
    STATE OF MONTANA ex rel., Jerry Paul FORSYTH, Petitioner, v. DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT, State of Montana, In and For the County of Flathead, The Honorable Michael H. Keedy, Judge presiding, Respondent.
    No. 84-415.
    Submitted on Briefs Oct. 23, 1984.
    Decided Jan. 3, 1985.
    On petition for Reconsideration, July 2, 1985.
    701 P.2d 1346.
    
      MR. JUSTICE SHEEHY dissented and filed opinion in which MR. JUSTICES MORRISON and SHEA joined, and filed a supplemental dissenting opinion on rehearing in which MR. JUSTICE HUNT concurred.
    MR. JUSTICE MORRISON dissented on rehearing and filed opinion.
    Robert S. Keller, Kalispell, for petitioner.
    Mike Greely, Atty. Gen., Helena, Clay Smith, argued, Asst. Atty. Gen., Helena, Ted 0. Lympus, County Atty., Kalispell, for respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Jerry Paul Forsyth (Forsyth) was charged with deliberate homicide in Flathead County District Court for allegedly killing his wife, Karen Forsyth, on December 11, 1979. Forsyth has filed a petition for a writ of supervisory control claiming jury tampering and prosecutorial misconduct in a previous trial which is claimed to warrant dismissal of the proceeding, denial of speedy trial and error of the District Court in ordering a change in the place of trial. We decline jurisdiction of the petition for supervisory control.

The issues raised in the petition are:

1. Was Forsyth denied a speedy trial?

2. Has jeopardy attached because of jury tampering or prosecutorial misconduct?

3. Does prosecutorial misconduct in this case constitute a deprivation of due process sufficient to warrant dismissal of the criminal proceeding?

4. Did the district court err in ordering a change in the place of trial?

On January 28, 1980, Forsyth was charged with deliberate homicide. The first trial was held in Flathead County during March and April 1980 and resulted in Forsyth’s conviction. That conviction was reversed by this Court in State v. Forsyth (1982), 197 Mont. 248, 642 P.2d 1035. Forsyth’s second trial commenced in Lake County on December 1, 1982, and a mistrial because of jury deadlock was declared by the district court on January 2, 1983.

Following the second trial, various motions and orders were made with regard to the furnishing of a partial and complete transcript. Forsyth petitioned this Court for supervisory control regarding appointment of counsel. On May 11, 1983, this Court held there was no showing sufficient to warrant supervisory control. Forsyth then asked for a hearing on availability of public defender firms to represent him. That hearing was held on June 22, 1983, and resulted in the appointment of public defenders as counsel. Forsyth petitioned this Court a second time for a writ of supervisory control and on October 6, 1983, the writ was granted and Forsyth’s present counsel was appointed at public expense.

On November 14, 1983, the district court set a tentative trial date for February 1984. At a conference in December 1983 Forsyth renewed motions for evidentiary hearings on jury tampering and prosecutorial misconduct. Evidentiary hearings were held as requested by Forsyth and on April 24, 1984, the district court denied the motion to dismiss for double jeopardy and lack of due process predicated upon jury tampering and prosecutorial misconduct. On May 10, 1984, Forsyth moved to dismiss for lack of a speedy trial, but his motion was denied on May 23, 1984.

On June 6, 1984, the trial court ordered that the trial be held in Flathead County with a jury selected in Toole County. The court set a trial date of October 1, 1984. Forsyth again moved the court to dismiss for lack of a speedy trial. The district court denied this motion on July 13, 1984. Forsyth then advised the district court of his intent to file a third petition for supervisory control and the district court then vacated the October 1, 1984, trial date.

I

In view of the number of requests for supervisory writs in this action, it is appropriate that we review the fundamental standards for assumption of supervisory control. Under Article VII, Section 2(2), Montana Constitution, this Court has general supervisory control over all courts. Rule 17, M.R.App.Civ.P. describes the procedure for original writs and in part states:

“The Supreme Court is an appellate court but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the Supreme Court is sometimes justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy . . .”

In view of the substantial increase in applications for supervisory control in recent years, it is also appropriate to restate the basic standards guiding acceptance of original jurisdiction by this Court, as stated in State ex rel. O’Sullivan v. District Court (1946), 119 Mont. 429, 431-432, 175 P.2d 763, 764:

“[S]upervisory control is an extraordinary remedy, to be exercised only in extraordinary circumstances. We have said . . . that to justify such a writ an exigency or emergency must be shown to exist, or that a gross injustice would result from a denial of the writ, and the absence of other adequate relief .... ‘As the appellate jurisdiction was granted for the purpose of revision and correction, and the original jurisdiction under these writs was granted to enable us to render such relief as is appropriate under them, so the supervisory power was granted to meet emergencies to which those other powers and instrumentalities are not commensurate. It is independent of both, and was designed to infringe upon the functions of neither. It has its own appropriate functions, and, without undertaking to define particularly what these functions are, we think one of them is to enable this court to control the course of litigation in the inferior courts where those courts are proceeding within [their] jurisdiction, but by mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal or the r.emedy by appeal is inadequate ....”’ [Citation omitted.]

In 1902, this Court pointed out that an application for supervisory relief must establish more than simple error, otherwise, the writ “would lie to correct each and every mistake of district courts, and in great measure supplant the ordinary appeal.” State ex rel. Harris v. District Court (1902), 27 Mont. 280, 282, 70 P. 981, 982. These basic principles regarding assumption of supervisory control are embodied in Rule 17, M.R.App.Civ.P., which requires that an applicant establish circumstances of an emergency nature, as when a cause has arisen under conditions making consideration at the trial level and appeal to this Court an inadequate remedy.

We will now review the record in this case to determine whether there are extraordinary facts which warrant issuance of a supervisory writ.

II

Because the facts relevant to all four issues are intertwined we will first review the facts in general.

Bailiff’s Juror Communications

The bailiff during the second trial as well as eight regular jurors and two alternate jurors testified at an April 5, 1984, hearing before the district court regarding the bailiff’s oral communications with the jury. Forsyth relied on the following improper comments made by the bailiff to various jurors in substance as follows: that the bailiff could say one word and this would be all over with; that a prosecution witness had nearly blown it at the first trial and that the jury should see her medicine cabinet; during a recess from cross-examination by Forsyth’s counsel, the bailiff commented that “we can sure tell who is getting paid by the hour”; that the trial had already cost $6,000, a comment made when handing out checks to the jurors; that all of the jurors should stay together while looking at the crime scene in order that nothing would happen which could justify a retrial; the bailiff advised the jurors after lengthy conferences between counsel and the court that the county attorney, defendant’s attorney and the trial judge would explain the reasons for the conferences; the bailiff identified the victim’s parents to several jurors; and a comment to the jury regarding the length of jury deliberation in the prior trial, and that in the present trial the jurors could anticipate a conclusion in time for a happy new year.

