On petition for writ of certiorari to the United States Court of
Appeals for the Fourth Circuit.
The motion of respondent for leave to proceed in forma pauperis
is granted. The petition for a writ of certiorari is denied.
Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice
STEWART join, dissenting.
The respondent was charged with feloniously breaking and
entering with intent to commit larceny, and was tried by the
Circuit Court of the city of Richmond, Va., on March 10, 1980. At
approximately 4:30 p.m., the presentation of evidence and arguments
of counsel having been completed, the jury retired to deliberate.
At approximately 6 p.m., the jury recessed for the evening. The
next morning the trial court gave the jury its version of an
"Allen" charge because it sensed that the jury was having
difficulty reaching a verdict. The jury again began deliberating,
but after a little less than an hour the foreman notified the trial
court that the jury had not been able to reach a verdict. The court
then excused the jury and declared a mistrial, all without
objection from the respondent. At the same time, the court set the
case down for retrial the following month, on April 16, 1980.
On April 15, 1980, the trial court denied respondent's motion to
dismiss the indictment on the ground that a retrial would violate
the Double Jeopardy Clause of the Fifth Amendment. Respondent
sought the same relief from the Supreme Court of Virginia, which
was summarily denied on April 16, 1980. App. to Pet. for Cert. 6a.
Respondent then filed a federal habeas petition in the Eastern
District of Virginia, likewise seeking to enjoin a retrial.
Respondent contended that the trial court erred when it declared a
mistrial at the March 10, 1980, trial because there was an
insufficient showing of "manifest necessity," as required by this
Court's ruling in United States v. Perez, 9 Wheat. 579 ( 1824). On
April 17, 1980, the District Court held a hearing, apparently on
the basis of sworn allegations and responses, see App. to
Page 452 U.S.
944 , 945
Pet. for Cert. 6a, and issued a writ of habeas corpus directing
that respondent "shall be free from any further jeopardy on the
charges set forth in the indictment against him set forth in the
record in this case." Id., at 8a. This determination was in turn
affirmed on the basis of the " reasons adequately stated by the
district court" by a divided Court of Appeals on December 18, 1980.
639 F.2d
781 (CA 4).
The reasoning of the District Court seems to have been that the
jury had deliberated for a relatively short period of time:
approximately 11/2 hours on March 10th, and approximately an hour
the following day. The state judge, however, had given the jury his
version of an "Allen" charge before they commenced deliberations on
the second day, and the District Court in its findings of fact and
conclusions of law stated that "[t]here is, of course, no magic
number of hours." App. to Pet. for Cert. 7a. The second critical
flaw which the federal habeas court found in the state- court
proceedings was that the foreman of the jury had not specifically
informed the judge that the jury was deadlocked, but instead simply
stated " the jurors have not been able to reach a verdict."
Thereafter, the trial judge failed to inquire of the jury as a
whole. Ibid. The federal habeas judge explained: "I think that such
an inquiry by the court is required by the law, and in the absence
of such an inquiry there is no record which would support a finding
that a mistrial was manifestly necessary." Id., at 8a.
Certainly the "law" upon which the federal habeas judge relied
is not law which has emanated from this Court. We have recognized
that the determination of "manifest necessity" is one which a trial
court is uniquely capable of making, and said as much in United
States v. Perez, supra :
"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
opin-
Page 452 U.S.
944 , 946
ion 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. . . . But,
after all, they [the courts] 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." Id., at 580.
Over a century later, this Court noted in a somewhat different
context:
"Where, for reasons deemed compelling
by the trial judge, who is best situated intelligently to make such
a decision, the ends of substantial justice cannot be attained
without discontinuing the trial, a mistrial may be declared without
the defendant's consent and even over his objection, and he may be
retried consistently with the Fifth Amendment." Gori v. United
States,
367 U.S.
364, 368, 1526 (1961).
The classical case of "manifest necessity" in this Court, and so
far as I know in other court systems, has been the case of the
"hung jury." The federal habeas court gave a tip of its hat to the
Perez case, went on to state that "this question of manifest
necessity has been interpreted by the Third Circuit in Ruscoe and
in Webb," App. to Pet. for Cert. 7a, and the remainder of its
two-page opinion seems to consist of the federal judge's own
opinion of what the law of double jeopardy should be.
I know of no case in this Court imposing on a trial judge a
Page 452 U.S.
944 , 947
requirement that each individual juror be interrogated as to the
possibility of reaching a verdict before a mistrial is declared,
nor do I know of a single case from this Court which has ever
overturned a trial court's declaration of a mistrial after a jury
was unable to reach a verdict on the ground that the "manifest
necessity" standard had not been met. This Court reiterated in Wade
v. Hunter,
336 U.S.
684, 692, 838 (1949), what it had stated in Perez, that "the
sound discretion of a presiding judge should be accepted as to the
necessity of discontinuing a trial." And in our most recent foray
into the area of "manifest necessity," Arizona v. Washington,
434 U.S.
497, 506, 830 (1978), we stated that these words did not
"describe a standard that can be applied mechanically or without
attention to the particular problem confronting the trial
judge."
In sum, I am reluctantly led to the conclusion that the District
Court did one of two things in order to grant the relief that it
did, and that either of them merit review by this Court. Either it
simply "second- guessed" the state trial judge as to whether this
particular jury could, after further deliberation, reach a verdict,
or it created a principle of law that has never been sanctioned by
this Court to the effect that a trial judge must interrogate each
juror as to the possibility of reaching a verdict before it may
declare a mistrial because the jury has "hung." Either one of these
actions, with their concomitant affirmance by the Court of Appeals,
merits plenary review here.
In my view, the determination of "manifest necessity" is one
uniquely vested in the discretion of a trial judge, and
particularly should not be subject to attack by a habeas action
after trial counsel had failed to object to the declaration of a
mistrial. Accordingly, I dissent from the denial of the petition
for a writ of certiorari to review the action of the Court of
Appeals for the Fourth Circuit which summarily affirmed the action
of the District Court in releasing respondent from custody and
preventing a retrial.
Comments
Be the first to comment
Leave a Comment