Walck v. Edmondson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 4, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

D A RRAH R. WA L CK ,

Petitioner - Appellee,

v. No. 05-6273

W .A . D REW E D MO N D SO N ,
Attorney General,

Respondent,

and

KURT SH IREY, Sheriff,
Pottawatomie County,

Respondent - Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D .C. No. 05-CV-430-R)

Steven M ichael Presson, Jackson & Presson, P.C., Norman, Oklahoma, for
Petitioner - Appellee.

M ichael S. Ashworth, (John J. Foley, Assistant District Attorney, and Richard
Smotherman, District Attorney, with him on the briefs), Shawnee, Oklahoma, for
Respondent - Appellant.

Before KELLY, L UC ER O, and TYM KOVICH, Circuit Judges.
KELLY, Circuit Judge.

Respondent-Appellant Kurt Shirey, Sheriff of Pottawatomie County,

appeals from the district court’s judgment granting Petitioner-Appellee Darrah R.

W alck’s petition for habeas corpus pursuant to 28 U.S.C. § 2241. The judgment

further ordered the State of Oklahoma to dismiss with prejudice pending first-

degree manslaughter charges against M s. W alck arising from a certain traffic

accident and enjoined the State from retrying or further prosecuting her for the

same incident. The district court held that further prosecution of M s. W alck

would violate the Double Jeopardy Clause because the state trial court previously

granted a mistrial in her case after a jury was empaneled and two witnesses were

heard. See W alck v. Edmondson, No. CIV-05-430-R, 2005 W L 1907347, at *6

(W .D. Okla. Aug. 10, 2005). Exercising jurisdiction pursuant to 28 U.S.C. §§

1291 and 2253, we affirm the carefully considered judgment of the district court.

Background

This matter arises from a tragic traffic accident for which the driver, M s.

W alck, was charged with first-degree felony manslaughter. On December 28,

2003, following a night out with friends, M s. W alck drove her vehicle in which

M isty M oore, Clark Kincade and Lee Pena w ere passengers. Follow ing close

behind was a vehicle containing Jai Batson and Joe Smith, also M s. W alck’s

-2-
companions. After traveling on I-40 for a time, M s. W alck and the trailing

vehicle eventually exited and drove on Highway 177 in Pottawatomie County,

Oklahoma. W hile en route on Highway 177, M s. M oore, seated in the front

passenger seat of M s. W alck’s vehicle, partially exited the vehicle in order to

“flash” 1 M r. Batson and M r. Smith in the trailing vehicle. At some point

thereafter, M s. W alck lost control of her vehicle and an accident occurred,

resulting in the death of M r. Pena and injuries to the other three occupants.

Following the accident, the hospital to which M s. W alck was transported

performed a blood test at the request of the Oklahoma H ighway Patrol, which

indicated that M s. W alck had a blood alcohol level of 0.06. 2 On February 8,

2004, M s. W alck was arrested and charged with first-degree manslaughter. See

Okla. Stat. tit. 21 § 711(1).

The prosecution’s theory of the case is that M s. W alck, follow ing M s.

M oore’s “flashing” of the trailing vehicle, attempted to stand through the open

sunroof of her vehicle to similarly “flash” the occupants of the trailing vehicle.

The prosecution claims that M s. W alck and M s. M oore, at the time of the

accident, were attempting to sw itch seats so that M s. M oore could drive while

M s. W alck stood through the sunroof. M s. W alck’s proffered defense is that the

1
To “flash” is to briefly expose a portion of one’s body— typically
intimate areas— to another.
2
This is below the legal limit of 0.08 in Oklahoma. See Okla. Stat. tit. 47
§ 11-902(A)(1).

-3-
fatal crash occurred when M s. M oore grabbed, or attempted to grab, the steering

wheel, causing the vehicle to veer out of control.

On M ay 26, 2004, the state trial court held a preliminary probable cause

hearing during which the State called a number of witnesses. M ost importantly

for purposes of this appeal, M s. M oore testified as to the events leading up to the

fatal accident. In short, M s. M oore testified that: M s. W alck was driving the

vehicle when it veered out of control, Aplt. App. at 103; M s. W alck had

consumed beer and shots of alcohol prior to the accident, id. at 101-02, 108-09;

M s. M oore never switched, or attempted to switch, seats with M s. W alck, id. at

106-07; and M s. M oore had indeed grabbed the steering wheel, but she did so

several minutes before the crash, id. at 108, 112. The trial judge found probable

cause to support the first-degree manslaughter charge and, following the grant of

two continuances requested by M s. W alck, the case proceeded to trial.

Trial commenced on January 12, 2005, and both the State and defense

announced that they were ready to proceed. During voir dire, the prosecutor was

informed that a medical emergency regarding one of its witnesses, M isti M oore,

was developing and her presence at trial might be problematic. Notwithstanding,

a jury was selected and sw orn. The prosecution gave its opening statement,

indicating to the jury that it would be calling witnesses Joe Smith, Jai Batson,

M isti M oore, and Clark Kincade, who would establish that on the night in

question all had gone to a bar in Oklahoma City and consumed alcohol, that while

-4-
in transit to another bar M s. M oore “flashed” a trailing vehicle, that there were

discussions about M s. W alck doing the same even though she was driving, and

that an accident ensued resulting in M r. Pena’s death. Id. at 139-40, 143-44. The

defense countered in its opening that the accident only occurred because M s.

