntariness” for purposes of assessing the validity of a plea of guilty — whether offered before or at trial— must be distinguished from the question of “voluntariness” for purposes of assessing reprosecutability under the Double Jeopardy Clause.

       Conversely, where a defendant’s mistrial motion "is necessitated by -judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred. Cf. United States v. Tateo, supra, at 468 n. 3; n. 11, supra.

       The trial judge stated:
      “So this, case is vacated, setting is vacated this afternoon, and it will be calendared again; and, before it is calendared again, I am going to have these witnesses in and talk to them' again before I will permit them to testify.” App. 46.

      I agree that the Court has jurisdiction of this appeal, for the reasons set out in Part I of the plurality opinion.

        Downum v. United States, 372 U. S. 734, is not to the contrary. As the plurality opinion today points out, that case recognized that “lack of preparedness by the Government to continue the trial directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee,” ante, at 486. Failure of the prosecution to go forward with its case in an expeditious and orderly manner is quite different from even a serious error in trial procedure by the presiding judge. It is, of course, well settled'that when a jury verdict is reversed on appeal because of an error by the trial judge, a new trial is permitted, e. g., Forman v. United States, 361 U. S. 416; Bryan v. United States, 338 U. S. 552. And in United States v. Tateo, 377 U. S. 463, the Court held retrial not barred by the Double Jeopardy Clause where the first trial was terminated on a plea of guilty coerced by clearly improper statements by the trial judge during the proceedings.


source: Caselaw Access Project

author:
Mr. Justice Stewart
      Me. Justice Douglas, Mr. Justice Harlan,

license: Public Domain

text:
    USNER v. LUCKENBACH OVERSEAS CORP. et al.
    No. 47.
    Argued November 18, 1970—
    Decided January 25, 1971
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, and BlackmüN, JJ., joined. Douglas, J., filed a dissenting opinion in which Black and BrennaN, JJ., joined, post, p. 501. Harlan, J., filed a dissenting opinion, post, p. 503.

      H. Alva Brum-field argued the cause for petitioner. With him on the brief were Evangeline M. Vavrick and H. Alva Brumfield III.

      Charles Kohlmeyer, Jr., argued the cause for respondents. With him- on the brief were Thomas W. Thorne, Jr., and Benjamin W. Yancey.

      Arthur J. Mandell filed a brief for the American Trial Lawyers Association as amicus curiae urging reversal.
   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner, a longshoreman employed by an independent stevedoring contractor, was injured while engaged with his fellow employees in loading cargo aboard the S. S. Edgar F. Luckeribach. He brought this action for damages against the respondents, the owner and the charterer of the ship, in a federal district court, alleging that his injuries had been caused by the ship’s unseaworthiness.

In the course, of pretrial proceedings the circumstances under which the petitioner had been injured were fully disclosed, and they are not in dispute. On the day in .question the ship lay moored to a dock in New Orleans, Louisiana, receiving cargo from a barge positioned alongside. The loading operations were being performed by the petitioner and his fellow longshoremen under the direction of their employer. Some of the men were on the ship,, operating the port winch and boom at the No. 2 hatch. The petitioner and others were on the barge, where their job was to “break out” the bundles of cargo by securing them to a sling attached to the fall each time it was lowered from the ship’s boom by the winch operator. The loading operations had been proceeding in this manner for some time, until upon one occasion the winch operator did not lower the fall far enough. Finding the sling beyond his reach, the petitioner motioned to the flagman standing on the deck of the ship to direct the winch operator to lower the fall farther. The winch operator then lowered the fall, but he lowered it too far and too fast. The sling struck the petitioner, knocking him to the deck of the barge and causing his injuries. Neither before nor .after this occurrence was any difficulty experienced with the winch, boom, fall, sling, or any other ■equipment or appurtenance of the ship or her cargo.

The respondents moved for summary judgment in the District Court, upon the ground that a single negligent act by a fellow longshoreman could not render the ship unseaworthy. The District Court denied the motion, but granted the respondents leave to take an interlocutory appeal under 28 U. S. C. § 1292 (b). The United States Court of Appeals for the Fifth Circuit allowed the appeal and, reversing the District .Court, directed that the respondents’ motion for summary judgment be granted. 413 F. 2d 984. It was the appellate court’s view that “ '[ijnstant unseaworthiness’ resulting from ‘operational negligence’' of the stevedoring contractor is not a basis for recovery by an injured longshoreman.” 413 F. 2d, at 985-986. We granted certiorari, 397 U. S. 933, because of a conflict among the circuits on the basic issue presented.

