dissenting:
I dissent from the denial of the stay of the district court order granting the writ of ha-beas corpus. I would remand this case to the district court with immediate directions to dismiss the petition. The en banc court’s interference with this ongoing state criminal trial must cease.
When this matter was previously before this court, five different judges issued five separate dissenting opinions stating their objections to staying the state criminal trial in this case. We viewed that stay as a step of unprecedented gravity and one that would severely impair the administration of criminal justice within this circuit. Now that the writ has been granted, I am reconfirmed in that assessment. I thought this sort of interference in the processes of state criminal justice had been forbidden since the time that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), limited Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), to instances where there had been some showing of pros-ecutorial bad faith.
Here there was no prosecutorial bad faith. The district court found “nothing in the record to indicate that the prosecutors acted with bad faith or improper motive in moving for a mistrial ...” Further, the district court credited under 28 U.S.C. § 2254(d) the state court’s finding that it was defense counsel that caused the photographs to be improperly placed before the state trial jury. These findings should have led to the dismissal of the petition and the resumption of the state court proceedings. Instead, the writ was granted, and the en banc court has denied the state’s petition for a stay. Three defendants charged with the heinous offenses of murder and lynching thus will not face judgment of their peers. Moreover, defense counsel has secured the dismissal of a murder prosecution through counsel’s own mistakes.
This action is an affront to federalism. It casts an undeserved vote of no confidence in state judiciaries (see dissenting opinion of Niemeyer, J.). When the costs in federal-state relations are added to the costs of the aborted criminal prosecutions, the sum is *293staggering. An itemized accounting shows the following:
A state trial judge has recused himself for no other reason than that this federal habeas petition was brought. Attorneys have argued repeatedly and often simultaneously before state and federal court about the relevance and the prejudicial effect of evidence in an ongoing state proceeding. An en banc court overturned a panel decision and stayed state proceedings without hearing argument and with far less than adequate opportunity to review the disputed photographs. A state jury was sent home and a state trial was indefinitely suspended by virtue of the federal ruling, and, of course, the federal district court entered orders first denying, and, then, granting the writ. The federal intervention came, thick and furious, on an issue that the state supreme court had dismissed as interlocutory. As a result of these proceedings, the state trial remains in abeyance, thus laying the ground for yet another mistrial, this one due to the actions of this court.
Even now, the confusion refuses to abate. On July 28, oral argument was set before the en banc court for September 26th, 1995. In the meantime, the state proceeding continues in limbo. The jury was sent home after presentation of the prosecution’s case. What the jurors will read or learn about this case during the pendency of this court’s proceedings is anybody’s guess. Although the state trial judge properly instructed the jurors not to read about or discuss the case, any further decision of this court will be a minimum of two months in coming, and the jury has, understandably, not been sequestered for that period. The problems are worsening, not lessening. I do not envy the state court that tries to pick up the pieces after the federal judiciary has had its final say.
I say this not to point any finger of blame at my fine colleagues in the majority, but to underscore the serious difficulties that arise whenever federal judges attempt a midstream sortie into state criminal process. This action was not only ill advised; it is unprecedented. Our own precedent has found a violation of the double jeopardy provision in those instances where ‘prosecutorial error contributed to the mistrial. See, e.g. United States v. Shafer, 987 F.2d 1054, 1059 (4th Cir.1993); Harris v. Young, 607 F.2d 1081, 1085 (4th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980). The earlier majority opinion fails to note a single federal case that we have dismissed on double jeopardy grounds where a mistrial resulted solely from defense counsel’s error. Now, however, it enjoins an ongoing state trial on that basis, in the very context where principles of abstention are paramount. This is a step we have never taken. Astonishingly, we have adopted a rationale for interference in ongoing state criminal trials that is less stringent than the one undertaken for review of federal prosecutions. Although the majority justifies this in the name of protecting constitutional rights, I can only reply that our federal system is part of our constitution too.
