with whom Mr. Justice Marshall concurs, dissenting.
The Court’s premise is that the mistrial was directed at respondent’s request or with his consent. I agree with the Court of Appeals that, for purposes of double jeopardy analysis, it was not, but rather that “the trial judge’s response to the conduct of defense counsel deprived Dinitz’s motion for a mistrial of its necessary consensual character.” 492 F. 2d 53, 59 n. 9 (1974). Therefore the rule that “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution,” United States v. Jorn, 400 U. S. 470, 485 (1971) (plurality opinion), is inapplicable. Accordingly, I agree that respondent’s motion, for the reasons expressed in the panel and en banc opinions of the Court of Appeals, did not remove the bar of double jeopardy to reprosecution in “the extraordinary circumstances of the present case, in which judicial error alone, rather than [respondent’s] exercise of any option to stop or go forward, took away his ‘valued right to have his trial completed by a particular tribunal.’ ” 504 F. 2d 854-855 (1974). I also agree with the holding in the panel opinion that “[i]n view of . . . [the] alternatives which would not affect the ability to continue the trial, we cannot say that there was manifest necessity for the trial judge’s actions.” 492 F. 2d., at 61. I would affirm.