Lead Opinion
MсKEAGUE, J., delivered the opinion of the court, in which ROGERS, J., joined. GUY, J. (pp. 671-73), delivered a separate dissenting opinion.
OPINION
Following four weeks of trial on murder, kidnaping, rape and other charges, and during the second day of jury deliberations, the Ohio trial court declared a mistrial after receiving a note from the foreperson indicating the jury’s deliberations had been tainted by extraneous information. Prior to commencement of the second trial, however, the trial court, in the person of a replacement visiting judge, granted defendant Denny Ross’s motion to bar reprosecution on double jeopardy grounds, concluding there was no “manifest necessity” for mistrial. This ruling was reversed by the Ohio Court of Appeals and the Ohio Supreme Court denied leave to appeal. Defendant thereupon sought pretrial habeas relief in federal court, which was granted. The district court held that the Ohio Court of Appeals’ ruling represents an unreasonable application of clearly established federal law. On appeal, the Summit County Court of Common Pleas contends the district court failed to abide by the deferential standard of review made applicablе by the Anti-Terrorism and Effective Death Penalty Act. For the reasons that follow, we agree. The district court’s judgment granting the writ of ha-beas corpus will therefore be reversed.
I. BACKGROUND
The material facts are not disputed. In connection with the murder of 18 year-old Hannah Hill, defendant Denny Ross was charged in Summit County Court of Common Pleas with murder, aggravated murder, rape, kidnaping, tampering with evidence, and abuse of a corpse. Trial commenced on September 28, 2000. At the close of the prosecution’s case, the trial court, Judge Jane
THE COURT: All right. For purposes of the record, the jury is not present. Court received from the bailiff the following note from the jury as follows:
“There is concern about a juror. I was approached by a spokesperson for four other jurors. From comments made by this juror these four jurors feel that he is agreeing with the group to expedite this process. I was told by these jurors that they [sic] following comments were made.” And that’s verbatim.
“No. 1, we need to get this done today.
“No. 2, why are we even discussing this. He has stated all along that he believes one thing but has all too quickly changed his vote to go along with the group. This morning this juror stated to me that we need to finish this today as he will be leaving after today because he has a problem at home but he did not want to put us in that position.
“To another juror he made the comment that he knows that Brad O’Born was innocent because he passed a polygraph test so Denny Ross had to be guilty.
“I have been asked if this juror can be released so that he may attend to his affairs at home and we can have an impartial and fair jury.”
It’s signed, “Juror No. 4.”
Trial tr. pp. 1264-65, JA 43^4.
The prosecutor consentеd, but defendant did not. Observing that the extraneous information that had come to light was not favorable to the defense, defendant requested essentially that the jury be instructed to continue deliberating and that a mistrial be declared, at defendant’s option, only if an adverse verdict (evidencing the possible influence of the extraneous information) were returned. Alternatively, defendant moved for a mistrial with prejudice. The trial court denied both requests.
Then, Judge Bond, alone, met with the jury in the jury room. She explained to the jurors what she had done, learned that some of the jurors were “extremely upset,” and invited any who had concerns to speak with her privately in her chambers. Hrg. tr. p. 104, JA 210. Five jurors spoke individually with Judge Bond. During one of these conversations, she learned for the first time that the jury had completed and signed verdict forms unanimously finding defendant not guilty of the charged offenses of murder, aggravated murder and rape (though the jury had not yet reached a decision on the remaining two charges, tampering with evidence and abuse of a corpse). Judge Bond instructed her bailiff to retrieve the verdict forms from the jury room. She then released the jurors without making further inquiry about the juror misconduct and without giving counsel a chance to speak with them. Only after the jurors had left the building did Judge Bond advise counsel of the signed verdict forms.