M oore, the passenger, grabbed the steering wheel. Id. at 146-47.

After opening statements the State called its first two witnesses— M r.

Batson and M r. Smith. Following completion of M r. Smith’s testimony, the court

took a recess, and it appears that during this time an off-the-record discussion

regarding M s. M oore’s availability to testify occurred between the court and

counsel. Id. at 198-99. Once the jury was brought back into the courtroom and

the court had gone back on the record, the prosecution stated, “Y our Honor,

because of the unforeseen availability of M s. M oore, we have to move for a

mistrial.” Id. at 199. The court in turn asked the defense if it had any objection,

to which the defense replied that “we do not join in that motion, and we’re ready

to proceed.” Id.

The court then addressed the jury, informing it that after the prosecution

had completed its opening statement, the court had been informed that M s.

M oore, who was eight-and-a-half months pregnant, was en route to the hospital,

but that the court had nonetheless continued with the case because it had hoped

that the problem w as “Braxton Hicks [contractions] or something other than

delivery, and that she’d still be available . . . .” Id. at 200. The court further

-5-
explained that M s. M oore was undergoing a cesarean section and would be

unavailable to testify for at least three days. Id. Because, in the court’s eyes,

M s. M oore was an important witness to both the prosecution and defense, and

without her testimony the State could not put on its best case, a mistrial was

declared. Id. at 201-02 (“[M s.] M oore is a necessary witness . . . for you to

understand the full facts of this case in order to be able to reach a decision.”). In

so doing, the trial court specifically noted that defense counsel “has indicated he

objects to the mistrial . . . .” Id. at 201.

Subsequent to the jury being excused, M s. W alck’s counsel moved that the

case be dismissed with prejudice on double jeopardy grounds. Id. at 203. The

court denied the motion, reasoning that the State’s motion for mistrial was not

“based on prosecutorial misconduct in any way, shape, or form.” Id. Counsel

comm ented to no avail that M s. M oore’s preliminary hearing transcript was

available in place of her live testimony and that the State had proceeded to trial

knowing that M s. M oore was eight-and-a-half months pregnant. Id. at 204-05.

The trial court concluded the proceedings by ordering M s. W alck to appear for

trial on M arch 8, 2005. Id. at 205.

Before M arch 8 arrived, however, M s. W alck filed an application to assume

original jurisdiction, a petition for a writ of prohibition, and a request for stay of

proceedings with the Oklahoma Court of Criminal Appeals (OCCA). W hile the

OCCA initially granted a stay of proceedings, on M arch 28, 2005, it denied relief

-6-
and lifted the stay for the simple reason that M s. W alck had “not met her burden

of proof” in order for a writ of prohibition to issue. Id. at 239-40. On April 18,

2005, M s. W alck filed an emergency petition for a writ of habeas corpus in the

district court. See Aplee. Supp. App. at 62. The district court referred the matter

to a magistrate judge, and ultimately adopted the well-reasoned report and

recommendation of M agistrate Judge Bacharach, after resolving the State’s

objections. Thus, the district court granted the petition and ordered the pending

criminal charge against M s. W alck dismissed with prejudice on double jeopardy

grounds. W alck, 2005 W L 1907347, at *6.

On appeal, the State argues that: (1) pursuant to Younger v. Harris, 401

U.S. 37 (1971), the district court should have abstained from intervening in M s.

W alck’s pending state criminal trial; (2) 28 U.S.C. § 2254, rather than 28 U.S.C.

§ 2241, governs our review in this case; and (3) assuming we reach the merits of

M s. W alck’s double jeopardy claim, there has been no violation of M s. W alck’s

double jeopardy rights because there is no evidence of prosecutorial misconduct

and the declaration of mistrial resulted from “manifest necessity.”

Discussion

I. Abstention

The State first requests that we abstain from addressing M s. W alck’s

double jeopardy claim. M ore concretely, the State submits that M s. W alck failed

-7-
to demonstrate that her case constitutes one of the very narrow circumstances

under w hich the Supreme Court has given the lower federal courts permission to

intervene in ongoing state criminal proceedings. The district court disagreed and

held that federal intervention was warranted. W e review de novo the district

court’s abstention decision. See Amanatullah v. Colo. Bd. of M ed. Exam’rs, 187

F.3d 1160, 1163 (10th Cir. 1999).

