Baum v. Rushton

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UUNO MATTIAS BAUM, 
Petitioner-Appellant,
v.
COLLIE RUSHTON, Warden,  No. 07-7589
McCormick Correctional
Institution,
Respondent-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Margaret B. Seymour, District Judge.
(9:06-cv-02471-MBS)

Argued: January 28, 2009

Decided: July 16, 2009

Before WILKINSON, KING, and GREGORY,
Circuit Judges.

Affirmed by published opinion. Judge King wrote the major-
ity opinion, in which Judge Wilkinson joined. Judge Gregory
wrote a dissenting opinion.

COUNSEL

ARGUED: John Henry Blume, III, BLUME, WEYBLE &
NORRIS, L.L.C., Columbia, South Carolina, for Appellant.
2 BAUM v. RUSHTON
Melody Jane Brown, OFFICE OF THE ATTORNEY GEN-
ERAL OF SOUTH CAROLINA, Columbia, South Carolina,
for Appellee. ON BRIEF: Henry D. McMaster, Attorney
General, John W. McIntosh, Chief Deputy Attorney General,
Donald J. Zelenka, Assistant Deputy Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellee.

OPINION

KING, Circuit Judge:

Uuno Mattias "Matt" Baum appeals from the district
court’s Opinion and Order of September 2007, dismissing his
28 U.S.C. § 2254 petition for habeas corpus relief. See Baum
v. Rushton, No. 9:06-cv-02471 (D.S.C. Sept. 30, 2007) (the
"District Court Opinion").1 In January 2001, Baum was con-
victed in the Court of General Sessions for Pickens County,
South Carolina, of the murder of his stepfather, Randall Pin-
ion. Baum had previously been brought to trial for the Pinion
murder in October 2000, but, early in that trial’s second day,
the trial judge declared a mistrial after learning that Pinion’s
body had just been discovered. On direct appeal, the Court of
Appeals of South Carolina rejected Baum’s contention that
the discovery of the body did not constitute "manifest neces-
sity" for the mistrial and, thus, that his subsequent conviction
was obtained in contravention of the Double Jeopardy Clause
of the Fifth Amendment. See State v. Baum, 584 S.E.2d 419
(S.C. Ct. App. 2003) (the "State Decision"). After exhausting
his double jeopardy claim in the South Carolina state courts,
Baum pursued such claim in these habeas corpus proceedings.
As explained below, we affirm the district court’s denial of
relief.
1
The District Court Opinion is found at J.A. 329-42. (Citations herein
to "J.A. ___" refer to the contents of the Joint Appendix filed by the par-
ties in this appeal.)
 BAUM v. RUSHTON 3
I.

A.

The Court of Appeals of South Carolina, in the State Deci-
sion disposing of Baum’s direct appeal, outlined the facts sur-
rounding the Pinion murder as follows:

On October 26, 1999, Randall Pinion went to his
bank and filled out an affidavit of forgery concerning
two checks in the amount of $450.00 apiece and
made out to Matt Baum. The bank employee who
assisted Pinion gave him the original affidavit of for-
gery and instructed him to take it to the police if he
desired to prosecute. On October 27, 1999, two days
prior to Pinion’s disappearance, he arrived at work
upset and told a co-worker that Matt Baum, Pinion’s
stepson, had stolen some money from him. Pinion
told the co-worker he would give Baum two days to
repay the money or he was going to turn Baum in to
the police. On the morning of his disappearance, Pin-
ion stated to the co-worker that he was giving Baum
until that evening to give him his money. Pinion
never filed a police report in regard to the alleged
forgeries. Two weeks earlier, Baum threatened to
kill Pinion after Pinion had physically abused
Baum’s mother.

On Friday, October 29, 1999, Pinion disappeared
after leaving work. His black pickup truck was not
at his [Easley, South Carolina] home on Friday night
or Saturday morning, but appeared at his house
between 3:00 and 11:00 p.m. on Saturday, October
30. Between 4:00 and 7:00 p.m. on Sunday[,] Octo-
ber 31, the truck again disappeared from the house.
Pinion’s truck was subsequently found in a church
parking lot a few days later.
4 BAUM v. RUSHTON
On November 1, 1999, Baum sold a set of Taylor
Made golf clubs to a sporting goods store, explaining
they belonged to his stepfather, who had passed
away and left him the clubs. Pinion owned several
sets of golf clubs, including a Taylor Made set.

Police investigated Pinion’s home and pickup
truck and found Pinion’s blood in various places
throughout his home, as well as in the bed of his
pickup truck. The police also found a bloody shoe
print inside Pinion’s home. The police concluded
that Pinion had been beaten to death inside of his
home and someone thereafter attempted to clean up
the crime scene.

Based on their investigation, the authorities devel-
oped Baum as a suspect in Pinion’s disappearance.
On November 7, 1999, after receiving a tip on his
possible location, police attempted to apprehend
Baum as he fled in a white pickup truck. The chase
reached speeds of more than 100 miles per hour, and
ended when the white truck became disabled follow-
ing a traffic accident. When the police searched the
disabled truck they discovered the keys to Pinion’s
truck, a couple of Pinion’s checks, Baum’s driver’s
license, and a pair of tennis shoes whose tread was
consistent with the bloody shoe print found inside
Pinion’s home.

State v. Baum, 584 S.E.2d 419, 420-21 (S.C. Ct. App. 2003).

B.

Although the police had not located Pinion’s body, the
grand jury in Pickens County returned an indictment on
November 11, 1999, charging Baum with the Pinion murder.
Baum’s trial began on October 9, 2000, with Judge John W.
Kittredge presiding. That day, a Monday, the jury was sworn,
 BAUM v. RUSHTON 5
the parties delivered their opening statements, and the prose-
cution presented three witnesses. At the start of the trial pro-
ceedings the following Tuesday morning, the prosecution
notified the court and the defense, during an off-the-record
conference in the judge’s chambers, that it had just learned
that a body had been discovered in North Carolina and identi-
fied as Pinion’s. The prosecution thereafter made a motion in
open court (but outside the presence of the jury) for a trial
continuance or a mistrial based on the discovery of the vic-
tim’s body. The prosecution explained that the North Carolina
authorities had recovered the body on Saturday, and sent a
teletype about the body to the Easley Police Department on
Sunday. According to the prosecution, the detectives assigned
to the Pinion murder investigation did not learn about the tele-
type until Monday evening, and a positive identification of the
body as Pinion’s was not made until Tuesday morning. The
identification was made by Pinion’s dentist, based on the
North Carolina medical examiner’s description of distinctive
dental work. The prosecution presented the trial judge with an
affidavit from the dentist, executed that very morning, verify-
ing Pinion’s identification.

The prosecution asserted that a continuance or a mistrial
was necessary "to give both sides of this case time to look at
what evidence may come forward as a result of" the discovery
of Pinion’s body. J.A. 42. The prosecution explained:

Obviously, there may be — we don’t know what’s
going to show up, but there may be evidence excul-
pating the defendant. And if that’s true, he needs to
have access to that. Conversely, there may be evi-
dence that inculpates him and shows that he, in fact,
is the one who dumped the body. And if that’s the
case, he should not be allowed to benefit from his
attempt at obstructing justice.

Either way, Your Honor, I am aware that the jury
has been sworn. I would ask that Your Honor, if you
6 BAUM v. RUSHTON
are inclined to grant my motion, find that this is for
good cause and not as a result of some wrongdoing
or anything else in that way of the State, and there-
fore would not prejudice us by attaching jeopardy to
a trial that we’ve begun.

Your Honor knows that we are here and are pre-
pared to go forward. And it’s not any attempt what-
soever to continue this trial. As a matter of fact, I
believe myself and the family who are here behind
me are as ready as the defendant himself to get this
behind us. But this is important evidence that we
need to have some time to look at.

Id. at 42-43. The defense responded that it was "not joining
in [the prosecution’s] motion in any way, shape, form or fash-
ion. We are here. We’re ready for trial. And we’re ready to
proceed, Your Honor." Id. at 43. Over this objection by the
defense, Judge Kittredge declared a mistrial. He explained
that,

[b]ased on the level of certainty that this may,
indeed, be the remains of Mr. Pinion, . . . a mistrial
is warranted for good cause, not the result of any-
thing caused or done, any act or omission by the
State. I feel this is a matter of manifest necessity and
that jeopardy will continue. Jeopardy does not attach
and begin anew in my firm judgment, and I so rule
that this is a matter of manifest necessity that poten-
tially could enure to the benefit of the defendant. A
key issue in the case was the fact that the body had
not been found. This revelation is significant. And if
it actually turns out, based on the scientific examina-
tion, that this is indeed the remains of Mr. Pinion,
then this case should well not continue and be retried
at another date.
 BAUM v. RUSHTON 7
Id. at 43-44. Judge Kittredge then reiterated that "jeopardy
will continue" and concluded the proceedings, "subject to the
retrial." Id. at 44.

