Gilliam v. Foster

Filed: March 20, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-2434
(CA-95-1742-17AJ, CA-95-1743-17AJ, CA-95-1774-17AJ)

Darrell Wayland Gilliam, Jr., et al,

Petitioners - Appellees,

versus

James Lee Foster, etc., et al,

Respondents - Appellants.

O R D E R

The Court amends VOLUME 2 of its opinion filed January 29,

1996, as follows:
On page 45, second full paragraph, line 6 -- "See Id." is

corrected to read "See id."

On page 61, first paragraph, line 2 -- another closing paren-

thesis is inserted after the word "added."

On page 65, first paragraph, line 1 after indented quotation

-- the cross-reference is corrected to read "Ante at 7-8, 27-28,

35."
 - 2 -

On page 66, footnote 4, lines 5 and 28 -- the cross-references

are corrected to read "ante at 26-27, 33" and "ante at 30-31, 35,"
respectively.

On page 67, first line after indented quotation -- the cross-

reference is corrected to read "Ante at 10 & n.6, 35."

On page 68, first full paragraph, line 5 -- the cross-

reference is corrected to read "ante at 34 n.25."

On page 68, first full paragraph, line 15 -- the period after

the word "positions" is moved; it will now be directly after the

word "positions" rather than between the closing quotation marks.

On page 69, first full paragraph, lines 1 and 3 -- the cross-
references are corrected to read "ante at 32-34" and "ante at 34

n.25," respectively.

On page 69, second full paragraph, line 3 -- the cross-

reference is corrected to read "ante at 24-28, 24 n.19."

On page 70, first paragraph, line 6 -- the comma after the
word "photographs" is deleted.

On page 77, first full paragraph, lines 7 and 9 -- the cross-

references are corrected to read "Ante at 2, 8" and "ante at 21,

24, 28," respectively.
 - 3 -

On page 77, second full paragraph, lines 8-9 and 11 -- the

cross-references are corrected to read "ante at 12, 13, 16, 22,
23, 23 n.18" and "ante at 2, 13-14, 22-28, 29-30, 32, 35-36,"

respectively.

On page 78, continuation of footnote 9, line 3 -- the cross-

reference is corrected to read "Ante at 13-14, 22-23, 35-36."

On page 78, footnote 10, line 5 -- the cross-reference is

corrected to read "ante at 22-23, 28."

On page 79, first paragraph, lines 19 and 23 -- the cross-

references are corrected to read "ante at 33-34, 33 n.19, 35" and

"infra at 83 & n.14," respectively.
For the Court - By Direction

/s/ Bert M. Montague

Clerk
Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DARRELL WAYLAND GILLIAM, JR.;
PAMELA OWINGS; JAMES MATTHEW
SWAIN,
Petitioners-Appellees,

v.

JAMES LEE FOSTER, Sheriff of No. 95-2434
Newberry County; CHARLES M.
CONDON, Attorney General for the
State of South Carolina; JAMES W.
JOHNSON, JR., Circuit Court Judge of
South Carolina,
Respondents-Appellants.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-95-1742-17AJ, CA-95-1743-17AJ, CA-95-1744-17AJ)

Argued: September 26, 1995

Decided: January 29, 1996

Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL,
MURNAGHAN, WILKINSON, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges.
Affirmed by published opinion. Judge Wilkins wrote the majority
opinion in which Chief Judge Ervin and Judges Hall, Murnaghan,
Hamilton, Williams, Michael, and Motz joined; Judge Wilkinson
wrote a dissenting opinion in which Judges Russell, Widener, Nie-
meyer, and Luttig joined; Judge Niemeyer wrote a dissenting opinion
in which Judge Widener joined; and Judge Luttig wrote a dissenting
opinion in which Judges Russell, Widener, Wilkinson, and Niemeyer
joined.

_________________________________________________________________

COUNSEL

ARGUED: Donald John Zelenka, Assistant Deputy Attorney Gen-
eral, Columbia, South Carolina, for Appellants. Joy Scherffius Good-
win, LEVY & GOODWIN, Columbia, South Carolina, for Appellees.
ON BRIEF: J. Christopher Mills, FAIREY, PARISE & MILLS,
Columbia, South Carolina, for Appellee Gilliam; Samuel M. Price,
Jr., Newberry, South Carolina, for Appellee Owings.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Petitioners Darrell Wayland Gilliam, Jr., Pamela Owings, and
James Matthew Swain brought this action pursuant to 28 U.S.C.A.
§ 2254 (West 1994). They maintain that because a state trial judge
granted a mistrial over their objection and in the absence of manifest
necessity during their first trial, subjecting them to a second criminal
prosecution would violate their rights under the Double Jeopardy
Clause of the United States Constitution.

The principal issue presented is whether the state trial judge exer-
cised sound discretion in granting the prosecution's motion for a mis-
trial because the jury viewed certain photographs prior to their formal
admission into evidence. These photographs had been authenticated
properly, were relevant, were material, and were otherwise unobjec-
tionable. Further, the witness who had authenticated the photographs

2
was available to retake the witness stand to permit their formal intro-
duction.

The district court granted the writ of habeas corpus.1 The State2
appeals, claiming that the second prosecution would not violate Peti-
tioners' double jeopardy rights, and that in any event the district court
should have abstained from granting habeas corpus relief under
Younger v. Harris, 401 U.S. 37 (1971). For the reasons set forth more
fully below, the judgment of the district court is affirmed.

I. FACTS

Although the facts underlying this appeal have been fully set forth
in the decision of the district court, we include them here in some
detail in order to facilitate a better understanding of our decision.

A. Background

The incidents giving rise to the criminal charges against Petitioners
began on the afternoon of January 5, 1993, when Hope Icard physi-
cally attacked Christie Gilliam, Petitioner Gilliam's sister. A short
time later that afternoon, this altercation led to a confrontation
between family members of the two women at the residence of
Icard's sister and brother-in-law, the Silvers. Petitioners arrived out-
side the Silvers' mobile home in Petitioner Gilliam's truck. Although
the subsequent events are subject to some dispute, it is uncontested
_________________________________________________________________
1 Although the district court ordered that the writ issue, by separate
order dated July 24, 1995, it refused to permit the release pending appeal
of Gilliam--who, although initially released on bond, was later taken
into physical custody for a violation of that bond--or the removal of the
restrictions placed on Swain and Owings--both of whom had been
released on bond pending trial in state court. See Fed. R. App. P. 23(c)
(authorizing district court to continue custody in its discretion pending
appeal). Petitioners have not sought review of this order of the district
court.
2 We refer to Respondents--James Lee Foster, Sheriff of Newberry
County, South Carolina; Charles M. Condon, Attorney General for the
State of South Carolina; and James W. Johnson, Jr., Circuit Court Judge
of South Carolina--as "the State."

3
that gunshots were ultimately exchanged. From inside the mobile
home, Ernest Silvers and his stepson discharged firearms. Petitioner
Gilliam, who was outside the mobile home, was injured by this gun-
fire in the lower leg. Petitioner Swain was charged with murdering
Ernest Silvers by shooting him in the chest with a rifle as Silvers
stood in the front doorway of the mobile home. Petitioners Gilliam
and Owings, who were unarmed, were charged with aiding and abet-
ting Swain. In addition, Petitioners were charged with lynching in
connection with Silvers' death;3 Petitioner Swain was charged with
assault with the intent to kill; and Petitioner Gilliam was charged with
indecent exposure. This latter charge against Gilliam alleged that he
had exposed himself to the occupants of the Silvers' mobile home
while taunting them prior to the exchange of gunfire.

B. Initial State Trial Proceedings

Petitioners' trial began in state court in late 1994. On the third day
of trial, the prosecution presented the testimony of Officer Counts, a
former special agent with the South Carolina Law Enforcement Divi-
sion (SLED). Officer Counts had been present at the scene soon after
the altercation and could testify about the investigation and identify
photographs of the scene.

On cross-examination, defense counsel asked Officer Counts
whether he had found blood outside the Silvers' mobile home. Officer
Counts stated that he would like to look at the photographs of the
scene to refresh his memory. The photographs to which Officer
Counts referred were ones that had been taken either by Officer
Counts or in his presence by another SLED agent; copies of these
photographs had been provided to the defense prior to trial. Defense
counsel showed a group of seven photographs (Set 1) to one of the
prosecuting attorneys and then handed them to Officer Counts. The
prosecuting attorney--believing that the photographs were being
offered into evidence--said, "Without objection." The trial judge then
_________________________________________________________________
3 South Carolina law defines lynching as an act of violence inflicted by
a mob--an "assemblage of two or more persons . . . for the premeditated
purpose and with the premeditated intent of committing an act of vio-
lence upon the person of another"--that results in death. S.C. Code Ann.
§§ 16-3-210, 16-3-230 (Law. Co-op. 1985).

4
inquired whether defense counsel was offering the photographs into
evidence at that time, and defense counsel responded that he was
using them only to refresh the officer's recollection. The prosecuting
attorney noted that he had spoken prematurely.4

After Officer Counts reviewed the photographs in Set 1, and
defense counsel established that Officer Counts was familiar with the
photographs because he was there when they were taken or actually
had taken them, defense counsel inquired:

Q. Looking at those photographs were you able to refresh
your recollection as to whether or not any blood was found
on the scene?

A. Yes, sir. There was a red substance. I am not a serolo-
gist, but there was a red substance that appeared to be blood
found at the scene.

Q. And when blood is found on the scene, how[is it] typi-
cally marked in terms of when you find blood outside a
trailer and it indicates blood, is it marked as part of your
_________________________________________________________________
4 The pertinent colloquy when defense counsel began to show Officer
Counts the photographs of the scene outside the mobile home to refresh
his recollection was:

PROSECUTING ATTORNEY: Do you mind if I see those?

(Photographs were handed to the prosecuting attorney.)

PROSECUTING ATTORNEY: Just one minute.

(Pause)

PROSECUTING ATTORNEY: Without objection.

THE COURT: Were those being offered at this time?

DEFENSE ATTORNEY: No, sir. We were just using these to
refresh Mr. Counts' recollection.

PROSECUTING ATTORNEY: I'm sorry. That was prema-
ture.

J.A. 60-61.

5
 investigation? Do you mark the ground in some way to indi-
cate that you found something?

A. Yes, sir. We would circle the area, surround it with
crime scene tape, we would [put] a cone out or anything to
keep somebody from walking and disturbing that.

Q. Based on those photographs that you had used to
refresh your recollection, do you see such a photograph that
would indicate that sighting of blood that was marked?

A. Yes, sir. I could.

Q. And if you could, hand us that. If you could, flip
through and find the photograph or photographs that would
indicate that.

A. Basically all of these [are] the same area where the
blood was found. Just overall views of it.

Q. I hand you what has been marked as Defendant's
exhibits 16, 8, 13, 12 and 14 [Photo Set 2]. Would it be your
testimony that those [photographs] mark the finding of
blood but just from different angles?

A. Yes, sir. I can't tell you that that substance is in fact
blood. I am not a serologist, but I can tell you that these
were photographs that myself or Agent Gainey of SLED
took, and the substance resembles blood, and these five pho-
tographs depict the same area adjacent to the trailer where
we found [the] substance that resembled blood.

J.A. 61-62 (emphasis added). At this point in the examination,
defense counsel asked Officer Counts to approach a diagram of the
scene prepared by the prosecution and, using the photographs, to
mark on an overlay the location where what appeared to be blood was
found. Officer Counts then marked the three places where red spots
were observed, testifying, "This is basically where the blood was
found, in this vicinity here to the left of the trailer, almost to the road-

6
way." J.A. 63. In response to defense counsel's follow-up questions
concerning the distance from the area where blood was found to the
mobile home and the roadway, Officer Counts referred to the notes
made by the serologist on the scene and testified that "there were
three areas of blood in this location," that the distance between "these
portions of blood here" was seven feet, and that the corner of the
mobile home was 70 feet from the road with the blood depicted in the
photographs being "right off the roadway in this area." J.A. 64.

During the remaining cross-examination of Officer Counts, two of
the three groups of SLED photographs of the scene (Sets 2 and 3)
were introduced into evidence by the defense without objection. The
photographs referred to as Set 2 included Exhibits 8, 12, 13, 14, and
16. The photographs referred to as Set 1--Exhibits 9, 10, 11, 15, 17,
18, and 19--were not offered into evidence.5

A description of these photographs and a comparison of the photo-
graphs included in Set 1 vis-a-vis those in Set 2 is instructive. The
photographs in Set 2, with the exception of Exhibit 16, are identical
in every material aspect and show the area outside the Silvers' mobile
home. Each of these photographs was taken from near Highway 32,
the public roadway in front of the Silvers' mobile home, from the left-
hand side of the mobile home and looking down the driveway toward
it. The mobile home and the adjacent yard and driveway are shown
in the background of these photographs, and all of them show the
same three pieces of yellow tape in the foreground--the closest two
_________________________________________________________________
5 When defense counsel offered the Set 2 photographs into evidence,
the following colloquy occurred:

DEFENSE ATTORNEY: Mr. Counts, you have previously
identified these photographs?

OFFICER COUNTS: Yes, ma'am.

DEFENSE ATTORNEY: Your Honor, I would move to intro-
duce them into evidence. I believe they are numbers 16, 8, 13,
12 and 14.

PROSECUTING ATTORNEY: Without objection.

THE COURT: Without objection.

J.A. 77.

7
pieces are circular in shape, one to the left and one to the right, and
one strand of yellow tape is behind the two circular pieces and a few
feet closer to the mobile home. The remaining photograph in Set 2,
Exhibit 16, shows the same location, but reveals only the circular
piece of tape to the right and one-half of the circular piece to the left.
As noted above, these five photographs were admitted into evidence
without objection from the prosecution and with no specific testimony
by Officer Counts concerning the location depicted or the relevance
of the scene they depicted.

Of the seven photographs in Set 1, four of them, Exhibits 10, 17,
18, and 19, are close-ups of the three pieces of yellow tape: Exhibit
10 shows a close-up of the circular piece of tape on the left of the
photographs in Set 2; Exhibit 17 is a close-up of the two circular
pieces of tape shown in the photographs in Set 2; Exhibit 18 is a
close-up of the strand of tape behind the two circles of yellow tape
in the photographs in Set 2; and Exhibit 19 is a photograph of the cir-
cle of tape on the right in the photographs in Set 2. These photographs
show red spots within or near the areas marked with the yellow tape
more clearly than the photographs in Set 2. Exhibit 15 is virtually
identical to those in Set 2, taken from the same camera angle and
depicting all three pieces of yellow tape. The two remaining photo-
graphs in Set 1, Exhibits 9 and 11, reveal the same three pieces of
tape, but were taken from approximately the opposite location from
those in Set 2; in other words, they are taken from near the mobile
home facing up the driveway and toward Highway 32. These latter
two photographs depict more clearly the same tire tracks shown in the
photographs in Set 2.

Following Officer Counts' testimony, the state trial judge recessed
for lunch with instructions that all of the photographs and other evi-
dence that had been published remain in the courtroom. During the
lunch break, the court reporter discovered that the photographs in
Set 1--which had not been admitted into evidence--had been placed
on the jury rail in a stack along with the photographs in Sets 2 and
3--which had been properly introduced into evidence. Concerned that
the jury may have viewed evidence that had not been properly admit-
ted, the trial judge conducted a bench conference during which he
brought this to the attention of counsel and then provided the parties
with an opportunity to evaluate the situation.

8
When the trial proceedings resumed, the prosecution moved for a
mistrial, blaming defense counsel for the error and stressing that the
defense had "placed something that is easily accessible, has been
accessible by the jury, which is not in evidence . .. and that is
improper." J.A. 87. The defense strenuously objected. It disagreed
with the prosecuting attorney's suggestion that defense counsel had
been responsible for placing the unadmitted photographs in Set 1
where the jury could view them. Defense counsel argued that a mis-
trial was completely unnecessary and offered to"recall [Officer
Counts] and move [the photographs] into evidence," explaining that
Officer Counts had already identified the photographs and had testi-
fied about them. J.A. 88-89. Further, defense counsel emphasized that
even if the jury actually saw the photographs, there was no prejudice
to the prosecution because all of the Set 1 photographs depicted the
same scene as other photographs that had already been admitted into
evidence.

The state trial judge called the foreman of the jury into the court-
room and asked him whether the jury had looked at all of the photo-
graphs that had been in the stack on the jury rail before lunch.
Although the foreman was not given an opportunity to examine each
photograph individually, he responded that as far as he knew all the
photographs had been viewed by the jury. The defense requested that
the trial judge ask additional questions to ascertain whether the jury
had in fact seen the unadmitted photographs, noting that it was
entirely possible that the photographs had been placed in the stack on
the railing during the lunch break since defense counsel recalled that
the photographs had been left in the witness box when the court
recessed. The state trial judge, however, refused to do so and declared
a mistrial over defense counsel's objection. The state trial judge stated
that he had no choice but to grant a mistrial because the photographs
had not been admitted, were not identified, had not been testified to,
and had been circulated to the jury. He further indicated that he had
no way of knowing whether the photographs would later be offered
and admitted into evidence.

Defense counsel requested that the state trial judge ask the court
reporter to read back Officer Counts' testimony because he, in fact,
had identified the photographs and testified using them. Again, how-
ever, the state trial judge summarily declined to do so, noting that if

9
he was incorrect the record would bear that out. At no point did the
state trial judge indicate that double jeopardy concerns were impli-
cated by the grant of a mistrial. And, neither the prosecution nor the
state trial judge indicated that the photographs were in any way preju-
dicial to the prosecution or the defense.6

C. Post-trial State Proceedings

In March 1995, prior to the second trial, Petitioners filed a motion
before the state trial judge requesting dismissal of the charges against
them on double jeopardy grounds, arguing that manifest necessity had
not existed to justify the grant of the mistrial over their objections.
The state trial judge denied the request. Although the state trial judge
did not make a finding that the jury's having seen the photographs
was prejudicial and did not offer any possible explanation of how the
jury's viewing the unobjectionable photographs actually might have
improperly biased or influenced the jury for or against either the pros-
ecution or the defense, the state trial judge did refer to the incident
at one point as a "prejudicial occurrence," J.A. 38, and opine that he
was "concerned about the origin of the prejudice," J.A. 39. He
explained only that the mistrial had been necessary because he could
not have foreseen whether the photographs would have been offered
into evidence and, if so, whether they would have been admitted. The
state trial judge did not address the fact that the prosecuting attorney
had offered no objection to the admission of the photographs when he
believed that they were being offered into evidence or that the defense
had offered to recall Officer Counts and formally move their introduc-
tion.

Petitioners appealed this ruling to the South Carolina Supreme
Court. That court, however, dismissed the appeal as interlocutory
under South Carolina law.
_________________________________________________________________

6 The state trial judge did not make a finding of manifest necessity or
a finding of prejudice. Indeed, he did not use the word "prejudice" during
this proceeding. Further, the state trial judge gave no hint of what preju-
dice might possibly exist such that a reviewing court could conclude that
prejudice resulted from the jury's viewing the photographs in Set 1.

10
D. Federal Habeas Proceedings--District Court

Petitioners then filed this action in district court pursuant to 28
U.S.C.A. § 2254 (West 1994),7 claiming that the upcoming second
trial violated their right not to be twice put in jeopardy for the same
offense because no manifest necessity existed to support the grant of
the mistrial in the first trial. The State responded that the mistrial was
necessary to "alleviate prejudice" caused by the jury's consideration
of unadmitted evidence; however, the State did not identify or in any
way suggest what possible prejudice may have resulted. On June 29,
1995, Petitioners sought either a temporary injunction of the sched-
uled state criminal trial or expedited consideration of their habeas
petition.

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

On July 10, 1995, the district court conducted an expedited, non-
evidentiary hearing of the motion for a temporary restraining order
and adopted the majority of these recommended findings of the mag-
istrate judge. The district court, however, determined that Petitioners
had shown no likelihood of succeeding on their double jeopardy claim
and therefore were not entitled to injunctive relief. The court reasoned
that because questions of provocation and self-defense were being
_________________________________________________________________
7 There is no question concerning the propriety of a federal court con-
sidering the habeas petition. Petitioners are in custody, either in actual
custody or subject to bond restrictions, and have exhausted their state
remedies. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294,
300-03 (1984). A federal habeas court is the only forum in which Peti-
tioners may attempt to protect their double jeopardy right not to be tried
twice for the same offense. See id. And, it should be noted that there is
no suggestion that Petitioners have not proceeded in as timely a manner
as possible in bringing this issue to a prompt resolution.