Absent unusual circumstances, a federal court is not permitted to intervene

in ongoing state criminal proceedings. Younger v. Harris, 401 U.S. 37, 54

(1971). The notion that state courts should remain free from federal court

intervention derives from the limited nature of equity jurisdiction and the belief

that our federal system operates most effectively when the states and their

political subdivisions are left alone. Id. at 43-44. As a result, under Younger and

its progeny, federal courts should not interrupt ongoing state criminal proceedings

when adequate state relief is available. 3 Joseph A. v. Ingram, 275 F.3d 1253,

3
There is some question as to whether Y ounger abstention is applicable
where pretrial habeas relief, rather than equitable relief, is sought. See In re
Justices of the Superior Court, 218 F.3d 11, 17-18 (1st Cir. 2000) (concluding that
“the weighty federalism concerns implicated by the petition for writ of habeas
corpus and by the district court’s assertion of jurisdiction make pretrial federal
adjudication of defendants’ [habeas] claim inappropriate.”); Carden v. M ontana,
626 F.2d 82, 83-85 (9th Cir. 1980) (recognizing a general rule prohibiting pretrial
habeas relief as a “logical implication of the abstention doctrine announced in
Younger[]”). W e need not decide the issue in this case, however, except to say
that in those rare circumstances in which federal intervention is appropriate, such
intervention is appropriate regardless of whether the remedy sought is an
injunction or a writ of habeas corpus. W e leave the issue of whether abstention as
to one form of relief dictates abstention as to all forms of relief for another day.

-8-
1267 (10th Cir. 2002). M ore specifically, federal courts must abstain pursuant to

Younger when: “(1) there is an ongoing state criminal, civil, or administrative

proceeding, (2) the state court provides an adequate forum to hear the claims

raised in the federal complaint, and (3) the state proceedings involve important

state interests, matters which traditionally look to state law for their resolution or

implicate separately articulated state policies.” Crown Point I, LLC v.

Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003); see also

M iddlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982). If these three conditions exist, absent extraordinary circumstances,

abstention is mandatory. Crown Point, 319 F.3d at 1215.

W e need not decide, however, whether the three conditions for mandatory

abstention exist here because M s. W alck’s case presents an extraordinary

circumstance warranting federal intervention. W e have previously recognized

that “[t]he Younger abstention doctrine is inapplicable . . . where irreparable

injury can be shown.” W eitzel v. Div. of Occupational & Prof’l Licensing, 240

F.3d 871, 876 (10th Cir. 2001); see also Perez v. Ledesma, 401 U.S. 82, 85

(1971). Additionally, a threat to an individual’s federally protected rights

constitutes irreparable injury where the threat “cannot be eliminated by . . .

defense against a single criminal prosecution.” Younger, 401 U.S. at 46.

Although we have not addressed the question of whether a threatened state

prosecution in violation of the Double Jeopardy Clause is a circumstance

-9-
warranting federal intervention, we do not write on a clean slate. In Abney v.

United States, 431 U.S. 651 (1977), the Supreme Court addressed whether a

federal district court’s pretrial order denying a motion to dismiss an indictment on

double jeopardy grounds was an immediately appealable “final decision.” Id. at

655-62. Holding that the denial of such a motion was immediately appealable,

the Court explained:

[T]he rights conferred on a criminal accused by the Double Jeopardy
Clause would be significantly undermined if appellate review of
double jeopardy claims were postponed until after conviction and
sentence. . . . [T]his Court has long recognized that the Double
Jeopardy Clause protects an individual against more than being
subjected to double punishments. It is a guarantee against being twice
put to trial for the same offense.
...
[T]he guarantee’s protections would be lost if the accused were forced
to “run the gauntlet” a second time before an appeal could be taken;
even if the accused is acquitted, or, if convicted, has his conviction
ultimately reversed on double jeopardy grounds, he has still been
forced to endure a trial that the Double Jeopardy Clause was designed
to prohibit.

Id. at 660-61, 662.

In light of Abney, it is clear that federal intervention is justified where

prospective state prosecutions run afoul of the Double Jeopardy Clause. This

stems from the fact that the injury to an individual’s double jeopardy rights

engendered by an illegitimate successive retrial is no less irreparable simply

because the prosecution comes under the guise of state, rather than federal,

authority. See Justices of Boston M un. Court v. Lydon, 466 U.S. 294, 303 (1984)

- 10 -
(“[A] requirement that a defendant run the entire gamut of state procedures,

including retrial, prior to consideration of his claim in federal court, would

require him to sacrifice one of the protections of the Double Jeopardy Clause.”).

W ithout federal court intervention, M s. W alck will be forced to “endure the

personal strain, public embarrassment, and expense of a criminal trial more than

once for the same offense” in violation of her constitutional rights. Abney, 431

U.S. at 661. And although notions of comity and federalism carry heavy weight

in our system of government, such notions do not mean that the federal courts

must sit idly by while “the rights conferred on a criminal accused by the Double

Jeopardy Clause [are] significantly undermined.” Id. at 660. W e therefore hold

that Younger abstention is unw arranted where a criminal accused presents a

colorable claim that a forthcoming second state trial will constitute a violation of

her double jeopardy rights.

II. Standard of R eview

The State next takes issue with both the district court’s decision that 28

U.S.C. § 2241 applies to this case and the district court’s subsequent use of a de

novo standard of review. It maintains that because the state courts— namely, the

trial court and the OCCA— reached the merits of M s. W alck’s double jeopardy

claim, the more deferential standard of review contained within 28 U.S.C.

§ 2254(d) instead applies. This argument, however, is inconsistent with the

language of 28 U.S.C. § 2254 and prior precedent.

