STEVENS, J., DISSENTING
RENICO V. LETT
559 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 09-338
PAUL RENICO, WARDEN, PETITIONER
v.
REGINALD LETT
on writ of certiorari to the united states court of
appeals for the sixth circuit
[May 3, 2010]
Justice Stevens, with whom
Justice Sotomayor joins, and with whom Justice Breyer joins as to
Parts I and II, dissenting.
At common law, courts went to
great lengths to ensure the jury reached a verdict.
Fourteenth-century English judges reportedly loaded hung juries
into oxcarts and carried them from town to town until a judgment
“ ‘bounced out.’ ”[
Footnote 1] Less enterprising colleagues kept jurors as
de facto “prisoners” until they achieved
unanimity.[
Footnote 2] The
notion of a mistrial based on jury deadlock did not appear in
Blackstone’s Commentaries;[
Footnote
3] it is no surprise, then, that colonial juries virtually
always returned a verdict.[
Footnote
4] Well into the 19th and even the 20th century, some American
judges continued to coax unresolved juries toward consensus by
threatening to deprive them of heat,[
Footnote 5] sleep,[
Footnote 6] or sustenance[
Footnote 7] or to lock them in a room for a prolonged
period of time.[
Footnote 8]
Mercifully, our legal system has evolved, and
such harsh measures are no longer tolerated. Yet what this history
demonstrates—and what has not changed—is the respect owed “a
defendant’s valued right to have his trial completed by a
particular tribunal.”
Wade v.
Hunter,
336 U. S. 684, 689
(1949). Our longstanding doctrine applying the Double Jeopardy
Clause attests to the durability and fundamentality of this
interest.
“The reasons why this ‘valued right’ merits
constitutional protection are worthy of repetition.”
Arizona v.
Washington,
434 U. S. 497, 503 (1978).
“Even if the first trial is not completed, a second
prosecution may be grossly unfair. It increases the financial and
emotional burden on the accused, prolongs the period in which he is
stigmatized by an unresolved accusation of wrongdoing, and may even
enhance the risk that an innocent defendant may be convicted. The
danger of such unfairness to the defendant exists whenever a trial
is aborted before it is completed. Consequently, as a general rule,
the prosecutor is entitled to one, and only one, opportunity to
require an accused to stand trial.”
Id., at 503–505
(footnotes omitted).
“The underlying idea … is that the State with all
its resources and power should not be allowed to make 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 continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent he may
be found guilty.”
Green v.
United States,
355 U. S. 184,
187–188 (1957).[
Footnote 9]
We have come over the years to recognize that
jury coercion poses a serious threat to jurors and defendants
alike, and that the accused’s interest in a single proceeding must
sometimes yield “to the public’s interest in fair trials designed
to end in just judgments,”
Wade, 336 U. S., at 689; and we
have therefore carved out exceptions to the common-law rule. But
the exceptions are narrow. For a mistrial to be granted at the
prosecutor’s request, “the prosecutor must shoulder the burden of
justifying the mistrial if he is to avoid the double jeopardy bar.
His burden is a heavy one.”
Washington, 434 U. S., at 505.
A judge who acts
sU. S.onte in declaring a mistrial must
similarly make sure, and must enable a reviewing court to confirm,
that there is a “ ‘manifest necessity’ ” to deprive the
defendant of his valued right.
Ibid.
In this case, the trial judge did not meet
that burden. The record suggests that she discharged the jury
without considering any less extreme courses of action, and the
record makes quite clear that she did not fully appreciate the
scope or significance of the ancient right at stake. The Michigan
Supreme Court’s decision rejecting Reginald Lett’s double jeopardy
claim was just as clearly in error.
I
No one disputes that a “genuinely
deadlocked jury” is “the classic basis” for declaring a mistrial or
that such declaration, under our doctrine, does not preclude
reprosecution,
id., at 509; what is disputed in this case
is whether the trial judge took adequate care to ensure the jury
was genuinely deadlocked. A long line of precedents from this Court
establishes the “governing legal principle[s],”
Williams
v.
Taylor,
529 U. S. 362, 413 (2000), for
resolving this question. Although the Court acknowledges these
precedents,
ante, at 6–8, it minimizes the heavy burden we
have placed on trial courts.
“The fountainhead decision … is
United States v.
Perez, 9 Wheat. 579 (1824).”
Illinois v.
