dissenting.
It is apparent to me that this Court has today deliberately passed up an opportunity to exercise its supervisory power to prohibit rather than to condone fundamental errors in criminal procedure. At the close of its opinion, ante, at 34, the Court states the problem and its solution:
“Here, two underlying errors are alleged: the prosecutor’s failure to draft the information properly and the court’s denial of the motion to dismiss prior to the attachment of jeopardy. Neither error — even assuming the court’s action could be so characterized — was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the Court’s failure to postpone the taking of evidence until it could give full consideration to the defendant’s motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise *38impress upon the court the importance to petitioner of not being placed in jeopardy on a defective charge.”
Throughout today’s opinion, my Brother Powell puts all of the blame on petitioner’s lawyer, none on the United States Attorney and, indeed, does not even mention him. Sole responsibility for the faulty information was in the office of the United States Attorney. Even when drafting errors are committed, they can be corrected before judgment, Fed. Rule Crim. Proc. 7 (e). In this case the United States Attorney never made any effort to defend the information and did not offer to amend and correct the error. Certainly most of the responsibility for the erroneous first trial rests with the Government. “[T]hough the attorney for the sovereign must prosecute with earnestness and vigor, he must always be faithful to his client’s overriding interest that 'justice shall be done.’ ” United States v. Agurs, 427 U. S. 97, 110-111 (1976).1
When the motion to dismiss the information was made, the court ruled: "Well, since I have had no opportunity to study this at all, I will deny the motion at this time, but at my first opportunity I will check your citation and give consideration as appears to be warranted.” App. 9. Less than two hours thereafter the court recessed for 15 minutes, and dismissed the information with the following comment:
“As much as I dislike doing so, I have no alternative but to grant your original motion of dismissal and the charge is dismissed.
"... I don’t know who drafted it, but I can tell you if a law clerk of mine out of law school drafted something like that, I would send him back for a refresher course. *39You may carry that complete message back to your department.” Id., at 14.
Can there be any doubt that if the 15-minute recess had been taken at the beginning of the trial the motion would have been granted before jeopardy attached? 2
Since petitioner was needlessly placed in jeopardy twice for the same offense over his objection, I would reverse his conviction.
"A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.” Barker v. Wingo, 407 U. S. 514, 527 (1972) (footnotes omitted).
Since this was a bench trial without a jury there was not even a need to call a “recess”; the Judge could have postponed the taking of testimony for 15 minutes.