Gilliam v. Foster

63 F.3d 287, 1995 WL 470533

Opinions

ORDER

Respondents have appealed from an order of the district court granting Petitioners’ request for a writ of habeas corpus. Presently before the en banc court are Respondents’ motions for expedited consideration of this appeal and for temporary relief from the order of the district court pending appeal. The court has voted to grant Respondents’ request for expedited consideration of this appeal and the matter has been calendared for oral argument before the en banc court on September 26, 1995. A majority of the court voted to deny Respondents’ request for temporary relief pending appeal from the order of the district court granting the writ of habeas corpus.

Judge WILKINS authored an opinion in which Chief Judge ERVIN and Judges HALL, MURNAGHAN, HAMILTON, WILLIAMS, MICHAEL, and MOTZ joined. Judge WILKINSON authored an opinion dissenting from denial of Respondents’ request for temporary relief from the order of the district court pending appeal, in which Judges RUSSELL, WIDENER, NIEMEYER, and LUTTIG joined.

WILKINS, Circuit Judge:

During the past three weeks since these parties first came before us, this matter has sharply divided this court as to its proper disposition. It is little wonder that it has engendered great concern among members of the majority and the dissent. For a federal court to enjoin an ongoing state criminal trial, let alone one involving multiple defendants on trial for crimes resulting in the death of the victim, is as momentous and undesirable an endeavor as a court can be called upon to undertake. Concerns of comity and federalism are at their apex. And, we are cognizant of the gravity of decisions that ultimately may result in the release of individuals who may be guilty of serious offenses.

Nevertheless, on July 20th, the en banc court granted a temporary stay of Petitioners’ state criminal trial. Gilliam v. Foster, 61 F.3d 1070 (4th Cir.1995) (en banc). We concluded that Petitioners had counterbalanced the forceful comity and pragmatic concerns counseling against intervention with a colorable claim that the second trial violated their right not to be twice placed in jeopardy for the same offense. This conclusion, rendered on the record then before us, was based on Petitioners’ strong showing that the declaration of a mistrial based on a motion by the State during their prior trial was not supported by manifest necessity. Thus, in the view of the majority, the temporary stay was the only means available to avoid the irretrievable loss of Petitioners’ constitutional rights. We imposed a temporary stay until the district court ruled on the merits of Petitioners’ claims, and we directed the district court to proceed as expeditiously as possible to rule on the merits.

The following day, the district court conducted a thorough evidentiary hearing. Subsequently, it entered a comprehensive and thoughtful decision concluding that the retrial of Petitioners was, indeed, barred by the Double Jeopardy Clause. Accordingly, it granted the writ of habeas corpus, thereby enjoining further prosecution.

The State has appealed from the order of the district court. In addition, the State has moved for expedited consideration of the appeal and relief from the district court order pending a decision of this court. The State submits that the jury empaneled to decide the second state criminal trial has not yet been released and apparently believes that if this court grants the relief it seeks, the prosecution may resume and the case be completed.

We have agreed to hear the State’s appeal on an expedited basis and have sehed-uled oral argument before the en bane court for September 26,1995. For the reasons set forth below, a majority of the court has determined that the State’s motion for relief from the district court order pending appeal should be denied.¹

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court plainly declared that federal court interference with state criminal proceedings should not be undertaken except in the most narrow and extraordinary of circumstances. But, that prohibition is not absolute. Younger recognized that it may be appropriate for federal courts to enjoin state criminal proceedings 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). It is undisputed that the state proceeding against Petitioners is not being undertaken in bad faith or for purposes of harassment. Moreover, there is no suggestion that the prosecutors who sought the mistrial on behalf of the State during the first trial or the judge who granted it were acting in bad faith in doing so.

Nevertheless, as Younger prudently recognized, these are not the only circumstances that may justify federal court intervention. The decisions of other courts unanimously recognize that a colorable Double Jeopardy Clause claim is a preeminent example of one of the very few “unusual circumstances” justifying federal court intervention in a state proceeding. See 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); 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).' Indeed, the justification for federal interference in state criminal proceedings is at least as compelling when the retrial itself irretrievably deprives the defendant of his constitutional double jeopardy rights as when the prosecution is undertaken in bad faith or to harass the defendant. Consequently, although federal court interference with ongoing state criminal proceedings should be undertaken in only the most limited, narrow, and circumscribed of situations, when the record clearly demonstrates a colorable showing that the trial will constitute a violation of the defendant’s double jeopardy rights, federal court intervention is appropriate.