Somerville,
410 U. S. 458, 461 (1973).[
Footnote 10] Writing for a unanimous
Court, Justice Story articulated a “manifest necessity” standard
that continues to govern the double jeopardy analysis for mistrial
orders:
“We think, that in all cases of this nature, the
law has invested Courts of justice with the authority to discharge
a jury from giving any verdict, whenever, in their opinion, taking
all the circumstances into consideration, there is a manifest
necessity for the act, or the ends of public justice would
otherwise be defeated. They are to exercise a sound discretion on
the subject; and it is impossible to define all the circumstances,
which would render it proper to interfere. To be sure, the power
ought to be used with the greatest caution, under urgent
circumstances, and for very plain and obvious causes; and, in
capital cases especially, Courts should be extremely careful how
they interfere with any of the chances of life, in favour of the
prisoner. But, after all, they have the right to order the
discharge; and the security which the public have for the faithful,
sound, and conscientious exercise of this discretion, rests, in
this, as in other cases, upon the responsibility of the Judges,
under their oaths of office.”
United States v.
Perez, 9 Wheat. 579, 580 (1824).
This passage, too, is worthy of
repetition, because in it the
Perez Court struck a careful
balance. The Court established the authority of trial judges to
discharge the jury prior to verdict, but in recognition of the
novelty and potential injustice of the practice, the Court
subjected that authority to several constraints: The judge may not
declare a mistrial unless “there is a manifest necessity for the
act” or “the ends of public justice” so require; and in determining
whether such conditions exist, the judge must exercise “sound
discretion,” “conscientious[ness],” and “the greatest caution,”
reserving the discharge power for “urgent circumstances” and “very
plain and obvious causes.”
Ibid. What exact circumstances
and causes would meet that bar, the Court declined to specify.
Recognizing that trial proceedings may raise innumerable
complications, so that “it is impossible to define” in advance all
of the possible grounds for “interfere[nce],” the Court set forth
general standards for judicial conduct rather than categorical
rules for specific classes of situations.
Ibid.
The seeds of our entire jurisprudence on the
permissibility of retrial following an initial mistrial are packed
into this one passage. Later Courts have fleshed out
Perez, without making significant innovations or
additions. Justice Story’s formulation has been “quoted over and
over again to provide guidance in the decision of a wide variety of
cases,”
Washington, 434 U. S., at 506, and it has been
“consistently adhered to by this Court in subsequent decisions,”
Somerville, 410 U. S., at 462.
Thus, we have repeatedly reaffirmed that the
power to discharge the jury prior to verdict should be reserved for
“extraordinary and striking circumstances,”
Downum v.
United States,
372 U. S. 734, 736 (1963) (internal
quotation marks omitted); that the trial judge may not take this
“weighty” step,
Somerville, 410 U. S., at 471, unless and
until he has “scrupulous[ly]” assessed the situation and “take[n]
care to assure himself that [it] warrants action on his part
foreclosing the defendant from a potentially favorable judgment by
the tribunal,”
United States v.
Jorn,
400 U. S. 470, 485, 486 (1971)
(plurality opinion);[
Footnote
11] that, to exercise sound discretion, the judge may not act
“irrationally,” “irresponsibly,” or “precipitately” but must
instead act “deliberately” and “careful[ly],”
Washington,
434 U. S., at 514–515, 516;[
Footnote 12] and that, in view of “the elusive nature of
the problem,” mechanical rules are no substitute in the double
jeopardy mistrial context for the sensitive application of general
standards,
Jorn, 400 U. S., at 485 (plurality
opinion).[
Footnote 13] The
governing legal principles in this area are just
that—principles—and their application to any particular set of
facts entails an element of judgment.
As the Court emphasizes, we have also
repeatedly reaffirmed that trial judges have considerable leeway in
determining whether the jury is deadlocked, that they are not bound
to use specific procedures or to make specific findings, and that
reviewing courts must accord broad deference to their decisions.
Ante, at 6–8. But the reviewing court still has an
important role to play; the application of deference “does not, of
course, end the inquiry.”
Washington, 434 U. S., at 514.
“In order to ensure that [the defendant’s constitutional] interest
is adequately protected, reviewing courts have an obligation to
satisfy themselves that, in the words of Mr. Justice Story, the
trial judge exercised ‘sound discretion’ in declaring a mistrial.”
Ibid. “If the record reveals that the trial judge has
failed to exercise the ‘sound discretion’ entrusted to him, the
reason for … deference by an appellate court disappears.”
Id., at 510, n. 28. And while trial judges need not
follow any precise regimen to facilitate appellate review, they
must at least take care to ensure that “[t]he basis for [a]
mistrial order is adequately disclosed by the record.”
Id., at 517.
Our precedents contain examples of judicial
action on both sides of the line. We have, for instance, allowed a
second trial when the jurors in the first trial, after 40 hours of
deliberation, “announced in open court that they were unable to
agree,” and no “specific and traversable fact[s]” called their
deadlock into question.