In its order of April 24, 1984, the district court found that at no time during the trial did the bailiff discuss with any juror the merits of the case from either party’s standpoint, nor did he express to any of the jurors his opinion or expectations with regard to a proper verdict or outcome; that the bailiff was not present during and did not participate in jury deliberations; with the possible exception of an assurance that counsel would meet and respond to their questions after the trial, none of the incidents were discussed by the jurors in their deliberations, nor did any of the bailiff’s comments or conduct influence the jury’s deliberations or effect their verdict; that the jurors who filed affidavits complaining of the incidents testified that they concluded that the defendant was not guilty and unwaiveringly followed that conclusion through the course of deliberation; and the jurors who filed affidavits stating that the bailiff had been too friendly in conversation acknowledged that nothing in his behavior had influenced their view of the case or their votes in deliberations. As a result, the district court concluded that none of the actions complained of was motivated by a desire or attempt by the bailiff to influence the jurors’ perception of the trial or to affect the jury’s deliberations or decision-making, and that none of the bailiff’s comments influenced the attitude, perception or ultimate judgment of any juror.

Prosecutorial Misconduct

The only witnesses on this issue at the district court hearing were Forsyth’s principal attorney and the Flathead County Attorney. Their testimony addressed the circumstances surrounding the filing of the accountability and obstruction of justice complaint against Gary Red Elk on November 24, 1982, one week before the second trial began. Counsel for Forsyth spends many pages reviewing in detail the testimony of these witnesses. Rather than restating this testimony, we will review the District Court’s findings of fact. The court found that the state filed a complaint against Gary Red Elk charging him with accountability for deliberate homicide, a felony, and obstruction of justice, also a felony. The district court also found that the information and allegations in support of its complaint were a result of an interview in Great Falls between two Kalispell police officers and the state’s principal witness, Mr. Richards. At that time, Mr. Richards admitted that he had not been entirely candid with the police in respect to Red Elk’s knowledge of the offense and had informed the chief investigator that Red Elk had assisted Forsyth in planning and committing the offense and that he had obstructed the police department investigation. The district court found that the County Attorney confronted Red Elk, a former police officer, with the allegations mentioned and offered to allow him to deny or explain them as a part of a polygraph examination; that Red Elk did take a polygraph examination which suggested deception on his part with respect to these allegations; and that during the second trial, Red Elk was called as a witness and was granted transactional immunity when ordered by the judge to testify. Following the trial the charges against Red Elk were dismissed. At the December 1,1983, hearing of Forsyth’s motion to dismiss because of the claimed prosecutorial misconduct, the district court granted the defense counsel an opportunity for a continuance to obtain other evidence, but Forsyth’s counsel declined the opportunity.

Based upon these facts, the district court concluded that the complaint against Red Elk and his arrest were supported by probable cause; that nothing in the record suggested that the state deliberately timed or maneuvered the filing of the charges against Red Elk in an attempt to prejudice Forsyth’s right to a fair trial; that the charges pending against Red Elk had no connection with the jury’s eventual inability to reach a verdict and did not affect Forsyth’s right to a fair trial. Based upon these conclusions regarding prosecutorial misconduct and the court’s conclusions regarding jury tampering, the district court denied Forsyth’s motion to dismiss.

Speedy Trial

Forsyth moved for dismissal for lack of speedy trial on May 4, 1984, and July 11, 1984, and the motions were denied. These motions were decided with reference to events which occurred after completion of the second trial in January 1983. The record indicates that the following factual disputes were the primary problems giving rise to the speedy trial issue: requested dismissal of the proceedings because of the bailiff’s comments to the jury and prosecutorial misconduct; a request that the transcript of the entire second trial be provided to Forsyth at state cost; a request that Forsyth continue to be represented by his present counsel rather than regular public defender; and the issue of whether a third trial should be held. It is important to note that the first three of these points were also the subject of prior petitions for writs of supervisory control before this Court.

The district court’s order of May 23, 1984, contained findings of fact which are summarized as follows: following the original conviction of Forsyth in 1980, its reversal in 1983 and the subsequent trial ending in an inability to agree upon a verdict, Forsyth has been at liberty and available on a continuing basis to assist counsel in preparation of a defense; the record does not disclose that Forsyth has been chastised or outcast by friends or family members or that he has otherwise suffered abnormally as a result of the charges; no attempt has been made by Forsyth to demonstrate actual prejudice; there is no evidence to support Forsyth’s contention that the state has consciously or deliberately attempted to delay trial or otherwise prejudice his rights; on the contrary, that the chronology of events since January 1983 demonstrates that virtually the entire lapse of time about which Forsyth has complained is directly attributable to Forsyth himself; following a succession of petitions for supervisory control by the defendant, the district court entered orders requiring a portion of the transcript to be furnished, and subsequently additional portions; the District Court considered Forsyth’s contentions that evidentiary hearings on the allegations of jury tampering and prosecutorial misconduct were necessary; and the District Court ultimately ordered the balance of the transcript. The court’s findings generally accounted for all time delay up until the hearing on the motions for dismissal. The district court concluded that the passage of time from the most recent trial commencing in December 1982 is sufficient to prompt a speedy trial inquiry; that the motion constitutes an assertion of defendant’s right to a speedy trial but represents the first and only significant occasion upon which Forsyth has expressed any genuine concern as to speedy trial; that the state has not interposed motions or other actions for the purpose of delay but has been diligent in preparing for trial; that the delays of which Forsyth now complains were necessitated almost exclusively by the defense counsel’s vigorous, spirited and occasionally protracted defense and are therefore not chargeable to the state; that no prejudice to the defendant will be presumed and that the defendant has failed all together to demonstrate any impairment of his right to a fair trial as a result of the delay; and that it would have been premature and unjust for the district court to conduct a trial of the matter prior to considering and ruling upon Forsyth’s several motions all of which were related to the selection, adequacy and compensation of counsel, opportunity to prepare a comprehensive defense or request for dismissal of charges. Based upon all of the foregoing, the district court denied the defendant’s motion to dismiss.

Place of Trial

On December 23, 1983, the state filed a motion for change of place of trial and on June 6, 1984, the district court ordered that trial be held in Flathead County before a jury selected in Toole County. While Forsyth makes an extensive argument with regard to the reasons for change of place of trial originally from Flathead County to Lake County, there are no facts in the record to demonstrate prejudice under the procedure ordered by the court, that being the impaneling of a jury in Toole County which is not an adjacent county, and the actual trial in Flathead County.

Ill

Has Forsyth Been Denied Speedy Trial?

