No. 84-415
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
19135
S T A T E O F MONTANA, ex r e l . , JERRY
PAUL FORSYTH,
Petitioner,
D I S T R I C T COURT O F THE ELEVENTH
J U D I C I A L D I S T R I C T O F THE S T A T E
O F MONTANA, I N AND F O R THE COUNTY
O F FLATHEAD, THE HONOFLABLE MICHAEL
H. KEEDY, Judge p r e s i d i n g ,
Respondent.
O R I G I N A L PROCEEDING:
COUNSEL O F RECORD:
For P e t i t i o n e r :
R o b e r t S. K e l l e r argued, K a l i s p e l l , Montana
For R e s p o n d e n t :
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
C l a y S m i t h argued, A s s t . A t t y . G e n e r a l , H e l e n a
T e d 0. L y m p u s , C o u n t y A t t o r n e y , K a l i s p e l l , M o n t a n a
Submitted: MaY 2 1 1 9 8 5
Decided: J u l y 2, 1985
Filed: ~ i ( j 2 1985
k
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The trial of defendant Jerry Paul Forsyth in the Lake
County District Court on a charge of deliberate homicide
resulted in a mistrial because of jury deadlock. Defendant
filed a petition for writ of supervisory control claiming
double jeopardy, denial of speedy trial and error of the
District Court in ordering a change in the place of trial.
By opinion dated January 3, 1985, this Court declined to take
jurisdiction under the petition for writ of supervisory
control-. Defendant filed a petition for reconsideration, and
briefing and oral argument was ordered. We again decline to
accept jurisdiction under the petition for supervisory
control.
The issues which we will consider in this additional
opinion are:
1. Do the Double Jeopardy Clauses of the Montana and
[Jnited. States Constitutions bar retrial of the defendant?
2. Should this Court grant a pretrial review of the
speedy trial question?
3. Did the District Court err in ordering a change of
place of trial?
The extensive facts of this case are set forth in some
detail in our opinion dated January 3, 1985 and will not be
restated here, except to the extent necessary to explain our
analysis of the legal issues.
I
Do the Double Jeopardy Clauses of the Montana and United
States Constitutions bar retrial of the defendant?
Defendant argues that the double jeopardy provisions of
the Montana and Federal Constitutions bar retrial. He con-
tends that the misconduct on the part of the bailiff is
chargeable to the State in the same manner as misconduct
committed by a prosecutor or a judge.
The State argues that jeopardy was not terminated by the
declared mistrial following a jury deadlock. The State
further argues that there is no standard which bars retrial
under the present facts.
It is first necessary to determine whether there has
been any double jeopardy following a mistrial as a result of
a hung jury. Richardson v. United States (1984),
U.S. , 104 S.Ct. 3081, carefully analyzed the ques-
tion of whether double jeopardy had resulted in a fact situa-
tion similar to the present Forsyth case. In Richardson, the
petitioner argued that the judicial declaration of a mistrial
was an event that terminated -jeopardy and allowed him to
assert a valid claim of double jeopardy. The United States
Supreme Court stated:
"We think that the principles governing
our decision in Burks, and the principles
governing our decisions in the hung jury
cases, are readily reconciled when we
recognize that the protection of the
Double Jeopardy Clause by its terms
applies only if there has been some
event, such as an acquittal, which termi-
nates the original jeopardy. ..
an event
which terminated jeopardy in his case and
which allowed him to assert a valid claim
of d-ouble jeopardy.
"But this proposition is irreconcilable
with cases such as Perez and Logan, and.
we hold on the authority of these cases
that the failure of the jury to reach a
verdict is not an event which terminates
jeopardy. ..Justice Holmes' aphorism
that 'a page of history is worth a volume
of logic' sensibly applies here, and we
rea-ffirm the proposition tha.t a trial
court's declaration - -a mistrial-follow-
of
ing a hung jury - - - event that
is not an
triae
em:ts the oriqinal jeopardx to which
petitioner was subjected. The
Government, like the defendant, is
entitled to resolution of the case by
verdict from the jury, and jeopardy does
not terminate when the jury is discharged
because it is unable to a.gree."
Richardson, 1-04 S.Ct. at 3086 (emphasis
added).
We conclude that in Montana a mistrial following a hung
jury, as in the present case, does not terminate the original
jeopardy. Defendant argues for an exception to this rule.
It is true that Oregon v. Kennedy (1982), 456 U.S. 667, sets
forth one exception. The Court held in Oregon v. Kennedy
that where governmental conduct giving rise to a motion for
mistrial was intended to provoke the defendant into moving
for a mistrial, then retrial might properly be prohibited.