The development in admiralty law of the doctrine of unseaworthiness as a predicate for a shipowner’s liability for personal injuries or death has been fully chronicled elsewhere, and it would serve no useful purpose to repeat the details of that development here. Suffice it to recall that from its humble origin as a dictum in an obscure case in 1922, the doctrine of liability based upon unseaworthiness has experienced a most extraordinary expansion in a series of cases decided by this Court over the last 25 years. The Court’s decisions in some of those cases have been severely questioned, by dissenting Justices and by others, on the basis of history, reason, and logic. The present case, however, offers no occasion to re-examine any of our previous decisions. We may accept it as fully settled that a shipowner’s liability for an unseaworthy vessel extends beyond the members of the crew and in-eludes a longshoreman like the petitioner. We may accept it as settled, too, that the shipowner is liable though the unseaworthiness be transitory, and though the injury bé suffered elsewhere than aboard the ship. But these propositions do not dispose of the case before us. For the question here goes to the very definition of what unseaworthiness is and what it is not.

“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall'be of the opinion that such order involves a controlling question of- law as tó which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion,' permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall'not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge-thereof shall so order.”

A major burden of the Court's decisions spelling out the nature and scope of the cause of action for unseaworthiness has been insistence upon the point that it is a remedy separate from, independent of, and additional to other claims against the shipowner, whether created by' statute or under general maritime law.' More specifically, the Court has repeatedly taken pains to point out that liability based upon unseaworthiness is wholly distinct from liability based upon negligence. The reason, of course, is that unseaworthiness is a condition, and how that condition came into being — whether by negligence or otherwise — is quite irrelevant, to the owner’s liability for personal injuries resulting from it.

We had occasion to emphasize this basic distinction again in Mitchell v. Trawler Racer, 362. U. S. 539. There the unseaworthy condition causing the plaintiff’s injury was a ship’s rail made slippery by the presence of fish gurry and slime. The trial judge had instructed the jury that the shipowner could be held liable for this un-seaworthy condition only upon a finding that the slime and gurry had been' on the ship’s rail for a time long enough for the respondent to have learned • about it and to have removed it. The Court of Appeals affirmed the judgment for the defendant shipowner, holding that at least with respect to “an unseaworthy condition which arises only during the progress of the voyage,” the shipowner’s obligation “is merely to see that reasonable care is used under the circumstances . . . incident to the correction of the newly arisen defect.” 265 F. 2d 426, 432. We reversed the judgment, holding that the trial and appellate courts had been wrong in confusing liability for negligence with liability for unseaworthiness. What has evolved in our case law, we said, is the “complete divorcement of unseaworthiness liability from concepts of negligence.” 362 U. S., at 550.

Trawler Racer involved the defective condition of a physical part of the ship itself. But our cases have held that the scope of unseaworthiness is by no means so limited. A vessel’s condition of unseaworthiness might arise from any number of circumstances. Her gear might be defective, her appurtenances in disrepair, her crew unfit. The number of men assigned to perform a shipboard task might be insufficient. The method of loading her cargo, or the manner of its stowage, might be improper. For any of these reasons, or others, a vessel might not be reasonably fit for her intended service.

What caused the petitioner’s injuries in the present case, however, was not the condition of the ship, her appurtenances, her cargo, or her crew, but the isolated, personal negligent act of the petitioner’s fellow longshoreman. To hold that this individual act of negligence rendered the ship unseaworthy would be' to subvert the fundamental distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly emphasized in our decisions. In Trawler Racer, supra, there existed a condition of unseaworthiness,, and we held it was error to require a finding of negligent conduct in order to hold the shipowner liable. The case before us-presents the other side of the same coin. For it would be equally erroneous here, where no condition of unseaworthiness existed, to hold the shipowner liable for a third party’s single and wholly unforeseeable act of negligence. The judgment of the Court of Appeals is affirmed.

It is so ordered.'

Me. Justice Douglas,

with whom Me. Justice Black and Me. Justice Brennan concur,

dissenting.

While petitioner was working on a barge loading, cargo into a hatch of the. ship, he was injured as a result of the negligent operation of a winch. The winch was part of the ship and the winch operator was a member of the crew of the stevedores. The injury was caused by a lowering of a sling, which carried the cargo, too quickly and too far.

Prior to the 1970 Term the judgment denying recovery would have been reversed, probably out of hand. We held in Mahnich v. Southern S. S. Co., 321 U. S. 96, that the obligation of an owner to furnish a seaworthy ship extends to seaworthy appliances. We also held that the owner was not insulated from liability by the “negligent failure” of his officers or members of the crew to furnish seaworthy appliances. Id., at 101. In Mahnich, the staging from which the seaman fell was án unseaworthy appliance because of the defective rope with which it was rigged. There was sound rope on board but defective rope was used. The fact that the mate and boatswain were negligent in selecting defective rope was held to be no defense.

