dissenting:
I object to the summary affirmance of the decision of the trial court that subjects the defendant to a second criminal trial. It is not necessary to tarry on the merits of this case. My concerns address the procedure used by this court in rendering a decision on the merits; these concerns would not be alleviated even if the correctness of the result on the merits were beyond peradventure. That this case may present more of a challenge on the merits than the majority of this motions panel is willing to concede only serves to emphasize how deficient our procedures are in granting motions for summary affirmance, especially in criminal cases.
I have mixed emotions about the tenor of the majority opinion. On the one hand, the case has been given, post hoc, some of the concern and attention that usually is foreclosed by the use of summary disposition. In light of the careful and thoughtful attention that now has been given to the merits of the controversy, it is hard to remember that the case was summarily affirmed on the basis of a brief motion by the government, an even briefer response by the appellant-defendant, and only the briefest consideration by the two judges comprising the majority. On the other hand, my concerns about our process remain real. The majority’s thoughtful opinion cannot erase the fact that major aspects of the normal appellate process were absent from our review of this appeal. For example:
1. There was no oral argument.
2. There was no trial transcript available.
3. There was none of the traditional collegiality of the decisional process normal to a multi-member appellate court.
The majority shrugs off my concerns in a footnote and suggests that these concerns can be better addressed in a judges’ meet*49ing. I disagree. Since this is a public business that involves a real defendant in a real criminal case and goes to the essence of our appellate process, I believe that this dispute requires a public airing. Moreover, since the likelihood is great that the majority would not have published an opinion had I not contemplated a dissent, the “public airing” at least has ensured that Mr. Glover’s appeal received the full attention of the court — the attention it should have received ab initio.
Defendant Fred Glover was charged by indictment with several offenses. The jury which heard the evidence was unable to agree on a verdict. During their deliberations, the jury sent three separate notes to the court asking various evidentiary questions and whether the jury could review portions of the transcript. The judge informed them that the transcript was not available — as it was similarly not available to this court during this appeal — that their recollections of the evidence controlled their deliberations, and that they could consider only evidence properly admitted during the trial. After approximately one full day of deliberations, the jury sent a fourth note to the court stating that it could not reach a unanimous decision, “so please advise.” In response, the judge read the deadlock instructions formalized by this court in United States v. Thomas, 449 F.2d 1177 (D.C.Cir.1971) (en banc). That instruction announces that the jurors “have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment,” that a juror must decide the case him or herself, that a juror should be willing to change his or her opinion once convinced that such opinion is erroneous, and that no juror should surrender beliefs solely because of the opinion of other jurors, or for the mere purpose of returning a verdict. Id. at 1184 n. 45. On the second day of deliberations, the jury submitted its fifth note and requested instructions on evidence, reasonable doubt, common sense, the facts, and the duties and responsibilities of a juror. The court then reread several general instructions and gave a second Thomas charge. Three hours later, the jury sent out its sixth, and final, note stating that it was still irretrievably and irreconcilably deadlocked.
Following the jury’s last deadlock statement, the court announced its intention to declare a mistrial. The defendant objected to this decision, arguing that if the court instructed the jury as to the treatment of discrepancies in witness’ testimony, the deadlock would be resolved. The defendant had requested this instruction when the jury previously had indicated its difficulty in reaching a verdict. The language requested by the defendant, and continuously rejected by the district court, is part of a standard instruction of the District of Columbia Criminal Jury Instructions. Instruction No. 211 (credibility of a witness).
The defendant subsequently moved to prohibit any retrial on the grounds of double jeopardy. The trial judge, in a brief three page order, held that the “classical test for lifting the double jeopardy bar to a second trial is the ‘manifest necessity’ standard,” see Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), and that a new trial may be ordered when the jury is genuinely deadlocked. The district court thereupon ordered a retrial, and scheduled the new trial to commence approximately sixty days after its order. Significantly, the trial judge did not explain or even refer to his refusal to give the special instructions requested by the defendant. Yet the denial of this instruction seems to be a central legal question on appeal. (Nor was this question given much consideration under the procedure used to affirm the trial judge’s order.)