Defendant argues for an even stricter standard as set forth
Sy the Oregon Supreme Court in State v. Kennedy (Or. 1983) ,
666 P.2d 1316.
The transcript demonstrates that the comments on the
part of the bailiff were not intended to provoke the defen-
dant to move for a mistrial. We do not in any way approve of
this type of comment by a bailiff. However, in the present
case, the comments could at most be construed as an attempt
to assist the State in obtaining a conviction. No conviction
was obtained. The jury was unable to agree and a mistrial
was granted. Under the specific circumstances of this case,
we conclude that the defendant has not come within the Oregon
v. Kennedy exception. We also conclude that the bailiff's
comments were not so offensive as to require a dismissal, and
we decline to adopt a standard similar to that of State v.
Kennedy.
In a similar manner with regard to the alleged prosecu-
torial. misconduct, we conclude that the record does not
demonstrate an attempt by the prosecution to provoke a mis-
trial. The conduct was ineffective if the aim was to obtain
a conviction.
We hold that the Double Jeopardy Clauses of both the
Montana and United States Constitution do not bar retrial of
the defendant for the following reasons:
1. Because the original jeopardy continued without
change following the hung jury and declaration of mistrial,
the defendant was not placed in double jeopardy.
2. In addition, the facts do not warrant a conclusion
that the defendant presented a colorable double jeopardy
claim.
Should this Court grant a pretrial review of the speedy
trial question?
Defendant in substance contends that the criminal. pro-
ceedings should be dismissed because he has been denied a
speedy trial. Six hundred thirty days had elapsed since the
second trial and hung jury. Defendant makes an extensive
argument with regard to the various reasons for this exten-
sive delay, arguing that ba.sically aJ-1 of the delay is
chargeable to the State.
The State argues that the delay is largely due to the
defendant's procedural tactics, pointing out that the State
has not been independently dilatory. The State makes exten-
sive reference to the order of the District Court of May 23,
1984, pointing out that virtually all of the delay was at-
tributable to the defendant's various motions and supervisory
writ proceedings before this Court.
Because we do not conclude that this issue is ripe for
review, we will not discuss the facts in detail or a.ttempt to
weigh the same.
United States v. McDonald (1978), 435 U.S. 850, contains
an extensive discussion of the United States Supreme Court's
reasoning in reaching a conclusion that, before trial, a
defendant may not appeal an order denying his motion to
dismiss for violation of his Sixth Amendment right to speedy
trial. In February 1970, the wife and two daughters of
Captain McDonald were murdered in his quarters on a military
base. The Army charged McDonald with the murders, but after
further investigation, the charges were dismissed. and
McDonald was honorably discharged. His discharge barred any
further military proceedings. After further investigation
and almost five years later, a grand jury indicted McDonald
on three counts of first degree murder in January 1975.
McDonald sought d-ismissal of the indictment because he
had been denied a speedy trial. The Court concluded that the
double jeopardy holding could not be applied to the issue of
speedy trial.
"In sharp distinction to a denial of a
motion to dismiss on double jeopardy
grounds, a denial of a motion to dismiss
on speedy trial grounds does not repre-
sent 'a complete, formal and, in the
trial court, a final rejection' of the
defendant's claim. Abney v. United
States, 431 U.S., at 659. The resolution
of a speedy trial claim necessitates a
careful assessment of the particular
facts of the case. As is reflected in
the decisions of this Court, most speedy
trial claims, therefore, -- consid-
are best
ered only after the relevant facts have
been develo~edat trial.
"In Barker v. Wingo, 407 U.S. 514 (1972),
the Court listed four factors that are to
be weighed in determining whether an
accused has been deprived of his Sixth
Amendment right to a speedy trial. They
are the length of the delay, the reason
for the delay, whether the defendant has
asserted his right, and prejudice to the
defendant from the delay. Id., at 530.
The Court noted that prejuxce to the
defendant must be considered in the light
of the interests the speedy trial right
was designed to protect: '(i) to prevent
oppressive pretrial incarceration; (ii)
to minimize anxiety and concern of the
accused; and (iii) to limit the possibil-
ity that the defense will be impaired.
Of these, the most serious is the last,
because the inability of a defendant
adequately to prepare his case skews the
fairness of the entire system.' ...
"Before trial, of course, an estimate of
the degree to which delay has impaired an
adequate defense tends - - speculative.
to be
The denial of a pretrial motion to dis-
miss an indictment on speedy trial
grounds does not indicate that a like
motion made after trial--when prejudice
can be better gauged--would also be
denied. Hence, pretrial denial of a
speedy trial claim can never be consid-
ered a complete, formal, and final rejec-
tion by the trial court of the
defendant's contention; ...
