Abe Fortas

“ Defendants in Indiana in this type of case are admonished that if they appeal from a conviction on the less onerous charge they do so at the peril that on the next trial they may be tried, and possibly convicted, on the more serious count. ”

“ In Green, the defendant was not acquitted of the first degree murder charge at the first trial. Just as in the present case, the jury did not return a verdict on that count, but convicted Green on the lesser charges of arson and second degree murder. But this Court held that Green could not be retried on the first degree murder charge. It clearly and unmistakably held that whether Green was 'acquitted' of the greater offense was of no consequence. ”

“ And beyond the question of injury to the petioner in this particular case is the fact that the procedure which Indiana used chills the right of appeal. It 'has the necessary effect of unlawfully burdening and penalizing the exercise of the right to seek review of a criminal conviction.' United States v. ”