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U.S. Supreme Court
BENTON v. MARYLAND, 395 U.S. 784 (1969)

  1. Having concluded that the writ should be dismissed, I would ordinarily not go further. However, as indicated at the outset, I feel impelled to continue with Page 808 some observations respecting what can only be regarded as a complete overruling of one of this Court's truly great decisions, and with an expression of my views as to how petitioner's claim respecting his retrial for larceny should fare under the traditional due process approach.
    1. I would hold, in accordance with Palko v. Connecticut, 302 U.S. 319 (1937), that the Due Process Clause of the Fourteenth Amendment does not take over the Double Jeopardy Clause of the Fifth, as such. Today Palko becomes another casualty in the so far unchecked march toward "incorporating" much, if not all, of the Federal Bill of Rights into the Due Process Clause. This march began, with a Court majority, in 1961 when Mapp v. Ohio, 367 U.S. 643, was decided and, before the present decision, found its last stopping point in Duncan v. Louisiana, 391 U.S. 145 (1968), decided at the end of last Term. I have at each step in the march expressed my opposition, see, e. g., my opinions in Mapp v. Ohio, supra, at 672 (dissenting); Ker v. California, 374 U.S. 23, 44 (1963) (concurring in result); Malloy v. Hogan, 378 U.S. 1, 14 (1964) (dissenting); Pointer v. Texas, 380 U.S. 400, 408 (1965) (concurring in result); Griffin v. California, 380 U.S. 609, 615 (1965) (concurring); Klopfer v. North Carolina, 386 U.S. 213, 226 (1967) (concurring in result); and Duncan v. Louisiana, supra, at 171 (dissenting); more particularly in the Duncan case I undertook to show that the "selective incorporation" doctrine finds no support either in history or in reason.[fn12] Under the pressures of the closing days of Page 809 the Term, I am content to rest on what I have written in prior opinions, save to raise my voice again in protest against a doctrine which so subtly, yet profoundly, is eroding many of the basics of our federal system.

      More broadly, that this Court should have apparently become so impervious to the pervasive wisdom of the constitutional philosophy embodied in Palko, and that it should have felt itself able to attribute to the perceptive and timeless words of Mr. Justice Cardozo nothing more than a "watering down" of constitutional rights, are indeed revealing symbols of the extent to which we are weighing anchors from the fundamentals of our constitutional system.
    2. Finally, how should the validity of petitioner's larceny conviction be judged under Palko, that is, under due process standards?

      A brief recapitulation of the facts first seems advisable. Petitioner was indicted and tried simultaneously for burglary and larceny. He was acquitted of larceny but convicted of burglary. Petitioner appealed, and the Maryland courts remanded in light of earlier Maryland decisions holding invalid a provision of the Maryland Constitution requiring that grand and petit jurors declare their belief in God. Petitioner was given the option either of accepting the result of his trial or of demanding re-indictment and retrial. He chose to attack the indictment, was re-indicted and retried for both larceny and burglary, and was convicted of both offenses.

      The principle that an accused should not be tried twice for the same offense is deeply rooted in Anglo-American Page 810 law.[fn13] In this country, it is presently embodied in the Fifth Amendment to the Federal Constitution and in the constitution or common law of every State.[fn14] The Palko Court found it unnecessary to decide "[w]hat the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him. . . ." 302 U.S., at 328. However, I have no hesitation in stating that it would be a denial of due process at least for a State to retry one previously acquitted following an errorless trial. The idea that the State's interest in convicting wrongdoers is entirely satisfied by one fair trial ending in an acquittal, and that the accused's interest in repose must thereafter be given precedence, is indubitably a "`principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Id., at 325.

      The situation in this case is not quite so simple. Had petitioner not appealed his burglary conviction, the State would surely have allowed him to rest on his larceny acquittal and merely serve out his burglary sentence. However, the State argues that the burglary and larceny counts were originally contained in a single indictment; that upon petitioner's appeal the indictment was declared totally void and the trial court found to have lacked jurisdiction; and that the State could then proceed as if there had never been a previous indictment or trial.

      The State's contention that petitioner's first trial was a complete nullity because the trial court "lacked jurisdiction" Page 811 is unconvincing. As has been noted, it appears that the State would willingly have seen petitioner serve out the burglary sentence imposed in consequence of that trial. Under state procedure, petitioner could avail himself of the "jurisdictional" defect only by appealing his conviction. The crucial issue, therefore, is what legitimate interest had the State in compelling petitioner to jeopardize his larceny acquittal as a condition of appealing his burglary conviction?

      I can perceive no legitimate state interest. Certainly it is the purest fiction to say that by appealing his burglary conviction petitioner "waived" his right not to be retried for larceny or "consented" to retrial on that charge. The notion of "waiver" was first employed in United States v. Ball, 163 U.S. 662 (1896), to justify retrial of an accused for the same offense following reversal of a conviction on appeal. The "waiver" doctrine was more fully articulated in Trono v. United States, 199 U.S. 521 (1905), where it was held that retrial and conviction for murder following a successful appeal from a manslaughter conviction did not violate the Double Jeopardy Clause.[fn15] Trono apparently dictated the result in Brantley v. Georgia, 217 U.S. 284 (1910), in which the Court held in a brief per curiam, without citing any authority, that a Georgia retrial and conviction for murder following the reversal on appeal of an earlier manslaughter conviction did not amount to "a case of twice in jeopardy under any view of the Constitution of the United States." Id., at 285.[fn16] We have since Page 812 recognized that the "waiver" rationale is a "conceptual abstraction" which obscures rather than illuminates the underlying clash of societal and individual interests. See United States v. Tateo, 377 U.S. 463, 466 (1964). Accordingly, I do not think that the reasoning in Trono or the apparent holding in Brantley, insofar as they would require affirmance of petitioner's larceny conviction, can any longer be regarded as good law.

      Nor did the State in the present case have the sorts of interests which have been held to justify retrial for the same offense after a conviction has been reversed on appeal by the accused and in the more unusual case when an acquittal has been set aside following an appeal by the State.[fn17] When the accused has obtained a reversal on appeal, the societal interest in convicting the guilty has been deemed too weighty to permit every such accused to be "granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction." United States v. Tateo, supra, at 466. The rationale for allowing the State to appeal an acquittal has been that the State, like the accused, is entitled to assure itself of a trial "free from the corrosion of substantial legal error" which might have produced an adverse verdict. See Palko v. Connecticut, supra, at 328.[fn18] Page 813

      In the present case, the State did not appeal, and the defect in the composition of the grand jury could not have affected petitioner's subsequent acquittal at trial. Society's legitimate interest in punishing wrongdoers could have been fully vindicated by retrying petitioner on the burglary count alone, that being the offense of which he was previously convicted. The State had no more interest in compelling petitioner to stand trial again for larceny, of which he had been acquitted, than in retrying any other person declared innocent after an error-free trial. His retrial on the larceny count therefore, in my opinion, denied due process, and on that ground reversal would be called for under Palko.