I wish to emphasize that I find no fault with the district court, which has acquitted itself in the able and conscientious manner that this circuit has come to expect of it. The district judge at first refused to order a stay of the state criminal proceedings. Upon remand, however, the district court granted the writ. After reading this court’s remand order, the district court had little choice but to reverse course. On no less than nine occasions the en banc court emphasized its own view of the merits of the underlying claim, contending that the state court acted “precipitously”, “irresponsibly”, “abused its discretion” and “ignored an obvious and completely adequate alternative” to remedy the error. Why the en bane court even bothered to remand the case for further proceedings is a mystery to me. Even as it did so this court showed its hand, declaring that: “The undisputed facts demonstrate that the state trial judge acted without any rational justification in granting the mistrial.” It is small wonder, then, that the outcome of the hearing on remand produced a complete turnabout from the earlier result.
It is a dreadful outcome. Any decision aborting a state criminal trial would have adverse repercussions. But a decision of the en banc court cannot help but reverberate throughout the state courts of this circuit. State courts will now be required to tolerate *294errors in state criminal proceedings because the grant of a mistrial carries an unacceptable risk of federal interference.1 Without the use of this corrective, state proceedings may become more prone to error and more subject to reversal during the lengthy direct and collateral proceedings that inevitably follow any state trial on a serious criminal offense. The entire purpose of the Supreme Court’s decision in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), was to have federal courts credit the judgments of state trial courts when they face the difficult discretionary decision of whether to grant a mistrial in a ease. The Supreme Court warned that a trial judge’s determination was entitled to the “highest degree of respect ...” Id. at 511, 98 S.Ct. at 833. It underscored that warning by stressing the deference owed to the state trial judge on at least five separate occasions. The en banc court has now ignored those warnings. Instead of deference, its decision has achieved something akin to a strict scrutiny effect.
The majority has paid lip service to the decisions in Younger v. Harris and Arizona v. Washington. The practical effect of its decision, however, undermines those two Supreme Court precedents. I am unable to discern from the majority opinion any principle limiting its willingness to intervene in state criminal process. “Manifest necessity” is to be in the eye of the beholder and the eye has become that of the federal judiciary, not that of the state trial judge. Moreover, the majority suggests that all of our present problems “could have been avoided had the panel of this court or the district court simply and properly granted a temporary stay of the [state] proceeding before the trial began.” That statement misses the point. Absent extraordinary circumstances, assuredly not present here, state criminal trials are not to be placed in an on again, off again status by federal injunctions.
Here the state court granted a mistrial for the most legitimate of reasons. The trial court found that the disputed photographs had been improperly presented by defense counsel to the jury. It has now been argued on the one hand that the photographs are nothing more than cumulative and that they simply show the scene of the crime from different angles. It has been argued on the other hand that they were confusing to the jury on the critical issue of the location of the parties at the time of the shooting and that the red spots in the challenged photographs have never been determined to be human blood. This whole debate is beyond our ken. I cannot imagine that the federal judiciary has reconstituted itself as a super state trial court, and has involved itself in the minutiae of this garden variety evidentiary question.
More importantly, the trial judge sought to protect the integrity of the state’s evidentia-ry admissions process. As I explained in my earlier dissent: “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.”
The state trial court found the admission of those photographs was both prejudicial and improper. Arizona requires that we support, not undermine, its decision. But the en bane court has not supported the state’s attempt to safeguard its most basic rule of evidence. It has proceeded to undertake a remarkable exercise in hindsight marked by an indefatigable inclination to second guess. A jury of South Carolinians has not had, and may never have, a chance to decide the guilt or innocence of these defendants. This result may be a windfall for those accused of these heinous offenses, but it will not bring satisfaction to law abiding *295citizens of South Carolina, or of any other state.
Judge RUSSELL, Judge WIDENER, Judge NIEMEYER, and Judge LUTTIG join this dissent.. The majority, moreover, has created a significant strategic opportunity for counsel in overturning the state trial court ruling in this case. Improper placement of evidence before the jury by defense counsel may now redound to its own benefit in one of two ways. If, as a result of the error, a mistrial is declared over the objections of the defense, the prospect of federal interference on double jeopardy grounds is distinct. If, on the other hand, a mistrial is not declared, the improper admission of evidence can still work to the benefit of the defense. Federal interference in state criminal trials is problematic under any circumstances; it is especiaEy unfortunate when it creates a no lose proposition for one side in a state criminal case.