- 11 -
 In several instances, the language of § 2254 clearly indicates that its

provisions are only operable as to a petition for habeas relief filed by “a person in

custody pursuant to the judgment of a State court.” See 28 U.S.C. § 2254(a), (b),

(d), (e). W hile it is clear that M s. W alck is currently “in custody,” see M aleng v.

Cook, 490 U.S. 488, 490-91 (1989), our prior cases have established that the

somewhat ambiguous term “judgment of a State Court” within § 2254 refers only

to conviction and sentence, see Dulworth v. Evans, 442 F.3d 1265, 1268 (10th

Cir. 2006); M cIntosh v. United States Parole C omm’n, 115 F.3d 809, 811 (10th

Cir. 1997). The deferential standard of review contained within § 2254 is,

therefore, only properly invoked when an individual in state custody collaterally

attacks the validity of a state conviction and/or sentence. M cIntosh, 115 F.3d at

811 (“[Section] 2254 . . . proceedings . . . are used to collaterally attack the

validity of a conviction and sentence.”); Braden v. 30th Judicial Cir. Ct., 410 U.S.

484, 503 (1973) (Rehnquist, J., dissenting) (“Section 2254 pertains only to a

prisoner in custody pursuant to a judgment of conviction of a state court.”).

The State’s argument that § 2254 applies in this case because the trial court

and the OCCA allegedly addressed the merits of M s. W alck’s double jeopardy

claim misses the mark. Admittedly, a state adjudication on the merits of a

particular claim is necessary in order for § 2254 deference to apply, see 28 U.S.C.

§ 2254(d); a state adjudication on the merits, in and of itself, however, is

insufficient. Instead, what is needed in order for § 2254(d) to apply is a state

- 12 -
court adjudication on the merits of a claim challenging a state conviction and/or

sentence brought forth by an individual in state custody. Despite the fact that the

Oklahoma courts arguably addressed the merits of M s. W alck’s current claim, she

is neither challenging a state conviction nor sentence and, as a result, § 2254 is

inapplicable.

As the district court correctly pointed out, M s. W alck is best described as a

pretrial detainee. W e have on numerous prior occasions, in unpublished

dispositions, noted that a state court defendant attacking his pretrial detention

should bring a habeas petition pursuant to the general grant of habeas authority

contained within 28 U.S.C. § 2241. See, e.g., Green v. W hestel, 164 F.App’x.

710, 710-11 (10th Cir. 2006); Fuller v. Green, 112 F.App’x. 724, 725 (10th Cir.

2004); Gould v. Colorado, 45 F.App’x. 835, 837 n.1 (10th Cir. 2002). M oreover,

several of our sister circuits have reached the same result in challenges to pretrial

detention based specifically on double jeopardy grounds. See, e.g, Stow v.

M urashige, 389 F.3d 880, 886-87 (9th Cir. 2004); Jacobs v. M cCaughtry, 251

F.3d 596, 597 (7th Cir. 2001); Stringer v. W illiams, 161 F.3d 259, 261-62 (5th

Cir. 1998); Palmer v. Clarke, 961 F.2d 771, 772 (8th Cir. 1992). W e agree and

hold that § 2241 is the proper avenue by which to challenge pretrial detention,

including when such challenges are based on double jeopardy grounds.

Section 2241’s applicability greatly affects our standard of review in that

the deference normally accorded state court judgments under § 2254 does not

- 13 -
apply. Instead, we review habeas claims made pursuant to § 2241, including M s.

W alck’s, de novo. See Binford v. United States, 436 F.3d 1252, 1253 (10th Cir.

2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006).

III. Double Jeopardy

W e turn now to the merits of M s. W alck’s double jeopardy claim. The

State maintains that no double jeopardy violation is occurring or will occur

because there is no evidence of “impropriety on the part of the State or the trial

judge,” Aplt. Br. at 41, the state trial judge’s “manifest necessity” determination

is entitled to great deference, and the doctrine of “one continuing jeopardy”

applies in this case.

A state is prohibited from putting a criminal accused twice in jeopardy for

the same crime. Benton v. M aryland, 395 U.S. 784, 794 (1969). The primary

idea underlying this prohibition is that a state must not be permitted “to make

repeated attempts to convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal and compelling him to live

in a continuing state of anxiety and insecurity, as well as enhancing the

possibility that even though innocent he may be found guilty.” Green v. United

States, 355 U.S. 184, 187-88 (1957). Because, however, “[t]he prohibition is not

against being twice punished, but against being twice put in jeopardy,” Ball v.

United States, 163 U.S. 662, 669 (1896), “it is not . . . essential that a verdict of

guilt or innocence be returned for a defendant to have once been placed in

- 14 -
jeopardy so as to bar a second trial on the same charge.” Green, 355 U.S. at 188.

Rather, “in a jury trial jeopardy attache[s] when the jury is empaneled and

sworn.” Crist v. Bretz, 437 U.S. 28, 38 (1978).

