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, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), in a badly damaged state.
*906I.
I will first take up the damage to the Younger decision. That damage falls into two broad categories: (1) doctrinal damage to Younger, and (2) the practical damage of disruption visited upon the relationship of state and federal courts. The damage is compounded by the fact that the pronouncements in this case are those of an en banc court.
The doctrinal damage to Younger stems from the majority’s insistence on a duty on the part of federal courts to intervene in ongoing state criminal proceedings even when defense error causes the declaration 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 “[tjhere is nothing in the record to indicate that the prosecutors acted with bad faith or improper motive in moving 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, 91 S.Ct. at 752-55. 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, 91 S.Ct. at 750-52. The language of Younger makes plain that the evil sought to be remedied by federal equitable intervention was that of prosecutorial malfeasance or bad faith. Id. at 53, 91 S.Ct. at 755. The Court declared that the “fundamental policy against federal interference with state criminal prosecutions,” id. at 46, 91 S.Ct. at 751, 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, 91 S.Ct. at 755. 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 conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 677, 27 L.Ed.2d 701 (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).
The majority asserts that double jeopardy claims are an “extraordinary circumstance” warranting a departure from Younger. Younger, 401 U.S. at 54, 91 S.Ct. at 755; Perez, 401 U.S. at 85, 91 S.Ct. at 677. 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, 95 S.Ct. 1200, 1211-12, 43 L.Ed.2d 482 (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, 99 S.Ct. 2850, 61 L.Ed.2d 292 (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 *907petitioner 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, 506 U.S. 1048, 113 S.Ct. 964, 122 L.Ed.2d 121 (1993) (judicial acquittal bars retrial); Davis v. Herring, 800 F.2d 513, 519 (5th Cir.1986) (implicit jury acquittal bars retrial).1
The majority creates a broad exception to Younger abstention whenever a petitioner on federal habeas raises a claim of double jeopardy. 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 irrespective 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 example, in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), the Supreme Court prohibited retrial when a mistrial was declared due to a prosecutor’s inability to locate a critical witness of whose absence the prosecution was aware when it proceeded to trial. Id. at 735-38, 83 S.Ct. at 1034-36. 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, 98 S.Ct. at 831, only to be used to its advantage in a second prosecution.
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 prosecution 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 photographs of the crime scene that were never properly admitted into evidence. 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 extraordinary, event. See Hicks v. Miranda, 422 U.S. 332, 352, 95 S.Ct. 2281, 2293, 45 L.Ed.2d 223 (1975).
To protest generally the dangers of federal intervention into pending state proceedings fails to adequately convey the specific harm visited 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 *908state criminal proceeding. But here a criminal prosecution was far more than pending; it had proceeded 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 disruption 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 jfree from interference by federal courts.” Younger, 401 U.S. at 43, 91 S.Ct. at 750 (emphasis 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, 97 S.Ct. 1911, 1917, 52 L.Ed.2d 486 (1977), and thus creates unwarranted friction between state and federal courts at a time when state courts are, if anything, more responsible guardians of constitutional 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 canvassing 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 repeatedly, and often simultaneously, before state and federal courts about the admissibility, relevance and prejudicial effect of crime scene photographs exposed to the jury in a state criminal trial. State criminal processes and federal habeas consideration— erratic as it was — proceeded on parallel tracks. The district court denied, and then after prodding from the en bane court, granted the writ of habeas corpus.
Gilliam v. Foster, 63 F.3d 287 (4th Cir.1995); Gilliam v. Foster, 61 F.3d 1070 (4th Cir.1995). The en bane 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 murder 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 U.S. at 44, 91 S.Ct. at 750. 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 premature relitigation of all these decisions in federal court. Its opinion contains 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, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
*909Arizona reaffirmed that the Double Jeopardy Clause is not an absolute bar to reprosecution when a first trial ends in mistrial over the objection of the defendant. Id. at 505, 98 S.Ct. at 830; see also Illinois v. Somerville, 410 U.S. 458, 463-64, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973); Gori v. United States, 367 U.S. 364, 367-68, 81 S.Ct. 1523, 1525-26, 6 L.Ed.2d 901 (1961); United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (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, 98 S.Ct. at 833, 832-35; see also Somerville, 410 U.S. at 462, 93 S.Ct. at 1069; Gori, 367 U.S. at 368, 81 S.Ct. at 1526; Wade v. Hunter, 336 U.S. 684, 691-92, 69 S.Ct. 834, 838-39, 93 L.Ed. 974 (1949). The Arizona Court examined the broad spectrum of reasons that give rise to mistrials, noting that some warranted 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 evidence, 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, 98 S.Ct. at 832 (footnotes omitted). On the other hand, in a ease like Arizona, where the defense attorney “aired improper and highly prejudicial evidence before the jury,” id. at 515, 98 S.Ct. at 835, “the tidal judge’s determination is entitled to special respect.” Id. at 510, 98 S.Ct. at 832. The Court explained in detail why this deference was necessary: “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 exam-¡nation. 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, 98 S.Ct. at 834 (footnote omitted). It concluded: “In short, he is far more ‘conversant with the factors relevant to the determination’ than any reviewing court can possibly be.” Id. at 514, 98 S.Ct. at 834 (quoting Wade, 336 U.S. at 689, 69 S.Ct. at 837).