In Crumady v. The J. H. Fisser, 358 U. S. 423, a winch was not inherently defective as was the rope in Mahnich. But it was used in a way which made it unsafe and dangerous for the work at hand. While the rigging would take only three tons of stress, the cutoff of the winch, “its safety device,” was set at twice that limit. Id., at 427. And so the rope sling broke and injured the seaman. The vessel which paid the damages was allowed to recover over from the stevedores whose negligence with the winch made the vessel pro tanto unseaworthy.

In Mascuilli v. United States, 387 U. S. 237, negligent use of a winch in a loading operation so obviously made the vessel pro tanto unseaworthy that we reversed out of hand a judgment of ho liability, citing Mahnich and Crumady.

What we said in Mitchell v. Trawler-Racer, 362 U. S. 539, 550, about the “complete divorcement of unseaworthiness liability from concepts of negligence” related to a condition which made the vessel not “reasonably suitable for her intended service.” Yet alongside that con.ventional type of unseaworthiness there developed the concept of unseaworthiness resulting from operational negligence.

Indeed, the doctrine of operational negligence which causes unseaworthiness has had a sturdy growth. Chief Justice Stone, writing for the Court in Mahnich, showed that this doctrine goes at least as far back as The Osceola, 189 U. S. 158, decided in 1903. See 321 U. S., at 101-104. The intervening decision of Plamals v. Pinar del Rio, 277 U. S. 151, which looked the other way, was decided dn 1928. It was around that case that Justices Roberts and Frankfurter turned their dissent, saying that unless the Court followed precedent “the law becomes not a chart to govern- conduct but a game of chance; instead of settling rights and liabilities it unsettles them.” 321 U. S., at 112. They added:

“Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy.” Id., at 113.

Justices Roberts and Frankfurter bitterly expressed that view in Mahnich when Pinar del Rio was overruled— a freak decision not in keeping with the mainstream of the law that had come -before.

Changes in membership do change decisions; and those changes are expected at the level of constitutional law. But when private rights not rooted in the Constitution are at issue, it is surprising to find law made by new judges taking, the place of law made by prior judges.

Up to today operational negligence has been one sturdy type of unseaworthiness. I would let it continue as the prevailing rule unless Congress in its wisdom changes it.

Mr. Justice Harlan,

dissenting.

Past decisions of this Court have expanded the doctrine of unseaworthiness almost to the point of absolute liability. I have often protested against this development. See, e. g., the cases cited by the Court, ante, at 497 n. 6. But I must in good conscience regard the particular issue in this case as having been decided by Crumady v. The J. H. Fisser, 358 U. S. 423 (1959), even if prior decisions did not inexorably point to that result. As my Brother Douglas states, Crumady cannot justly be distinguished from the case before us. Much' as I would welcome a thoroughgoing re-examination of the past course of developments in the unseaworthiness doctrine, I fear that the Court’s action today can only result in compounding the current difficulties of the lower courts with this area of the law.

       28 U. S. C. § 1292 (b) provides as follows:

       Compare Candiano v. Moore-McCormack Lines, 382 F. 2d 961 (CA2); Alexander v. Bethlehem Steel Corp., 382 F. 2d 963 (CA2); Cleary v. United States-Lines Co., 411 F. 2d 1009 (CA2); and Venable v. A/S Bet Forenede Dampskibsselskab, 399 F. 2d 347 (CA4), with Grigsby v. Coastal Marine Service, 412 F. 2d 1011 (CA5), and Tim v. American President Lines, 409 F. 2d 385 (CA9).

       See Mitchell v. Trawler Racer, 362 U. S. 539; id., at 550 (Frankfurter, J., dissenting); see also, G. Gilmore & C. Black, The Law of Admiralty 315-332 (1957);. Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381.

        Carlisle Packing Co. v. Sandanger, 259 U. S. 255. There it was said, “[W]e think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock . . . and that if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages.” 259 U. S., at 259.

        Mahnich v. Southern S. S. Co., 321 U. S. 96; Seas Shipping Co. v. Sieracki, 328 U. S. 85; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406; Alaska Steamship Co. v. Petterson, 347 U. S. 396; Rogers v. United States Lines, 347 U. S. 984; Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336; Crumady v. The J. H. Fisser, 358 U. S. 423; Mitchell v. Trawler Racer, 362 U. S. 539; A. & G. Stevedores, v. Ellerman Lines, 369 U. S. 355; Gutierrez v. Waterman S. S. Corp., 373 U. S. 206; Waldron v. Moore-McCormack Lines, 386 U. S. 724.