Defendant then filed this appeal. From the scant papers filed, the principal issue involves the double jeopardy ramifications when a court orders a new trial over defendant’s objections, where that defendant has proffered a curative jury instruction. The government, in response, filed a motion for summary affirmance. The request for summary affirmance was anchored on the government’s statement that “[bjecause this interlocutory appeal is pat*50ently without merit, and because a date for retrial has already been set for December 19, 1983, we submit that summary disposition is appropriate.” The majority of this panel agrees with the government and would grant summary affirmance. I dissent, not so much from that which is represented by the word “affirmance”, but from that which is represented by the word “summary”.
Two initial points should be noted. First, the government characterizes this appeal as interlocutory. It is clear, and the government does not suggest otherwise, that the order denying defendant’s motion was a “final decision” within the meaning of 28 U.S.C. § 1291, and thus was immediately appealable. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Second, and more important, questions of double jeopardy must be resolved on a case-by-case approach. As Justice Stevens observed in his concurring statement in Oregon v. Kennedy: “The Court repeatedly has shunned inflexible standards in applying the ... ‘manifest necessity’ exception ____” 456 U.S. at 690, 102 S.Ct. at 2097. The government can cite no case of this circuit in which the precise question here presented has been decided previously. Thus, there is no binding precedent that absolutely precludes defendant’s position.
As the instant case demonstrates, when this court reviews a motion for summary affirmance, the procedure is indeed summary. This appeal — unlike most appeals duly filed and docketed in this court — was given the shortest of shrifts. The government filed its ten page motion for summary af-firmance on November 3, 1983. That motion, authorized by Rule 6 of this court, triggered a most truncated procedure. Under our rules, the motion may be, but need not be, accompanied by supportive points or authorities. Any response must be filed within seven days after the motion is served on the opposing party. Here, the defendant was given leave to file a response out of time, and in fact filed a five page memorandum on November 25, 1983, just three weeks after the government’s motion was filed. The papers then were referred to the motions panel. That panel, which convenes once a week, consists of three judges (chosen by a rotational process among the judges on the circuit), only two of whom physically meet to review the motions. At these meetings, held in camera, as many as ten or fifteen motions can be decided in one or two hours. Only if the two judges in attendance disagree as to the proper outcome — as they did in this case— are the papers presented to the third “tiebreaker” judge. Here, that judge voted for affirmance. Most significantly, once the motion for summary affirmance has been granted, the case has been decided on the merits.
My dissent stems from a firm conviction that when this court summarily decides the merits of a case through the procedure described above, its actions undermine the integrity and general principles of appellate process. As distinct from the time exigencies that always confront a trial judge and that require quick responses on the law, the appellate courts are supposed to contemplate precedents, consider the consequences of rules of law for future cases, and generally engage in the sifting and winnowing process that leads to decisions grounded on a full review of all the facts and the law as it relates to the case at hand. In a summary affirmance, the deci-sionmaking procedure is so accelerated that the contemplative, deliberative process must suffer. The hastened nature of a summary affirmance belies every vestige of an appeal. For example, the transcript of the trial is not yet before the court. (The one volume record that was filed in conjunction with this appeal was not before the court at the time the appeal was decided.) There are no briefs, no oral arguments, no collegiality of the decisional process. There is no time for deliberation, and very little dialogue on the merits, on the process, or on the result.
Let me state emphatically that my quarrel is not an ad hominem dispute with my two distinguished co-panelists. My dispute is with the procedure that has developed in this court, almost Topsy-like in its lack of deliberateness or concern. Let me parse *51out the specific basis for my disagreement and my belief that a new procedure is warranted.
The most troublesome aspect of the summary procedure is the elimination of the pluralism that is the benchmark of the appellate process. It is true that no party has a constitutional right to appellate process in this court. Appeals, at least in this court, are completely the creature of statute — and tradition. The statute may govern the time, place, and whether of any appeal. Long tradition in the appellate courts of this country and of England has established the manner in which an appeal is treated. Statutes may modify or confirm the manner, but the fundamental character of the appellate process has largely remained unchanged. First and foremost, the process is intended to be deliberative. And, the major hallmark of that deliberative character has been judicial “pluralism”. To facilitate that pluralism, appeals are to multi-member panels, which in most cases results in three judges separately considering the matter and a separate “contemplative process” for the matter. The touchstone for this pluralism is a belief that the more minds considering a matter, the better the ultimate resolution of the case is likely to be. See generally Leflar, The Multi-Judge Decisional Process, 42 Md.L.Rev. 722 (1983). I recognize, of course, that as our dockets have become more full, a need for the efficient use of judicial resources has arisen, and that this quest for efficiency on occasion must be balanced against the need for judicial pluralism.
