dissenting:
In an extraordinary decision, this court has just stayed a state trial of three defendants charged with murder and lynching, literally while the jury is hearing testimony. I dissent.
In my view, the majority has thrust itself into the affairs of the State of South Carolina in disregard of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and has, in violation of the plain command of Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), substituted its view for that of the state trial and federal district courts on the quintessential discretionary issue of whether unadmitted crime scene photographs inadvertently placed before the jury by defense counsel necessitated a mistrial. Except possibly for the three members of the court who heard argument on the stay motion for two and one-half hours on Saturday morning, no member of the en banc court has, to my knowledge, even had an opportunity to see the photographs that the court now finds as a matter of fact were likely so innocuous in the overall context of this trial that the state court’s grant of mistrial was irrational.
Other than this decision, I am unaware of even a single instance post -Younger in which a federal court of appeals has stayed a state criminal trial in progress on the grounds of a double jeopardy claim, much less reversed a state trial court and federal district court in order to do so. Even assuming that staying an ongoing state criminal trial (as opposed to one that is merely pending) is a permissible exercise of the federal judicial power, it would seem obvious that that power should not be exercised where, as here, there is no suggestion of prosecutorial or judicial misconduct, the error was committed by defense counsel, and, as found by both the state trial court and the federal district court, the inadvertent submission of the photographs to the jury raises a distinct possibility of prejudice. If under any circumstances, then under these, Younger v. Harris and Arizona v. Washington dictate that the balance be struck in favor of deference to the State of South Carolina and its courts, and that recourse for any possible double jeopardy violation await state and federal review on direct and habeas appeal from final conviction. The utter disruptive effect of this court’s intercessions in this state proceeding over the past week is already evident. Not only has much of counsels’ trial time been consumed with assorted motions, replies and arguments to this court, but we were informed only yesterday that the original trial judge has, without explanation, recused himself from the trial of this matter. This is precisely why faithful adherence to Younger and Arizona is imperative if there is to be an orderly administration of justice in a system of dual sovereigns.
I.
The facts that prompt the majority’s decision to stop this murder trial in mid-course are revealing of the extent to which the court, in my view, has transgressed the boundaries of appropriate federal judicial authority.
On December 5, 1994, defendants’ trial for murder and other charges began. On the third day of trial, the State presented the testimony of Officer Counts, who had been present at the crime scene and could identify crime scene photographs. During the defendants’ cross-examination, Officer Counts was shown what is thought to be the photographs at issue in this case. Defense counsel, however, never moved for the admission of the controverted photographs. Although the prosecution initially stated that it had no objection to the photographs, it thereafter withdrew its acquiescence when defense counsel stated that the defense was not seek*1087ing to adroit the photographs. After Counts finished testifying, the trial court recessed for lunch.
Upon returning from lunch, the trial judge discovered that defense counsel, probably inadvertently, had placed before the jury the unadmitted photographs that presumably were shown to Counts and that are at issue in this appeal. The State thereafter moved for a mistrial. The trial court gave all parties what he later described as a “full opportunity to explain their positions,” Amended Order of May 15,1995, at 4, and after considering and rejecting the alternatives suggests ed by defense counsel, declared a mistrial.
On March 6, 1995, defendants filed a motion in state court arguing that double jeopardy barred retrial. In an order dated May 15, 1995, the state court rejected the double jeopardy claim, finding that “manifest necessity” required the declaration of a mistrial. In so doing, the court made a specific finding of prejudice to the government as a result of defense counsel’s actions, id. at 4, 5, and explained in detail why it rejected the alternatives of a curative instruction or a recall of the witness to allow defense counsel to introduce the photographs. After the South Carolina Supreme Court dismissed defendants’ appeal without prejudice as interlocutory, defendants sought federal habeas review as well as a stay of state criminal proceedings to allow the district court to adjudicate the double jeopardy claim.
On July 10, 1995, the district court, after oral argument, denied the defendants’ request for a stay. The district court found that the defendants “have virtually no likelihood of success on the merits of their double jeopardy claim.” Order at 7. The court specifically determined that the trial judge had found that defense counsel was responsible for the jury viewing unadmitted photographs and that the trial was terminated due to “manifest necessity.” The district court denied the motion for a stay on the specific grounds of possible prejudice to the government. The court found:
[Ijssues 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 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.
Id. at 5.