"Even if the degree - prejudice could -
--- of be
accurately measured before trial,
speedy trial claim nonetheless would
be sufficientlv inde~endent -the -
-
- -
J.
of -
come of the trial - warrant pretrial
- - - to
appellate review. The claim would be
largely satisfied by an acquittal result-
- -
ing from the prosecution's failure to
carry its burden of proof. The d-ouble
jeopardy motion in ~ b n e ~ separable
was
from the issues at trial ... In con-
trast, a central interest served by the
Speedy Trial Clause is the protection of
the factfindinu Drocess at trial.
.
a -
The
essence - - defendant's Sixth Amendment
2
of a
claim - - usual - -is that the
in the case - -
Dassaae of time has frustrated his abili
L - - -
Q - establish his innocence - -
to of the
crime charged. Normally, - - only
it is
after trial -- claim may fairly -
that that be
assessed.
". . . Unlike the protection afford-ed by
the Double Jeopardy Clause, the Speedy
Trial Clause does not, either on its face
or according to the decisions of this
Court, encompass a 'right not to be
tried' which must be upheld prior to
trial if it is to be enjoyed at all. It
is the delay before trial, not the trial
itself, that offends against the consti-
tutional guarantee of a speedy trial. If
the factors outlined in Barker v. Wingo,
supra, combine to deprive an accused of
his right to a speedy trial, that loss,
by definition, occurs before trial.
Proceeding with the trial does not cause
or compound the deprivation already
suffered." McDonald, 435 U.S. at 858-61
(emphasis added) .
In McDonald, the court pointed out a speedy trial prob-
lem which can result from any form of intermediate appeal.
"Many defendants, of course, would be
willing to tolerate the delay in a trial
that is attendant upon a pretrial. appeal
in the hope of winning that appeal. The
right to a speedy trial, however, 'is
generically different from any of the
other rights enshrined in the Constitu-
tion for the protection of the accused1
because 'there is a societal interest in
providing a speedy trial which exists
separate from, and at times in opposition
to, the interests of the accused.'
Barker v. Wingo, ... Among other
things, delay may prejudice the prosecu-
tion's ability to prove its case ...
and prolong the period during which
defendants released on bail may commit
other crimes. ..
"Allowing an exception to the rule
against pretrial appeals in criminal
cases for speedy trial- claims would
threaten precisely the values manifested
in the S ~ e e d v Trial Clause. And some
assertions of delay-caused rejudice
would become-self-fulfillinq
-
p o h c e - -.
:peis
durina the ~ e r i o dnecessarv for aweal."
L
~ c-~ o . i l d ,
n 435 U.S. at i 6 2 (emphasis
-
added)
-
.
In his diligent representation of the defendant, defen-
dant's counsel has come before this Court a number of times
on petitions for supervisory control. We in turn have taken
extensive time to consider the petitions, to hear oral argu-
ments and ultimately to give opinions, some of which granted
supervisory control and some of which denied it. All of
these proceedings, which are in the nature of an intermediate
appeal, have become a part of the great delay which raises
the speedy trial issue in this case. This underscores the
difficult balancing problem this Court has in considering
petitions for supervisory control, while seeking to protect
the constitutional right of a speedy trial. Unfortunately,
these ideas are in substantial part directly conflicting.
However, we conclude that we need not reach a. decision on the
speedy trial question at this time.
We approve and adopt the reasoning quoted above from
McDonald. We hold that defendant's claim of a denial of his
right to speedy trial is generically different from his claim
of double ieopardy. We conclude that the contentions on the
part of the d.efendant that he has been denied a speedy trial
cannot be considered until the retrial is held and all of the
facts are presented to this Court on appeal. At that time,
the issue will be ready for decision. At the present time,
the record is not sufficiently complete to allow a decision
on the speedy trial issue.
We hold that the defendant is not entitled to supervi-
sory control on his claim of denial of speedy trial.
I11
Did the District Court err in ordering a change of place
of trial?
Defendant argues that he has met a considerable burden
in initially obtaining change of venue from Flathead County
to Lake County. As appears from our original opinion, the
trial court is granted the discretion to determine the place
of trial. and the procedures to be followed. In advance of
trial.., we are not able to determine if local prejudice in
Flathead County might have some effect on the retrial. We
should not presume in advance that the District Court and the
State will not use appropriate procedures to protect the
integrity of the jury process from any taint which may be
present in Flathead County because of local prejudice.
However, for the benefit of the District Court and counsel,
we emphasize the need for stringent controls to insulate the
trial- iury from any local prejudice. We insist that appro-
priate steps be taken to insure a fair third trial.
We concl-ude that the District Court did not err in
ordering the change of place of trial.
The petition for supervisory control is denied j n all
.
respects.
We concur: ,=
;T
-
Justices
Mr. Justice Frank E. Morrison, Jr., dissenting:
I respectfully dissent. In view of the fact there have
been two trials already I would decide the speedy trial issue
at this time. Since the issue is reserved by the majority for
later review in the event of conviction, I choose not to
express myself on the subject at this time-.
