Gilliam v. Foster

• Decision Date: 08 August 1995
• Docket Number: No. 95-2434,95-2434
• Parties: Darrell Wayland GILLIAM, Jr., James Matthew Swain, and Pamela Owings, Petitioners-Appellees, v. James Lee FOSTER, Sheriff of Newberry County, Charles M. Condon, Attorney General of South Carolina, and James W. Johnson, Jr., Circuit Court Judge of South Carolina, Respondents-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 287

63 F.3d 287

Darrell Wayland GILLIAM, Jr., James Matthew Swain, and Pamela Owings, Petitioners-Appellees, v. James Lee FOSTER, Sheriff of Newberry County, Charles M.

Condon, Attorney General of South Carolina, and

James W. Johnson, Jr., Circuit Court

Judge of South Carolina,

Respondents-Appellants.

No. 95-2434.

United States Court of Appeals, Fourth Circuit.

Aug. 8, 1995.

John Christopher Mills, Fairey, Parise & Mills, PA, Columbia, SC, for Darrell Wayland Gilliam, Jr.

Samuel McGowan Price, Jr., Newberry, SC, for Pamela Owings.

Joy Scherffius Goodwin, Levy & Goodwin, Columbia, SC, for James Matthew Swain.

Donald John Zelenka, Chief Deputy Attorney General, Office of the Attorney General of South Carolina, Columbia, SC, for James Lee Foster, Charles M. Condon, and James W. Johnson, Jr.

ORDER

Respondents have appealed from an order of the district court granting Petitioners' request for a writ of habeas corpus. Presently before the en banc court are Respondents' motions for expedited consideration of this appeal and for temporary relief from the order of the district court pending appeal. The court has voted to grant Respondents' request for expedited consideration of this appeal and the matter has been calendared for oral argument before the en banc court on September 26, 1995. A majority of the court voted to deny Respondents' request for temporary relief pending appeal from the order of the district court granting the writ of habeas corpus.

Judge WILKINS authored an opinion in which Chief Judge ERVIN and Judges HALL, MURNAGHAN, HAMILTON, WILLIAMS, MICHAEL, and MOTZ joined. Judge WILKINSON authored an opinion dissenting from denial of Respondents' request for temporary relief from the order of the district court pending appeal, in which Judges RUSSELL, WIDENER, NIEMEYER, and LUTTIG joined.

WILKINS, Circuit Judge:

During the past three weeks since these parties first came before us, this matter has sharply divided this court as to its proper disposition. It is little wonder that it has engendered great concern among members of the majority and the dissent. For a federal court to enjoin an ongoing state criminal trial, let alone one involving multiple defendants on trial for crimes resulting in the death of the victim, is as momentous and undesirable an endeavor as a court can be called upon to undertake. Concerns of comity and federalism are at their apex. And, we are cognizant of the gravity of decisions that ultimately may result in the release of individuals who may be guilty of serious offenses.

Nevertheless, on July 20th, the en banc court granted a temporary stay of Petitioners' state criminal trial. Gilliam v. Foster, 61 F.3d 1070 (4th Cir.1995) (en banc). We concluded that Petitioners had counterbalanced the forceful comity and pragmatic concerns counseling against intervention with a colorable claim that the second trial violated their right not to be twice placed in jeopardy for the same offense. This conclusion, rendered on the record then before us, was based on Petitioners' strong showing that the declaration of a mistrial based on a motion by the State during their prior trial was not supported by manifest necessity. Thus, in the view of the majority, the temporary stay was the only means available to avoid the irretrievable loss of Petitioners' constitutional rights. We imposed a temporary stay until the district court ruled on the merits of Petitioners' claims, and we directed the district court to proceed as expeditiously as possible to rule on the merits.

The following day, the district court conducted a thorough evidentiary hearing. Subsequently, it entered a comprehensive and thoughtful decision concluding that the retrial of Petitioners was, indeed, barred by the Double Jeopardy Clause. Accordingly, it granted the writ of habeas corpus, thereby enjoining further prosecution.

The State has appealed from the order of the district court. In addition, the State has moved for expedited consideration of the appeal and relief from the district court order pending a decision of this court. The State submits that the jury empaneled to decide the second state criminal trial has not yet been released and apparently believes that if this court grants the relief it seeks, the prosecution may resume and the case be completed.

