Gilliam v. Foster

61 F.3d 1070, 1995 WL 444596

Opinions

ORDER

On July 11, 1995, Petitioners presented an emergency motion to a panel of this court, seeking relief from an order of the district court denying their request to temporarily enjoin state criminal proceedings against them scheduled to begin Monday, July 17, 1995. Petitioners claim that the trial will violate their constitutional right not to be twice placed in jeopardy for the same offense. The panel heard oral arguments of counsel on Saturday, July 15, on an expedited basis. Following a conference at the close of the hearing, the panel denied Petitioners’ request for relief — Judges Wilkinson and Luttig voting to deny and Judge Wilkins voting to grant. On the morning of July 17, Petitioners requested en bane reconsideration and a poll of the entire court was requested. Chief Judge Ervin and Judges Hall, Murnaghan, Wilkins, Hamilton, Williams, Michael, and Motz voted in favor of en banc consideration and of granting the requested temporary relief. Judges Russell, Widener, Wilkinson, Niemeyer, and Luttig voted against en bane consideration and granting the requested temporary relief. Accordingly, the poll of the court for en banc consideration has carried and the motion for relief from the decision of the district court denying the temporary restraining order is granted.

Therefore, a temporary restraining order enjoining the state criminal proceedings until the district court rules on the merits of the habeas petition is hereby issued. As expeditiously as possible, the district court is directed to receive such evidence and take such testimony as necessary and to rule on the merits of Petitioners’ habeas petition.

DONALD RUSSELL, WIDENER, WILKINSON, WILKINS, NIEMEYER, and LUTTIG, JJ., have issued separate statements.

WILKINS, Circuit Judge:

It is highly regrettable that this court is compelled to temporarily enjoin a state criminal proceeding that began on July 17, 1995. It is even more regrettable that we must act while that proceeding is in progress. Of course, the temporary stay should have been granted days ago by the district court or by a, panel of this court after hearing the arguments of counsel last Saturday, July 15,1995. Because the district court and the panel erred in failing to issue a temporary stay, we must act in a manner that undeniably causes iisruption in the state proceeding. But, the ssuance of a stay is the only means available ;o protect Petitioners’ constitutional right, md under the present circumstances, the /indication of Petitioners’ basic constitutional tight far outweighs the temporary suspension of the state proceeding. Any temporary Iisruption of the state proceedings will be prickly remedied by an expedited hearing in he district court at which time it will have ;he opportunity to address on the merits for he first time the issues presented.

Although the relief sought is appro-mate in only the most limited circumstances, he present situation is firmly encompassed vithin those narrow circumstances. First, it :annot be seriously disputed that the ongoing state criminal proceedings violate Petitioners’ constitutional right not to be placed twice in jeopardy for the same offense. The substantive double jeopardy question presented is whether the state trial judge in an earlier state criminal trial exercised sound discretion in finding that manifest necessity existed for a mistrial. The undisputed facts demonstrate that the state trial judge acted without any rational justification in granting a mistrial. Second, given that Petitioners have asserted a strong double jeopardy claim, the only means by which their right not to be put to the burden, anxiety, and expense of enduring a second trial may be protected is to stay the state criminal proceedings until the district court may rule on the merits of Petitioners’ habeas petition. Finally, the federalism concerns expressed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), do not counsel against the grant of relief under these circumstances.

I. FACTS

A. State Trial Proceedings

Petitioners were prosecuted in November 1994 on state charges; the State represents that the charges included murder (Petitioner Swain) and aiding and abetting (Petitioners Gilliam and Owings). It appears that there was no significant question concerning Petitioners’ participation in the events; rather, the trial was focused on the issue of whether the actions leading to the victim’s death had been taken in self-defense or had been provoked.

