Theodore A. Weston v. Peg Kernan, Warden

WESTON, A. Theodore Petitioner-

Appellee,

Peg KERNAN, Warden, Respondent-

Appellant.

No. 94-15391. Appeals,

United States

Ninth Circuit.

Argued and Submitted Dec. 1994.

Decided Feb. 1995. Gen., III, Atty. Deputy

Gеorge Hindall F. Francisco, CA, respondent-appellant. for San Cohen, CA, peti- Berkeley, Bruce E. tioner-appellee. WALLACE, Judge, Chief

Before: BEEZER, Circuit and PREGERSON Judges. BEEZER; by Judge Dissent

Opinion Judge Chief WALLACE.

BEEZER, Judge: Circuit peti- Weston filed Petitioner Theodore challenging corpus a writ of habeas tion for of forc- May court conviction his 1990 state contends that his copulation. He ible oral Jeopar- barred conviction was ended dy the state trial court Clause because by declaring a mistrial without his first trial in the absence of manifest his consent and necessity. petition district court court had

February 1994. The district § pursuant to 28 2254 and jurisdiction U.S.C. jurisdiction pursuant U.S.C. we have § 2253. affirm. We of charged with three counts Weston was (Cal.Penаl copulation Code oral forcible (Cal.Penal 288a(c)), robbery one count 212.5(b)), kidnapping pur- § for the Code (Cal.Penal committing pose the offense 667.8). alleged to have § He was also Code copulation prior for forcible oral conviction (Cal.Penal Code prior prison terms and two 667.5(b)). 667.6(a) § § began in March first state Weston’s days of the state 1990. After four a mistrial without court declared plea of once then moved to enter to dismiss the information. jeopardy and trial court denied this motion The state a writ of mandate to petition for Weston’s Appeal represented Court of on the double California the witnesses being claim was also denied. were purpose called for the relating statements made to them Weston second trial resulted in a concerning where he resided. The first wit- guilty verdict of on one count of forcible oral ness, Miller, Officer testified as follows: copulation. could not reach a ver- Prosecutor) Q. (By Cling, you place Did dict on the other counts and the state trial Mr. Weston under arrest? upon court dismissed them a motion the Yes, A. I did. prosecution. In June Weston was sen- Q. For what? years copula- tenced to six for forcible oral A. For tion, 470 which is a year prior with a check fraud. five conviction en- hancement, (R.T. 416.) years. for a total sentence of 11 counsel, Jeffrey Adachi, Defense immedi- appealed

Weston this conviction to the Cal- ately objected requested and a mistrial. The Appeal alia, arguing, ifornia Court of inter trial responded by striking the placed the second trial him twice in testimony admonishing and prosecutor jeopardy. Appeal The California Court of for transgressing the court’s order. The affirmed his conviction and the California court took the motion for mistrial under ad- Supreme petition Court denied his for re- witness, Briden, visement. The Barry next view. testified that parole he was a officer and corpus then Weston filed this habeas ac- knew Weston because he parole maintained a January tion in October 1992. In file on him. At the testimony end of this and district cоurt ordered the State to show excusing jury, after attorneys and the why cause a writ should not issue. After judge further discussed the mistrial matter. receiving responses parties, from the the dis- Adachi moving stated that he was for a mis- granted petition, ordering trict court extraneous, trial because of the irrelevant State of California to release Weston from police nature of the officer’s custody. The district court then parole agent’s testimony. He asked the stay State’s motion for a of Weston’s release court to sponte. declare a mistrial sua The pending appeal. this responded that it would not declare a sponte mistrial jeopardy sua because II attach. The Court then asked Adachi wheth- moving er he was for a mistrial to which surrounding circumstances the mistri- responded “yes.”1 Adachi During al are as phase follows. the rebuttal of the first proposed took the motion under advise- call two testify solely witnesses who would adjourned to ment and day. the court for the the issue of the defendant’s morning, address. The The next Weston filed a written exchange 1. The exact is as follows: That I do in which case there is no event, my position say Adachi: In attached. If I it is a is that the mistrial because of court to something happens [sic] declare mistrial on its own mo- jeopar- then it is double tion due to— dy, charged. you the defendant can't be I think No, motion, your Court: it is I don't mаke a very know well I don’t intend to do that. motion, your you motion. It is want me to rule motion; your on Is that clear? Yes, circumstances, Adachi: but under certain Well, asking Adachi: I am first the court to prosecution makes the we error are not at declare a mistrial. proper fault. I think it is for the Court: The court never defense to ask declares a mistrial then to, you've got jeopardy. double the court on its own motion I know what the right. Adachi: That's going court to do. Well, declaring any Court: I am not mistrial forty years Court: In I never heard of it but there try because I don’t have—don’t and trick courts my is a lot of stuff I never heard of in lifetime. into that. right, anyway you All made a motion for trying you. Adachi: I am not to trick am I cоrrect? Adachi: Yes. Court: I don't declare mistrials. You can make 424-26.) (R.T. mistrial, may grant a motion for a the motion. clearly erroneous standard. under the a viewed “that the court declare requesting motion Id. prosecu- grounds ... on misconduct, goaded tor, Cling, by his Peter seeking the instant into

