122
Ginsburg, J., dissenting
stead, it would have had to "seek reversal of the decision of the trial court" by pursuing an appeal. Ibid.3
Sattazahn's case falls within Scott's second category. After the jury deadlocked at the sentencing stage, no mis-trial was declared, for Pennsylvania law provided that the trial proceedings would terminate "then and there" in Sattazahn's favor. The government could not simply retry the sentencing issue at will. The hung jury in Sattazahn's case did not "mak[e] . . . completion" of the first proceeding "im-possible," Wade v. Hunter, 336 U. S. 684, 689 (1949); instead, Pennsylvania law required the judge to bring that proceeding to a conclusion by entering a final judgment imposing a life sentence, see Pa. Stat. Ann., Tit. 42, § 9711(c)(1)(v) (Purdon Supp. 2002).
Double jeopardy law with respect to Scott's second category is relatively undeveloped. As observed at the outset, see supra, at 119, we have never before decided whether jeopardy terminates upon the entry of a state-mandated final judgment favorable to a defendant after a jury deadlocks. We have, however, addressed the termination of a trial prior to submission of the case to the jury. Scott was such a case and, as the Court underscores, ante, at 114, that decision denied double jeopardy protection. In allowing a second prosecution in Scott, however, the Court stressed that the defendant "deliberately ch[ose] to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence," i. e., the prosecution's preindictment delay, 437 U. S., at 98-99: Scott "successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury . . . empaneled to try him," id., at 99. Although
3 When this Court has considered dismissals of indictments that contemplate the possibility of immediate reprosecution without an appeal, it has analyzed them as mistrials. See Lee v. United States, 432 U. S. 23, 30 (1977) (dismissal based on insufficient indictment treated as mistrial for double jeopardy purposes because Government could simply file new indictment without appealing dismissal).
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007