The defendants appealed this order to a panel of the Fourth Circuit. On Saturday, July 15, 1995, the panel held a two and one-half hour hearing at which both the government and defense counsel candidly answered the panel’s questions. During this argument, the reasonableness of the district court’s decision to grant a mistrial became even more apparent. Upon pointed questioning from the panel, defense counsel all but conceded that the unadmitted photographs were prejudicial to the government’s ease because they are close-ups of the crime scene which, due to the visibility of what appears to be blood at the particular location depicted, support the defense theory of self-defense or provocation.
In response to the panel’s questions, the State initially said that the photographs were not “inherently prejudicial.” But as became clear upon further questioning, the State had misunderstood the initial question. The State explained in response to a follow-up question that it meant by its earlier response that the photographs were not “inflammatory” on their face, that is, the photographs would not incite the passions of the jury. The State then went on to explain in painstaking detail precisely how the photographs could prejudice its case. Specifically, it explained that the close-up crime scene photographs that were inadvertently placed before the jury — the only close-up photographs ever seen by the jury — actually tended to confirm the existence of blood at the location, whereas one could not confirm from the admitted photographs that blood existed at that location. This is because the unadmitted photographs show several small red dots that are not visible on any of the admitted photographs. As the State explained in its supplemental filings, these dots, which appear to a casual observer to be blood, have never been tested by a serologist to confirm that they *1088are in fact blood. Thus, the government’s case could easily be prejudiced by the jury’s natural but potentially erroneous belief that the dots are blood. And, as both parties concede, the presence or absence of blood at that precise location is central to the case, given the defenses of provocation and self-defense. The defense counsel candidly admitted at the hearing that it was for this very reason that the photographs were important to its case and for this reason that the defense wanted the photographs before the jury.
At argument, the defense made much of its belief that the unadmitted photographs would have been admissible through a recall of Officer Counts, and, upon questioning from the panel, the State likewise speculated that the photographs would be admissible under South Carolina law. This speculation by the parties, however, is of no moment, since the ultimate determination of admissibility rests with the trial judge and must be made with an appreciation of the whole trial and whether the photographs would be unduly prejudicial. The parties simply are not in a position to know whether the photographs would have been admissible. The trial judge, both immediately prior to declaring a mistrial and in his later decision rejecting the defendants’ double jeopardy claims, specifically noted his concerns about the admissibility of the evidence and the need to make a determination of admissibility contemporaneously with the offering of evidence.
Finally, defense counsel maintained that any prejudice could have been cured by limiting instructions from the court to the jury. This is the identical argument that was made in Arizona, and, as the Court there held, although some trial courts might choose that route, that alternative is not mandated and a trial court’s decision to declare a mistrial instead must be accorded “the highest degree of respect.” 434 U.S. at 511, 98 S.Ct. at 833. The state trial court quite reasonably could have concluded, and undoubtedly did, that if the jury saw the photographs before the foundation testimony for their admission, it might be predisposed to misinterpret them. Or the court could have decided that the jury might disregard any attempted curative instructions and simply believe their own interpretations of the photographs. As Arizona held, that decision is for the trial court to make and not for us to second-guess.
Accordingly, the panel voted to affirm the district court and deny the stay.
On Monday, July 17, the same day that defendants’ retrial began, defense counsel moved for Reconsideration of Stay en banc. After the jury was empaneled, the prosecution began presenting its case on Tuesday, July 18. This afternoon, four days into the trial, and presumably while the jury is in the midst of hearing testimony, our court granted the stay, immediately enjoining the state court proceeding.
II.
On this record, the only way for the majority to reach the conclusion that it does is for it to disregard Arizona v. Washington. In Arizona, notwithstanding that the trial court made no express finding of “manifest necessity,” did not consider the available alternatives to mistrial, and did not articulate on the record its reasons for declaring a mistrial, the Supreme Court held that the trial court’s grant of a mistrial was properly within its discretion because the grounds for the court’s ruling were apparent from the record. Arizona is directly controlling in the instant case because it, like this case, did not involve prosecutorial misconduct, but rather improper conduct on the part of defense counsel. In Arizona, tije mistrial was declared because of improper opening statements by defense counsel; in the cas e-pub judice, the mistrial was declared because of defense counsel’s prejudicial error. And, in both cases, a federal court on habeas review substituted its judgment for that of the trial court in deciding whether a mistrial was properly granted. Arizona confirms the illegitimacy of second-guessing a state court finding by a federal court on habeas review following conviction, and a fortiori on extraordinary motion during the actual trial of the case in state court.