       See, e. g., Mahnich v. Southern S. S. Co., supra, at 105 (Roberts, J., joined by Frankfurter, J., dissenting), Seas Shipping Co. v. Sieracki, supra, at 103 (Stone, C. J., joined by Frankfurter and Burton, JJ., dissenting); Pope & Talbot, Inc. v. Hawn, supra, at 419 (Jackson, J., joined by Reed and Burton, JJ., dissenting); Alaska Steamship Co. v. Petterson, supra (Burton, J., joined by Frankfurter and Jackson, JJ., dissenting); Mitchell v. Trawler Racer, supra, at 550 (Frankfurter, J., joined by Harlan and Whittaker, JJ., dissenting); Gutierrez v. Waterman S. S. Corp, supra, at 216 (Harlan, J., dissenting); Waldron v. Moore-McCormack Lines, supra, at 729 (White, J., joined by Harlan, Brennan, and Stewart, JJ., dissenting).
      See also G. Gilmore A; C. Black, The Law of Admiralty 315-332 (1957); Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381.

        Seas Shipping Co. v. Sieracki, 328 U. S. 85.

        Crumady v. The J. H. Fisser, 358 U. S. 423; Mitchell v. Trawler Racer, 362 U. S. 539.

        Gutierrez v. Waterman S. S. Corp., 373 U. S. 206.

        E. g., the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688. The petitioner in the present case was fully covered, of course, by the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq.

        E. g., maintenance and cure. See Calmar S. S. Corp. v. Taylor, 303 U. S. 525; Waterman S. S. Corp. v. Jones, 318 U. S. 724; Farrell v. United States, 336 U. S. 511; Warren v. United States, 340 U. S. 523.

        E. g., Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94: “[T]he liability is neither limited by conceptions of negligence nor contractual in character.”

        Mahnich v. Southern S. S. Co., 321 U. S. 96.

        Seas Shipping Co. v. Sieracki, 328 U. S. 85.

        Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336.

        Waldron v. Moore-McCormack Lines, 386 U. S. 724.

        A. & G. Stevedores v. Ellerman Lines, 369 U. S. 355; Gutierrez v. Waterman S. S. Corp., 373 U. S. 206.

       'No member of the ship’s crew was' in any way involved in this case.

       The petitioner’s reliance upon our summary per curiam, reversal of a judgment for the shipowner in Mascuilli v. United States, 387 U. S. 237, is misplaced. There a longshoreman had been killed during a loading operation aboard a Government vessel when, under the strain of the opposing pull of two winches, a.heavy shackle parted, recoiled, and struck him. The petition for certiorari posed three questions: (1) Did a prior unseaworthy condition come into play by the tightline condition? (2) Did the negligent handling of proper equipment by the longshoremen create a dangerous condition rendering the vessel unseaworthy? (3) Was the vessel unseaw’orthy because the longshoremen were not “equal in disposition and seaman1 ship to the ordinary men in the calling,” as was found in Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336?
      Our per curiam reversal citeu two cases: Mahnich v. Southern S. S. Co., 321 U. S. 96, and Crumady v. The J. H. Fisser, 358 U. S. 423. Mahnich involved a defective rope, Crumady a defective winch. It seems evident, therefore, that it was the first question-posed by the petition for certiorari to which the.Court gave an affirmative answer.

      The Second Circuit adopted the view that while one act of operational negligence would not make a vessel unseaworthy, unseaworthiness did result if the negligent act was incident to a continuous course' of operation as where a wrong hatch cover was used, Grillea v. United States, 232 F. 2d 919, but not by an isolated act as where a boom was carrying a dangerous stress due to a negligent act. Puddu v. Royal Netherlands S. S. Co., 303 F. 2d 752. The difference in the two cases was stated as follows:
      “A ship is not unsea worthy because it has'glass in a window which might be broken. The injuries of a seaman who negligently breaks such a glass are not "the result of unseaworthiness, nor are the injuries of a seaman who is cut by the falling glass. But injury incurred in stepping on the broken glass does result from unseaworthiness.” Id., at 757.
      The Second Circuit, however, refused to follow Grillea after our Mascuilli decision. Candiano v. Moore-McCormack Lines, 382 F. 2d 961; Alexander v. Bethlehem Steel Corp., 382 F. 2d 963; Cleary v. United States Lines Co., 411 F. 2d 1009; Tarabocchia v. Zim Israel Navigation Co., 417 F. 2d 476: The Fourth Circuit followed suit. Venable v. A/S Bet Forenede Dampskibsselskab, 399 F. 2d 347; Lundy v. Isthmian Lines, 423 F. 2d 913.
      Only the Fifth Circuit in the instant case and in Grigsby v. Coastal Marine Service, 412 F. 2d 1011, and. the Ninth in Tim v. American President Lines, 409 F. 2d 385, stood against the rule of Mascuilli.


author:
Mr. Justice Stewart Mr. Justice Blackmun,
      Mr. Justice: Black,

text:
    GROPPI v. WISCONSIN
    No. 26.
    Argued December 7, 1970—
    Decided January 25, 1971
    Stewart, J., delivered the opinion of the Court, in which Douglas, HarlaN, BrennaN, White, and Marshall, JJ., joined. Black-mun, J., filed a concurring opinion, in Which Burger, C. J., joined, post, p. 512. Black, J., filed a dissenting opinion, post, p. 515.

