Abe Fortas

“ I cannot agree that this backhanded concession warrants our reversing the District Court's dismissal of the three-count indictment. The indictment is the Government's responsibility. it must stand the test of lawfulness as the Government presents it. The Government cannot rest upon a faulty indictment, and defend it by indicating its willingness to acquiesce in surgery which it is apparently unready to initiate.
In my view, this reindictment, greatly exceeding the original indictment in its charges and threatened penalties, was not a lawful basis upon which to put appellees to their defense. ”

“ According to the District Court, the only reason advanced by the Government for the multiplication of charges against appellees was that the prosecutor wanted to discourage others convicted of narcotics offenses from attacking their convictions. ”

“ It teaches that the Government, in its role as prosecutor, may not attach to the exercise of the right to appeal the penalty that if the appellant succeeds, he may be retried on another and more serious charge. ”