11
raised, the location of the parties when the gunshots were fired--i.e.,
whether on a public roadway or the Silvers' property--was relevant
and that several of the photographs in Set 1, being close-ups of the
ground showing what appeared to be blood, could be used to more
clearly document their locations. This conclusion was based only on
purely speculative statements of the State's attorney, not on any evi-
dence in the record. Significantly, although the district court con-
cluded that the photographs could be used to demonstrate more
clearly where the shooting had occurred, it did not find that the photo-
graphs were unduly prejudicial, as opposed to simply relevant.8
_________________________________________________________________
8 The district court also accepted an argument raised by the State for
the first time during oral argument on the motion. The State asserted that
defense counsel may have been attempting to place this evidence before
the jury improperly to allow them to make the last closing argument to
the jury. Under a South Carolina procedural rule, the defense may make
the last argument if it does not present evidence. The State argued that
although the defense had introduced 28 exhibits into evidence during the
prosecution's case in chief, some state court judges might nevertheless
have permitted the defense to have the last argument if it had not intro-
duced evidence in its own case.

This argument is baseless. First, it is well-settled law in South Carolina
that if the defense introduces any evidence, whether in its own case or
in the State's case, it loses the right to have the last argument. State v.
Gellis, 155 S.E. 849, 855 (S.C. 1930); State v. Battle, 403 S.E.2d 331,
333 (S.C. Ct. App. 1991). And, it is undisputed that the defense previ-
ously had offered into evidence a series of exhibits that had been admit-
ted without objection and therefore had already lost its right to make the
last argument before the incident with the unadmitted photographs
occurred. Second, and more fundamentally, the State's argument is logi-
cally flawed. If, as the State maintained, the defense had been motivated
by a desire to place this evidence before the jury without losing its right
to make the final argument, and, further, if some confusion among state
trial judges concerning the law may have permitted the defense to retain
the right to make the last argument even though evidence was introduced
by the defense during the prosecution's case, obviously the defense
would have simply moved the introduction of the photographs in Set 1
during Officer Counts' testimony. Alternatively, if there was no dispute
concerning whether the introduction of other evidence by the defense
during the prosecution's case waived the right to final argument, then
defense counsel would have already known it was waived. In either cir-
cumstance, there would have been no point in attempting to place the
evidence before the jury without having it admitted first. The State has
now abandoned this position.

12
E. Federal Habeas Proceedings--Circuit Court--Stay Request

After the district court denied their request for a temporary stay of
the scheduled state criminal proceedings or expedited consideration of
their habeas petition, Petitioners submitted to a panel of this court a
request for emergency relief from the order of the district court. See
Fed. R. App. P. 8. The panel heard oral arguments on Saturday, July
15, 1995. Questions during argument demonstrated that the panel was
particularly concerned with whether the State had identified any prej-
udice to the prosecution or Petitioners resulting from the jury's having
viewed the photographs in Set 1 without their formal admission into
evidence. As the following colloquy reveals, the State's attorney con-
ceded that the photographs in Set 1 were relevant, were not unduly
prejudicial, and were, in fact, admissible:

THE COURT: All right. Is there any question in your
mind, Mr. Zelenka, as an experienced attorney that, had the
Defense said, "Your Honor, we move [the Set 1 photo-
graphs] into evidence," and the State had said, "No objec-
tion," that they would have been marked as an exhibit?

STATE'S ATTORNEY: At the time of that trial I do not
see any reason why they would not have been introduced as
an exhibit. That's right.

THE COURT: Today -- today, Mr. Zelenka, can you give
this Court any reason why these photographs shown as[Set
1] are not relevant evidence and properly admissible either
by the State or by the Defense?

STATE'S ATTORNEY: This evidence could have been
admitted at the time of that particular trial.

THE COURT: That's not my question. . . . Is there any
reason why these photographs in [Set 1] are not relevant
evidence and properly admissible either offered by the State
or by the Defense?

STATE'S ATTORNEY: No, sir.

13
 THE COURT: All right, sir. . . . So, this is relevant evi-
dence. There's no reason it should not have been before the
jury, other than the fact [that] the Defendant didn't say, "We
move into evidence"?

STATE'S ATTORNEY: That's correct.

....

THE COURT: Was there any reason other than the tech-
nical reason [that the defense failed to move the photo-
graphs into evidence], that these photographs should not
have properly been shown to the jury, as [Set 2 and Set 3]
were during the course of the trial?

STATE'S ATTORNEY: In my analysis of these photo-
graphs, these are not the type of photographs that the state
court system would have excluded from evidence based
upon a prejudicial factor.

THE COURT: So you offer no reason why it would have
been improper for these photographs to have been admitted
into evidence and shown to the jury?

STATE'S ATTORNEY: No reason at all once Mr. Counts
authenticates the documentation.

Transcript of July 15, 1995 Arguments at 28-31 (emphasis added).
The State also conceded that there was no rule of law or procedure
that prevented Officer Counts from being recalled to the stand so that
the defense could move the admission of the photographs. In further
questioning from the panel, the State opined that the photographs in
Set 1 showed more clearly what appeared to be blood in or near the
areas marked with yellow tape. Following a conference at the conclu-
sion of the hearing, the panel, by a vote of two to one, denied the
requested relief.

On Monday, July 17, 1995, Petitioners sought en banc review of
the order denying temporary relief. And, on July 20, 1995, a majority

14
of the active circuit judges voted in favor of granting temporary relief
from the order of the district court. We remanded to the district court
with instructions to rule on the merits of the habeas petition as expedi-
tiously as possible. Gilliam v. Foster, 61 F.3d 1070 (4th Cir. 1995)
(en banc).

F. State Criminal Proceedings--Second Trial

While the poll of the en banc court was proceeding, Petitioners'
retrial began in state court on July 17. Prior to the second trial, the
state judge who presided over the first trial and who is a named
respondent in this litigation, sua sponte recused himself before the
retrial began. During the course of the retrial, the photographs in Set
1 were offered into evidence by the defense. The prosecuting attorney
objected to their admission on the ground that the photographs were
cumulative and confusing.9 The presiding state trial judge overruled
the objection and admitted the photographs into evidence. On Thurs-
day, July 20, upon learning that this court had stayed the state crimi-
nal proceedings, the state trial judge suspended the trial pending
further notice.

G. Federal Habeas--District Court on Remand

On July 21, immediately following our remand, the district court
conducted a lengthy and thorough evidentiary hearing. Subsequently,
it entered comprehensive findings of fact based upon the evidence and
testimony presented and held that the retrial of Petitioners was,
indeed, barred by the Double Jeopardy Clause.
_________________________________________________________________
9 In my opinion for the en banc court granting Petitioners' request for
a temporary stay of the state criminal proceedings, I noted that Petition-
ers had represented to us that during the second trial, the photographs
were admitted without objection by the State and that subsequently the
State objected to their admission. As the testimony before the district
court made clear, this was not correct: Although defense counsel recalled
that in a discussion with opposing counsel off the record, the State had
indicated that it would not have any objection to a number of photo-
graphs, including those that composed Set 1, the State did object to the
introduction of the photographs prior to their admission. In any event,
whether the State objected to the photographs during the second trial is
irrelevant.

15
The district court rejected the State's claim that manifest necessity
for the mistrial existed because the jury's viewing the Set 1 photo-
graphs was unduly prejudicial, finding as a factual matter that the
photographs in Set 1 had been "authenticated by Officer Counts, were
used by him to refresh his recollection as to whether there were blood
stains on the ground, and were actually relied upon by him in fashion-
ing a demonstrative exhibit showing the location of what appeared to
him to be blood stains, tire tracks, and other evidentiary items." The
court also found that because Officer Counts had already testified
concerning the relative locations of the objects depicted in the Set 1
photographs, the disputed photographs were of "no real significance
to either party" viewed in the context of the trial.

Further, the district court rejected the State's argument that the
photographs would likely cause juror confusion because the location
of the areas marked with yellow tape depicted in the photographs had
not been explained sufficiently by Officer Counts and because the
"red spots" that were more visible in the Set 1 photographs might lead
the jury to conclude that the photographs showed Gilliam's blood.
The court determined as a factual matter that during his testimony
Officer Counts adequately identified the location of the three areas
marked with yellow tape. In addition, the court concluded that the
photographs did not present an undue risk of juror confusion concern-
ing whether the "red spots" were blood because Officer Counts, the
State's witness, and the investigating officer, had already testified that
these areas were marked with yellow tape based on the investigators
having discovered what appeared to be blood there, and the fact that
a serologist had not tested the red spots would not have provided a
basis for exclusion of the photographs,10 nor was it necessary to lay
a proper foundation for introduction of the photographs.

Additionally, the district court held that even assuming the photo-
graphs in Set 1 were somehow prejudicial, manifest necessity did not
support the grant of the mistrial by the state trial judge because obvi-
_________________________________________________________________
10 One of the prosecuting attorneys testified before the district court that
so far as she knew no serological test had been conducted on the swabs
of blood taken from the scene. Prior to oral argument before the en banc
court, the parties informed us that, in fact, serological testing had been
performed and that the results indicated that the spots were human blood.

16
ous and adequate alternatives to the mistrial were available. For
example, allowing Officer Counts to be recalled to the witness stand
would have resolved any possible problem.

Finally, the district court concluded that the state trial judge acted
improvidently and precipitately in granting the mistrial. The district
court based this conclusion on the facts that the state trial judge had
failed to evince any concern for the possible double jeopardy ramifi-
cations of his actions, had failed to permit the parties an opportunity
to fully explain their positions, and had declined to permit further
inquiry into whether the photographs had been authenticated during
Officer Counts' testimony.

Accordingly, the district court granted the writ of habeas corpus.
By separate order, however, it declined to enlarge the Petitioners
pending appeal.11

From the order of the district court granting the writ of habeas cor-
pus, the State appeals.12 A majority of the members of the en banc
_________________________________________________________________
11 It appears that upon notification that the district court had granted the
writ of habeas corpus, the state trial judge released the jurors, but did not
dismiss them or grant a mistrial.

12 Following the decision of the district court granting the writ, the
State sought relief from the order of the district court before this court
in order to permit the resumption of Petitioners' criminal trial during the
pendency of this appeal. This relief was denied. Gilliam v. Foster, 63
F.3d 287 (4th Cir. 1995) (en banc). The State also requested that this
court prevent the enlargement of Petitioners; however, the district court
had already stayed Petitioners' enlargement pending appeal, and Peti-
tioners had not appealed from this ruling, so no relief from this court was
necessary to ensure that Petitioners remained subject to the same custo-
dial arrangements to which they had been subjected during the state
criminal proceedings. After this court ruled, the State moved Chief Jus-
tice Rehnquist, sitting as the Circuit Justice for the Fourth Circuit, to
grant temporary relief from the order of the district court pending appeal.
Chief Justice Rehnquist refused to permit the State to proceed with the
criminal prosecution pending appeal, but granted the State's application
for a stay of enlargement. Foster v. Gilliam, 116 S. Ct. 1 (Rehnquist, Cir-
cuit Justice 1995).

17
court voted to grant en banc hearing of the State's appeal on an expe-
dited basis.

II. DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment, made appli-
cable to the states through the Fourteenth Amendment, provides that
no one shall "be subject for the same offence to be twice put in jeop-
ardy of life or limb." U.S. Const. amend. V; Benton v. Maryland, 395
U.S. 784, 794 (1969). Among the protections provided by this Clause
is the assurance that a criminal defendant will not be subjected to "re-
peated prosecutions for the same offense." Oregon v. Kennedy, 456
U.S. 667, 671 (1982). This protection encompasses a right to have a
particular tribunal decide guilt or innocence once jeopardy has
attached.13 Id. at 672-73.

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

Arizona v. Washington, 434 U.S. 497, 503-04 (1978) (footnotes omit-
ted). For these reasons, a prosecutor generally is permitted only one
opportunity to compel a defendant to stand trial. Id. at 505.14
_________________________________________________________________
13 It is well settled that jeopardy attaches in a jury trial when the jury
is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35 (1978).
14 Because the Supreme Court has made plain that the Double Jeopardy
Clause affords protection against retrial even when the first trial has not
been completed, we are not free to adopt the position advanced by one
of the dissenting members of this court that the Double Jeopardy Clause
furnishes protection only when the first trial has been completed or the
prosecution has acted in bad faith. See United States v. Schooner Peggy,
5 U.S. (1 Cranch) 103 (1801).

18
Nevertheless, if a criminal proceeding is terminated by mistrial
without a final resolution of guilt or innocence, a defendant may be
retried in certain circumstances.15 Id. When a defendant seeks or con-
sents to the grant of a mistrial, there is no bar to his later retrial.16
Kennedy, 456 U.S. at 672-73. But, when a defendant opposes the
grant of a mistrial, he may not be retried unless there was a manifest
necessity for the grant of the mistrial or the failure to grant the mis-
trial would have defeated the ends of justice. United States v. Dinitz,
424 U.S. 600, 606-07 (1976); Wade v. Hunter, 336 U.S. 684, 690
(1949). This proposition of law was first recognized in United States
v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824), where Mr. Justice Story
wrote:

We think, 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 interfere with any of
the chances of life, in favour 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 conscien-
tious exercise of this discretion, rests, in this, as in other
cases, upon the responsibility of the Judges, under their
oaths of office.
_________________________________________________________________

15 Of course, if a criminal prosecution has "ended in an acquittal or con-
viction," the government is absolutely barred from prosecuting him fur-
ther for the same offense. See Arizona v. Washington, 434 U.S. at 505.
16 This proposition is subject to an exception when the defendant estab-
lishes that his request for the mistrial was motivated by prosecutorial or
judicial misconduct that was intended to provoke the defendant into
moving for a mistrial. Kennedy, 456 U.S. at 673-79.

19
Based on this explication in Perez, the Supreme Court has consis-
tently stressed the great deference to be accorded to the decision of
the trial judge to grant a mistrial. See, e.g. , Illinois v. Somerville, 410
U.S. 458, 461-66 (1973). A reviewing court must"accord the highest
degree of respect to the trial judge's evaluation of the likelihood" that
the circumstances giving rise to the mistrial would have affected the
impartiality of the deliberations of the jury. Arizona v. Washington,
434 U.S. at 511. Indeed, when some event creates the possibility that
the jury may have been biased, the decision of the trial judge who has
had the opportunity to observe the sequence of events in the context
of the trial is entitled to special respect.17 Id. at 512-14. The trial judge
need not make an explicit finding of manifest necessity or articulate
the factors that led to the exercise of his discretion, and his decision
is not subject to attack on this basis when the record adequately dis-
closes the basis for his ruling. Id. at 516-17.

The deference owed to the decision of the trial judge to grant a
mistrial, although great, is not unlimited. Id. at 514 ("Our conclusion
that a trial judge's decision to declare a mistrial based on his assess-
ment of the prejudicial impact of improper argument is entitled to
great deference does not, of course, end the inquiry."). The Supreme
Court has made absolutely clear that "[i]n order to ensure that [the
defendant's constitutionally protected interest in having a particular
empaneled jury decide his guilt] 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. at 514. If 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, for 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 confronta-
tion with society through the verdict of a tribunal he might believe to
_________________________________________________________________
17 This level of deference falls on a spectrum between the strictest
appellate scrutiny that applies when a trial judge grants a mistrial in order
to permit the prosecution an opportunity to garner more evidence against
the accused and the highest level of appellate deference that applies
when a trial judge dismisses a hopelessly deadlocked jury. Arizona v.
Washington, 434 U.S. at 507-10.

20
be favorably disposed to his fate.'" Id. (quoting United States v. Jorn,
400 U.S. 470, 486 (1971) (Harlan, J.) (plurality opinion)).

Although the Supreme Court has never explicitly articulated a test
for a reviewing court to apply in analyzing whether the exercise of
discretion by the trial judge in granting a mistrial was sound as
opposed to irrational or irresponsible, we are able to distill some fac-
tors that are relevant to this inquiry by looking to the considerations
that have framed that Court's analysis of this issue. 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. See Arizona v. Washington, 434 U.S. at
514-16 (noting that the trial judge had been presented with a situation
in which the jury had been exposed to inadmissible and highly preju-
dicial material, creating manifest necessity to support the mistrial);
Somerville, 410 U.S. at 468-71 (holding ends of public justice sup-
ported the grant of a mistrial in first proceeding when "defect was
found to exist in the indictment that was, as a matter of Illinois law,
not curable by amendment," rendering any conviction obtained sub-
ject to being "upset at will" on appeal or in collateral proceedings);
Downum v. United States, 372 U.S. 734, 735-38 (1963) (examining
facts to determine whether grant of mistrial supported by manifest
necessity when based on absence of prosecution witness); Wade, 336
U.S. at 691-92 (concluding that record was sufficient to show that
rapidly advancing army brought about tactical situation responsible
for the withdrawal of charges from first court-martial and thus was
supported by manifest necessity). In addition, a reviewing court may
find relevant whether the trial judge acted precipitately or whether the
trial judge expressed concern regarding the possible double jeopardy
consequences of an erroneous declaration of a mistrial, heard exten-
sive argument on the appropriateness of such a measure, and gave
appropriate consideration to alternatives less drastic than granting a
mistrial. See Arizona v. Washington, 434 U.S. at 514-16; see also
Jorn, 400 U.S. at 486-87 (plurality opinion) (concluding that based on
circumstances surrounding sua sponte grant of mistrial, trial judge
made no effort to exercise sound discretion). We turn to address the
application of these factors.

21
A. Did Manifest Necessity or the Ends of Public Justice Support
the Grant of a Mistrial?

Whether a grant of a mistrial is manifestly necessary is a question
that turns on the facts presented to the trial court. Somerville, 410 U.S.
at 464; Wade, 336 U.S. at 690-91. It is not a mechanically applied
standard, but rather is a determination that must be made in the con-
text of the specific difficulty facing the trial judge. Arizona v.
Washington, 434 U.S. at 506; see Somerville , 410 U.S. at 467 (reject-
ing application of rigid rules in which categories of errors support or
fail to support manifest necessity for the grant of a mistrial). And,
while manifest necessity for a mistrial does not require that a mistrial
be "necessary" in the strictest sense of the word, it does require a high
degree of necessity. Arizona v. Washington, 434 U.S. at 506. Perhaps
the clearest example of a situation in which manifest necessity exists
for a mistrial is when a jury is unable to reach a verdict. Id. at 509.
At the other extreme are situations in which a prosecuting attorney
seeks a mistrial in order to have additional time to marshal evidence
to strengthen the case against the defendant. Id. at 508. Between these
two extremes exists a spectrum of trial errors and other difficulties,
some creating manifest necessity for a mistrial and others falling far
short of justifying a mistrial. See id. at 510.

The State concedes, as it has previously to this court, that the pho-
tographs in Set 1 were relevant evidence and that assuming they had
been offered into evidence after a proper foundation had been laid for
their admission, the photographs would have been admitted into evi-
dence. As pictures of the scene where the altercation occurred, the
photographs in Set 1 were relevant evidence. See State v. Gilbert, 283
S.E.2d 179, 181 (S.C. 1981) (holding crime scene photographs prop-
erly admissible to show circumstances of the crime), cert. denied, 456
U.S. 984 (1982); State v. Wells, 426 S.E.2d 814, 818 (S.C. Ct. App.
1992) (noting that photographs of crime scene are admissible to cor-
roborate other evidence). And, as the State also previously conceded,
there is no basis for concluding that these photographs were subject
to exclusion on the basis that they "are unfairly prejudicial so as to
outweigh the probative value." See State v. Franklin, 456 S.E.2d 357,
361 (S.C.) (holding that "[t]o constitute unfair prejudice, the photo-
graphs must create a `tendency to suggest a decision on an improper
basis, commonly, though not necessarily, an emotional one'") (quot-

22
ing State v. Alexander, 401 S.E.2d 146, 149 (S.C. 1991) (adopting
unfair prejudice portion of Federal Rule of Evidence 403 as South
Carolina law)), cert. denied, 116 S. Ct. 357 (1995); State v. Campbell,
191 S.E.2d 770, 773 (S.C. 1972) (noting that court should exclude
photographs that "are calculated to arouse the sympathy or prejudice
of the jury," that "are entirely irrelevant," or that are "not necessary
to substantiate facts").

We also note that the State appears to concede that the mere fact
that the photographs in Set 1 were relevant and material evidence
does not support a finding that the jury was biased by viewing the
photographs or that its deliberations were adversely affected.
Undoubtedly, as counsel for Petitioners noted during oral argument,
all relevant evidence by definition is prejudicial to some extent in that
it is intended to support the proponent's case and prejudice the
opponent's.18 But, the "prejudice" engendered simply by the jury's
viewing of relevant evidence, when that evidence could not improp-
erly bias the jury or adversely affect its deliberations, generally could
not support a finding of manifest necessity for a mistrial.

