Felix Frankfurter

“ The greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy.
The entire history of litigation and contention over the question of the imposition of a bar to a second prosecution by a government other than the one first prosecuting is a manifestation of the evolutionary unfolding of law. Today a number of States have statutes which bar a second prosecution if the defendant has been once tried by another government for a similar offense. ”

“ Cooperation in order to permit the Federal Government to harass the accused so as to deny him his protection under the Fifth Amendment is not to be tolerated as a legitimate requirement of federalism. The lesson of the history which wrought the Fifth Amendment's protection has taught us little if that shield may be shattered by reliance upon the requirements of federalism and state sovereignty to sustain this transparent attempt of the Federal Government to have two tries at convicting Bartkus for the same alleged crime. ”

“ If the federal courts have power to defeat a state prosecution by force of their supervision of federal officers, surely the federal courts have power to defeat a state prosecution transparently employed by federal authorities in violation of the Fifth Amendment. ”

“ Of course, cooperation between federal and state authorities in criminal law enforcement is to be desired and encouraged, for cooperative federalism in this field can indeed profit the Nation and the States in improving methods for carrying out the endless fight against crime. But the normal and heathy situation consists of state and federal officers cooperating to apprehend lawbreakers and present the strongest case against them at a single trial, be it state or federal. ”

“ Yet it is on this meager basis that the Court must ultimately rest its finding that Bartkus' retrial does not violate fundamental principles 'rooted in the traditions and conscience of our peoples.' Nor are these scattered and dubious cases unchallenged, for, balanced against them, we have a firm holding by this Court sustaining an extremely narrow construction of a federal statute in order to make a state acquittal conclusive in the federal courts and thereby avoid the evil approved today. ”

“ Later, Bartkus was indicted in an Illinois state court for the same bank robbery. This time he was convicted and sentenced to life imprisonment. His acquittal in the federal court would have barred a second trial in any court of the United States because of the provision in the Fifth Amendment that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' The Court today rejects Bartkus' contention that his state conviction after a federal acquittal violates the Fourteenth Amendment to our Constitution. I cannot agree. ”

“ The Court's argument also ignores the fact that our Constitution allocates power between local and federal governments in such a way that the basic rights of each can be protected without double trials. The Federal Government is given power to act in limited areas only, but in matters properly within its scope it is supreme. ”

“ If danger to the innocent is emphasized, that danger is surely no less when the power of State and Federal Governments is brought to bear on one man in two trials, then when one of these 'Sovereigns' proceeds alone. ”

“ V, § 4, cl. 5, states that offenses before a District Judge shall be tried to a jury of seven. Art. V, § 4, cl. 2, defines the jurisdiction of District Courts; they try all crimes not punishable with death or imprisonment in the penitentiary. Art. V, § 13, appears to be similar. But Art. V, § 3, cl. 3, states that the Superior Court can render judgment without jury "in all civil cases founded on contract, where an issuable defence is not filed on oath."
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *." ”

“ In areas, however, where the Constitution has vested power in the Federal Government the States necessarily act only to the extent Congress permits, and it is no infringement on their basic rights if Congress chooses to fix penalties smaller than some of them might wish. ”

“ In the case of each, Congress required that the State's constitution be 'not repugnant' to the Constitution of the United States. [6] Not one of the constitutions of the twelve States contains all three of the procedures relating to grand jury, criminal jury, and civil jury. In fact all twelve have provisions obviously different from the requirements of the Fifth Sixth, or Seventh Amendments. ”

“ Our task is to determine how much the federal authorities must participate in a state prosecution before it so infects the conviction that we must set it aside. The test, I submit, must be fashioned to secure the fundamental protection of the Fifth Amendment 'that the (Federal Government) with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity * * *.' Green v. ”

“ It has more accurately been shown that the men who wrote the Constitution as well as the citizens of the member States of the Confederation were fearful of the power of centralized government and sought to limit its power. ”

“ The Assistant State's Attorney said to Cosentino, 'Look, we are going to get an indictment in the state court against Bartkus, will you testify against him?' Cosentino agreed that he would. Later Brindis also agreed to testify. Although they pleaded guilty to the federal robbery charge in August 1953, the Federal District Court postponed their sentencing until after they testified against Bartkus at the state trial, which was not held until April 1954. The record does not disclose what sentences were imposed after they testified at the state trial or whether sentences have yet been imposed. ”

“ Prior cases in this Court relating to successive state and federal prosecutions have been concerned with the Fifth Amendment, and the scope of its proscription of second prosecutions by the Federal Government, not with the Fourteenth Amendment's effect on state action. We are now called upon to draw on the considerations which have guided the Court in applying the limitations of the Fourteenth Amendment on state powers. ”

“ The power to try a second time will be used, as have all similar procedures, to make scapegoats of helpless, political, religious, or racial minorities and those who differ, who do not conform and who resist tyranny. ”

“ As Chief Justice Taney, on circuit, said in one of them 'Yet in all civilized countries it is recognized as a fundamental principle of justice that a man ought not to be punished twice for the same offence ”

“ Art. I, § provides that in courts of general jurisdiction trial shall be to a jury of eight, verdict by three-fourths vote. In courts of inferior jurisdiction trial is to a jury of four, verdict by three-fourths vote. Oklahoma.
1907.c Art. II, § 17, permits prosecution by indictment or information. Art. II § 18, provides that a grand jury, if any, is to be composed of twelve urors, nine needed to indict.
Art. II, § 19, requires unanimous verdict in felony cases, but only three-fourths in trial of other crimes. Inferior courts are established with juries of six. Art. ”

“ There are some countries that allow the dangerous practice of trying people twice. I am inserting below a recent news item about a man who was tried, convicted, sentenced to prison and then was tried again, convicted and sentenced to death. ”

“ Since Lanza people have apparently become more accustomed to double trials, once deemed so shocking, just as they might, in time, adjust themselves to all other violations of the Bill of Rights should they be sanctioned by this our t. The Court is therefore able to find a 1943 state case, as well as four federal cases in the last five years, in which a conviction following acquittal was sustained. ”

“ Art. I, § 7, limits itsguarantee to courts ofrecord, but the delineation of jurisdiction is not clear. Montana.
prosecution by information and provides that if a grand jury be established it shall have seven persons, five of whom can indict. Art. III, § 16, 23. The latter section providesthat in criminal actions not amounting to a felony a two- thirds vote is sufficient to convict. Art. III, § 23, provides for a two-thirds verdict. Furthermore the jury in a Justice's court is composed of not more than six persons. Such courts have jurisdiction up to three hundred dollars. Art. ”