A poll of the judges in regular active service having been taken, and there being no majority in favor of rehearing en banc,
Upon consideration, it is determined that rehearing en banc shall not be ordered.
I respectively dissent from the denial of rehearing en banc, two of the active judges of this Court having voted to grant such rehearing.
The reasons for my disagreement with the panel majority are set forth in my panel dissent. 552 F.2d at 54. This opinion sets forth more particularly the reasons I believe this case warrants en banc reconsideration by the full Court.
In the vitally critical area of the correct procedure to be followed by the trial judge in declaring a mistrial as a predicate to a subsequent double jeopardy dismissal, the majority's treatment in the instant case of the question of manifest necessity and discretion of the trial judge in the declaration of a mistrial surely is in direct conflict with - if indeed it does not effectively overrule - our holding of last term in United States v. Gentile, 525 F.2d 252 (2 Cir. 1975), cert. denied, 425 U.S. 903, 47 L. Ed. 2d 753, 96 S. Ct. 1493 (1976). The panel majority here, in reaching the conclusion that Judge Clarie's sua sponte declaration of a mistrial was an abuse of discretion, has imposed a standard of unprecedented rigidity which is in sharp conflict with Gentile and the other controlling cases referred to below. This is so for at least two reasons.
First, the panel majority here holds that "before a trial judge declares a mistrial, he must make explicit findings, preferably after a hearing, that there are no reasonable alternatives to mistrial." 552 F.2d at 52. But United States v. Jorn, 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971), from which the majority has drawn this "necessary procedural corollary", laid down no such per se requirement of findings and a hearing. Nor is there any basis for extrapolating such a requirement from Jorn. The emphasis in Jorn on the quality of the trial judge's decision-making cannot be so easily severed from the particular facts of that case. The sua sponte declaration of a mistrial in Jorn was an "erratic" decision. See Illinois v. Somerville, 410 U.S. 458, 469, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973). There is a significant distinction between the depth of consideration given to the mistrial declaration by the trial judge in Jorn and that given by both the district judge in Gentile and Judge Clarie in the instant case.
In our holding in Gentile, we did not construe Jorn to require findings and a hearing. 525 F.2d at 257-58. Judge Friendly's carefully considered Gentile opinion was correct in declining to do so. If the alternatives are apparent on appeal, burdening the trial judge with findings is unnecessary. Moreover, since the majority's newly enunciated hearings and findings rule is unaccompanied by a requirement that the defendant state his objections to a mistrial, it most assuredly will play into the hands of defense counsel intent upon manufacturing grounds for dismissal. The panel majority's new rule, if permitted to stand, will reduce double jeopardy to just plain quibbling over procedural niceties while losing sight of the trial court's "broad discretion" to terminate a trial in the "ends of public justice". Illinois v. Somerville, supra, 410 U.S. at 458, 462-63.
Second, the majority's retrospective search for "reasonable alternatives" imposes a restriction on the trial judge's discretion squarely in conflict with Gentile. Gentile, as well as Gori v. United States, 367 U.S. 364, 6 L. Ed. 2d 901, 81 S. Ct. 1523 (1961), were much stronger cases for double jeopardy dismissal than the instant case. The district judge's remarks in Gentile regarding other alternatives were far less cogent than were Judge Clarie's here. Furthermore, we noted in Gentile that the prejudicial defect of the prosecutor's remark almost certainly could have been corrected by an instruction, whereas in this case Judge Clarie "found" in considerable detail that the infection from Harris' testimony was incurable - to which attorney Rothblatt "agreed". Surely the defendant's agreement that a fair first trial no longer is possible and his refusal to cooperate in suggesting alternatives bolsters the trial court's discretion in declaring a mistrial and lessens the burden of exploring alternatives.
The majority brushes aside Judge Clarie's finding of fact that nothing could remedy the situation. But, even if alternative steps could have been taken without incurring reversal, that does not mean, as the panel majority holds, that double jeopardy automatically attaches. As we recognized in Gentile, the character of the discretion exercised in the mistrial declaration is such that it may be "immaterial that, in the exercise of appellate hindsight, we may not regard the prejudice as so great or so incurable by less drastic means." 525 F.2d at 258.
The panel majority in the instant case explicitly overrules Gentile, 552 F.2d at 52 n. 2, in discarding Gentile's accreditation of the Gori rule in light of Jorn and Somerville. It does so, of course, "with due respect to the Gentile opinion writer". But the subtle mischief of the panel majority opinion is its disingenuous implicit overruling of Gentile. It is this that renders en banc reconsideration all the more compelling. In the area of double jeopardy and the sua sponte declaration of a mistrial, our district judges have front-line responsibilities of the first magnitude. They already face a difficult task in formulating applicable principles from the various strands of doctrine presented in Gori, Jorn and Somerville. Now the sharp conflict between Grasso and Gentile has compounded that burden with irreconcilable instructions regarding what the Constitution demands.
Finally, several of my colleagues once again are chanting the familiar refrain, "Let the Supreme Court decide the issue, rather than our Court sitting en banc". I concede that the refrain is accompanied by a somewhat more appealing melody in the instant case, especially since we have been informed that the Solicitor General intends to petition for certiorari in the instant case and the Supreme Court recently has granted certiorari (April 18, 1977), in a similar double jeopardy case, Arizona v. Washington, 546 F.2d 829 (9 Cir. 1976). Nevertheless, while I realize that I am fighting a rear guard action in this matter, I continue to believe that it is our plain duty, Fed. R. App. P. 35(a), to reconsider en banc precisely this type of case where the question presented is one of exceptional importance (I have heard no voice to the contrary here) and such en banc reconsideration is necessary to secure or maintain uniformity in our decisions (Gentile v. Grasso). And I shall continue to insist upon our doing so unless or until the Supreme Court tells us that it no longer adheres to what it said in Western Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247, 97 L. Ed. 986, 73 S. Ct. 656 (1953),*fn1 especially at page 260:
"The en banc power, confirmed by § 46(c), is, as we emphasized in the Textile Mills case, a necessary and useful power - indeed too useful that we should ever permit a court to ignore the possibilities of its use in cases ...