The appeal is dismissed for want of jurisdiction. Treating the
papers whereon the appeal was taken as a petition for writ of
certiorari, certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
There are two facts of consequence in this case: first, at the
time the case arose, Hawaii permitted the issue of insanity to be
tried by a judge prior to the empaneling of a jury, and second, the
defendant, who availed himself of this procedure, was acquitted.
These facts raise an issue of substantial importance: may the
State, consistent with the Double Jeopardy Clause of the Fifth
Amendment, made applicable to the states by the Fourteenth
Amendment, appeal an acquittal based upon insanity entered prior to
the empaneling of a jury.
I
Rodrigo Rodrigues, a 23-year-old Marine, was indicted on three
counts of sodomy and one count of rape. Prior to the empaneling of
a jury, Rodrigues' attorney raised the defense of mental disease.
Pursuant to Haw. Rev.Stat. 704-408 (1976), the trial court
suspended preliminary proceedings, appointed a panel of three
psychiatrists to examine the defendant, and proceeded to try the
issue of insanity. [
Footnote 1]
Over the course of 10 days, both the
Page 469 U.S.
1078 , 1079
defendant and the State adduced extensive testimony as to the
defendant's sanity. Five experts, two of whom served on the panel
appointed by the court, testified that the defendant was afflicted
with multiple- personality syndrome, a dissociative disorder in
which an individual's personality separates into complicated and
autonomous subpersonalities. The judge concluded that the defendant
was insane and entered an acquittal . The State appealed. The
Supreme Court of Hawaii, in a divided opinion, reversed and
remanded on the ground that the trial court erred in weighing the
evidence as to insanity. [
Footnote
2]
II
This Court has repeatedly stated that a fundamental purpose of
the Double Jeopardy Clause is to protect acquittals based upon the
resolution of the factual elements of an offense. [
Footnote 3]
"An acquittal is accorded special weight. 'The constitutional
protection against double jeopardy unequivocally prohibits a second
trial following an acquittal,' for the 'public interest in the
finality of criminal judgments is so strong that an acquitted
defendant may not be retried even though ' "the acquittal was based
upon an egregiously erroneous foundation." See Fong Foo v. United
States,
369 U.S.
141, 143 [, 672]. If the innocence of the accused has been
confirmed by a final judgment, the Constitution conclusively
presumes that a second trial would be unfair. Arizona v.
Washington, 434 U.S.
Page 469 U.S.
1078 , 497
, at 503 [, at 829]. The law 'attaches particular significance
to an acquittal.' United States v. Scott, 437 U.S., at 91 []."
4
The Court has also stated that because an acquittal based upon a
finding of insanity constitutes such a resolution, it may not be
appealed. 5 The rationale behind the principle according
acquittals
Page 469 U.S.
1078 , 1080
special weight is that an appeal or retrial following an
acquittal would produce "an unacceptably high risk that the
Government, with its superior resources, would wear down a
defendant, thereby 'enhancing the possibility that even though
innocent he may be found guilty.' " 6
The question presented is whether these principles apply with
equal force to the period prior to the formal commencement of a
trial. In other words, does jeopardy attach if the judge has tried
an element of the crime prior to the empaneling of a jury?
Conceding that in this case the judge sat as a "trier of fact"
on the issue of insanity, the Supreme Court of Hawaii nonetheless
held that jeopardy had not attached at the time of the acquittal.
[
Footnote 7] The court relied
upon Serfass v. United States,
420 U.S. 377 ( 1975), in
holding that the Double Jeopardy Clause is irrelevant to those
acquittals issued prior to the empaneling of a jury or the calling
of the first witness.
The court's reliance upon Serfass is misplaced. The indictment
in Serfass was dismissed for reasons wholly unrelated to a
resolution of the factual elements of the crime. The defendant, who
had been refused status as a conscientious objector, was
subsequently indicted for failure to report for or submit to
induction. [
Footnote 8] Prior
to trial, the defendant moved to dismiss on the ground that the
government had inadequately set forth its reasons for initially
refusing his request for classification as a conscientious
objector. The District Court agreed, and the case was dismissed for
the government's failure to provide due process, not because the
indictment was defective nor because the defendant was tried and
found innocent as to the elements of the crime.