On the third day of trial, the State presented the testimony of Officer Counts of the South Carolina Law Enforcement Division. Officer Counts had been present at the scene soon after the shooting and could identify photographs of the scene and testify concerning the immediate investigation. On cross-examination, defense counsel asked Officer Counts whether there had been blood found at the scene. Officer Counts stated that he would have to look at photographs taken by a police photographer to refresh his memory. Defense counsel showed a group of photographs to the prosecuting attorney (Set 1)¹ and then handed them to the witness; as had other photographs (described as Sets 2 and 3), the photographs in Set 1 had been provided to the defense prior to trial. The prosecuting attorney — believing that the photographs were being offered into evidence— stated, “Without objection.” The trial judge then inquired whether defense counsel was offering the photographs into evidence at that time, and defense counsel responded that he was using them only to refresh the officer’s recollection. The prosecuting attorney noted that he had spoken prematurely.

Officer Counts subsequently testified from the photographs. He explained what they depicted and identified the position of various objects shown in the photographs. Officer Counts identified three locations on the ground where investigators had located what they believed to be drops of blood and had marked the location with yellow tape; he also marked on a diagram of the scene (which had been prepared by the prosecution and was already admitted into evidence) where the drops of blood were found. During the remaining testimony by Officer Counts, two other groups of photographs of the scene (Sets 2 and 3) were introduced into evidence by the defense without objection.

Following Officer Counts’ testimony, the state trial judge recessed the proceedings for lunch, instructing the jury to leave all of the photographs and evidence that had been published while Officer Counts was testifying in the courtroom. During the lunch break, the court reporter discovered that the photographs in Set 1 — which had not been introduced into evidence — had been placed on the jury rail in the stack along with the photographs in Sets 2 and 3 — which had been properly introduced into evidence. Concerned that the jury may have been exposed to evidence that was not properly admitted, the trial judge brought this to the attention of counsel.

Although not citing any prejudice that may have resulted from the jury’s viewing of the photographs, the prosecution immediately moved for a mistrial, blaming defense counsel for the error. The defense strenuously objected. It disagreed with the prosecuting attorney’s suggestion that defense counsel had been responsible for placing the unad-mitted photographs where the jury could view them. Moreover, defense counsel argued that a mistrial was completely unnecessary. Importantly, defense counsel offered to “recall [Officer Counts] and move [the photographs] into evidence,” explaining that Officer Counts had already identified the photographs and had testified about them. Further, defense counsel stressed that even if the jury actually saw the photographs, there was no prejudice.

The state trial judge called the foreman of the jury to the courtroom and asked him whether, as far as he knew, the jury had looked at all of the photographs that had been in the stack on the jury rail before lunch. The foreman stated that as far as he knew, they had. The defense requested that the trial judge ask additional questions to ensure that the jury had in fact seen the unadmitted photographs, noting that it was entirely possible that the photographs had been placed in the stack on the railing during the lunch break since defense counsel recollected that they had been left in the witness box when the court recessed. The state trial judge, however, refused to do so and declared a mistrial over defense objection. The state trial judge stated that he had no choice but to grant a mistrial because the photographs had not been admitted, were not identified, and had not been testified to.

Defense counsel requested that the state trial judge ask the court reporter to read back Officer Counts’ testimony because he, in fact, had identified the photographs and testified using them. Again, however, the state trial judge summarily declined to do so. At no point did the state trial judge indicate any awareness that possible double jeopardy concerns were implicated by the grant of a mistrial. And, neither the prosecution nor the state trial judge indicated that the photographs were in any way prejudicial to the State or the defense.²

B. Post-trial State Proceedings

Thereafter, when a subsequent prosecution was brought, Petitioners moved the state trial judge to dismiss the charges against them on double jeopardy grounds, arguing that manifest necessity had not existed for the grant of the mistrial over their objections. The state trial judge denied the request, ruling that manifest necessity had existed for the grant of the mistrial. Although the state trial judge did not make a finding that the jury’s having seen the photographs was prejudicial nor offer any possible explanation of how the jury’s viewing the unobjectionable photographs actually might have been prejudicial to either the State or the defense, the state trial judge did refer to the incident at one point as a “prejudicial occurrence” and opine that he was “concerned about the origin of the prejudice.” Without offering any explanation concerning why the photographs might be prejudicial, he explained that the mistrial had been necessary because he could not have foreseen whether the photographs would have been offered into evidence and, if so, whether they would have been admitted. The state trial judge did not address the fact that the State had offered no objection to the admission of the photographs or that the defense had offered to recall Officer Counts and formally move their introduction.³

Petitioners appealed this ruling to the South Carolina Supreme Court. However, that court dismissed the appeal as interlocutory under South Carolina law.