Consideration of the analysis leading the Supreme Court to con-
clude in Arizona v. Washington that the state trial judge had not
abused his discretion in granting the prosecution's motion for a mis-
trial over the defendant's objection is instructive. During the opening
argument in Washington's state criminal trial, defense counsel
informed the jury that the prosecution had intentionally withheld
exculpatory evidence from the defense in a prior trial and that, as a
result of the prosecution's misconduct, the state supreme court had
ordered that Washington be given a new trial. Arizona v. Washington,
_________________________________________________________________
18 The dissents attempt to make much of Petitioners' counsel's "conces-
sion" in argument before the court that the Set 1 photographs were "prej-
udicial." This attempt is misdirected. Counsel acknowledged, as she
must, that all relevant evidence is by definition"prejudicial." However,
Petitioners' counsel was careful to draw the distinction between evidence
that is unduly or improperly prejudicial and evidence that is prejudicial
only in the sense that it is relevant. Petitioners have consistently main-
tained that the Set 1 photographs were prejudicial only in the sense that
they were relevant, not in the sense that they could have improperly
biased the jury.

23
434 U.S. at 499. The Supreme Court found this information--that the
prosecution had committed misconduct in the prior trial--to be imma-
terial, inadmissible, and highly inflammatory. See id. at 510-11. And,
for this reason, the Supreme Court began its analysis of whether the
trial court had abused its discretion in granting the mistrial on the
premise that the improper argument "may have affected the impartial-
ity of the jury." Id. at 511. The type of bias the Supreme Court consid-
ered to be germane in evaluating the possibility that the jury's
deliberations would be adversely affected, and thus to determining
whether manifest necessity existed for a mistrial, was that arising
from the exposure of the jury to inadmissible and inflammatory mate-
rial. See id. at 514-15. Clearly, no fair reading of Arizona v.
Washington can support a conclusion that a jury's viewing of rele-
vant, largely cumulative, and unobjectionable photographs could give
rise to the type of adverse effect on the jury's deliberations sufficient
to create a manifest necessity for a mistrial.

Rather, the State asserts that Officer Counts did not lay a proper
foundation for the jury's consideration of the photographs in Set 1
because he did not identify the photographs in Set 1 by number in the
presence of the jury and because he did not specifically explain to the
jury either the location depicted in the photographs or their relevance.
The State claims that in the absence of this proper identification and
foundation testimony, the jury's viewing of the photographs unduly
prejudiced the prosecution because the jury may have been confused.
It asserts that without this proper foundation testimony, the jury may
not have been able to determine that the different photographs
depicted the same areas marked with yellow tape and, thus, may have
been misled as to the location of these areas. Further, the State con-
tends that in the absence of foundational proof of serological tests
performed on the red spots shown in the photographs in Set 1, the jury
could not properly have relied on photographs to conclude that the red
spots were blood. We cannot agree.19
_________________________________________________________________
19 Not content with the arguments advanced by the State, one of the dis-
senting members of the court contends that the majority is incorrect in
concluding that the State's principal argument is that the potential for
jury bias resulted from the jury's viewing of the Set 1 photographs with-
out the authentication necessary for their formal admission. To the con-
trary, this has consistently been the State's position in its brief and at oral
argument.

24
The State cites no authority for the proposition that before a jury
may properly view photographs of a crime scene, the sponsoring wit-
_________________________________________________________________
In response to the repeated questions by various members of the en
banc court during oral argument to the State's attorney concerning how
the prosecution's case had been prejudiced by the jury's viewing of the
Set 1 photographs, the State acknowledged that it previously had con-
ceded that the photographs themselves were not prejudicial and main-
tained on at least six separate occasions that any prejudice to the
prosecution resulted from the fact that the jury saw the Set 1 photographs
before they were properly authenticated and formally admitted into evi-
dence. Following these repeated assertions, the dissenting judge asked:

[O]n top of that, I asked you a specific question during a three-
hour panel hearing in which you quite clearly argued that it . . .
was significant that you could see clearly the spots[of blood] on
the unadmitted photographs . . . . Defense counsel in response to
my question specifically said that, "Yes, it was prejudicial to the
government's case." But, in response to [the court's] question
today you say that it wasn't prejudicial except to the extent that
in some technical sense they hadn't been authenticated. Do you
have an argument that they were prejudicial? That's what we're
interested in--a substantive argument of prejudice to the govern-
ment's case. If not, then you've got to argue under Arizona that
prejudice isn't required, which you just conceded . . . it is.

STATE'S ATTORNEY: We don't argue that prejudice is not
required. We submit that . . . prejudice under Arizona v.
Washington, the way that I submit that Judge Wilkins is inter-
ested in prejudice, is required.

COURT: O.K., then what is the prejudice . . . ?

STATE'S ATTORNEY: The prejudice, I submit is, first off,
the fact the photographs which were not . . .

COURT: Other than that. The substantive case of[prejudice
to] the prosecution. I assume there was no prejudice to the prose-
cution at this point in these proceedings.

STATE'S ATTORNEY: Certainly, [they were] prejudicial to
the prosecution because [the defense] never sought to introduce
those photographs.

In response to further questions from the members of the court to the
State's attorney concerning the possibility that its case was prejudiced by
the jury's viewing of the Set 1 photographs, the State reiterated that the

25
ness must refer to each photograph by exhibit number, describe the
location depicted in each photograph individually, or explain the rele-
vance of each of the photographs individually. In other words, the
State offers no support for its contention that this testimony is a nec-
essary part of the foundation for admission of photographs into evi-
dence in South Carolina state courts. This is not surprising because
under South Carolina law, "[n]ormally it is sufficient to justify admit-
tance of photographs into evidence if a person familiar with the scene
can say that the pictures truly represent the scene involved."
Campbell, 191 S.E.2d at 773.20

There is no dispute that Officer Counts was present at the scene
when the photographs were taken, either by himself or another SLED
agent, or that the photographs accurately represented the scene out-
side the Silvers' mobile home. As the district court found, these facts
were adequately established during Officer Counts' testimony; so, a
_________________________________________________________________

failure to formally introduce the photographs into evidence may have led
to juror confusion. In an apparent attempt to get to the bottom of the mat-
ter one final time, the dissenting judge again questioned the State's attor-
ney concerning whether he was asserting that the fact that the
photographs in Set 1 showed the blood more clearly was independently
significant. Conceding that it was not, the State's attorney responded that
Officer Counts had testified to the existence of blood at the scene.

Having again reviewed the briefs and arguments before the court, we
remain confident that the State has now abandoned any argument that the
photographs themselves could have biased the jury. But, even if the dis-
sent were correct that the State had pursued this contention that the jury
may have been biased as a result of viewing the Set 1 photographs
because they disclosed information that was different from and more
prejudicial than the photographs in Set 2, this claim would lack merit for
the reasons discussed at length in the text.

20 The dissents complain that we are delving into South Carolina evi-
dentiary law concerning matters that are quintessentially within the dis-
cretion of the trial judge. As we have made plain, however, the state trial
judge refused to rule on the admissibility of the Set 1 photographs. So,
we are not called upon to speculate over the correctness of a contempora-
neous ruling. Instead, our examination ensues from the State's post hoc
assertion that a proper foundation for admission was not laid.

26
proper authentication was laid for the admission of the photographs.21
This finding is buttressed by the fact that the photographs in Set 2
were admitted into evidence with the same foundational testimony as
those in Set 1--except for the fact that the Set 2 photographs were
referred to by number--and without objection from the prosecuting
attorney. Additionally, there is no requirement of South Carolina law
that before crime scene photographs showing what appears to be
blood may be admitted into evidence, the results of a serological test
first must be introduced.

Moreover, even if the State were correct that Officer Counts had
not laid the proper foundation for admission of the photographs into
evidence, there was no possibility that the jury could have been con-
fused by seeing the photographs in Set 1 prior to having heard this
testimony. Officer Counts had testified that yellow tape marked three
areas on the ground outside the Silvers' mobile home where what
appeared to be blood was located. In addition, he had testified that
these areas were located to the left of the mobile home and just beside
the roadway, and he had marked the location of these three areas on
an overlay of a diagram of the crime scene prepared by the prosecu-
tion. Further, he testified that all of the photographs (Sets 1 and 2)
showed the same scene but from different angles. Given this testi-
mony, it strains credibility to suggest that the Set 1 photographs could
have misled the jury into believing that there were a greater number
of areas where blood was located or that the blood was discovered in
a location other than the one indicated by Officer Counts. And,
whether the photographs actually showed blood was a matter properly
within the jury's discretion; no additional testimony or foundation
was necessary to guide their discretion prior to viewing the photo-
graphs.
_________________________________________________________________

21 Although the State does not assert that the district court erred in ren-
dering this factual finding based on the evidence presented during the
hearing, one of the dissenting members of the court suggests that the dis-
trict court improperly failed to defer to a contrary statement made by the
state trial judge. However, because Petitioners were not provided with a
full, fair, or adequate hearing at the state level, to the limited extent that
the state trial court resolved the facts, the district court was not bound by
them. See 28 U.S.C.A. § 2254(d).

27
Finally, in determining whether a high degree of necessity was
shown for the mistrial, it is important to bear in mind that there is
simply no rational argument that viewing the photographs in Set 1
somehow improperly biased the jury. Cf. Arizona v. Washington, 434
U.S. at 510-11 (beginning analysis of whether trial court exercised
sound discretion with the premise that counsel's improper and highly
inflammatory remarks to the jury during opening argument may have
affected the jury's impartiality). As the State previously conceded, the
only error was in the fact that the photographs had not been formally
admitted into evidence. The State's own witness, Officer Counts, tes-
tified that what appeared to be blood had been located at the scene
outside the Silvers' mobile home. And, the difference in perspective
of the two sets of photographs did not add any information concern-
ing the location of the blood spots or tire tracks because Officer
Counts testified, and indicated on a diagram prepared by the State,
where SLED investigators had located blood at the scene and the
location of the tire tracks.

Particularly revealing is the testimony of one of the prosecuting
attorneys given before the district court: He testified that the prosecu-
tion did not actually want to move for a mistrial and that the reason
the motion was made was because the state trial judge sent a signal
as big as "I have ever seen" that he desired the prosecution to so move.22
_________________________________________________________________

22 Theorizing why, in his opinion, the state trial judge might have been
motivated to invite a mistrial motion from the prosecution, this prosecut-
ing attorney speculated that he thought the state trial judge may have
been influenced by an incident that occurred earlier in the trial in which
one of the defense attorneys looked in a prosecution notebook. Accord-
ing to the undisputed evidence presented before the district court, this
incident was brought to the attention of the state trial judge, who raised
the matter with defense counsel at a bench conference. Counsel denied
wrongdoing, stating that she had inadvertently looked in the notebook
while attempting to find her own. The state trial judge made no finding
of wrongdoing and did not reference this incident in granting the mistrial.

Later, this incident was addressed in a footnote to the original order
entered denying Petitioners' motion to dismiss their indictment on dou-
ble jeopardy. After this order--which was prepared by the prosecution
and signed by the state trial judge without change--was entered, defense
counsel moved the state trial judge to amend the order and omit reference

28
J.A. 428. In view of the state trial judge's "signal" to the prosecution
that the court was seeking a motion for a mistrial, it is understandable
why the motion was made. This admission is strong evidence that the
prosecution did not actually believe that the jury had been biased or
that its deliberations were somehow affected as a result of seeing the
photographs in Set 1. Indeed, nowhere in the prosecuting attorney's
testimony did he indicate that the prosecution was in some way preju-
diced by the jury's viewing of the Set 1 photographs. And, the prose-
cution's lack of awareness of the serological test that had been
performed and its decision not to conduct further serological testing
to attempt to determine whose blood was found further illustrates the
fact that the prosecution did not believe that the existence of drops of
blood outside the mobile home was significant; it was undisputed that
Gilliam bled from a gunshot wound to the lower leg and, therefore,
that blood was present at the scene outside the mobile home.

Alternatively, the State argues that even if the jury was not biased
by viewing the Set 1 photographs, the state trial judge nevertheless
properly may have concluded that the ends of public justice were
served by the grant of a mistrial because the procedures for the proper
admission of evidence for the jury's consideration had been violated
through defense counsel's negligence. In fact, one of the prosecuting
attorneys testified that this factor, rather than any perceived prejudice
to the prosecution's case, motivated the decision to seek a mistrial. In
our view, this question forms the true issue raised by this appeal:
Does a trial judge exercise sound discretion in concluding that a mis-
trial is supported by the ends of public justice when defense counsel
negligently permits the jury to view photographs that have not been
admitted into evidence, but that undoubtedly could and would be
admitted if so offered?
_________________________________________________________________

to the incident. The prosecution did not object to removal of this lan-
guage, and the state trial judge entered the amended order, which is
included as an appendix to one of the dissents.

This record does not support a suggestion that the state trial judge con-
cluded that defense counsel engaged in a pattern of misconduct or that
the state trial judge based its decision to grant the mistrial on this basis.

29
In examining some of the situations in which the ends of public
justice were held to support the grant of a mistrial, the Supreme Court
has written:

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 be reversed
on appeal due to an obvious procedural error in the trial. If
an error would make reversal on appeal a certainty, it would
not serve "the ends of public justice" to require that the Gov-
ernment proceed with its proof when, if it succeeded before
the jury, it would automatically be stripped of that success
by an appellate court.

Somerville, 410 U.S. at 464.

As noted above, because these photographs could have been admit-
ted into evidence, could not have caused the jury to have been con-
fused or misled, and could not have biased or inflamed the jury, there
is no basis upon which to conclude that the jury could not have
reached an impartial verdict.

And, any error in the jury's viewing of these photographs would
not have amounted to reversible error under South Carolina law. First,
because there was no reason why the photographs could not have
been formally admitted by the defense, any technical error in the
jury's viewing of the photographs could have been easily remedied
before the case was submitted to the jury. Second, even if the techni-
cal error could not have been corrected, this error could not possibly
have resulted in reversal of Petitioners' convictions because harmless
error does not necessitate the reversal of a South Carolina criminal
conviction. See State v. Gaskins, 326 S.E.2d 132, 141 (S.C. 1985),
cert. denied, 471 U.S. 1120 (1985). The erroneous consideration of
evidence is not a ground for reversal unless it results in prejudice. See
State v. Knight, 189 S.E.2d 1 (S.C. 1972). And, when a jury considers
a crime scene photograph, when other photographs of the same scene
are already in evidence without objection, no prejudice can be
inferred. See State v. Bellue, 194 S.E.2d 193, 194 (S.C. 1973). More-
over, a jury's exposure to evidence that is admissible, but not admit-
ted, does not require reversal of a conviction. See Campbell, 191

30
S.E.2d at 772-73 (stating that display before the jury by the solicitor
of an axe found at the crime scene did not warrant reversal of defen-
dant's conviction, when although not admitted into evidence, the axe
properly could have been admitted). Thus, there is no possibility that
if the trial had resulted in a conviction of Petitioners, the verdicts
would have been reversed on appeal because the jury viewed the Set
1 photographs.

Although the circumstances presented to the state trial judge cre-
ated neither a risk that the jury would be unable to reach an impartial
verdict nor a risk that a verdict of guilty would have been overturned
on appeal or collateral review, an argument is made that the state trial
judge's grant of a mistrial under these circumstances nevertheless was
supported by the ends of public justice. A trial judge must be permit-
ted to ensure the integrity of the trial and its evidentiary procedures
through the grant of a mistrial, the State maintains, and any rule that
fails to recognize this institutional necessity would place unscrupu-
lous defense counsel in a "no lose" situation: Unethical defense coun-
sel will be undaunted from violating evidentiary procedures because,
in the event a mistrial is granted, they obtain a real opportunity for
a reviewing court to conclude that retrial is barred by the Double
Jeopardy Clause or, in the event the trial judge does not grant a mis-
trial, they obtain the benefit of having the jury consider unadmitted
or improperly admitted evidence. This parade of horribles rings hol-
low.

Undoubtedly a trial judge possesses wide latitude to maintain con-
trol over the courtroom to ensure the integrity of the proceedings, but
the traditionally broad discretion afforded in such matters necessarily
accedes to the Constitution, requiring that the exercise of the discre-
tion in favor of granting a mistrial over a defendant's objection and
after the jury has been sworn be exercised only when a high degree
of necessity or the ends of public justice compel the act. We are
unable to accept the State's argument that a trial court may deprive
a defendant of his constitutionally protected right to have an empan-
eled and unbiased jury decide his guilt on the ground that his attorney
committed a technical and harmless error.23 See Harris v. Young, 607
_________________________________________________________________
23 The State asserted at oral argument that even if the photographs in
Set 1 had been exact duplicates of photographs that had already been
admitted into evidence, the state trial judge would have been justified in
concluding that a mistrial was manifestly necessary.

31
F.2d 1081, 1086 (4th Cir. 1979) (concluding that trial court did not
exercise sound discretion in granting mistrial in part because "there
[was] no indication that the traditional remedies for attorney miscon-
duct, including censure, reprimand, contempt, or recommendation of
disciplinary proceedings were not available"), cert. denied, 444 U.S.
1025 (1980). And, the State's argument is particularly unconvincing
on the present facts because there has never been any allegation that
all of the defense attorneys were responsible for the error. Thus, the
Petitioners whose separate counsel were not responsible for the error
were deprived of a constitutional right in the absence of even uninten-
tional harmless error by their own attorney.

Our conclusion that the ends of public justice do not support the
grant of a mistrial under the present circumstances--i.e., when admis-
sible and largely cumulative evidence that was not unduly prejudicial,
that would not cause juror confusion, and that had been properly
authenticated, was inadvertently placed where the jury could view it
--does not signal that a trial judge would be incorrect in concluding
that the ends of justice supported the grant of a mistrial in other cir-
cumstances. For example, when evidence that would not have been
admitted, or that may have biased the jury in some way, was aired
before the jury, a mistrial may very well be appropriate. Accordingly,
unscrupulous defense counsel will find no encouragement in our
opinion to evade the rules of evidence: If counsel were to air evidence
that might tend to improperly bias the jury or adversely affect its
impartiality, any reviewing court applying the teachings of Arizona v.
Washington would conclude that the trial judge acted within his dis-
cretion in granting a mistrial. And, if counsel seeks to improperly
place only innocuous, admissible evidence before the jury, no advan-
tage is gained, and a significant risk exists that counsel may find that
they face sanctions for their conduct. All in all, we do not view this
scenario as creating any real possibility for abuse.

In sum, we conclude that neither manifest necessity nor the ends
of public justice required a mistrial.

B. Do Other Factors Indicate that the State Trial Judge Exercised
Sound Discretion?

The other factors that the Supreme Court has indicated are relevant
to a determination of whether a trial court exercised sound discretion

32
in granting a mistrial also weigh against that finding here. First, as the
district court found, the state trial judge acted precipitately: He
refused defense counsel's request to determine whether the jury had
actually seen the photographs in question; he refused to determine
whether Officer Counts had in fact authenticated the photographs dur-
ing his testimony; he refused simply to look at the photographs and
rule on their admissibility; and he refused to allow defense counsel's
request to recall Officer Counts and formally move the admission of
the photographs into evidence. The manner in which the state trial
judge examined the appropriateness of the grant of a mistrial fur-
nishes no indication of the exercise of sound discretion.

In addition, the state trial judge 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.
Indeed, at no point during the brief colloquy with counsel concerning
the State's motion for a mistrial did the state trial judge allude to the
Fifth Amendment, the Double Jeopardy Clause, or the proposition
that in order to retry a criminal defendant after a mistrial has been
granted over his objection, manifest necessity or the ends of public
justice must require that it be granted.