Forsyth has failed to demonstrate an emergency which warrants acceptance of original jurisdiction under Rule 17, M.R.Civ.P. This issue may be raised on appeal to this Court in the event of conviction. We conclude that there is no basis for supervisory control on this issue.

IV

Has Jeopardy Attached Because of Jury Tampering or Prosecutorial Misconduct?

This Court has previously held that the refusal by a district court to dismiss criminal charges on a double jeopardy claim does not warrant supervisory control, as the remedy for a criminal defendant lies in an appeal following conviction or in a post-conviction proceeding. State ex rel. LaFlesch v. District Court (1974), 165 Mont. 302, 306, 529 P.2d 1403, 1405.

Forsyth has presented no facts justifying supervisory control on this issue under Rule 17. We decline to rule on whether jeopardy has attached because of jury tampering or prosecutorial misconduct. This issue may be raised on appeal in the event of conviction.

V

Was Prosecutorial Misconduct a Deprivation of Due Process Sufficient to Warrant Dismissal of the Criminal Proceeding?

The record does not disclose facts warranting supervisory control on this issue. Such a remedy is warranted only where there is an emergency which renders appeal an inadequate remedy. In reaching this conclusion we do not rule on the ultimate issue, which may be raised in this Court on appeal in the event of conviction.

VI

Did the District Court Err in Ordering a Change of Place of Trial Back to Flathead County?

Again, the record is devoid of facts to suggest a reason for the exercise of supervisory control on this issue. There is little in the record to suggest that the trial in Flathead County with a jury chosen in Toole County would not result in a fair trial. We conclude that supervisory control is not warranted in this issue.

Our study of the record indicates that the district court carefully analyzed and addressed the issues raised by Forsyth. We find nothing in the record to suggest that injustice would result from a denial of supervisory relief. Forsyth has failed to demonstrate that any emergency exists which renders appeal an inadequate remedy. We decline jurisdiction of defendant’s petition for supervisory control.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent. We should grant supervisory control and make a final determination in this cause as to whether Forsyth is receiving a speedy trial, whether he was prejudiced by the actions of the bailiff in the prior trial, and whether the District Court improperly changed the place of trial.

It had already been established in this case that Flathead County was not a place where a defendant could receive a fair trial. Because of that determination, the cause had been transferred to Lake County, where the second trial against Forsyth was held. After the hung jury occurred, a new district judge retransferred the case to Flathead County and ordered that a jury from Toole County be brought in to hear the case. There is no suggestion that the trial jury will be sequestered when it is brought into Flathead County.

The majority brush this very substantial issue off the table by stating that “we find nothing in the record to suggest that injustice would result from a denial of supervisory relief.” That statement is true. It is equally true that the majority could find nothing in the record to suggest that justice would result from a denial of supervisory relief. The reason is that the District Court made no findings, had no evidence before it that a fair trial could result in Flathead County with an imported jury. The decision to import the jury to Flathead County was made by the District Court on its own, following a suggestion made without record support by the prosecution.

The statutory authority under which the District Court is presuming to act seems to indicate that a jury may only be imported to the county where the action is pending. Section 46-13-203(3)(b), MCA, states:

“(b) Direct that a jury be selected in any county where a fair trial may be had and then return to the county where the prosecution is pending to try the case . . .”

The following subsection of the same statute, sec. 46-13-203(3)(c), MCA, allows the court to take “any other action designed to insure that a fair trial may be had.” What is utterly lacking in the record before us is evidentiary support that the action of the court in re-transferring the cause to Flathead County with an imported jury is designed to insure that a fair trial may be had.

No one, not any justice of this Court, any district judge, or any attorney involved in this case, could reasonably now assert that Flathead County, in itself could provide defendant a fair trial. The very fact that the District Court ordered an imported jury for Flathead County emphasizes the poisoned atmosphere in the county. There may be ways to insulate the imported jury from that atmosphere, but nothing in the record suggests how it may be done. There is a complete lack of proof that the imported jury is “designed to insure that a fair trial may be had.”

JURY TAMPERING

The bailiff during the second trial was Clarence Bourne. He made 10 improper comments in the presence of the jurors while the trial was in progress. The District Court whitewashed the improper statements of the bailiff on the irrelevant ground that the bailiff was not motivated by a desire or attempt to influence the jurors’ perception of the trial or to effect their deliberations; and the District Court further, having divined in some manner the judgmental operations of the minds of the jurors found that none of the bailiffs’ comments influenced the attitude, perception or ultimate judgment of any juror.

Although the majority opinion states that Forsyth “contended” that improper comments had been made, the record shows clearly that the improper comments were in fact made by the bailiff.

1. Following the testimony of Debbi Neff, a former girlfriend of Forsyth, the bailiff told members of the jury that she must have been drugged to testify, that “you should see in her medicine cabinet,” implying that she was a drug abuser, and that she had nearly “blown it” at the first trial.

2. On another occasion during the trial, he told members of the jury “I can say just one word and it would remove all doubt from your mind.”

3. While the court and counsel were in chambers during the course of the trial, and the jurors were curious about what was going on in chambers, the bailiff stated that the county attorney, or the county attorney and defense counsel, or that the judge and the attorneys would come in after the trial “and tell you all the things you didn’t get to know during the trial and he would answer your questions.” One of the jurors stated that she feared during deliberations that if she voted not guilty and then the county attorney came in and told her about important evidence which had been suppressed, she was concerned that she may have voted the wrong way.

4. The bailiff informed members of the jury that his son was a member of the Kalispell police department which was involved in the prosecution of the action against Forsyth.

5. During the lengthy days’ long cross-examination of the State’s principal witness by defense counsel, the bailiff made the remark on several occasions to members of the jury “we know who is getting paid by the hour,” imputing deliberate delay to defense counsel.

6. During the trial, when distributing to the jurors their first expense checks, the bailiff told the jury that the cost of the trial to the State had already reached $6,000.

7. The bailiff pointed out to the jurors the parents of the victim who were seated in the courtroom.

8. When the jurors went to the scene of the crime, they were told to stay together because “they were afraid that something would happen or some comment would be made that they would get a retrial.”

9. The jurors wanted to send a Christmas gift to one of the witnesses, Norman Calvert, and Bourne volunteered to ask his son, as a member of the Kalispell Police Department to insure that Calvert received it.

10. The jury began deliberating the case after it was submitted to it on New Year’s Eve, December 31, 1982. Bourne told the jury that the Flathead County jury in the earlier case had deliberated for approximately 8 hours and that therefore the jurors in this case might anticipate reaching a conclusion in time for a “Happy New Year”.

That is the record on which the majority find “substantial evidence to support the District Court’s findings” and decline to issue supervisory relief.

