dissenting:
I share Judge Wilkinson’s and Judge Luttig’s concern that the majority today “cut Younger at its core,” supra at 908, by intervening in an ongoing criminal trial — where the state’s interest in being free from federal intervention is at its zenith, see infra at 917 n.3 (describing “debacle that .has ensued since our initial intrusion into the affairs of South Carolina”). As I expressed in my earlier dissent in this case, the majority’s decision is “a bold affront to the principles of comity and federalism.” Gilliam v. Foster, 61 F.3d 1070, 1084 (4th Cir.1995) (en banc).
As important to my decision to dissent, however, is my belief that the majority opinion, by mechanically applying judicial formulations, has distorted the Double Jeopardy Clause’s historically recognized protections. I would hold that absent any indication of prosecutorial misconduct or judicial overreaching on behalf of the prosecution, the Double Jeopardy Clause permits the state one complete trial to convict those it accuses of crime. While I agree with Judges Wilkinson and Luttig that “manifest necessity” existed for the state trial judge’s decision to grant a mistrial, I do not agree with their suggestion that prejudice, to any extent, is required for finding “manifest necessity.”
I
In this ease, the state trial judge aborted petitioners’ murder trial on its third day after discovering that the jury had, through defense counsel’s neglect, viewed several photographs that had been neither offered nor admitted into evidence. The mistrial was in no way attributed to any prosecutorial misconduct. Because he could not at the time guess whether either party would offer the photographs into evidence, the trial judge felt compelled to declare a mistrial to ensure a “fair and proper” trial.
At the threshold of their retrial, however, petitioners moved to dismiss the charges against them on double jeopardy grounds. The state trial judge denied petitioners’ motion and the Supreme Court of South Carolina dismissed their appeal as interlocutory, On petition for the writ of habeas corpus, the federal district court refused to enjoin petitioners’ second trial. But after a divided panel of this court affirmed, the full court, sitting en banc, directed the district court to grant an injunction and consider the merits of the habeas petition. See Gilliam, 61 F.3d at 1074. Reversing its field, the district court then granted the writ. This appeal followed.
Now, on rehearing en banc, the majority have voted to affirm the district court, concluding that the state trial judge abused his discretion in declaring the mistrial. By affirming the issuance of the habeas writ, the majority have (1) overruled the trial judge’s discretionary rulings on evidence and the conduct of trial; (2) denied the State of South Carolina one complete trial of petitioners notwithstanding the absence of any prosecutorial or judicial misconduct; and (3) ordered released into the public three individuals accused of murder. I cannot agree that the Double Jeopardy Clause dictates such unseemly results.
II
The Supreme Court has recognized that the constitutional protection against being “twice put in jeopardy of life or limb” for “the same offense,” U.S. Const, amend. V, is “rooted in history” and “is not an evolving *914concept.” Gore v. United States, 357 U.S. 386, 392, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958). The Double Jeopardy Clause, as included in the Bill of Rights, was actually a redraft of James Madison’s initial formulation — “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the samé offence____” Sources of Our Liberties 422 (Richard L. Perry & John C. Cooper eds. 1991). But its framers intended for the Clause only to declare the law as it stood at the time and to guarantee the protections established by the common law. See United States v. Jenkins, 490 F.2d 868, 873 (2d Cir.1973), aff'd, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); Joseph Story, Commentaries on the Constitution of the United States § 930 (Roland D. Rotunda & John E. Nowak eds. 1987).
Those common law protections were well known. According to Blackstone, they emanated from four pleas in bar: autrefois acquit (former acquittal), autrefois convict (former conviction), autrefois attaint (former attainder), and pardon. 4 Sir William Blackstone, Commentaries on the Laws of England §§ 377-81. The Double Jeopardy Clause, therefore, shields defendants from multiple trials and multiple punishments for the same criminal offense. As a corollary, however, the state is entitled, absent misconduct by the prosecution or the trial judge on behalf of the prosecution, to one complete trial, and if the defendant is convicted, one punishment. Cf. 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 [double jeopardy] rules”).
Thus understood, the Double Jeopardy Clause serves its important purpose: to prevent “the State with all its resources and power [from] mak[ing] repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continued state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” United States v. DiFrancesco, 449 U.S. 117, 127-28, 101 S.Ct. 426, 432, 66 L.Ed.2d 328 (1980) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)). But where defense counsel neglect precipitates a mistrial and -there is no suggestion of prosecutorial misconduct or judicial overreaching in support of the prosecution’s effort to convict, the concerns that underlie the Double Jeopardy Clause are not triggered.
Unfortunately, without finding any such prosecutorial or judicial misconduct in this case, the majority deny the South Carolina prosecutors even one complete trial to bring petitioners to justice. They do so by rigidly applying the “manifest necessity” principle and overlooking that principle’s limitations. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). In Perez, the defendant was subjected to a jury trial, but the jury was unable to agree on a verdict. In holding that the Double Jeopardy Clause did not bar a retrial, Justice Story stated, “[t]he prisoner has not been convicted or acquitted, and may again be put upon his defence.” Id. He explained that courts may discharge juries from rendering verdicts when there is a “manifest necessity” for doing so “or the ends of public justice would otherwise be defeated.” Id. And in allowing the defendant to be retried, the Perez Court deferred to the “sound discretion” of the trial judge. Id. Yielding to trial judges’ discretion in determining when “manifest necessity” exists remains the double jeopardy jurisprudence. See Arizona v. Washington, 434 U.S. 497, 514, 98 S.Ct. 824, 834-35, 54 L.Ed.2d 717 (1978).
Ill
There is no allegation of misconduct by the prosecution or trial judge in the case sub judice. Indeed, defense counsel was responsible for creating the situation that caused the state judge to declare a mistrial in the interest of ensuring a “fair and proper” trial. Like a reprosecution after a hung jury, petitioners’ retrial here would not implicate the interests that the Double Jeopardy Clause was historically designed to secure. I conclude, therefore, that the public *915interest demands and the Double Jeopardy Clause permits one complete trial for these three petitioners charged with murder.
I am authorized to say that Judge WIDENER joins in this opinion.