Our use of two judges to decide a motion substantially reduces this pluralism. For a procedural or other non-dispositive motion, the need for efficient use of judicial resources usually may outweigh the need for preserving the traditional amount of pluralism. In many cases the risk to the parties may not be that substantial since the merits panel easily can correct any error. Yet, when a motion can terminate an appeal, as in this case, or otherwise directly affect the rights of the litigants, the interests of the parties are at their greatest, and the need for a cautious contemplative process should be most keenly felt. Because the motion involves a review of the merits and can end the appeal, this is the exact situation where our decisions should reflect a most careful analysis. Our internal procedure for handling these dispositive motions thus should not be structured, as it now is, in a manner that potentially narrows judicial input and, concomitantly, may reduce the quality of our analysis. When a motion involves the merits, the balance clearly should be struck in favor of pluralism.
Moreover, there is some reason to think that the use of three-judge panels to decide dispositive motions is required by statute. The Federal Courts Improvement Act of 1982, 28 U.S.C. § 45 et seq., may mandate that three-judge panels consider dispositive motions. This requirement would trace to a 1982 change in the statutory language from the word “division” to the word “panel”, see 28 U.S.C. § 46(b), and an accompanying Senate Report that stated:
Current law seems to permit appellate courts to sit in panels of less than three judges, and some courts have used panels of two judges for motions and for disposition of cases in which no oral argument is permitted because the case is classified as insubstantial. In order for the Federal system to preserve both the appearance and the reality of justice, such a practice should not become institutionalized. The disposition of an appeal should be the collective product of at least three minds.
S.Rep. No. 275, 97th Cong., 2d Sess. at 9 (1981). At a minimum, the language in the Senate Report should require us to rethink our current process for summary disposition.
Even when three judges become involved in the motions practice, the pluralism is reduced, albeit on a different level. I am troubled by the cavalier attitude toward oral argument that is implicit in the summary procedure. I realize that part of this court’s procedure in non-summary dispositions allows for the preclusion of oral argument. Rule 11(d) specifically allows the court to conclude that oral arguments will not be needed. The decision to invoke Rule 11(d), however, must be made unanimous*52ly by a three-judge division of the court, in cases which are deemed frivolous, which turn on issues recently decided, or where the facts and legal arguments are adequately presented in the briefs and record. Even when those standards have been satisfied, Rule 11(d) has not met universal understanding among the members of our bar nor uniform application among members of this court. Yet, even the 11(d) standards are more protective of oral advocacy than are the standards under the current summary procedure. For example, while three judges must agree to an 11(d) motion, it takes only two judges to summarily affirm and thus to preclude oral argument. Moreover, while the panel that considers an 11(d) motion has the advantage of the briefs and record, the motions panel can eliminate oral argument without the benefit of full briefing or a trial transcript.
The summary affirmance procedure thus expands the number of situations in which the court can reach the merits of a case and yet avoid oral argument. This expansion runs counter to the concerns that have been expressed about the diminution of oral argument in the appellate process. Among those who recently have decried this movement away from oral advocacy is Justice Rehnquist, who observed that “the intangible value of oral argument is, to my mind, considerable.” W. Rehnquist, Oral Advocacy: A Disappearing Art (October 20, 1983) (Brainerd Currie Lecture, presented at Mercer University School of Law). Justice Rehnquist commented:
[Oral argument] is and should be valuable to counsel, to judges, and to the public. First of all, oral argument offers an opportunity for a direct exchange of ideas between court and counsel____ Second, in these days when the pressure of numbers seems to require ever greater reduction of everything into its component parts, and of those component parts into their least common denominator, oral argument serves a function over and above its usefulness in adding to the presentation of the briefs of the parties. It has the value that any public ceremony has. The lawyers, and the clients if they are present, are brought face to face with the judges who will consider and decide their case. The judges are brought face to face with the lawyers who have written the briefs on either side.
Id. at 15-16. See generally Meador, Toward Orality and Visibility in the Appellate Process, 42 Md.L.Rev. 733 (1983); Wosby, The functions and importance of appellate oral argument: some views of lawyers and federal judges, 65 Judicature 340, 351-52 (February 1982). The irony of our summary disposition process is that it dispenses with oral argument by reversing the premise of appellate process: there is no oral argument unless some judge expressly pushes for it and persuades one of his colleagues to agree.