C. Federal Habeas Proceedings— District Court

Petitioners then filed this action in district court pursuant to 28 U.S.C.A. § 2254 (West 1994),⁴ claiming that the upcoming second trial violated their right not to be twice put in jeopardy for the same offense because no manifest necessity existed to support the grant of the mistrial in the first trial. The State responded that manifest necessity had existed for the mistrial to “alleviate prejudice” caused by the jury’s consideration of unadmitted evidence; however, the State utterly failed to explain or identify what possible prejudice may have resulted. On June 29, 1995, Petitioners sought a temporary injunction or alternatively expedited consideration of their habeas petition.

On July 7, 1995, the magistrate judge issued a report and recommendation concluding that a temporary stay of the scheduled state court proceedings was appropriate because: Petitioners would suffer irreparable harm if the temporary relief was not granted; the balance of harms tipped decidedly in favor of Petitioners; Petitioners had demonstrated serious and substantial questions that were fair ground for litigation on the merits of their double jeopardy claim; and the public interest favored the grant of temporary injunctive relief.

On July 10, 1995, the district court conducted an expedited, non-evidentiary hearing of the motion for a temporary restraining order and adopted the majority of these recommended findings of the magistrate judge. However, based upon arguments raised for the first time, the district court determined that Petitioners had shown no likelihood of succeeding on their double jeopardy claim and therefore were not entitled to injunctive relief.

The district court first concluded:

[T]he disputed photographs were more important than might first appear. From the argument of counsel at the hearing, the court was able to determine that the murder victim in this case had fired shots at one of the [Petitioners] shortly before or contemporaneously with the shot by which he was killed. Therefore, issues of provocation and self-defense are present in this case. One factor that is important in resolving these issues is whether one of the [Petitioners] was on the decedent’s property or on the public roadway at the time he fired his weapon. The disputed photographs are close up photographs of the ground which show blood stains. Because of this, they could be used to more clearly document where the shooting occurred.

As noted by the district court, this conclusion was based only on purely speculative statements of the State’s attorney, not on any evidence in the record: no testimony was taken on this issue; no evidentiary hearing was conducted; and a simple review of the photographs does not bear out the State’s assertion. Significantly, although the district court concluded that the photographs could be used to demonstrate more clearly where the shooting had occurred, it did not find that the photographs were prejudicial, as opposed to simply relevant.

The district court further determined that defense counsel may have been attempting to place this evidence before the jury through the back door while retaining the right to make the last argument to the jury under a South Carolina procedural rule that permits the defense to make the last argument if it does not present evidence. This basis for the decision of the district court was also based only on a statement by a State’s attorney and was not supported by any foundation in fact. This argument bordered on the spurious and has effectively been abandoned on appeal.

It is well-settled law in South Carolina that if the defense introduces any evidence, whether in its case or in the State’s case, it loses the right to have the last argument. State v. Gellis, 158 S.C. 471, 155 S.E. 849, 855 (1930); State v. Battle, 304 S.C. 191, 403 S.E.2d 331, 333 (App.1991). Moreover, it is undisputed that the defense previously had offered other evidence that had been admitted without objection and had therefore lost its right to make the last argument before the incident with the unadmitted photographs occurred. Because this argument was raised for the first time at argument before the district judge, who ruled from the bench and entered a written order the following day, obviously neither the parties nor the court had had an adequate opportunity to consider this assertion.

D. Federal Habeas Proceedings— Circuit Court

After the district court denied their request for a temporary stay of the scheduled state criminal proceedings or expedited consideration of their habeas petition, Petitioners submitted to a panel of this court a request for emergency relief from the order of the district court. See Fed.R.App.P. 8. The panel heard oral arguments on Saturday, July 15,1995, and following a conference at the conclusion of the hearing, denied the requested relief. Thereafter, review en banc was sought by Petitioners, and a majority of the active circuit judges voted in favor of granting temporary relief from the order of the district court.