Finally, the state trial judge ignored an obvious and adequate alter-
native to the grant of a mistrial. See United States v. Sloan, 36 F.3d
386, 400 & n.11 (4th Cir. 1994); United States v. Shafer, 987 F.2d
1054, 1057 (4th Cir. 1993) ("If alternatives existed, then society's
interest in fair trials designed to end in just judgments was not in con-
flict with the defendant's right to have the case submitted to the
jury.") (internal quotation marks & citation omitted); Harris, 607 F.2d
at 1085 n.4 ("If obvious and adequate alternatives to aborting the trial
were disregarded, this suggests the trial judge acted unjustifiably.").
The State conceded in argument before this court that there was noth-
ing to prevent the state trial judge from simply allowing Officer
Counts (who was under subpoena and available) to be recalled to the
witness stand to have the photographs formally introduced, as defense
counsel offered to do prior to the state trial judge's ruling on the pros-
ecution's motion for a mistrial.24 Without question, this would have
_________________________________________________________________
24 The State asserts that if the defense had been permitted to recall Offi-
cer Counts to the stand in order to formally move the introduction of the

33
cured the technical, and only, error that had occurred. Thus, in the
absence of any prejudicial error, the state trial judge refused to con-
sider or implement an obvious and completely adequate course of
action to correct any possible error in the jury's having viewed cumu-
lative photographs that had not been formally moved and received
into evidence. This factor, then, also weighs in favor of a conclusion
that the state trial court acted irresponsibly in granting the mistrial.25
_________________________________________________________________
photographs, the jury might have placed too much emphasis on the Set
1 photographs. This argument obviously lacks merit. Litigants are always
free to highlight evidence of their choosing by referring back to it several
times during a witness' examination or by questioning multiple witnesses
about the same evidence. Consequently, if the Set 1 photographs had
been introduced into evidence during Officer Counts' testimony, nothing
would have prevented defense counsel from emphasizing these photo-
graphs to the jury if it chose to do so. Accordingly, even if we assume
that the introduction of the photographs would have to have occurred
before the jury, recalling Officer Counts to the stand to do so would not
have unduly prejudiced the prosecution.
25 One dissent considers the order entered by the state trial judge deny-
ing Petitioners' motion to dismiss their indictments as essential to a
determination that the state trial judge did not act precipitately and criti-
cizes us for focusing on the circumstances surrounding the grant of the
mistrial at the time it occurred rather than the later order. Our lack of
focus on this order--which was filed some five months after the mistrial
had been granted--results from our conclusion that the order adds virtu-
ally nothing to the analysis of whether the state trial judge acted precipi-
tately in granting the mistrial. With the exception of the state trial judge's
statement that he considered giving a curative instruction, all of the sub-
stantive factual information to which the dissent points is already
reflected in the trial transcript and considered in the text of the majority
opinion. To the extent that the order further discloses that the state trial
judge considered and rejected giving a curative instruction, it is irrele-
vant. We would not fault a state trial judge for declining to pursue a rem-
edy that might not have cured possible prejudice to the prosecution;
indeed, we expressly note that a trial court acts well within the broad dis-
cretion afforded to it if it declines to impose a remedy that could fail to
cure potential jury bias. The problem here is that the state trial judge
granted the mistrial in the absence of any circumstances that could have
improperly biased the jury and failed to pursue a remedy that indisputa-
bly would have cured the potential bias, if any had been shown. Further,
it is not surprising that the order discusses double jeopardy concerns,

34
C. Summary

In sum, we agree with the district court that the state trial judge did
not exercise sound discretion in granting the mistrial. The record will
not support a conclusion that manifest necessity existed: The jury was
not exposed to any inadmissible evidence; the photographs in Set 1
could not have adversely affected the impartiality of the jury; and in
light of Officer Counts' testimony, the Set 1 photographs did not pres-
ent any realistic potential for juror confusion. Additionally, the grant
of the mistrial was not compelled by the ends of public justice: There
was no reason a just verdict could not have been reached by the jury;
there was no error that could have resulted in reversal if the trial had
ended in conviction; and there was no necessity for the state trial
judge to grant a mistrial to vindicate any institutional interest protect-
ing the integrity of evidentiary procedures. Moreover, the state trial
judge acted precipitately and ignored an obvious and completely ade-
quate alternative offered to remedy any error arising from the jury's
consideration of the photographs.

In reaching this conclusion, we consider it important to emphasize
what we do not hold. We are not called upon to second guess a discre-
tionary ruling on the admissibility of evidence by a state trial judge
in a criminal proceeding or a finding that the jury was potentially
biased or prejudiced. The state trial judge plainly refused to rule on
the admissibility of the Set 1 photographs and made no finding that
the impartiality of the jury had been, or may have been, affected by
viewing the photographs in dispute. Nor are we faced with a situation
in which the admissibility of evidence or the possibility of juror bias
is subject to some doubt. Indeed, the State has repeatedly conceded
that the Set 1 photographs were admissible and without question
properly would have been admitted into evidence during the first trial
if they had simply been moved into evidence when Officer Counts
_________________________________________________________________
given that the Petitioners' motion that precipitated the order was based
on the Double Jeopardy Clause. But, this discussion cannot reasonably
impute that concern back to the time the state trial judge acted. And, in
fact, the order does not purport to say that the state trial judge actually
considered the double jeopardy implications of its actions before grant-
ing the mistrial.

35
was on the stand; and, the testimony of Officer Counts foreclosed any
possibility of juror confusion. As a result, we do not confront a situa-
tion in which a state trial judge has exercised his discretion to choose
a mistrial in lieu of some other measure designed to remedy juror bias
or prejudice.

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 providing any level of judicial review of such decisions. For
better or worse, however, the Double Jeopardy Clause has been con-
strued by the Supreme Court to permit the retrial of a defendant after
a mistrial is granted over his objection only when manifest necessity
or the ends of public justice compelled that the mistrial be granted,
and the Supreme Court has directed reviewing courts to examine the
ruling of the trial judge to determine whether sound discretion was
exercised in granting the mistrial. Were we to hold otherwise, the pro-
tection afforded by the Double Jeopardy Clause would no longer safe-
guard a defendant's right to have a trial completed by an empaneled
jury--a right long held to be encompassed within the protections
afforded by the Clause--but would provide protection only against
demonstrable prosecutorial or judicial misconduct. Further, the
review for sound discretion reaffirmed in Arizona v. Washington
would be relegated to a ministerial rubber stamp of a state trial
judge's decision to grant a mistrial irrespective of the irrationality of
that decision. While we abhor the result--because, as in all cases in
which the Double Jeopardy Clause bars reprosecution, the defendants
will not be held to account for their alleged crimes--our application
of the law as we understand it compels us to affirm the judgment of
the district court.

36
III. Younger Abstention

Although the State did not initially raise this issue,26 it now asserts
that the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971),
barred the district court from granting federal habeas corpus relief. It
maintains that having concluded that there was no bad faith on the
part of the prosecution in proceeding with the trial, the court should
have declined further review.

In Younger, the Supreme Court plainly declared that federal court
equitable interference with state criminal proceedings should not be
undertaken except in the most narrow and extraordinary of circum-
stances. Basic tenets of equity jurisprudence dictate that a court "`of
equity should not act, and particularly should not act to restrain a
criminal prosecution, when the moving party has an adequate remedy
at law and will not suffer irreparable injury if denied equitable
relief.'" Kugler v. Helfant, 421 U.S. 117, 123 (1975) (quoting
Younger, 401 U.S. at 43-44). And, concerns of comity and federalism
justify additional caution when a federal court is petitioned to inter-
vene in a pending state criminal action. Id. Consequently, federal
courts may intervene in state criminal proceedings, either by way of
declaratory relief or by injunction, only when there has been a "show-
ing of bad faith, harassment, or any other unusual circumstance that
would call for equitable relief." Younger , 401 U.S. at 54 (emphasis
added); Kugler, 421 U.S. at 123 ("[I]n the absence of exceptional cir-
cumstances creating a threat of irreparable injury both great and
immediate, a federal court must not intervene by way of either injunc-
tion or declaratory judgment in a pending state criminal prosecu-
tion.") (internal quotation marks omitted).
_________________________________________________________________
26 Because the State did not rely upon the Younger abstention doctrine
in opposing Petitioners' request for a temporary stay of the state criminal
proceedings pending resolution of the merits of the§ 2254 petition, we
might be justified in refusing to consider this argument. See Swisher v.
Brady, 438 U.S. 204, 213 n.11 (1978) ("If the State voluntarily chooses
to submit to a federal forum, principles of comity do not demand that the
federal court force the case back into the State's own system.") (internal
quotation marks omitted). Nevertheless, because the State advances the
abstention argument now, and because the issue is one of considerable
importance, we will address it.

37
It is undisputed that the state proceeding against Petitioners was not
undertaken in bad faith or for purposes of harassment. Moreover,
there is no suggestion that the prosecutors who sought the mistrial on
behalf of the State during the first trial or the judge who granted it
were acting in bad faith in doing so. Nevertheless, a federal court may
provide equitable intervention in a state criminal proceeding "`even
in the absence of the usual prerequisites of bad faith and harassment'"
when "`extraordinary circumstances in which the necessary irrepara-
ble injury can be shown'" are present. Kugler , 421 U.S. at 124 (quot-
ing Younger, 401 U.S. at 53).

The State argues that Petitioners have not shown extraordinary cir-
cumstances for federal court intervention in the state criminal pro-
ceedings because they have failed to show that they will suffer
irreparable injury if they are forced to undergo the trial of their crimi-
nal charges and raise their double jeopardy claim on direct appeal if
they are convicted. The State stresses that "the cost, anxiety, and
inconvenience of having to defend against a single criminal prosecu-
tion alone [does] not constitute `irreparable injury.'" Id. (quoting
Younger, 401 U.S. at 46).

The State is correct that ordinarily irreparable harm cannot be
shown simply because a defendant will be subject to a single criminal
prosecution in which he must raise any constitutional claims he
wishes as a defense to his conviction. "The policy of equitable
restraint expressed in Younger v. Harris . .. is founded on the premise
that ordinarily a pending state prosecution provides the accused a fair
and sufficient opportunity for vindication of federal constitutional
rights." Id. However, because the Double Jeopardy Clause of the Fifth
Amendment protects not only against multiple convictions but also
"against being twice put to trial for the same offense," Abney v.
United States, 431 U.S. 651, 660-62 (1977), a portion of the constitu-
tional protection it affords would be irreparably lost if Petitioners
were forced to endure the second trial before seeking to vindicate
their constitutional rights at the federal level, 27 see Justices of Boston
Mun. Court v. Lydon, 466 U.S. 294, 303 (1984); Abney, 431 U.S. at
_________________________________________________________________
27 Obviously, Petitioners already had been required to defend them-
selves in one criminal proceeding, and it was their second criminal trial
from which they sought federal habeas relief.

38
662. Thus, the irreparable deprivation of this Fifth Amendment Dou-
ble Jeopardy right is an extraordinary circumstance warranting federal
court equitable intervention in Petitioners' state criminal proceeding.

Our conclusion is in accord with the decisions of the other courts
of appeals that have addressed this question. They have unanimously
recognized that a colorable claim that a second trial will violate a
defendant's double jeopardy right is a preeminent example of one of
the very few extraordinary circumstances justifying federal court
intervention in a pending state criminal proceeding. See Satter v.
Leapley, 977 F.2d 1259, 1261 (8th Cir. 1992); Mannes v. Gillespie,
967 F.2d 1310, 1312 (9th Cir. 1992), cert. denied, 113 S. Ct. 964
(1993); Showery v. Samaniego, 814 F.2d 200, 201 n.5 (5th Cir. 1987);
Doe v. Donovan, 747 F.2d 42, 44 (1st Cir. 1984) (per curiam); United
States ex rel. Stevens v. Circuit Court of Milwaukee Co., Wis. Branch
VIII, 675 F.2d 946, 947-48 (7th Cir. 1982); Gully v. Kunzman, 592
F.2d 283, 286-87 (6th Cir.), cert. denied, 442 U.S. 924 (1979);
Drayton v. Hayes, 589 F.2d 117, 120-21 (2d Cir. 1979); United States
ex rel. Webb v. Court of Common Pleas of Philadelphia County, 516
F.2d 1034, 1037-39 (3d Cir. 1975).

Moreover, this conclusion is buttressed by the fact that the
Supreme Court has never refused on the basis of the Younger absten-
tion doctrine to decide the merits of a double jeopardy claim raised
in a § 2254 petition. Instead, the Supreme Court has on several occa-
sions addressed whether a forthcoming second state criminal trial was
barred on double jeopardy grounds. See Lydon, 466 U.S. at 304-13;
Arizona v. Washington, 434 U.S. at 503-17. In Lydon, the Supreme
Court specifically ruled that a state habeas corpus petitioner had satis-
fied the § 2254 custody and exhaustion requirements to permit federal
habeas review of his double jeopardy claim prior to his retrial on state
criminal charges. Discussing the exhaustion requirement, and without
referring to Younger, the Court wrote that because the Double Jeop-
ardy Clause "protects interests wholly unrelated to the propriety of
any subsequent conviction, a requirement that a defendant run the
entire gamut of state procedures, including retrial, prior to consider-
ation of his claim in federal court, would require him to sacrifice one
of [its] protections." Lydon, 466 U.S. at 303 (internal quotation marks
& citation omitted). See generally Winston v. Moore, 452 U.S. 944
(1981) (Rehnquist, J., dissenting) (without indicating that Younger

39
abstention principles applied, opining that Court should have granted
certiorari to address the merits of the double jeopardy claim);
Willhauck v. Flanagan, 448 U.S. 1323, 1325 (Brennan, Circuit Justice
1980) (noting that double jeopardy claims may present an exception
to Younger abstention); Mincey v. Arizona, 434 U.S. 1343, 1344
(Rehnquist, Circuit Justice 1977) (distinguishing claim that second
state trial should be stayed based on alleged error in introduction of
evidence from a claim that the second trial would violate double jeop-
ardy and stating that the former should be raised through the normal
state appellate channels).

Equitable federal court interference with ongoing state criminal
proceedings should be undertaken in only the most limited, narrow,
and circumscribed situations. However, when the record demonstrates
that a second state criminal trial will constitute a violation of the
defendant's double jeopardy rights, federal court intervention is
appropriate.

IV. CONCLUSION

Our decision that the Double Jeopardy Clause bars a retrial of Peti-
tioners is an enormously difficult one. Frequently, when this court
concludes either on direct appeal or on habeas corpus review that a
trial judge has committed an error during a criminal trial, we are able
to determine that the error was a harmless one and does not require
that the conviction be set aside. And, even when this court concludes
that a ruling by a trial judge in a criminal prosecution was erroneous
and prejudicial, in the vast majority of cases the defendant may be
retried. The unique constitutional protection afforded by the Double
Jeopardy Clause, however, dictates that when a trial court abuses the
ample discretion afforded to it in granting a mistrial in a criminal case
over a defendant's objection, the defendant may not be retried. As a
result of the error committed by the state trial judge in Petitioners'
first trial, the State of South Carolina may not retry them.

It is our duty to apply the law to uphold the convictions of those
who are unable to demonstrate harmful error and to order appropriate
relief for those who do. And, just as surely, it is our duty to apply to
the best of our understanding the interpretation given to the Constitu-

40
tion by the Supreme Court even when that application prevents the
retrial of criminal defendants.

Chief Judge Ervin, Judge Hall, Judge Murnaghan, Judge Hamilton,
Judge Williams, Judge Michael, and Judge Motz join in this opinion.

AFFIRMED

41
Volume 2 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DARRELL WAYLAND GILLIAM, JR.;
PAMELA OWINGS; JAMES MATTHEW
SWAIN,
Petitioners-Appellees,

v.

JAMES LEE FOSTER, Sheriff of No. 95-2434
Newberry County; CHARLES M.
CONDON, Attorney General for the
State of South Carolina; JAMES W.
JOHNSON, JR., Circuit Court Judge of
South Carolina,
Respondents-Appellants.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-95-1742-17AJ, CA-95-1743-17AJ, CA-95-1744-17AJ)

Argued: September 26, 1995

Decided: January 29, 1996

Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL,
MURNAGHAN, WILKINSON, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges.
Affirmed by published opinion. Judge Wilkins wrote the majority
opinion in which Chief Judge Ervin and Judges Hall, Murnaghan,
Hamilton, Williams, Michael, and Motz joined; Judge Wilkinson
wrote a dissenting opinion in which Judges Russell, Widener, Nie-
meyer, and Luttig joined; Judge Niemeyer wrote a dissenting opinion
in which Judge Widener joined; and Judge Luttig wrote a dissenting
opinion in which Judges Russell, Widener, Wilkinson, and Niemeyer
joined.

_________________________________________________________________

COUNSEL

ARGUED: Donald John Zelenka, Assistant Deputy Attorney Gen-
eral, Columbia, South Carolina, for Appellants. Joy Scherffius Good-
win, LEVY & GOODWIN, Columbia, South Carolina, for Appellees.
ON BRIEF: J. Christopher Mills, FAIREY, PARISE & MILLS,
Columbia, South Carolina, for Appellee Gilliam; Samuel M. Price,
Jr., Newberry, South Carolina, for Appellee Owings.

_________________________________________________________________

OPINION

WILKINSON, Circuit Judge, dissenting:

I respectfully dissent. When a mistrial is declared through no fault
of the prosecution and indeed as the direct result of defense error, a
federal court may not enjoin a subsequent state criminal trial while it
is ongoing. The majority disregards this fundamental axiom, leaving
two mainstays of our federal system, Younger v. Harris, 401 U.S. 37
(1971), and Arizona v. Washington, 434 U.S. 497 (1978), in a badly
damaged state.

I.

I will first take up the damage to the Younger decision. That dam-
age falls into two broad categories: (1) doctrinal damage to Younger;
and (2) the practical damage of disruption visited upon the relation-
ship of state and federal courts. The damage is compounded by the

44
fact that the pronouncements in this case are those of an en banc
court.

The doctrinal damage to Younger stems from the majority's insis-
tence on a duty on the part of federal courts to intervene in ongoing
state criminal proceedings even when defense error causes the decla-
ration of an earlier mistrial. The majority adopts a single standard for
federal judicial intervention into ongoing state trials -- one which
ignores the source of the earlier error in state court. In so doing, the
majority also ignores two critical findings that the district court made
in this very case: first, that "[t]here is nothing in the record to indicate
that the prosecutors acted with bad faith or improper motive in mov-
ing for a mistrial," and, second, that the trial judge found "that it was
defense counsel who erroneously placed Photo Set 1 on the jury rail,"
thus precipitating the mistrial.

Intervention under these circumstances turns Younger on its head.
Younger envisioned the federal courts as a last line of defense against
gross abuses of prosecutorial power. See Younger, 401 U.S. at 47-53.
It never envisioned episodic federal interventions into ongoing state
proceedings whenever a federal habeas court thinks that the earlier
grant of a mistrial by a state trial judge was simply a mistake. See id.
at 43-47. The language of Younger makes plain that the evil sought
to be remedied by federal equitable intervention was that of prosecu-
torial malfeasance or bad faith. Id. at 53. The Court declared that the
"fundamental policy against federal interference with state criminal
prosecutions," id. at 46, could only be abandoned in the face of "bad
faith, harassment, or any other unusual circumstances that would call
for equitable relief." Id. at 54. As the Court elaborated in a companion
case: "Only in cases of proven harassment or prosecutions undertaken
by state officials in bad faith without hope of obtaining a valid con-
viction and perhaps in other extraordinary circumstances where irrep-
arable injury can be shown is federal injunctive relief against pending
state prosecutions appropriate." Perez v. Ledesma, 401 U.S. 82, 85
(1971). Over thirty years of litigation since Younger testify to the
strength of its presumption against federal interference; in no case has
the Supreme Court found the bad faith exception to apply. 17A
Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure, § 4255 at 254 (1988).

45
The majority asserts that double jeopardy claims are an "extraordi-
nary circumstance" warranting a departure from Younger. Younger,
401 U.S. at 54; Perez, 401 U.S. at 85. Such claims are extraordinary,
the majority contends, because forcing a defendant to endure a second
trial that violates the Double Jeopardy Clause constitutes irreparable
injury. This effort ignores the warning of the Supreme Court that the
exceptions to Younger are narrow. Huffman v. Pursue, Ltd., 420 U.S.
592, 611 (1975). None of the decisions invoked by the majority to
support its proposition are applicable here. None of those courts
enjoined, or even contemplated enjoining, an ongoing state criminal
trial, let alone on the basis that an earlier mistrial provoked by defense
error was not supported by "manifest necessity." In fact, though they
considered the claims presented by state petitioners, most of those
courts did not grant relief on the merits. Satter v. Leapley, 977 F.2d
1259, 1260 (8th Cir. 1992); Showery v. Samaniego, 814 F.2d 200, 201
(5th Cir. 1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir. 1984);
United States ex rel. Stevens v. Circuit Court of Milwaukee, Wis.
Branch VIII, 675 F.2d 946, 949 (7th Cir. 1982); Gully v. Kunzman,
592 F.2d 283, 289-90 (6th Cir.), cert. denied, 442 U.S. 924 (1979);
Drayton v. Hayes, 589 F.2d 117, 118 (2d Cir. 1979). Pre-trial relief
was granted in only a few cases. In one, Younger was not implicated
because the petitioner had not requested an injunction against an
ongoing criminal proceeding. United States ex rel. Webb v. Court of
Common Pleas of Philadelphia County, 516 F.2d 1034, 1039 n.18 (3d
Cir. 1975). In the others, the petitioner had been acquitted previously,
the most compelling double jeopardy claim a defendant can advance.
Mannes v. Gillespie, 967 F.2d 1310, 1316 (9th Cir. 1992), cert.
denied, 113 S.Ct. 964 (1993) (judicial acquittal bars retrial); Davis v.
Herring, 800 F.2d 513, 519 (5th Cir. 1986) (implicit jury acquittal
bars retrial).1
_________________________________________________________________

1 The majority's attempt to invoke Supreme Court decisions to suggest
that a double jeopardy claim like the one presented here is an exception
to the dictates of Younger is unsuccessful. In no case cited by the major-
ity did the Court enjoin an ongoing state criminal trial based on an
improper declaration of a mistrial that resulted from a defense error.
Abney v. United States, 431 U.S. 651 (1977), was a direct appeal, where
Younger's admonitions about federalism and comity are not relevant. In
Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), the
Court considered a double jeopardy claim unlike the one presented here,
and did not grant the requested pre-trial relief.

