Washington v. Jarvis
| Decision Date | 08 March 2004 |
| Docket Number | No. CIV.A. 02-1798-AM.,CIV.A. 02-1798-AM. |
| Parties | Darrell WASHINGTON, Petitioner, v. Larry JARVIS, Warden Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Darrell Washington, Bland, VA, pro se.
Virginia Theisen, Esquire, Office of the Attorney General, Richmond, VA, Reston, VA, for defendant.
This pro se matter is before the Court on petitioner Darrell Washington's ("Washington") Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.1 The issue before this Court is whether Washington is entitled to a writ of habeas corpus because the Supreme Court of Virginia's decision in Commonwealth v. Washington, 263 Va. 298, 559 S.E.2d 636 (2002), was an objectively unreasonable application of clearly established federal law on double jeopardy or was based on an unreasonable determination of the facts. This case concerns Washington's claim that his second criminal trial violated his Fifth Amendment right against double jeopardy. Washington contends that his first trial ended when the trial judge sua sponte declared a mistrial after the jury had been empaneled and sworn. The trial judge declared a mistrial due to a potential shortage of jurors. Washington did not consent to the mistrial. After the mistrial was declared, Washington's counsel immediately filed a motion to dismiss the indictment because double jeopardy would bar a second trial against Washington. Nonetheless, the motion was denied and a second trial was held. Washington then was convicted of robbery and the use of a firearm during the commission of a robbery. The Court of Appeals of Virginia held that the Double Jeopardy Clause barred Washington's second trial, reversed the circuit court's judgment, and dismissed Washington's convictions. The Supreme Court of Virginia reversed the judgment of the Court of Appeals and reinstated Washington's convictions, holding that Washington had consented to the mistrial by not explicitly objecting to it, thereby waiving his double jeopardy argument.
Washington argues that the Supreme Court of Virginia's decision was an unreasonable ap0lication of existing federal law because it failed to recognize that Washington had preserved his double jeopardy argument by objecting to the trial judge's sua sponte declaration of a mistrial. The respondent asserts that the Supreme Court's decision was not contrary to, nor an unreasonable application of a clearly established United States Supreme Court decision, nor was it based on an unreasonable determination of the facts. The Court holds that the Supreme Court of Virginia acted unreasonably in its application of clearly established federal law when it held that Washington's failure to explicitly object to the mistrial necessarily equaled consent to the mistrial. In addition, the Supreme Court of Virginia made an unreasonable determination of the facts by relying on facts that are clearly refuted by the trial transcripts and by disregarding facts on the record that clearly establish Washington did not consent to the trial judge's sua sponte declaration of a mistrial. Thus, because we hold that the Supreme Court of Virginia's decision was an unreasonable application of clearly established federal law of double jeopardy and an unreasonable determination of the facts in the record, Washington did not waive his objection to the mistrial, and there was no manifest necessity for the mistrial, Washington's petition for a writ of habeas corpus is GRANTED.
Washington's first trial for robbery and the use of a firearm during the commission of a robbery began on December 15, 1999, in the Circuit Court of Arlington County, Virginia. (Tr. # 1, 1). Twenty prospective jurors were called to the jury box.2 (Tr. # 1, 6-10). One of the prospective jurors immediately informed the judge that he had been excused from jury duty for the following day. (Tr. # 1, 7). After determining that the trial might carry over another day, the judge asked if any other jurors had been excused for the next day. Id. Four prospective jurors answered affirmatively. Id. The judge decided to proceed with jury selection despite the potential for an insufficient number of jurors, stating "[l]et's see if we don't cure this as we go." (Tr. # 1, 8).
Following the introduction of counsel for both the Commonwealth and Washington, the judge asked those jurors that had been excused for the following day to raise their hands. (Tr. # 1, 12). The judge indicated that a similar problem had occurred in a trial the previous day and that, while he had hoped strikes would cure the problem, he had instead been forced to use alternates. Id. Counsel proceeded with voire dire. (Tr. # 1, 15-27). Before ordering counsel to exercise their strikes, the judge asked, for the third time, those prospective jurors excused for the next day to raise their hands. (Tr. # 1, 27-28). At this moment, Washington's counsel requested to approach the bench. (Tr. # 1, 28). Counsel for Washington informed the court that she would not use her strikes based on the availability of jurors. Id. The court acknowledged that neither the defense nor the Commonwealth was required to take the prospective juror's availability into consideration when determining who to strike from the jury. Id.
While counsel prepared their strikes, the judge instructed the jury as to how the trial would proceed. (Tr. # 1, 29-37). During this address, the judge once again acknowledged the potential problem of a shortage of jurors by stating that "the excused jurors for tomorrow, even though I made it utterly clear to counsel that they are excused, may or may not be stricken, and I will have to deal with that depending on how the strikes go." (Tr. # 1, 30). The judge then proceeded with striking jurors. (Tr. # 1, 37).
Following the administration of strikes, one of the twelve remaining jurors reminded the court that he was excused for the next day. (Tr. # 1, 38). The judge responded (Tr. # 1, 38). However, before the judge dealt with those remaining jurors that were excused, the jury panel was sworn by the clerk. (Tr. # 1, 38-39). The judge then proceeded to ask once again who was excused for the next day. (Tr. # 1, 39). One juror answered affirmatively and the judge asked counsel if they wanted alternates. Id. Because neither counsel responded immediately, the judge decided that alternates were necessary. Id.
While acknowledging that a statutory procedure existed for selecting alternates,3 the judge suggested a different procedure whereby the two remaining jurors, who had not been called in the original twenty, would be put in a pool with two jurors who had been previously stricken. (Tr. # 1, 39-40). Out of this pool of four, each side would have one strike leaving two alternates. (Tr. # 1, 40). After it became clear to the judge that this process was not acceptable to counsel, the jury panel and remaining prospective jurors were directed to leave the courtroom. (Tr. # 1, 41). Following the jurors' departure, both counsel for Washington and the Commonwealth further objected to the procedure suggested by the judge because neither wanted to have to select alternate jurors from people they had previously struck. (Tr. # 1, 41-44). The judge suggested that he call the two jurors who were not previously called and allow the defense to have one strike leaving one alternate. (Tr. # 1, 45). Again, both counsel objected. (Tr. # 1, 45-48).
Defense counsel stated that the judge was aware of the potential for an insufficient number of jurors early on and that the court should have taken those jurors excused for the next day out of the pool. (Tr. # 1, 45). Counsel continued that had this in fact resulted in an insufficient number of potential jurors, the judge could have continued the case until enough jurors were available. (Tr. # 1, 46). Finally, defense counsel objected to the fact that the alternate juror would know that he or she was an alternate. (Tr. # 1, 46-47). Counsel for the Commonwealth objected because he would be out of a strike and the defense would be provided the opportunity to pick the alternate. (Tr. # 1, 48). The following exchange ensued:
We do not have sufficient jurors to have a replacement for the juror sworn.
That's a mistrial.
You're objecting to my attempted cure to get a jury in the box, and you have a right to do that, and you have statutory authority for it.
MS. WOLFE: And we can set a date.
(Tr. # 1, 48-50) (emphasis added).
After a sua sponte mistrial was twice declared, and the...
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Kahlil v. Commonwealth, Record No. 0705-07-4 (Va. App. 5/6/2008)
...States Court of Appeals for the Fourth Circuit. See Washington v. Jarvis, 307 Fed. Appx. 543, 553 (4th Cir. 2005) aff'g 307 F. Supp. 2d 794, 809 (E.D. Va. 2004) (granting writ of habeas corpus). However, the decisions of our Supreme Court are binding precedent for this Court. See Anderson v......