On November 8, 2000, Judge Kittredge entered a written
Order Declaring Mistrial. See State v. Baum, No. 99-GS-39-
1276 (S.C. Ct. Gen. Sess. Nov. 8, 2000) (the "Mistrial Order").2
The judge stated therein the following findings of fact and
conclusions of law:

Based upon everything presented to this court, I
hereby find that the discovery of the victim’s body
almost one year after the date of the alleged murder
was in no way a result of any act, omission, negli-
gence, bad faith, or lack of effort on the part of the
State. The State has diligently attempted to locate the
deceased but had simply been unable to do so. In this
regard, it is reasonable to conclude that whomever
placed the body of Randall Pinion in the remote area
of McDowell County did so to secrete the where-
abouts of the deceased and avoid detection. Further-
more, given the fact that the defendant was
incarcerated since November 7, 1999, unable to
make bond, it was imperative upon the State to pro-
ceed to trial without further delay. In fact, there was
an order requiring the case to proceed to trial.

I specifically find that it is of manifest necessity
that a mistrial be granted in this case. The potential
for exculpatory evidence being located with the body
and the disposition site is significant and could
potentially benefit or even exonerate the defendant.
This Court is aware of the concerns regarding a mis-
trial in any case and makes its decision after careful
review of all the circumstances and the possible
alternatives to granting a mistrial.
2
The Mistrial Order is found at J.A. 45-48.
8 BAUM v. RUSHTON
The court is aware of the decision in Gilliam v.
Foster, 75 F.3d 881 [(4th Cir. 1996) (en banc)], and
specifically finds that there was no other alternative
available to the court to resolve this matter. It is
imperative that the jury charged with deciding this
case be given any and all relevant evidence upon
which to base their decision. To ignore the opportu-
nity to explore the disposition of the body, which
could very likely be exculpatory to the defense, is
too great. As stated in State v. Prince, the standard
for declaring a mistrial depends upon the existence
of "manifest necessity or the ends of public justice,
the latter being defined as the public’s interest in a
fair trial designated to end in just judgment." [301
S.E.2d 471, 472 (S.C. 1983)]. See also Illinois v.
Somerville, 410 U.S. 458 (1973). Furthermore, to
suspend the trial of the case and allow the sitting jury
to resume the trial approximately two months later
would be fundamentally unfair to all concerned
(especially Defendant and the jurors) and contrary to
the ends of justice.

Having found the existence of manifest necessity
for the mistrial, jeopardy continues in this case and
the State is not prohibited from retrying this case at
a later time.

Id. at 2-3 (some internal citations omitted).

On January 22, 2001, Baum’s second trial commenced,
with Judge Henry F. Floyd presiding. The defense promptly
moved for an order, on double jeopardy grounds, barring the
State from moving forward with the trial. Judge Floyd denied
the defense’s motion, observing that "under the existing case
law of this state the previous trial judge has tied my hands and
I have no authority to override his order." J.A. 65. The trial
thereafter proceeded and, on January 24, 2001, the jury found
 BAUM v. RUSHTON 9
Baum guilty of murder. Judge Floyd sentenced Baum to life
in prison.3

Baum appealed to the Court of Appeals of South Carolina,
raising his double jeopardy claim. By its State Decision, a
three-judge panel unanimously rejected such claim, observing
in pertinent part:

Baum asserts . . . that the State sought a mistrial
to simply marshal evidence to strengthen its case
against him, and that the grant of a mistrial on such
basis is clearly prohibited by the Double Jeopardy
Clause. We agree that, as it has evolved in this coun-
try, the prohibition against double jeopardy is
intended to condemn the practice of the prosecution
requesting a mistrial for the sole purpose of buttress-
ing weakness in its evidence, and the strictest of
scrutiny is appropriate when the basis for a mistrial
is the unavailability of critical prosecution evidence.
Arizona [v. Washington, 434 U.S. 497, 507-08
(1978)]. However, we do not believe the facts of this
case warrant the conclusion that this was the reason
behind the granting of the mistrial.

First, we cannot say the body of the victim in this
case was critical evidence in the prosecution of
Baum such that its unavailability triggers the strict
scrutiny announced in Arizona [v. Washington]. As
noted by Baum, the fact that Randall Pinion had
been murdered was not in issue. At any rate, we con-
clude the discovery of the body of a victim during a
murder trial, is an extremely important piece of evi-
dence which has just as much potential to exonerate
as to inculpate an accused. The judge recognized as
3
As it turns out, Pinion’s body — an incomplete skeleton by the time
of discovery — served only to prove that Pinion had indeed died, without
providing any other useful evidence, either inculpatory or exculpatory.
10 BAUM v. RUSHTON
much, and found that the public’s interest in a fair
adjudication was implicated by the possibility of dis-
covering exculpatory evidence and giving the jury
the benefit of the fully developed facts when decid-
ing the matter. Consequently, we believe manifest
necessity was clearly established, and find no abuse
of discretion in the trial judge’s determination that a
mistrial was dictated by such.

Baum, 584 S.E.2d at 422. The state court of appeals thereafter
denied Baum’s petition for rehearing, and the Supreme Court
of South Carolina and the Supreme Court of the United States
denied Baum’s petitions for writs of certiorari.

C.

In September 2006, Baum filed his 28 U.S.C. § 2254 peti-
tion for habeas corpus relief in the District of South Carolina,
asserting his double jeopardy claim, which was exhausted in
the state courts on direct appeal.4 The parties filed cross-
motions for summary judgment, and the matter was assigned
to a magistrate judge. On April 30, 2007, the magistrate judge
issued a Report and Recommendation, concluding that the
State’s summary judgment motion should be granted and
Baum’s denied. On September 30, 2007, the District Court
Opinion was issued, granting the State’s summary judgment
motion, denying Baum’s summary judgment motion, and dis-
missing the habeas corpus petition with prejudice. On May 5,
4
Notably, prior to filing his habeas corpus petition in the district court,
Baum filed a pro se state application for post-conviction relief ("PCR").
In his PCR application, Baum asserted claims of ineffective assistance of
counsel, some related to the double jeopardy issue. One such claim was
that trial counsel was ineffective in failing to challenge Judge Kittredge’s
jurisdiction to issue the written Mistrial Order on November 8, 2000, fol-
lowing the expiration of the judge’s assignment to Pickens County at the
time of the first trial. This and the other ineffective assistance claims
raised in Baum’s PCR application are not before us in these habeas corpus
proceedings.
 BAUM v. RUSHTON 11
2008, this Court awarded Baum a certificate of appealability
on his double jeopardy claim. We possess jurisdiction over
Baum’s appeal pursuant to 28 U.S.C. §§ 1291 and 2253.

II.

We review de novo a district court’s denial of habeas cor-
pus relief on the basis of a state court record. See Tucker v.
Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). Because the Court
of Appeals of South Carolina adjudicated Baum’s double
jeopardy claim on the merits on direct appeal, its State Deci-
sion is entitled to deference pursuant to the 1996 Antiterro-
rism and Effective Death Penalty Act ("AEDPA"). See 28
U.S.C. § 2254(d). AEDPA mandates the use of a two-step
analysis to assess whether a habeas corpus petitioner is enti-
tled to relief. Under the first step of the analysis, we may
award relief only if (1) the state court adjudication of the issue
on its merits "resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States"; or (2) the adjudication "resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed-
ing." Id. And, even if error is identified, habeas corpus relief
can only be granted, under the second step of the AEDPA
analysis, if the error had a "substantial and injurious effect or
influence in determining the jury’s verdict." Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks omitted). Finally, the state court’s factual determina-
tions are presumed to be correct and may be rebutted only by
clear and convincing evidence. See § 2254(e)(1).

III.

A.