46
The majority creates a broad exception to Younger abstention
whenever a petitioner on federal habeas raises a claim of double jeop-
ardy. Assuming arguendo that double jeopardy claims do warrant a
departure from the doctrine of Younger abstention, they should never
occasion such a departure when, like here, there is not the slightest
accusation of misconduct by the state. See Gilliam v. Foster, 61 F.3d
1070, 1089-90 (4th Cir. 1995) (Luttig, J., dissenting). I cannot accept
the majority's view that pre-trial habeas review is available irrespec-
tive of the nature of the double jeopardy claim. See Stevens, 675 F.2d
at 948-49 (availability of pre-trial consideration of habeas depends on
nature of double jeopardy claim). The principal evil to be avoided in
the double jeopardy context is that the state may receive a second shot
at a defendant as a result of its own failings or misconduct. For exam-
ple, in Downum v. United States, 372 U.S. 734 (1963), the Supreme
Court prohibited retrial when a mistrial was declared due to a prose-
cutor's inability to locate a critical witness of whose absence the pros-
ecution was aware when it proceeded to trial. Id. at 735-38. In United
States v. Shafer, 987 F.2d 1054 (4th Cir. 1993), this court prohibited
retrial when a mistrial was declared due to the prosecution's failure
to turn over discovery materials to the defense. Id. at 1056-59. The
errors in Downum and Shafer suggested that the mistrial would allow
the prosecution to "buttress weaknesses in [its] evidence," Arizona,
434 U.S. at 507, only to be used to its advantage in a second prosecu-
tion.

This danger of prosecutorial overreaching is totally absent here.
There is no suggestion that this prosecution was anything other than
legitimate. "There is nothing in the record," as the district court found,
"to indicate that the prosecutors acted with bad faith or improper
motive in moving for a mistrial." There is no indication that the prose-
cution sought the mistrial to recover from a false start in its case. To
the contrary, the state judge declared the mistrial because he was
obviously disturbed that the jury was exposed to close-up photo-
graphs of the crime scene that were never properly admitted into evi-
dence. The majority, however, disregards both the source and the
nature of the error occasioning the mistrial. In so doing, it fashions
an exception to Younger so broad that federal court intrusion into
state criminal trials will become an ordinary, rather than an extraordi-
nary, event. See Hicks v. Miranda, 422 U.S. 332, 352 (1975).

47
To protest generally the dangers of federal intervention into pend-
ing state proceedings fails to adequately convey the specific harm vis-
ited by this court. Its intervention came at the worst possible moment
in the state criminal proceedings -- when a trial was well underway.
On July 15th, just two days before the start of the state trial, a panel
of this court heard argument and affirmed the district court's initial
ruling denying petitioners' request for injunctive relief. Then, on the
fourth day of the state trial, July 20th, the en banc court reversed the
panel's decision and halted the state trial in its tracks. Younger itself
prohibits intervention in any pending state criminal proceeding. But
here a criminal prosecution was far more than pending; it had pro-
ceeded to trial, and almost as if the judge, jury, witnesses, and parties
were participants in some illicit gathering, the federal court ordered
them dispersed.

The majority has, in short, cut Younger at its core. It sanctions dis-
ruption of an ongoing state criminal trial when there is no allegation
whatsoever of misconduct by the state. It disregards the principles of
comity and federalism that underpin the Younger decision; Younger
is, after all, designed to "permit state courts to try state cases free
from interference by federal courts." Younger, 401 U.S. at 43 (empha-
sis added). The intervention countenanced here shows scant respect
for the capacity of state courts to safeguard constitutional rights,
Trainor v. Hernandez, 431 U.S. 434, 443 (1977), and thus creates
unwarranted friction between state and federal courts at a time when
state courts are, if anything, more responsible guardians of constitu-
tional guarantees than at the time of Younger itself.

But to speak generally of the harm to comity and federalism is
again to muffle the point. The damage is best calculated by canvass-
ing what happened in this very case. This circuit's intervention forced
the state to divert resources away from its ongoing prosecution to
lengthy collateral proceedings and litigation of this habeas claim
drove the state trial judge to recuse himself. Attorneys argued repeat-
edly, and often simultaneously, before state and federal courts about
the admissibility, relevance and prejudicial effect of crime scene pho-
tographs exposed to the jury in a state criminal trial. State criminal
processes and federal habeas consideration -- erratic as it was -- pro-
ceeded on parallel tracks. The district court denied, and then after
prodding from the en banc court, granted the writ of habeas corpus.

48
Gilliam, 63 F.3d 287 (4th Cir. 1995); Gilliam, 61 F.3d 1070. The en
banc court issued an emergency stay of an ongoing state criminal trial
without hearing argument and without sufficient opportunity to view
the disputed photographs. A state jury was sent home and a trial was
placed in limbo as a result of the federal intervention. Now, finally,
the majority finds a double jeopardy violation and forever bars a mur-
der prosecution of state defendants based on its own view that the
state trial judge's response to an admitted evidentiary error at trial
was improper.

Incapacitating state criminal processes in this way is precisely what
Younger sought to avoid. Any disruption of state criminal proceedings
undermines a state's ability to enforce its own criminal laws and thus
fails to show a "proper respect for state functions." Younger, 401 at
44. And federal disruption is most debilitating when an ongoing trial
is cut short; such a mid-course suspension destroys the very purpose
of a trial, to require the state and defense to marshall their evidence
before a jury in the course of one continuous proceeding.

The majority now attempts a belated exercise in damage control,
suggesting that these sorts of disruptions will not happen very often.
The events giving rise to the majority's decision, however, are not out
of the ordinary. Mistrials occur in state courts with some regularity
and for a variety of reasons. The majority's action invites the prema-
ture relitigation of all these decisions in federal court. Its opinion con-
tains no limiting principle other than the general and subjective one
of manifest necessity. That standard, however, was not developed
with the disruption of ongoing trials in mind. It was never envisioned
as a routine exception to the bar on federal equitable intervention in
pending state proceedings. Moreover, even when the state ultimately
wins, the state loses. It has been forced to suspend its own criminal
proceedings while the litigants climb up and down the ladder of the
federal system contesting the manifest necessity standard. This court
has ignored the wisdom of the Younger doctrine. It will surely regret
the immeasurable damage it has done to this constitutional canon of
our federal system.

II.

I will next address the damage to Arizona v. Washington, 434 U.S.
497 (1978).

49
Arizona reaffirmed that the Double Jeopardy Clause is not an abso-
lute bar to reprosecution when a first trial ends in mistrial over the
objection of the defendant. Id. at 505; see also Illinois v. Somerville,
410 U.S. 458, 463-64 (1973); Gori v. United States, 367 U.S. 364,
367-68 (1961); United States v. Perez, 9 Wheat. 579, 580 (1824).
Arizona emphasizes on at least five separate occasions that a trial
court's judgment on the manifest necessity for a mistrial is entitled to
"the highest degree of respect." 434 U.S. at 511, 510-14; see also
Somerville, 410 U.S. at 462; Gori, 367 U.S. at 368; Wade v. Hunter,
336 U.S. 684, 691-92 (1949). The Arizona Court examined the broad
spectrum of reasons that give rise to mistrials, noting that some war-
ranted more scrutiny than others. As in Younger, the principal concern
of the Arizona Court was with prosecutorial overreaching or bad faith.
On the one hand, "the strictest scrutiny" is to be applied "when the
basis for the mistrial is the unavailability of critical prosecution evi-
dence, or when there is reason to believe that the prosecutor is using
the superior resources of the State to harass or to achieve a tactical
advantage over the accused." 434 U.S. at 508 (footnotes omitted). On
the other hand, in a case like Arizona, where the defense attorney
"aired improper and highly prejudicial evidence before the jury," id.
at 515, "the trial judge's determination is entitled to special respect."
Id. at 510. The Court explained in detail why this deference was nec-
essary: "There are compelling institutional considerations militating
in favor of appellate deference to the trial judge's evaluation of the
significance of possible juror bias. He has seen and heard the jurors
during their voir dire examination. He is the judge most familiar with
the evidence and the background of the case on trial. He has listened
to the tone of the argument as it was delivered and has observed the
apparent reaction of the jurors." Id. at 513-14 (footnote omitted). It
concluded: "In short, he is far more `conversant with the factors rele-
vant to the determination' than any reviewing court can possibly be."
Id. at 514 (quoting Wade, 336 U.S. at 689).

The Arizona lesson is completely lost on the court majority. The
majority not only fails to accord deference to the state trial court's
decision. It affirmatively takes its seat on the state trial bench. The
majority makes a series of evidentiary decisions that are quintessen-
tially within the discretion of a state trial judge. First it finds that the
disputed photographs were relevant, largely cumulative, and admissi-
ble. Then it weighs the effect of the photographs on the jury and

50
deems any resulting prejudice insufficient to support a mistrial. Next
it sifts through the admitted and unadmitted photo sets, dismissing the
possibility that the jury could have been confused or misled by the
close-up photographs, even though the jury viewed them without the
benefit of explanatory testimony and even though the unadmitted
photographs appear to depict blood spots that were not evident on the
properly admitted photographs.2

The majority's review of every item of evidence is exacting and
meticulous. It describes twelve photographs, five that were admitted
and the seven that were not, in great detail. For instance, the majori-
ty's abbreviated description of four of the five admitted photographs
is as follows: They were "taken from near Highway 32, the public
roadway in front of the Silvers' mobile home, from the left-hand side
of the mobile home . . . [A]ll of them show the same three pieces of
yellow tape in the foreground -- the closest two pieces are circular
in shape, one to the left and one to the right, and one strand of yellow
tape is behind the two circular pieces and a few feet closer to the
mobile home." The majority applies the same degree of scrutiny to
the unadmitted pictures: "four of [the photographs in Set 1], Exhibits
10, 17, 18 and 19, are close-ups of the three pieces of yellow tape:
Exhibit 10 shows a close-up of the circular piece of tape on the left
of the photographs in Set 2; Exhibit 17 is a close-up of the two circu-
lar pieces of tape shown in the photographs in Set 2; Exhibit 18 is a
close-up of the strand of tape behind the two circles of yellow tape
in the photographs in Set 2; and Exhibit 19 is a photograph of the cir-
cle of tape on the right in the photographs in Set 2. These photographs
show red spots within or near the areas marked with the yellow tape
more clearly than the photographs in Set 2." In addition, the majority
_________________________________________________________________

2 Officer Counts, the majority maintains, provided sufficient authenti-
cation and explanation of the photographs for the jury. The majority's
hindsight judgment, however, conflicts directly with the judge's determi-
nation at trial, namely, that the photographs were "not in evidence, had
not been testified to, [and] had not been identified." While Counts
referred to the photographs to refresh his memory, there is no indication
that the jury ever knew which photographs he relied upon to do so.
Counts' testimony and diagram did provide a general overview of the
crime scene, but this did not explain the significance of and exact loca-
tion depicted in the disputed close-up photographs.

51
dissects -- quoting at length and assessing its meaning -- the testi-
mony of Officer Counts, the witness who used the unadmitted photo-
graphs to refresh his memory about the crime scene, which he then
described for the jury. The state trial, in sum, is rerun in excruciating
detail.

This conscientious review of the evidence in all its detail is the
majority opinion's strength. Ironically, the very elaborateness of its
review reveals a far more fundamental weakness -- namely, the com-
plete transposition of appropriate judicial roles and functions. See
Gilliam, 61 F.3d at 1089 (Luttig, J., dissenting). That a federal habeas
court would be reweighing the minutiae of state evidence in this en
banc proceeding, devoting months of hindsight to a judgment a state
trial court was required to make on the spot, is nothing short of aston-
ishing.

And the lack of deference does not end with the trial court's view
of the matter of evidence. The majority finds further fault with the
trial judge's explanation of his mistrial decision and his consideration
of alternatives to mistrial. Among its complaints, the majority notes
that the trial judge failed to grant defense counsel's request to ask fur-
ther questions of the jurors, refused to determine if the photographs
had been authenticated, refused to rule on the admissibility of the
photographs, failed to exhibit proper sensitivity for double jeopardy
concerns, and "ignored an obvious and adequate alternative to the
grant of a mistrial."

This exacting review of the state court's decision totally eviscerates
Arizona. The majority applies strict scrutiny to a decision which
Arizona emphasizes is "entitled to great deference." 434 U.S. at 514;
see also Gilliam, 61 F.3d at 1084-86 (Niemeyer, J., dissenting). The
trial judge -- who observed the jury, the litigants, and the witnesses
face-to-face -- was in a far better position than this court to assess
the effects of the jury's exposure to unadmitted close-up crime scene
photographs. Arizona, 434 U.S. at 510-16; United States v. Treas-
Wilson, 3 F.3d 1406, 1410 (10th Cir. 1993), cert. denied, 114 S.Ct.
739 (1994) (evidentiary rulings regarding crime scene photographs
rarely disturbed on appeal). The majority's demand that the trial judge
engage in extended debate with defense counsel and articulate reasons
for rejecting alternatives to a mistrial is flatly contrary to the teach-

52
ings of Arizona. There, the Supreme Court found that manifest neces-
sity existed even though the mistrial was not "necessary" in a strict
sense, the trial judge did not make any finding of manifest necessity,
and other trial judges would not have declared a mistrial given the
same factual circumstances. 434 U.S. at 511, 516-17; see also Abdi
v. State of Georgia, 744 F.2d 1500, 1504 (11th Cir. 1984), cert.
denied, 471 U.S. 1006 (1985); Cherry v. Director, State Board of
Corrections, 635 F.2d 414, 418-19 (5th Cir.), cert. denied, 454 U.S.
840 (1981).

Although the majority second-guesses the state trial judge no less
than one dozen times, his mistrial declaration was fully justified. On
the day the trial judge was faced with what he viewed to be a serious
breach of the evidentiary admissions process, he knew that the jury,
"because of the actions of defense counsel," had examined close-up
crime scene photographs that were never offered or admitted into evi-
dence. (Denial of Motion to Dismiss Indictment). The judge also
knew that some of the unadmitted pictures showed tire tracks and oth-
ers showed possible blood spots that were not easily discernable in
the admitted photographs. Because many of the unadmitted pictures
were close-ups, moreover, it was difficult to determine the location of
scenes depicted in the photographs. These photographs were shown
to the jury in the early stages of a trial in which the location of the
parties and the injuries they sustained promised to be sources of con-
troversy -- the defendants evidently intended to raise the defenses of
provocation or self-defense.3

The majority mistakes the trial judge's firm handling of this matter
for precipitate action. The trial judge was obviously concerned that
_________________________________________________________________

3 It is not fair to claim that the unadmitted photographs were merely
cumulative of other evidence or otherwise of little significance. In the
second trial the defense vigorously fought to have these photographs
admitted. Defense counsel also "all but conceded" in argument before a
panel of this court that the photographs were prejudicial to the prosecu-
tion because they supported the defense's theories of self-defense or
provocation. Gilliam, 61 F.3d at 1087 (Luttig, J., dissenting). And in en
banc argument before this court, defense counsel also acknowledged that
the photographs, because they corroborated the defense's theory of the
case, were prejudicial to the prosecution.

53
the jury's exposure to unadmitted photographs of the murder scene
constituted a threat to the integrity of the trial proceedings. See
Gilliam, 61 F.3d at 1085 (Niemeyer, J., dissenting). Forced to resolve
what he termed a "dilemma," the judge invited argument from the liti-
gants because, as he said, he "want[ed] to hear everybody fully on this
issue before I make a decision." Although the defendants claim that
the trial judge failed to consider their arguments, the record reflects
otherwise. Defense counsel contested whether the jurors actually saw
the photographs and suggested that they were properly identified. The
judge considered these assertions but, after he consulted his own "de-
tailed notes" and heard the jury foreman twice confirm that the jurors
had viewed the photographs, he disagreed with the defense.4 It is true
that the judge prevented defense counsel from interrupting the judge's
colloquy with the jury foreman, but this action was hardly unreason-
able. Finally, once the judge knew that the jury had reviewed the
unadmitted photographs, it was within his discretion to conclude that
the available remedies could not retrospectively correct the problem;
recalling a witness or issuing a curative instruction always runs a risk,
as the judge noted, of compounding the difficulty by calling special
attention to the earlier error or distorting the significance of particular
items of evidence.

The trial judge was also rightly concerned that defense counsel was
responsible for the jury's exposure to these photographs. Although
there is no "mechanical formula by which to judge the propriety of
declaring a mistrial," Somerville, 410 U.S. at 462, many courts have
recognized that a variety of defense errors that provoke a mistrial
should not bar a retrial even though the defendant objects to the mis-
trial. United States v. Simonetti, 998 F.2d 39, 42 (1st Cir. 1993)
(defense attorney's conflict of interest in representing defendant cre-
ated manifest necessity for mistrial); Thomas v. Municipal Court of
Antelope Valley J.D., 878 F.2d 285, 290 (9th Cir. 1989) (defendant's
failure to waive conflict of interest created manifest necessity for mis-
trial); United States v. Shaw, 829 F.2d 714, 719-20 (9th Cir. 1987),
_________________________________________________________________

4 The judge asked the jury foreman: "To your knowledge, had all of
those photographs been circulated through the jury?" The foreman
replied, "Yes, sir. To my knowledge they all had." The judge then asked
again whether the jurors had looked at all the photographs, and the fore-
man replied, "Yes, sir. As far as I know."

54
cert. denied, 485 U.S. 1022 (1988) (defense counsel's opening
remarks that potentially provoked juror bias created manifest neces-
sity for mistrial); Abdi, 744 F.2d at 1502-04 (defense counsel's
improper cross-examination of prosecution witness created manifest
necessity for mistrial); United States v. Willis, 647 F.2d 54, 59 (9th
Cir. 1981) (defendant's failure to appear for trial created manifest
necessity for mistrial). The reason for treating defense error that pro-
vokes a mistrial in this manner is clear. In such situations, a trial
judge may understandably be concerned that the defense is seeking
either to gain the benefit of the error, or to provoke the declaration
of a mistrial in the hope of barring reprosecution. See Arizona, 434
U.S. at 512-13.5

Again: the trial judge was faced with nothing less than a threat to
the integrity of trial proceedings. As he said: "The twelve jurors had
seen and touched physical evidence not properly admitted." The
judge's mistrial declaration responded to this breach of the evidenti-
ary admissions process -- a process that ensures a proper foundation
for the introduction of evidence and provides notice to all trial partici-
pants and appellate courts of what is appropriately before the ultimate
trier of fact. And it was defense counsel that compromised the eviden-
tiary process. The judge here sought to do no more than gain control
of his courtroom; a trial judge should not be placed in the position of
having to make a formal finding of attorney bad faith or initiate sanc-
tions or contempt proceedings in order to have his decisions sus-
tained. It was enough for the court not to countenance a trial where
important evidence inexplicably made its way before the jury. It was
sufficient to say what the trial judge said here: it"would be unfair,
unjust and improper" to "reward defendants by granting their Motion
to Dismiss" the second prosecution.
_________________________________________________________________

5 This is not to suggest, categorically, that prosecutorial overreaching
that leads to a mistrial is the only time retrial will be barred. United
States v. Jorn, 400 U.S. 470, 485-86 (1971). But a reviewing court owes
particular deference to a trial court's judgment on the necessity of a mis-
trial caused by defense error. Jorn does not suggest otherwise. There,
defense counsel did not commit the error that led to the judge's sua
sponte declaration of a mistrial, id.; rather, the decision "dealt with action
by a trial judge that can fairly be described as erratic." Somerville, 410
U.S. at 469.

55
It is no wonder that under these circumstances Chief Justice Rehn-
quist, considering the state's stay application as Circuit Justice, deliv-
ered what can only be described as a shot across our bow: "the trial
court's judgment about the necessity [for a mistrial] is entitled to
great deference, never more so than when the judgment is based on
an evaluation of such factors as the admissibility of evidence, any
prejudice caused by the introduction of such evidence, and the court's
familiarity with the jurors." Foster v. Gilliam, 116 S.Ct. 1, 2 (1995)
(Rehnquist, Circuit Justice) (citing Arizona, 434 U.S. at 513-14). With
respect, I suggest that the majority has failed to heed what was plainly
stated in the Arizona decision and plainly reinforced in the prior stay
proceedings in this case.

