MARSHALL, J., dissenting 432 U.S. impress upon the court the importance to petitioner of not being placed in jeopardy on a defective charge." Throughout today's opinion, my Brother PoWELL puts all of the blame on petitioner's lawyer, none on the United States Attorney and, indeed, does not even mention him. Sole responsibility for the faulty information was in the office of the United States Attorney. Even when drafting errors are committed, they can be corrected before judgment, Fed. Rule Crim. Proc. 7 (e). In this case the United States Attorney never made any effort to defend the information and did not offer to amend and correct the error. Certainly most of the responsibility for the erroneous first trial rests with the Government. "[T]hough the attorney for the sovereign must prosecute with earnestness and vigor, he must always be faithful to his client's overriding interest that 'justice shall be done.'" United States v. Agurs, 427 U. S. 97, 110-111 (1976).1 When the motion to dismiss the information was made, the court ruled: "Well, since I have had no opportunity to study this at all, I will deny the motion at this time, but at my first opportunity I will check your citation and give consideration as appears to be warranted." App. 9. Less than two hours thereafter the court recessed for 15 minutes and dismissed the information with the following comment: "As much as I dislike doing so, I have no alternative but to grant your original motion of dismissal and the charge is dismissed. I don't know who drafted it, but I can tell you if a law clerk of mine out of law school drafted something like that, I would send him back for a refresher course. 1 "A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process." Barker v. Wingo, 407 U. S. 514, 527 (1972) (footnotes omitted). 23 MARSHALL, J., dissenting You may carry that complete message back to your department." Id., at 14. Can there be any doubt that if the 15-minute recess had been taken at the beginning of the trial the motion would have been granted before jeopardy attached? 2 Since petitioner was needlessly placed in jeopardy twice for the same offense over his objection, I would reverse his conviction. 2 Since this was a bench trial without a jury there was not even a need to call a "recess"; the Judge could have postponed the taking of testimony for 15 minutes. Decree 432 U.S. UNITED STATES v. CALIFORNIA ON JOINT MOTION FOR ENTRY OF A SECOND SUPPLEMENTAL DECREE No. 5, Orig. Decided June 23, 1947, and May 17, 1965-Order and decree entered October 27, 1947-Supplemental decree entered January 31, 1966-Second supplemental decree entered June 13, 1977 Joint motion for the entry of a second supplemental decree is granted and such decree is entered. Opinions reported: 332 U. S. 19, 381 U. S. 139; order and decree reported: 332 U. S. 804; supplemental decree reported: 382 U. S. 448. The joint motion for entry of a second supplemental decree is granted. SECOND SUPPLEMENTAL DECREE For the purpose of identifying with greater particularity parts of the boundary line, as defined by the Supplemental Decree of January 31, 1966, 382 U. S. 448, between the submerged lands of the United States and the submerged lands of the State of California, it is ORDERED, ADJUDGED AND DECREED that this Court's Supplemental Decree of January 31, 1966, be, and the same is hereby, further supplemented as follows: 1. Closing Lines Across Entrances to Bodies of Inland Waters a. The inland waters of the following bodies of water are enclosed by straight lines between the mean lower low-water lines at the seaward ends of the jetties located at their mouths: 1. Humboldt Bay 2. Port Hueneme 4. Agua Hedionda Lagoon b. The inland waters of San Francisco Bay are those enclosed by a series of straight lines from the southwestern head of Point Bonita (37°48′56′′'N, 122°31' 44"W); thence to the western edge of an unnamed island immediately to the south (37°48′55''N, 122°31′44.2′′W); thence southward to the western edge of a second unnamed island (37°48′53′′N, 122°31'44"W); thence southward to the western edge of a third unnamed island (37°46′57′′N, 122°30′52''W); thence to a western head of Point Lobos (37°46′53′′N, 122°30′49′′W). The length of this closing line is 2.18 nautical miles. c. The inland waters of Bodega-Tomales Bay are those enclosed by a straight line drawn from Bodega Head (38° 17'53.8''N, 123°03′25.3''W); thence to the western edge of an unnamed island northwest of Tomales Point (38° 14′28.4′′N, 122°59'41.5''W); thence southward to Tomales Point (38°14'26.5''N, 122°59'39''W). d. The closing lines delineated in the foregoing paragraph are part of the coastline of California. The foregoing is without prejudice to the right of either party to assert or deny that other closing lines are part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act, 67 Stat. 29, as amended. 2. Artificial Extensions of the Coastline The mean lower low-water line along each of the following structures is part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act: a. The Morro Bay breakwater e. The Channel Islands Harbor breakwater k. The Redondo Beach breakwater 1. Two harbor jetties at Newport Bay m. The Dana Point breakwater n. The Oceanside breakwater o. Two harbor jetties at entrance to Mission Bay The foregoing is without prejudice to the right of either party to assert or deny that other artificial structures are part of the coastline of California for purposes of establishing the Federal-State boundary line under the Submerged Lands Act. 3. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises. |