Under the Double Jeopardy Clause of the Fifth Amend-
ment, no "person [shall] be subject for the same offence to be
12 BAUM v. RUSHTON
twice put in jeopardy of life or limb." U.S. Const. amend. V.
The double jeopardy prohibition — "a fundamental ideal in
our constitutional heritage" — applies "to the States through
the Fourteenth Amendment." Benton v. Maryland, 395 U.S.
784, 794 (1969). In the case of a jury trial, jeopardy attaches
when a jury is empaneled and sworn. See Illinois v. Somer-
ville, 410 U.S. 458, 466 (1973); Downum v. United States,
372 U.S. 734, 735-36 (1963). As such, "the constitutional pro-
tection [against double jeopardy] embraces the defendant’s
valued right to have his trial completed by a particular tribu-
nal." Arizona v. Washington, 434 U.S. 497, 503 (1978) (inter-
nal quotation marks omitted). Writing for the Court in
Arizona v. Washington, Justice Stevens emphasized that "[t]he
reasons why this ‘valued right’ merits constitutional protec-
tion are worthy of repetition," explaining that

[e]ven if the first trial is not completed, a second
prosecution may be grossly unfair. It increases the
financial and emotional burden on the accused, pro-
longs 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. Consequently, as a general rule, the
prosecutor is entitled to one, and only one, opportu-
nity to require an accused to stand trial.

Id. at 503-05 (footnotes omitted). Nevertheless, "retrial is not
automatically barred when a criminal proceeding is termi-
nated without finally resolving the merits of the charges
against the accused." Id. at 505. Rather, the double jeopardy
bar may be avoided if the prosecution "demonstrate[s] ‘mani-
fest necessity’ for any mistrial declared over the objection of
the defendant." Id.

Justice Story rendered the "classic formulation" of the man-
ifest necessity test in United States v. Perez, 22 U.S. (9
 BAUM v. RUSHTON 13
Wheat.) 579 (1824). See Arizona v. Washington, 434 U.S. at
506. The Perez Court ruled that the state trial judge’s dis-
charge of the jury over the defendant’s objection, because the
jury could not agree on a verdict, "constitute[d] no legal bar
to a future trial." 22 U.S. (9 Wheat.) at 580. Justice Story
articulated that,

in all cases of this nature, the law has invested courts
of justice with the authority to discharge a jury from
giving any verdict, whenever, in their opinion, taking
all the circumstances into consideration, there is a
manifest necessity for the act, or the ends of public
justice would otherwise be defeated. They are to
exercise a sound discretion on the subject; and it is
impossible to define all the circumstances, which
would render it proper to interfere. To be sure, the
power ought to be used with the greatest caution,
under urgent circumstances, and for very plain and
obvious causes; and, in capital cases especially,
courts should be extremely careful how they inter-
fere with any of the chances of life, in favor of the
prisoner. But, after all, they have the right to order
the discharge; and the security which the public have
for the faithful, sound, and conscientious exercise of
this discretion, rests, in this, as in other cases, upon
the responsibility of the judges, under their oaths of
office.

Id. The Perez formulation, as the Court later described it in
Somerville, "abjures the application of any mechanical for-
mula by which to judge the propriety of declaring a mistrial
in the varying and often unique situations arising during the
course of a criminal trial." 410 U.S. at 462. "Indeed," the
Court explained in Arizona v. Washington, "it is manifest that
the key word ‘necessity’ cannot be interpreted literally;
instead, . . . we assume that there are degrees of necessity and
14 BAUM v. RUSHTON
we require a ‘high degree’ before concluding that a mistrial
is appropriate." 434 U.S. at 506.5

The Arizona v. Washington Court offered examples of
cases that do — and do not — involve a high degree of neces-
sity. The Court observed that "one extreme" is represented by
"cases in which a prosecutor requests a mistrial in order to
buttress weaknesses in his evidence" — an "abhorrent prac-
tice" that "the prohibition against double jeopardy as it
evolved in this country was plainly intended to condemn."
Arizona v. Washington, 434 U.S. at 507-08 (internal quotation
marks omitted). As such, the Court instructed that "the stric-
test scrutiny is appropriate when the basis for the mistrial is
the unavailability of critical prosecution evidence, or when
there is reason to believe that the prosecutor is using the supe-
rior resources of the State to harass or to achieve a tactical
advantage over the accused." Id. at 508 (footnote omitted);
see also Downum, 372 U.S. at 737-38 (sustaining double
jeopardy plea where mistrial resulted from prosecution’s fail-
ure to locate and serve subpoena on "essential" witness).

By contrast, the Arizona v. Washington Court identified the
"other extreme" of cases as those, like Perez, involving "the
classic basis for a proper mistrial," i.e., "the trial judge’s
belief that the jury is unable to reach a verdict." Arizona v.
Washington, 434 U.S. at 509. In such cases, the Court
instructed, the trial judge’s declaration of a mistrial is to be
"accorded great deference by a reviewing court." Id. at 510.
5
Importantly, if a defendant agrees to a mistrial, there usually will be no
double jeopardy bar to a retrial. As the Supreme Court observed in United
States v. Jorn, "where circumstances develop not attributable to prosecu-
torial or judicial overreaching, a motion by the defendant for mistrial is
ordinarily assumed to remove any barrier to reprosecution." 400 U.S. 470,
485 (1971) (plurality opinion). "In the absence of [a defense] motion,"
however, "the Perez doctrine of manifest necessity stands as a command
to trial judges not to foreclose the defendant’s option until a scrupulous
exercise of judicial discretion leads to the conclusion that the ends of pub-
lic justice would not be served by a continuation of the proceedings." Id.
 BAUM v. RUSHTON 15
Other cases lie somewhere between these two extremes on
the spectrum of necessity, and may (or may not) satisfy the
manifest necessity test. See Downum, 372 U.S. at 736 (recog-
nizing that "extreme case[ ]" of "[h]arassment of an accused
by . . . declaration of a mistrial so as to afford the prosecution
a more favorable opportunity to convict" fails to "mark the
limits of the guarantee"); Wade v. Hunter, 336 U.S. 684, 691
(1949) (observing that "the guiding principles of the Perez
decision . . . command courts in considering whether a trial
should be terminated without judgment to take all circum-
stances into account and thereby forbid the mechanical appli-
cation of an abstract formula" (internal quotation marks
omitted)). For instance, while the Downum Court determined
that jeopardy attached when the mistrial was declared because
of the prosecution’s failure to locate and serve a subpoena on
an "essential" witness, see 372 U.S. at 737, the Wade Court
refused to hold that "the absence of witnesses can never jus-
tify discontinuance of a trial," see 336 U.S. at 691-92 (con-
cluding that there was no double jeopardy bar to second court-
martial where first was dissolved because key witnesses were
unavailable due to military necessity).

The Somerville Court, though acknowledging that "virtu-
ally all of the cases turn on the particular facts and thus escape
meaningful categorization," recognized that, generally speak-
ing, "[a] trial judge properly exercises his discretion to declare
a mistrial if an impartial verdict cannot be reached, or if a ver-
dict of conviction could be reached but would have to be
reversed on appeal due to an obvious procedural error in the
trial." 410 U.S. at 464. The latter circumstance existed in
Somerville, where the trial judge had declared a mistrial over
the defendant’s objection after deeming the indictment to be
insufficient to charge a crime. See id. at 459 (concluding "that
the mistrial met the ‘manifest necessity’ requirement of our
cases, since the trial court could reasonably have concluded
that the ‘ends of public justice’ would be defeated by having
allowed the trial to continue"). The former circumstance was
found in Arizona v. Washington, where the trial judge had
16 BAUM v. RUSHTON
declared a mistrial because of improper remarks made by the
defense during its opening statement to the jury. See 434 U.S.
at 511, 516 (according "highest degree of respect to the trial
judge’s evaluation of the likelihood" of juror bias, even
though another judge might have proceeded with trial after
giving cautionary instruction, and concluding that manifest
necessity supported mistrial ruling).

