Mr. Justice GOLDBERG, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
I would affirm the District Court's holding, 216 F.Supp. 850, that under our decision last term in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, the Double Jeopardy Clause of the Fifth Amendment protects Tateo against reprosecution. The Court today departs from Downum and in so doing substantially weakens the constitutional guarantee. Downum was correctly decided and deserves a life longer than that accorded it by the decision today. Rather than making any real effort to distinguish Downum, the Court limits it to its particular facts and reaffirms, indeed extends, the doubtful holding of the narrow majority in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 -a holding which, in my view, departs from Downum's more hospitable attitude toward the 'policy of the Bill of Rights * * * to make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice.' Gori v. United States, supra, 367 U.S. at 373, 81 S.Ct. at 1528 (Douglas, J., dissenting). A comparison of the facts and rationale of Downum with those here reveals that this case calls more loudly than Downum for protection against double jeopardy.
In Downum, on the morning th case was called for trial both sides announced ready. A jury was selected, sworn, and instructed to return at 2 p.m. When it returned the prosecution asked that the jury be discharged because its key witness on two counts of the indictment was not present-a fact discovered by the prosecutor only during the noon recess. It was not contended that the failure to secure the attendance of this witness was in any way deliberate or based upon the prosecutor's conclusion that the impaneled jury was likely to acquit. Instead, the 'jury first selected to try petitioner and sworn was discharged because a prosecution witness had not been served with a summons and because no other arrangements had been made to assure his presence.' Downum v. United States, supra, 372 U.S. at 737, 83 S.Ct. at 1035. In sustaining the claim of double jeopardy as to a retrial commenced two days later, this Court said:
'At times the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him may be subordinated to the public interest when there is an imperious necessity to do so. Wade v. Hunter, supra, 336 U.S. (684), 690, (69 S.Ct. (834), 837-838, 93 L.Ed. 974). Differences have arisen so as to the application of the principle. See Brock v. North Carolina, 344 U.S. 424 (73 S.Ct. 349, 97 L.Ed. 456); Green v. United States, 355 U.S. 184, 188 (78 S.Ct. 221, 223-224, 2 L.Ed.2d 199). Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches. Gori v. United States, supra, 367 U.S. 369 (81 S.Ct. 1526-1527, 6 L.Ed.2d 901). But those extreme cases do not mark the limits of the guarantee. The discretion to discharge the jury before it has reached a verdict is to be exercised 'only in very extraordinary and striking circumstances,' to use the words of Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. 622, 623. For the prohibition of the Double Jeopardy Clause is 'not against being twice punished, but against being twice put in jeopardy.' United States v. Ball, 163 U.S. 662, 669 (16 S.Ct. 1192, 1194, 41 L.Ed. 300).' Id., 372 U.S. at 736, 83 S.Ct. at 1034.
'We resolve any doubt 'in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion." Id., 372 U.S. at 738, 83 S.Ct. at 1035.
The Court thus held that Downum could not be reprosecuted, since, by virtue of prosecutorial neglect, he was denied his constitutional right to have the impaneled jury hear and decide his case.
In the present case, after four days of trial, the trial judge, as he put it at the time of sentencing, told defendant's counsel:
'* * * (If he is convicted) by the jury I (intend) to give (him) the absolute maximum sentence, a life sentence plus all of these years to follow the life sentence.
'If anybody wonders how one can serve a sentence after he has served a life sentence, it is very simple, because in a life sentence you are eligible for parole in fifteen years; but with a sentence to follow a life sentence, you are not eligible for parole on the life sentence, and you have to stay in jail for the rest of your life.'
As a result of this coercion by the trial judge, Tateo entered a plea of guilty and was sentenced to imprisonment for 22 years and 6 months.