E. Ongoing State Criminal Proceedings

While the en banc poll of this court was proceeding, Petitioners’ retrial began in state court. According to a supplemental filing submitted by Petitioners, during the course of the retrial the photographs at issue here were identified by the same Officer Counts, offered into evidence by the defense, and admitted without objection from the State. The prosecuting attorney subsequently raised an objection to the admission on the ground that the photographs were cumulative and confusing. The state trial judge overruled the objection. In a supplemental reply, the State confirmed that the basis for its objection to the evidence was that the photographs were cumulative and confusing. The parties also informed this court that the state trial judge who presided at the first trial and who is a named respondent in this litigation, sua sponte recused himself before the retrial began.

II.

A. Balance of Hardshins

All parties have framed the question of the appropriateness of the requested relief in terms of the balancing of the hardships test employed in the federal courts of this circuit to decide whether preliminary injunctive relief should issue. See Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 194 (4th Cir.1977).⁵ With respect to that test, although the State offered token argument on factors other than the likelihood of success on the merits, it is essentially undisputed that the majority of the factors bearing on the appropriateness of the grant of injunctive relief favor our granting a temporary stay of the state criminal proceedings. The gist of this dispute is whether Petitioners have adequately demonstrated a likelihood of success on the merits. When, as here, the balance of harms tips decidedly in favor of the party requesting relief, a preliminary injunction should “be granted if the [party requesting relief] has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.” Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 813 (4th Cir.1991) (internal quotation marks omitted). Consequently, the first question before this court is a straightforward one— whether Petitioners have sufficiently demonstrated a likelihood of success on the merits of their claim that their rights under the Double Jeopardy Clause will be violated by a retrial.

B. Double Jeopardy

It is well settled that in a jury trial jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2160-61, 57 L.Ed.2d 24 (1978). Once jeopardy has attached, a defendant has a constitutional right to have a particular tribunal decide his guilt or innocence. Id. at 36, 98 S.Ct. at 2161. Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978) (footnotes omitted). For these reasons, a prosecutor is generally permitted only one opportunity to force a defendant to stand trial. Id. at 505, 98 S.Ct. at 830.

The reasons why this “valued right” merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed.

In certain circumstances, however, this right may be superseded, and a defendant may be retried after a mistrial has been granted, when “the public’s interest in fair trials designed to end in just judgments” has been abridged. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The Supreme Court has concluded that only when there is a “manifest necessity” for a mistrial granted over a defendant’s objection will the prosecuting authority escape the double jeopardy bar. Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830. “Manifest necessity” for the grant of a mistrial is not a mechanical standard; rather, it is a determination that must be made in the context of the specific difficulty facing the trial judge. Id. at 506, 98 S.Ct. at 830-31. And, while manifest necessity for a mistrial does not require that a mistrial be “necessary” in the strictest sense of the word, it does require a “high degree” of necessity. Id. Perhaps the clearest example of a situation in which manifest necessity exists for a mistrial is when a jury that has heard all of the evidence cannot reach a verdict. Id. at 509, 98 S.Ct. at 832. At the other extreme are situations in which a prosecuting attorney seeks a mistrial in order to have additional time to marshall evidence to strengthen the case against the defendant. Id. at 508, 98 S.Ct. at 831-32. Between these two extremes exists a spectrum of trial errors, some raising the specter of manifest necessity for a mistrial and others falling far short of creating a situation in which a mistrial is manifestly necessary. See id. at 510, 98 S.Ct. at 832-33.

In determining whether manifest necessity existed, a reviewing court must “accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the” circumstances giving rise to the mistrial would have affected the impartiality of the deliberations of the jury. Id. at 511, 98 S.Ct. at 833. Indeed, when some event creates the possibility that the jury may have been biased, the deference a reviewing court affords the trial judge who has the opportunity to observe the sequence of events in the context of the trial is at its zenith. Id. at 512-14, 98 S.Ct. at 833-35. The trial judge need not make an explicit finding of manifest necessity or articulate the factors that led to the exercise of his discretion, and his decision is not subject to attack when the record adequately discloses the basis for his ruling. Id. at 516-17, 98 S.Ct. at 836.

