John Marshall Harlan II,
Fong Foo v. United States — Concurrence
“ Were I able to find, as Judge Aldrich did, that the District Court's judgment of acquittal was based solely on the Assistant United States Attorney's alleged misconduct, I would think that a retrial of the petitioners would not be prevented by the Double Jeopardy Clause of the Fifth Amendment. Even assuming that a trial court may have power, in extreme circumstances, to direct a judgment of acquittal, instead of declaring a mistrial, because of a prosecutor's misconduct-a proposition which I seriously doubt-I do not think that such power existed in the circumstances of this case. ”