Logan v.
United States,
144 U. S. 263,
298 (1892). We have likewise permitted reprosecution when the
initial judge heard “extended argument” from both parties on the
mistrial motion, acted with evident “concern for the possible
double jeopardy consequences of an erroneous ruling,” and “accorded
careful consideration to [the defendant’s] interest in having the
trial concluded in a single proceeding.”
Washington, 434
U. S., at 501, 515, 516.
On the other hand, we have barred retrial when
the first judge acted “abruptly,” cutting off the prosecutor “in
midstream” and discharging the jury without giving the parties an
opportunity to object.
Jorn, 400 U. S., at 487 (plurality
opinion); see also
Somerville, 410 U. S., at 469
(characterizing
Jorn judge’s actions as “erratic”). And we
have opined that, while trial judges have considerable leeway in
deciding whether to discharge the jury, “[w]e resolve any doubt in
favor of the liberty of the citizen, rather than exercise what
would be an unlimited, uncertain, and arbitrary judicial
discretion.”
Downum, 372 U. S., at 738 (internal quotation
marks omitted).
II
The Court accurately describes
the events leading up to this trial judge’s declaration of
mistrial,
ante, at 2–3, but it glides too quickly over a
number of details that, taken together, show her decisionmaking was
neither careful nor well considered. If the “manifest necessity”
and “sound discretion” standards are to have any force, we must
demand more from our trial courts.
It is probably fair to say that
this trial was not especially complex,
ante, at 4, 10, but
neither was it a trivial affair. Lett was charged with the most
serious of crimes, first-degree murder, as well as possession of a
firearm during the commission of a felony. He faced a potential
sentence of life imprisonment if convicted. Seventeen witnesses
provided testimony over the course of 10 calendar days. See 507
F. Supp. 2d 777, 779, 785–786 (ED Mich. 2007); see also
id., at 785 (discussing “piecemeal fashion” in which
evidence was presented to the jury).
The jury’s first period of deliberation on
Thursday afternoon lasted less than 40 minutes. “The jury likely
spent” that brief session “doing little more than electing a
foreperson.”
People v.
Lett, 466 Mich. 206, 227,
644 N. W. 2d 743, 755 (2002) (Cavanagh, J., dissenting). The
jury deliberated a few more hours on Friday morning prior to
discharge. During that time, it sent the trial court seven notes.
Most were inconsequential, routine queries. The first note on
Friday morning raised “ ‘a concern about [the jurors’] voice
levels,’ ” Letter from M. McCowan to Clerk of Court (Mar. 4,
2010), p. 2, but nothing in the record relates this concern to
the substance or tenor of their discussion. At 12:27 p.m., the jury
sent the fateful missive, asking: “ ‘What if we can’t agree?
[M]istrial? [R]etrial? [W]hat?’ ”
Ibid. Seconds
later, still at 12:27 p.m., the jury sent another note:
“ ‘What about lunch?’ ”
Ibid.
At 12:45 p.m., the trial judge initiated a
colloquy with the foreperson that concluded in the mistrial
declaration. See
ante, at 2–3 (reproducing transcript of
colloquy). Even accounting for the imprecision of oral
communication, the judge made an inordinate number of logical and
legal missteps during this short exchange. Cf.
Somerville,
410 U. S., at 469 (critiquing “erratic” mistrial inquiry). It does
not take much exegetical skill to spot them.
The judge began by stating: “ ‘I received
your note asking me what if you can’t agree? And I have to conclude
from that that that is your situation at this time.’ ”
Ante, at 2. This “ ‘conclu[sion]’ ” was a non
sequitur. The note asked what would happen
if the jury
could not agree; it gave no indication that the jury had
already reached an irrevocable impasse. The judge ignored
the request for information that the note actually contained.
Instead, she announced that deadlock was the jury’s
“ ‘situation at this time,’ ” thereby prejudging the
question she had ostensibly summoned the foreperson to probe:
namely, whether the jury was in fact deadlocked.
The judge continued: “ ‘I need to ask
you if the jury is deadlocked; in other words, is there a
disagreement as to the verdict?’ ”
Ante, at 2–3. As
the Federal Court of Appeals observed, this question “improperly
conflated deadlock with mere disagreement.” 316 Fed. Appx. 421, 426
(CA6 2009). Deadlock is a “condition or situation in which it is
impossible to proceed or act; a complete standstill.” 4 Oxford
English Dictionary 290 (2d ed. 1989). Disagreement among jurors is
perfectly normal and does not come close to approaching the
“imperious necessity” we have required for their discharge.