Mr. Justice John C. Sheehy, dissenting:
I dissent to the opinion of the majority on rehearing,
as I dissented to the original opinion in this case. Because
the majority in its decision on rehearing has shifted ground
to some extent in its ratio decidendi on the issues presented
here, I must again set forth at length my objections to the
majority opinion.
The length of this dissent is required in part because
of the inadeauate discussion of the applicable l l in the
iw
majority opinion. It is a matter of concern amounting nearly
to embarrassment, but not deterrence, to those of us who have
differing philosophies of criminal justice and constitutional
rights from the majority, that we must resort in dissent to
what must appear to the press and the public to be carping
over trivialities. Yet these trivialities, as the majority
apparently regards them, are of momentous significance to the
individuals involved.. Here, Forsyth will be subjected to a
third trial from which, under our state constitution, he
ought to be insulated.
I turn my attention first to the issue of double
jeopardy. In its original opinion, the majority refused to
grant supervisory control under our state procedure, saying
that "the remedy of a criminal defendant lies in an appeal
foll-owing conviction, or in a post-conviction proceeding."
The majority relied on State ex rel. LaFlesch v. District
Court (1.974), 1.65 Mont. 302, 306, 529 P.2d 1403, 1405, to
reach that conclusion. The decision of this Court in
LaFlesch is invalid now under fed-era1 law because of a
decision in Abney v. United States (1977), 431 U.S. 651, 97
S.Ct. 2034, 52 L.Ed.2d 651.
In Abney, the United States Supreme Court determined
that a pretrial order in the fed-era1district court denying a
motion on double jeopardy grounds was reviewable on appeal
under federal appellate practice before the defendant could
be put to the burden of a second trial, saying:
"However, this Court ha.s long recognized that the
Double Jeopardy Clause protects an individual
against more than being subjected to double
punishments. It is a guarantee against being twice
put to trial for the sameoffense." 431U.S. at
660-1, 97 S.Ct at 2014, 52 L.Ed.2d at 661.
As I said, the majority has now shifted away from its
original holding that Forsyth must undergo a second trial and
then appeal if he is convicted in order to have the double
jeopardy claim reviewed. Instead, in its opinion on
rehearing, the majority nimbly jumped to Oregon v. Kennedy
(1982), 456 U.S. 667, 102 S.Ct 2083, 72 L.Ed.2d 416 to find.
that on the jury tampering issue here Forsyth has not brought
himself in the exception allowed in Oregon v. Kennedy.
Unexplained by the majority is how Oregon v. Kennedy, wh.ich
applies to prosecutorial malfeasance, applies to jury
tampering by a bailiff, a much different situation.
The majority has also shifted its view as to how it will
regard the flagrant abuses by the bailiff in this case. In
its original opinion here, the majority seemingly agreed with
the District Court in concluding that "none of the actions
complained of was motivated by a desire or an. attempt by the
bailiff to influence the jurors' perception of the trial or
to affect the jury's deliberations or decision-making, and
that none of the bailiff's comments influenced the attitude,
perception or ultimate judgment of any juror."
In their opinion on rehearing however, the majority
concludes that the comments of the bailiff "could have a.t
most been construed as an attempt to assist the State in
obtaining a conviction," as if that were permissible.
The comments that the bailiff made to the jury "to
assist the State in obtaining a conviction" were these:
1. Following the testimony of Debbi Neff, a former
girlfriend of Forsyth, the bailiff told members of
the jury that she must have been drugged to
testify, that 'you should see in her medicine
cabinet,' implying that she was a drug abuser, and
that she had nearly 'blown it' at the first trial.
2. On another occasion during the trial, the
bailiff told members of the jury 'I can say just
one word and it would remove all doubt from your
mind.. '
3. While the court and counsel were in chambers
during the course of the trial, and the jurors were
curious about what was going on in chambers, the
bailiff stated that the county attorney, or the
county attorney and defense counsel, or the judge
and the attorneys would come in after the trial
'and tell you all the things you didn't get to know
during the trial and he would answer your
questions.' One of the jurors stated that she
feared during deliberations that if she voted not
guilty and then the county attorney came in and
told her about important evidence that had been
suppressed, she was concerned that later she would
believe she had voted the wrong way.
4. The bailiff informed members of the jury that
his son was member of the Kalispell police
department which was involved in the prosecution of
the action agai-nstForsyth.
5. During the lengthy days' cross-examination of
the State ' s principal witness by d.efense counsel,
the bailiff made the remark on several occasions to
memhers of the jury 'we know who is getting paid. by
the hour,' imputing deliberate delay to court
appointed defense counsel.
6. During the trial, when distributing to the
jurors their first expense checks, the bailiff told
the jury that the cost of the trial to the State
had already reached $6,000.