A new trial was set to commence on January 8, 2001. Defendant moved the court to bar retrial on double jeopardy grounds. He also moved to disqualify Judge Bond from hearing the motion, as she would likely be called as a witness. The motion to disqualify was granted and Visiting Judge Joseph Cirigliano was assigned to the case. He conducted an evi-dentiary hearing on the motion to bar retrial on May 22, 2001. Judge Cirigliano granted the motion to bar retrial in an opinion issued February 15, 2002. He summarized the rationale for his decision as follows:
In the present case there existed no manifest necessity for declaring a mistrial. Reasonable alternatives to a mistrial existed and the public interest in fan-trials designed to end in just judgments was not met by the trial court’s declaration of a mistrial. The trial court abused its discretion in declaring a mistrial because it failed to investigate the information set forth in the jury note, it failed to explore alternatives to declaring a mistrial, it failed to take into consideration the verdicts that had been reached by the jury, it failed to ascertain whether any prejudice existed as a result of the information related in the foreperson’s note, it failed to attempt to cure any taint which may have existed, it acted precipitately in the declaration of a mistrial, and it failed to duly consider the defendant’s right to have his trial completed by a particular tribunal, especially in light of the fact that this is a capital case.
Opinion pp. 15-16, JA 341-42.
The State of Ohio appealed this ruling. In a 2-1 decision filed on December 31, 2002,
After the Ohio Supreme Court declined to hear defendant Ross’s appeal from the court of appeals’ ruling, he filed his habeas petition in the Northern District of Ohio on May 6, 2004. The petition was first evaluated by Magistrate Judge Kenneth S. McHargh, who issued a 74-page report and recommendation on May 3, 2005, recommending that the petition be granted. On August 22, 2005,
On appeal, Summit County Court of Common Pleas insists the Ohio Court of Appeals’ decision passes muster under AEDPA review and contends the district court’s order granting habeas relief should therefore be reversed.
II. ANALYSIS
A. Standard of Review
We review the district court’s decision to grant the writ of habeas corpus de
The “manifest necessity” question presented in this case has now been reviewed by numerous judges and has yielded several carefully reasoned opinions, among which there is no consensus. As the manifest necessity question finally reaches us on appeal in habeas, the merits of the question are viewed through multiple lenses of deference. Foremost among these lenses is that prescribed by Congress in AEDPA. Pursuant to AEDPA, in relevant part, a writ of habeas corpus shall not issue unless the state court adjudication “resulted in a decision that was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In Walls v. Konteh,
A state-court decision is considered “contrary to ... clearly established Federal law” if it is “diametrically different, opposite in character or nature, or mutually opposed.” Williams v. Taylor,529 U.S. 362 , 405,120 S.Ct. 1495 ,146 L.Ed.2d 389 (2000) (quotation marks omitted). Alternatively, to be found an “unreasonable application of ... clearly established Federal law,” the state court decision must be “objectively unreasonable” and not simply erroneous or incorrect. Id. at 409-11,120 S.Ct. 1495 . In short, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also have been unreasonable.” Id. at 411,120 S.Ct. 1495 .
Moreover, “clearly established federal law” is determined by “the holdings, as opposed to the dicta,” of United States Supreme Court decisions, as of the time of thе state court decision under review. Carey v. Musladin, [549] U.S. [70],127 S.Ct. 649 , 653,166 L.Ed.2d 482 (2006) (quoting Williams,529 U.S. at 412 ,120 S.Ct. 1495 ).
Walls,
The substantive law defining a defendant’s rights under the Double Jeopardy Clause is set forth most relevantly in Arizona v. Washington,
The Washington court recognized that a defendant’s right, pursuant to the Double Jeopardy Clause, to have his trial, once commenced, completed by a particular tribunal, is a “valued right,” but one which must sometimes “be subordinated to the public’s interest in fair trials designed to end in just judgments.” Id. at 503 n. 11,
When a mistrial is premised on the prejudicial impact of improper evidence or argument, the trial judge’s evaluation of the possibility of juror bias is entitled to “great deference.” Id. at 511-14,
Applying these principles, the Washington Court reversed the Ninth Circuit’s ruling and upheld the trial court’s declaration of a mistrial based on improper argument made by defense counsel in his opening statement. In reaching this result, the Court determined that the trial judge “exercised sound discretion” even though he made no explicit finding of manifest necessity and even though the mistrial was not strictly “necessary” inasmuch as thе possibility of juror bias might have been neutralized by the giving of an appropriate cautionary instruction. “Nevertheless,” the Court observed, “the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.” Id. at 511,
There are compelling institutional considerations militating in favor of appellate deference to the trial judge’s evaluation of the significance of possible juror bias. He has seen and heard the jurors during their voir dire examination. He is the judge most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors. In short, he is far more “conversant with the factors relevant to the determination” than any reviewing court can possibly be.