Downum, 372 U. S., at 736.
The trial judge then modulated her inquiry:
“ ‘Do you believe [the jury] is hopelessly deadlocked?’ ”
Ante, at 3. The foreperson was in the midst of replying,
“ ‘The majority of us don’t believe that—,’ ” when the
judge appears to have cut her off.
Ibid. One cannot “fault
the trial judge” for wanting “to preserve the secrecy of jury
deliberations,” 507 F. Supp. 2d, at 787, but two aspects of
the foreperson’s truncated reply are notable. First, it “tends to
show that the foreperson did not feel prepared to declare
definitively that the jury was hopelessly deadlocked.”
Ibid. If she had been so prepared, then it is hard to see
why she would begin her response with a descriptive account of the
“ ‘majority’ ” viewpoint.
Second, the foreperson’s reply suggests the
jury may have been leaning toward acquittal. Admittedly, this is
crude speculation, but it is entirely possible that the foreperson
was in the process of saying, “The majority of us don’t believe
that he’s guilty.” Or: “The majority of us don’t believe that there
is sufficient evidence to prove one of the counts.” (On retrial,
Lett was convicted on both counts.) These possibilities are, I
submit, linguistically more probable than something like the
following: “The majority of us don’t believe that Lett is guilty,
whereas a minority of us believe that he is—
and we are
hopelessly deadlocked on the matter.” And they are logically
far more probable than something along the lines of, “The majority
of us don’t believe that we will ever be able to reach a verdict,”
as the foreperson had been given no opportunity to poll her
colleagues on this point. Yet only such implausible endings could
have supported a conclusion that it was manifestly necessary to
discharge the jury.[
Footnote
14]
The judge then steered the conversation back
to the issue of deadlock, asking: “ ‘Are you going to reach a
unanimous verdict, or not?’ ”
Ante, at 3. After the
foreperson hesitated, the judge persisted: “ ‘Yes or
no?’ ”
Ibid. The foreperson replied: “ ‘No,
Judge.’ ”
Ibid. Two aspects of this interchange are
also notable. First, the judge’s question, though “very direct,”
was “actually rather ambiguous,” because it gave the foreperson no
temporal or legal context within which to understand what was being
asked. 507 F. Supp. 2d, at 787. “The foreperson could have
easily thought the judge meant, ‘Are you going to reach a unanimous
verdict in the next hour?’ or ‘before the lunch recess?’ or ‘by the
end of the day?’ ”
Ibid. (emphasis deleted). Even if
the foreperson assumed no time constraint, she could have easily
thought the judge meant, “Are you, in your estimation,
more
likely than not to reach a unanimous verdict?” An affirmative
answer to that question would likewise fall far short of manifest
necessity.
Second, the foreperson’s hesitation suggests a
lack of confidence in her position. That alone ought to have called
into question the propriety of a mistrial order. But the judge bore
down and demanded an unqualified answer, “ ‘Yes or no.’ ”
Most of the time when we worry about judicial coercion of juries,
we worry about judges pressuring them, in the common-law manner, to
keep deliberating until they return a verdict they may not
otherwise have chosen. This judge exerted pressure so as to prevent
the jury from reaching any verdict at all. In so doing, she cut off
deliberations well before the point when it was clear they would no
longer be fruitful. Recall that prior to summoning the foreperson
for their colloquy, the trial judge gave her no opportunity to
consult with the other jurors on the matter that would be
discussed. So, the foreperson had no solid basis for estimating the
likelihood of deadlock. Recall, as well, that almost immediately
after sending the judge a note asking what would happen if they
disagreed, the jury sent a note asking about lunch. Plainly, this
was a group that was prepared to go on with its work.
The judge then declared a mistrial on the
spot. Her entire exchange with the foreperson took three minutes,
from 12:45 p.m. to 12:48 p.m. App. to Pet. for Cert. 93a–94a. The
entire jury deliberations took roughly four hours. The judge gave
the parties no opportunity to comment on the foreperson’s remarks,
much less on the question of mistrial. Cf.
Washington, 434
U. S., at 515–516 (trial judge “gave both defense counsel and the
prosecutor full opportunity to explain their positions on the
propriety of a mistrial”); Fed. Rule Crim. Proc. 26.3 (“Before
ordering a mistrial, the court must give each defendant and the
government an opportunity to comment on the propriety of the order,
to state whether that party consents or objects, and to suggest
alternatives”). Just as soon as the judge declared a mistrial, she
set a new pretrial date, discharged the jury, and concluded
proceedings. By 12:50 p.m., everyone was free to take off for the
weekend. App. to Pet. for Cert. 94a.
