Retired, concurring in part and dissenting in part:
With the court’s disposition of the jurisdictional issue I concur, as I must, since that result is clearly mandated by United States v. Scott, - U.S. -, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).1 What compels my dissent is the ultimate result achieved by the majority and in the process the cavalier treatment given the prosecutorial misconduct determination upon which the trial court based its dismissal of the indictment.
Having ruled that the court has jurisdiction of the appeal, two issues were brought into focus: (1) whether there was a factual basis for the trial court’s conclusion that prosecutorial misconduct permeated the jury selection process, and, if so (2) whether there was warrant for the dismissal of the indictment with prejudice.
The facts as found by the trial court and as set forth in (D.C.App.) 377 A.2d 411, 416-19 (1977) are not in dispute. The substance of those findings was that the prosecutor, informed of the events and conversations which resulted in the contamination of the jury panel, withheld that information from both the trial judge and defense counsel. And so it was that with the knowledge and acquiescence of the prosecutor, but without the knowledge of either the trial court or defense counsel, a contaminated jury was impanelled. When later informed from another source the trial court ruled that because of the prosecutor’s failure to disclose the contamination, defense counsel had been frustrated in any meaningful voir dire of the jury panel. The cumulative effect of the prosecutor’s conduct, the trial court said, was to deprive appellee of his Sixth Amendment right toa", fair, impartial and uncontaminated jury . as well as effective assistance of counsel.” The trial court for this reason determined, after motion by appellee, to sanction the government for its misconduct by dismissing the indictment, rather than declare a mistrial.
Notwithstanding the clearly defined restrictions on our review function,2 the ma*1053jority, substituting their judgment for that of the trial court, hold in effect that the prosecutorial misconduct was of the class of minor transgressions and therefore “not of a magnitude to trigger” the sanction of dismissal. I cannot agree. In my view, the prosecutor’s conduct, tending as it did to destroy public confidence in the integrity of the judicial process, was morally and legally indefensible. Accordingly, I refuse to join with the majority in elevating that conduct to the level of judicial approval. See in this connection and compare, Turner v. Louisiana, 379 U.S. 466, 471-72, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
The principle that influenced the trial court to dismiss the indictment
is not strictly limited to situations in which the defendant has suffered arguable prejudice by reason of the prosecuto-rial conduct. This is so because the principle is not one of fairness to the defendant alone but rather, in Justice Brandéis’ words, is one designed to “maintain respect for law; ... to promote confidence in the administration of justice; . to preserve the judicial process from contamination . . ..” [United States v. McCord, 166 U.S.App.D.C. 1, 17, 509 F.2d 334, 350 (1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975).]
To the same general effect is Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 345, 394 F.2d 966, 970 (1968), which involved a claim of retaliatory prosecution. Chief Judge Bazelon, speaking for a divided court — all judges concurring in the result— reviewed the cases in which claims of prose-cutorial misconduct3 were sustained, and concluded:
In light of this history I do not believe we are foreclosed from granting immunity from prosecution in order to deter blatant Government misconduct. I con-elude that in this case our supervisory power must be used to protect “the purity of the government and its processes.” Accordingly, I would vacate both judgments below and remand to the trial court with instructions to dismiss the information. [Footnote omitted.]
The sense of all this is that prosecutorial misconduct may so pollute a criminal proceeding as to require in vindication of the integrity of the judicial process and for its deterrent effect, the dismissal of the indictment. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Dixon v. United States, supra; United States v. McCord, supra.
Since I am satisfied that there was warrant for the termination of the prosecution in this case, I would affirm the dismissal of the indictment.
. Swisher v. Brady, - U.S. -, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978); United States v. Scott, -U.S.-, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Sanabria v. United States, -U.S. -, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Crist v. Bretz, - U.S. -, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Greene v: Massey, -U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, -U.S.-, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977); and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
1. In that case, the Supreme Court said:
We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. . . Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. [United States v. Scott, - U.S. -, 98 S.Ct. 2187 at 2197-98, 57 L.Ed.2d 65.]
. D.C.Code 1973, § 17-305(a). See Sanders v. United States, D.C.App., 339 A.2d 373 (1975); United States v. Bristol, D.C.App., 325 A.2d 183 (1974); Johnson v. Lloyd, D.C.App., 211 A.2d 764 (1965).
. Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971), where sanctions were imposed because the prosecuting authority failed to comply with the due process requirement of disclosure. Cf. also Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), where the accused was entrapped by law enforcement officers.