The issue in the instant case-an issue neither discussed nor
addressed in Serfass -is whether jeopardy attaches to an acquittal
based upon a resolution of a factual element of the crime that
occurred prior to the empaneling of a jury or the calling of the
first witness. The principles summarized in the above quotation
from DiFrancesco strongly suggest that jeopardy does attach to such
acquittals and that it is of no consequence that the defendant's
acquittal occurred before the formal commencement of trial. The
question posed by this case has engendered division amongst
Page 469 U.S.
1078 , 1081
the commentators 9 as well as a conflict among the Courts of
Appeals. [
Footnote 10]
Because we have not addressed the question and because it is of
some importance, I believe that plenary consideration is
appropriate.
I therefore dissent from the denial of the petition for
certiorari.
Footnotes
Footnote 1 Hawaii Rev.Stat.
704-408 (1976): "Determination of irresponsibility. If the report
of the examiners filed pursuant to section 704-404 states that the
defendant at the time of the conduct alleged suffered from a
physical or mental disease, disorder, or defect which substantially
impaired his capacity to appreciate the wrongfulness of his conduct
or to conform his conduct to the requirements of law, and the
court, after a hearing if a hearing is requested, is satisfied that
such impairment was sufficient to exclude responsibility, the
court, on motion of the defendant, shall enter judgment of
acquittal on the ground of physical or mental disease, disorder, or
defect excluding responsibility."
This section was amended in 1980. Given the frequency with which
the issue in this case arises and the existing conflict between the
Courts of Appeals (see infra, at 1081), the amendment of the
section is of no bearing on the decision to grant the petition for
certiorari.
Footnote 2 67 Haw. 70, 79,
679 P.2d 615,
621 (1984).
Footnote 3 United States v.
DiFrancesco,
449 U.S.
117, 129-130, 433-434 (1980); United States v. Scott,
437 U.S.
82, 97, 2197 (1978); Burks v. United States,
437 U.S.
1, 16, 2149 (1978); United States v. Martin Linen Supply Co.,
430 U.S.
564, 571, 1354d 642 (1977).
Footnote 4 United States v.
DiFrancesco, supra, 449 U.S., at 129, 101 S. Ct. at 433.
Footnote 5 United States v.
Scott, supra, 437 U.S., at 97-98.
Footnote 6 United States v.
DiFrancesco, supra, 449 U.S., at 130.
Footnote 7 67 Haw., at 78,
679 P.2d, at 621.
Footnote 8 Serfass v. United
States, 420 U.S., at 379.
Footnote 9 Compare 15 C.
Wright, A. Miller, and E. Cooper, Federal Practice and Procedure
3919, p. 673 (1976) (stating that jeopardy attaches); Comment,
Double Jeopardy and Government Appeals of Criminal Dismissals, 52
Texas L.Rev. 303, 337-338 (1974) (same), with 1 W. LaFave & J.
Israel, Criminal Procedure 24.3, pp. 82-83 (1984) (stating that
jeopardy does not attach); Caruso, Double Jeopardy and Government
Appeals in Criminal Cases, 12 Colum.J.L. & Soc.Prob. 295,
325-328 (1976) (same).
Footnote 10 Compare
United States v. Patrick,
532 F.2d
142, 145-147 (CA9 1976 ) (holding that jeopardy attaches);
United States v. Southern R. Co.,
485 F.2d
309, 312 (CA4 1973) (same); United States v. Hill,
473 F.2d
759, 761- 763 (CA9 1972) (same); United States v. Oppenheimer,
242 U.S.
85, 87-88, 69 (1916) (same), with United States v. Pecora,
484 F.2d
1289, 1293-1294 (CA3 1973) (holding that jeopardy does not
attach).
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