dissenting:
I find it most unfortunate that this court has chosen to intervene and enjoin a state criminal proceeding in the circumstances of this case. This action is a bold affront to the principles of comity and federalism, and one which manifests no deference to the discretion of the state trial judge and little confidence in the ability of the state judicial system to resolve the issues. Furthermore, the majority’s action mechanically imposes the Double Jeopardy Clause without taking into account the nature of the protection and the competing interests involved. I dissent from this decision.
The double jeopardy protection granted by the Fifth Amendment prohibits a second trial “for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). The Supreme Court has explained, however, that a retrial because of trial error, as in the *1085circumstances before us, does not violate the Double Jeopardy Clause:
[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its ease. As such, it implies nothing with respect to the guilt or innocence of the defendant.
Id. at 15, 98 S.Ct. at 2149. See also Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.Ct. 285, 290, 102 L.Ed.2d 265 (1988). The Court has stated that the protection against affording the prosecution a second opportunity to supply evidence which it failed to present initially lies “at the core of the [Double Jeopardy] Clause’s protections.” Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982). The public interest in obtaining one complete prosecution to judgment for a criminal offense, however, is also firmly protected in double jeopardy jurisprudence. See, e.g., Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (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 rules that necessarily preclude the vindication of that interest”).
The majority in this case determine that a mistrial declared by the state trial judge before completion of the trial — when photographs neither offered nor admitted into evidence were shown to the jury — was such an abuse of trial court discretion that the petitioner’s writ of habeas corpus must be entered now to enjoin further prosecution. There can be no doubt that displaying to a jury photographs that have neither been offered nor been admitted into evidence is trial error. It was not extraordinary therefore for the trial judge to have concluded that a mistrial was appropriate when the jury saw evidence that had not been admitted, even though the evidence might have been admissible.
Beyond circumstances where a defendant has already been acquitted or might have been acquitted in the first trial because of the inadequacy of the government’s evidence, the Supreme Court has been reluctant to deny the state the opportunity to prosecute a second trial. This is so even when the trial judge has granted a new trial too hastily or for reasons that were not entirely clear on the record. See Gori v. United States, 367 U.S. 364, 366, 81 S.Ct. 1523, 1525, 6 L.Ed.2d 901 (1961). In Gori, while commenting about the trial judge’s declaration of a mistrial sua sponte during the direct examination of the government’s fourth witness, the Supreme Court observed, “It is unclear what reasons caused the court to take this action, which the Court of Appeals characterized as ‘over-assiduous’ and criticized as premature.” Id. at 365-66, 81 S.Ct. at 1524-25. Despite that observation, the Court affirmed the retrial of the defendant, stating:
Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.... [W]e have consistently declined to scrutinize with sharp surveillance the exercise of that discretion.
Id. at 368, 81 S.Ct. at 1526. The decision to grant a mistrial rests in the discretion of the trial judge, and so long as that discretion is not abused, the state can re-prosecute the defendant. The Supreme Court instructs that the trial judge’s judgment is entitled to “great deference” and must be accorded “the highest degree of respect.” Arizona v. Washington, 434 U.S. 497, 514, 511, 98 S.Ct. 824, 835, 833, 54 L.Ed.2d 717 (1978).
In this case I believe that the majority have substituted their discretion for that of the trial judge to reach a different conclusion. That, however, is not the exercise appropriate under the jurisprudence of the Double Jeopardy Clause. Unless we can conclude, while according great deference and the highest degree of respect to the trial judge, that he abused his discretion in granting a mistrial, we should allow the countervailing public interest of permitting the state to bring the defendant to justice to control. When core evidence, depicting blood at the murder scene, is impermissibly presented to the jury through photographs never offered nor admitted into evidence, I cannot conclude *1086that the trial judge could not automatically thereafter declare a mistrial. By substituting their judgment for that of the trial judge, the majority now put at risk any ability of the prosecution to bring to justice a defendant charged with murder. The double jeopardy protection does not reach so far. I therefore dissent. I also join the dissenting opinions of Judge Wilkinson and Judge Lut-tig.
DONALD RUSSELL, WIDENER, WILKINSON and LUTTIG, JJ., join this dissent.