The deference owed to the trial judge, however, is not unlimited; in reviewing the decision to grant a mistrial this court has “an obligation to satisfy [itself] that ... the trial judge exercised sound discretion.” Id. at 514, 98 S.Ct. at 835 (internal quotation marks omitted). When the grant of a mistrial by the trial judge amounts to an irrational or irresponsible act, he must be found to have abused his discretion in finding that manifest necessity for the mistrial existed. Id.

In Arizona v. Washington, the Supreme Court looked to several factors in determining that a state trial judge had exercised sound discretion in granting a mistrial. The Court noted that the trial judge had been presented with a situation in which the jury had been exposed to inadmissible and highly prejudicial material and that the trial court had not acted precipitously. Id. at 514-15, 98 S.Ct. at 835. Rather, the trial court expressed concern regarding the possible double jeopardy consequences of an erroneous declaration of a mistrial and heard extensive argument on the appropriateness of such a measure, including consideration of possible alternatives to the mistrial. Id. at 515-16, 98 S.Ct. at 835. The transcript of the state proceedings demonstrates that none of these factors were present here.

First, the state trial judge was not faced with a situation in which inadmissible material had been presented to the jury.⁶ The unadmitted photographs were only pictures, taken by state investigators, of the same area of the crime scene, from a slightly different angle or shorter distance, as other photographs that were properly admitted: the photographs in Sets 1 and 2 showed the scene, including the same three pieces of yellow tape that Officer Counts testified marked what appeared to be drops of blood; the only difference between those sets of photographs was that the photographs in Set 1 showed the drops of blood within the yellow taped areas more clearly. At oral argument, after careful questioning from the panel, the State conceded that the photographs in Set 1 were properly admissible under South Carolina law and that, had the defense simply moved them into evidence, there would have been no error.⁷

The proceedings in this court have focused on whether the jury’s consideration of these photographs created prejudice or biased the jury in some way. It cannot be disputed that as relevant evidence, the photographs had probative value. Nor can it be disputed that the photographs showed more clearly what appeared to be several drops of blood. But, the simple fact is that Officer Counts already had testified that there were three areas where what appeared to be drops of blood were discovered by investigators and that these areas had been marked by yellow tape. Further, Officer Counts had also identified on a crime scene overlay where these areas were located. Although the State conceded that there was nothing inherently prejudicial about the photographs and that the only “prejudice” resulting from the jury’s having viewed them was that they had not been formally introduced, it maintained before this court that because Officer Counts had not testified concerning the photographs in Set 1, the defense might be able to mislead the jury concerning the location of the taped markings or the location of blood.⁸ However, the mere fact that the State makes this representation does not necessarily make it so. Indeed, a simple review of Officer Counts’ testimony and the photographs in Set 1 and 2 belies the State’s claim and demonstrates instead that the photographs in Set 1 and 2 were cumulative, in all relevant respects as the State admitted before this court and argued to the trial judge in the second trial.

In any event, focusing on what possible use of the photographs the prosecution or defense may have made of the photographs during the later trial proceedings begs the question. In this context, the initial consideration in determining whether a mistrial is warranted is whether the jury has been biased in some way. There is simply no rational argument to be made that these cumulative, admissible photographs biased the jury. As the State conceded, the only error was in the fact that they had not technically been admitted into evidence.

Further, the state trial judge acted precipitously: he refused defense counsel’s request to determine whether the jury had actually seen the photographs in question; he refused to determine whether Officer Counts had in fact identified the photographs by referring to his testimony; he refused simply to look at the photographs and rule on their admissibility; he refused to allow defense counsel’s request to recall Officer Counts and formally move the photographs’ admission into evidence; and he never evinced any awareness that the grant of a mistrial might implicate or deprive Petitioners of their constitutional right. The State conceded in argument before this court that there was nothing to prevent the state trial judge from simply allowing Officer Counts (who was under subpoena and available) to be recalled to have the photographs formally introduced, as defense counsel offered to do at the time. Without question, this would have cured the technical, and only, error that had occurred. Consequently, in the absence of any prejudicial error, the state trial judge refused to consider or implement an obvious and completely adequate course of action to correct any possible error in the jury having viewed cumulative evidence that had not been properly admitted.