      Elizabeth B. Dubois argued the causé for appellant. With her on the briefs were Jack - Greenberg, Michael Meltsner, Anthony G. Amsterdam, Thomas M. Jacobson, and Robert E. Sutton.

      Sverre O. Tinglum, Assistant Attorney General of Wisconsin, argued the cause for appellee. With him on the brief wére Robert W. Warren, Attorney General, and Roy G. Mita, Assistant Attorney General.
   Mr. Justice Stewart

delivered .the opinion of the Court.

On. August 31, 1967, during a period of civil disturbances in Milwaukee, Wisconsin, the appellant,- a Roman Catholic priest, was arrested in that city on a charge of resisting arrest. Under Wisconsin law that offense is a misdemeanor, punishable by a fine of not more than $500 or imprisonment in the county jail for not more than one year, or both. After a senes of continuances, the appellant was brought to trial before a jury in a Milwaukee County court on February 8, 1968. The first morning of the trial was occupied with qualifying the jurors, during the course of which the appellant exhausted all of his peremptory challenges. The trial then proceeded, and at its conclusion the jury convicted the appellant as charged.

Prior to the trial, counsel for the appellant filed a motion for a change of venue from Milwaukee County “to a county where community prejudice against this defendant does not exist and where an impartial jury trial can be had.” The motion asked the court to take judicial notice of “the massive coverage by all news media in this community of the activities of this defendant,” or, in the alternative, that “the defendant be permitted to offer proof of the nature and extent thereof, its effect upon this community and on the right of defendant to an impartial jury trial.” The trial judge denied the motion, making clear that his ruling was based exclusively on his view that Wisconsin law did not permit a change of venue in misdemeanor cases.

On appeal, the Supreme Court of Wisconsin affirmed the conviction. 41 W,is. 2d 312, 164 N. W. 2d 266. It held that the trial judge had been correct in his understanding that a Wisconsin statute foreclosed thé possibility of a change of venue in a misdemeanor prosecution. It further held that this state law was constitutionally valid, pointing out that “it would be extremely unusual for a community as a whole to prejudge the guilt of any person charged with a misdemeanor.” 41 Wis. 2d, at 317, 164 N. W. 2d, at 268. The court also noted that a defendant in a Wisconsin misdemeanor prosecution has a right to ask for continuances and to challenge prospective jurors on voir dire, and if “these measures are still not sufficient to provide an impartial jury, the verdict can be set aside after trial based on the denial of a fair and impartial trial.” 41 Wis. 2d, at 321, 164 N. W. 2d, at 270. Two members of the court dissented, helieving that the state statute did not absolutely forbid a change of venue in a misdemeanor prosecution, and that if the statute did contain such a prohibition it was constitutionally invalid. 41 Wis. 2d, at 325, 164 N. W. 2d, at 272.

This appeal followed, and we noted probable jurisdiction. 398 U. S. 957. As the case reaches us we must, of course, accept the construction that the Supremq Court of Wisconsin has put upon the state statute. E. g., Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 688. The question before us, therefore, goes to the constitutionality of a state law that categorically prevents a change of venue for a criminal jury trial, regardless of the extent of local prejudice against the defendant, on the sole ground that the charge against him is labeled a misdemeanor. We hold that this question was answered correctly by the dissenting justices in' the Supreme Court of Wisconsin.

The issue in this case is not whether the Fourteenth Amendment requires a State to accord a jury trial to- a defendant on a charge such as the appellant faeed here. The issue concerns, rather, the nature of the jury trial that the Fourteenth Amendment commands, when trial, by jury is what the State has purported to accord. We had occasion to consider this precise question almost 10 years ago in Irvin v. Dowd, 366 U. S. 717. There we found that an Indiana conviction could not constitutionally stand because the jury had been infected by community prejudice before the trial had commenced. What the Court said in that case is wholly relevant here:

“In essence, the right to jury .trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to. accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U. S. 257; Tumey v. Ohio, 273 U. S. 510. ‘A fair trial' in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U. S. 133, 136. In the ultimate analysis, only the jury can strip a man of his liberty .or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U. S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 . . . .” 366 U. S., at 722. .