Id. at 513-14,
Thus, a federal court acting in habeas and reviewing state court rulings on the declaration of a mistrial based on the possibility of juror bias is obliged to scrutinize the state court rulings through two lenses of deference.
B. District Court Opinion
The district court’s opinion is marked by a fundamental flaw. It misapprehends the controlling federal law and consequently fails to accord due deference to the Ohio Court of Appeals’ ruling, per AEDPA.
In holding that the Ohio Court of Appeals’ ruling represents an unreasonable application of clearly established federal law, the district court adopted five words from the Supreme Court’s plurality opinion in United States v. Jorn,
In making this assessment, the district court substantially confined its scrutiny to the record facts known to Judge Bond when she declared the mistrial. As evidence that Judge Bond did not act scrupulously, the district cоurt cited the following facts: (1) she made no effort to ascertain the truth of what was contained in the foreperson’s note; (2) she made no effort to determine whether the extra-judicial information had indeed resulted in corruption of a juror; and (3) although she gave the parties opportunity to state their positions, she did not fully explore available alternatives. Id. at 23-24, JA 468-69.
First, the language found in the plurality Jom opinion is not a Supreme Court “holding” that reflects clearly established federal law. The term “scrupulous exercise of judicial discretion” does appear in the Jom opinion, but it is not integral to the holding. The Jom holding can only be ascertained in light of the facts of the case. In Jom, the trial judge had refused to allow taxpayer witnesses to testify for the government because he did not believe the prosecuting attorney’s assurances that they had been given adequate warnings of their constitutional rights. The judge then precipitously, without warning or consultation with counsel for the parties, discharged the jury. “[Ijndeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so.” Jorn,
Hence, the “scrupulous exercise of judicial discretion” language is actually dictum in Jom, ie., a remark not essential to the Jom holding. In Jom, reprosecution was barred not because the trial judge failed to act “scrupulously,” but because he “made no effort to exercise sound discretion.'” Thus, the “scrupulous exercise of judicial discretion” standard is not reflective of Jom’s holding and is not reflective of clearly established federal law. That the “scrupulous exercise of judicial discretion” standard is not part of the clearly established federal law is confirmed by the fact that the term makes no appearance in Arizona v. Washington, which represents not only a more recent, but also a more thorough, treatment of the governing standards.
Moreover, the Ohio Court of Appeals’ ruling is not contrary to or an unreasonable application of federal law as prescribed in Jom because Judge Bond’s declaration of mistrial cannot be said to have been marked by no effort to exercise sound discretion. Unlike the trial judge in Jom, Judge Bond did not act abruptly, but gave the parties opportunity to consider the ramifications of the foreperson’s note; gave the parties opportunity to state their positions and proposals on the record; invited them to request her to conduct voir dire examination of the jurors; and explicitly considered and rejected at least some alternatives to declaration of a mistrial.
C. Ohio Court of Appeals’ Ruling
1. Petitioner’s Objections
Petitioner maintains that the Ohio Court of Appeals’ ruling is flawed. The specific question we confront, however, is whether it is contrary to or an unreasonable application of clearly established federal law.
Petitioner contends that the Ohio Court of Appeals subjected Judge Bond’s declaration of mistrial to review for mere abuse of discretion and thereby applied the wrong standard of review. Petitioner insists it was not incumbent on him to show that Judge Bond abused her discretion. Rather, he argues, the prosecution should have been made to bear the burden of proving that Judge Bond’s declaration of mistrial constituted a “scrupulous exercise of judicial discretion.”