Significantly, the Arizona v. Washington Court cautioned
that a trial judge "‘must always temper the decision whether
or not to abort the trial by considering the importance to the
defendant of being able, once and for all, to conclude his con-
frontation with society through the verdict of a tribunal he
might believe to be favorably disposed to his fate.’" 434 U.S.
at 514 (quoting United States v. Jorn, 400 U.S. 470, 486
(1971) (plurality opinion)). The Court explained that, "[i]n
order to ensure that this interest is adequately protected,
reviewing courts have an obligation to satisfy themselves that,
in the words of Mr. Justice Story, the trial judge exercised
‘sound discretion’ in declaring a mistrial." Id. Accordingly,
"if a trial judge acts irrationally or irresponsibly, his action
cannot be condoned." Id. (internal citations omitted). Because
the Arizona v. Washington trial judge had "not act[ed] precipi-
tately in response to the prosecutor’s request for a mistrial,"
but rather had "evinc[ed] a concern for the possible double
jeopardy consequences of an erroneous ruling" and provided
"both defense counsel and the prosecutor full opportunity to
explain their positions on the propriety of a mistrial," the
Court was persuaded that the judge "exercised ‘sound discre-
tion’" and that the mistrial ruling was "supported by the ‘high
degree’ of necessity which is required in a case of this kind."
Id. at 515-16; cf. Jorn, 400 U.S. at 487 (concluding that trial
judge failed to exercise sound discretion when he abruptly
and sua sponte discharged jury, without hearing from parties
or considering possibility of continuance).

We substantially relied on Arizona v. Washington for our
decision in Gilliam v. Foster, wherein we framed the primary
 BAUM v. RUSHTON 17
issue before us as "whether the state trial judge exercised
sound discretion in granting the prosecution’s motion for a
mistrial because the jury viewed certain photographs prior to
their formal admission into evidence." 75 F.3d 881, 885 (4th
Cir. 1996) (en banc) (emphasis added); see also Perez, 22
U.S. (9 Wheat.) at 580 (recognizing that trial courts "are to
exercise a sound discretion on the subject" of whether "to dis-
charge a jury from giving any verdict [because] there is a
manifest necessity for the act, or the ends of public justice
would otherwise be defeated"). We explained in Gilliam that,
under the sound discretion inquiry, "[i]f 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." 75 F.3d at 894.

From the controlling Supreme Court precedent, we gleaned
the following factors relevant to the sound discretion inquiry,
i.e., "whether the exercise of discretion by the trial judge in
granting a mistrial was sound as opposed to irrational or irre-
sponsible":

First, a reviewing court should look to whether a trial
judge rationally could conclude that the grant of the
mistrial was compelled by manifest necessity or
whether the ends of public justice demanded that one
be granted on the peculiar facts presented. In addi-
tion, a reviewing court may find relevant whether the
trial judge acted precipitately or whether the trial
judge expressed concern regarding the possible dou-
ble jeopardy consequences of an erroneous declara-
tion of a mistrial, heard extensive argument on the
appropriateness of such a measure, and gave appro-
priate consideration to alternatives less drastic than
granting a mistrial.

Gilliam, 75 F.3d at 894-95 (internal citations omitted). Apply-
ing these factors to the Gilliam record, we determined "that
neither manifest necessity nor the ends of public justice
18 BAUM v. RUSHTON
required a mistrial," and that the trial judge had otherwise
failed to exercise sound discretion in declaring one, in that he
"acted precipitately," "never evinced any awareness that the
grant of a mistrial might implicate or deprive Petitioners of
their constitutional right to have the empaneled jury decide
their guilt," and "ignored an obvious and adequate alternative
to the grant of a mistrial." Id. at 901. We therefore ruled that
the Double Jeopardy Clause barred a retrial of the petitioners.
See id. at 905.

B.

Importantly, because this matter comes before us pursuant
to Baum’s 28 U.S.C. § 2254 petition for habeas corpus relief,
our review focuses on the propriety of the State Decision of
the Court of Appeals of South Carolina. We may award Baum
relief only if the State Decision — which itself accorded def-
erence to the trial judge’s mistrial ruling in rejecting Baum’s
double jeopardy claim — can be found deficient under the
highly deferential standards mandated by AEDPA. Those
standards are contained in § 2254(d)(1)’s "contrary to" and
"unreasonable application" clauses, as well as in
§ 2254(d)(2)’s "unreasonable determination of the facts" pro-
vision. We emphasize "that it is Supreme Court precedent,
and not Fourth Circuit precedent, to which we look in apply-
ing the AEDPA standard of review." Bustos v. White, 521
F.3d 321, 325 (4th Cir. 2008).6
6
Our Bustos decision illustrates the proper application of AEDPA. The
habeas corpus petitioner therein had claimed that, "because [he] was ineli-
gible for parole, [his] attorney was constitutionally ineffective for failing
to advise him of his parole ineligibility before he pled guilty." Bustos, 521
F.3d at 325. The district court awarded Bustos relief, concluding that, "al-
though the Supreme Court had not addressed whether a parole-ineligible
defendant must be advised of his parole ineligibility before pleading
guilty, the Fourth Circuit had concluded that such a defendant must be so
advised." Id. at 324. In reversing the district court, we observed that nei-
ther that court nor Bustos identified "any Supreme Court precedent clearly
establishing the proposition that an attorney’s representation is constitu-
 BAUM v. RUSHTON 19
In disposing of Baum’s double jeopardy claim in the State
Decision, the state court of appeals identified and applied con-
trolling Supreme Court precedent, including Arizona v. Wash-
ington and Illinois v. Somerville. See State v. Baum, 584
S.E.2d 419, 422 (S.C. Ct. App. 2003). Accordingly, the State
Decision did not contravene such precedent — and thereby
qualify Baum for relief under § 2254(d)(1)’s "contrary to"
clause — by relying on contradictory legal conclusions. See
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (recognizing
that, under "contrary to" clause, federal habeas court may
grant writ if state court arrived at conclusion opposite to that
reached by Supreme Court on question of law). Baum con-
tends that he is otherwise entitled to "contrary to" clause
relief, however, because the state court of appeals decided his
double jeopardy claim differently than the Supreme Court has
decided such a claim "on a set of materially indistinguishable
facts." Id. at 413.

Additionally, Baum maintains that he qualifies for relief
under § 2254(d)(1)’s "unreasonable application" clause, as
well as § 2254(d)(2)’s "unreasonable determination of the
facts" provision. Therefore, we assess whether the state court
of appeals engaged in an "objectively unreasonable" applica-
tion of Supreme Court precedent to the facts of Baum’s case.
Williams, 529 U.S. at 409 (citing § 2254(d)(1)’s "unreason-
able application" clause). We also consider whether the court
based its decision on an "objectively unreasonable" factual
determination in view of the evidence before it, bearing in
mind that "[f]actual determinations by state courts are pre-

tionally deficient when he fails to alert a defendant considering pleading
guilty that he will not be eligible for parole," that "the Supreme Court
ha[d] specifically declined to address that very question," and that "the
majority of circuits deciding the issue" had ruled otherwise. Id. at 325. In
those circumstances, as Judge Traxler explained, there was "no basis for
determining that the state court decision was contrary to, or involved an
unreasonable application of, clearly established Supreme Court law." Id.
at 326.
20 BAUM v. RUSHTON
sumed correct absent clear and convincing evidence to the
contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(citing § 2254(d)(2), (e)(1)); see also Lenz v. Washington, 444
F.3d 295, 300-01 (4th Cir. 2006).

Baum relies on two contentions in seeking habeas corpus
relief on his double jeopardy claim: first, that the state court
of appeals should have applied strict scrutiny to the trial
judge’s mistrial ruling; and, second, that the court should have
concluded, even without the application of strict scrutiny, that
the trial judge abused his discretion in declaring the mistrial.
We assess these contentions in turn, within the confines of the
highly deferential standard of review mandated by AEDPA.

1.

We begin with Baum’s contention that the state court of
appeals should have applied strict scrutiny to the trial judge’s
mistrial ruling. As the Supreme Court recognized in Arizona
v. Washington, "the strictest scrutiny is appropriate when the
basis for the mistrial is the unavailability of critical prosecu-
tion evidence, or when there is reason to believe that the pros-
ecutor is using the superior resources of the State to harass or
to achieve a tactical advantage over the accused." 434 U.S. at
508 (footnote omitted); see also, e.g., Downum, 372 U.S. at
737 (concluding that second trial contravened Double Jeop-
ardy Clause, where first jury discharged because prosecution
failed to locate and serve subpoena on "essential" witness, and
thereby "‘entered upon the trial of the case without sufficient
evidence to convict’" (quoting Cornero v. United States, 48
F.2d 69, 71 (9th Cir. 1931))). Significantly, however, the state
court of appeals concluded that it could not deem Pinion’s
body to be "critical evidence in the prosecution of Baum such
that its unavailability triggers the strict scrutiny announced in
Arizona [v. Washington]." Baum, 584 S.E.2d at 422. The
court explained that, "[a]s noted by Baum, the fact that Ran-
dall Pinion had been murdered was not in issue." Id.; see also
J.A. 160 (acknowledgment in Baum’s state court of appeals
 BAUM v. RUSHTON 21
brief that "the fact that the victim had been murdered was not
contested"). The court further observed that the mistrial was
declared on the ground that the body had "just as much poten-
tial to exonerate as to inculpate" Baum — not to afford the
prosecution a tactical advantage. Baum, 584 S.E.2d at 422;
see also Mistrial Order 2-3 ("The potential for exculpatory
evidence being located with the body and the disposition site
is significant and could potentially benefit or even exonerate
the defendant.").