SPEEDY TRIAL

From January 2, 1983, the date of the hung-jury decision, to September 24, 1984, the date when petitioner filed his application for a writ in this Court for supervisory control, 631 days have elapsed. In a Janus-like decision (the Roman God who faced both ways), the majority declines to rule on the sufficiency of evidence to prove a denial of speedy trial, but finds from its review of the record that there is substantial evidence to support the findings of fact and conclusions of law of the District Court that Forsyth has not been denied a speedy trial. Particularly the Court finds no “emergency” which would warrant the acceptance of this cause for supervisory relief.

Following the hung-jury trial, the defendant, having become indigent, moved the District Court (1) for a transcript of the hung-jury trial, and (2) for the appointment by the Court at public expense of his attorneys Keller and Gilmer (now Keller and German) to further represent him. The District Court insisted on appointing the two public defenders of Flathead County instead of the firm that had taken Forsyth through two homicide trials.

On the issue of his right to effective assistance of counsel, Forsyth petitioned this Court in cause No. 83-129 that the District Court be overruled and that the Keller firm be continued as his attorneys. That petition was filed March 17, 1983. About 112 days later, on July 7, 1983, this Court denied Forsyth relief.

Following our order denying relief, it developed that the county defenders did in fact have a conflict of interest and could not represent Forsyth. The District Court could not be moved however, and so Forsyth filed a second petition for supervisory relief, in cause No. 83-403. In that case, we determined that he was in fact entitled to effective assistance of counsel and directed the District Court to appoint the Keller firm to represent Forsyth. The petition in cause No. 83-403 was filed on August 29, 1983. The decision of this Court went down on October 31, 1983, 63 days later.

With respect to the transcript, following the hung-jury trial, the defense counsel moved for a full transcript of the hung-jury trial, except for those portions of the testimony that had gone in by deposition. The District Court on November 14, 1983, ordered a partial transcript of the hung-jury trial, restricted to the testimony of the defendant and the testimony of the State’s witnesses. On January 13, 1984, the trial judge on motion of Forsyth, ordered the remainder of the transcript to be furnished to Forsyth.

The right to a speedy trial is guaranteed both by the state and federal constitutions. The right to due process is guaranteed both by the state and federal constitutions. Without a proper transcript of the 1982 trial, Forsyth would have been deprived of due process without doubt, if he were convicted in a third trial. In order to procure effective assistance of counsel, it was necessary for him twice to come before this Court for supervisory relief. In effect, he was enforcing his right to constitutional guarantees which had been denied him by the District Court and by the prosecution. The time that the defendant has spent in defending himself from the improper actions of the District Court and the prosecution are being charged against him now in considering the speedy trial issue. The sop to Forsyth that he can raise this issue again on appeal if convicted is transparent. The majority finding that substantial evidence supports the District Court’s findings on the speedy trial issue is a harbinger of things to come.

RIGHT TO SUPERVISORY CONTROL

The majority opinion is careful to state that in order to provide supervisory relief, the petitioner must show circumstances of an emergency nature, making consideration of errors the trial level through an appeal to this Court an inadequate remedy. On the issue of jury tampering, on the issue of speedy trial, on the issue of change of place of trial, as presented in this case, I can imagine no weightier case coming before this Court. I would issue a writ of supervisory control, and decide the issues presented in this cause after oral argument.

MR. JUSTICES MORRISON and SHEA join in the foregoing dissent.

ON PETITION FOR RECONSIDERATION

MR. CHIEF JUSTICE WEBER:

The trial of defendant Jerry Paul Forsyth in the Lake County District Court on a charge of deliberate homicide resulted in a mistrial because of jury deadlock. Defendant filed a petition for writ of supervisory control claiming double jeopardy, denial of speedy trial and error of the District Court in ordering a change in the place of trial. By opinion dated January 3, 1985, this Court declined to take jurisdiction under the petition for writ of supervisory control. Defendant filed a petition for reconsideration, and briefing and oral argument was ordered. We again decline to accept jurisdiction under the petition for supervisory control.

The issues which we will consider in this additional opinion are:

1. Do the Double Jeopardy Clauses of the Montana and United States Constitutions bar retrial of the defendant?

2. Should this Court grant a pretrial review of the speedy trial question?

3. Did the District Court err in ordering a change of place of trial?

The extensive facts of this case are set forth in some detail in our opinion dated January 3, 1985 and will not be restated here, except to the extent necessary to explain our analysis of the legal issues.

I

Do the Double Jeopardy Clauses of the Montana and United States Constitutions bar retrial of the defendant?

Defendant argues that the double jeopardy provisions of the Montana and Federal Constitutions bar retrial. He contends that the misconduct on the part of the bailiff is chargeable to the State in the same manner as misconduct committed by a prosecutor or a judge.

The State argues that jeopardy was not terminated by the declared mistrial following a jury deadlock. The State further argues that there is no standard which bars retrial under the present facts.

It is first necessary to determine whether there has been any double jeopardy following a mistrial as a result of a hung jury. Richardson v. United States (1984), _U.S__, 104 S.Ct. 3081, 82 L.Ed.2d 242, carefully analyzed the question of whether double jeopardy had resulted in a fact situation similar to the present Forsyth case. In Richardson, the petitioner argued that the judicial declaration of a mistrial was an event that terminated jeopardy and allowed him to assert a valid claim of double jeopardy. The United States Supreme Court stated:

“We think that the principles governing our decision in Burkes, and the principles governing our decisions in the hung jury cases, are readily reconciled when we recognize that the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy ... an event which terminated jeopardy in his case and which allowed him to assert a valid claim of double jeopardy.
“But this proposition is irreconcilable with cases such as Perez and Logan, and we hold on the authority of these cases that the failure of the jury to reach a verdict is not an event which terminates jeopardy . . . Justice Holmes’ aphorism that ‘a page of history is worth a volume of logic’ sensibly applies here, and we reaffirm the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree.” Richardson, 104 S.Ct. at 3086 (Emphasis added.)

We conclude that in Montana a mistrial following a hung jury, as in the present case, does not terminate the original jeopardy. Defendant argues for an exception to this rule. It is true that Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, sets forth one exception. The Court held in Oregon v. Kennedy that where governmental conduct giving rise to a motion for mistrial was intended to provoke the defendant into moving for a mistrial, then retrial might properly be prohibited. Defendant argues for an even stricter standard as set forth by the Oregon Supreme Court in State v. Kennedy (1983), 295 Or. 260, 666 P.2d 1316.

The transcript demonstrates that the comments on the part of the bailiff were not intended to provoke the defendant to move for a mistrial. We do not in any way approve of this type of comment by a bailiff. However, in the present case, the comments could at most be construed as an attempt to assist the State in obtaining a conviction. No conviction was obtained. The jury was unable to agree and a mistrial was granted. Under the specific circumstances of this case, we conclude that the defendant has not come within the Oregon v. Kennedy exception. We also conclude that the bailiff’s comments were not so offensive as to require a dismissal, and we decline to adopt a standard similar to that of State v. Kennedy.