Application of the Jom “scrupulous exercise” language as governing standard has been shown to be erroneous. Careful reading of Washington, which contains more explicit instruction on the governing standards and represents a superior embodiment of clearly established federal law, reveals that a reviewing court is obliged to satisfy itself, with great deference to the trial judge’s assessment of possible juror bias, that the trial judge exercised “sound discretion.” The Ohio Court of Appeals was cognizant of its duty to ensure that Judge Bond exercised sound discretion. Citing Washington,
Petitioner’s contention that the Ohio Court of Appeals failed to hold the prosecution to its burden of proving manifest necessity is similarly unavailing. Yes, the prosecution bears the burden of justifying the mistrial declared over the defendant’s objection. Washington,
Petitioner also contends the court of appeals evaluated Judge Bond’s actions based on an improperly truncated record. Petitioner insists that consideration of the evidentiary record created by Judge Cirig-liano, including evidence regarding the discovery of the completed verdict forms, is essential to assessing the soundness of Judge Bond’s exercise of discretion. He contends the court of appeals, by limiting its review of manifest necessity to the facts known to Judge Bond when she declared the mistrial, disregarded Judge Bond’s authority to revisit her mistrial ruling. Petitioner argues that under Ohio law, Judge Bond’s oral declaration of mistrial, albeit on the record, had not become final and effective at the time the verdict forms were discovered because it had not been memorialized in a journal entry. See State v. Stewart,
First of all, the authority of a trial court under Ohio law to reconsider its decision after having discharged the jury in open court is limited — even before the journal entry has been made. It is a determination that must be made “on a case-by-case basis based upon the facts of eaсh particular situation.” Gugliotta v. Morano,
In Stewart, too, the trial court reconvened a jury a few minutes after having declared a mistrial and discharged the jury.
The unpublished opinion in Stewart may be reconcilable with the more recent published opinion in Gugliotta on the basis of its materially distinguishable facts. At the very least, however, Gugliotta teaches that a trial court’s authority to reconsider an order discharging the jury is narrowly circumscribed and must be justified by the particular facts presented. Careful scrutiny of the instant facts, to the extent they are developed in the record, reveals that they more closely resemble those presented in Gugliotta than those presented in Stewart.
The verdict forms represented a surprising development — the sort of surprise Judge Bond had attempted to prevent by proposing voir dire examination of the jurors when the foreperson’s note was first delivered to her. Yet, both parties had steadfastly objected to the proposal, preferring to take their chances with Judge Bond’s ruling on the question of mistrial. It was certainly foreseeable that, once the status of the jurors’ deliberations came to light, one party or the other would come to regret the earlier failure to voir dire the jurors. Yet, both were willing to assume this risk.
It is undisputed that the verdict forms played no role in Judge Bond’s decision to declare a mistrial. In. her opinion, the verdict forms, discovered during ex parte communications between herself and the jurors, after the mistrial had been declared and the jurors were officially discharged, but before they were actually dismissed, simply came to light too late to make a difference. Hrg. tr. pp. 156-58, JA 262-64. Consistent with the “well established” teaching of Gugliotta,
Moreover, the mere fact of the intervening ex parte communications, creating at least a substantial “potential for prejudice,” all but forеclosed the possibility of reconvening the jury. Gugliotta,
Judge Bond also believed the partial verdict ostensibly reached by the jury before their deliberations were interrupted, whether guilty or not guilty, could not be accepted because any verdict was irreversibly tainted by juror corruption. Hrg. tr. at 108, 134, JA 214, 240. Indeed, the verdict forms discovered in this case stood on quite a different footing than those discovered in Stewart, where the jury had been рrematurely discharged on the trial judge’s mistaken understanding that it was deadlocked on all charges. In Stewart, it was a simple matter to confirm that the ballots discovered in the jury room accurately reflected the final and unanimous decision of the jury on three of the four pending charges and to accept them as the jury’s verdict. In Stewart, there was no concern about the jury’s impartiality having been tainted by extraneous information or by intervening ex parte communications with the trial court or its staff.
