(dissenting).
The majority opinion orders the dismissal of all charges against this appellant despite the fact that a jury of his peers, in a fourth trial of his case, found him guilty of murder in the second degree after a fair trial which, from the record before us, was conducted without error. Appellant’s challenge is to the mistrial declared in terminating his third trial, and it is to that event that the majority address their attention and upon which they predicate their reversal.
The factual situation, which the majority opinion interprets as constituting double jeopardy,1 is simple to describe. In his closing argument to the jury hearing the third trial of this appellant, de*817fense counsel, himself a seasoned and experienced former prosecutor on the staff of the United States Attorney, told the jury that “ * * * the two previous trials have ended in mistrials.” Subsequently, the Assistant United States Attorney prosecuting the case moved for a mistrial, and over defense counsel’s objection the learned trial judge granted this motion, resulting in the ultimate retrial in which appellant was found guilty. In declaring the mistrial, the judge specifically found that appellant’s counsel’s statement was “prejudicial,” and of course the prejudice was against the Government.
My brethren of the majority say that appellant’s counsel’s announcement to the jury that there had been two prior mistrials in this case did not constitute adequate justification for the trial court’s declaration of a mistrial, and herein is the basis of my disagreement with them. I am convinced that if the prosecutor had made the identical statement to the jury in an obvious attempt to influence the jurors’ thinking, we would, without any doubt or difficulty, rule that the statement was prejudicial to the defendant’s right to a fair trial and consequently a proper basis for a mistrial. I am unable, then, to evaluate the questioned statement as being permissible if made by defendant’s counsel but highly irregular if made by the prosecutor. The record discloses that the prosecutor, prior to the trial judge’s ruling upon his motion for a mistrial, requested the court to authorize him, in lieu of granting the mistrial, to advise the then sitting jury that the first jury hearing appellant’s case “stood II to 1” for conviction. I think it is obvious that if such a statement had been authorized and made, we would have summarily reversed the case.
We have established a very high standard of propriety for prosecutors in our courts:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall hot escape or innocence suffer. He may prosecute with earnestness and vigor — indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). (Emphasis supplied.)
It is my view that we should require defense counsel to conform to the same standard of conduct as we have established for Government counsel, because he, too, is the servant of the law, charged with seeing that justice is done. While defense counsel’s objectives and function differ from that of the prosecutor, the law should demand of each the same fidelity to standards of ethical conduct. As an officer of the court, he must perform his duty of defending within and not outside the canons of ethics, honorably and not by chicane, trickery, or deceit.
It is obvious that when appellant’s trial counsel, in his closing plea to the jury, advised the jury of two prior mistrials he did it deliberately for the purpose of creating doubt of the defendant’s guilt in the minds of the jurors who, understandably, would ask themselves whether a reasonable doubt of guilt had not been established when two prior juries, upon the same evidence, had been unable to reach a verdict. There is no question in my mind but that if the prosecutor had made the same statement to the jury for the purpose of injecting into their thinking a fact completely outside of the evidence before them, we would label it as both a “foul blow” and an “improper method calculated to produce a *818wrongful conviction.” I am unwilling and unable to agree that the questioned statement herein was proper when made by defense counsel when it so obviously would have been improper if made by Government counsel. The statement would have been adequate and proper basis for the granting of a mistrial if the prosecutor had made it, and I must conclude that it was proper and adequate for the trial judge’s action when it was made by defense counsel. Defense counsel’s initial statement created and triggered the factual situation resulting in the mistrial, despite the majority’s feeble attempt to transfer the responsibility to the prosecuting attorney.
Despite the attempt of the majority to equate a defendant’s constitutional right of appeal, his right to “due process of law,” and his right not to be “twice put in jeopardy” to some unidentified right of his trial counsel to engage in highly questionable conduct before the jury, I remain convinced that the factual situation herein presented created a situation in which the United States, representing the law-abiding people of the community, is deprived of its unarticulated right to due process of law. Until we recognize that the United States, too, is entitled to all the benefits of a fair trial, we are affirmatively contributing to the general breakdown of effective law enforcement.
The majority opinion places a premium on chicanery and invites defense counsel to engage in it by its “you cannot lose” result. If this opinion is to prevail, defense counsel may resort to trickery in the court room secure in the knowledge that if he gets by with it he will have the benefit of his misconduct, and if he does not a mistrial will be declared and thereby he reaps an even greater reward for his unethical behavior. This case now effectuates the release of the appellant, despite the fact that a jury has found him guilty of a brutal murder. It does so by stretching the immunity from the double jeopardy provision of the fifth amendment to embrace a factual situation far beyond the purpose and reasoning of the Founding Fathers.
In the words of William H. Taft, speaking before he ever became Chief Justice:
* * * The * * * disposition on the part of the courts to think that every provision of every rule of law in favor of the defendant is one to be strictly enforced, and even widened in its effect in the interest of the liberty of the citizen, has led courts of appeal to a degree of refinement in upholding technicalities in favor of defendants, and in reversing convictions that render one who has had practical knowledge of the trial of criminal cases most impatient.
When a court of highest authority in this country thus interposes a bare tecnicality between a defendant and his just conviction, it is not too much to charge some of the laxity in our administration of the criminal law to a proneness on the part of courts of last resort to find error and to reverse judgments of conviction. Taft, The Administration of Criminal Law, 15 Yale L.J. 1, 15 (1905), as quoted by Mr. Justice Frankfurter, dissenting in Stewart v. United States, 366 U.S. 1, 21 [81 S.Ct. 941, 6 L.Ed.2d 84] (1960).
I would affirm.
. Amendment v.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.