In these habeas corpus proceedings, Baum challenges the
state court of appeals’s characterization of the body as not
being "critical" prosecution evidence, i.e., evidence necessary
to the prosecution to obtain a conviction. Baum asserts that
"evidence that the body of the victim had been found was
important to establishing" the fact that Pinion had died, and
he points to the trial judge’s acknowledgment, in making his
oral mistrial ruling, that the discovery of the body was a "sig-
nificant revelation." Br. of Appellant 18-19 (citing J.A. 44).
Baum further criticizes the notion that the mistrial ruling was
premised on the possibility that the body would produce
exculpatory evidence. According to Baum,

[a]t the time of the trial judge’s ruling, there was no
evidence to suggest that the newly discovered,
decomposed body could in any way exculpate the
defendant. Any doubt on this matter was established
by the defense’s objection to the motion for a mis-
trial. At the second trial, the evidence tended to show
that a full DNA profile could not be developed from
the remains of the body because it was so decom-
posed. While the prosecution was able to use the par-
tial DNA print to confirm the medical examiner’s
identification of the body from dental records as
being that of Randall Pinion, it was very unlikely
that a decomposed body would be able to provide a
DNA sample sufficient to exculpate appellant.
22 BAUM v. RUSHTON
Id. at 19 (internal citation omitted).

Unfortunately for Baum, he has failed to rebut, by clear and
convincing evidence, the factual determination that Pinion’s
body did not constitute "critical" prosecution evidence. See 28
U.S.C. § 2254(e)(1). Rather, Baum merely asserts that the
body was "important" and "significant" evidence, without
contending — contrary to the determination of the state court
of appeals — that the prosecution could not have obtained a
conviction without the body. Of course, such an argument
would be difficult for Baum to make, in that — as the state
court of appeals recognized and Baum’s brief to that court
confirms — Baum himself acknowledged that "the fact that
Randall Pinion had been murdered was not in issue." Baum,
584 S.E.2d at 422; see also J.A. 160.

Furthermore, Baum’s contention that it was unreasonable to
believe the body might lead to exculpatory evidence, because
of its heavily decomposed state, is unavailing. The record
reflects that, at the time the mistrial was declared, the body
was just freshly discovered, and the trial judge did not know
what evidence it would (or would not) reveal. The judge
expressed a belief, however, that exculpatory evidence could
be found not only "with the body," but also at "the disposition
site." Mistrial Order 2. The record contains no evidence that
the trial judge was on notice that the body was too decom-
posed to produce exculpatory evidence or that there was no
possibility of locating such evidence upon examination of the
surrounding site. Indeed, there has been no showing that, at
the time of the mistrial ruling, anyone knew for sure that a
search for exculpatory evidence would be a futile endeavor.7
7
Despite Baum’s suggestion to the contrary, the defense’s objection to
the prosecution’s motion for a mistrial did not serve to put the trial judge
on notice that exculpatory evidence could not possibly be found on or
around Pinion’s body. In making the objection, the defense simply
explained, "We are here. We’re ready for trial. And we’re ready to pro-
ceed, Your Honor." J.A. 43.
 BAUM v. RUSHTON 23
Finally, Baum’s theory that the trial judge should have
known Pinion’s body was too decomposed to reveal exculpa-
tory evidence undermines any contention that the mistrial rul-
ing was intended to afford the prosecution a tactical
advantage. If the judge was aware that the body was too
decomposed to reveal exculpatory evidence, he was also
aware of the impossibility of discovering inculpatory evi-
dence. And, it would have been apparent to the judge that the
body could only constitute evidence of Pinion’s death — evi-
dence unnecessary to the prosecution, in that it undisputedly
had at the ready sufficient alternative proof that Pinion had
been murdered.8

In these circumstances, it was not objectively unreasonable
for the state court of appeals to rule that Pinion’s body did not
constitute critical prosecution evidence, and that the purpose
of the mistrial was not to bestow on the prosecution a tactical
advantage over Baum. As such, the court properly refused,
consistent with Supreme Court precedent, to apply strict scru-
tiny in its review of the trial judge’s mistrial ruling.

2.

We turn to Baum’s contention that the court should have
concluded, even without the application of strict scrutiny, that
the trial judge abused his discretion in declaring the mistrial.
8
Baum has raised the additional argument in these habeas corpus pro-
ceedings that the prosecution sought the mistrial for reasons unrelated to
the discovery of Pinion’s body: specifically, (1) to bolster a weakness in
its case revealed by Edie Pinion (the victim’s wife and Baum’s mother),
who gave testimony damaging to the prosecution at the first trial but
changed her testimony to Baum’s detriment at the second; and (2) to
secure an additional witness, Juanita Trueblood, who gave a statement to
police inculpating Baum just two days after the mistrial was declared. This
argument is not properly before us, however, because Baum failed to raise
it in the state court of appeals. See Kasi v. Angelone, 300 F.3d 487, 501
(4th Cir. 2002) ("Before a court may address a claim raised in a federal
habeas petition, the petitioner must have first exhausted the claim in state
court." (citing 28 U.S.C. § 2254(b), (c))).
24 BAUM v. RUSHTON
In assessing this contention, we utilize Gilliam’s analytic
framework for performing a "sound discretion" inquiry.
Under this framework, which was gleaned from controlling
Supreme Court precedent, we first "look to whether [the] trial
judge rationally could conclude that the grant of the mistrial
was compelled by manifest necessity or whether the ends of
public justice demanded that one be granted on the peculiar
facts presented." Gilliam, 75 F.3d at 894. Next, we consider
whether, on the one hand, "the trial judge acted precipitately,"
or whether, on the other hand, he "expressed concern regard-
ing the possible double jeopardy consequences of an errone-
ous declaration of a mistrial, heard extensive argument on the
appropriateness of such a measure, and gave appropriate con-
sideration to alternatives less drastic than granting a mistrial."
Id. at 895. Of course, under AEDPA, we are constrained to
accept the state court of appeals’s answers to these questions
so long as they were not contrary to, and did not involve an
unreasonable application of, Supreme Court precedent, and
providing they were not based on an unreasonable determina-
tion of the facts in light of the evidence presented. See 28
U.S.C. § 2254(d); cf. United States v. Dunbar, 987 F.2d 1054
(4th Cir. 1993) (reviewing double jeopardy claim on direct
appeal).

a.

On the first question — "whether [the] trial judge rationally
could conclude that the grant of the mistrial was compelled by
manifest necessity or whether the ends of public justice
demanded that one be granted on the peculiar facts pres-
ented," Gilliam, 75 F.3d at 894 — the state court of appeals
focused on the unique circumstance of the discovery of Pin-
ion’s body. More specifically, the court recognized that,
although the body did not constitute "critical" prosecution evi-
dence, it was nevertheless "an extremely important piece of
evidence which ha[d] just as much potential to exonerate as
to inculpate" Baum. Baum, 584 S.E.2d at 422. According to
the court, "manifest necessity" for the mistrial ruling was
 BAUM v. RUSHTON 25
"clearly established" by the trial judge’s finding "that the pub-
lic’s interest in a fair adjudication was implicated by the pos-
sibility of discovering exculpatory evidence and giving the
jury the benefit of the fully developed facts when deciding the
matter." Id.