In a similar manner with regard to the alleged prosecutorial misconduct, we conclude that the record does not demonstrate an attempt by the prosecution to provoke a mistrial. The conduct was ineffective if the aim was to obtain a conviction.

We hold that the Double Jeopardy Clauses of both the Montana and United States Constitution do not bar retrial of the defendant for the following reasons:

1. Because the original jeopardy continued without change following the hung jury and declaration of mistrial, the defendant was not placed in double jeopardy.

2. In addition, the facts do not warrant a conclusion that the defendant presented a colorable double jeopardy claim.

II

Should this Court grant a pretrial review of the speedy trial question?

Defendant in substance contends that the criminal proceedings should be dismissed because he has been denied a speedy trial. Six hundred thirty days had elapsed since the second trial and hung jury. Defendant makes an extensive argument with regard to the various reasons for this extensive delay, arguing that basically all of the delay is chargeable to the State.

The State argues that the delay is largely due to the defendant’s procedural tactics, pointing out that the State has not been independently dilatory. The State makes extensive reference to the order of the District Court of May 23,1984, pointing out that virtually all of the delay was attributable to the defendant’s various motions and supervisory writ proceeding before this Court.

Because we do not conclude that this issue is ripe for review, we will not discuss the facts in detail or attempt to weigh the same.

United States v. McDonald (1978), 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18, contains an extensive discussion of the United States Supreme Court’s reasoning in reaching a conclusion that, before trial, a defendant may not appeal an order denying his motion to dismiss for violation of his Sixth Amendment right to speedy trial. In February 1970, the wife and two daughters of Captain McDonald were murdered in his quarters on a military base. The Army charged McDonald with the murders, but after further investigation, the charges were dismissed and McDonald was honorably discharged. His discharge barred any further military proceedings. After further investigation and almost five years later, a grand jury indicted McDonald on three counts of first degree murder in January 1975.

McDonald sought dismissal of the indictment because he had been denied a speedy trial. The Court concluded that the double jeopardy holding could not be applied to the issue of speedy trial.

“In sharp distinction to a denial of a motion to dismiss on double jeopardy grounds, a denial of a motion to dismiss on speedy trial grounds does not represent ‘a complete, formal and, in the trial court, a final rejection’ of the defendant’s claim. Abney v. United States, 431 U.S. [651] at 659, [97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977)]. The resolution of a speedy trial claim necessitates a careful assessment of the particular facts of the case. As it reflected in the decisions of this Court, most speedy trial claims, therefore, are best considered only after the relevant facts have been developed at a trial.

“In Barker v. Wingo, 407 U.S. 514, [92 S.Ct. 2182, 33 L.Ed.2d 101] (1972), the Court listed four factors that are to be weighed in determining whether an accused has been deprived of his Sixth Amendment right to a speedy trial. They are the length of the delay, the reason for the delay, whether the defendant has asserted his right, and prejudice to the defendant from the delay. Id., at 530. The Court noted that prejudice to the defendant must be considered in the light of the interests the speedy trial right was designed to protect: ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system,’ . . .

“Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative. The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial — when prejudice can be better gauged — would also be denied. Hence, pretrial denial of a speedy trial claim can never be considered a complete, formal, and final rejection by the trial court of the defendant’s contention; . . .

“Even if the degree of prejudice could be accurately measured before trial, a speedy trial claim nonetheless would not be sufficiently independent of the outcome of the trial to warrant pretrial appellate review. The claim would be largely satisfied by an acquittal resulting from the prosecution’s failure to carry its burden of proof. The double jeopardy motion in Abney was separable from the issues at trial ... In contrast, a central interest served by the Speedy Trial Clause is the protection of the fact-finding process at trial. The essence of a defendant’s Sixth Amendment claim in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed.

“. . . Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a ‘right not to be tried’ which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial. If the factors outlined in Barker v. Wingo, supra, combine to deprive an accused of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.” MacDonald, 435 U.S. at 858-61, 98 S.Ct. at 1551-53 (Emphasis added.)

In MacDonald, the court pointed out a speedy trial problem which can result from any form of intermediate appeal.

“Many defendants, of course, would be willing to tolerate the delay in a trial that is attendant upon a pretrial appeal in the hope of winning that appeal. The right to a speedy trial, however, ‘is generically different from any of the other rights enshrined in the Constitution for the protection of the accused’ because ‘there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.’ Barker v. Wingo, . . . Among other things, delay may prejudice the prosecution’s ability to provide its case . . . and prolong the period during which defendants released on bail may commit other crimes . . .

“Allowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely the values manifested in the Speedy Trial Clause. And some assertions of delay-caused prejudice would become self-fulfilling prophecies during the period necessary for appeal.” MacDonald, 435 U.S. at 862, 98 S.Ct. at 1553. (Emphasis added.)

In his diligent representation of the defendant, defendant’s counsel has come before this Court a number of times on petitions for supervisory control. We in turn have taken extensive time to consider the petitions, to hear oral arguments and ultimately to give opinions, some of which granted supervisory control and some of which denied it. All of these proceedings, which are in the nature of an intermediate appeal, have become a part of the great delay which raises the speedy trial issue in this case. This underscores the difficult balancing problem this Court has in considering petitions for supervisory control, while seeking to protect the constitutional right of a speedy trial. Unfortunately, these ideas are in substantial part directly conflicting. However, we conclude that we need not reach a decision on the speedy trial question at this time.

We approve and adopt the reasoning quoted above from MacDonald. We hold that defendant’s claim of a denial of his right to speedy trial is generically different from his claim of double jeopardy. We conclude that the contentions on the part of the defendant that he has been denied a speedy trial cannot be considered until the retrial is held and all of the facts are presented to this Court on appeal. At that time, the issue will be ready for decision. At the present time, the record is not sufficiently complete to allow a decision on the speedy trial issue.

We hold that the defendant is not entitled to supervisory control on his claim of denial of speedy trial.

Ill

Did the District Court err in ordering a change of place of trial?

Defendant argues that he has met a considerable burden in initially obtaining a change of venue from Flathead County to Lake County. As appears from our original opinion, the trial court is granted the discretion to determine the place of trial and the procedures to be followed. In advance of trial, we are not able to determine if local prejudice in Flathead County might have some effect on the retrial. We should not presume in advance that the District Court and the State will not use appropriate procedures to protect the integrity of the jury process from any taint which may be present in Flathead County because of local prejudice. However, for the benefit of the District Court and counsel, we emphasize the need for stringent controls to insulate the trial jury from any local prejudice. We insist that appropriate steps be taken to insure a fair third trial.

