Warren E. Burger

“ True harassment deserves serious consideration because of the strain of the new trial. But society has an urgent interest in protecting the public from criminal acts and we ought not endorse any concepts that put a premium on aggravated criminal conduct in multiple crimes committed at the same time.↑ Arguably if Ashe had made a defense solely by alibi, that he was in Vietnam at the time and offered evidence of Army records etc., one might reasonably say the jury decided what the Court today says it probably decided. ”

“ If it be suggested that multiple crimes can be separately punished but must be collectively tried, one can point to the firm trend in the law to allow severance of defendants and offenses into separate trials so as to avoid possible prjudice of one one criminal act or of the conduct of one defendant to 'spill over' on another. ”

“ Clearly and beyond dispute the charge against Ashe in the second trial required proof of a fact—robbery of Roberts—which the charge involving Knight did not. The Court, therefore, has had to reach out far beyond the accepted offense-defining rule to reach its decision in this case. What it has done is to superimpose on the same-evidence test a new and novel collateral-estoppel gloss. ”

“ On the other hand, the evidence adduced at the second trial resolved issues other than identity that may have troubled the first jury. If believed, that evidence indicated that a fourth robber, Johnson, not Ashe, was with Mrs. Gladson when Ashe, Larson, and Brown were robbing the male victims. Johnson did go to the basement where the male victims were located, but only after the other three had already taken the stolen items and when the robbers were preparing for their departure in a car to be stolen from Roberts. ”

“ Also, since the second jury necessarily reached its decision by finding he was present, the collateral-estoppel doctrine applies. But the majority's analysis of the facts completely disregards the confusion injected into the case by the robbery of Mrs. Gladson. To me, if we are to psychoanalyze the jury, the evidence adduced at the first trial could more reasonably be construed as indicating that Ashe had been at the Gladson home with the other three men but was not one of those involved in the basement robbery. ”

“ His approach, like that taken by the Court, totally overlooks the significance of there being six entirely separate charges of robbery against six individuals.
This 'single frolic' concept is not a novel notion; it has been urged in various courts including this Court. [8] One of the theses underlying the 'single frolic' notion is that the criminal episode is 'indivisible.' The short answer to that is that to the victims, the criminal conduct is readily divisible and intensely personal; each offense is an offense against a person. ”

“ Ashe went to trial on May 2, 1960, on the charge of robbing Knight. No charge as to other victims was presented. Four of the six men—Knight, Gladson, McClendon, and Roberts—testified about the robbery and described their individual losses. Mrs. Gladson did not testify because she was ill on the day of trial. As Mr. Justice BRENNAN has stated, the victims' testimony conflicted as to whether there were three or four robbers:
'Gladson testified that he saw four robbers, but could identify only one, a man named Brown. ”