This court has held that “[i]n order to determine if the mistrial was required by manifest necessity, the critical inquiry is whether less drastic alternatives were available.” United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir.1993). And, we have previously noted:

One major factor to consider in assessing the wisdom of the trial court’s action is whether a mistrial was necessary. If obvious and adequate alternatives to aborting the trial were disregarded, this suggests the trial judge acted unjustifiably.

Harris v. Young, 607 F.2d 1081, 1085 n.4 (4th Cir.1979) (emphasis added), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980); see also United States v. Sloan, 36 F.3d 386, 400 (4th Cir.1994) (even if the trial judge had a subjective, good faith belief that a mistrial was necessary, the granting of a mistrial is an abuse of discretion if the record does not support the trial judge’s concerns); Shafer, 987 F.2d at 1057 (“If alternatives existed, then society’s interest in fair trials designed to end in just judgments was not in conflict with the defendant’s right to have the case submitted to the jury” and mistrial was not necessary) (internal quotation marks & citation omitted).

Under these circumstances, we conclude that Petitioners have made a strong showing indicating that the state trial judge abused its discretion and acted irresponsibly in granting the mistrial. The record permits no other reasonable reading. The jury was not exposed to any inadmissible evidence, and the photographs in Set 1 were cumulative in relevant respects of the other evidence. The state trial judge ignored an obvious and completely adequate alternative offered to remedy any error arising from the jury’s consideration of the photographs. This being the case, it cannot be said that Petitioners have failed to demonstrate, at a minimum, “questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.” Rather, even one who is not convinced on the present record that the state trial judge abused his discretion in granting the mistrial must conclude that the questions presented warrant a full hearing before the district court.

C. Protection of Petitioners’ Double Jeopardy Rights

In most cases, a defendant’s constitutional rights may be vindicated simply by overturning a conviction that is violative of those rights. When this is the case, a stay of state proceedings is not warranted even though it would avoid the violation of the defendant’s constitutional rights altogether. In stark contrast, the right conferred by the Double Jeopardy Clause cannot fully be vindicated by post-conviction relief because it is a prohibition not only of multiple punishments, but also of multiple trials:

[T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judg-ment_ 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. ... Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge ... must be reviewable before that subsequent exposure occurs.

Abney v. United States, 431 U.S. 651, 660-62, 97 S.Ct. 2034, 2040-41, 52 L.Ed.2d 651 (1977) (first emphasis added); see also United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality); Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896). Consequently, a stay of the state criminal proceedings is the only means to protect Petitioners’ constitutional rierht.

D. Younger Abstention

The members of the panel majority have expressed apprehension over the appropriateness of even temporarily staying the state criminal proceeding given the federalism concerns expressed in Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). However, on the narrow and unique circumstances presented here, Younger does not counsel in favor of abstention.

First, the State has not requested that we abstain from exercising jurisdiction or from granting the temporary relief requested; the State has not raised the Younger issue in the district court or before us.⁹ The Supreme Court has indicated that when a state fails to raise the issue of abstention under Younger, and voluntarily chooses to submit to the federal forum, “ ‘principles of comity do not demand that the federal court force the case back into the State’s own system.’ ” Swisher v. Brady, 438 U.S. 204, 213 n. 11, 98 S.Ct. 2699, 2705 n. 11, 57 L.Ed.2d 705 (1978) (quoting Ohio Bureau of Employment Servs. v. Hodory, 431 U.S. 471, 480, 97 S.Ct. 1898, 1904, 52 L.Ed.2d 513 (1977)). For this reason, the Court expressed an unwillingness to consider the possible application of the Younger doctrine when the State had failed to raise it. Because the State has failed to raise the Younger issue in these proceedings, it has voluntarily submitted to the authority of this court, and comity concerns are not implicated.

