James Walter Cherry v. Director, State Board of Corrections

TATE, Circuit Judge,

with whom ALVIN B. RUBIN and KRAVITCH, Circuit Judges, join, concurring:

In 1978, the petitioner Cherry sought federal habeas review of a 1963 state conviction. In my opinion, our original panel opinion, 613 F.2d 1262, correctly held that the state trial judge’s sua sponte grant of a mistrial was violative of standards applicable to the grant of a mistrial for “manifest necessity”, as enunciated in 1971 by United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. Nevertheless, I concur in the majority’s result, which denies habeas relief, because I do not believe that Jorn retroactively applies to the 1963 mistrial so as, in the face of a silent record, to require an evidentiary hearing.

My chief reservations as to the majority’s articulation are (a) that, in terms, it does not restrict its justification of the mistrial to those that occurred pre-Jorn, nor (b) does it in terms restrict its standard of double-jeopardy review of sua sponte mistrials to those collaterally attacked by post-conviction petition.1

I

The petitioner Cherry was convicted of robbery in 1963. The conviction resulted after a second trial, the trial judge having declared a mistrial after the first day .of the first trial. The basis of the trial judge’s declaration of a mistrial was the death of a juror’s mother. On the morning of the trial’s second day, the judge dismissed the juror from the trial because it would have been inhumane and inappropriate to require that juror to be present in court that morning. Under the record before us, the judge did so ex parte and without giving counsel for the defendant an opportunity to suggest an alternative to mistrial, such as a recess for the day.

Given the circumstance that the trial occurred in 1963, the trial judge’s ex parte grant of a mistrial for such reason, without consulting the defendant’s counsel, was in accord with the usual practice, Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), before the decision of our Supreme Court in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). There, however, the nation’s highest tribunal in enunciating Fifth Amendment rights of an individual not “to be twice put in jeopardy of life and limb”, *422pointed out that the Perez doctrine permitting declaration of a mistrial because of manifest necessity

stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion [is made].

400 U.S. at 485, 91 S.Ct. at 557. The court emphasized an accused’s “ ‘valued right to have his trial completed by a particular tribunal’ ”, and continued

If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge of prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.

Id.

Had the present ex parte grant of mistrial happened after Jorn, in my opinion, it would constitute an unquestionable violation of the accused’s double jeopardy rights as articulated by Jorn. That decision qualified the former view (see Gori, supra) that a constitutional issue arose as to the exercise of the broad discretion only if there was an abuse in the exercise of that discretion. Unless restricted to the present factual context, the majority’s methodology of review (as to whether a sua sponte declaration of mistrial offends the accused’s double jeopardy rights) in effect reinstates Gorí and disregards Jorn.

As I read Jorn, before a defendant may be deprived of his constitutional right under the double jeopardy clause to have his trial completed by the particular tribunal first seated, the district judge must take into consideration the defendant’s significant interests by affording him an opportunity to suggest consideration of consequences less severe to him than a mistrial. Only where, after that, “a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings”, Jorn, 400 U.S. at 485, 91 S.Ct. at 557, should the trial court foreclose the defendant’s option to have the trial completed before the tribunal first chosen.

In United States v. Starling, 571 F.2d 934 (5th Cir. 1978), after exhaustive and scholarly analysis of the double jeopardy-“manifest necessity” mistrial issue, this circuit adhered to the interpretation above expressed. There, on appeal from a conviction on second trial following a mistrial on the first, the second trial and conviction was reversed, as offending Fifth Amendment double jeopardy principles. We there noted the reviewing court’s obligation to satisfy itself that sound discretion was exercised in accord with constitutional principles and, in reversing, did so because

[a]ppellant’s trial was terminated and the jury dismissed after only a brief and confusing exchange between the court and jury. The court did not give counsel for either side an opportunity to address the possibility of bias or the need for a mistrial. No alternatives to a mistrial were considered. Indeed, “had . . . the defendant [been disposed] to object to the discharge of the jury, there would have been no opportunity to do so.” United States v. Jorn, 400 U.S. at 487, 91 S.Ct. at 558. The record reflects a total lack of awareness of the double-jeopardy consequences of the court’s action and of the manifest necessity standard. Moreover, it shows a crucial failure to consider the appellant’s protected interest in having the trial concluded in a single proceeding. Under these circumstances, the very basis for appellate deference to the court’s determination that a mistrial was required is diminished beyond the point of significance. See Arizona v. Washington, 435 U.S. [497] at 510 and n. 28, 98 S.Ct. 824 [at 832, 54 L.Ed.2d 717].