Here, in contrast, the mistrial was declared and the jury discharged because a note from the foreperson indicated jurors’ concerns about juror corruption — corruption that arguably resulted in prejudice to both parties and undeniably impugned the integrity of the jury’s deliberations. In fact, it appears to have been the very unanimity of the tentative verdicts, being inconsistent with the tenor of the jurors’ deliberations, that precipitated the jurors’ concerns in the first place — during the pendency of ongoing deliberations. The extent of the prejudice remained uncertain because the parties adamantly objected to voir dire of the jurors and Judge Bond elected not to overrule the objection and conduct voir dire sua sponte. When the verdict forms were discovered, they helped define the extent of the prejudice emanating from the juror corruption and suggested that, at least in relation to three of five charges still pending against petitioner, the extraneous polygraph information had not resulted in prejudice to him. The extent to which the juror corruption had resulted, however, in prejudice to the prosecution’s interest and the public’s interest in a fair trial remained indeterminate. Judge Bond arguably could have made inquiry of the jurors to answer this question, but in doing so, would have run afoul of Gugliotta’s proscription against “limitless inquests regarding a trial court’s discharge, or failure to discharge, a jury.”
To be sure, Judge Bond’s handling of the discovery of the signed verdict forms— releasing the jurors before advising counsel of the discovery and giving them opportunity to comment on their significance— was far from commendable. Yet, when the existence of the vеrdict forms was made known to counsel, neither party asked Judge Bond to reconsider the mistrial ruling or for any other relief. Id. at 149, JA 255. Hence, whether the late-discovered verdict forms could have been legitimately used to justify Judge Bond’s reconsideration of her mistrial ruling is, on the present record, a matter of speculation. WTiat is clear from the above discussion, however, is that petitioner’s argument, with reference to Ohio law, that Judge Bond’s failure to sua sponte reconsider her mistrial was an abuse of discretion is unpersuasive. Instead, it appears likely that if Judge Bond had explicitly reexamined her mistrial ruling in light of the late-discovered verdict forms, she
Even more importantly, it follows that the Ohio Court of Appeals did not err by excluding the verdict forms from its review of Judge Bond’s mistrial ruling. An appellate court is hardly at liberty to use the 20/20 vision of hindsight in evaluating whether a mistrial decision represented an exercise of sound discretion, but must, in the exercise of due deference, necessarily confine its review to the facts known to the trial judge when the mistrial was declared. It is undisputed that Judge Bond knew nothing of the verdict forms at the time she declared the mistrial. Even if she had the authority and ought to havе explicitly reexamined the decision when she became aware of the verdict forms, it appears she would have been unavoidably constrained under Ohio law to confirm the decision. We therefore find no error in the court of appeals’ decision to confine its review of her manifest necessity determination to the facts known to her when she made the ruling. Finally, and most importantly, for purposes of our limited review under AEDPA, the court of appeals’ refusal to engage in such speculative analysis has not been shown to be contrary to or an unreasonable application of clearly established federal law, as set forth in any holding of the United States Supreme Court.
2. Merits of Ohio Court of Appeals’ Decision
We turn next to the task of reviewing the merits of the Ohio Court of Appeals’ ruling. The court of appeals did not fault Judge Bond for failing to determine whether the contents of the foreperson’s note were true, observing that notes received from the jury are typically accepted at face value. The court of appeals characterized the note, advising the court of juror misconduct, as “inherently
As to Judge Bond’s failure to conduct voir dire examination of jurors to ascertain whether the extraneous polygraph information had actually influenced their deliberations, the court of appeals again emphasized both parties’ express objections to voir dire: “To fault the original trial judge, in hindsight, for failing to voir dire the jurors over the objections of both parties is a tactic that this court cannot countenance.” Decision p. 19, JA 361. In evaluating Judge Bond’s exercise of discretion, the court of appeals noted that she clearly considered the option of questioning the jurors, but she deferred to the joint request of the parties that she refrain from doing so. The court of appeals observed: “That the trial judge honored the wishes expressed by the parties and did not voir dire any of the jurors seems to comport with an exercise of sound discretion, not an abuse of it.” Id. at 20-21, JA 362-63.
