Ellsberg Judge Planning To Dismiss Jury Monday; ELLSBERG JUDGE TO DISMISS JURY
Date: 09 December 1972
By MARTIN ARNOLDSpecial to The New York Times
Fed Dist Ct Judge W M Byrne Jr on Dec 8 says that he plans to declare mistrial on Dec 11 because US Ct of Appeals in San Francisco has said that it is 'foolish' to proceed with current jury in Pentagon papers case; jury was empaneled 4 mos ago; Byrne says it is his intention to discharge jury and proceed with selection of new jury; says he believes Ct of Appeals is advising that there is substantial danger that case tried by this jury might be disturbed on appeal; says that in view of case's high cost to taxpayers he does not want to take risk; Byrne postpones officially declaring mistrial until Dec 11 because defendant P Ellsberg is not present in ct; says he wants to assure himself personally that Ellsberg understands what it means to waive his protection against double jeopardy; when Ellsberg and Russo 1st asked for mistrial on ground that jury must have become influenced during trial's hiatus, 1 of Govt's contentions was that under double jeopardy mistrial could mean that neither defendant could be tried again; Ellsberg and Russo then waived double jeopardy rights and Russo does so again on Dec 8