We conclude that the District Court-did not err in ordering the change of place of trial.

The petition for supervisory control is denied in all respects.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and GULBRANDSON concur.

MR. JUSTICE MORRISON,

dissenting:

I respectfully dissent. In view of the fact there have been two trials already I would decide the speedy trial issue at this time. Since the issue is reserved by the majority for later review in the event of conviction, I choose not to express myself on the subject at this time.

MR. JUSTICE SHEEHY,

dissenting:

I dissent to the opinion of the majority on rehearing, as I dissented to the original opinion in this case. Because the majority in its decision on rehearing has shifted ground to some extent in its ratio decidendi on the issues presented here, I must again set forth at length my objections to the majority opinion.

The length of this dissent is required in part because of the inadequate discussion of the applicable law in the majority opinion. It is a matter of concern amounting nearly to embarrassment, but not deterrence, to those of us who have differing philosophies of criminal justice and constitutional rights from the majority, that we must resort in dissent to what must appear to the press and the public to be carping over trivialities. Yet these trivialities, as the majority apparently regards them, are of momentous significance to the individuals involved. Here, Forsyth will be subjected to a third trial from which, under our state constitution, he ought to be insulated.

I turn my attention first to the issue of double jeopardy. In its original opinion, the majority refused to grant supervisory control under our state procedure, saying that “the remedy of a criminal defendant lies in an appeal following conviction, or in a post-conviction proceeding.” The majority relied on State ex rel. LaFlesch v. District Court (1974), 165 Mont. 302, 306, 529 P.2d 1403, 1405, to reach that conclusion. The decision of this Court in LaFlesch is invalid now under federal law because of a decision in Abney v. United States (1977), 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651.

In Abney, the United States Supreme Court determined that a pretrial order in the federal district court denying a motion on double jeopardy grounds was reviewable on appeal under federal appellate practice before the defendant could be put to the burden of a second trial, saying:

“However, this Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” 431 U.S. at 660-1, 97 S.Ct. at 2014, 52 L.Ed.2d at 661.

As I said, the majority has now shifted away from its original holding that Forsyth must undergo a second trial and then appeal if he is convicted in order to have the double jeopardy claim reviewed. Instead, in its opinion on rehearing, the majority nimbly jumped to Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 to find that on the jury tampering issue here Forsyth has not brought himself in the exception allowed in Oregon v. Kennedy. Unexplained by the majority is how Oregon v. Kennedy, which applies to prosecutorial malfeasance, applies to jury tampering by a bailiff, a much different situation.

The majority has also shifted its view as to how it will regard the flagrant abuses by the bailiff in this case. In its original opinion here, the majority seemingly agreed with the District Court in concluding that “none of the actions complained of was motivated by a desire or an attempt by the bailiff to influence the jurors’ perception of the trial or to affect the jury’s deliberations of decision-making, and that none of the bailiff’s comments influenced the attitude, perception or ultimate judgment of any juror.”

In their opinion on rehearing however, the majority concludes that the comments of the bailiff “could have at most been construed as an attempt to assist the State in obtaining a conviction,” as if that were permissible.

The comments that the bailiff made to the jury “to assist the State in obtaining a conviction” were these:

1. Following the testimony of Debbi Neff, a former girlfriend of Forsyth, the bailiff told members of the jury that she must have been drugged to testify, that ‘you should see in her medicine cabinet,’ implying that she was a drug abuser, and that she had nearly ‘blown it’ at the first trial.

2. On another occasion during the trial, the bailiff told members of the jury T can say just one word and it would remove all doubt from your mind.’

3. While the court and counsel were in chambers during the course of the trial, and the jurors were curious about what was going on in chambers, the bailiff stated that the county attorney, or the county attorney and defense counsel, or the judge and the attorneys would come in after the trial ‘and tell you all the things you didn’t get to know during the trial and he would answer your questions.’ One of the jurors stated that she feared during deliberations that if she voted not guilty and then the county attorney came in and told her about important evidence that had been suppressed, she was concerned that later she would believe she had voted the wrong way.

4. The bailiff informed members of the jury that his son was member of the Kalispell police department which was involved in the prosecution of the action against Forsyth.

5. During the lengthy days’ cross-examination of the State’s principal witness by defense counsel, the bailiff made the remark on several occasions to members of the jury ‘we know who is getting paid by the hour,’ imputing deliberate delay to court appointed defense counsel.

6. During the trial, when distributing to the jurors their first expense checks, the bailiff told the jury that the cost of the trial to the State had already reached $6,000.

7. The bailiff pointed out to the jurors the parents of the victim who were seated in the courtroom.

8. When the jurors went to the scene of the crime, they were told by the bailiff to stay together because ‘they were afraid that something would happen or some comment would be made that they would get a retrial.’

9. The jurors wanted to send a Christmas gift to one of the witnesses, Norman Calvert, and Bourne, the bailiff, volunteered to ask his son, as a member of the Kalispell Police Department to insure that Calvert received it.

10. The jury began deliberating the case after it was submitted to it on New Year’s Eve, December 31, 1982. Bourne told the jury that the Flathead County jury in the earlier case had deliberated for approximately 8 hours and that therefore the jurors in this case might anticipate reaching a conclusion in time for a ‘Happy New Year.’

In their original opinion, the majority found “substantial evidence to support the District Court’s findings” that the bailiff’s remarks had no effect on the trial jury. Now, the majority sees those comments as an inconsequential attempt “to assist in obtaining a conviction.”

I would hold that the remarks of the bailiff to the jurors prejudiced the jury as a matter of law to prevent Forsyth from getting a fair second trial; that the bailiff’s statements are not covered by the decision of the United States Supreme Court in Oregon v. Kennedy, supra; and that under our state constitution the criminal proceedings against Forsyth in this case should now be dismissed on double jeopardy grounds.

No discussion appears in the majority opinion as to whether it is determining the case on federal or state grounds. Because, however, it relies on Oregon v. Kennedy in reaching its decision, I must assume that it regarded the case solely from the viewpoint of the federal constitution without any regard to our state constitution.

The following state constitutional provisions apply to Forsyth in this case:

“Right and justice shall be administered without sale, denial, or delay.” Art. II, Sec. 16.
“No person shall be deprived of life, liberty, or property without due process of law.” Art. II, Sec. 17.
“In all criminal prosecutions the accused shall have the right. . . to meet the witnesses against him face to face; ... to have ... a speedy public trial by an impartial jury ...” Art. II, Sec. 24.
“. . . No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.” Art. II, Sec. 25.
“The right of trial by jury is secured to all and shall remain inviolate . . .” Art. II, Sec. 26.

Every one of those state constitutional rights have been taken from Forsyth by the State either through its jury tampering by the bailiff or by its denial of a speedy trial.