Naturally, Judge Bond had the prerogative to conduct voir dire examination of the jurors over the parties’ objections to ensure a fair trial by an impartial jury. See United States v. Davis,
The court of appeals’ deference to Judge Bond’s decision not to voir dire the jurors is also consistent with Washington’s insistence on apрellate deference to the trial judge’s evaluation of possible juror bias: “[T]he overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.” Id. at 511,
Again, the court of appeals’ analysis in this regard has not been shown to be contrary to or an unreasonable application of controlling federal law. In Washington, the Court made it clear that a court need not exhaustively consider all possible alternatives before finding “manifest necessity” for a mistrial. Even where an alternative remedy as simple as a cautionary instruction might have been effective, rendering declaration of a mistrial not “necessary” in the strict, literal sense, the Washington Court declined to second-guess the soundness of the trial court’s exercise of discretion.
The court of appeals’ decision is also consistent with Washington’s “sliding scale of scrutiny” teaching. Because the mistrial was not precipitated by prosecutorial or judicial misconduct or error, the strictest scrutiny is not appropriate. See id. at 508,
The predominant thrust of the Washington opinion, which is well-illustrated by its holding, is its emphasis on the need for appellate courts to recognize the trial court’s prerogative to “exercise broad discretion in deciding whether or not .‘manifest necessity’ justifies a discharge of the jury.” Id. at 509,
This conclusion is consistent with and further buttressed by the Sixth Circuit’s recent decision in Walls v. Kontek,
Our decision today is entirely consistent with the analysis employed in Walls. The circumstances with which Judge Bond was faсed were not quite as unique as those presented in Walls, but the likelihood of juror misconduct and corruption was even more clearly established. Judge Bond’s handling of the matter, like the trial court’s handling of the circumstances it faced in Walls, could have been better. Yet, as Washington makes clear, the manner in which the mistrial ruling was made is not determinative. See Walls,
III. CONCLUSION
For the foregoing reasons, the district court’s judgment, granting the petition for writ of habeas corpus, is REVERSED.
Notes
. Brad O’Born apparently was the boyfriend of the victim and was a suspect in the investigation of her death. No evidence was introduced at trial that O'Born had ever been subject to polygraph examination. However, Judge Bond recalled that this information had been the subject of pretrial publicity in the Akron Beacon Journal newspaper. Hrg. tr. p. 160-61, JA 266-67.
. Ohio Rev.Code § 2945.36 provides:
The trial court may discharge a jury without prejudice to the prosecution:
(A) For the sickness or corruption of a juror or other accident or calamity;
(B) Because there is no probability of such jurors agreeing;
(C) If it appears after the jury has been sworn that one of the jurors is a witness in the case;
(D) By consent of the prosecuting attorney and the defendant.
The reason for such discharge shall be entered on the journal.
. Judge Bond’s construction of the note as signaling a development adverse to defendant’s interests is incomplete. The note can also be read as implying that at least a majority of the jurors were inclined to find defendant not guilty and that a “hold-out juror,” whose contrary view was impermissibly based at least in part on extraneous information, had decided to "give in” in order to facilitate the reaching of a unanimous verdict by the end of the day. Standing alone, the supposed polygraph test results did not, of course, work in defendant's favor. But the context in which the information arose suggested that, to the extent the information had been shared, it had not swayed other jurors; and, in fact, the disseminator of the information had even decided to abandon his reliance on it in casting his own vote. In sum, then, the note appeared to be good news to defendant.
. See also Watkins v. Cleveland Clinic Found.,
. Petitioner's reliance on Corey v. District of Vermont, Unit # 1,
There are significant differences between the events that transpired here and those that occurred in Corey. First, the trial judge in Corey had only informed the parties' lawyers of his intent to declare a mistrial when the jury returned a verdict.