In addition to the remarkable “hast[e],”
Washington, 434 U. S., at 515, n. 34, and
“inexplicabl[e] abrupt[ness],” 316 Fed. Appx., at 428, with which
she acted, it is remarkable what the trial judge did not do. “Never
did the trial judge consider alternatives or otherwise provide
evidence that she exercised sound discretion. For example, the
judge did not poll the jurors, give an instruction ordering further
deliberations, query defense counsel about his thoughts on
continued deliberations, or indicate on the record why a mistrial
declaration was necessary.”
Lett, 466 Mich., at 227–228,
644 N. W. 2d, at 755 (Cavanagh, J., dissenting). Nor did the
judge invite any argument or input from the prosecutor, make any
findings of fact or provide any statements illuminating her thought
process, follow up on the foreperson’s final response, or give any
evident consideration to the ends of public justice or the balance
between the defendant’s rights and the State’s interests. The
manner in which this discharge decision was made contravened
standard trial-court guidelines.[
Footnote 15] The judge may not have had a constitutional
obligation to take any one of the aforementioned measures, but she
did have an obligation to exercise sound discretion and thus to
“assure h[er]self that the situation warrant[ed] action on h[er]
part foreclosing the defendant from a potentially favorable
judgment by the tribunal.”
Jorn, 400 U. S., at 486
(plurality opinion).
Add all these factors up, and I fail to see
how the trial judge exercised anything resembling “sound
discretion” in declaring a mistrial, as we have defined that term.
Indeed, I fail to see how a record could disclose much less
evidence of sound decisionmaking. Within the realm of realistic,
nonpretextual possibilities, this mistrial declaration was about as
precipitate as one is liable to find. Despite the multitude of
cases involving hung-jury mistrials that have arisen over the
years, neither petitioner nor the Court has been able to identify
any in which such abrupt judicial action has been upheld. See Tr.
of Oral Arg. 12–15. Even the prosecutor felt compelled to
acknowledge that the trial court’s decision to discharge the jury
“ ‘clearly was error.’ ” 316 Fed. Appx., at 427 (quoting
postconviction hearing transcript).
The Michigan Supreme Court’s contrary
conclusion was unreasonable. The court suggested that an abuse of
discretion should only be found “ ‘when the result is “so
palpably and grossly violative of fact and logic that it evidences
not the exercise of will but perversity of will, not the exercise
of judgment but defiance thereof.” ’ ”
Lett, 466
Mich., at 221, n. 12, 644 N. W. 2d, at 751, n. 12
(quoting
Alken-Ziegler, Inc. v.
Waterbury Headers
Corp., 461 Mich. 219, 227, 600 N. W. 2d 638, 642 (1999)).
Finding that the record in this case “provides sufficient
justification for the mistrial declaration,”
Lett, 466
Mich., at 218, 644 N. W. 2d, at 750, the court concluded that
the declaration constituted a permissible exercise of judicial
discretion,
id., at 223, 644 N. W. 2d, at 753. The
court listed, without explaining, several reasons for this
conclusion. The jury “had deliberated for at least four hours
following a relatively short, and far from complex, trial”; it “had
sent out several notes over the course of its deliberations,
including one that appears to indicate that its discussions may
have been particularly heated”; the parties did not object to the
mistrial order; and, “[m]ost important,” “the jury foreperson
expressly stated that the jury was not going to reach a verdict.”
Ibid.; see
ante, at 10 (reprising this
list).[
Footnote 16]
These reasons do not suffice to justify the
mistrial order. Four hours is not a long time for jury
deliberations, particularly in a first-degree murder case. Indeed,
it would have been “remarkable” if the jurors “could review the
testimony of all [the] witnesses in the time they were given, let
alone conclude that they were deadlocked.” 507 F. Supp. 2d, at
786. The jury’s note pertaining to its volume level does not
necessarily indicate anything about the “heated[ness],”
Lett, 466 Mich., at 223, 644 N. W. 2d, at 753, of its
discussion. “[T]here is no other suggestion in the record that such
was the case, and the trial judge did not draw that conclusion.”
507 F. Supp. 2d, at 786. Although it would have been
preferable if Lett had tried to lodge an objection, defense counsel
was given no meaningful opportunity to do so—the judge discharged
the jury simultaneously with her mistrial order, counsel received
no advance notice of either action, and he may not even have been
informed of the content of the jury’s notes. See
ante, at
2; 316 Fed. Appx., at 428 (“At no point before the actual
declaration of the mistrial was it even mentioned on the record as
a potential course of action by the court. The summary nature of
the trial court’s actions … rendered an objection both unlikely and
meaningless” (internal quotation marks omitted)). Counsel’s failure
to object is therefore legally irrelevant.[
Footnote 17] And, as detailed above, the
foreperson’s remarks were far more equivocal and ambiguous, in
context, than the Michigan Supreme Court allowed.