The Supreme Court has also stopped short of holding that “every time a

defendant is put to trial before a competent tribunal he is entitled to go free if the

trial fails to end in a final judgment.” See Wade v. Hunter, 336 U.S. 684, 688

(1949). Instead, the Court has recognized “that 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.” Id. at 689. Nevertheless, because a criminal defendant’s right to

have his trial completed by a particular tribunal is substantial, and any mistrial

frustrates that right, the prosecution must overcome a heavy burden in justifying a

mistrial over the defendant’s objection if the double jeopardy bar is to be avoided.

W ashington, 434 U .S. at 505. That heavy burden is this: the prosecution must

demonstrate “manifest necessity” for any mistrial. Id.

It is abundantly clear, and the State does not appear to dispute the fact, that

M s. W alck objected to, and was not complicit in, the mistrial declaration, which

occurred after the jury was empaneled and sworn. 4 See Aplt. A pp. at 199, 201.

4
W here a defendant requests or consents to a mistrial, there is no bar to
retrial unless the government acted in a manner intended to induce a request for
mistrial. United States v. Jorn, 400 U.S. 470, 485, 485 n.12 (1971) (Harlan, J.,
plurality op.); Earnest v. Dorsey, 87 F.3d 1123, 1128-29 (10th Cir. 1996).

- 15 -
Consequently, manifest necessity for the mistrial must be shown.

On multiple occasions, the Supreme Court has refused to adopt a

mechanistic formula for the presence of “manifest necessity,” see W ade, 336 U.S.

at 691, 5 and has repeatedly reiterated that trial judges must be accorded broad

discretion to declare a mistrial, see Gori v. United States, 367 U.S. 364, 368

5
One commentator lists the factors relevant to the manifest necessity
determination as follows:
(1) the source of the difficulty that led to the mistrial— i.e., whether
the difficulty was the product of the actions of the prosecutor, defense
counsel, or trial judge, or were events over w hich the participants
lacked control; (2) whether the difficulty could have been
intentionally created or manipulated for the purpose of giving the
prosecution an opportunity to strengthen its case; (3) whether the
possible prejudice or other legal complications created by the
difficulty could be “cured” by some alternative action that would
preserve the fairness of the trial; (4) whether the record indicates that
the trial judge considered such alternatives; (5) whether any
conviction resulting from the trial w ould inevitably be subject to
reversal on appeal; (6) whether the trial judge acted during the “heat
of the trial confrontation”; (7) whether the trial judge’s determination
rests on an evaluation of the demeanor of the participants, the
“atmosphere” of the trial, or any other factors that similarly are not
amenable to strict appellate review; (8) whether the trial judge
granted the mistrial solely for the purpose of protecting the defendant
against possible prejudice; (9) whether the evidence presented by the
prosecution prior to the mistrial suggested a weakness in the
prosecution’s case (e.g., a w itness had failed to testify as anticipated);
(10) whether the jurors had heard enough of the case to formulate
some tentative opinions; (11) whether the case had proceeded so far
as to give the prosecution a substantial preview of the defense’s
tactics and evidence; and (12) whether the composition of the jury
was unusual.
5 W ayne R. Lafave et al., Criminal Procedure § 25.2(c) n.18 (2d ed. 1999).
W hile this list is non-exhaustive, it is demonstrative of the many considerations
that govern a reviewing court’s manifest necessity analysis.

- 16 -
(1961); United States v. Perez, 22 U.S. (9 W heat.) 579, 579-80 (1824). M ost

relevant to this case, the Court has passed on the propriety of a mistrial

declaration based on an unavailable witness on three occasions.

First, in Downum v. United States, 372 U.S. 734 (1963), the C ourt

confronted a situation in which the prosecution requested that the jury, already

selected and sworn, be discharged because its key witness as to two counts of an

eight count indictment could not be located. Id. at 734-35. The trial judge

granted that request over the defendant’s objection and the jury was dismissed.

Id. at 735. Two days later, after a second jury was selected and sworn, the

defendant pleaded double jeopardy, which was denied. Id. On writ of certiorari,

the Court refused to adopt a per se rule that witness unavailability can never give

rise to manifest necessity, id. at 737, but held that double jeopardy indeed barred

retrial, noting that “[t]he discretion to discharge the jury before it has reached a

verdict is to be exercised ‘only in very extraordinary and striking

circumstances.’” Id. at 736 (quoting United States v. Coolidge, 25 F.Cas. 622,

623 (C.C.D. M ass. 1815) (Story, Circuit Justice)). Central to the C ourt’s

conclusion was the fact that the missing witness was only pertinent to two of the

eight charges and that “[t]he prosecution allowed the jury to be selected and

sworn even though one of its key witnesses was absent and had not been found.”

Id. at 735; see also id. at 737.