This decision will reverberate far beyond the circumstances of this
single case. The ability of state judges to declare mistrials in response
to trial errors will be undermined. The strict scrutiny applied to the
trial judge's decision here signals that habeas courts may appropriate
for themselves the discretionary judgments normally reserved to state
trial courts. The predictable result is that state judges will be forced
to tolerate errors in their own proceedings, particularly those caused
by the defense. Arizona itself warned against the dangers of such a
development: "The interest in orderly, impartial procedure would be
impaired if [the trial judge] were deterred from exercising [the power
to declare mistrials] by a concern that any time a reviewing court dis-
agreed with his assessment of the trial situation a retrial would auto-
matically be barred." 434 U.S. at 513. The state trial bench may not
be willing to bear the costs now associated with the declaration of a
mistrial: interruption of state criminal proceedings to permit months
of collateral litigation on the propriety of the mistrial declaration; a
stay of state proceedings; injunction of a state criminal trial; and,
potentially, placing "the accused irrevocably beyond the reach of fur-
ther prosecution." United States v. Tateo, 377 U.S. 463, 466 (1964).
It bears repeating that there is a larger public interest in these proceed-
ings -- "the public's interest in fair trials designed to end in just judg-
ments," Wade, 336 U.S. at 689 -- one which is not served by windfall
dismissals of a murder prosecution due to defense counsel's own mis-
take.

III.

It is no coincidence that Justice Hugo Black was at once a great
advocate of incorporating the guarantees of the Bill of Rights against

56
the states and the author of the Younger v. Harris decision. There is
no contradiction in these dual positions. The state courts are obliged
to respect federal constitutional guarantees, but the federal courts are
equally obliged to respect state trial proceedings. For the reasons
expressed above, I believe the majority has impaired the balance so
essential to the proper functioning of our criminal justice system. It
was this balance that Justice Black referred to as Our Federalism.

I would remand this case to the district court with directions to dis-
miss the petition.

Judge Russell, Judge Widener, Judge Niemeyer, and Judge Luttig
join in this dissent.

NIEMEYER, Circuit Judge, dissenting:

I share Judge Wilkinson's and Judge Luttig's concern that the
majority today "cut Younger at its core," supra at 55, by intervening
in an ongoing criminal trial--where the state's interest in being free
from federal intervention is at its zenith, see infra at 80 n.3 (describ-
ing "debacle that has ensued since our initial intrusion into the affairs
of South Carolina"). As I expressed in my earlier dissent in this case,
the majority's decision is "a bold affront to the principles of comity
and federalism." Gilliam v. Foster, 61 F.3d 1070, 1084 (4th Cir.
1995) (en banc).

As important to my decision to dissent, however, is my belief that
the majority opinion, by mechanically applying judicial formulations,
has distorted the Double Jeopardy Clause's historically recognized
protections. I would hold that absent any indication of prosecutorial
misconduct or judicial overreaching on behalf of the prosecution, the
Double Jeopardy Clause permits the state one complete trial to con-
vict those it accuses of crime. While I agree with Judges Wilkinson
and Luttig that "manifest necessity" existed for the state trial judge's
decision to grant a mistrial, I do not agree with their suggestion that
prejudice, to any extent, is required for finding"manifest necessity."

I

In this case, the state trial judge aborted petitioners' murder trial on
its third day after discovering that the jury had, through defense coun-

57
sel's neglect, viewed several photographs that had been neither
offered nor admitted into evidence. The mistrial was in no way attri-
buted to any prosecutorial misconduct. Because he could not at the
time guess whether either party would offer the photographs into evi-
dence, the trial judge felt compelled to declare a mistrial to ensure a
"fair and proper" trial.

At the threshold of their retrial, however, petitioners moved to dis-
miss the charges against them on double jeopardy grounds. The state
trial judge denied petitioners' motion and the Supreme Court of South
Carolina dismissed their appeal as interlocutory. On petition for the
writ of habeas corpus, the federal district court refused to enjoin peti-
tioners' second trial. But after a divided panel of this court affirmed,
the full court, sitting en banc, directed the district court to grant an
injunction and consider the merits of the habeas petition. See Gilliam,
61 F.3d at 1074. Reversing its field, the district court then granted the
writ. This appeal followed.

Now, on rehearing en banc, the majority have voted to affirm the
district court, concluding that the state trial judge abused his discre-
tion in declaring the mistrial. By affirming the issuance of the habeas
writ, the majority have (1) overruled the trial judge's discretionary
rulings on evidence and the conduct of trial; (2) denied the State of
South Carolina one complete trial of petitioners notwithstanding the
absence of any prosecutorial or judicial misconduct; and (3) ordered
released into the public three individuals accused of murder. I cannot
agree that the Double Jeopardy Clause dictates such unseemly results.

II

The Supreme Court has recognized that the constitutional protec-
tion against being "twice put in jeopardy of life or limb" for "the same
offense," U.S. Const. amend. V, is "rooted in history" and "is not an
evolving concept." Gore v. United States, 357 U.S. 386, 392 (1958).
The Double Jeopardy Clause, as included in the Bill of Rights, was
actually a redraft of James Madison's initial formulation-- "No per-
son shall be subject, except in cases of impeachment, to more than
one punishment or one trial for the same offence . .. ." Sources of Our
Liberties 422 (Richard L. Perry & John C. Cooper eds. 1991). But its
framers intended for the Clause only to declare the law as it stood at

58
the time and to guarantee the protections established by the common
law. See United States v. Jenkins, 490 F.2d 868, 873 (2d Cir. 1973),
aff'd, 420 U.S. 358 (1975); Joseph Story, Commentaries on the Con-
stitution of the United States § 930 (Roland D. Rotunda & John E.
Nowak eds. 1987).

Those common law protections were well known. According to
Blackstone, they emanated from four pleas in bar: autrefois acquit
(former acquittal), autrefois convict (former conviction), autrefois
attaint (former attainder), and pardon. 4 Sir William Blackstone,
Commentaries on the Laws of England §§ 377-81. The Double Jeop-
ardy Clause, therefore, shields defendants from multiple trials and
multiple punishments for the same criminal offense. As a corollary,
however, the state is entitled, absent misconduct by the prosecution
or the trial judge on behalf of the prosecution, to one complete trial,
and if the defendant is convicted, one punishment. Cf. Illinois v.
Somerville, 410 U.S. 458, 463 (1973) ("[t]he interests of the public in
seeing that a criminal prosecution proceed to verdict . . . need not be
forsaken by the formulation or application of rigid[double jeopardy]
rules").

Thus understood, the Double Jeopardy Clause serves its important
purpose: to prevent "the State with all its resources and power [from]
mak[ing] 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 continued state of anxiety and insecu-
rity, as well as enhancing the possibility that even though innocent he
may be found guilty." United States v. DiFrancesco, 449 U.S. 117,
127-28 (1980) (quoting Green v. United States, 355 U.S. 184, 187-88
(1957)). But where defense counsel neglect precipitates a mistrial and
there is no suggestion of prosecutorial misconduct or judicial over-
reaching in support of the prosecution's effort to convict, the concerns
that underlie the Double Jeopardy Clause are not triggered.

Unfortunately, without finding any such prosecutorial or judicial
misconduct in this case, the majority deny the South Carolina prose-
cutors even one complete trial to bring petitioners to justice. They do
so by rigidly applying the "manifest necessity" principle and over-
looking that principle's limitations. See United States v. Perez, 22
U.S. (9 Wheat.) 579, 580 (1824). In Perez, the defendant was sub-

59
jected to a jury trial, but the jury was unable to agree on a verdict. In
holding that the Double Jeopardy Clause did not bar a retrial, Justice
Story stated, "[t]he prisoner has not been convicted or acquitted, and
may again be put upon his defence." Id. He explained that courts may
discharge juries from rendering verdicts when there is a "manifest
necessity" for doing so "or the ends of public justice would otherwise
be defeated." Id. And in allowing the defendant to be retried, the
Perez Court deferred to the "sound discretion" of the trial judge. Id.
Yielding to trial judges' discretion in determining when "manifest
necessity" exists remains the double jeopardy jurisprudence. See
Arizona v. Washington, 434 U.S. 497, 514 (1978).

III

There is no allegation of misconduct by the prosecution or trial
judge in the case sub judice. Indeed, defense counsel was responsible
for creating the situation that caused the state judge to declare a mis-
trial in the interest of ensuring a "fair and proper" trial. Like a repro-
secution after a hung jury, petitioners' retrial here would not implicate
the interests that the Double Jeopardy Clause was historically
designed to secure. I conclude, therefore, that the public interest
demands and the Double Jeopardy Clause permits one complete trial
for these three petitioners charged with murder.

I am authorized to say that Judge Widener joins in this opinion.

LUTTIG, Circuit Judge, dissenting:

The Chief Justice, in denying the State's belated stay application
filed in August, admonished our court in language whose import is
unmistakable, that under Arizona v. Washington, 434 U.S. 497
(1978), a trial court's determination of manifest necessity is never
entitled to greater deference than where, as in this case, "the judgment
is based on an evaluation of such factors as the admissibility of evi-
dence, any prejudice caused by the introduction of such evidence, and
the trial court's familiarity with the jurors." Foster v. Gilliam, 116 S.
Ct. 1, 2 (1995) (Rehnquist, Circuit Justice). This admonition, of
course, was merely a reaffirmation of Justice Stevens' observation on
behalf of the full Court in Arizona, 434 U.S. at 513-14 & n.33 (1978)

60
(quoting Wade v. Hunter, 336 U.S. 684, 687 (1949) (emphasis
added)), that,

[t]here are compelling institutional considerations militating
in favor of appellate deference to the trial judge's evaluation
of the significance of possible juror bias. He has seen and
heard the jurors during their voir dire examination. He is the
judge most familiar with the evidence and the background
of the case on trial. He has listened to the tone of the argu-
ment as it was delivered and has observed the apparent reac-
tion of the jurors. In short, he is far more `conversant with
the factors relevant to the determination' than any reviewing
court possibly can be.

...

These considerations must be at least as weighty where a
federal court, in considering a state prisoner's collateral
challenge to his conviction on the ground that it violated the
Double Jeopardy Clause, reviews the determination of a
state trial judge as to juror bias.

See Foster v. Gilliam, 116 S. Ct. at 2 (citing Arizona, 434 U.S. at 513-
14).1 In confident disregard of the Chief Justice and the Court --
indeed, without even a mention of the Chief Justice's admonition --
the majority today completes the wholesale substitution of its judg-
ment for that of the state trial judge, on what the Chief Justice point-
edly explained is the quintessential discretionary matter of whether
the jury was potentially prejudiced by viewing the unadmitted crime
scene photographs placed before it by defense counsel.

I.

The majority, as an appellate court in habeas, has literally sat down
with some 26 individual photographs of the crime scene, compared
_________________________________________________________________

1 As Justice Marshall explained in Holtzman v. Schlesinger, 414 U.S.
1304, 1313 (1973), when a single Justice sits in his capacity as a Circuit
Justice, he does not act alone, but rather "as a surrogate for the entire
Court, from whence [his] ultimate authority . . . derives."

61
them one with another, and without any familiarity with the evidence
in the case, any understanding of the jurors, or any knowledge of
either the prosecutorial or defense trial strategies, found as a matter
of fact that the unadmitted photographs seen by the jury were not
unduly prejudicial. This, despite a contrary finding by both the state
trial judge, who knew the jury and the evidence, and the federal dis-
trict court (before it was instructed by the en banc court to find
otherwise),2 and despite the express and repeated concession of preju-
dice even by defense counsel. The extent to which the majority has
completely usurped the role of the state trial court, see Arizona, 434
U.S. at 513-14, is apparent throughout its opinion, but perhaps is
_________________________________________________________________

2 The district court had no choice but to abandon its firmly-held views
in light of our first en banc opinion, which reads as an undisguised man-
date to the district court to reach the conclusions that the en banc major-
ity had reached on appeal:

It cannot be seriously disputed that the ongoing state criminal
proceedings violate Petitioner's constitutional right not to be
placed twice in jeopardy for the same offense. . . . The undis-
puted facts demonstrate that the state trial judge acted without
any rational justification in granting a mistrial. .. . [T]he federal-
ism concerns expressed in Younger v. Harris . . . do not counsel
against the grant of relief under these circumstances.

Gilliam v. Foster, 61 F.3d 1070, 1074 (4th Cir. 1995) (en banc).

Prior to our first en banc opinion, the federal district court had con-
cluded that,

the disputed photographs were more important than might first
appear. . . . [I]ssues of provocation and self-defense are present
in this case. One factor that is important in resolving these issues
is whether one of the Defendants was on the decedent's property
or on the public roadway at the time he fired his weapon. The
disputed photographs are close up photographs of the ground
which show blood stains. Because of this, they could be used to
more clearly document where the shooting occurred.

...

[T]he court . . . concludes that the Petitioners have virtually no
likelihood of success on the merits of their double jeopardy claim
....

J.A. at 211, 213 (emphasis added).

62
illustrated best in the following passages, which constitute the essen-
tial reasoning underlying its finding that no prejudice arose by virtue
of the jury having seen the unadmitted crime scene photographs:

The photographs referred to as Set 2 included Exhibits 8, 12,
13, 14, and 16. The photographs referred to as Set 1--
Exhibits 9, 10, 11, 15, 17, 18, and 19 -- were not offered
into evidence.

A description of these photographs and a comparison of the
photographs included in Set 1 vis-a-vis those in Set 2 is
instructive. The photographs in Set 2, with the exception of
Exhibit 16, are identical in every material aspect and show
the area outside the Silvers' mobile home. Each of these
photographs was taken from near Highway 32, the public
roadway in front of the Silvers' mobile home, from the left-
hand side of the mobile home and looking down the drive-
way toward it. The mobile home and the adjacent yard and
driveway are shown in the background of these photo-
graphs, and all of them show the same three pieces of yel-
low tape in the foreground -- the closest two pieces are
circular in shape, one to the left and one to the right, and one
strand of yellow tape is behind the two circular pieces and
a few feet closer to the mobile home. The remaining photo-
graph in Set 2, Exhibit 16, shows the same location, but
reveals only the circular piece of tape to the right and one-
half of the circular piece to the left.

...

Of the seven photographs in Set 1, four of them, Exhibits
10, 17, 18, and 19, are close-ups of the three pieces of yel-
low tape: Exhibit 10 shows a close-up of the circular piece
of tape on the left of the photographs in Set 2; Exhibit 17
is a close-up of the two circular pieces of tape shown in pho-
tographs in Set 2; Exhibit 18 is a close-up of the strand of
tape behind the two circles of yellow tape in the photo-
graphs in Set 2; and Exhibit 19 is a photograph of the circle
of tape on the right in the photographs in Set 2. These pho-
tographs show red spots within or near the areas marked

63
with the yellow tape more clearly than the photographs in
Set 2. Exhibit 15 is virtually identical to those in Set 2, taken
from the same camera angle and depicting all three pieces
of yellow tape. The two remaining photographs in Set 1,
Exhibits 9 and 11, reveal the same three pieces of tape, but
were taken from approximately the opposite location from
those in Set 2; in other words, they are taken from near the
mobile home facing up the driveway and toward Highway
32. These latter two photographs depict more clearly the
same tire tracks shown in the photographs in Set 2.

...

. . . [T]here was no possibility that the jury could have been
confused by seeing the photographs in Set 1 prior to having
heard [Officer Counts'] testimony. Officer Counts had testi-
fied that yellow tape marked the three areas on the ground
outside the Silvers' mobile home where what appeared to be
blood was located. In addition, he had testified that these
areas were located to the left of the mobile home and just
beside the roadway, and he had marked the location of these
areas on an overlay of a diagram of the crime scene pre-
pared by the prosecution. Further, he testified that all of the
photographs (Sets 1 and 2) showed the same scene but from
different angles. Given this testimony, it strains credibility
to suggest that the Set 1 photographs could have misled the
jury into believing that there were a greater number of areas
where blood was located or that the blood was discovered
in a location other than the one indicated by Officer Counts.
...

. . . [T]here is simply no rational argument that viewing the
photographs in Set 1 somehow improperly biased the jury.
...

...

. . . [T]he photographs in Set 1 could not have adversely
affected the impartiality of the jury; and in light of Officer

64
 Counts' testimony, the Set 1 photographs did not present
any realistic potential for juror confusion.

Ante at 7-8, 27-28, 35. From these passages, the substance and detail
of which do not appear in any state or federal opinion other than ours,
it is evident that the majority's utter disregard of Arizona (and
Younger v. Harris, 401 U.S. 37 (1971)), is no different from the Ninth
Circuit's disregard of United States v. Perez, 22 U.S. (9 Wheat.) 579
(1824), in United States v. Sanford, 536 F.2d 871 (9th Cir.), rev'd per
curiam, 429 U.S. 14 (1976). And the ultimate disposition of this mat-
ter should be no different. The majority's error under Arizona and
Younger is plain, and full review will reveal nothing more about the
unadmitted photographs at issue and their potential to prejudice the
jury than we know now. As in Arizona, the conclusion is inescapable
-- that only the trial court could possibly assess the potential impact
of these photographs on the jury that sat in Newberry, South Carolina.
Additionally, it would be difficult to imagine a case wherein the dis-
ruption to the state proceedings caused by a federal appellate court
could be any greater.3
_________________________________________________________________

3 In the debacle that has ensued since our initial intrusion into the
affairs of South Carolina, the original state trial judge recused himself
because he was named as a defendant in this matter, and the second state
trial judge was forced to halt the trial four days into it -- literally while
a witness was on the stand. The chaos that we have created is exempli-
fied in the revealing exchange before the district court that follows:

THE COURT: Can you hold one second. I'm sorry. Let me say
that during the last break I was faxed a new copy of an opinion
by the Fourth Circuit. I don't want to give anybody heart attacks.
A three/four dissenting opinion written by three other minority
members of the court. Three other separate opinions. I didn't
know if you seen them.

THE STATE: No, sir.

THE COURT: I will have them copied for you so you will
have them. Go ahead. This is the first time I ever had the Fourth
Circuit law being made as we progressed.

DEFENSE COUNSEL: I think this is a first for all of us,
judge.

J.A. at 432-33 (emphasis added).

65
II.

There are only two assertions in the entire majority opinion that,
if they were not demonstrably wrong, might at least suggest that the
disposition of this case is not directly controlled by Arizona.4

A.

First, the majority states repeatedly that the trial court acted "pre-
cipitately," making no findings that would possibly support a mistrial:
_________________________________________________________________

4 None of the majority's other asserted bases for invalidating the trial
court's judgment even remotely supports the majority's conclusion that
the trial court abused its discretion. First, that Officer Counts had already
laid an adequate foundation for admission of the unadmitted photo-
graphs, see ante at 26-27, 33, even if true, is irrelevant to the question
of potential jury prejudice. Even assuming that a foundation already
existed, the fact remains that Officer Counts' testimony was easily sub-
ject to impeachment based upon the Set 2 photographs alone; thus, as
defense counsel has consistently argued, the Set 1 photographs were
essential corroboration of Counts' testimony. To invoke the adage, the
pictures were worth a thousand of Officer Counts' words. Second, that
the prosecution originally said, "no objection" when it mistakenly
thought the unadmitted photographs were being offered into evidence,
see ante at 5 n.4, is of no moment, as the majority itself seems to
acknowledge, because the prosecution immediately thereafter withdrew
that statement as "premature." J.A. at 60-61. Third, that the trial judge
chose not to inquire further whether the jury had seen the unadmitted
photographs in particular, after he had already recalled the jury foreman
and been told that "all" of the photographs (including the unadmitted
ones) had been "circulated through the jury," see J.A. at 38, 92-94, and
confirmed this fact with the court reporter, J.A. at 93, was by no means
irrational. Fourth, that the motion for mistrial may have been invited by
the trial court, see ante at 28-29, is not supported by the record and is
denied by defense counsel, J.A. at 87, 304; regardless, it is irrelevant
because, as the federal district court observed, even if the mistrial was
invited, "the standard for judging the grant of mistrial remains the same."
J.A. at 498. And fifth, the fact that an error might not result in reversal
of a conviction, see ante at 30-31, 35, is plainly not dispositive of
whether that error was sufficiently prejudicial to support a mistrial.

66
 At no point did the state trial judge indicate that double
jeopardy concerns were implicated by the grant of a mistrial.
And, neither [did] the state trial judge indicate[] that the
photographs were in any way prejudicial to the prosecution
or the defense.