Here, based on the record then before us, this court initially determined that Petitioners had made a strong showing of a colorable double jeopardy claim for the reasons set forth in the previous order of this court which we incorporate herein by reference. Gilliam v. Foster, 61 F.3d 1070 (4th Cir.1995) (en banc). Those reasons are even more compelling at this juncture because the district court has now considered the matter on the merits, rendered a decision setting forth in detail the factual findings and conclusions of law supporting its decision, and ruled that Petitioners’ double jeopardy rights will be violated by retrial.

In its request for relief from the order of the district court pending appeal, the State asserts that proper deference has not been accorded to the decision of the state trial judge to grant the mistrial, suggesting that the highly deferential standard that the Supreme Court established in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), has been disregarded. Not so. As surely as Arizona v. Washington stands for the proposition that a high level of deference must be shown to the decision of the trial judge concerning the propriety of granting a mistrial, that decision stands for the proposition that this deference is not unlimited. Id. at 514, 98 S.Ct. at 834. Because a defendant possesses a constitutional right to have a particular tribunal decide his guilt or innocence once jeopardy has attached, manifest necessity must exist for the grant of a mistrial over the defendant’s objection if he is to be subject to retrial. Id. at 505, 98 S.Ct. at 830. And, a reviewing court must be convinced that the trial judge exercised sound discretion in reaching its decision to grant the mistrial.² Id. at 514, 98 S.Ct. at 834. As the matter presently stands before this court, the district court concluded that given the nature of the photographs, the circumstances surrounding the jury’s viewing of them, the availability of obvious and adequate alternatives to the mistrial,³ and the record of the consideration undertaken by the state trial court in evaluating the propriety of the mistrial, the state trial judge did not exercise sound discretion in granting the mistrial and that manifest necessity did not exist. The State presently does not assert that the district court misstated the law of double jeopardy or that the factual findings of the district court are clearly erroneous, although it does note that contrary evidence was presented.⁴

Rather, the principal basis underlying the State’s request that this court grant it relief is its contention that it will be irreparably harmed by a delay in completing Petitioners’ second trial until this court has ruled. Of course, the State’s argument is premised on the assumption that ultimately it will be permitted to resume the prosecution. If the second trial is not permitted, then no harm results from a temporary postponement. And, based on the showing the State has made thus far, its likelihood of final success on the merits is bleak. Further, the State offers nothing to support its claim that it will be irreparably harmed if this court does not grant temporary relief from the order of the district court, except the federalism concerns previously discussed. As noted above, this appeal has been scheduled for argument on September 26, 1995. The State does not assert that witnesses or evidence may become unavailable, that memories will fade, or that its prosecution of Petitioners would be jeopardized in any way by this delay. The only conceivable harm that the State might suffer is that the jury presently empaneled to decide Petitioners’ guilt, while not yet tainted by outside influences and therefore able to resume the trial, may become tainted in the interim. However, there is no assurance that the state trial judge would permit the trial to resume if the State is granted the relief it seeks. The state trial judge apparently suggested that before the trial could be resumed an inquiry into whether the jury already had been tainted would be required. Further, the State points to no circumstance suggesting that any significant change will take place in the interim.

In sharp contrast, if Petitioners were prosecuted during the pendency of this appeal and it were later determined that the district court was correct in concluding that the trial violated their constitutional rights, Petitioners’ loss is irreparable. Consequently, the balance of harms does not tip in favor of the State.

It cannot be doubted, as the dissenting members of the court emphasize, that our intervention in the state criminal proceeding has disrupted it. This is particularly regrettable since much of this disruption could have been avoided had the panel of this court or the district court simply and properly granted a temporary stay of the proceeding before the trial began. This matter was presented to the district court and to a panel of this court in advance of the first juror being selected, and ample opportunity existed for the imposition of a temporary injunction during the week preceding the scheduled second trial.

It is also regrettable that, because South Carolina law does not permit an interlocutory appeal of the double jeopardy ruling, the appellate courts of that state were not the ones to rule on this matter in the first instance. However, our consideration of Petitioners’ claims shows no lack of respect for those courts. Indeed, the South Carolina appellate courts are well equipped to determine and correct any error, constitutional or otherwise, committed by its trial judges. The rub in this instance is that because of procedural rules the correction that could be afforded by those courts would come too late to safeguard the constitutional right at stake. See Abney v. United States, 431 U.S. 651, 660-62, 97 S.Ct. 2034, 2040-42, 52 L.Ed.2d 651 (1977) (Double Jeopardy Clause protects against multiple prosecutions as well as multiple convictions and punishments.).