There are many ways- to try to assure the kind of impartial jury that the Fourteenth Amendment guarantees. In Sheppard v. Maxwell, 384 U. S. 333, the Court enumerated many of the procedures available, particularly in the context of a jury threatened by the poisonous influence of prejudicial publicity during the course of the trial itself. 384 U. S., at 357-363. Here we are concerned with the methods available to assure an impartial ■ jury in a situation where, because of prejudicial publicity or for some other reason, the community from which the jury is to be drawn may already be permeated with hostility toward the defendant. The problem is an ancient one. Mr. Justice Holmes stated no more than a commonplace when, two generations ago, he noted that “[a]ny judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere.” Frank v. Mangum, 237 U. S. 309, 349 (dissenting opinion).

One way to try to meet the problem is to grant a continuance of the trial in the hope that in the course of time, the fires of prejudice will cool. But this hope may not be realized, and continuances, particularly if they are repeated, work against the important values implicit in the constitutional guarantee of a. speedy trial. Another way is to provide a method of jury qualification that will promote, through the exercise of challenges to the ve-nire — peremptory and for cause — the exclusion of prospective jurors infected with the prejudice of the community from which they come. But this protection, as Irvin v. Dowd, supra, shows, is not always adequate to effectuate the constitutional guarantee.

Oh at least one occasion this Court has explicitly held that only a change of venue was constitutionally , sufficient to assure the kind of impartial jury that is guaranteed by the Fourteenth Amendment. That was. in the case of Rideau v. Louisiana, 373 U. S. 723. We held that, “it was a denial of due process, of law to refuse the request for a change of venue, after the people óf Calcasieu Parish had been exposed repeatedly and in depth” to the prejudicial pretrial publicity there involved. 373 U. S., at 726. Ridedu was not decided until 1963, but its message echoes more than 200 years of human experience in the endless quest for the fair administration of criminal justice.

It is doubtless true, as the Supreme Court of Wisconsin said, that community prejudice is not often' aroused against a man accused only of a misdemeanor. But under the Constitution a defendant must be given an opportunity to show that a change of venue is required in his case. The Wisconsin statute wholly denied that opportunity to the appellant.

Accordingly, the judgment is vacated, and the case is remanded to the Supreme Court of Wisconsin for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Blackmun,

whom The Chief Justice joins,

concurring.

Although I agree in large part with the reasoning of Mr. Justice Black’s opinion in dissent, I nevertheless join in the Court’s judgment that this conviction of Father Groppi must be vacated and the case remanded for further proceedings. In so doing, however, I feel compelled to make the following observations:

1. The primary issue, it seems to me, is whether the appellant (hereafter defendant). received, a fair trial, not whether, as a matter of. abstract constitutional law, he was entitled to a change of venue in a Wisconsin misdemeanor prosecution in 1968.

2. A fair trial, of course, is fundamental. No one disputes that. ' As the Court points out in footnote 12 of its opinion, this principle of English-American jurisprudence was evolved prior to the embodiment of the treasured concepts of an impartial jury in the Sixth Amendment and of due process in the Fifth and Fourteenth.

3. If the defense believes that a fair trial is unlikely because of community prejudice, that is a matter for proof by the defense,. and, when proved, should constitutionally warrant, and indeed demand, a change of venue in any case, whether the prosecution be for a felony or for a misdemeanor.

4. Thus, I find myself in agreement with the two dissenting Justices of the Supreme Court of Wisconsin and with that court’s. Chief Justice, in concurring in the result of the majority opinion, when thé three conclude, 41 Wis. 2d 312, 324, 325, 164 N. W. 2d 266, 272, that a change of venue in a misdemeanor case is constitutionally required upon a proper showing.

5. I am at a loss to understand how a change of venue statute expressed in positive but permissive terms and specifically applicable to. felony cases can be construed to embody a negative prohibition for misdemeanor cases, particularly with regard to so fundamental a right as the right to have a trial untainted by community prejudice. The statutory interpretation so made is all the more unexpected because it raises an otherwise quite avoidable constitutional issue.,.

6. But the Wisconsin court has spoken and, by majority vote, has construed the state statute then in effect in that very. way. Construction of the. statute is the state court’s task. It is not our task. And we are bound by the Wisconsin court’s decision as to the meaning and application of a Wisconsin statute.