571 F.2d 941.

I assume the majority’s opinion is not intended to modify Starling’s interpretation of the controlling Supreme Court jurisprudence, because this leading circuit authority on the issue is not cited in its opinion.2

*423Further, six other circuits have likewise recently held that, in evaluating manifest necessity, a judge must give the defendant an opportunity to object and must explore all feasible alternatives before declaring a mistrial, otherwise a second trial violates the double jeopardy provisions of the Fifth Amendment. Harris v. Young, 607 F.2d 1081 (4th Cir. 1979); U. S. v. Pierce, 593 F.2d 415 (1st Cir. 1979); U. S. v. Sanders, 591 F.2d 1293 (9th Cir. 1979); U. S. v. McKoy, 591 F.2d 218 (3d Cir. 1979); U. S. v. Horn, 583 F.2d 1124 (10th Cir. 1978); Dunk-erley v. Hogan, 579 F.2d 141 (2d Cir. 1978). If the majority’s rationale is expanded beyond application to the present factual context alone before us, it is in conflict not only with the Jorn interpretations of these other six circuits, as well as with what until now has been regarded as our own controlling Fifth Circuit precedent in Starling.

II

My difficulty with the majority opinion is that its language (viewed outside of its limited factual context) seems to justify a sua sponte declaration of mistrial by a trial judge under present circumstances, not only in the present pre-Jorn 1963 trial, but also in post-Jorn trials, including those conducted after we hand down this opinion. Here, because we determine the trial judge might reasonably have dismissed the juror and have therefore declared a mistrial, we conclude that the defendant’s constitutional protection against double jeopardy was not offended — even though the record does not show that the trial court seriously considered alternatives to a mistrial (other than attempting to secure the defendant’s consent to continuance of the trial before eleven jurors), or that he articulated reasons for foregoing these alternatives; and even though (so far as the record shows) defense counsel did not have an opportunity to object to the mistrial before it was granted, or to suggest alternatives.

With respect, I think the majority paints too broadly. As articulated, its rationale is contrary to Jorn, if applied outside of the present factual context. If applied as the criteria for constitutional violation in mistrials for manifest necessity granted in the present day, the majority’s rationale has effectively eroded the Jorn -mandated requirement that the defendant’s interest be consulted before the trial judge declares a mistrial because of an alleged manifest necessity to do so.

I do not read Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), as exempting from habeas review for double jeopardy violation all mistrials where the record shows formal concern and consideration by the district judge, and a supportable reason for his granting a mistrial, unless he act “irrationally and irresponsibly”, 434 U.S. at 515, 98 S.Ct. at 835. The decision on its face does not question Jorn, which it reaffirms; indeed, the Court found that the record evidenced careful consideration of the accused’s contrary arguments and the exercise of sound discretion by the trial judge in handling a sensitive problem of possible juror bias, a matter peculiarly addressed to his ability to evaluate the prejudicial impact created by improper counsel comment. It held that, therefore, the mistrial order was supported by the “high degree” of necessity that is required in a case of this kind. 434 U.S. at 516, 98 S.Ct. at 835.

The holding that no Jorn mistrial violation occurred under its facts in Arizona v. Washington is not dispositive of the present *424issue of whether a sua sponte declaration of a mistrial, without consulting the interests of the defendant or exploring reasonable alternatives, offends double-jeopardy rights as enunciated by Jorn.

The majority may well not have intended its articulation and holding to extend beyond the present facts of a post-Jorn federal habeas attack upon a pre-Jorn state conviction. If so, I can live with the opinion as articulated. Nevertheless, the broad language of the majority opinion may later be urged as applying to decision of double-jeopardy mistrial issues beyond the scope of the narrow issue before us. The writer must therefore respectfully note these reservations to the majority’s articulation of its rationale.

. As to the latter (or (b) objection), 1 do not read Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), where habeas review of a state conviction was involved, as modifying Jorn requirements were this matter before us on direct appeal.

. Grooms v. Wainwright, 610 F.2d 344 (5th Cir. 1980), a federal habeas attack upon a state conviction, is not authority to the contrary; in fact, it cites Starling with approval. In *423Grooms, while the jury was deliberating, a bailiff had permitted his pistol to be examined by the jury in the jury room. The judge, after deliberating, declared a mistrial on the first trial because “the make, shape, and size of the pistol were a very critical part of the testimony presented at trial,” 610 F.2d at 345. As in Arizona v. Washington, supra cit. note 1, the ineradicably prejudicial effect on the entire trial jury (a matter peculiarly within the trial judge’s ability to evaluate) admitted of no reasonable alternatives to a “manifest necessity” mistrial; therefore, the circumstance that the district court did not expressly for the record canvass alternatives did not, for purposes of federal habeas review, require the state conviction to be set aside on federal habeas review, where all the Jorn requirements were otherwise met.