I have set out the state constitutional provisions above because I feel that our state constitution controls this case and because the majority opinion has not made any reference to the state constitution. The majority members apparently feel that double jeopardy rights under our state constitution are co-terminous with such rights under the federal constitution. This is evinced because the majority has tried to fit the decision in Oregon v. Kennedy, supra. As I hope to demonstrate, that case is not applicable here.

There is no United States Supreme Court decision directly determining the effect on a defendant’s right to fair trial when a bailiff has tampered with the jury in the defendant’s disfavor. We have no federal criteria that would guide us as to how the present United State Supreme Court would view double jeopardy under the facts of this case from the federal viewpoint. I sense that the United States Supreme Court is considerably less concerned about the constitutional rights of defendants than I am. I, therefore, confine myself in this dissent to an examination of this case from the viewpoint of our state constitution and statutes. If I advert in this opinion to federal decisions, it is only for the purpose of attempting to explain them, or to use the rationale of the federal decisions to buttress my opinion of the application of our state’s constitution.

There are Montana statutes that directly instruct a bailiff as to his duties when the jury is placed in his charge. When a jury is to view the premises, under Sec. 46-16-502, MCA, the jurors are conducted in a body under the custody of the sheriff or bailiff to view said place. The bailiff may not then communicate with them concerning any subject, for the statute provides:

“46-16-502. View of relevant place or property. When the court deems it proper that the jury view any place or personal property pertinent to the case, it will order the jury to be conducted in a body under the custody of the sheriff or bailiff to view said place or personal property in the presence of the defendant and his counsel. The place or personal property will be shown them by a person appointed by the court for that purpose, and they may personally inspect the same. The sheriff or bailiff must be sworn to suffer no person to speak or otherwise communicate with the jury or to do so himself on any subject connected with the trial and to return them into the courtroom without unnecessary delay or at a specified time, as the court may direct.” (Emphasis added.)

The bailiff here violated that statute when he informed the jury that they must stay together because otherwise the defendant might get a retrial.

When the bailiff is in charge of the jury, the duty of the bailiff is statutorily clear:

“46-16-501. Conduct of jury during trial. (1) The jurors sworn to try an action may at any time before the submission of the case, in the discretion of the court, be permitted to separate or be kept in charge of a proper officer. The officer must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to them or communicate with them or to do so himself on any subject connected with the trial, and to return them into court at the next meeting thereof.
“(2) (a) The jury must also at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves or with anyone else on any subject connected with the trial or to form or express any opinion thereon until the cause is finally submitted to them.
“(b) In all cases appealed to the supreme court, it shall be conclusively deemed that the court or judge gave the proper admonition in accordance with the provision of subsection (2) (a) unless the record affirmatively shows to the contrary.”

Under Montana practice, each time that the jury is delivered to the charge of the bailiff, the bailiff takes an oath before the court, an oath that is couched in the language of the foregoing statutes, that he will obey those statutes when the jury is in his charge.

Without quaver, we can assert that the bailiff Bourne flagrantly violated his oath and the statutes in this case.

It is time now to examine Oregon v. Kennedy, the United States Supreme Court case upon which the majority members base their decision on double jeopardy in this case.

The U.S. Supreme Court decision in Kennedy can be summarized: when a defendant in a criminal case successfully moves for a mistrial, he may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for a new trial was prosecutorial or judicial misconduct intended to provoke the defendant into moving for a mistrial.

Just for starters, we may note the distinguishing characteristics of this case from Oregon v. Kennedy. Here, the mistrial was the result of a hung jury, not one where the defendant moved for mistrial; secondly Oregon v. Kennedy discusses prosecutorial or judicial misconduct; here we have a case of bailiff misconduct.

In Oregon state court, Kennedy was tried for stealing an oriental rug. During the cross-examination of an expert on the value of the rug, the prosecutor asked the expert whether he had done business with the Kennedys. The expert answered that he had not. The prosecutor asked: “Is that because he is a crook?”

The trial judge granted defendant’s motion for a mistrial on the ground of prosecutorial misconduct.

The double jeopardy hearing in the trial court in Kennedy was to a judge different from the one who had granted the mistrial. The trial judge determined that while the prosecutorial questioning was “overreaching,” he did not find that the prosecutor intended to provoke the defendant into moving for a mistrial. Therefore, the trial judge denied the double jeopardy motion. The denial was appealed to the Oregon Court of Appeals.

In State v. Kennedy (1980), 49 Or.App. 415, 619 P.2d 948, rev. den. 290 Or. 551 (1981), the Oregon Court of Appeals held that double jeopardy applied under the United States Constitution and that the defendant could not be retried. The Court of Appeals based its decision on the proposition that the prosecutor was indeed “overreaching.” The Oregon Supreme Court, without comment, denied the state’s petition for a review of the decision of the Court of Appeals.

The case came before the United States Supreme Court on certiorari and was decided in Oregon v. Kennedy, supra. The U.S. Supreme Court decided that the Oregon Court of Appeals had acted on federal constitutional grounds and therefore the matter was properly reviewable in the Washington D.C. Court. It then reached a decision which I have summarized above, remanding the cause to the Oregon Court of Appeals to determine if in fact the prosecutor had “intended” to provoke the defendant into moving for a mistrial.

The Kennedy case returned to the Oregon Court of Appeals, reported in State v. Kennedy (1983), 61 Or.App. 469, 657 P.2d 717. Because the trial court had found that the prosecutor’s question was not intentional, the Court of Appeals then reversed itself saying that double jeopardy was not a bar. The Court of Appeals assumed that the Oregon law concerning retrials after prosecutor-induced mistrials was identical and co-terminous with the view of the federal jeopardy clause expressed by the U.S. Supreme Court in Oregon v. Kennedy.

The matter came again before the Oregon Supreme Court in State v. Kennedy (1983), 295 Or. 260, 666 P.2d 1316. The Oregon Supreme Court decided that its law was not identical with the federal view of the double jeopardy clause in the facts pertaining to the prosecutorial misfeasance case, mainly because the Oregon Supreme Court recognized as difficult obstacles, proving “intent” on the part of the prosecutor, and the difficulty faced by trial courts in making decisions which could lead to the disbarment or other punishment of the prosecutors. The Oregon Supreme Court concluded that it would hold under its constitution and state law that double jeopardy applied if the prosecutorial conduct was so prejudicial to the defendant that it could not be cured by any means short of a mistrial, and if the official knew the conduct was improper and prejudicial and either intended or was indifferent to the resulting mistrial or reversal. The Oregon Supreme Court then went on to find that in the Kennedy case, it could not say that the official intended to provoke a mistrial, or that the prosecutor was indifferent to the result of his questioning and affirmed the Court of Appeals.