The Michigan Supreme Court’s defense of the
trial court’s actions is thus weak on its own terms. It collapses
entirely under the weight of the many defects in the trial court’s
process, virtually all of which the court either overlooked or
discounted.
The unreasonableness of the Michigan Supreme
Court’s decision is highlighted by the decisions of the three other
courts that have addressed Lett’s double jeopardy claim, each of
which ruled in his favor, as well as the dissent filed by two
Michigan Supreme Court Justices and the opinion of the State’s own
prosecutor. This Court’s decision unfortunately compounds the
deleterious consequences of the Michigan Supreme Court’s ruling.
“Although the trial judge’s decision is entitled to great
deference, it is not the place of a reviewing court to extract
factoids from the record in an attempt to salvage a bad decision.”
507 F. Supp. 2d, at 787.
III
The Court does not really try to
vindicate the Michigan Supreme Court on the merits, but instead
ascribes today’s outcome to the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). The foregoing analysis shows why the
Michigan Supreme Court’s ruling cannot be saved by 28 U. S. C.
§2254(d)(1), however construed. That ruling was not only incorrect
but also unreasonable by any fair measure. Three particular facets
of the Court’s AEDPA analysis require a brief comment.
First, the fact that the
substantive legal standard applied by the state court “is a general
one” has no bearing on the standard of review.
Ante, at
11. We have said that “[t]he more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determinations.”
Yarborough v.
Alvarado,
541 U. S. 652, 664
(2004). But this statement stands only for the unremarkable
proposition that more broadly framed rules will tend to encompass a
broader set of conforming applications. Regardless of the nature of
the legal principle at issue, the task of a federal court remains
the same under §2254(d)(1): to determine whether the state court’s
decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law.” General standards are no less
binding law than discrete rules.[
Footnote 18]
Second, I do not agree that the Federal Court
of Appeals “erred” by “rel[ying] upon its own decision” applying
Arizona v.
Washington.
Ante, at 11. The
Sixth Circuit was well aware that its own decision “does not
constitute ‘clearly established Federal law, as determined by the
Supreme Court.’ ”
Ante, at 11–12 (quoting
§2254(d)(1)). The panel expressly stated that it “review[ed] the
Michigan Supreme Court’s decision to determine only whether it was
objectively unreasonable in light of the holdings of the Supreme
Court.” 316 Fed. Appx., at 425. The panel examined its own
precedents not as the relevant “clearly established Federal law”
under AEDPA, but as a tool for illuminating the precise contours of
that law. Lower courts routinely look to circuit cases to “provide
evidence that Supreme Court precedents ha[ve] clearly established a
rule as of a particular time or [to] shed light on the
‘reasonableness’ of the state courts’ application of existing
Supreme Court precedents.” 2 R. Hertz & J. Liebman, Federal
Habeas Corpus Practice and Procedure §32.3, p. 1585,
n. 10 (5th ed. 2005) (hereinafter Hertz & Liebman). This
is a healthy practice—indeed, a vital practice, considering how few
cases this Court decides—and we have never disapproved it.
Finally, I do not agree that AEDPA authorizes
“the dual layers of deference” the Court has utilized in this case.
Ante, at 11. There is little doubt that AEDPA “directs
federal courts to attend to every state-court judgment with utmost
care.”
Williams, 529 U. S., at 389 (opinion of Stevens,
J.). But the statute never uses the term “deference,” and the
legislative history makes clear that Congress meant to preserve
robust federal-court review.
Id., at 386–387; see also
Hertz & Liebman §32.3, at 1587–1589, n. 13
(summarizing congressional record and noting that “[t]he aspect of
prior practice that most troubled AEDPA’s supporters was the
federal court’s inattention to, and lack of respect for, state
court decisions that the federal court, if it only looked, would
find to be legally correct”). Any attempt to prevent federal courts
from exercising independent review of habeas applications would
have been a radical reform of dubious constitutionality, and
Congress “would have spoken with much greater clarity” if that had
been its intent.
Williams, 529 U. S., at 379 (opinion of
Stevens, J.).
So on two levels, it is absolutely “necessary
for us to decide whether the Michigan Supreme Court’s decision …
was right or wrong.”
