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March 18, 1976


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Defendant moves under Rule 12(b), Fed.R.Crim.P., to dismiss the indictment on the ground that a trial would violate his constitutional right not to be put in jeopardy twice for the same offense.

 Defendant contends that, since a mistrial was declared sua sponte by the court during the opening statement of his attorney, he cannot be tried again without being deprived of his right to have his guilt or innocence determined by the first jury. The government contends that, since the mistrial was declared by the court for the benefit of defendant, the double jeopardy clause does not bar reprosecution.

 The Fifth Amendment to the constitution prohibits the government from putting any person in jeopardy twice for the same offense. Its purpose is to prevent the state, with all of its supposed resources and power, from making successive attempts to convict an individual, repeatedly subjecting him to the expense and ordeal of trial, and increasing the possibility that, even though innocent, he will be found guilty. *fn1" The state may, however, retry a defendant when the court is required to discharge the jury in the first proceeding because of manifest necessity or the ends of justice. *fn2" The circumstances under which such action is appropriate is left to the sound discretion of the trial judge. Defendant's motion, therefore, must be denied if we were obliged to abort the first trial in the interest of justice.

 In Gori v. United States,3 the trial court declared a mistrial on its own motion when the government asked questions of its witness which might have disclosed other crimes committed by the accused. The Court of Appeals characterized the prosecutor's conduct as unexceptional and the declaration of the mistrial as premature; nevertheless, the action of the trial judge to protect the rights of the accused was sustained. *fn4" The Supreme Court affirmed:

"Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment." *fn5"

 United States v. Jorn6 affirmed the dismissal of an information on double jeopardy grounds after the trial judge, sua sponte, declared a mistrial when it appeared that government witnesses had not been properly warned of their rights. The trial was terminated to enable the witnesses to consult with attorneys. This action, termed erratic by the Supreme Court, *fn7" was found not to be compelled by any manifest necessity or public justice. Moreover, the lack of preparedness by the government, which precipitated the mistrial, directly invoked the policies underlying the double jeopardy clause and the guaranty of a speedy trial. *fn8"

 Familiarity with the background procedural setting in this case is essential to an understanding of the reasons for declaring a mistrial. The complaint was filed on August 8, 1975 and defendant forthwith arraigned before a magistrate, who assigned counsel to represent defendant. An eight-count indictment was filed on October 16, 1975, charging defendant with conspiracy and making false applications for bank loans, in violation of Title 18, United States Code, Sections 371 and 1014; defendant pleaded not guilty; the case was assigned to us and a pretrial conference was called the same day.

 All appeared for the pretrial conference, and defense counsel advised that defendant had a psychiatric history, that he would be examined by a psychiatrist and a psychologist, and that defense counsel would probably raise the issue of defendant's mental competency to stand trial, as well as his mental competency to commit the alleged crimes. The government sought an examination of the defendant by a qualified psychiatrist and later we signed a formal order submitted by the government. We set a competency hearing for November 24, 1975, to be followed by a trial immediately thereafter should defendant be found competent to stand trial.

 The government's psychiatrist examined defendant and reported that he was competent to stand trial. Accordingly, a hearing was held on November 24 to determine that issue.

 It appeared upon the hearing that neither the defense witness nor defense counsel was aware of what facts were material to the issue of competency to stand trial. *fn9" Specifically, defense counsel did not seem to know what questions to ask, nor how to ask them, and the witness, manifestly without legal guidance, was almost totally unprepared to testify. As a result, we were compelled to take over the examination, both of defense witnesses on direct *fn10" and the government's psychiatrist on cross. *fn11"

 Upon completion of the hearing, we found defendant competent to stand trial, a jury was selected, and the trial began. During the first few minutes of defense counsel's opening statement, we were obliged to interrupt and warn him three times not to instruct the jury on the law. *fn12" Nevertheless, he failed to heed our advice, and, by the fourth time, we were left with no choice but to conclude that counsel was either unwilling or unable to make a distinction between questions of law and issues of fact.

 The charges against this defendant are that he knowingly made false statements of material fact in loan applications for the purpose of influencing the action of the bank and of conspiring to do so. The charges are not only serious but also raise close issues of knowledge, scienter and criminal intent, all turning on fine distinctions between truth or falsity, guilty knowledge or innocent mistake, etc. Such issues are difficult enough, even when uncomplicated by an insanity defense. When such a defense is interposed on non-frivolous grounds, as was plainly the case here, it seems to us that the court has a special duty to protect the defendant from a miscarriage of justice.

 Our assessment of counsel's ineptness and inability competently to represent his client, especially in light of the insanity defense, was not erratic, as in Jorn, but was based on a reasonable apprehension, fortified by long experience as a trial judge, that the accused would not be fairly represented. The constitution requires that a defendant in a criminal case be represented by counsel. *fn13" The Criminal Justice Act was passed to assure that an indigent defendant in a federal court receive experienced and adequate representation. *fn14" The Chief Justice has, however, warned of the disservice ...

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