Case Dismissed: Judge Matthew Byrne's Ruling in the Trial of Daniel Ellsberg and Anthony Russo (May 11, 1973)

Commencing on April 26, the government has made an extraordinary series of disclosures regarding the conduct of several governmental agencies regard­ing the defendants in this case. . . . Much information has been developed, but new information has produced new questions, and there remain more questions than answers.

The disclosures made by the government demonstrate that governmental agencies have taken an unprecedented series of actions with respect to these defendants. After the original indictment, at a time when the government's rights to investigate the defendants are narrowly circumscribed, White House officials established a special unit to investigate one of the defendants in this case. We have been given only a glimpse of what this special unit did regard­ing this case, but what we have seen is more than disquieting.
A continuation of the government's investigation is no solution with reference to this case. . . each passing day indicates that the investigation is further from completion as the jury waits. Moreover, no investigation is likely to pro­vide satisfactory answers where improper government conduct has been shielded so long from public view and where the government advises the Court that pertinent files and records are missing or destroyed. . . .
. . . The charges against these defendants raise serious factual and legal issues that I would certainly prefer to have litigated to completion. . . . However. . . the conduct of the government has placed the case in such a posture that it pre­cludes the fair dispassionate resolution of these issues by a jury. I have con­cluded that a mistrial alone would not be fair. Under all the circumstances, I believe that the defendants should not have to run the risk, present under ex­isting authorities, that they might be tried again before a different jury.
The totality of the circumstances of this case which I have only briefly sketched offend “a sense of justice." The bizarre events have incurably infected the prosecution of this case. . . . I am of the opinion, in the present status of the case, that the only remedy available that would assure due process and the fair administration of justice is that this trial be terminated and the defen­dants' motion for dismissal be granted and the jury discharged.
The order of dismissal will be entered, the jurors will be advised of the dis­missal, and the case is terminated. Thank you very much, gentlemen, for your efforts.
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