7. The bailiff pointed out to the jurors the
parents of the victim who were seated in the
courtroom.
8. When the jurors went to the scene of the crime,
they were told by the bailiff to stay together
because 'they were afraid that something would
happen or some comment would be made that they
would get a retrial.'
9. The jurors wanted to send a Christmas gift to
one of the witnesses, Norman Calvert, and Bourne,
the bailiff, volunteered to ask his son, as a
member of the Kalispell Police Department to insure
that Calvert received it.
10. The jury began deliberating the case after it
was submitted to it on New Year's Eve, December 31,
1982. Bourne told the jury that the Flathead
County jury in the earlier case had deliberated for
approximately 8 hours and that therefore the jurors
in this case might anticipate reaching a conclusion
in time for a 'Happy New Year.'
In their original opinion, th.e majority found
"substantial evidence to support the District Court's
findings" that the bailiff's remarks had no effect on the
trial jury. Now, the majority sees those comments as an
inconsequential attempt "to assist in obtaining a
conviction."
I would hold that the remarks of the bailiff to the
jurors prejudiced the jury as a matter of law to prevent
Forsyth from getting a fair second trial; that the bailiff's
statements are not covered by the decision of the United
States Supreme Court in Oregon v. Kennedy, supra; and that
under our st.ate constitution the criminal proceedings against
Forsyth in this case should now be dismissed on double
jeopardy grounds.
No discussion appears in the majority opinion as to
whether it is determining the case on federal or state
ground-s. Because, however, it relies on Oregon v. Kennedy in
reaching its decision, I must assume that it regarded the
case solely from the viewpoint of the federal constitution
without any regard to our state constitution.
The following state constitutional provisions apply to
Forsyth in this case:
"Right and justice shall be administered without
sale, denial, or delay." Art. 11, Sec. 16.
"No person shall be deprived of life, liberty, or
without due process of law." ~ r t i11,
Sec. 17.
"In all criminal prosecutions the accused shall
have the right . .
. to meet the witnesses against
him fa.ce to face; . . .
to have a speedy. . .
public trial by an impartial jury . .
Art. 11, ."
Sec. 24.
". .. No person shall be again put in jeopardy for
the same offense previously tried in any
lurisdiction." Art. 11, Sec. 25.
"The right of trial by jury is secured to all and
shall remain inviolate . . .
I Art. 11, Sec. 26.
'
Everyone of those state constitutional rights have been
taken from Forsyth by the State either through its jury
tampering by the bailiff or by its denial of a speedy trial.
I have set out the state constitutional provisions above
because I feel that our state constitution controls this case
and because the majority opinion has not made any reference
to the state constitution. The majority members apparently
feel that double jeopardy rights under our state constitution
are co-terminous with such rights under the federal
constitution. This is evinced because the majority has tried
to fit the decision in this case into the United States
Supreme Court decision in Oregon v. Kennedy, supra. As I
hope to demonstrate, that case is not applicable here.
There is no United States Supreme Court d.ecision
directly determining the effect on a defendant's right to
fair trial when a bailiff has tampered. with the jury in the
defendant's disfavor. We have no federal criteria that would
guide us as to how the present United States Supreme Court
would view double jeopardy under the facts of this case from
the federal viewpoint. I sense that the United States
Supreme Court is considerably less concerned about the
constitutional rights of defendants than I am. I, therefore,
confine myself in this dissent to an examination of this case
from the viewpoint of our state constitution and statutes.
If I advert in this opinion to federal decisions, it is only
for the purpose of attempting to explain them, or to use the
rationale of the federal decisions to buttress my opinion of
the application of our state's constitution.
There are Montana statutes that directly instruct a
ba.iliff as to his duties when the jury is placed in his
charge. When a jury is to view the premises, under §
46-16-502, MCA, the jurors are conducted in a body under the
custody of the sheriff or bailiff to view said place. The
bailiff may not then communicate with them concerning any
subject, for the statute provides:
"46-16-502. - -of relevant place or property.
View
When the court deems it proper that t 5 jury view
any place or personal. property pertinent to the
case, it will order the jury to be conducted in a
body under the custody of the sheriff or bailiff to
view said place or personal property in the
presence of the defendant and his counsel. The
place or personal property will be shown them by a
person appointed by the court for that purpose, and
they may personally inspect the same. The sheriff
or bailiff - -be sworn to suffer no person to
must
speak or otherwise communicze - -e jury - to
with t h or -
do - himself on any subject connected - -
- so with the
trial and to return them into the courtroom without
unnecessary delay or at a specified time, as the
court may direct." (Emphasis added.)
The bailiff here violated that statute when he informed
the jury that they must stay together because otherwise the
defendant might get a retrial.