Ante, at 11, n. 3. If a federal
judge were firmly convinced that such a decision were wrong, then
in my view not only would he have no statutory duty to uphold it,
but he might also have a constitutional obligation to reverse it.
And regardless of how one conceptualizes the distinction between an
incorrect and an “unreasonable” state-court ruling under
§2254(d)(1), one must always determine whether the ruling was wrong
to be able to test the magnitude of any error. Substantive and
methodological considerations compel federal courts to give habeas
claims a full, independent review—and then to decide for
themselves. Even under AEDPA, there is no escaping the burden of
judgment.
* * *
In this case, Reginald Lett’s
constitutional rights were violated when the trial court terminated
his first trial without adequate justification and he was
subsequently prosecuted for the same offense. The majority does not
appear to dispute this point, but it nevertheless denies Lett
relief by applying a level of deference to the state court’s ruling
that effectively effaces the role of the federal courts. Nothing
one will find in the United States Code or the United States
Reports requires us to turn a blind eye to this manifestly unlawful
conviction.
I respectfully dissent.
Footnote 1
Comment, Deadlocked Juries and Dynamite: A
Critical Look at the “Allen Charge,” 31 U. Chi. L. Rev. 386 (1964)
(citing G. Crabb, A History of English Law 287 (1829)); see
King v.
Ledgingham, 1 Vent. 97, 86 Eng. Rep. 67
(K. B. 1670); 2 M. Hale, Pleas of the Crown 297 (1736).
Footnote 2
J. Baker, An Introduction to English Legal
History 75 (4th ed. 2002); see also 1 W. Holdsworth, A History of
English Law 318–319 (rev. 7th ed. 1956).
Footnote 3
“When the evidence on both sides is closed,”
Blackstone observed of criminal cases, “the jury cannot be
discharged till they have given in their verdict.” 4 Commentaries
on the Laws of England 354 (1769).
Footnote 4
See Thomas & Greenbaum, Justice Story
Cuts the Gordian Knot of Hung Jury Instructions, 15 Wm. & Mary
Bill Rights J. 893, 897 (2007). According to these scholars, “[t]he
first report of a mistrial for failure to reach a verdict in an
American court was 1807.”
Ibid.
Footnote 5
See, e.g., Mead v.
Richland Center, 237 Wis. 537, 540–541, 297 N. W.
419, 421 (1941).
Footnote 6
See,
e.g., Commonwealth v.
Moore, 398 Pa. 198, 204–205, 157 A. 2d 65, 69
(1959).
Footnote 7
See,
e.g., Cole v.
Swan, 4
Greene 32, 33 (Iowa 1853).
Footnote 8
See,
e.g., Canterberry v.
Commonwealth, 222 Ky. 510, 513–514, 1 S. W. 2d 976,
977 (1928).
Footnote 9
As Justice Harlan observed, “[a] power in
government to subject the individual to repeated prosecutions for
the same offense would cut deeply into the framework of procedural
protections which the Constitution establishes for the conduct of a
criminal trial.”
United States v.
Jorn,
400 U. S. 470, 479 (1971) (plurality
opinion).
Footnote 10
See also
Gori v.
United
States,
367 U.
S. 364, 368 (1961) (
Perez is “authoritative starting
point of our law in this field”).
Footnote 11
See also
Jorn, 400 U. S., at 486
(“[I]n the final analysis, the judge must always temper the
decision whether or not to abort the trial by considering the
importance to the defendant of being able, once and for all, to
conclude his confrontation with society through the verdict of a
tribunal he might believe to be favorably disposed to his fate”).
Jorn was technically a plurality opinion, but in all
relevant respects it was a majority product. Justices Black and
Brennan believed the Court lacked jurisdiction over the appeal, and
for that reason they withheld their full assent.
Id., at
488 (statement concurring in judgment). “However, in view of a
decision by a majority of the Court to reach the merits, they
join[ed] the judgment of the Court.”
Ibid. As petitioner
acknowledges,
Jorn broke no new ground: Its “holding is
consistent [with] and no broader than
Perez.” Reply Brief
for Petitioner 18, n. 50.
Footnote 12
See Brief for Petitioner 13–14, 25, 32
(recognizing this “constitutional floor”).
Footnote 13
Accord,
Arizona v.
Washington,
434 U. S. 497, 506 (1978);
Illinois v.
Somerville,
410 U. S. 458, 462 (1973);
Downum v.
United States,
372 U. S. 734, 737 (1963);
Gori, 367 U. S., at 369.