the defense IV following sought the for mistrial.” contends that the state relief: mistrial without his consent declared a requests that this Accordingly, the defense necessity” that a mistrial “manifest without matter this court declare a argues that the mis- The State be declared. misconduct, and prosecutorial based pursuant to mo- was declared matter is retrial hold that a further consented to the mistri- tion and that Weston Double Clause. barred Alternatively, argues that man- State al. a mistri- not to declare If the court decides required mistrial. necessity ifest defense sponte, sua al this matter give requests that the Court respectfully to right a defendant’s Whether cautionary instruc- jurors’ the attached jeopardy violat in double has been placed be tions. v. de novo. United States ed is reviewed ‍‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌​​​‌​‌‌​​‌​​​​​‌​‌​​​​‌​‌‌​‌‍(9th Cir.1991). Lun, 642, Fac 944 F.2d 644 discussion, state trial further After findings concerning the conduct of the tual prejudice, a mistrial without court ordered error. Id. prosecutor are reviewed for clear po- error of the finding that the cumulative testimony agent’s parole and the lice officer’s A Immedi-

was to the defendant. ordered, ately was Adachi after the mistrial Jeopardy Clause of the The Double court, explaining he interrupted the protects person a from Fifth Amendment to confer with Weston before wanted put jeopardy of life or limb” being “twice prejudice. the mistrial without court declared Supreme the same offense. The Court responded that he had purposes for this has enumerated several for mistrial and that he no defense motion (1) finality judg protection: to ensure the longer jurisdiction over the case. had (2) cases; compel avoid in criminal ments objections, to live in a constant state of ling a defendant When Adachi reiterated granting anxiety insecurity attendant with succes stated that he was and (3) offense; previ- by prosecutions Adachi on the for the same the oral motion made sive oppor day. responded giving prosecution that he had an unfair ous Adachi avoid using only ground tunity retry the defendant informa one and moved for mistrial concerning ground by gained the court. The from the first trial was denied tion case; “Counsel, your strengths mo- responded, it was and weaknesses State’s (4) crystal right to night. it clear be- that the defendant’s tion last made to ensure you lay the onus on the Court. his fate decided the first em cause tried to have (5) you paneled protected; If to have the record read back —In to avoid the want quiet, you imposition multiple punishments will for the any evеnt sit down now and be DiFrancesco, v. quiet, sit down and be Mr. Adachi. This same offense. United States 127-29, 426, 432-33, jurisdiction over this 101 has no further 449 U.S. S.Ct. 440.) (R.T. (1980); States v. Crot case.” 66 L.Ed.2d 328 United Cir.1990). (10th

well, also 896 F.2d 437 See States, 184, 187-88, 355 U.S. Green v. United III (1957). 223-24, 2 L.Ed.2d 199 78 S.Ct. reasons, upon of a grant For these declaration A district court’s decision to only if permitted will be deny petition corpus is re retrial or for habeas Brewer, consented to the mistrial or Thomas v. 923 defendant viewed de novo. Cir.1991). necessity.” Findings mistrial was caused “manifest 1364 497, 505, Washington, 98 presumptively fact state court are Arizona (1978); 2254(d), 824, 830, correct, 717 United § re- 54 L.Ed.2d 28 U.S.C. are S.Ct.

