and criminal cases. We always enquire as to whether the
prospective jurors are acquainted with the parties or their
counsel. It is also desirable to inquire whether they are
acquainted with any of the prospective witnesses. While
affirmative answers are not frequently encountered, the occasions
when they are make the enquiry worthwhile.
It is as undesirable for the administration of justice that a
juror should find one of the witnesses for either party to be an
acquaintance (with attendant personal attitudes toward the
credibility of that witness) as it is for a juror to be
acquainted personally with either the parties or counsel. As Mr.
Justice Cardozo observed in Clark v. United States, 289 U.S. 1,
53 S.Ct. 465, 77 L.Ed. 993 (1933), in which a juror was
prosecuted for failing to disclose on voir dire her acquaintance
with the defendant, "What was sought to be obtained was the
choice of an impartial arbiter. What happened was the intrusion
of a partisan defender. . . ."
Perhaps more to the point is United States v. Henson,
179 F. Supp. 474 (D.C.D.C. 1959), in which a juror was found guilty of
contempt because of her failure to disclose during the trial the
fact that she recognized a witness called by the defense as the
woman who had set the juror's hair on a couple of occasions and
then realized that the witness was the defendant's mother. But if
juror recognition of a witness occurs during the trial and is
reported, how are we to cope with it? By individual interrogation
of the juror? A mistrial? In United States v. Hooker, 12 Cr.L.R.
2514 (D.C.Sup.Ct. 1973), the court held that to safeguard against
the problem, pretrial disclosure of defense witnesses can be
compelled to be used in the voir dire examination of the jury
under the District of Columbia Superior Court rule 24(a) which is
the same as Rule 24(a), Fed.R.Crim.Pro.
The pretrial order entered in this case on December 18, 1973
had for its purposes the foregoing objectives. It contemplated a
mutual exchange of materials. It was, in my judgment, reasonable,
fairly timed and within my authority. The defendant Jackson fully
complied with it. If the orders of the court are to have any
vitality, the Government must do likewise. This it refused to do.
THE APPROPRIATE REMEDY
The Government has volunteered that "the remedies now open to
the court are dismissal of the indictment or suppression of the
testimony of the witnesses which are undisclosed." Either of
these were preferable for the Government because each would have
produced a reviewable order.
There were, however, two other alternatives. We could have
proceeded to trial, had jeopardy attach and exclude the testimony
of the unlisted witnesses. As I read the stipulated evidence, it
did not amount to a prima facie case. A non-appealable acquittal
would have resulted which would have benefited the defendant
Jackson. But that smacked too much of gamesmanship, which the
order in question is intended to avoid. Furthermore, frenzied
efforts by the Government for a writ of mandamus or prohibition
from the Court of Appeals were predictable. Justice deserves to
be administered deliberately.
A second alternative was contempt. But that would have
completely lost sight of the defendant's interests. Small solace
to him while the Government and a special prosecutor were
jousting over the fate of the assistant prosecutor who happened
to have drawn this assignment.
Neither of the Government's suggested "remedies" were
completely satisfactory. Suppression of the anticipated testimony
would have resulted in an interlocutory appeal during which the
case would remain pending against Jackson. If the appeal were
successful, the case would be remanded for trial. But such might
be the result in the event of an affirmance, for the Government
could attempt to cure its refusal.
Dismissal of the indictment upon the sole ground of the
Government's refusal would carry the possibility of a result
comparable to suppression. Jeopardy not having attached, if
reversed the case would proceed to trial, if affirmed the
Government could reindict.
The defendant's interests were deserving of protection. He had
been under indictment for 17 months. He lost one trial date as a
result of the superseding indictment; another for reasons which
do not appear on the record; another when the case was reassigned
to me; another — and this one over his express objection and
demand for trial — to meet the conveniences of the Government;
and now, most recently, another because of the Government's
refusal to honor an order with which he had fully complied. An
appeal will ensue, attended by still more delay.
I have concluded that in the circumstances of this case the
defendant should not be forced to stand trial if the Government
is unsuccessful in its appellate challenge of its obligation to
comply with the pretrial order. There are decisions reporting
dismissals "with prejudice" in these circumstances (see, United
States v. Richter, supra) but I do not understand the
significance of that term in a criminal case. United States v.
Clay, 481 F.2d 133 (7th Cir. 1973). Cf., Rule 41, Fed.R.Civ.Pro.
So far as I am aware, unless jeopardy has attached or some other
bar is interposed in behalf of the defendant, he may be
reprosecuted following a pretrial dismissal of an indictment so
long as the statute of limitations has not run at the time of
In my judgment, it is the Sixth Amendment guaranty of a speedy
trial which protects the defendant from the delay he has
experienced and will experience here. Within the guidelines
articulated by the Supreme Court in Barker v. Wingo,
407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Moore v. Arizona,
414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), I find that the
length of delay between indictment and disposition on the merits
has been and will be unreasonable, that the delay has been
occasioned in the main by the Government (and none of it by the
defendant), that the defendant Jackson has asserted his right to
a speedy trial and that he has been prejudiced by the mere
pendency of the charges made against him. Accordingly, the motion
of defendant Blackburn Jackson to dismiss the indictment as to
him has been sustained in its entirety and a judgment has been
entered dismissing the indictment as to him and in bar of any
future prosecution for the offenses alleged in indictment 73 CR