Twelve years later, the Court further clarified, in a plurality opinion, the

- 17 -
circumstances under which manifest necessity arises as a result of w itness

unavailability. See generally Jorn, 400 U.S. 470 (Harlan, J., plurality op.). The

government in Jorn pressed charges against the defendant for willfully assisting in

the preparation of fraudulent income tax returns and, in support of its case,

planned to call five taxpayers whom the defendant allegedly had aided in the

preparation of fraudulent returns. Id. at 472. After the jury was selected and

sworn, and the first of the five taxpayer witnesses was called, the trial judge

became concerned that the witness had not been advised of his constitutional

rights at the time he was contacted by the IRS, and therefore, refused to allow the

witness to testify until he had consulted an attorney. Id. at 472-73. The trial

court then inquired of the prosecuting attorney whether the other four prospective

taxpayer witnesses were similarly situated, to which the prosecuting attorney

responded that each of the four had been advised of their rights by the IRS upon

initial contact. Id. at 473. The judge, being of the opinion that any such

warnings w ere likely inadequate, discharged the jury, called the witnesses into

court to inform them of their rights, and aborted the trial so the witnesses could

consult with attorneys. Id. The case was then set for retrial before a different

jury, but at the urging of the defendant, the trial court dismissed the charges on

double jeopardy grounds. Id.

On direct appeal, a plurality of the Court held that jeopardy had indeed

attached and that the trial judge had abused his discretion in discharging the jury.

- 18 -
Id. at 486-87. In so doing, the Court noted that “the . . . doctrine of manifest

necessity stands as a command to trial judges not to foreclose the defendant’s

option [to have his trial completed by a particular tribunal] until a scrupulous

exercise of judicial discretion leads to the conclusion that the ends of public

justice would not be served by a continuation of the proceedings.” Id. at 485.

Applying this standard, the Court came to the conclusion that “no consideration

was given to the possibility of a trial continuance; indeed, the trial judge acted so

abruptly . . . that, had the prosecutor been disposed to suggest a continuance, . . .

there would have been no opportunity to do so.” Id. at 487.

The Court has found manifest necessity to exist because of w itness

unavailability in one, albeit extremely unique, circumstance. W ade involved a

situation in which two American soldiers attached to the 76th Infantry Division

during W orld W ar II were arrested for the alleged rape of two local German

women. 336 U.S. at 685-86. Two days later, after the army had advanced

twenty-two miles away from the site of the alleged incident, W ade and his co-

defendant were put on trial before a general court-martial. Id. at 686. After

hearing the evidence and closing the case, the court-martial reopened and

continued the case until a later date so that testimony from previously unavailable

witnesses could be heard before deciding the guilt of the accused. Id. A week

later, the Commanding General of the 76th D ivision withdrew the charges,

directing the court-martial to take no further action because “the ‘tactical

- 19 -
situation’ of his command and its ‘considerable distance’ from [the site of the

alleged crime] made it impracticable for the Third Army to conduct the court-

martial.” Id. at 686-87. The charges were then transmitted to the Fifteenth Army

and, despite W ade’s double jeopardy objection, a trial and conviction followed.

Id. at 687. On certiorari, after first noting that, just as in a civilian criminal trial,

manifest necessity is required to prematurely halt a court-martial, id. at 690, the

Court held that manifest necessity excused the potential double jeopardy violation

because the “record [was] sufficient to show that the tactical situation brought

about by a rapidly advancing army was responsible for withdrawal of the charges

from the first court-martial.” Id. at 691.

For a number of reasons, these cases lead us to conclude that M s. M oore’s

absence did not give rise to manifest necessity. First, while the State has every

right to consider M s. M oore’s testimony important, its argument that her live

testimony was absolutely necessary proves too much. See Downum, 372 U.S. at

737 (noting specifically that the missing “witness was essential only for two of

the six counts concerning petitioner”). The state trial judge in this case

commented to the jury that “I’m of the opinion that M isty M oore is a necessary

witness and her testimony is absolutely necessary in order for you to understand

the full facts of this case . . . .” Aplt. App. at 201. Although the trial judge was in

a better position than we to determine the importance of M s. M oore’s testimony,

the facts before the trial court simply do not bear out that her testimony was

- 20 -
“absolutely necessary.”

M s. M oore was not the only occupant in M s. W alck’s vehicle at the time of

the accident; in fact, Clark Kincade, who was available to testify at trial, was also

in the vehicle at the time and his pretrial testimony considerably overlapped with

M s. M oore’s. Both testified that M s. W alck was at the wheel of the vehicle, that

M s. W alck had been drinking that evening, that M s. W alck and M s. M oore

discussed switching seats so M s. W alck could “flash” the trailing vehicle, and

that sometime before the crash someone grabbed the steering wheel. M s. M oore’s

and M r. Kincade’s pretrial testimony differed in only two significant respects: (1)

M r. Kincade claimed the accident occurred while M s. W alck and M s. M oore w ere

attempting to switch seats and M s. M oore claims no such switch ever occurred;

and (2) M r. Kincade claimed that someone (he did not know who) grabbed the

steering wheel during the course of the accident and M s. M oore admits she

grabbed the steering wheel but claims this occurred several minutes before the

accident. 6 These differences could have been brought to the jury’s attention via

the introduction of M s. M oore’s preliminary hearing testimony. 7 The differences

6
The State has not asserted that either M r. Kincade’s or M s. M oore’s
testimony at trial was going to differ in significant respects from the testimony
given at the preliminary hearing.
7
The State argues, for the first time in its reply brief, that M s. M oore’s
live testimony was necessary because M s. W alck intended to introduce medical
evidence indicating that M s. M oore had used drugs on the night of the accident.
This argument is waived, however, because the State failed to raise the issue in its
opening brief. See Gaines-Tabb v. ICI Explosives, USA , Inc., 160 F.3d 613, 624

- 21 -
certainly did not render M s. M oore’s testimony “absolutely necessary” “in order

for [the jury] to be able to reach a decision.” Id. In sum, M s. M oore’s live

testimony was certainly not critical enough to require a mistrial.