637 (Wheat. 9) Perez, ingness 22 acquiesce U.S. States the mistrial order.” (1824). McMackin, Glover v. L.Ed. 165 (6th Cir.1991) (citation quotes and internal question in dou The critical omitted). The circumstances of this сase ble claim is whether he consented clearly indicate the defendant did not prejudice. to a mistrial without Our over acquiesce in the mistrial order. riding concern “is that the defendant retain exchange The first between the state primary control over the course to be fol defense counsel have judicial prosecutorial lowed” after or error. ambiguous been because Weston did not ex Dinitz, United States v. U.S. plicitly request limit his to a mistrial with 1075, 1080, 47 L.Ed.2d request While we could view this argues The State that Weston’s initial oral unqualified, for a mistrial as the written mo unqualified motion for mistrial was and that following day tion on the made clear that even after the state trial court made clear desired a if jeopardy grant preju- that it would not a mistrial with would attach.2 If the state trial dice, persisted he with the motion. The prejudice, not declare a mistrial with argues further State while Weston did requested that the trial continue and that prej- file a written motion for a mistrial with cautionary jury. instructions be read to the udice, expressly he never withdrew his oral Even if we were to view the two motions as motion or substituted the later motion for the distinct, separate and one for a mistrial with prior one. prejudice out and one for a mistrial with contrast, argues In Weston that he was prejudice, judge wholly the state trial failed seeking prejudice a mistrial with at all times. to determine whether the later written mo response He states that the affirmative to superseded effectively tion revoked the judge’s question, “All right, the state trial See, request. e.g., Lovinger earlier v. Circuit mistrial, anyway you made a motion for am I (7th Cir.) Court, 739, 845 F.2d 744 (holding equivocal. argues at correct?” was best He previously made mistrial motion did not following day that his written motion on the constitute consent to a mistrial declared later only seeking made clear that he was a mistri- denied, 851, grounds), on other cert. 488 U.S. prejudice. Finally, argues al with he 136, (1988); 109 S.Ct. 102 L.Ed.2d 108 Unit if even the state trial court was under the 946, Mastrangelo, ed States v. 662 F.2d 950 impression that Weston had consented to a (2d (defendant Cir.1981) may withdraw mo prejudice, mistrial without this misunder- tion for even withdrawal is not standing dispelled should have been when denied, 973, explicit), cert. 456 U.S. 102 S.Ct. immediately objected counsel for Weston 2236, (1982). 72 L.Ed.2d 847 sought speak to to Weston before Moreover, defense counsel’s immedi discharged jury. objections repeated ate and demonstrate We hold that not Weston did con Weston did not consent to the mistrial. This sent to the impliedly mistrial and that the state trial is not a case where a defendant declaring court erred the mistrial without consented to the mistrial because he had the prejudice repeated opportunity object over defense counsel’s to ob to mistrial declared jections. A sponte defendant’s consent to mistrial sua but failed to dо so. See United Smith, “only 350, be inferred where the circum States v. 621 F.2d 351-52 Cir.1980) (defense positively object stances indicate a defendant’s will- counsel’s failure to 88, (2d Cir.1990) (no requested 2. The fact that Weston to F.2d 91 consent where sponte, jeopardy declare a mistrial sua so that defendant insisted that if mistrial was declared attach, does not indicate that Weston did request- double should attach and later or would consent to mistrial without ed that trial reconsider his decision 1128, Huang, See United States v. 960 F.2d 1134 mistrial). inquiry proper declare a is limited (2d Cir.1992) (no consent to a mistrial without to consideration of whether Weston consented to prejudice only when the defendants had moved acquiesced or in the that was fact prejudice); Corey for a mistrial with v. District judge. declared the state trial Vermont, 1, Cir., Court Unit # Rutland 917 638 him”). consent), empaneled try We hold that Wes- implied