Arizona stressed that “there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding *1089whether or not ‘manifest necessity’ justifies a discharge of the jury.” 434 U.S. at 509, 98 S.Ct. at 832. Significantly as it bears upon the error committed by the majority in the instant case, the Court explained:
[T]he extent of the possible bias cannot be measured, and ... the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not “necessary.” Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.
Id. at 511, 98 S.Ct. at 833 (emphasis added). The Court went on to hold specifically that the absence of a finding of “manifest necessity,” the failure to articulate the reasons for the mistrial, and the failure to consider alternatives to mistrial explicitly, did not render the trial court’s mistrial order invalid, id. at 501-03, 516, 98 S.Ct. at 828-29, 835-36, and that the essential inquiry, rather, is whether the trial court acted “irrationally or irresponsibly” in granting the mistrial, id. at 514-15, 98 S.Ct. at 835.
Not only does the court today ignore the clear command of Arizona to accord the trial court the widest discretion in its finding of a mistrial, it does so in a way and as to an issue that renders its decision nothing short of remarkable. In order for it to grant this stay, the court disregards the finding of fact by the state trial court that the improper submission of the photographs was prejudicial, see Amended Order of May 15, 1995, at 4-5, it disregards the same finding of fact by the federal district court, see Order at 5, and it — as an appellate court — makes the particular finding that thei’e likely is no basis for finding the photographs prejudicial.
It would be hard to imagine a decision that is more appropriately committed to the trial court’s discretion, and therefore effectively immune from extraordinary equitable federal appellate review, than whether photographs improperly placed before the jury were in fact unduly prejudicial. This is the quintessential discretionary decision, appropriately all but unreviewable by an appellate court on extraordinary motion, if not on appeal following final conviction. Most of the members of the court have not even had an opportunity to see the photographs in question. We do not have the photographs in our possession, and few of us even have reproductions of them. We certainly do not appreciate the various ways in which the photographs may be used by the respective parties. Unlike the trial court that has heard this case from its inception, we have no understanding whatsoever of the prosecution’s case or the defense strategy. And it goes without saying that we have no idea of the substantive context (insofar as the unfolding of the trial is concerned) in which these photographs came before the jury.
The Supreme Court held in Arizona, where the prejudice from improper opening statements by defense counsel was at issue— an issue indistinguishable from the issue before us, in terms of the capacity for meaningful review by a federal appellate tribunal— that we must rely upon the state trial courts for such fact-intensive determinations. In the face of this clear holding, we should at the very least abstain from engaging in the kind of fact-finding engaged in by the majority in the course of finding that the trial court may have acted irrationally in declaring a mistrial.
III.
If the directives of Arizona v. Washington were not alone sufficient to require that we stay our hand in this matter, then the unmistakable command of Younger v. Harris should be.12 Younger v. Harris announced a *1090bedrock principle that, absent “extraordinary circumstances,” federal courts should not enjoin pending state criminal proceedings. 401 U.S. at 53-54, 91 S.Ct. at 755. Younger is not simply an interesting exhortation; it is grounded in “the basic doctrine of equity jurisprudence that courts 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, more importantly, it is grounded in considerations of comity, “born of ... Federalism.” Id. at 43-45, 91 S.Ct. at 751. Since Younger, the principle of judicial abstention has been extended to include state civil litigation, see, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), and even state administrative proceedings, see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986). But this case does not implicate either of these extensions. This ease rests at the very core of the original Younger holding — a federal appellate court stay of an ongoing state criminal proceeding.
The majority believes — despite the contrary conclusion in Younger — that such a stay is appropriate. Some federal courts admittedly have held, usually obliquely, that double jeopardy challenges can be exempt from the prohibition of Younger,13 But these cases generally address claims of prosecuto-rial misconduct. Regardless of their wisdom in that context, in the instant case there is no allegation of prosecutorial misconduct or bad faith. The mistrial was brought about by defense counsel’s own inadvertence.