When the bailiff is in charge of the jury, the duty of
the bailiff is statutorily clear:
"46-16-501. Conduct of jury during trial. (1)
The jurors sworn to t r y an action may at any time
before the submission of the case, in the
discretion of the court, be permitted to separate
or be kept in charge of a proper officer. The
officer must be sworn to keep the jurors together
until the next meeting of the court, to suffer no
person to speak to them or communicate with them or
to do so himself on any subject connected with the
trial, and to return them into court at the next
meeting thereof.
"(2) (a) The jury must also at each adjournment
of the court, whether permitted to separate or kept
in charge of officers, be admonished by the court
that it is their duty not to converse among
themselves or with anyone else on any subject
connected with the trial or to form or express any
opinion thereon until the cause is final1.y
submitted to them.
" (b) In al.1 cases appealed to the supreme court,
it shall be conclusively deemed that the court or
judge gave the proper admonition in accordance with
the provision of subsection (2)(a) unless the
record affirmatively shows to the contrary."
Under Montana practice, each time that the jury is
delivered to the charge of the bailiff, the bailiff takes an
oath before the court, an oath that is couched in the
language of the foregoing statutes, that he will obey those
statutes when the jury is in his ch.arge.
Without quaver, we can assert that the bailiff Bourne
flagrantly violated. his oath and the statutes in this case.
It is time now to examine Oregon v. Kennedy, the United
States Supreme Court case upon which the majority members
base their decision on double jeopardy in this case.
The U.S. Supreme Court decision in Kennedy can be
summarized: when a defendant in a criminal case successfully
moves for a mistrial, he may invoke the bar of double
jeopardy in a second effort to t.ry him only if the conduct
giving rise to the successful motion for a new trial was
prosecutorial. or judicial misconduct intended to provoke the
defendant into moving for a mistrial.
Just for starters, we may note the distinguishing
characteristics of this case from Oregon v. Kennedy. Here,
the mistrial was the result of a hung jury, not one where the
defendant moved for mistrial; secondly Oregon v. Kennedy
discusses prosecutorial or judicial misconduct; here we have
a case of bailiff misconduct.
In Oregon state court, Kennedy was tried for stealing an
oriental rug. During the cross-examination of an expert on
the value of the rug, the prosecutor asked the expert whether
he had done business with the Kennedys. The expert answered
that he had not. The prosecutor asked: "Is that because he
is a crook?"
The trial judge granted defendant's motion for a
mistrial-on the ground of prosecutorial misconduct.
The double jeopardy hearing in the trial court in
Kennedy was to a judge different from the one who had granted
the mistrial. The trial judge determined that while the
prosecutorial questioning was "overreaching," he did not find
that the prosecutor intended to provoke the defendant into
moving for a mistrial. Therefore, the trial judge denied the
double jeopardy motion. The denial was appealed to the
Oregon Court of Appeals.
In State v. Kennedy (Oregon 1980), 619 P.2d 948, rev.
den. 290 Or. 551 (1981), the Oregon Court of Appeals held
that double jeopardy applied under the United States
Constitution and that the defendant could not be retried.
The Court of Appeals based its decision on the proposition
that the prosecutor was indeed "overreaching." The Oregon
Supreme Court, without comment, denied the state's petition
for a review of the decision of the Court of Appeals.
The case came before the United States Supreme Court on
certiorari and was decided in Oregon v. Kennedy, supra. The
U.S. Supreme Court decided that the Oregon Court of Appeals
had acted on federal constitutional groumds and therefore the
matter was properly reviewable in the Washington D.C. Court.
It then reached a d-ecision which I have summarized above,
remanding the cause to the Oregon Court of Appeals to
determine if i.n fact the prosecutor had "intended" to provoke
the defendant into moving for a mistrial-.
The Kennedy case returned to the Oregon Court of
Appeals, reported in State v. Kennedy (Oregon 1983), 657 P.2d
717. Because the trial court had found that the prosecutor's
question was not intentional., the Court of Appeals then
reversed itself saying that double jeopardy was not a bar.
The Court of Appeals assumed that the Oregon law concerning
retrials after prosecutor-induced mistrials was identical and
co-terminous with the view of the federal jeopardy clause
expressed by the U.S. Supreme Court in Oregon v. Kennedy.