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 quintessentially within the discretion of a state trial judge. First it finds that the disputed photographs were relevant, largely cumulative, and admissible. Then it weighs the effect of the photographs on the jury and 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 majority’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 *910pieces 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 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 circle 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 dissects — quoting at length and assessing its meaning — the testimony of Officer Counts, the witness who used the unadmitted photographs 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 complete 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 astonishing.
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 further 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, 98 S.Ct. at 835; 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, 98 S.Ct. at 832-36; United States v. Treas-Wilson, 3 F.3d 1406, 1410 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 739, 126 L.Ed.2d 702 (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 teachings of Arizona. There, the Supreme Court found that manifest necessity 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, 98 S.Ct. at 833, 835-36; see also Abdi v. State of Georgia, 744 F.2d 1500, 1504 (11th Cir.1984), cert. denied, 471 U.S. 1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985); Cherry v. Director, State Board of Corrections, 635 F.2d 414, 418-19 (5th Cir.), cert. denied, 454 U.S. 840, 102 S.Ct. 150, 70 L.Ed.2d 124 (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 elose-up crime scene photographs that were never offered or admitted into evidence. (Denial of *911Motion to Dismiss Indictment). The judge also knew that some of the unadmitted pictures showed tire tracks and others showed possible blood spots that were not easily diseernable 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 controversy — 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 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 litigants 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 “detailed 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 unreasonable. 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, 93 S.Ct. at 1069, 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 mistrial. United States v. Simonetti 998 F.2d 39, 42 (1st Cir.1993) (defense attorney’s conflict of interest in representing defendant created manifest necessity for mistrial); Thomas v. Municipal Court of Antelape Valley J.D., 878 F.2d 285, 290 (9th Cir.1989) (defendant’s failure to waive conflict of interest created manifest necessity for mistrial); United States v. Shaw, 829 F.2d 714, 719-20 (9th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988) (defense counsel’s opening remarks that potentially provoked juror bias created manifest necessity 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 provokes 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 *912the error, or to provoke the declaration of a mistrial in the hope of barring reprosecution. See Arizona, 434 U.S. at 512-13, 98 S.Ct. at 833-34.5
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 evidentiary admissions process — a process that ensures a proper foundation for the introduction of evidence and provides notice to all trial participants and appellate courts of what is appropriately before the ultimate trier of fact. And it was defense counsel that compromised the evidentiary 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 sanctions or contempt proceedings in order to have his decisions sustained. 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.
It is no wonder that under these circumstances Chief Justice Rehnquist, considering the state’s stay application as Circuit Justice, delivered 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, — U.S.-,-, 116 S.Ct. 1, 2, 132 L.Ed.2d 883 (1995) (Rehnquist, Circuit Justice) (citing Arizona, 434 U.S. at 513-14, 98 S.Ct. at 834-35). 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 disagreed with his assessment of the trial situation a retrial would automatically be barred.” 434 U.S. at 513, 98 S.Ct. at 834. 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 further prosecution.” United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). It bears repeating that there is a larger public interest in these proceedings — “the public’s interest in fair trials designed to end in just judgments,” Wade, 336 U.S. at 689, 69 S.Ct. at 837 — one which is not served by windfall dismissals of a murder prosecution due to defense counsel’s own mistake.
III.
It is no coincidence that Justice Hugo Black was at once a great advocate of ineor*913porating the guarantees of the Bill of Rights against 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 dismiss the petition.
Judge RUSSELL, Judge WIDENER, Judge NIEMEYER, and Judge LUTTIG join in this dissent.. 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 majority 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, 97 S.Ct. 2034, 52 L.Ed.2d 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, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984), the Court considered a double jeopardy claim unlike the one presented here, and did not grant the requested pre-trial relief.
. Officer Counts, the majority maintains, provided sufficient authentication and explanation of the photographs for the jury. The majority's hindsight judgment, however, conflicts directly with the judge’s determination 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 location depicted in the disputed closeup photographs.
. 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 prosecution 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.
. 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 foreman replied, “Yes, sir. As far as I know.”
. 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, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). But a reviewing court owes particular deference to a trial court's judgment on the necessity of a mistrial 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, 93 S.Ct. at 1073.