7. The record before us leaves much to be desired. It discloses no formal offer of proof of the kind customarily made. It contains no transcript of the voir dire, and thus there is no way in which we or anyone else can evaluate from the voir diré the presence, or the possibility of the presence, of actual prejudice in any member of the jury panel. Although a “motion after verdict” was made and although it referred to “the ground of community prejudice,” the motion does not in so many words assert that this defendant actually was denied a fair and impartial trial. Neither is the motion supported by affidavits incorporating the claimed prejudicial media reports.

8. The jury appears to have been selected expeditiously and without difficulty during a single morning. And we note what appears to be conflicting evidence in the record as to Father Groppi’s behavior at the point of his arrest, evidence which would, support a fair jury’s conclusion either way, that is, that he did resist arrest or that he did not resist arrest, within the meaning and application of the Wisconsin statute.. On balance, in the face of what may be regarded as a ruling by the trial court that no showing, however persuasive, of community prejudice and its effect upon the jury actually selected could command a change of venue in -this misdemeanor case, I am content to join in the vacation of the judgment of conviction and in the remand in order to allow the defendant to attempt to make his proof.

9. I would stress, however, more than by the three-line final footnote which may be lost to the' reader who is more interested in the notoriety of the case than in what we are doing today by wáy of specific ruling, that this remand does not necessarily mean a new trial for Father Groppi, and freedom from his conviction on the charge of resisting arrest. The defendant is to have his oppor-. tunity to demonstrate prejudice and the likelihood of an unfair trial. If he fails in that quest, or if he now refuses to undertake it, the judgment of conviction may be reinstated. If. he does not fail, then of course the conviction falls and the State is remitted to its choice between a new trial or a dismissal of the charge.

10. Finally, I doubt very much whether this rather unimportant case, but an admittedly sensitive one because of the identity of the defendant and the means he has selected to make his protests known, at all approaches the circumstances and the offensive character of what this Court condemned in Sheppard v. Maxwell, 384 U. S. 333 (1966), in Rideau v. Louisiana, 373 U. S. 723 (1963), and in Irvin v. Dowd, 366 U. S. 717 (1961), cited in the Court’s opinion. Nevertheless, unfairness anywhere, in small cases as well as in large, is abhorred, is to be ferreted out, and is to be eliminated. Despite the "unsatisfactory record, this defendant must have his opportunity to demonstrate what he alleges.

Mr. Justice: Black,

dissenting.

I dissent from the Court’s vacation of the judgment of conviction. I agree, of course, that this appellant is entitled to trial before an impartial jury. This right is guaranteed by the Sixth Amendment and made binding on the States by the Fourteenth. Ante, at 509. Cf. Parker v. Gladden, 385 U. S. 363 (1966); see also Adamson v. California, 332 U. S. 46, 68 (1947) (Black, J., dissenting).

As the'Wisconsin Supreme Court suggested, the right to trial before an impartial jury can be protected in many ways: by granting a continuance until community passions subside; by challenging jurors for cause and by peremptory challenges during voir dire proceedings. But it simply cannot be said that the right to trial by an impartial jury must necessarily include a right to change of venue. It may or may not be wiser to implement the Sixth Amendment by a change of venue provision, but in my view, the Constitution does not require it. If the usual devices for protection of the Sixth Amendment right to trial by an impartial jury are insufficiént, the defendant, can always be given a new trial on the ground of jury prejudice.

The Court suggests that Rideau. v. Louisiana, 373 U. S. 723 (1963), controls the disposition of this case. But there we held that prejudicial publicity was so extensive that it was a denial of due process to refuse a motion for change of venue where the State had provided for venue changes as a method of ensuring an impartial jury. See La. Rev. Stat. § 15:293 (1950). Here Wisconsin has not chosen to provide that means of implementing the Sixth Amendment right in misdemeanor cases. So long as a defendant can, protect his Sixth Amendment right by a motion for a new trial, I see no constitutional infirmity in the Wisconsin statute. Nor does Irvin v. Dowd, 366 U. S. 717 (1961), compel the majority’s result. There we held that a motion for a second change of venue should have been granted despite a state statute which seemingly permitted only one change. However, wé carefully pointed out that the Indiana Supreme Court had previously held as a matter of.state law that the statute’s literal wording did not foreclose a second, change of venue. 366 U. S., at 721, citing Gannon v. Porter Circuit Court, 239 Ind. 637, 169 N. E. 2d 713 (1959).