We have agreed to hear the State's appeal on an expedited basis and have scheduled oral argument before the en banc court for September 26, 1995. For the reasons set forth below, a majority of the court has determined that the State's motion for relief from the district court order pending appeal should be denied. ¹

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court plainly declared that federal court interference with state criminal proceedings should not be undertaken except in the most narrow and extraordinary of circumstances. But, that prohibition is not absolute. Younger recognized that it may be appropriate for federal courts to enjoin state criminal proceedings when there has been a "showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief." Younger, 401 U.S. at 54, 91 S.Ct. at 755 (emphasis added). It is undisputed that the state proceeding against Petitioners is not being undertaken in bad faith or for purposes of harassment. Moreover, there is no suggestion that the prosecutors who sought the mistrial on behalf of the State during the first trial or the judge who granted it were acting in bad faith in doing so.

Nevertheless, as Younger prudently recognized, these are not the only circumstances that may justify federal court intervention. The decisions of other courts unanimously recognize that a colorable Double Jeopardy Clause claim is a preeminent example of one of the very few "unusual circumstances" justifying federal court intervention in a state proceeding. See Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 964, 122 L.Ed.2d 121 (1993); Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992); Showery v. Samaniego, 814 F.2d 200, 201 n. 5 (5th Cir.1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.1984) (per curiam); see also Willhauck v. Flanagan, 448 U.S. 1323, 1325, 101 S.Ct. 10, 11, 65 L.Ed.2d 1147 (Brennan, Circuit Justice 1980). Indeed, the justification for federal interference in state criminal proceedings is at least as compelling when the retrial itself irretrievably deprives the defendant of his constitutional double jeopardy rights as when the prosecution is undertaken in bad faith or to harass the defendant. Consequently, although federal court interference with ongoing state criminal proceedings should be undertaken in only the most limited, narrow, and circumscribed of situations, when the record clearly demonstrates a colorable showing that the trial will constitute a violation of the defendant's double jeopardy rights, federal court intervention is appropriate.

Here, based on the record then before us, this court initially determined that Petitioners had made a strong showing of a colorable double jeopardy claim for the reasons set forth in the previous order of this court which we incorporate herein by reference. Gilliam v. Foster, 61 F.3d 1070 (4th Cir.1995) (en banc). Those reasons are even more compelling at this juncture because the district court has now considered the matter on the merits, rendered a decision setting forth in detail the factual findings and conclusions of law supporting its decision, and ruled that Petitioners' double jeopardy rights will be violated by retrial.

In its request for relief from the order of the district court pending appeal, the State asserts that proper deference has not been accorded to the decision of the state trial judge to grant the mistrial, suggesting that the highly deferential standard that the Supreme Court established in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), has been disregarded. Not so. As surely as Arizona v. Washington stands for the proposition that a high level of deference must be shown to the decision of the trial judge concerning the propriety of granting a mistrial, that decision stands for the proposition that this deference is not unlimited. Id. at 514, 98 S.Ct. at 834. Because a defendant possesses a constitutional right to have a particular tribunal decide his guilt or innocence once jeopardy has attached, manifest necessity must exist for the grant of a mistrial over the defendant's objection if he is to be subject to retrial. Id. at 505, 98 S.Ct. at 830. And, a reviewing court must be convinced that the trial judge exercised sound discretion in reaching its decision to grant the mistrial. ² Id. at 514, 98 S.Ct. at 834. As the matter presently stands before this court, the district court concluded that given the nature of the photographs, the circumstances surrounding the jury's viewing of them, the availability of obvious and adequate alternatives to the mistrial, ³ and the record of the consideration undertaken by the state trial court in evaluating the propriety of the mistrial, the state trial judge did not exercise sound discretion in granting the mistrial and that manifest necessity did not exist. The State presently does not assert that the district court misstated the law of double jeopardy or that the factual findings of the district court are clearly erroneous, although it does note that contrary evidence was presented. ⁴

Rather, the principal basis underlying the State's request that this court grant it relief is its contention that it will be irreparably harmed by a delay in completing Petitioners' second trial until this court has ruled. Of course, the State's argument is premised on the assumption that ultimately it will be permitted to resume the prosecution. If the second trial is not permitted, then no harm results from a temporary postponement. And, based on the showing ...