Broderick Seay, Jr. v. Al Cannon, 927 F.3d 776

Seay was indicted in South Carolina for first-degree murder based on alleged collaboration with two co-conspirators; a cooperating witness (Startasia/Startaesia Grant) previously testified at a codefendant's trial.
The State subpoenaed Grant to appear during the court term beginning July 25, 2016; prosecutors had prepared her to testify and met with her the weekend before trial.
Grant failed to appear as subpoenaed; the jury was empaneled on July 26 and the State presented multiple witnesses before learning Grant would not come to testify on July 27.
The State sought a mistrial after efforts to locate Grant (including a bench warrant and a 24-hour adjournment) failed; the state trial court granted the mistrial without on-record discussion of alternatives.
Seay moved to dismiss on double jeopardy grounds; state courts and the federal district court denied relief; the Fourth Circuit, applying "strictest scrutiny," vacated and ordered habeas relief, holding the State failed to show manifest necessity for the mistrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a mistrial was permitted under the Double Jeopardy Clause (manifest necessity)	Seay: Mistrial not justified because the State gambled by empaneling the jury despite knowing the key witness might not appear	State: Trial judge reasonably found surprise and manifest necessity after efforts to locate the witness failed	Court: Reverse — State failed to meet heavy burden; mistrial not manifestly necessary under strictest scrutiny
Whether the prosecutor proceeded to empanel the jury while aware the critical witness might be unavailable	Seay: Record shows government knew Grant had been absent and uncooperative before empanelment, so it "took a chance"	State: Subpoena and common practice allowed scheduling flexibility; prosecutors reasonably expected Grant to appear when called	Court: Finds record supports that the State allowed jeopardy to attach despite known risk of nonappearance; Downum principle applies
Whether the trial court adequately considered less drastic alternatives before ordering a mistrial	Seay: Court made no on-record consideration of continuance or calling other witnesses	State: Court granted bench warrant, gave 24-hour continuance, heard argument, and reasonably found no viable alternative	Court: Held record lacks consideration of alternatives (e.g., further continuance or calling remaining witnesses); under strictest scrutiny court should have examined alternatives

Arizona v. Washington, 434 U.S. 497 (Sup. Ct.) (sets manifest necessity standard for mistrials and endorses deferential review except when strict scrutiny applies)
Downum v. United States, 372 U.S. 734 (Sup. Ct.) (prosecutor who empanels jury while aware a key witness is unavailable takes a chance and may be barred from reprosecution)
United States v. Jorn, 400 U.S. 470 (Sup. Ct.) (discusses need to consider continuance and alternatives before declaring mistrial)
United States v. Shafer, 987 F.2d 1054 (4th Cir.) (examines manifest necessity and importance of less drastic alternatives)
Gilliam v. Foster, 75 F.3d 881 (4th Cir.) (factors for reviewing trial judge's exercise of discretion in mistrial rulings)
Fontanez v. O'Brien, 807 F.3d 84 (4th Cir.) (standard of review for §2241 habeas challenging pretrial detention on constitutional grounds)
Phillips v. Court of Common Pleas, 668 F.3d 804 (6th Cir.) (addresses habeas §2241 review of double jeopardy claims)