Notably, in discussing the amount of deference due to the
trial judge, the state court of appeals invoked both Supreme
Court and South Carolina decisions:

Given the "varying and often unique situations aris-
ing during the course of a criminal trial," the United
States Supreme Court has recognized a broad discre-
tion reserved to a trial judge in declaring a mistrial.
[State v. Kirby, 236 S.E.2d 33, 35 (S.C. 1977) (quot-
ing Somerville, 410 U.S. at 462)]. A trial judge’s
decision to grant a mistrial will not be overturned
absent an abuse of discretion amounting to an error
of law. [State v. Rowlands, 539 S.E.2d 717, 719
(S.C. Ct. App. 2000)].

Baum, 584 S.E.2d at 422. The court thereby suggested that,
like the trial judge’s determination in Arizona v. Washington,
the trial judge’s mistrial ruling in Baum’s case was "entitled
to special respect." 434 U.S. at 510. Baum distinguishes Ari-
zona v. Washington, however, on the ground that the mistrial
therein — in contrast to the mistrial in his case — was
declared out of concern for juror bias. He further maintains
that, on the spectrum of necessity discussed in Arizona v.
Washington, his "case falls closer to the end of the spectrum
where manifest necessity does not exist because the mistrial
was granted on the basis that critical prosecution evidence
was unavailable." Br. of Appellant 26 (internal quotation
marks omitted).

Even accepting Baum’s position that the trial judge’s mis-
trial ruling is entitled to little deference, Baum yet fails to
establish that the State Decision was deficient enough to enti-
26 BAUM v. RUSHTON
tle him to habeas corpus relief under AEDPA.9 Baum attempts
to convince us otherwise by drawing analogies to factually
distinguishable cases in which manifest necessity was not
found, and by conjuring up analogous hypothetical scenarios
in which manifest necessity presumably would not be found.
For example, in his appellate brief, Baum asserts that the logic
underlying the State Decision’s manifest necessity determina-
tion, that the jury should have the benefit of fully developed
facts, "would cover any of the missing witness cases where
the [Supreme] Court has determined that a mistrial was
improperly granted." Br. of Appellant 34. And, at oral argu-
ment, Baum’s counsel analogized this matter to a hypothetical
sexual assault case where the prosecution proceeds to trial in
reliance on eyewitness identification, but then moves for a
mistrial to utilize newly announced, potentially inculpatory or
exculpatory DNA testing. According to Baum, a mistrial in
such circumstances would never be granted — and, thus, the
mistrial in his case should not have been declared either.

Simply put, Baum’s analogies and hypothetical scenarios
are unhelpful to him. Although the Supreme Court has dem-
onstrated a willingness to deduce some general principles
from its established double jeopardy jurisprudence, see Som-
erville, 410 U.S. at 464 (recognizing that, generally speaking,
"[a] trial judge properly exercises his discretion to declare a
mistrial if an impartial verdict cannot be reached, or if a ver-
dict of conviction could be reached but would have to be
reversed on appeal due to an obvious procedural error in the
trial"), the Court has admonished time and again that "virtu-
ally all of the cases turn on the particular facts and thus escape
meaningful categorization," id.; see also Jorn, 400 U.S. at 485
("The conscious refusal of this Court to channel the exercise
9
In light of this conclusion, we need not reach an additional assertion
raised by Baum: that the state court of appeals erred by invoking its earlier
decision in Rowlands, for the proposition that a mistrial ruling will not be
overturned absent an abuse of discretion amounting to an error of law,
because such standard is incompatible with Supreme Court precedent.
 BAUM v. RUSHTON 27
of [judicial] discretion according to rules based on categories
of circumstances reflects the elusive nature of the problem
presented by judicial action foreclosing the defendant from
going to his jury." (internal citation omitted)). Moreover,
Baum has not identified a single Supreme Court case involv-
ing facts close enough to the facts here to compel a decision
in his favor. See Williams, 529 U.S. at 413 (recognizing avail-
ability of habeas corpus relief under 28 U.S.C. § 2254(d)(1)’s
"contrary to" clause if state court decided matter differently
than Supreme Court has on "set of materially indistinguish-
able facts").

To be sure, the mistrial in question was declared as the
result of an extraordinary event: the discovery of Pinion’s
body on the eve of Baum’s trial and the body’s identification
just before the start of the trial’s second day. Although Baum
wished to proceed without delay, the judge believed the ends
of public justice could only be served by a mistrial. The court
of appeals expressed no hesitation in deeming the discovery
and identification of Pinion’s body to constitute manifest
necessity for the mistrial; rather, the court declared such
necessity to be "clearly established" by the trial judge’s find-
ing "that the public’s interest in a fair adjudication was impli-
cated by the possibility of discovering exculpatory evidence
and giving the jury the benefit of the fully developed facts
when deciding the matter." Baum, 584 S.E.2d at 422.
Although we might consider manifest necessity a closer call
than the state court of appeals apparently did, we cannot say
that its determination was objectively unreasonable.

It is entirely understandable why the trial judge and the
state court of appeals conferred special significance on the
body as a potential source of evidence — and, particularly, as
a potential source of exculpatory evidence. Baum was, need-
less to say, presumed to be innocent. And there are countless
examples of exculpatory evidence (including DNA evidence)
being recovered from victims of murder and other crimes.
See, e.g., Thompson v. Connick, 553 F.3d 836, 845 (5th Cir.
28 BAUM v. RUSHTON
2008) (robbery conviction vacated as result of bloody swatch
from victim’s pants excluding Thompson as perpetrator);
Pierce v. Gilchrist, 359 F.3d 1279, 1281 (10th Cir. 2004)
(rape conviction vacated "[b]ecause DNA analysis demon-
strated that Pierce could not have been the source of the
semen found on the rape victim"); Gomez v. Atkins, 296 F.3d
253, 260 (4th Cir. 2002) (murder charge against Gomez dis-
missed due to exculpatory results of scientific tests on vic-
tim’s fingernail scrapings and loose hairs found on her body);
see also Rick Brundrett, Questions of Innocence: Sometimes
the Bad Guy Isn’t the One Doing Time, The State (Columbia,
S.C.), July 4, 2004, at A1 ("A recent S.C. exoneration case
involved Perry Mitchell, who was freed in 1998 after serving
more than 14 years in prison for the 1982 rape of a teenage
girl in Lexington County. He was convicted largely on the
testimony of the victim; a DNA test later said he didn’t do
it.").

Because of the singular and potentially substantial evidenti-
ary value of the victim’s body to a murder case, it also was
reasonable for the state court of appeals to endorse the trial
judge’s determination that further examination of Pinion’s
newly discovered body was justified to afford the jury the
benefit of the fully developed facts. As the Supreme Court
recognized in Wade, "a defendant’s valued right to have his
trial completed by a particular tribunal must in some instances
be subordinated to the public’s interest in fair trials designed
to end in just judgments." 336 U.S. at 689. In light of this
principle, the Wade Court approved of a second court-martial
of the defendant even though the first was dissolved because
of the absence of prosecution witnesses, because a tactical
military situation — and not the prosecution’s bad faith —
had caused the witnesses to be unavailable. Id. at 691-92; see
also United States ex rel. Gibson v. Ziegele, 479 F.2d 773,
775 (3d Cir. 1973) (rejecting double jeopardy claim where
mistrial declared due to sudden illness of "key prosecution
witness," which rendered him unable to take stand for at least
one to two weeks). Here, the trial judge found that the belated
 BAUM v. RUSHTON 29
discovery of Pinion’s body "was in no way a result of any act,
omission, negligence, bad faith, or lack of effort on the part
of the State," Mistrial Order 2, and that the potential evidenti-
ary value of the body — not only as a source of exculpatory
evidence for Baum, but also relevant evidence "imperative" to
a just judgment by the jury — was "too great" to ignore, id.
at 3. The state court of appeals agreed with the trial judge’s
manifest necessity determination, and we also must say that
it was a rational one.10

b.

