dissenting:
I join Judge Luttig’s thorough dissenting opinion. I write simply to express my con*1084cern at the step that the en banc court has taken. The court has already wrought havoc in the state proceedings in this case. The federal petition has forced the state trial judge to recuse himself for no other reason than the fact that his ruling on the mistrial was placed in dispute by the federal habeas petition. In addition, attorneys have been arguing before this court questions with regard to the admission of evidence and the prejudicial nature of it at the very time the state proceedings were ongoing. Any observer would be pardoned for believing that this trial has proceeded on parallel state and federal tracks.
The en banc court has further stayed state proceedings and second guessed a state trial judge without argument and with precious little opportunity to review the disputed evidence, much less to understand it in the context of a total trial. This course of action runs counter to basic values of comity. The federal intervention itself comes on an issue that the state supreme court had dismissed as interlocutory. The disruption is also not without its practical consequences. Intervention on the part of this en banc court takes control of trials out of the hands of the state judiciary. After this ruling, any state judge would have to think twice before granting a mistrial, even where there is good reason to do so.
Here there was good reason. A mistrial was granted due to no fault of the prosecution. Defense counsel does not even contend that there was a hint of prosecutorial bad faith. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). A trial judge was acting to protect nothing more than the integrity of evidentiary admissions. That process ensures a proper foundation is laid for the admission of evidence, and that the same is duly authenticated. It serves notice to all parties and participants in a trial of what is properly before the jury and what constitutes the record for appeal.
Here, defense counsel concededly put before the jury materials that had never been admitted into evidence. While there has been a prolonged dispute on the relevance and prejudicial effect of what was improperly admitted, the unsuitability of the question for federal habeas review at this point should be apparent. The bottom line is that we have undercut a state trial judge seeking to safeguard the most basic rule of evidence and we have permitted counsel to secure the dismissal of a murder prosecution as a result of counsel’s own mistakes.
If the defendants had been acquitted, we would have an entirely different case. As it is, this grant of a mistrial is squarely governed by Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), which contains no less than five separate warnings to the inferior federal courts to accord respect and deference to the difficult and discretionary decisions that the state trial bench must face. Judge Luttig has ably canvassed the Washington decision. I am fully in accord with his conclusion that it dictates our restraint. If the light before us is not red, it is at least the deepest amber, and the en banc court has ignored every one of its cautionary signals.
DONALD RUSSELL, WIDENER, NIEMEYER and LUTTIG, JJ., join this dissent.