Bartkus v. Illinois
In Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) Bartkus was tried and acquitted in a federal district court of robbing a federally insured savings and loan association in Cicero, Illinois.
The federal authorities were highly displeased with the result, and the trial judge upbraided the jury for its verdict.
Almost immediately after the trial the federal authorities went to the State's Attorney and invited him to prosecute Bartkus.
Less than three weeks after his acquittal Bartkus was indicted by Illinois and was subsequently convicted and sentenced to life imprisonment by the state.
In furtherance of the state prosecution the AUSA who had prosecuted the federal case had summoned to his office a co-defendant of Bartkus who had confessed his part in the robbery and testified against Bartkus in the federal trial. The federal prosecutor asked the co-defendant if he would testify against Bartkus in the state trial, and he said that he would. Sentencing of this man and another co-defendant, who also testified against Bartkus in both trials, was postponed by the federal court until they had testified against Bartkus at the state trial.
The FBI was also put to work to strengthen the evidence which had not sufficed to convict Bartkus in the federal trial. An FBI agent uncovered a new witness who testified at the state trial that Bartkus had told him about his participation in the robbery while they were both in jail awaiting federal trials. There was no contact between this new witness and any agent of the state of Illinois until the morning of the state trial. What his testimony would be was known only through his arrangement with the FBI. Federal sentencing of this new witness for violation of the Mann Act was also postponed until he had testified against Bartkus at the state trial.
The FBI agent also testified for the state in rebuttal of an alibi witness for Bartkus. And, over Bartkus' objection, the FBI agent remained in the state courtroom throughout the trial although other witnesses were excluded.
Writing for the Court and upholding Bartkus' conviction, Justice Frankfurter said that the evidence established "that federal officials acted in cooperation with state authorities." Such collaboration was "the conventional practice between the two sets of prosecutors throughout the country." Id. at 123, 79 S.Ct. at 678.
It did not offend due process of law. Justice Frankfurter added that the evidence did not show that the state "in bringing its prosecution was merely a tool of the federal authorities" and did not "sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution." Id. at 123-24, 79 S.Ct. at 678.
In Bartkus the federal government after losing its prosecution colluded closely with the state in securing a conviction.
With the rhetorical bite that sometimes characterizes a dissent, Justice Brennan described what happened in these terms: "The federal effort which failed in the federal courthouse was renewed a second time in the state courthouse across the street." Bartkus, 359 U.S. at 169, 79 S.Ct. at 705 (dissenting opinion).