Jeopardy Decision Divides Law Faculty

Recent decisions of the Supreme Court condoning successive trials by a state and the Federal government have caused a distinct breach of opinion among the Harvard Law School Faculty. Critics have charged that the decisions amount to legalization of double jeopardy.

Roger D. Fisher, an instructor in Law who has been personally involved in the decisions, sharply disagrees with the court's majority opinion, while Professors Mark de Wolfe Howe, Alfred E. Sutherland, and Paul A. Freund have stood firm in its defense. The split concerns both the philosophical implications and the practical results of the decision.

The Supreme Court's rulings resulted from two separate trials, one by an Illinois court, the other by a Federal court, given to three men. In 1953, a Federal court acquited Alfonse Bartkus of the charge of robbing a Federally insured bank in Cicero, Ill. An Illinois court then prosecuted him on the same charge and sentenced him to life imprisonment.

Last year Louis J. Abatte and Michael L. Falcone were convicted in Illinois for conspiring to dynamite some telephone facilities in connection with a union dispute. They were sentenced to three months in prison. A federal court then tried them, found them guilty, and sentenced them to three and one years' imprisonment respectively. The Supreme Court upheld the legality of both second trials by a vote of five to four on March 30.

Justice Felix Frankfurter, author the majority opinion, defended his position, stating that the basic concept of American Federalism--the coexistence of state and Federal power--would be violated by banning successive prosecutions of the two.

Leading the minority opinion, Justice Hugo Black stated, "Fear and abhorrence of the governmental power to try people twice for the same conduct is one of the oldest ideas in Western Civilization."

The split in the Law School faculty centers around these two issues: whether it is better to destroy some of the precepts of Federalism or to violate double jeopardy, one of the oldest concepts in Anglo-American law.

Freund supported the court's action primarily on the grounds that the possibility of two trials for a single offense has always been inherent in the Constitution. "A state trial after a Federal trial was always understood. If the minority had won, it would have been a departure from the past."

Both he and Sutherland cited the case of Lanza vs. U.S., 1922, where the Supreme Court allowed both a state and Federal trial of men convicted of producing and selling liquor. Fisher, however, felt that this was a unique case.

"The Lanza case was tried under the eighteenth Amendment, the only place in the Constitution where concurrent jurisdiction of state and Federal governments is specifically referred to. This case was peculiar to prohibition, and in no sense is a precedent for the recent court decisions," he said.

Talking of the traditional fear of the government's power to try a person twice, he emphasized the clause in the fifth Amendment which states: "nor any person be subject for the same offense to be twice put in jeopardy of life or limb."

"As far as the people are concerned, the Supreme Court is wrong. I believe their decision to be fundamentally unfair."

Both Freund and Sutherland applauded Attorney General Rogers' appeal to Federal prosecutors to avoid a second trial expect in unusual circumstances. Sutherland expressed hope that the several states would issue similar decrees to their own courts.

Professor Howe noted the decisions involved problems of federalism, and he felt that if the minority had won, "civil rights would be difficult to enforce." Freund called the majority opinion, "a check against bogus civil rights decisions."

Fisher, discussing the civil rights issue, said, "If you don't trust the state courts then deal with the problem of the state courts." He felt that the court, instead of trying to preserve federalism, had actually undermined it. If two trails are allowed, "the basic proposition is that the state court is ignored.