Moreover, it is not particularly surprising that the State has not raised Younger because a straightforward application of that doctrine does not foreclose this court from granting the temporary relief requested. The prohibition on a federal court enjoining state criminal proceedings set forth in Younger is not an absolute one. While unquestionably Younger prohibits federal courts from routinely interfering with state criminal proceedings, Younger recognized that it may be appropriate for federal courts to do so when there has been a “showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. Younger, 401 U.S. at 54, 91 S.Ct. at 755 (emphasis added). A colorable double jeopardy claim is a preeminent example of one of the very few “unusual circumstances” justifying federal court intervention in a state proceeding. Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 964, 122 L.Ed.2d 121 (1993); see Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992); Showery v. Samaniego, 814 F.2d 200, 201 n. 5 (5th Cir.1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.1984) (per curiam); see also Willhauck v. Flanagan, 448 U.S. 1323, 1325, 101 S.Ct. 10, 11, 65 L.Ed.2d 1147 (Brennan, Circuit Justice 1980).¹⁰ While federal court interference with ongoing state criminal proceedings should be undertaken in only the most limited, narrow, and circumscribed of situations, the facts before us present one such situation.¹¹

III.

In sum, with full cognizance and deep appreciation of the gravity of the temporary relief being ordered and a sincere aversion to the process and the result, I am compelled by the law to conclude that it is necessary.

ERVIN, C.J., and HALL, MURNAGHAN, HAMILTON, WILLIAMS, MICHAEL, and MOTZ, JJ., join this opinion.

1 . Set 1 contains the seven photographs at issue. At oral argument before this court, the State suggested for the first time that it was not clear from the record whether the photographs referred to as Set 1 were actually the ones presented to Officer Counts. Although this fact had not previously been disputed, even if the State were correct that these are different photographs, the analysis of the appropriateness of the mistrial and temporary relief remain the same.

2 . The state trial judge did not make a finding of manifest necessity or a finding of prejudice. Indeed, he did not use the word "prejudice” during this proceeding. Further, the state trial judge gave no hint of what prejudice might possibly exist from which a reviewing court could conclude that "prejudice” resulted.

3 . Judge Luttig writes that the state trial judge “explained in detail why he rejected the alternative of a curative instruction or a recall of the witness to allow defense counsel to introduce the photographs." Actually, the state trial judge never addressed the obvious alternative of recalling the witness to the stand other than to state "[wjhile the defendants claim the photographs would have been introduced later, this is speculative and conjectural." Saying that something is "speculative and conjectural” does not make it so. The State does not dispute that Officer Counts was available and that had the defense been allowed to recall him to the stand as it specifically requested, the photographs would have been admitted and marked as exhibits, just like the photographs in Sets 2 and 3.

4 .There is no question concerning the propriety of federal habeas consideration of the petition given the procedural posture. As discussed at length in the magistrate judge's report and recommendation, Petitioners are in custody and have exhausted their state remedies. A federal habeas court is the only forum in which Petitioners may attempt to protect their double jeopardy right not to be tried twice for the same offense. And, it should be noted that there is no suggestion that Petitioners have not proceeded in as timely a manner as possible in bringing this issue before the court.

5 . Under Blaclcwelder, whether a preliminary injunction should be granted depends upon an analysis of four factors: (1) the likelihood of irreparable harm to the party requesting relief if the preliminary injunction is denied; (2) the likelihood of harm to the party opposing relief if the preliminary injunction is granted; (3) the likelihood that the party requesting relief will succeed on the merits; and (4) the public interest. See Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 812 (4th Cir.1991). A court should examine each of these factors sequentially, determining whether, and to what degree, each factor weighs in favor of the party requesting relief. Id. at 812-14. With specific reference to the likelihood of success on the merits, it is not necessary for the party requesting relief to prove that it would prevail on the merits; at most, it is only necessary to show that success is probable. See id. at 813. And, as the likelihood of irreparable harm to the party requesting relief increases, the burden of showing likelihood of success on the merits decreases. Id. at 812-13.

