395 U.S. 784 (1969)
In August 1965, petitioner was tried in a Maryland state court on charges of burglary and larceny.1 The jury found petitioner not guilty of larceny but convicted him on the burglary count. He was sentenced to ten years in prison.2
Shortly after his notice of appeal was filed in the Maryland Court of Appeals, that court handed down its decision in Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 (1965).3 In Schowgurow the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God.4 As a result of this decision, petitioner's case was remanded to the trial court.5 Because both the grand and petit juries in petitioner's case had been selected under the invalid constitutional provision, petitioner was given the option of demanding re-indictment and retrial.6 He chose to have his conviction set aside, and a new indictment and new trial followed.7
At this second trial, petitioner was again charged with both larceny and burglary.8 Petitioner objected to retrial on the larceny count, arguing that because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense.9 The trial judge denied petitioner's motion to dismiss the larceny charge, and petitioner was tried for both larceny and burglary.10 This time the jury found petitioner guilty of both offenses, and the judge sentenced him to fifteen years on the burglary count and five years for larceny, the sentences to run concurrently.11
On appeal to the Maryland Court of Special Appeals, petitioner's double jeopardy claim was rejected on the merits. 1 Md. App. 647, 232 A. 2d. 541 (1967).12 The Court of Appeals denied discretionary review.13 On the last day of last Term, the Supreme Court granted certiorari, limited to the consideration of whether the double jeopardy clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment and whether the petitioner was twice put in jeopardy in this case.14 After oral argument, the Court scheduled the case for reargument on the additional question of the continuing validity of the concurrent sentence doctrine.15
Whether the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment?16
The Double Jeopardy Clause of the Fifth Amendment is a fundamental ideal in our constitutional heritage that should be enforced against the States through the Fourteenth Amendment, overruling Palko v. Connecticut.17
Yes. The approach taken in Palko v. Connecticut has been rejected in a series of cases beginning with Mapp v. Ohio.18 The Court held in Duncan v. Louisiana that fundamental guarantees of the Bill of Rights should be enforced against the States according to their original meaning.19 The prohibition against double jeopardy is deeply ingrained in the Anglo-American system of jurisprudence.20
The State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.21 This principle is part of the notion of ordered liberty embodied in the Fourteenth Amendment.22 Applying the rule to the established facts, the petitioner was tried in a Maryland state court, so the Clause applies to bar the second trial on larceny after acquittal at the first trial.23
The Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment.24
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Joined by Justice Stewart
Justice Harlan dissented from the Court’s decision to overrule Palko v. Connecticut.25 In his view the Double Jeopardy Clause of the Fifth Amendment is not applicable to the States.26 The Fourteenth Amendment does not incorporate all guarantees of the Bill of Rights.27
The test is whether a particular guarantee is fundamental to the American scheme of justice.28 The right not to be tried twice for the same offense is not such a fundamental right.29 The States should be free to develop their own rules of criminal procedure so long as they do not violate fundamental fairness.30
He would affirm the judgment of the Maryland Court of Appeals.31
Whether the petitioner was twice put in jeopardy when the State retried him on the larceny count after the first jury had acquitted him of that offense?
Once a defendant is acquitted of an offense, the Double Jeopardy Clause prohibits a second trial for that offense even if the first trial was affected by a constitutional defect in jury selection.32
Yes. Petitioner was acquitted of larceny at his first trial.33 The Double Jeopardy Clause clearly prohibits a second trial for that offense.34 The State does not seriously contend otherwise.35
The fact that the first jury was selected in an unconstitutional manner does not alter the result.36 The Government cannot allege its own error to deprive the defendant of the benefit of an acquittal by a jury.37 Applying the rule to the established facts, the first jury found petitioner not guilty of larceny.38 He was forced to face retrial on that count after choosing to set aside his burglary conviction due to the unconstitutional jury.39
The second jury convicted him of larceny, which violates the Clause.40 The larceny conviction at the second trial must therefore be reversed.41
Petitioner's larceny conviction must be reversed because the first jury's verdict of acquittal barred a second trial for that offense.42
Related opinions on this issue
Justice Stewart agreed with Justice Harlan that the Double Jeopardy Clause is not applicable to the States.43 He also believed that even if it were, the second trial in this case did not violate the Clause.44 The first jury was selected unconstitutionally.45
The defendant was not placed in jeopardy at the first trial because the jury was not lawfully constituted.46 Therefore, the second trial did not constitute double jeopardy.47 He would affirm the judgment below.48
Whether the concurrent sentence doctrine bars this Court from reaching the double jeopardy claim on the larceny conviction?49
The concurrent sentence doctrine is not a jurisdictional bar to consideration of challenges to multiple convictions even though concurrent sentences were imposed. Special circumstances may make it inappropriate to apply the doctrine as a rule of convenience.50
No. The existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy.51 This is because of the possibility of adverse collateral consequences such as use in habitual offender statutes or to impeach character.52 The Court finds good reason not to apply the doctrine here.53 The Maryland Court of Special Appeals ruled on the double jeopardy challenge.54
The state courts decided not to apply the concurrent sentence rule.55 The status of the burglary conviction remains in doubt.56 Applying the rule to the established facts, petitioner received concurrent sentences on burglary and larceny.57 Yet the possibility that the larceny conviction could be used against him in future proceedings gives the case an adversary cast.58
The state courts themselves reached the federal constitutional question, so the Court reaches the double jeopardy issue.59
The concurrent sentence doctrine does not bar this Court from reaching the double jeopardy claim on the larceny conviction.60
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Justice White agreed with the Court's extension of the prohibition against double jeopardy to the States.61 He agreed with the conclusion that the concurrent sentence rule constitutes no jurisdictional bar.62 He added that in a time of increasingly congested judicial dockets judicial resources have become scarce.63
Where a man has been convicted on several counts and sentenced concurrently, the need for review of the other counts is not a pressing one.64 The prisoner will remain in jail for the same length of time under the count upheld.65 The concurrent sentence rule should be preserved as a matter of proper judicial administration both on direct appeal and collateral attack.66
At least in theory it raises questions concerning the subsequent effects of the unreviewed counts.67
Whether the burglary conviction must be reversed because the first jury was selected in an unconstitutional manner?68
When a conviction is obtained by a jury selected in an unconstitutional manner, the State has the burden of showing that the unconstitutional method did not affect the verdict, and failure to meet that burden requires reversal.69
Yes. The first jury that convicted petitioner of burglary had been selected under the unconstitutional provision of the Maryland Constitution requiring jurors to swear their belief in the existence of God.70 The State bears the burden of demonstrating that this constitutional defect in jury selection did not affect the verdict on the burglary charge.71 Because the State has failed to carry that burden, the burglary conviction obtained by the unconstitutionally selected jury must be reversed.72
Petitioner's burglary conviction is reversed because the State has not shown that the unconstitutional jury selection method did not affect the verdict on the burglary charge.73