372 U.S. 734, 83 S. Ct. 1038, 10 L. Ed. 2d 100 (1963)
Petitioner Downum and three codefendants faced an eight-count federal indictment charging them with stealing from the mail and forging and uttering checks so stolen.1 The codefendants pleaded guilty, so petitioner stood trial alone before a jury.2
Approximately a dozen cases including this one were set for call the previous week, involving subpoenas for about 100 witnesses delivered to the marshal for service.3
On the morning of April 25, 1961, the case was called for trial with both sides announcing ready.4 A jury was selected and sworn and instructed to return at 2 p.m.5 Upon its return the prosecution sought discharge of the jury due to the absence of key witness Rutledge, the payee on the checks for counts 6 and 7.6 Petitioner moved to dismiss those two counts for want of prosecution and proceed on the other counts, but the court denied the motion and discharged the jury over his objection.7
The day before the case was called, the prosecutor's assistant had checked with the marshal and learned that Rutledge's wife would notify them of his location if she could find out.8 No word arrived and no further steps were taken.9 The prosecution had allowed the jury to be selected and sworn despite the key witness remaining absent and unfound.10 Two days later a second jury was impaneled after petitioner's former jeopardy plea was overruled, leading to his conviction on the charges.11
The Court of Appeals affirmed the conviction at 300 F. 2d 137.12 The Supreme Court granted certiorari owing to an apparent conflict with the Ninth Circuit's decision in Cornero v. United States.13
Whether the Double Jeopardy Clause barred a second trial after the first jury was discharged without the defendant's consent because a key prosecution witness was absent?14
The Double Jeopardy Clause bars retrial where a jury is discharged without the defendant's consent after being sworn because a prosecution witness is absent, unless an imperious necessity exists, and the prosecution assumes the risk of proceeding to impanel the jury without first confirming its witnesses are available.15
Yes. The prosecution took a chance by allowing the jury to be selected and sworn even though key witness Rutledge had not been located.16 The record establishes that the prosecutor's assistant checked with the marshal the day before the case was called but received no word and made no further arrangements to secure the witness.17 This situation falls squarely within the principle that a district attorney who impanels a jury without first ascertaining whether witnesses are present enters the trial without sufficient evidence to convict.18
The defendant moved to dismiss the two affected counts and proceed on the remaining four, yet the court denied the motion and discharged the jury over objection, subordinating the defendant's right to completion before the sworn tribunal without an imperious necessity.19
The Double Jeopardy Clause barred a second trial after the first jury was discharged without the defendant's consent because a key prosecution witness was absent.20
Related opinions on this issue
Justice Clark dissented, maintaining that Wade v. Hunter rather than Cornero supplies the controlling standard.21 He argued that the absence of witnesses can justify discontinuance when particular circumstances manifest necessity and failure to discontinue would defeat the ends of justice.22 He stressed that the prosecutor's inability to confirm Rutledge's presence stemmed from excusable oversight caused by a heavy caseload, short notice for the trial settings, and the shorthanded office, with no evidence of deliberate harassment or an attempt to obtain a more favorable jury.23
The first jury heard no evidence, the second jury was impaneled only two days later, and the defendant suffered no prejudice, prolonged anxiety, or additional expense, so the ends of public justice required giving the government a fair opportunity to present its case on the merits.24