The decision of the district court to grant or deny injunctive relief is to be subjected to "careful scrutiny” to determine whether the lower court committed an abuse of discretion. Id. at 814-15. Underlying findings of fact are to be reviewed for clear error, while conclusions of law are to be reviewed de novo. See id. And, we review the finding of irreparable harm for clear error. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 552 (4th Cir.1994).

6 . My research has failed to disclose a single case in which a trial court has eranted a mistrial merely because admissible evidence was inadvertently presented to the jury without its formal admission.

7 . In addition, any suggestion that these photographs were inadmissible has been laid to rest by the subsequent proceedings in the ongoing second state trial.

8 . At another point in argument before this court, in response to a question from the panel con-ceming whether the state trial judge would have committed reversible error if he had refused to admit the photographs had the defense moved their admission, the State represented that although the failure to admit the photographs would have been error, it might not have been reversible error because the photographs were cumulative of the other photographs of the scene.

9 . Judge Luttig writes that "the State emphatically presses the Younger issue.” In all of the submissions by the State, I cannot find where it ever used the word "abstain” or referred to Younger. As support for the claim that the State did in fact make such an argument, Judge Luttig points to the State’s citation of Sparks v. Garrison, 446 F.Supp. 649 (M.D.N.C.1978). However, the State referred to Sparks only to support its contentions that a finding that Petitioners were unlikely to prevail on the merits justified a refusal to enjoin the state proceedings and that the public interest did not favor the granting of temporary relief. See Respondents' Response to Motion for Reconsideration of Stay En Banc at 12-13, 18. It is abundantly clear that the State did not rely on Sparks for the proposition that, pursuant to Younger, this court should abstain from exercising jurisdiction in this matter. Indeed, the State has given no indication whatsoever that it intended by its citation to Sparks to invoke principles of Younger abstention: the State does not refer to Younger itself, or to abstention in general, and does not provide a parenthetical explanation of the significance of Younger to the decision in Sparks.

10 . In his discussion of the appropriateness of a federal court granting a stay of state criminal proceedings, Judge Luttig cites Divans v. California, 439 U.S. 1367, 99 S.Ct. 39, 58 L.Ed.2d 75 (Rehnquist, Circuit Justice 1978). He notes that in Divans then-justice Rehnquist denied an application for a stay of state criminal proceedings because the error that had prompted the decision of the state court to grant a mistrial was not intentionally caused by the prosecutor. Judge Luttig appears to assert that because there is no allegation of prosecutorial misconduct here, a stay is not warranted. As then-justice Rehnquist’s earlier opinion rejecting a prior application of a stay of Divans’ state criminal proceedings makes plain, the trial judge had granted a mistrial in response to Divans' motion. See Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (Rehnquist, Circuit Justice 1977). When a defendant moves for and is granted a mistrial, the only circumstance in which he can properly claim that retrial following the grant of the mistrial will violate his double jeopardy right is to show that bad-faith, overreaching, or misconduct on the part of the prosecutor or the court led to the motion. Id. at 1303-04, 98 S.Ct. at 1 (citing United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081-82, 47 L.Ed.2d 267 (1976)). It is not surprising that then-justice Rehnquist found the lack of prosecutorial misconduct to be dispositive of the appropriateness of a stay under those circumstances because Divans could not make a colorable showing that the retrial would violate his double jeopardy rights. In sharp contrast, because the mistrial in Petitioners’ state proceedings was granted over their objection, rather than in response to their motion, they need not make any showing of prosecutorial bad faith in order to demonstrate a colorable claim of a double jeopardy violation.

11 . We also note that the Anti-Injunction Act, 28 U.S.C.A. § 2283 (West 1994), is no bar to the granting of a stay. Section 2283 directs that we may not grant a stay of state court proceedings "except as expressly authorized by Act of Congress, or where necessary in aid of [our] jurisdiction, or to protect or effectuate [our] judgments.” The federal habeas corpus statute specifically authorizes a stay of state court proceedings. See 28 U.S.C.A. § 2251 (West 1994).