That the prophylactic shield of the “manifest necessity” doctrine is unnecessary where, as here, the primary danger of prose-cutorial misconduct and manipulation that it seeks to prevent is already absent, is brought into sharp relief by Divans v. California, 439 U.S. 1367, 99 S.Ct. 39, 58 L.Ed.2d 75 (Rehnquist, Circuit Justice 1978). In Divans, then-justice Rehnquist denied a motion to stay a criminal proceeding because there was no allegation of bad faith and the prosecution’s “error resulting in the court’s mistrial declaration was not intentionally committed by the prosecution for the purpose of provoking applicant’s mistrial request.” Id. at 1367, 99 S.Ct. at 39. If the fact that the precipitating error by the prosecution was not committed in bad faith is determinative for denying a stay of a criminal proceeding, then surely the fact in the instant case that the error was not the prosecution’s at all — but was the defendants’ — should be similarly decisive. This is precisely the kind of situation contemplated in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), when the Court observed that, “a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”
IV.
Given the express findings of prejudice by both the state trial court and federal district court, and the obvious soundness of these *1091judgments when measured against an abuse-of-discretion standard, a federal appellate court has no business injecting itself on this issue mid-trial, especially given that there is no suggestion of misconduct by the prosecution or the court and the error is conceded to be that of the defense. Given the deference we are required to accord the state judicial process under Younger v. Harris, our assumption of power is all the more unjustified.
At bottom, the majority simply disagrees with the trial court’s assessment of the prejudice caused by defense counsel’s mistake in placing the unadmitted photographs before the jury. However, whether the trial court was correct, or whether we would have done it differently, are not the proper questions, as Arizona makes plain: “The interest in orderly, impartial procedure would be impaired if [trial courts] were deterred from exercising th[eir] power [to declare mistrials in appropriate cases] by a concern that any time a reviewing court disagreed with [the court’s] assessment of the trial situation a retrial would automatically be barred.” 434 U.S. at 513, 98 S.Ct. at 834. The question is whether the trial court’s action was irrational or irresponsible. As even defense counsel was forced to concede at argument, this, it most assuredly was not.
We should be under no illusion but that the court’s stay of this ongoing state criminal trial, unless vacated on appeal, sets the stage for the full release — without even a trial — of three individuals that have been charged by the State with the heinous offenses of murder and lynching. The law does not require this injustice, and indeed, forbids it.
DONALD RUSSELL, WIDENER, WILKINSON, and NIEMEYER, JJ., join this dissent.The foregoing portion of this opinion was released on Thursday afternoon, along with this court’s order staying the ongoing state criminal trial. I do not hereby amend the foregoing portion of my opinion, in which a number of my colleagues join, because I do not believe it appropriate to do so after the district court has proceeded upon our order. I write briefly here on my own behalf to record the events that have transpired since our unprecedented action last Thursday staying the State’s murder trial and to express my concern over the conduct before this court of the Attorney General of South Carolina, the Solicitor, and the officials charged with the prosecution of this case.
When the en banc court stayed the ongoing criminal proceedings on Thursday, four days into the trial, the State of South Carolina had a right to an immediate appeal of that decision to the Chief Justice, sitting as Circuit Justice. Pursuant to customary Fourth Circuit practice, the en banc order and accompanying opinions had already been forwarded to the Supreme Court. When the en banc order was issued, it was accompanied by two lengthy and emphatic dissents, and three more dissents followed shortly thereafter. Nevertheless, the prosecution declined to appeal.
At 3:00 p.m. on Friday, the federal district court began what devolved into an eight-hour hearing on the double jeopardy claim. Shortly before midnight, the district court granted a writ of habeas corpus, barring the trial of the three defendants in this ease. No opinion has yet to issue from the district court explaining its decision.
Within minutes of that decision, the state trial court, acting on the order of the federal district court, called in the sequestered jury and released the jurors pending further notice.
Again, the State had the right to seek in this court an immediate stay of the district court’s decision and of the impending release of the three accused murderers. Of course, had the en banc court denied that stay, the State would again have had a right to an immediate appeal to the Chief Justice. Inexplicably, the prosecution again declined to petition either this court or the Chief Justice for emergency relief from the extraordinary writ issued by the district court.