The state trial judge did not make a finding of manifest
necessity or a finding of prejudice. Indeed, he did not use
the word "prejudice" during this proceeding. Further, the
state trial judge gave no hint of what prejudice might possi-
bly exist such that a reviewing court could conclude that
prejudice resulted from the jury's viewing the photographs
in Set 1.

...

The state trial judge . . . made no finding that the impartial-
ity of the jury had been, or may have been, affected by
viewing the photographs in dispute.

Ante at 10 & n.6, 35. This assertion is possible only through artifi-
cially focusing upon the trial court's colloquy with counsel when the
mistrial was granted, to the complete exclusion of the trial court's
extensive explanation of the reasons it granted the mistrial, which
appear in its subsequent opinion and order denying Defendants'
Motion to Dismiss. See J.A. at 35-41.5
_________________________________________________________________

5 See Grand Jury Proceedings Under Seal v. United States, 947 F.2d
1188, 1190 (4th Cir. 1991) (cited by the federal habeas court, J.A. at
491, as support for its authority to issue a subsequent written opinion
explaining the reasons for its earlier grant of the writ of habeas corpus).
Cf. Arizona 434 U.S. at 517 n.39 ("The Court of Appeals was concerned
that the trial judge may [not] have . . . consider[ed] the possible impact
of [the improper] comments on the impartiality of the jurors. We think
this concern is unwarranted. . . . We are unwilling to assume that a judge,
who otherwise acted responsibly and deliberately, simply neglected to
consider one of the central issues presented by the mistrial motion and
argued by the parties when he made his ruling.").

67
In that opinion and order, which I include as an appendix because
it reflects the seriousness and thoroughness with which the mistrial
motion was addressed, the trial court explained what the majority
concedes was the court's reasoning at the time it granted the mistrial,
see ante at 34 n.25, that it had been "grave[ly]" concerned about
the "prejudicial occurrence" of the jury having reviewed unadmitted
photographs of the murder scene. Id. at 30-31. The court identified the
problem that it had confronted when it learned of this occurrence,
namely, that it could not foresee whether the photographs, even if
ultimately offered into evidence, would have been admitted under
Fed. R. Evid. 403. J.A. at 36.6 It then reminded the parties that the
court had been so concerned that it had "brought [the dilemma] to the
attention of the litigants for a hearing as to how best then to proceed,"
and "allowed all counsel in th[e] matter `full opportunity to explain
their positions.'" Id. at 37-38. The court outlined the steps that it had
taken to ensure that the jury had in fact reviewed the unadmitted
crime scene photographs, including interrogating the jury foreman
and the court reporter in open court. Id. at 37-38. And it emphasized
that it had considered, as an alternative to a mistrial, a curative
instruction, but concluded that such an instruction "would simply
highlight and compound the error already existent." Id. at 38. As the
court observed, "[t]his was not merely an opening statement by an
adversary that could have been cured by any instruction of th[e]
court." Id. at 39-40.

The court then noted that, although an explicit finding of manifest
necessity is not required under Arizona, in the court's view an "im-
plicit finding of manifest necessity exist[ed]" in the court's expression
of grave concern over the "origin of the prejudice as well as the extent
of the publication [of the unadmitted photographs] to the jury." Id. at
39. Finally, the court pointed out that more than just "manifest neces-
sity" had justified the mistrial, because to have granted the defen-
dants' motion to dismiss would have been to "reward" them for their
own negligent action in allowing the photographs to be seen by the
jury. Id. at 40. In language that captures perfectly the rationale under-
lying the "special respect" that the Supreme Court has said must be
accorded the trial courts in determinations such as these, the court
_________________________________________________________________

6 The State of South Carolina adopted Fed. R. Evid. 403 in State v.
Alexander, 401 S.E.2d 146, 149 (S.C. 1991).

68
concluded by saying that it would not "second guess" what "it [had]
observed, heard and felt at the time of its . . . ruling." Id. at 40-41.

The majority's holding notwithstanding, ante at 32-34, this deliber-
ate consideration by the trial court, which again, as the majority con-
cedes, ante at 34 n.25, mirrors the deliberate consideration by the
trial court at the time the mistrial was granted, is not even arguably
"precipitous," "irrational," or "irresponsible," see Arizona, 434 U.S. at
514.

B.

The majority's second assertion is that the State's only argument
of prejudice is that the Set 1 photographs had not been formally
admitted and properly authenticated. See ante at 24-28, 24 n.19.
Like its first assertion, this, too, is flatly wrong. The State does argue
that the unadmitted photographs were not properly authenticated, but
that is not its only, or even its principal, argument. The State has
explained throughout these proceedings that the unadmitted photo-
graphs differed from the admitted photographs and prejudiced the
State in two significant ways.7

First, the unadmitted photographs are the only close-ups of the
scene and the only photographs from which it is possible to discern
the presence of blood or a blood-like substance. 8 And, as both parties
_________________________________________________________________

7 To support the claim that the government conceded that the photo-
graphs had no "prejudicial" effect, the majority relies upon a statement
by the prosecution made during argument before the panel on whether
to stay the state court's order of retrial pending a further hearing before
the federal district court. See ante at 14. But the majority omits the prose-
cution's later clarification during that argument in response to a follow-
up question, that, by "prejudice," the prosecution meant "inflammatory";
thus, the prosecution explained that the photographs are not like "autopsy
photographs," in that they were not likely to inflame the passions of the
jury. The prosecution did not concede that their submission to the jury
was not prejudicial, but rather, argued that they were "inherently prejudi-
cial." Transcript of Oral Argument, July 15, 1995, at 49-50.

8 It is now known that a serological test had been performed on the
dots. The test confirmed that the dots were human blood, but no determi-

69
concede, the presence or absence of blood at this precise location is
central to the case, given the defenses of provocation and self-
defense. The defense counsel candidly admitted that it was for this
reason that the photographs were important to the defense. Second,
the State has consistently maintained that the unadmitted photographs
show more clearly than the admitted photographs the tire tracks that
are believed to have been made by Gilliam's truck, thus confirming
whether the truck was on or off decedent's property at the time of the
crime.

At oral argument before the panel on the original motion to stay the
state trial, the State argued as follows:

THE STATE: When I look at the [admitted] photographs,
I do not see the stain [that appears to be blood-- the unad-
mitted photographs did show this stain].

...

THE STATE: The presence of the stains might be relevant
to the case because it would reveal the -- who shot first and
where they shot, to the extent that Mr. Gilliam was injured
at the scene and shooting from the victim's area. Where he
was bleeding and where blood would be located and the
amount of blood would be located would assist in making
a determination whether Mr. Gilliam had a duty to retreat,
to act in self-defense, join in the self-defense of Mr. Swain's
action. He may have been coming to his defense. And
whether the . . . victim was securing his property, whether
he had the ability to defend his habitat at the time from
_________________________________________________________________

nation was made as to whose blood it was, a failing that could be signifi-
cant in light of the testimony that another violent incident had occurred
at the same location between two other people earlier that same day, J.A.
at 622-23. The prosecution has represented to us that it did not know at
the time that any such test had been performed. Most important, though,
neither party disputes that the state trial judge did not know of the test.
Of course, it is only the trial court's state of knowledge concerning the
dots that is relevant to the question of whether it acted precipitously.

70
 intruders. Those are both factual questions that the jury may
have been presented with . . . .

...

THE STATE: . . . You see the rust area . . . in the [admit-
ted] photographs, but the red spots [that appear to be blood]
do not appear to show up in any of the other photographs
from my study of the photographs.

Transcript of Oral Argument, July 15, 1995, at 9-10, 51.

Similarly, in its brief before the en banc court on the merits, the
State argued,

[a] review of the photographs reveals the existence of vari-
ous "red dots." The Petitioners now concede that whether
the blurs represented blood was a critical fact, although the
testimony of Officer Counts was essentially that he lacked
the knowledge or expertise to state that the "dots" were
blood. Although the defense concedes that at the time of the
trial it had not subjected the photographs to such a test, it
still asserts that it was relevant as representing Gilliam's
blood. Under the evidence presented at the time of the trial,
the location of Gilliam at the time of the shooting was in
dispute with some witnesses placing him in the yard of the
deceased and others placing him on the roadway. Similarly
the questioned photographs showing tire tracks not repre-
sented in the admitted photographs touched uniquely (and
possibly confusingly) on the location of [Gilliam's] truck.

Appellants Br. at 34-35 (footnote omitted). And, at oral argument
before the en banc court, the prosecution again explained the preju-
dice that resulted from the jury seeing the unadmitted photographs:

THE STATE: . . . [Defense] [c]ounsel Price in the testi-
mony before the State, in the habeas corpus hearing, testi-
fied that these photographs could lead to jury confusion.
Betty Strom, the prosecutor, testified that they could lead to

71
 jury confusion because they reveal the red dots which are
not revealed in the admitted photographs.

...

THE COURT: What is the taint now?

THE STATE: The taint was that the jury got information
that had never been revealed to them.

...

THE COURT: The photographs were little different, were
they not?

THE STATE: Yes, sir. They were very different.

Transcript of Oral Argument, September 26, 1995.

If there were any doubt about the potential prejudice of the unad-
mitted photographs, defense counsels' repeated, candid concessions
lay it to rest; in fact, throughout these proceedings, the defense has
quite articulately described the prejudice to the State. At the hearing
before the federal district court, defense counsel testified as follows:

A. [Defense counsel] The question is what is useful
about the unadmitted photographs which was helpful to the
defense, is that it?

Q. [The State, cross-examining] Yes, sir.

A. [Defense counsel] . . . [P]art of photo set one [the
unadmitted photographs] is a close-up that shows a red sub-
stance that would appear to be blood.

Q. [The State] And it shows a number of spots, as you
already conceded, that is not evident in any other photo-
graphs which were introduced; is that correct?

72
A. [Defense counsel] There are some red spots that are
hard to see in admitted exhibit 12 of photo 2. . . . Clearly
they are easier to see in the unadmitted number 10.

...

Q. [The State] If you didn't know [that the blood] was
there . . . ?

A. [Defense counsel] It would be difficult to see the
blood. . . .

...

A. [Defense counsel] I spent a lot of time with these get-
ting ready for this trial. It could be argued that a jury would
be confused if we had both sets. It could be argued that they
would be confused if they had only one set.

...

Q. [The State] Why would [unadmitted] defendant's
exhibit 9 be of use to the defense in this case?

A. [Defense counsel] Well, it would show for the pur-
poses of the defense that there were tire tracks and why
weren't they analyzed for purposes of argument.

...

A. [Defense counsel] [Unadmitted exhibit 15 would be
relevant because] [i]t would depict the area of the driveway
where the mud puddle is. There had been earlier testimony
as to how close this truck had driven up to the trailer. We
can see these two trees that become landmarks in the testi-
mony in the development of the crime scene.

Q. [The State] Why would that have been useful in the
defense in this case . . . ?

73
 A. [Defense counsel] The state's position was that the
defendants had been on the property of the decedent and it
was necessary to show exactly where the truck had parked.
The way that was to be done was the blood that was coming
from defendant Gilliam would be located in the area where
he got in the truck.

...

A. [Defense counsel] . . . [T]he location of the truck is
relevant. My client was standing behind the truck. She got
into the truck when the parties fled the scene.

...

Q. [The State] . . . [Y]our statements about [unadmitted]
exhibits 17, 18 and 19 are that they reveal the blood drop-
pings that are not represented or evident in the other photo-
graphs; is that correct?

A. [Defense counsel] It shows them clearer and more
precise than in the others.

...

A. [Defense counsel] There are some admitted photo-
graphs that it would be very difficult to see the red dots
within the circle of the yellow tape, yes.

...

Q. [The State] Then you concede that the blood like sub-
stance, if it was able to be seen from any of the photographs
was only able to be seen in the admitted photographs in one
photograph; is that correct?

A. [Defense counsel] On the copies that I am looking at,
I have trouble finding it in other than one.

J.A. at 324-34.

74
Likewise, at oral argument before the en banc court, defense coun-
sel explained:

THE COURT: Then tell me how the introduction of those
photographs were intended by you to influence the jury to
acquit your defendants.

DEFENSE COUNSEL: Those photographs were to cor-
roborate the testimony of [Officer Counts] when he came
down here and drew on this diagram in front of the jury and
showed them where the blood was found. That's relevant as
to where Mr. Gilliam was when he was shot.

...

THE COURT: Without the corroboration, your case was
not as strong. The degree to which, we don't need to decide.
It was not as strong.

DEFENSE COUNSEL: Certainly, the corroboration
strengthens our case.

THE COURT: And thereby prejudices to some extent the
government's case.

...

DEFENSE COUNSEL: If you're using prejudice in the
sense of does it support one side or the other.

THE COURT: Well, of course.

DEFENSE COUNSEL: Then all evidence is prejudicial to
either side and in that sense I would say "yes, it was prejudi-
cial," just as the photographs in sets two and three were. Just
as all the evidence that the state introduced against us theo-
retically prejudiced our case.

Transcript of Oral Argument, September 26, 1995.

75
Indeed, in my view, no one examining the unadmitted Set 1 photo-
graphs and the admitted Set 2 photographs could fail to appreciate the
enormous significance (or, at the very least, the enormous potential
significance) of the Set 1 photographs, given that the precise location
of Gilliam's truck and of Gilliam himself when he was shot in the
foot by the decedent are central to, if not dispositive of, the defen-
dants' guilt. As the defense concedes, the Set 1 photographs all but
confirm the existence of tire tracks at the location, whereas it is diffi-
cult (if not impossible) to confirm from the Set 2 photographs that the
same markings are in fact tire tracks. Most important, the Set 1 photo-
graphs all but confirm the presence of a significant amount of blood
(or a blood-like substance) at the location depicted in the photo-
graphs, whereas it is virtually impossible to infer even the presence
of blood, much less a large quantity of blood, from the Set 2 photo-
graphs. In sum, the Set 1 photographs are not "just" close-ups of the
same area depicted in the Set 2 photographs, as the majority would
have one believe; they are the only photographs that depict the infor-
mation that both parties agree is absolutely critical to the case.

Even the federal district court that granted the writ of habeas
corpus that we are now reviewing specifically found that, although
the photographs were not "unfairly prejudicial," they "may have been
`prejudicial' to the State in the sense that they may have supported the
Defendants' defenses of self-defense or provocation." J.A. at 505. As
that court explained when it initially denied the writ, and before we
effectively directed it to hold otherwise,

it is now apparent that the disputed photographs were more
important than might first appear. From the argument of
counsel at the hearing, the court was able to determine that
the murder victim in this case had himself fired shots at one
of the Defendants shortly before or contemporaneously with
the shot by which he was killed. Therefore, issues of provo-
cation and self-defense are present in this case. One factor
that is important in resolving these issues is whether one of
the Defendants was on the decedent's property or on the
public roadway at the time he fired his weapon. The dis-
puted photographs are close up photographs of the ground

76
 which show blood stains. Because of this, they could be
used to more clearly document where the shooting occurred.

J.A. at 211; see also supra note 2.

Tellingly, even the majority must acknowledge the potential preju-
dice that inhered in the unadmitted photographs: "These photographs
. . . were relevant [and] material. . . . These photographs show red
spots within the areas marked with the yellow tape more clearly than
the photographs in Set 2. . . . [The Set 1] . . . photographs [also] depict
more clearly the same tire tracks shown in the photographs in Set 2."
Ante at 2, 8. Under Arizona, this concession of prejudice is all but
dispositive. For Arizona did not turn, as the majority mistakenly
believes, see ante at 21, 24, 28, on the fact that the improper argu-
ment was "highly prejudicial," as the Court characterized it at one
point, see 434 U.S. at 515. Rather, Arizona turned on whether the
error gave rise to "possible juror bias," see id. at 512; see also id. at
502 n.10 (implying that "the probability of juror prejudice" is the rele-
vant inquiry, not the "certainty of prejudice"); id. at 509 ("significant
risk that a verdict may result from pressures"); id. at 511 ("may have
affected") ("possible bias") ("likelihood that the impartiality . . . may
have been affected"); id. at 512 ("possibility of bias") ("it is possible")
("perhaps") ("possibility of bias") ("tends to frustrate") ("create a
risk"); id. at 513 ("risk of bias") ("possible juror bias").

Because the majority concedes prejudice, and thus a fortiori the
possibility of jury bias, the only way it can avoid the conclusion that
the trial court unquestionably acted within its discretion is by holding
(as it does) that the state trial judge acted "irrationally" in not attempt-
ing to cure that prejudice. Ante at 32-34. In order to so hold, the
majority creates out of whole cloth a distinction of per se legal signif-
icance between prejudice and "unfair" or "undue" prejudice (which it
presumably imports from Fed. R. Evid. 403), ante at 12, 13, 16,
22, 23, 23 n.18, and then finds that the prejudice in this case was
not "unfair" because the photographs, in its opinion, would have been
admissible, ante at 2, 13-14, 22-28, 29-30, 32, 35-36.9 Of course,
_________________________________________________________________

9 The majority's conclusion that the photographs would have been
admissible in the state trial is based in large part upon the forced specula-

77
whether or not, as a technical matter, the photographs would have
been admissible or admitted, is ultimately irrelevant.10

The relevant question is not whether the photographs would have
been admissible, but rather, whether it was an abuse of discretion for
the state trial court to decline to formally consider their admission
after they had already been seen by the jury. Most assuredly, it was
not.

The trial court had at least four obvious and sound reasons for
declining to attempt this cure. First, the court was confronted with the
distinct possibility that the jury had already formed impressions, if not
drawn conclusions, from the photographs -- not about some ancillary
issue of little consequence, but about the critical issues of the precise
_________________________________________________________________

tion by the prosecution that, if the State had not objected to their admis-
sion, the photographs would have been admissible. Ante at 13-14, 22-23,
35-36. However, as the state trial judge understood, J.A. 36-37, 93-94,
admissibility of the photographs is irrelevant to the question of whether
the trial judge abused his broad discretion. The only possibly relevant
inquiry would be whether the photographs would have been actually
admitted. Neither party is in a position to know, much less to "concede,"
this. The ultimate determination of whether particular evidence will be
admitted rests with the trial judge and must be made with knowledge of
how the trial has unfolded and how the evidence is to be used at the
moment when it is offered.

10 In any event, that the Supreme Court in Arizona assumed from the
inadmissibility of the statement there in question both that the statement
was improper and that it may have affected the jury's impartiality, 434
U.S. at 511, does not mean, contrary to the majority's belief, ante at 22-
23, 28, that if evidence is admissible, then ipso facto it could not
affect the impartiality of the jury. The only error alleged in Arizona was
that the statement was inadmissible as a matter of law, see 434 U.S. at
499-500; respondent's argument in defense of the statement was that the
evidence "was admissible as a matter of Arizona law, and therefore that
the opening statement was proper." Id. at 511. Here, in contrast, there
was a more fundamental and antecedent error -- that the entire process
by which evidence is allowed before the jury was corrupted, depriving
the court of the opportunity even to consider the admissibility of the evi-
dence at the appropriate time.

78
locations where defendant Gilliam was shot and where his truck was
parked. Given this distinct possibility, it was reasonable to decide that
subsequent foundation testimony (itself an oxymoron) could not cor-
rect those unguided impressions, any more than a curative instruction
could. Second, for reasons that will never be known, the defense
apparently had made the tactical decision not to introduce the Set 1
photographs during Officer Counts' testimony, and the prosecution
had no doubt relied upon that choice. Aware that the timing of the
admission of evidence is critical to the force of that evidence, it was
reasonable for the trial court to determine that it was an unacceptable
alternative to require the admission of the photographs at a time when
the defense had not intended to introduce them, and thereby to require
the prosecution to respond to the photographs at a time when it would
not otherwise have been required to respond. Third, it was reasonable
for the trial court to conclude that recalling Officer Counts and con-
sidering the admission of the photographs after they had already been
seen by the jury would only have highlighted their importance,
increasing the potential for prejudice. J.A. at 36-37, 39-40, 93-94. But
see ante at 33-34, 33 n.19, 35. And fourth, it was clearly within the
trial court's discretion to conclude that defense counsel's unautho-
rized placement of these crime scene photographs before the jury,
together with the earlier incident of possible defense misconduct, see
discussion infra at 83 & n.14, had so far stripped the proceeding
of any semblance of fairness that any attempted cure would have been
meaningless.

For these reasons, the state trial court was no more required to
attempt to cure the error by recalling Officer Counts and then ruling
on the admissibility of the photographs (even though the majority
might have done so if it were hearing the case), than the trial court
in Arizona was required to give a curative instruction (even though
other trial judges might have done so if they were hearing the case).
434 U.S. at 511.

III.