Footnote 14
Another reading of the foreperson’s reply is
available: Her statement,“ ‘The majority of us don’t believe
that,’ ” may have been a complete sentence. In other words,
she may have meant to convey, “The majority of us don’t believe
that we are hopelessly deadlocked.” The trial-court transcript
places an em dash rather than a period after the word “that,” but
this is hardly dispositive evidence of intonation or intent.
However, the trial judge’s contemporaneous reaction, the fact that
the foreperson was not permitted to consult with the other jurors
on the issue of deadlock, and respondent’s failure to advance this
reading undercut its plausibility.
Footnote 15
See,
e.g., ABA Standards for
Criminal Justice, Discovery and Trial by Jury 15–5.4,
pp. 256–257 (3d ed. 1996) (“A trial judge should be able to
send the jury back for further deliberations notwithstanding its
indication that it has been unable to agree. The general view is
that a court may send the jury back for additional deliberations
even though the jury has indicated once, twice, or several times
that it cannot agree or even after jurors have requested that they
be discharged. … [I]t is believed that a jury should not be
permitted to avoid a reasonable period of deliberation merely by
repeated indications that it is unhappy over its inability to
agree”); Federal Judicial Center, Manual on Recurring Problems in
Criminal Trials 162 (5th ed. 2001) (“Before declaring a mistrial, a
trial judge must consider all the procedural alternatives to a
mistrial, and, after finding none of them to be adequate, make a
finding of manifest necessity for the declaration of a mistrial”);
National Conference of State Trial Judges of the Judicial
Administration Division of the American Bar Association and the
National Judicial College, The Judge’s Book 220 (2d ed. 1994) (“The
jury should be given full opportunity to decide the case,
considering the number of days of evidence it heard”); State
Justice Institute, National Center for State Courts & National
Judicial College, Jury Trial Management for the 21st Century §3,
Module #3 (2009), online at http://www.icmelearning.com/jtm (as
visited Apr. 30, 2010, and available in Clerk of Court’s case file)
(“ ‘Deliberating jurors should be
offered assistance
when apparent impasse is reported’ ”).
Footnote 16
Like the trial court before it, the Michigan
Supreme Court did not make any factual findings to bolster its
unreasonable legal conclusion. As the State Court of Appeals noted,
the trial judge declared a mistrial as soon as she extracted a
suggestive answer from the foreperson. She “never even found on the
record that the jury was genuinely deadlocked.”
People v.
Lett, No. 209513, 2000 WL 33423221, *4 (Apr. 21, 2000)
(per curiam); see also
People v.
Lett,
466 Mich. 206, 225, 644 N. W. 2d 743, 754 (2002) (trial court
did not “articulate a rationale on the record”). The Michigan
Supreme Court expressly declined to commit to the position that the
jury really was deadlocked or that manifest necessity really did
exist. See,
e.g., id., at 220, 644 N. W. 2d,
at 751 (“The issue is not whether this Court would have found
manifest necessity”). Accordingly, even if 28 U. S. C.
§2254(e)(1) were to apply to this appeal, there were no
“determination[s] of a factual issue made by a State court” that we
would have to “presum[e] to be correct.” In any event, none of the
relevant facts in the case are disputed, and no argument concerning
§2254(e)(1) was properly raised in this Court or passed upon
below.
Footnote 17
See
Jorn, 400 U. S., at 487
(plurality opinion) (“[I]ndeed, the trial judge acted so abruptly
in discharging the jury that, had the … defendant [been disposed]
to object to the discharge of the jury, there would have been no
opportunity to do so”); see also
Lett, 2000 WL 33423221,
*2 (noting that failure to object to the jury’s discharge does not
constitute consent under Michigan law). While a defendant’s
affirmative request for or consent to a mistrial may be relevant to
the double jeopardy inquiry, see,
e.g., Jorn, 400
U. S., at 485 (plurality opinion), we have never suggested that
defendants must object to such orders to preserve a claim, much
less object to an order issued
sU. S.onte and without any
advance notice.
Footnote 18
In recognition of this basic insight, our
precedents “have made clear” that a state-court decision may be
“unreasonable” within the meaning of §2254(d)(1) when the “state
court has misapplied a ‘governing legal principle’ to ‘a set of
facts different from those of the case in which the principle was
announced.’ ”
Wiggins v.
Smith,
539 U. S. 510, 520
(2003) (quoting
Lockyer v.
Andrade,
538 U. S. 63, 76 (2003));
see also
Williams v.
Taylor,
529 U. S. 362, 413 (2000). This is a
critical feature of our AEDPA jurisprudence. Federal habeas review
would be meaningless if, for relief to be granted, we required a
perfect congruence between the facts that gave rise to our
governing precedents and the facts that confronted the state court
in any particular case.
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