Thus, not even in the face of the imminent release into the South Carolina public, without trial, of these three defendants charged by the State with the heinous offenses of murder and lynching, did the Attorney General, Solicitor, or the individual prosecutors seek a stay of the remarkable decisions that *1092caused this injustice — either in this court or in the Supreme Court of the United States. This, despite the fact that these state officials sought the mistrial in the state court, and defended the need for the mistrial before the federal district court, before a panel of this court specially convened to hear the appeal, before the entire court sitting en banc to hear this extraordinary motion, and before the federal district court on remand. And this, despite the fact that the trial court’s discretionary decision to declare a mistrial garnered the support of five members of this court in five separate dissenting opinions to this court’s order of stay, which carefully detailed the potential prejudice suffered by the prosecution and the importance of the necessary discretion afforded the trial court in order to preserve the integrity of its proceedings.
Perhaps there are other reasons for the State’s incomprehensible decisions not even to seek to vacate our en banc stay of the state trial or to stay the district court’s grant of the writ of habeas corpus, but I can think of only three reasons the State might countenance the federal court’s intrusion into the affairs of its courts, much less acquiesce in the release of these murder defendants into the citizenry of South Carolina. Either the State does not believe that this prosecution is meritorious — on either its substantive merits or because of the bar of double jeopardy — in which case the State proceeded in bad faith before this court and the federal district court. Or it was cowered by this court’s order, issued without majority opinion, into thinking that in fact retrial of the defendants would be barred by the Double Jeopardy Clause. Or the decision whether to prosecute this case faithfully has become ensnared within the prosecutorial apparatus, in state, local, or perhaps even personal politics. I can think of no other reason for the State’s unfathomable decision not even to challenge these federal decisions, each of which completely usurped the sovereign power of the State of South Carolina and effectively ordered the outright release of three murder defendants, without trial, upon the citizens of the State.
If there is another explanation for what appears to be this complete abdication of responsibility by these officials, then it is incumbent upon these officials to provide it to the court. Whether or not these officials owe any explanation to the people of South Carolina or are otherwise accountable to the people of that State, they are accountable as officers of the court for their actions in connection with the proceedings before us. If the prosecutors intend to pursue this murder prosecution, they have an obligation to do so zealously; if, for whatever reason, they do not intend to fully represent the interests of the State of South Carolina in this prosecution, then they should dismiss the indictments. As it now stands, the State, because of its passivity, has left the impression that the integrity of the proceedings before the courts of this Circuit has been seriously compromised in this matter of utmost importance.
. It is doubtful that the State, in a technical sense, can "waive” the Younger prohibition. Cf. Swisher v. Brady, 438 U.S. 204, 213 n. 11, 98 S.Ct. 2699, 2705 n. 11, 57 L.Ed.2d 705 (1978) (exercising discretion to decline to consider the Younger issue because the State voluntarily submitted to the federal forum). In any event, in this case the State emphatically presses the Younger issue. Resp’ts-Appellees Resp. to Mot. for Stay at 18 ("As in Sparks v. Garrison [, 446 F.Supp. 649 (M.D.N.C.1978), aff'd 612 F.2d 1310 (4th Cir.1979) (denying request for federal inter*1090vention in a state criminal proceeding on Younger grounds) ], the extraordinary circumstances justifying federal court interference of state criminal proceedings have not been shown.”).
. See, e.g., Gully v. Kunzman, 592 F.2d 283, 286-87 (6th Cir.), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979); Jackson v. Justices of Superior Court of Mass., 549 F.2d 215, 216 n. 1 (1st Cir.), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 370 (1977); Foster v. Murphy, 686 F.Supp. 471, 474 (S.D.N.Y.1988). But see Rasmussen v. White, 502 F.Supp. 237, 240 (E.D.Tex.1980) ("The mandate of Younger is broad and clear; federal courts are not to interfere with pending state criminal actions absent a strong showing of bad faith, harassment, or other extraordinary circumstances. The mere fact that a petitioner raises a double jeopardy claim does not, by itself, raise the implication that the prosecution is conducted in bad faith to harass the petitioner, or that extraordinary circumstances are present.”); Evans v. Court of Common Pleas, 1990 WL 223071, at *13 (E.D.Pa.1990) ("[T]his Court holds that a claim of double jeopardy, without more, is insufficient to overcome principles of federalism which dictate respect for the authority and ability of state courts to protect constitutional rights in the first instance.”), aff'd 959 F.2d 1227 (3d Cir.1992), cert. dismissed, - U.S. -, 113 S.Ct. 1071, 122 L.Ed.2d 498 (1993).