. Judge Bond identified three aspects of juror misconduct evidenced by the note: (l) the complained-of juror had formed, and expressed to other jurors, an opinion about the defendant's guilt or innocence based on information not introduced in evidence; (2) the juror had refused to deliberate in good faith and had surrendered his own opinion, not because he was persuaded it was wrong, but in order to get the case over with; and (3) the juror had insisted on completing deliberations quickly because he had personal affairs to attend to that precluded his continuing participation in deliberations. Hrg. tr. pp. 109-10, JA 215-16.
. In continuing to quarrel with Judge Bond’s rejection of this latter proposal, petitioner continues to ignore the fact that the import of the foreperson’s note was at least as unfavorable to the prosecution as it wаs to his interests. See n. 3, supra. Because the prejudicial import of the note cut both ways, Judge Bond rightly concluded, as the court of appeals held, that petitioner's putative reservation of the right to a mistrial in the event the verdict was not satisfactory to him was unfair and unreasonable.
. Petitioner has attempted to cast doubt upon the soundness of the mistrial declaration by emphasizing Judge Bond’s questionable handling of the jurors and discovery of the verdict forms after the mistrial had already been declared. The court of appeals acknowledged that it was hard to ignore this information, but correctly held that "[f]acts unknown to the trial judge and the parties simply cannot enter into the review of the trial court’s decision.” Decision p. 8, JA 350.
Dissenting Opinion
dissenting.
I respectfully dissent because I believe that even if manifest necessity for a mistrial existed at one point, it dissipated once Judge Bond learned of the verdicts. Importantly, Judge Bond’s declaration of a mistrial was not final when pronounced orally from the bench. The mistrial was not official until entered in the journal, and the mistrial was not entered into the journal until Thursday, November 2, 2000. State v. Stewart,
It is axiomatic that a court speaks only through its journal, and not through oral pronouncements. Schenley v. Kauth (1953),160 Ohio St. 109 ,113 N.E.2d 625 , paragraph one of the syllabus. The trial court’s mistaken oral declaration of a mistrial did not actually result in a mistrial because a mistrial judgment was never journalized. Thus, the trial court was not prevеnted from realizing that it had misunderstood the communication from the jury, and correcting its erroneous decision to dismiss the jury and declare a mistrial. Appellant’s assertion that the trial court erred as a matter of law by accepting the jury’s verdict after declaring a mistrial is not well taken.
Appellant argues that, because the jurors could change their minds on the verdict between the time they signed the ballots and the time they were polled, they can not be said to have agreed on the verdict until the court has polled them and accepted the verdict. We refuse to follow this restrictive view of what constitutes the jury’s agreement on a verdict. The jury, at the time each of the jurors signed the verdict forms, had agreed upon its verdict. The fact that a juror could have changed his or her mind after signing the ballot is immaterial. The jury had agreed on its verdict,was subsequently polled, and each juror confirmed that the judgment represented by the ballots was, in fact, his or her verdict. Thus, we conclude that the court’s acceptance of the jury’s verdict did not violate R.C. 2945.33.
Id. at *3.
In my view, once the trial judge was aware of the verdicts of acquittal, the possibility of juror bias toward Ross wаs eliminated. Once the possibility of bias against Ross was eliminated, the manifest necessity for the mistrial was also eliminated, at least on the counts for which the jury acquitted Ross. The trial court’s error was not in failing to enter the verdicts, but ignoring the existence of the verdicts. A similar situation was presented in Corey v. District Court of Vermont, Unit # 1,
[I]t is not enough to state that the trial court had declared a mistrial before the jury notified the court that it had reached a verdict. The jury was permitted to continue in its deliberations, unaware of the proceedings in chambers. When it reached its verdict, the trial judge was given a unique opportunity. An acquittal would reveаl the absence of prejudice to the defendant. With no prejudice to the defendant and no articulation of any prejudice by the state to its case, the only remaining basis for a finding of manifest necessity would be the public interest in a trial free of even the perception of an inappropriate influence on the jury. Nevertheless, the limited public interest in having a trial free of all possible taint, whether prejudicial or not, by itself cannot overcome Corey’s constitutionally protected valued right to have his trial completed by a particular tribunal.
Id. at 91 (internal quotation marks and citation omitted).
The state has not alleged any specific prejudice against it other than the public’s