The adverse impact on the decisional process that flows from this absence of oral advocacy is exacerbated by the nonexistence of complete briefing. In the instant case, for example, the papers filed by the parties could hardly be called briefs in any recognizable sense. I am concerned, in part, because of the papers’ brevity. Neither party made any effort to detail their arguments or to list all the issues that the appeal presents. Indeed, one wonders how defendant’s counsel could have prepared a complete brief when he did not have the benefit of a trial transcript. I am equally concerned with the time frame under which these “briefs” must be prepared. Under Rule 6 of this court, a respondent has just seven days in which to file a responsive pleading to a motion for summary disposition.
I claim neither the experience nor the expertise to identify all the elements of the collegial deliberative process. This court's treatment of motions for summary affirmance, however, simply does not lend itself to that kind of deliberation. The absence of detailed preparation by the parties, by the individual judge with his or her chambers, together with the absence of fresh oral advocacy make it very hard to replicate the kind of deliberations that normally take place in the typical conference of a merits panel; the agenda at a motions conference frequently is long, and the absence *53of any requirement to fully explain the decision by way of a written opinion — most motions are decided by brief order — increases the incentive to truncate the deliberations.
In sum, anything that looks so little like an appeal, contains so few of the accoutrements of an appeal, involves so little of the collegiality of an appeal, ought not be considered an appeal. Whatever was done to appellant in this case, he did not get an appeal from the decision of the trial judge to order a retrial.
Theré may indeed be proper occasions for a summary procedure. The precise setting in which such a procedure would be appropriate, however, needs to be articulated with greater precision and thoughtfulness. As a threshold matter, I believe that the standard language generally used by this court, and specifically used by the majority, is broad beyond defense. Walker v. Washington, 627 F.2d 541 (D.C.Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980), states that summaryaffirmance is proper when the “merits of [the] claim are so clear as to justify expedited treatment.” Id. at 545. That case sets forth no prerequisite for a time exigency, gives no clue as to how the “clearness” is to be divined, and gives no guidance as to the extent to which the motions panel should explore the merits. Most important, the case offers no explanation or suggested procedure for handling some eases on a summary basis and some through normal channels of appeal. The language in Walker begs a number of questions — for example, does it matter whether the case is criminal or civil? Does it matter if the appellant is pro se, as he was in Walker v. Washington? See also Martin-Trigona v. Smith, 712 F.2d 1421 (D.C.Cir.1983) (pro se appellant); but see Ambach v. Bell, 686 F.2d 974 (D.C.Cir.1982) (appellant not pro se). The Walker standard is so nebulous that it clearly should not stand as this circuit’s preeminent statement on summary disposition. I thus cannot join in the majority’s embracement and application of this standard.
This court ought to be able to develop a standard that expedites the treatment of some appeals but that still maintains the integrity of the appellate process. A starting place might be Ambach v. Bell, 686 F.2d 974 (D.C.Cir.1982), a case that involved a motion for summary reversal. After reciting the Walker standard, the court continued: “Our decision whether expedited disposition of an appeal is justified is informed not only by the utility of further briefing and argument, but also by the circumstances of the case.” Id. at 979. Although this language is somewhat vague, one “circumstance” of paramount importance in Ambach was the public’s interest in a speedy resolution of the litigation. The most significant aspect of Am-bach, however, is that the court’s summary disposition on the merits occurred only after extensive briefing and oral argument — a far cry from the summary process that the court followed in the instant case. To what extent Ambach should become the foundation of a new summary procedure is a question left for another day.
Clearer guidelines are necessary so that members of the bar, litigants, and indeed other judges, will know when and why the appellate process can be truncated. As the system now exists, some lawyers file motions for summary disposition almost as a matter of course; some never file and indeed may have no knowledge of the procedure. If there is to be a two-track method of processing appeals — as the result in this case would indicate — then the bar should be so informed so that all litigants could take a shot at getting the short-cut result. I would hope instead that this court would re-examine its summary disposition procedures so that such treatment can be limited to appropriate cases and, even where appropriate, can retain the essence of the appellate process. The drum-head manner in which this appeal was decided on the merits is unworthy of this great Court and its traditions.
/ dissent.