Next, we consider whether the trial judge otherwise exer-
cised sound discretion in declaring the mistrial — that is,
"whether the trial judge acted precipitately," or whether he
"expressed concern regarding the possible double jeopardy
consequences of an erroneous declaration of a mistrial, heard
extensive argument on the appropriateness of such a measure,
and gave appropriate consideration to alternatives less drastic
than granting a mistrial." Gilliam, 75 F.3d at 895. This issue
was not explicitly addressed in the State Decision. We never-
theless agree with the district court that, "[a]lthough the South
Carolina Court of Appeals did not specifically indicate it
found the trial judge made a reasoned decision, with those
exact words, it is clear that the court of appeals reviewed the
trial court’s decision and found it appropriate based on sound
discretion." District Court Opinion 10. In these circumstances,
"we still apply [AEDPA’s] deferential standard of review" in
considering the sound discretion question, but "we must con-
duct an independent review of the record and the applicable
law to make the [AEDPA] determinations." Fullwood v. Lee,
10
Baum points out that, although retrial may be proper where a trial
judge grants a mistrial "‘in the sole interest of the defendant,’" Br. of
Appellant 17 (quoting Gori v. United States, 367 U.S. 364, 369 (1961)),
this was not such a case. Plainly, however, neither the State Decision nor
our decision today relies on the proposition that the mistrial was declared
for Baum’s sole benefit.
30 BAUM v. RUSHTON
290 F.3d 663, 677 (4th Cir. 2002) (citing Bell v. Jarvis, 236
F.3d 149, 158, 163 (4th Cir. 2000) (en banc)).

The record reflects that, at the start of the second day of
Baum’s trial just after the body had been identified as Pin-
ion’s, the trial judge conducted an off-the-record conference
in his chambers, during which, according to the parties, the
prosecution announced the discovery of the body. The judge
then conducted proceedings in open court, outside the pres-
ence of the jury. At that time, the prosecution moved for a
trial continuance or a mistrial, described the events surround-
ing the discovery and identification of Pinion’s body, and
argued the merits of the continuance-or-mistrial motion. The
defense was afforded an opportunity to respond — and it did
so, registering its objection to the prosecution’s motion on the
ground that Baum was "ready to proceed." J.A. 43. The judge
then announced his decision to declare a mistrial, explaining
that it was "a matter of manifest necessity," in that there was
good cause shown (and no bad faith demonstrated) by the
prosecution, and that further examination of the body "could
enure to the benefit of the defendant." Id. Furthermore, the
judge evinced an awareness of the ramifications of his mis-
trial ruling, by discussing the manifest necessity issue and
specifying that "jeopardy will continue." Id.

Thereafter, in his written Mistrial Order, the judge reiter-
ated the reasons for his manifest necessity determination and
emphasized that he ruled only "after careful review of all the
circumstances and the possible alternatives to granting a mis-
trial." Mistrial Order 3. The judge also acknowledged our Gil-
liam decision and found "that there was no other alternative
available to the court to resolve this matter." Id. As to the pos-
sibility of a trial continuance, the judge observed that "to sus-
pend the trial of the case and allow the sitting jury to resume
the trial approximately two months later would be fundamen-
tally unfair to all concerned (especially Defendant and the
jurors) and contrary to the ends of justice." Id.
 BAUM v. RUSHTON 31
Baum contends that "[t]he short amount of time that passed
between the request for a mistrial or continuance and the
granting of the mistrial demonstrates that the trial judge failed
to meaningfully consider the continuance alternative." Br. of
Appellant 31. Although the proceedings leading up to the mis-
trial ruling (or at least the proceedings in open court) were
indeed brief, there is no indication that the trial judge
restricted the parties’ opportunity to be heard or otherwise
acted precipitately. Rather, the judge heard all the argument
the parties apparently wished to give, expressed concern
about the jeopardy issue, and, as reflected in the Mistrial
Order, considered and rejected a trial continuance as a possi-
ble alternative to a mistrial.

Baum also attacks, for lack of support in the record, the
judge’s finding that a two-month continuance would have
been necessary. Yet Baum fails to rebut such finding by clear
and convincing evidence, asserting only that the prosecution’s
"willingness to pursue this option reveals that the continuance
would not have been for nearly so long a period of time." Br.
of Appellant 30 n.19. The finding of the judge — who was in
a far better position than any reviewing court to evaluate the
likely length of delay and its probable effects on Baum and
the jury — simply cannot be overturned on such a flimsy
basis. Moreover, even if another judge might have granted a
continuance instead of a mistrial, this judge was not obligated
to do so. Cf. Arizona v. Washington, 434 U.S. at 511 (accord-
ing "highest degree of respect" to judge’s mistrial ruling, even
though "some trial judges might have proceeded with the trial
after giving the jury appropriate cautionary instructions"). Put
succinctly, whereas the judges in Jorn and Gilliam acted irra-
tionally and irresponsibly, see Jorn, 400 U.S. at 487 (judge
abruptly and sua sponte discharged jury, without hearing from
parties or considering continuance option); Gilliam, 75 F.3d
at 895 (judge acted precipitately, failed to acknowledge
defendants’ interest in proceeding before empaneled jury, and
ignored obvious and adequate alternative to mistrial), the
judge in this case can reasonably be said to have exercised
32 BAUM v. RUSHTON
sound discretion. That is, such a conclusion is neither contrary
to, nor an unreasonable application of, clearly established
Supreme Court law.11

IV.

Pursuant to the foregoing, we affirm the district court’s dis-
missal of Baum’s 28 U.S.C. § 2254 petition for habeas corpus
relief.

AFFIRMED

GREGORY, Circuit Judge, dissenting:

In nine short sentences immediately following the prosecu-
tion’s motion for a continuance or mistrial, the trial court in
this case declared a mistrial without adequately considering
reasonable alternatives to what was undoubtedly a drastic
course of action. A month later, the court issued a written
order setting forth constitutionally insufficient justifications
for its actions. Under these circumstances, I cannot conclude
that "the trial judge expressed concern regarding the possible
double jeopardy consequences of an erroneous declaration of
11
Finally, Baum makes two additional arguments that merit our atten-
tion. First, Baum asserts that, because Pinion’s body was found two days
before the trial began and jeopardy attached, the prosecution cannot rely
on the discovery of the body to establish manifest necessity for the mistrial
ruling. Fatal to Baum’s contention, the body was not identified as Pinion’s
until the second morning of trial, just before the mistrial was declared, and
Baum has otherwise failed to rebut the trial judge’s finding of a lack of
bad faith or neglect on the prosecution’s part. Second, Baum maintains
that the record does not support the trial judge’s statements, in the Mistrial
Order, that "it was imperative upon the State to proceed to trial without
further delay" and that "there was an order requiring the case to proceed
to trial." Mistrial Order 2. According to Baum, there was an order in place
only to the effect that Baum would be entitled to bond if he were not tried
by September 30, 2000. Although Baum appears to be correct on this
point, the purported order to proceed was not central to the mistrial ruling
or the State Decision.
 BAUM v. RUSHTON 33
a mistrial, heard extensive argument on the appropriateness of
such a measure, and gave appropriate consideration to alterna-
tives less drastic than granting a mistrial." Gilliam v. Foster,
75 F.3d 881, 895 (4th Cir. 1996) (en banc), cert. denied, 517
U.S. 1220 (1996).

I.

The majority has thoroughly set forth the facts, and I do not
read them differently. Relevant to my consideration, however,
is the following: On October 10, 2000, the second day of
Baum’s trial, the prosecution moved for a continuance or mis-
trial based on the discovery of Pinion’s body. At that point,
the jury had been sworn in and had heard the testimony of
three witnesses. Baum opposed the motion, but the trial court
granted it. In granting the mistrial, the court stated, in its
entirety:

I’m going to declare a mistrial. I have received an
affidavit from the dentist. Based on his review of the
situation and a conference with the medical exam-
iner for the state of North Carolina, based on the
level of certainty that this may, indeed, be the
remains of Mr. Pinion, that a mistrial is warranted
for good cause, not the result of anything caused or
done, an act or omission by the state. I feel this is a
matter of manifest necessity and that jeopardy will
continue. Jeopardy does not attach and begin anew
in my firm judgment, and I so rule that this is a mat-
ter of manifest necessity that potentially could inure
to the benefit of the defendant. A key issue in the
case was the fact that the body had not been found.
This revelation is significant. And if it actually turns
out, based on the scientific examination, that this is
indeed the remains of Mr. Pinion, then this case
should well not continue and be retried at another
date.
34 BAUM v. RUSHTON
Again, I note jeopardy will continue, and that’s my
ruling in the case.

(J.A. 43-44.) On November 8, 2000, approximately one
month after the court granted the state’s motion for a mistrial,
it issued a written order explaining its reasoning for doing so.

At Baum’s second trial, he argued that the Double Jeopardy
Clause barred the proceedings, but the judge denied the
motion, noting, "I agree with your argument, but I can’t grant
you the relief simply because under the existing case law of
this state the previous trial judge has tied my hands and I have
no authority to override his order." (J.A. 65.) On January 24,
2001, the jury found Baum guilty, and the judge sentenced
him to life in prison.