It should be apparent that Oregon v. Kennedy, in any of its phases, has no connection with bailiff tampering of a jury to aid the state, a completely different question.

Not discussed by the majority is another Oregon case which is directly in point. That case is Oregon v. Rathbun (1979), 287 Or. 421, 600 P.2d 392. The facts are so nearly parallel to the facts of the Forsyth case that they bear some recitation here.

Rathbun was charged with first degree robbery and the case was submitted to a jury which deliberated for a day and a half and then reported to the trial judge that it was at an impasse. Defendant’s motion for a mistrial was allowed. On the evening of the order granting mistrial, two of the jurors went to the district attorney and advised him about comments which had been made by the court’s bailiff to the jury during the recesses in the trial and during the deliberations. Six days later, in the presence of counsel the jurors were individually interrogated by another judge concerning the bailiff’s conduct and its effect on the jurors.

The case reached the Oregon Supreme Court after the Court of Appeals reversed the District Court which had held that double jeopardy applied.

The Oregon Supreme Court first considered whether there was a causal relationship between the improper remarks of the bailiff and the inability of the jury to agree upon a verdict. During the interrogation, each and every juror had denied being influenced by the bailiff’s remarks. The Oregon Supreme Court determined that no court could attempt by some method of mind reading to know whether the bailiff’s conduct actually influenced the mental process of any of the jurors and held with respect to that situation it would assume, without proof, that there was a causal relationship between the misconduct and the mistrial. The Oregon Supreme Court determined that those cases applying to prosecutorial and judicial misconduct had no application here:

“We agree with the Court of Appeals that this is not a case in which the mistrial was ‘triggered by prosecutorial or judicial desire to harass the defendant or afford the prosecution a more favorable opportunity to convict.’ (Citing a case.) We further agree that this is a case of an officer of the court who, on her own, was guilty of improper conduct which caused the mistrial in question. We cannot agree that the want of prosecutorial and judicial misconduct leaves the case in the same situation in which jury contamination resulting from ordinary third party misconduct causes a mistrial and is, therefore, no bar to retrial.” 600 P.2d at 397.

The Oregon Supreme Court then held, under Oregon law (which is substantially similar to our state law):

“In the United States Supreme Court decisions cited by the parties concerning prosecutorial or judicial misconduct the misconduct was perpetrated for the very purpose of triggering a motion by the defendant for a mistrial. Here there is nothing to suggest the bailiff sought to cause a mistrial. We daresay that nothing was further from her mind than causing a hung jury by her prejudicial discourse. On the contrary, her apparent purpose, as appears from the motion judge’s findings, was to assist the state in securing a conviction.
“The misconduct by this bailiff is so abhorrent to the sense of justice that we find the same sanction is required to effectuate the constitutional command as in the case where the prosecutor or the judge intends to provoke a mistrial. The state put this officer of the court in the position to wreak havoc and must bear the same burden as when its prosecutor or judge in like manner offends.” 600 P.2d at 398. (Emphasis supplied.)

The Oregon Supreme Court found it abhorrent to its sense of justice that a bailiff would attempt “to assist the state in securing a conviction.” The majority members of the Montana Supreme Court find such assistance permissible.

I would agree with the Oregon Court in Oregon v. Rathbun, and hold that in this case double jeopardy applied to prevent any further prosecution of Forsyth because of the bailiff’s misconduct.

Forsyth also charges in this case that he is entitled to double jeopardy on the grounds of prosecutorial misfeasance. The majority members have dismissed that charge without any discussion of either state law or the exception carved out in the United States Supreme Court under Oregon v. Kennedy, supra. I will not belabor the point, since I have already determined, for my purposes that double jeopardy ought to apply because of the bailiff’s misconduct.

Turning now to the speedy trial issue, I disagree with the majority holding that a defendant must wait until after trial before he can have an appellate review of a speedy trial issue. Such a holding means that in all cases, no matter how long the trial has been delayed, the defendant has no recourse to an adverse decision on his right to speedy trial in the district court until the trial which has been denied him speedily has occurred.

In this case, two and a half years have now elapsed since the second trial of Forsyth. Much, if not all of the delay is attributable to the State both because it has resolutely refused to provide him with the tools of his defense, and resolutely determined to try him again in Flathead County, a site where it has already been determined that he could not receive a fair trial.

Again, the reliance of the majority members on the federal decision of United States v. MacDonald (1978), 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18, relating to speedy trial is misplaced. The MacDonald case is careful to distinguish a speedy trial issue from a double jeopardy issue. It made that distinction because under Abney v. United States, supra, denial of a double jeopardy claim is a full and final resolution of that issue separate and apart from a trial and under federal practice there is a right of review of such a denial. There is no right of review of a denial by a federal district court of a speedy trial claim because the speedy trial issue is “not sufficiently independent of the outcome of the trial to warrant pretrial appellate review.” In other words, under federal practice, there is no provision for an appeal from a federal district court to a higher Court of Appeals of a speedy trial issue, before the trial actually occurs.

That is not the case under our law. Our constitutional provision for supervisory control allows this Court to intervene in interlocutory manner in cases pending in the district courts when the district court, though acting in jurisdiction, is nevertheless committing error.

If the interest of this Court cannot be aroused when faced with a 2*4 year delay in trial, especially when most of the reasons for the delay exist in the records of our Court, there is little hope that such interest will be aroused after the next trial, if Forsyth is convicted.

Finally, with respect to the issue of change of venue, the majority decides that issue without any reference to Section 46-13-203, MCA, the statute controlling the power of the courts to change the place of trial.

That section provides in pertinent part:

“If the court determines that there exists in the county in which the prosecution is pending such prejudice that a fair trial cannot be had, it shall:
“(a) transfer the cause to any other court of competent jurisdiction in any county in which a fair trial may be had;
“(b) direct that a jury be selected in any county where a fair trial may be had and then returned to the county where the prosecution is pending to try the case; or
“(c) take any other action designed to insure that a fair trial may be had.” (Emphasis supplied.)

Section 46-13-203, MCA, defines the power of the district court to change the place of trial in a criminal case. In this case, the prosecution of Forsyth was pending in Lake County. The District Court has never determined that there existed in Lake County such prejudice that a fair trial could not be had there. Therefore, the district court had no power to move the venue of the trial from Lake County. The reasons that the majority members do not discuss Section 46-13-203 is understandable. Under the statute, it cannot be explained where the District Court got the authority to change the place of trial here.

Forsyth may well be guilty of killing his wife, or plotting to kill her. The headstrong determination of the bailiffs, the District Court, the prosecution and this Court to convict him at whatever cost to constitutional rights, to statutory directions, or to commonly accepted notions of fair trial make his further prosecution unacceptable to me. I would order his prosecution dismissed.

MR. JUSTICE HUNT concurs with the foregoing dissent.  