Finally, it is unfortunate that a suggestion has been made that state trial judges must now sanction all types of errors rather than grant a mistrial. While there may be disagreement with our application of Arizona v. Washington, our decisions signal no retreat from the deferential standard the Supreme Court has established. And, the care with which state trial judges must act in granting a mistrial derives not from the intervention of the federal courts into the state criminal proceeding in this instance, but from the protection afforded by the Double Jeopardy Clause of the Constitution, as it has been interpreted by the Supreme Court, which requires manifest necessity to justify the declaration of a mistrial over a defendant’s objection once jeopardy has attached; even if this court were not to intervene in this state criminal proceedings, any subsequent conviction obtained would nevertheless be subject to review for compliance with the Constitution.

Unquestionably, a federal court should exercise its authority to stay a state criminal proceeding in only the most limited circumstances. The grant of a writ of habeas corpus on the basis that the subsequent prosecution of Petitioners would violate their constitutional right not to be twice placed in jeopardy for the same offense is an exceptional circumstance that warrants the enjoining of state criminal proceedings by the district court. The only question presently before this court is whether the State is entitled to temporary relief from that order pending our full review. The State has failed to raise any serious question concerning the correctness of the ruling of the district court and has failed to show that it will suffer any irreparable harm by awaiting the en banc decision of this court. In contrast, Petitioners will likely suffer an irreparable loss of their constitutional rights if the court grants the State the relief it seeks. Accordingly, the balance of the hardships tips decidedly in favor of Petitioners. As a result, the court denies the motion of the State for relief pending appeal from the decision of the district court granting the writ of habeas corpus.

Chief Judge ERVIN, Judge HALL, Judge MURNAGHAN, Judge HAMILTON, Judge WILLIAMS, Judge MICHAEL, and Judge MOTZ join this opinion.

1 . It is important not to lose sight of the question now presented to the court. We are asked only to decide whether the State should be granted temporary relief during the pendency of this appeal from the order of the district court granting the writ of habeas corpus. We are not called upon to offer a ruling on the merits of the appeal. However, the likelihood of success on the merits plays a part in the analysis of whether a temporary stay of the order of the district court is appropriate. See Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 813 (4th Cir.1991). So, some analysis of the comparative strength of the positions of the parties with respect to the merits is unavoidable.

2 .The state trial court never found the photographs to be inadmissible. The closest it came to doing so was to suggest that it could not speculate on whether the photographs would have been admitted. And, this must be viewed against the backdrop of the State having no objection to the admission of the photographs when the prosecuting attorney believed that they were being offered into evidence, the State’s admission to this court in prior argument before the panel that the photographs were unobjectionable save perhaps that they were cumulative, and the later admission of the photographs, over the State's objection, during the second trial. In addition, the state trial judge made no finding of prejudice when the mistrial was granted. Later, in response to Petitioners' motion to dismiss, the state trial judge characterized the incident as prejudicial, but never offered any reason why the jury's viewing of the photographs might have prejudiced either party.

3 . The district court found that, assuming arguen-do that the jury's viewing of the photographs was somehow prejudicial, the state trial judge declined to permit Officer Counts to be recalled so that the photographs could be offered into evidence, thereby improvidently ignoring a viable alternative offered by the defense that could have cured any prejudice.

4 . The State also emphasizes that it was defense counsel that was responsible for causing the unadmitted photographs to be placed before the jury. It is true that the state trial judge implicitly found that, perhaps through innocent mistake, defense counsel was responsible for permitting the jury to view the unadmitted photographs and that this finding is entitled to a presumption of correctness. See 28 U.S.C.A. § 2254(d) (West 1994). Nevertheless, the fact that defense counsel may have been, or were, responsible for the error is not determinative of whether manifest necessity existed for the grant of the mistrial. In United States v. Jorn, 400 U.S. 470, 482-86, 91 S.Ct. 547, 555-58, 27 L.Ed.2d 543 (1971) (plurality), a plurality of the Supreme Court rejected the notion that it made a difference which party committed the error when the defendant opposes a mistrial. And, although this court has intimated that a defendant’s right to a decision by an empaneled jury is particularly strong when the prosecution has caused the error, see United States v. Shafer, 987 F.2d 1054, 1057 & n. 4 (4th Cir.1993), this court has also held that a defendant's double jeopardy rights may be violated when defense counsel was solely responsible for the error, see United States v. Sloan, 36 F.3d 386 (4th Cir.1994). See also Harris v. Young, 607 F.2d 1081, 1085-86 (4th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980).