The matter came again before the Oregon Supreme Court in
State v. Kennedy (Oregon 1983), 666 P.2d 1316. The Oregon
Supreme Court decided that its law was not identical with the
federal view of the double jeopardy clause in the facts
pertaining to the prosecutorial misfeasance case, mainly
because the Oregon Supreme Court recognized as difficult
obstacles, proving "intent" on the part of the prosecutor,
and the difficulty faced by trial courts in making decisions
which could lead to the disbarment or other punishment of the
prosecutors. The Oregon Supreme Court concluded that it
would hold under its constitution and state law that double
ieopardy applied if the prosecutorial conduct was so
prejudicial to the defendant that it could not be cured by
any means short of a mistrial, - - -
and if the official - -
knew the
conduct was improper - prejudicial and either intended -
and or
was indifferent - - resulting mistrial - reversal.
to the or The
Oregon Supreme Court then went on to find that in the Kennedy
case, it could not say that the official intended to provoke
a mistrial, or that the prosecutor was indifferent to the
result of his questioning and a.ffirmed th.e Court of Appeals.
It should be apparent that Oregon v. Kennedy, in any of
its phases, has no connection with bailiff tampering of a
jury to aid the state, a completely different question.
Not discussed by the majority is another Oregon case
which is directly in point. That case is Oregon v. Rathbun
(Oregon 1979), 600 P.2d 392. The facts are so nearly
parallel to the facts of the Forsyth case that they bear some
recitation here.
Rathbun was charged with first degree robbery and the
case was submitted to a jury which deliberated for a day and
a half and then reported to the trial judge that it was at an
impasse. Defendant's motion for a mistrial was allowed. On
the evening of the order granting mistrial, two of the jurors
went to the district attorney and advised him about comments
which had been made by the court's ba.iliff to the jury during
the recesses in the trial and during the deliberations. Six
days later, in the presence of counsel the jurors were
j.ndivid.ually interrogated by another judge concerning the
bailiff's conduct and its effect on the jurors.
The case reached the Oregon Supreme Court after the
Court of Appeals reversed the District Court which had held
that d-ouble jeopardy applied.
The Oregon Supreme Court first considered whether there
was a causal relationship between the improper remarks of the
bailiff and the inability of the jury to agree upon a
verdict. During the interrogation, each and every juror had
denied being influenced by the bailiff's remarks. The Oregon
Supreme Court determined that no court could attempt by some
method of mind reading to know whether the bailiff's conduct
actually influenced the mental process of any of the jurors
and held with respect to that situation it would assume,
without proof, that there was a causal relationship between
the misconduct and the mistrial. The Oregon Supreme Court
determined that those cases applying to prosecutorial and
judicial misconduct had. no application here:
"We agree with the Court of Appeals that this is
not a case in which the mistrial was 'triggered by
prosecutorial or judicial desire to harass the
defendant or afford the prosecution a more
favorable opportunity to convict.' (Citing a
case.) We further agree that this is a case of an
officer of the court who, on her own, was guilty of
improper conduct which caused the mistrial in
question. We cannot agree that the want of
prosecutorial and judicial misconduct leaves the
case in the same situation in which jury
contamination resulting from ordinary third party
misconduct causes a mistrial and is, therefore, no
bar to retrial." 6 0 0 P.2d at 3 9 7 .
The Oregon Supreme Court then held, under Oregon law
(which is substantially similar to our state law):
"In the United States Supreme Court decisions cited
by the parties concerning prosecutorial or judicial
misconduct the misconduct was perpetrated for the
very purpose of triggering a motion by the
defendant for a mistrial. Here there is nothing to
suggest the bailiff sought to cause a mistrial. We
daresay that nothing was further from her mind than
causing a hung jury by her prejudicial discourse.
On the contrary, her apparent purpose, as appears
from the motion judge's findings, was- assist the
- to
state - securinq - conviction.
in a
"The misconduct by this bailiff is so abhorrent to
the sense of justice that we find the same sanction
is required to effectuate the con.stitutiona1
command as in the case where the prosecutor or the
iudge intends to provoke a mistrial. The state put
this officer of the court in the position to wreak
havoc and must bear the same burden as when its
prosecutor or judge in like manner offends." 600
P . 2 d a.t 3 9 8 . (Emphasis supplied.)
The Oregon Supreme Court found it abhorrent to its sense
of justice that a bailiff would attempt "to assist the state
in securing a. conviction." The majori.ty members of the
Montana Supreme Court find such assistance permissible.
I would a g r e e w i t h t h e Oregon Supreme C o u r t i n Oregon v.
Rathbun, and h o l d t h a t i n t h i s c a s e d o u b l e i e o p a r d y a p p l i e d
t o p r e v e n t any f u r t h e r p r o s e c u t i o n of F o r s y t h b e c a u s e of t h e
b a i l i f f ' s misconduct.
P o r s y t h a l s o c h a r g e s i n t h i s c a s e t h a t he i s e n t i t l e d t o
d o u b l e j e o p a r d y on t h e grounds of p r o s e c u t o r i a l m i s f e a s a n c e .