Once the majority's two misconceptions about the trial court and
the prosecution are corrected, it is apparent that this case is squarely
controlled by Arizona and that the ultimate disposition of the case
should be a straightforward, unexceptionable application of that deci-

79
sion; indeed, the case for not disturbing the trial court is even stronger
here.

In Arizona, there was no allegation of prosecutorial misconduct.
Here, too, there was no such allegation, and in fact, the federal district
court expressly found that there was no prosecutorial misconduct
whatsoever, J.A. at 498, a fact that the majority ignores altogether.

In Arizona, the trial error was caused by defense counsel. 434 U.S.
at 510. Here, too, and also ignored by the majority, defense counsel
caused the error -- as the defense concedes and the state trial court
expressly found. J.A. at 36, 89, 497.

In Arizona, the improper argument "may have affected the impar-
tiality of the jury." 434 U.S. at 511 (emphasis added). Here, too, the
unadmitted crime scene photographs at the very least"may have
affected" the jury's impartiality. See J.A. at 38.

In Arizona, the improper argument "create[d] a risk, often not pres-
ent in the individual juror bias situation, that the entire panel may
[have been] tainted." 434 U.S. at 512. Here, too, because the crime
scene photographs were given to the entire jury, the risk was that the
entire panel became biased by the photographs. J.A. at 38, 94.

In Arizona, the trial court heard argument from both sides before
granting the mistrial. 434 U.S. at 515-16. Here, too, the trial court "al-
lowed all counsel in this matter `full opportunity to explain their
positions.'"11 J.A. at 38.
_________________________________________________________________

11 In Arizona, the trial court delayed granting the mistrial for a day to
allow defense counsel the extra time it had requested to conduct legal
research on the mistrial, 434 U.S. at 514 n.34. Here, "[a]t no time did any
counsel for the defendants ask for more opportunity to be heard or to
review other legal precedent prior to the Court's ruling." J.A. at 39.
However, the judge first conducted a bench conference about the matter
and recessed court in order to give counsel for the parties an opportunity
to conference and discuss the matter. J.A. at 90-91, 303. Thus, the major-
ity's attempt to disparage the opportunity for counsel to be heard on the
matter, ante at 27 n.21, rings hollow. See Sumner v. Mata, 449 U.S. 539,
546-48 (1981).

80
In Arizona, the trial court considered a curative instruction, but
rejected such an instruction as inadequate to cure the improper com-
ment. 434 U.S. at 511, 514 n.34. Here, too, the trial court considered
a curative instruction, but concluded that such an instruction could not
cure the effect of the jury having seen the unadmitted photographs.
J.A. at 38.

And in Arizona, the defendants did not "attempt to demonstrate
specific prejudice from the mistrial ruling, other than the harm which
always accompanies retrial." 434 U.S. at 516 n. 35. Here, too, the
only harm that the defendants allege is that "which always accompa-
nies retrial." See ante at 36.

In fact, the reasons for reversing the en banc court here (and
affirming the state trial court's judgment) are even more compelling
than they were in Arizona.

In Arizona, the trial court failed to articulate the reasons for declar-
ing the mistrial. 434 U.S. at 516-17.12 Here, the trial court did articu-
late its reasons for declaring the mistrial. J.A. at 35-41, 93-94.

In Arizona, there was no explicit finding of manifest necessity. 434
U.S. at 516. Here, the trial court found manifest necessity. J.A. at 39.13
_________________________________________________________________

12 The Ninth Circuit, which was reversed by the Supreme Court in
Arizona, described the Arizona trial court as having made "no findings
whatsoever." 546 F.2d 829, 832 (9th Cir.), rev'd 434 U.S. 497 (1977).
According to the court of appeals, the trial judge,

at no time . . . indicate[d] the reason(s) why he granted the mis-
trial. Furthermore, his short order . . . is not susceptible to any
inference that will fill this void. In the absence of any finding by
the trial court or any indication that the court considered the effi-
cacy of alternatives such as an appropriate curative instruction to
the jury, we must conclude that neither of the tests of Perez . . .
has been met.

13 As the trial court noted, J.A. at 39, Arizona does not even require that
it make an explicit finding of manifest necessity. 434 U.S. at 517.
Indeed, a fundamental error of the majority is that it has fixed upon the
mantra of "manifest necessity" while failing to realize that none of the
concerns that underlie the actual constitutional prohibition against double

81
In Arizona, the trial court made no explicit finding of prejudice.
434 U.S. at 517 n.39. Here, the trial court made an express finding
of prejudice. J.A. at 38, 39.

In Arizona, there is no suggestion that the defense acknowledged
the prejudice to the government's case. Here, the defense has consis-
tently admitted that introduction of the photographs did prejudice the
government's case. See J.A. at 324-34; Transcript of Oral Argument,
September 26, 1995.

In Arizona, the error was an improper opening statement. Here, as
the trial judge recognized, the jury had "not merely [heard] an open-
_________________________________________________________________

jeopardy are implicated in this case. As the Supreme Court explained
long before Arizona, "[t]he double jeopardy provision of the Fifth
Amendment . . . does not mean 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. Such a rule would create an insuperable obstacle to
the administration of justice in many cases in which there is no sem-
blance of the type of oppressive practices at which the double-jeopardy
prohibition is aimed." Wade, 336 U.S. at 688-89 (emphasis added). Cf.
Duckworth v. Eagan, 492 U.S. 195, 203 (1989) ("The prophylactic
Miranda warnings are `not themselves rights protected by the Constitu-
tion but [are] instead measures to insure that the right against compulsory
self-incrimination [is] protected.'" (quoting Michigan v. Tucker, 417
U.S. 433, 444 (1974)); Stone v. Powell, 428 U.S. 465, 479, 481-82, 490-
91 (1976) (`"[T]he exclusion of illegally seized evidence [pursuant to
Mapp v. Ohio, 367 U.S. 643 (1961)] is simply a prophylactic device
intended generally to deter Fourth Amendment violations by law
enforcement officers.'" (quoting Kaufman v. United States, 394 U.S.
217, 224 (1969)).

The primary evil that "manifest necessity" was created to prevent --
the threat of the State bringing its awesome power repeatedly to bear in
an effort to convict a criminal defendant, see Arizona, 434 U.S. at 507-
08 & n.23 -- is simply not present here. The mistrial was prompted
solely by the negligence of the defense; there is no allegation either of
prosecutorial misconduct or of pretext in the motion for mistrial. See
generally Arizona, 434 U.S. at 506-10, 514-15 (describing the "spec-
trum" of scrutiny given declarations of mistrial and explaining that that
scrutiny is far lower when there is no prosecutorial misconduct).

82
ing statement by an adversary that could have been cured by any
instruction of this Court," it "had seen and touched physical evidence
not properly admitted." J.A. at 39-40.

In Arizona, defense counsel expressly argued for a curative instruc-
tion by the trial court. 434 U.S. at 514 n.34. Here, defense counsel
never urged that a curative instruction be given, yet the trial court
considered such an instruction sua sponte. J.A. at 87-94, 37-38.

Significantly, here, unlike in Arizona, there was evidence before
the state trial court that permitted a conclusion that defense counsel
was engaged in a pattern of misconduct during this very trial.14
_________________________________________________________________

14 The prosecution explained as follows an event that occurred prior to
defense counsel's placing the unadmitted photographs before the jury:

Earlier in the trial an incident had occurred where it was brought
to the court's attention at a bench conference that an officer, I
believe it was Major Gonza Hunter, brought to my attention that
he had seen [defense counsel] looking in our notebook during
one of the breaks. As opposed to announcing that in open court,
I simply brought that to the court's attention with counsel at the
bench. My recollection of that conference was that I brought it
to the court's attention. [Defense counsel] stated to the court that
she had in fact looked in our notebook, that she had done it in
an attempt to find her own notebook. I pointed out to the court
that I felt that a little extreme concerning the notebook she
looked into had a large gold South Carolina Law Enforcement
Officers Association seal on it. That was one of the first inci-
dents that we had.

J.A. at 384-85. Before the federal district court, the prosecution stated
that this incident was "a motivating factor" in its motion for mistrial, J.A.
at 423-24, and, when asked for its views of why the mistrial was
declared, explained that,

[i]t seems to me that the reason for that was[Judge Johnson's]
concern for what had happened, vis-a-vis two incidents. The first
one involving Ms. Goodwin. I don't know what was said at the
bench conference. I did not go there. The second matter was the
business about the impropriety of photographs being not just
admitted to the jury but picked up and handled by every member
of the jury. Those two things I think said to Judge Johnson that

83
And finally, here, unlike in Arizona, the federal courts stopped an
ongoing state murder trial -- literally with a witness on the stand --
on the basis of their assessment of the evidentiary significance of the
crime scene photographs, in open defiance of the principles that lie
at the core of Younger v. Harris.

That the state trial court in this case evidenced the grave concern
that it did, J.A. at 36-40, 90-94, and in response, allowed counsel for
both parties to argue their positions as to whether a mistrial should be
granted, J.A. at 38-39, 90-91, 93, is probably alone sufficient to ren-
der the trial court's grant of a mistrial an exercise of "sound discre-
tion," as it was for the Supreme Court in Arizona:

[E]vincing a concern for the possible double jeopardy con-
sequences of an erroneous ruling, he gave both defense
counsel and the prosecutor full opportunity to explain their
positions on the propriety of a mistrial. We are therefore
persuaded by the record that the trial judge acted responsi-
bly and deliberately . . . .

434 U.S. at 515-16 (emphasis added).

Given the deliberate, conscientious manner in which the court in
this case determined to grant the mistrial -- as evidenced by the
attached detailed trial court opinion reciting the court's contempora-
neous reasoning -- there can be no question that the state trial court's
judgment is entitled at least to the same"special respect" accorded the
state trial court's ruling in Arizona, which read in full:
_________________________________________________________________

this was some sort of a pattern and his concern for what had
happened had reached --

Before counsel could complete his thought, Ms. Goodwin interrupted
him:

Your Honor, I object to Mr. Delgado saying what was in Judge
Johnson's mind, that it is not reflected in this record. I move to
strike all of what he thinks Judge Johnson was thinking.

J.A. at 428-29 (emphasis added). Because the witness "moved on," there
was no occasion for the court to rule on the motion to strike.

84
 Based upon defense counsel's remarks in his opening state-
ment concerning the Arizona Supreme Court opinion and its
effect for the reasons for the new trial, the motion for mis-
trial will be granted.

Quoted in Arizona v. Washington, 546 F.2d 829, 831 (9th Cir.), rev'd,
434 U.S. 497 (1977); see also Joint Appendix, Arizona v.
Washington, U.S. Supreme Court, No. 76-1168 at 271-72 (1977).

*****

Arizona was written precisely to prevent our trial courts, who are
"far more `conversant with the factors relevant to the determination'
[of potential jury bias] than any reviewing court can possibly be," 434
U.S. at 514, from being second-guessed by appellate courts engaged
in the kind of rank speculation that the majority engages in today. If
Arizona means anything at all, it must mean that a federal appellate
court in habeas should never find itself in the posture of comparing
and contrasting individual crime scene photographs wrongfully
placed before a jury by defense counsel and determining de novo
whether those photographs might have been admitted and whether
they might have somehow prejudiced the jury in a trial about which
the appellate court knows little to nothing. As the majority so ironi-
cally, if not presciently, assures, "[i]f counsel were to air evidence
that might tend to improperly bias the jury or adversely affect its
impartiality, any reviewing court applying the teachings of Arizona v.
Washington would conclude that the trial judge acted within his dis-
cretion in granting a mistrial." Ante at 32.

Because, applying the teachings of Arizona, I believe that the
majority is destined for reversal, if not summary reversal, I dissent.

Judges Russell, Widener, Wilkinson, and Niemeyer concur in this
opinion.

85
APPENDIX

STATE OF SOUTH CAROLINA
COUNTY OF NEWBERRY
THE COURT OF
GENERAL SESSIONS
The State,
EIGHTH JUDICIAL
vs. CIRCUIT

CASE NO.:
James Swain, Wayland Gilliam, Jr.
and Pamela Owings,
Defendants.

AMENDED ORDER

This matter comes before me on the motion of attorneys for the
three defendants captioned above, James Swain, Wayland Gilliam, Jr.
and Pamela Owings. The Defendants have moved this Court pursuant
to the prohibition against double jeopardy found in the Fifth Amend-
ment to the United States Constitution and Article 1, Section 12, of
the South Carolina Constitution, to dismiss the charges pressed
against them in the General Sessions Court of Newberry County. All
three defendants are charged with Murder and Lynching in the First
Degree. Additionally, Defendant Swain, alone, is charged with
Assault with Intent to Kill, and Defendant Gilliam, alone, is charged
with Indecent Exposure. All of these indictments arise out of the same
factual setting. Indictment 93-GS-36-70 charges Murder, Lynching
and Assault with Intent to Kill and Indictment 93-GS-36-183 charges
Indecent Exposure. This Court held a hearing on Tuesday, April 11,
1995, wherein counsel for the defendants and the state were present
and argued their respective positions in this matter.

It must be noted at the outset that the State moved for a mistrial
only after this Court brought certain matters to the attention of the
parties. More specifically, this Court observed that certain physical
items, namely photographs of the murder scene, had been taken by
the jury and reviewed by each of the jurors without these photographs
being admitted into evidence. The Defendants' argument notwith-
standing, it is of no consequence whether the Defendants either inad-

86
vertently, intentionally or mistakenly allowed this activity to occur.
The principle remains the same: Exhibits that had not been introduced
into evidence were in fact given to the jury for their review without
proper documentation and prior to being finally passed on by this
Court before being admitted into evidence.

The South Carolina Supreme Court in State v. Alexander, 303 S.C.
377, 401 S.E.2d 146 (1991) adopted Federal Rule of Evidence 403
which provides "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by . . . confusion of the
issues, or misleading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative evidence." This
Court was never given the opportunity to make a determination pursu-
ant to Rule 403 on the admissibility of the questioned photographs
because of the actions of defense counsel. Counsel for one of the
three defendants has acknowledged that it was possibly his action that
allowed such an occurrence. "Now that was certainly sloppy house-
keeping and I take responsibility for that, but that was certainly not
a tactical move to put anything before the jury." (Transcript at Page
41). In the same way that a Motion In Limine does not ultimately
decide the admissibility of evidence because of changed circum-
stances occurring during a trial, State v. Flood, 295 S.C. 518, 369
S.E.2d 842 (1988), this Court could not foresee if the questioned pho-
tographs would have been offered and, if offered, then admitted into
evidence. Contrast the Court's remarks on page 12 line 25 through
page 13 line 4 with the Court's comments on page 46 lines 6-9 of the
Transcript "And I don't know of anyway at this point in time, even
if they were later offered and admitted, at this point in time I have no
way of guessing that".

This Court is under an obligation to provide a fair and just trial for
both the defendants and for the state. (See Transcript at page 46). This
Court was left with the dilemma as to how to proceed after it was
brought to its attention that evidence had been published to the jury
that had not been properly admitted. It concerned this Court to the
extent that it was brought to the attention of the litigants for a hearing
as to how best then to proceed.

The Defendants argue that this Court did not consider any other
reasonable alternative except to grant the State's Mistrial Motion after

87
the publication to the jury of the questioned photographs. To the con-
trary, recognizing that the jury in this case had been empaneled for
little over a day, the Court considered reasonable alternatives by call-
ing out the jury foreman and inquiring with him in open court as to
the extent of the publication of the questioned photographs. As noted
on Transcript page 43 at line 9 the Court brought out the foreman of
the jury, Mr. William C. Cunningham, and queried him as to what had
been observed by himself as well as other members of the jury. Mr.
Cunningham acknowledged that all the photographs had been circu-
lated throughout the jury.

Mr. Cunningham: "Yes Sir, to my knowledge they all had."

The Court: "All right, Sir. To your knowledge, all of them had as
far as you know?"

Mr. Cunningham: "Yes Sir. As far as I know."

The Court: "All right, Sir. That is what I needed to know. You
can step back into the jury room."

Transcript page 44 lines 3 through 7.

Further, the Court then inquired of the court reporter whether or not
the Court's understanding of the extent of the publicity was in fact
accurate. (See Transcript at page 45). The court reporter confirmed by
responding "Yes Sir. It was a big stack. Those were included in the
group that were over there." (Transcript page 45, lines 4-5). It was the
Court's feeling that because of the nature of the exhibits and the
extent of the publication to the jury that no curative instruction could
be issued. This Court's concern about a curative instruction is implic-
itly reflected in the Transcript at page 46 lines 6-9. Unlike the Court
in United States v. Sloan, 36 F.3d 386 (4th Cir. 1994) a case cited by
the defendants as supporting their position, this Court did consider the
alternative of a curative instruction. It was this Court's decision at the
time, however, that a curative instruction would simply highlight and
compound the error already existent.

The Court did not engage in any sua sponte determination of a mis-
trial, see State v. Prince, ___ S.C. ___, 301 S.E.2d 401 (1983) but

88
rather, allowed all counsel in this matter "full opportunity to explain
their positions". (Transcript page 45, lines 9-11). It was of grave con-
cern to this Court that this prejudicial occurrence had transpired and
this Court wished to hear from each of defendants' counsel as to their
feelings before ruling on the Motion for a Mistrial. See Transcript
pages 39-41. At no time did any counsel for the defendants ask for
more opportunity to be heard or to review other legal precedent prior
to this Court's ruling.

"When a mistrial is declared over a criminal defendant's objection,
retrial is permitted only when 'there is a manifest necessity for the act
or the ends of public justice would otherwise be defeated.'" United
States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824) as
cited in United States v. Sloan, supra. The Sloan court noted that this
bedrock principle has been reiterated and followed consistently in the
intervening 171 years. See, e.g., Arizona v. Washington, 434 U.S.
497, Illinois v. Somerville, 410 U.S. 458 (1973) and United States v.
Jorn, 400 U.S. 470 (1971). As noted by the Somerville court, a trial
judge has "broad discretion" in determining whether manifest neces-
sity requires declaration of a mistrial. While this Court "need not
make an explicit finding of manifest necessity" Sloan, id. at 394, cit-
ing Arizona v. Washington, id., the transcript adequately reflects that
the court was so concerned with the origin of the prejudice as well as
the extent of the publication to the jury that an implicit finding of
manifest necessity exists. A "manifest necessity" standard cannot be
"applied mechanically" Jorn, 400 U.S. at 487 and this Court declines
to conclude that it acted "irrationally or irresponsibly", Arizona v
Washington, 434 U.S. at 514, in making its decision to grant a mis-
trial. "Each case must turn on its facts", United States v. Sartori, 730
F.2d 973, 976 (4th Cir. 1984).

The twelve jurors had seen and touched physical evidence not
properly admitted. While the defendants claim the photographs would
have been introduced later, this is speculative and conjectural. This
was not merely an opening statement by an adversary that could have
been cured by any instruction of this Court as was the case in United
States v. Sloan, id. Moreover, Defendants have not produced a case
where a mistrial was declared improvidently granted when inadmissi-
ble evidence by the way of photographs had been published to the
jury.

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Moreover, it is more than "manifest necessity" which requires the
granting of a mistrial in this case. The public interest in and its right
to a fair trial that is designed to end in a just judgment further requires
that this Court deny the Defendants' Motion to Dismiss under the
Fifth Amendment. It would be unfair, unjust and improper under
these circumstances, which may have come about as a direct result of
actions of defense counsel, to reward the defendants by granting their
Motion to Dismiss. "The interest of the public in seeing that a crimi-
nal prosecution proceed to verdict, either of acquittal or conviction,
need not be forsaken by the formulation or application of rigid rules
that necessarily preclude the vindication of that interest" Illinois v.
Somerville, 410 U.S. at 463, 93 S.C. at 1070. The Court's broad dis-
cretion was exercised under the facts existent and a mistrial was, of
necessity, declared.

"Where for reasons deemed compelling by the trial judge, who is
best situated intelligently to make such a decision, the ends of sub-
stantial justice cannot be obtained without discontinuing a trial, a mis-
trial may be declared without the defendant's consent and even over
his objection, and he may be retried consistently with the Fifth
Amendment." State v. Gamble, ___ S.C. ___, 272 S.E.2d 796 (1980)
quoting Gori v. United States, 367 U.S. 364, 368, 81 S.C. 1523, 1526,
6 L.Ed.2d 901 (1961). This Court will not second guess itself now,
four months later, by what it observed, heard and felt at the time of
its initial ruling. The Defendants' Motion to Dismiss the Indictments
and to prosecution on the ground of double jeopardy is denied.

AND IT IS SO ORDERED.

/S/

_____________________________
James W. Johnson, Jr.
Judge--Eighth Judicial Circuit

Laurens, South Carolina
May 15, 1995

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