This is not a case where a State has made it impossible for a defendant to implement his right to an impartial jury trial. Wisconsin law provides for voir dire and continuances, and this appellant exercised his right to make peremptory challenges to jurors. " In holding that appellant had no constitutional fight to a change of venue in a misdemeanor case, the Wisconsin Supreme Court pointed out that he could raise the claim of denial of an impartial jury by & motion for a new trial in accordance with Wisconsin procedure. 41 Wis. 2d 312, 321, 154 N. W. 2d 266, 270 (1969). Of course it is difficult, even in a small county, to show that its population is so saturated with prejudice that no impartial jury can be selected from that group., It is likely to be especially difficult in a county as large as Milwaukee, with its population of more than one million.' However difficult that.may be, appellant has a.right under Wisconsin law to bring forth any’ relevant evidence to shqw that the jury that tried him was not impartial. I would remand this case for a,hearing on a motion for a new trial.

       “Whoever knowingly resists or obstructs an officer while such officer is doing any act in his official capacity and with lawful authority, may be fined not more than $500 or imprisoned not more than one year in countv i,.il or both.” Wis. Stat. § 946.41 (1) (1967).

       Apparently no transcript was made of the voir dire proceedings.

       The court: “So, therefore, the change of venue as asked for in_the motion for a change of venue will be denied; it not being provided for in the Wisconsin Statutes. . . . No, I’m denying the motion for a change of venue because this is a misdemeanor case and not a felony. And the Wisconsin Statute does not provide for a change of venue in a misdemeanor matter.”

       The relevant statute in effect at the time of the appellant’s trial was Wis. Stat. §956.03 (3) (1967), which provided:
      “If a defendant who is charged with a felony files his affidavit that an impartial trial cannot be had in the county, the court may change the venue of the action to any county where an impartial trial can be had. Only one change may be granted under this subsection.”
      Wis. Stat. § 971.22, effective July 1) 1970, now permits a change of venue in all criminal cases. See Wis. Laws 1969, c. 255, p. 650.

       We reject the suggestion that the appellant is not in a position to attack the statute because he made an insufficient showing of community prejudice. His motion for a change of venue explicitly asked in the alternative that he be permitted to “offer proof” of the nature and extent of the local prejudice against him. His motion was denied in its entirety, thus foreclosing any opportunity to produce evidence of a prejudiced community. The trial court’s ruling was, of course, wholly consistent with its view that it was powerless to grant a change of venue under Wisconsin law, regardless of what showing of local prejudice might have been made.

       Accord, Pamplin v. Mason, 364 F. 2d 1 (CA5); State ex rel. Ricco v. Biggs, 198 Ore. 413, 255 P. 2d 1055.

       That question was answered affirmatively in Baldwin v. New York, 399 U. S. 66.

       Wisconsin grants a. right to trial by jury in all misdemeanor cases. See State ex rel. Murphy v. Voss, 34 Wis. 2d 501, 505, 149 N. W. 2d 595, 597; State ex rel. Sauk County District Attorney v. Gollmar, 32 Wis. 2d 406, 410, 1145 N, W. 2d 670, 672.

       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ttf . . . an impartial jury . . . .” (Emphasis added.)

       See Klopfer v. North Carolina, 386 U. S. 213; Smith v. Hooey, 393 U. S. 374; Dickey v. Florida, 398. U. S. 30; id., at 39 (BrenNan, J., concurring). .

       See generally Broeder, Voir Dire Examinations: An Empirical Study, 38 S. Cal. L. RSv. 503 (1965).

       See Rex v. Harris, 3 Burr. 1330, 1333, 97 Eng. Rep. 858, 859 (K. B. 1762): “Notwithstanding the locality of some sorts of actions, or of informations for misdemeanors, if the matter can not be tried at all, or can not be fairly and impartially, tried in the proper county, it shall be tried in the next adjoining county.” (Lord Mansfield.)
      See also Crocker v. Justices of the Superior Court, 208 Mass. 162, 178-179, 94 N. E. 369, 376-377 (1911):
      “This review demonstrates that the great .weight of authority ■ supports .the view that courts, which by statute or .custom, possess a jurisdiction like that of the Kings Bench before our revolution, have the right to change the place of trial, when justice requires it, to a county; where an impartial trial may be had.
      •“. . . There can be no justice in a trial by jurors inflamed by passion, warped by prejudice, awed by violence, menaced by the virulence of public opinion or manifestly biased by any influences operating either openly or insidiously to such an extent as to poison the judgment and prevent the freedom of fair action. Justice cannot be assured in a trial where other considerations enter the minds of those who are to decide than the single desire to ascertain and •declare the truth according to the law and the evidence. A court of general jurisdiction ought not to be left powerless under the law to do within reason all that the conditions of society and human nature permit to provide an unprejudiced panel for a jury trial.”
      See also, e. g., State v. Albee, 61 N. H. 423, 60 Am. Rep. 325 (1881).

       Whether corrective relief can be afforded the appellant short of a new trial will be for the Wisconsin courts to determine in the first instance. Cf. Coleman v. Alabama, 399 U. S. 1, 10-11.