December 5, 1977
CRIST, WARDEN, ET AL
CLINE ET AL.
C.A. 9th Cir. [Probable jurisdiction postponed, 430 U.S. 982.]
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Case restored to calendar for reargument. Counsel requested to brief and discuss during oral argument the following questions:
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. Is the rule heretofore applied in the federal courts - that jeopardy attaches in jury trials when the jury is sworn - constitutionally mandated?
2. Should this Court hold that the Constitution does not require jeopardy to attach in any trial - state or federal, jury or non-jury - until the first witness is sworn?
The Solicitor General is invited to file a brief expressing the views of the United States on each of these questions.
MR. JUSTICE MARSHALL, dissenting.
By its order restoring this case to the calendar for rebriefing and additional oral argument, the Court appears once again to be "[reaching] out" for a vehicle to change a long line of precedent. See Pennsylvania v. Mimms, ante, at 117 (STEVENS, J., dissenting). The Court asks the parties to discuss the rule to be applied in the federal courts with regard to attachment of jeopardy, a rule that is very well established.*fn1 But the parties here are Montana prison officials, represented by the Attorney General of Montana, and state-court defendants; they can hardly be considered knowledgeable about the federal courts. The Court attempts to surmount this difficulty by inviting the Solicitor General to provide the federal prosecutor's perspective on this important issue, yet it does not invite the other side, federal defendants or a representative of them, to submit a brief providing the opposing perspective.
In my view, the Court today does violence to two assumptions underlying Art. III of the Constitution: that we will
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not anticipate a question before it is necessary to decide it,*fn2 and that both sides of an issue will be vigorously represented by involved advocates.*fn3 See generally Ashwander v. TVA, 297 U.S. 288, 346-348 (1936) (Brandeis, J., concurring). I dissent from the order restoring the case for reargument.