II.

The Double Jeopardy Clause of the Fifth Amendment man-
dates that no "person be subject for the same offence to be
twice put in jeopardy of life or limb." The Supreme Court has
instructed that "[w]e resolve any doubt in favor of the liberty
of the citizen, rather than exercise what would be an unlim-
ited, uncertain, and arbitrary judicial discretion." Downum v.
United States, 372 U.S. 734, 738 (1963) (internal quotation
omitted).

In Arizona v. Washington, the Supreme Court recognized
that a second trial "increases the financial and emotional bur-
den on the accused, prolongs the period in which he is stigma-
tized by an unresolved accusation of wrongdoing, and may
even enhance the risk that an innocent defendant may be con-
victed." 434 U.S. 497, 503-04 (1978) (internal footnote omit-
ted). Thus, "in view of the importance of the right [to freedom
from double jeopardy], and the fact that it is frustrated by any
mistrial, the prosecutor must shoulder the burden of justifying
the mistrial if he is to avoid the double jeopardy bar. His bur-
den is a heavy one." Id. at 505.
 BAUM v. RUSHTON 35
In Gilliam v. Foster, this Court noted, "If the grant of a
mistrial by the trial judge amounts to an irrational or irrespon-
sible act, he must be found to have abused his discretion in
finding that manifest necessity for the mistrial existed." 75
F.3d at 894. In making this assessment, the Court, construing
Supreme Court precedent, set forth two prongs for a review-
ing court to consider: first, "whether a trial judge rationally
could conclude that the grant of the mistrial was compelled by
manifest necessity or whether the ends of public justice
demanded that one be granted on the peculiar facts pres-
ented." Id. Additionally, a court should consider whether the
judge "acted precipitately or whether the trial judge expressed
concern regarding the possible double jeopardy consequences
of an erroneous declaration of a mistrial, heard extensive
argument on the appropriateness of such a measure, and gave
appropriate consideration to alternatives less drastic than
granting a mistrial." Id. at 895.

Applying these factors to the present case, first, the trial
court’s rationale behind its finding of manifest necessity was
grossly insufficient. At trial, the court’s primary reason for
declaring the mistrial was that it viewed Pinion’s body to be
crucial evidence without which a trial could not proceed. Yet
both the state and the appellant were prepared to proceed to
trial without the body. The state was prepared to present what
it thought was sufficient evidence to support its theory that
Baum murdered his stepfather ("I believe myself and the fam-
ily who are here behind me are as ready as the defendant him-
self to get this behind us." (J.A. 43)), and the defense was
prepared to defend against such a theory ("We are here. We’re
ready for trial. And we’re ready to proceed, your honor."
(Id.)). Neither side depended on Pinion’s body for its case.
Thus, the body could not have reasonably been viewed as cru-
cial evidence whose absence would undermine the trial.

Notably, the trial court did not consider at the time of the
mistrial declaration whether there were alternatives to a mis-
36 BAUM v. RUSHTON
trial, and it did not hear extensive argument on the appropri-
ateness of the mistrial.

In order to determine if the mistrial was required by
manifest necessity, the critical inquiry is whether
less drastic alternatives were available. If alterna-
tives 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.

United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir. 1993)
(internal quotations and citations omitted) (emphasis added);
see also Harris v. Young, 607 F.2d 1081, 1085 n.4 (4th Cir.
1979) ("If obvious and adequate alternatives to aborting the
trial were disregarded, this suggests the trial judge acted
unjustifiably.").

There is no indication in the record as to why a two-month
suspension of Baum’s trial would have been necessary in
order to examine the body properly. As we noted in United
States v. Sloan, "‘Speculation . . . cannot serve as a basis for
manifest necessity.’" 36 F.3d 386, 400 (4th Cir. 1994) (quot-
ing United States v. Allen, 984 F.2d 940, 942 (8th Cir. 1993))
(alteration in original). In actuality, the coroner’s report was
ready at the end of the day the mistrial was actually granted.
At most, therefore, the trial would have had to have been sus-
pended only a short period of time in order to allow each side
to assess the newly acquired evidence. See, e.g., Dunkerley v.
Hogan, 579 F.2d 141, 148 (2d Cir. 1978) ("[T]he apparent
availability of at least one alternative to a mistri-
al—adjourning the trial for 7 to 10 days—leads us to conclude
that a mistrial was not a ‘manifest necessity.’"). Tellingly, the
prosecutor asked for either a continuance or a mistrial. Thus,
even the state thought that a continuance would have been
sufficient to consider the new evidence.

Of course, the trial court did not know at the time how long
it would take to examine Pinion’s body, and deference is
 BAUM v. RUSHTON 37
owed to the court in its assessment of whether a continuance
is warranted. But deference is not blind approval, and "[i]f the
record reveals that the trial judge has failed to exercise the
‘sound discretion’ entrusted to him, the reason for such defer-
ence by an appellate court disappears." Washington, 434 U.S.
at 510 n.28; see also Gilliam, 75 F.3d at 900. The record in
this case presents absolutely no justification for the trial
judge’s two-month estimate. As the Gilliam Court aptly noted
in that case:

If the situation facing this state trial court could be
found to support a conclusion that manifest necessity
or the ends of public justice required the grant of a
mistrial, those words have little meaning, and the
standard for trial judges to employ in deciding the
appropriateness of the grant of a mistrial may as well
be articulated in terms of whether a trial judge in
good faith deems the mistrial advisable. Moreover,
if the circumstances surrounding the grant of this
mistrial could be found to sustain a determination
that the state trial judge exercised sound discretion in
granting a mistrial, there would be little point to pro-
viding any level of judicial review of such decisions.

75 F.3d at 903. Similarly, the Sloan Court concluded that,
"[i]f the court below had explored alternatives, it would have
had to recognize that declaration of a mistrial was unneces-
sary." 36 F.3d at 400. Likewise, had the trial court taken the
reasonable course of action in this case and granted even a
short continuance to properly ascertain how quickly informa-
tion could be gathered, it likely would have discovered that,
due to the state of the body’s decomposition and the limited
amount of evidence that could be gathered from it, the poten-
tial for undue delay did not necessitate a mistrial.

To compound the injury, the court’s written order support-
ing the mistrial declaration, issued approximately one month
after the oral declaration, did little to justify its actions. The
38 BAUM v. RUSHTON
court found that because Baum had been unable to post bond,
"it was imperative upon the State to proceed to trial without
further delay" (no explanation as to how this factors into the
mistrial calculus); that there was no other alternative to mis-
trial (no explanation); that it would have been too risky not to
examine the body (a mistrial was not necessary to do this);
that evidence could have been favorable to the defense (possi-
ble, but still not a justification for a mistrial); and that "to sus-
pend the trial of the case and allow the sitting jury to resume
the trial approximately two months later would be fundamen-
tally unfair to all concerned . . . and contrary to the ends of
justice" (again, no support for this two-month estimate). (J.A.
46-47.)

The written order did not, under any reasonable reading,
adequately address why a continuance would not be sufficient
or whether the court considered any other alternatives to a
mistrial. "A judge cannot find that manifest necessity requires
declaration of a mistrial ‘until a scrupulous exercise of judi-
cial discretion leads to the conclusion that the ends of public
justice would not be served by a continuation of the proceed-
ings.’" Sloan, 36 F.3d at 393-94 (quoting United States v.
Jorn, 400 U.S. 470, 485 (1971) (plurality) (emphasis added)).
AEDPA requires us to give deference to state court decisions.
But AEDPA does not require us to turn a blind eye to a mis-
trial declaration that flies in the face of the Constitution and
Supreme Court precedent.

III.

The record in this case reveals that the state trial court
impermissibly ended Baum’s first trial and unnecessarily
opened the courthouse doors for a second prosecution. We
must not take lightly the harm that results from being twice
subjected to jeopardy. Likewise, we must not denigrate the
defendant’s "valued right to have his trial completed by a par-
ticular tribunal." Washington, 434 U.S. at 503 (internal quota-
tion omitted). Even if I were to assume, as the majority holds,
 BAUM v. RUSHTON 39
that strict scrutiny does not apply to this case, I am convinced
that the state trial court abused its discretion in declaring a
mistrial for manifest necessity and that such abuse was con-
trary to clearly established Supreme Court precedent. Thus, I
am compelled to dissent.