Next, the prosecution proceeded to trial in the face of a know n risk that M s.

M oore would be unavailable at trial. See Downum, 372 U.S. at 735; United

States v. Stevens, 177 F.3d 579, 587 (6th Cir. 1999) (“[I]f the prosecutor had

known before empaneling the jury that the key witness was ill, the Downum rule

would apply because the prosecutor would knowingly have taken a chance by

proceeding.”). The prosecutor here was told prior to the completion of voir dire,

and prior to the jury being sworn, that M s. M oore was on her way to the hospital

to deliver her child. See W alck v. Edmondson, No. Civ-05-430-R, 2005 W L

1356481, at *7 n.26 (W .D. Okla. June 7, 2005) (explaining that the prosecution’s

victim witness coordinator stated under oath that she informed the prosecutor

during voir dire that “M s. M oore was on her way to the hospital to deliver her

child.”). The prosecution must have known, and in fact admits to knowing, 8 that

(10th Cir.1998). (“[A]rguments not set forth fully in the opening brief are
waived.”); Codner v. United States, 17 F.3d 1331, 1332 n.2 (10th Cir.1994).
(“[W]e will not [address issues raised for the first time in a reply brief] on the
merits.”). Nonetheless, even if we w ere to address the State’s argument, we are
unpersuaded.
8
In its objection to the magistrate judge’s report and recommendation, the
State admitted:

The State, through its prosecutor John Foley (“Prosecutor” or
“Foley”), was advised that a medical emergency was developing

- 22 -
M s. M oore’s presence at trial would be adversely affected. This case, then, is

analogous to Downum, where the prosecutor knew that the government’s key

witness had not been located but nonetheless allowed a jury to be selected and

sw orn. See 372 U.S. at 735. The prosecutor here, like the prosecutor in

Downum, proceeded in the face of a great risk of unavailability. Despite this

great risk, the prosecution pushed on, and thus there was no manifest necessity.

Third, the purpose behind, or reason for, the mistrial was not significant

enough to give rise to manifest necessity. See Illinois v. Somerville, 410 U.S.

458, 464-65 (1973); W ade, 336 U.S. at 691; United States v. Crotwell, 896 F.2d

437, 440 (10th Cir. 1990) (considering important the fact that the trial judge

declared a mistrial “solely on the basis of his concern for judicial economy”).

The most obvious purpose for the mistrial in this case— that M s. W alck’s trial be

held at a time when the jury could hear from all witnesses, including M s.

M oore— is rather innocuous. The trial judge explained to the jury, however, that

he w as going to have to call a mistrial because “to force the State to go forward

with [its] case without [its] w itness . . . would put [it] at a severe disadvantage . .

with M oore regarding her pregnancy and that her presence at trial
might be adversely affected. At approximately 11:00 a.m., Foley
immediately advised both the Trial Court and counsel for [M s.
W alck] of the medical matters potentially affecting M oore’s ability
to attend trial. This discussion occurred prior to the jury being
sworn to try the cause at issue.

Aplee. Supp. App. at 43 (emphasis in original).

- 23 -
. .” A plt. App. at 201. The trial judge also added that without M s. M oore’s

testimony the State “may not be able to put forward the best evidence that they

[sic] have.” Id. These reasons resemble the type we have been instructed to view

using the “strictest scrutiny.” See W ashington, 434 U .S. at 508 (“[T]he strictest

scrutiny is appropriate when the basis for the mistrial is the unavailability of

critical prosecution evidence . . . .”). Nonetheless, while there will inevitably be

situations where witness unavailability— even where precipitated by events less

pressing than an advancing army— gives rise to manifest necessity, the reasons

given for the mistrial here are insufficient.

Finally, prior to discharging the jury, the state trial judge did not

sufficiently consider the viable and reasonable alternatives to a mistrial. See

Jorn, 400 U.S. at 487 (Harlan, J., plurality op.); United States v. Rivera, 384 F.3d

49, 56 (3d Cir. 2004) (“Critically, a mistrial must not be declared without prudent

consideration of reasonable alternatives.”). W e agree with M s. W alck that, at the

very least, the trial judge should have considered reading M s. M oore’s

preliminary hearing testimony to the jury or, in the alternative, granting a

continuance until M s. M oore was available as a witness. See Aplee. Br. at 15-16.

W here a declarant “[i]s unable to . . . testify at the hearing because of . . . then

existing physical . . . illness or infirmity . . .[,]” Okla. Stat. tit. 12 § 2804(A)(4),

Oklahoma law sanctions the use of “[t]estimony given as a witness . . . in a

deposition taken . . . in the course of the same . . . proceeding, if the party against

- 24 -
whom the testimony is now offered . . . had an opportunity and similar motive to

develop the testimony by direct, cross or redirect examination,” id. at §

2804(B )(1); see also Crawford v. W ashington, 541 U.S. 36, 53-54 (2004).