The m a j o r i t y members have d i s m i s s e d t h a t c h a r g e w i t h o u t any
d i s c u s s i o n o f e i t h e r s t a t e law o r t h e e x c e p t i o n c a r v e d o u t i n
the United States Supreme C o u r t under Oregon v. Kennedy,
supra. I w i l l not belabor t h e point, s i n c e I have a l r e a d y
determined, f o r m p u r p o s e s t h a t d o u b l e jeopardy
y ought to
a p p l y b e c a u s e of t h e b a i l i f f ' s misconduct.
T u r n i n g now t o t h e speedy t r i a l i s s u e , I d i s a g r e e w i t h
t h e m a j o r i t y h o l d i n g t h a t a d e f e n d a n t must w a i t u n t i l a f t e r
t r i a l b e f o r e h e c a n have an a p p e l l a t e r e v i e w of a speedy
trial issue. Such a h o l d i n g means t h a t i n a l l cases, no
m a t t e r how l o n g t h e t r i a l h a s been d e l a y e d , t h e d e f e n d a n t h a s
no r e c o u r s e t o an a d v e r s e d e c i s i o n on h i s r i g h t t o speedy
t r i a l i n t h e d i s t r i c t c o u r t u n t i l t h e t r i a l which h a s been
d e n i e d him s p e e d i l y h a s o c c u r r e d .
I n t h i s c a s e , two and h a l f y e a r s have now e l a p s e d s i n c e
t h e second t r i a l o f F o r s y t h . Much, i f n o t a l l of t h e d e l a y
i s a t t r i b u t a b l e t o t h e S t a t e b o t h b e c a u s e it h a s r e s o l u t e l y
r e f u s e d t o p r o v i d e him w i t h t h e t o o l s o f h i s defense, and
r e s o l u t e l y d e t e r m i n e d t o t r y him a g a i n i n F l a t h e a d County, a
s i t e where it h a s a l r e a d y been d e t e r m i n e d t h a t he c o u l d n o t
receive a f a i r t r i a l .
Again, the reliance of the majority members on the
f e d e r a l d e c i s i o n of United S t a t e s v. PriacDonald ( 1 9 7 8 ) , 435
U.S. 850, 98 S . C t . 1547, 56 L.Ed.2d 1 8 , r e l a t i n g t o speedy
trial is misplaced. The MacDonald case is careful to
distinguish a speedy trial issue from a double ieopardy
issue. It made that distinction because under Abney v.
United States, supra, a denial of a double jeopardy claim is
a full and final resolution of that issue separate and apart
from a trial and under federal practice there is a right of
review of such a denial. There is no right of review of a
denial by a federal district court of a speedy trial claim
because the speedy trial issue is "not sufficiently
independent of the outcome of the trial to warrant pretrial
appellate review. " In other words, under federal- practice,
there is no provision for an appeal from a federal district
court to a higher Court of Appeals of a speedy trial issue,
before the trial actually occurs.
That is not the case under our law. Our constitutional
provision for supervisory control allows this Court to
intervene in interlocutory manner in cases pending in the
district courts when the district court, though acting in
iurisdiction, is nevertheless committing error.
If the interest of this Court cannot be aroused when
faced with a 2% year delay in trial, especially when most of
the reasons for the delay exist in the records of our Court,
there is little hope that such interest will be aroused after
the next trial, if Forsyth is convicted.
Finally, with respect to the issue of change of venue,
the majority decides that issue without any reference to S
46-13-203, MCA, the statute controlling the power of the
courts to change the place of trial.
That section provides in pertinent part:
"If the court determines that there exists - -
in the
county in which the prosecution is pending such
prejudice that a f a i r trial cannot he had, it
shall:
"(a) transfer the cause to any other court of
competent jurisdiction in any county in which a
fair trial may be had;
" (b) direct that a jury be selected in any county
where a fair trial may be had and then returned to
the county where the prosecution is pending to try
the case; or
" (c) take any other action designed to insure that
a fair trial may be had." (Emphasis supplied.)
Section 46-13-203, MCA, defines the power of the
district court to change the place of trial in a criminal
case. In this case, the prosecution of Forsyth was pending
in Lake County. The District Court has never determined that
there existed in Lake County such prejudice that a fair trial
could not be had there. Therefore, the district court had no
power to move the venue of the trial from Lake County. The
reason that the majority members do not discuss S 46-13-203
is understandable. Under the statute, it cannot be explained
where the District Court got the authority to change the
place of trial here.
Forsyth may well. be guilty of killing his wife, or
plotting to kill her. The headstrong determination of the
bailiffs, the District Court, the prosecution and this Court
to convict him at whatever cost to constitutional rights, to
statutory directions, or to commonly accepted notions of fair
trial make his further prosecution unacceptable to me. I
would order his prosecution dismissed.
n
!
Justice
Mr. Justice William E. Hunt, Sr., eoncurs with the foregoing
dissent.
P