Clearly, then, either the prosecution or M s. W alck could have utilized M s.

M oore’s preliminary hearing testimony at trial. As previously discussed, M r.

Kincade could have covered much of the ground to be covered by M s. M oore’s

testimony; but, any gaps or inconsistencies in their respective stories could have

been sufficiently filled and highlighted using M s. M oore’s preliminary hearing

testimony. Oklahoma law, like federal law, allows prior sworn testimony of

unavailable witnesses to be read to the jury, and no one disputes that M s. M oore

was unavailable given her serious emergency surgery and hospitalization. Okla.

Stat. Ann. tit. 12, §§ 2804(A)(4) & (B)(1). The state trial judge considered this

option at M s. W alck’s urging, but not until a mistrial had already been declared

and the jury dismissed. See Aplt. App. at 204. The trial judge also failed to

consider the option of granting a continuance until M s. M oore had recuperated

from her surgery and was again available to testify. 9 Because the trial judge did

not consider the foregoing viable alternatives, manifest necessity did not require a

mistrial.

9
As the magistrate judge correctly noted, “A 2 1/2 day extension would
have ended the week; and the following M onday, the courthouse was closed for
M artin Luther King, Jr.’s birthday.” W alck, 2005 W L 1356481, at *7 n.24. This
would have given M s. M oore 5 1/2 days to recuperate from her C-section prior to
testifying. Id. at *7.

- 25 -
 The State’s persistent approach to this case— focusing primarily on the fact

that there is no indication of judicial or prosecutorial misconduct— is much too

narrow. Such an approach runs head-on into the Court’s repeated admonition that

the Double Jeopardy Clause protects against more than prosecutorial or judicial

overreaching. See Jorn, 400 U.S. at 484 (Harlan, J., plurality op.) (“[R]ecognition

that the defendant can be reprosecuted for the same offense . . . does not compel

the conclusion that double jeopardy policies are confined to prevention of

prosecutorial or judicial overreaching.”); Downum, 372 U.S. at 736 (“Harassment

of an accused by successive prosecutions or declaration of a mistrial so as to

afford the prosecution a more favorable opportunity to convict are examples when

jeopardy attaches. But those extreme cases do not mark the limits of the

guarantee.”) (internal citations omitted). Granted, our analysis here would be

even more straightforward were there evidence of prosecutorial or judicial

misconduct, but the absence of such evidence is not fatal to M s. W alck’s double

jeopardy claim. Instead, we look to w hether manifest necessity existed to support

the declaration of a mistrial prior to the completion of trial, and here we hold

there was an absence of manifest necessity.

The State also places much emphasis on the deference accorded trial judges

in determining whether manifest necessity exists. Simply arguing for deference,

in and of itself, however, is insufficient to demonstrate why such deference

should insulate a trial judge’s manifest necessity determination in an individual

- 26 -
case. In other words, the State has failed to put forward sufficient reasons for

why M s. M oore’s temporary absence necessitated the deprivation of M s. W alck’s

interest in facing the perils of a criminal trial only once; and, after all, the burden

of demonstrating manifest necessity falls on the prosecution. See W ashington,

434 U.S. at 505 (“[T]he prosecutor must shoulder the burden of justifying the

mistrial if he is to avoid the double jeopardy bar.”). Accordingly, in spite of the

deference we must grant the state trial judge, the declaration of a mistrial in this

case was unwarranted.

In a last-ditch effort to avoid the double jeopardy bar, the State invokes the

“continuing jeopardy” doctrine. That doctrine holds “that the protection of the

Double Jeopardy Clause by its terms applies only if there has been some event,

such as an acquittal, which terminates the original jeopardy.” See Richardson v.

United States, 468 U.S. 317, 325 (1984). W e have previously instructed that:

The question of whether jeopardy has objectively “terminated” should
be analyzed in terms of the policies of the Double Jeopardy Clause,
namely its concern that repeated trials may subject a defendant to
embarrassment, expense and ordeal and compel him to live in a
continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found guilty.
Jeopardy may be said to have terminated only when the posture of a
trial in some objective sense leaves that defendant in such a position
that resumption of proceedings would implicate those policies.

United States v. Shinault, 147 F.3d 1266, 1276 (10th Cir. 1998) (quoting Lydon,

466 U.S. at 320 (Brennan, J., concurring in part and concurring in the judgment))

(emphasis in original). The mistrial declaration in this case patently implicates

- 27 -
the policies of the Double Jeopardy Clause. M s. W alck’s trial was discontinued

after the jury had been sworn and two witnesses had been heard, and thus, as

previously explained, retrial would indeed subject her to the embarrassment,

expense, and ordeal of a second trial. Suffice it to say that the mistrial

declaration in this case was a terminating event and thus the “continuing

jeopardy” doctrine is inapplicable.

AFFIRM ED. M s. W alck’s pending motion to dismiss the appeal is

DENIED as moot.

- 28 -