to mistrial amounted 1087, 877, denied, 101 S.Ct. 66 to the mistrial. cert. 449 U.S. ton did consent Bates, (1981); 818 United States L.Ed.2d (9th Cir.1990) (no 388, consent 917 F.2d 393 B object opportunity to when defendant has no question mistri whether the sponte by sua the state to a mistrial declared necessity” al was declared due to “manifest Quite contrary, judge). Supreme says that remains. The objected strenuously to the mistrial. counsel necessity exists “when the ends manifest a mistri trial court’s declaration of The state by a con public justice would not be served objections deprived al over these procеedings.” tinuation of the United States right primary to retain control over the Jorn, 485, 470, 91 S.Ct. Dinitz, 424 proceedings. See course weigh must 27 L.Ed.2d 543 We 609, at 1080. U.S. at 96 S.Ct. protections afforded request written motion Because Weston’s against society’s in determin ‍‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌​​​‌​‌‌​​‌​​​​​‌​‌​​​​‌​‌‌​‌‍ interest a mistrial sua ed declare Hunter, innocence, ing guilt or Wade v. immediately sponte and defense counsel ob 93 L.Ed. 974 U.S. order, jected to the mistrial the state (1949), trial court and we afford required con court was to obtain Weston’s evaluating circumstances be discretion mistrial in the manner that it was sent deciding fore it in whether to declare a mis easily The court could have ac declared. Bates, trial. United States v. complished by allowing de this clarificаtion (9th Cir.1990).3 The State bears confer with fense counsel to heavy demonstrating “high burden of jury. e.g., discharged he See United necessity required degree” of for a declara (2d Huang, States v. con tion of mistrial without the defendant’s Cir.1992) (after stating it would not Washington, Arizona v. 434 U.S. at sent. gave grant prejudice, mistrial with de 505-06, 98 S.Ct. at 830-31. opportunity fendants to withdraw their mo Miller, mistrial); tion for v. United States Bates, In standards we established (11th Cir.1984) (to 1279, 742 F.2d en in determining to be used whether the state jeopardy problem decla sure no double after properly trial court exercised its discretion. judge ration of obtained written First, in “[w]hen an error certain to result any jeopardy waiver defendant of double occurs,” necessity appar reversal manifest is claim), denied, 1216, cert. 105 S.Ct. U.S. Bates, ent. 917 F.2d at 395. If an such 1194, 84 L.Ed.2d 340 exists, error double will not attach The mistrial declaration without Weston’s highly to a declaration of mistrial. It is acquiescence, deprived of an clear unlikely that the error in this case would opportunity to decide whether he wanted to have resulted in a reversal of Weston’s con jury empaneled allow decide the first his agrees viction. The State and does not ar Oregon Kennedy, fate. See 456 U.S. gue finding necessity for a of manifest on this 2083, 2088, 102 S.Ct. 72 L.Ed.2d 416 ground. (1982) (“one principal making of the threads Second, if

up protection in it is uncertain that rever the embodied the Double resulted, Jeopardy right of the sal would have four factors should Clause the defendant completed by determining in to have his trial the first be considered whether 3. The level of deference to be afforded a trial 98 S.Ct. at 833. The trial "must court’s decision varies with always temper to declare mistrial the decision whether or not to the circumstances of each case. We accord a by considering importance abort the trial decision to declare a mistrial on the court's able, all, being defendant of once juror highest degree respect” basis of bias "the of society through conclude his confrontation with Washington, and deference. 434 U.S. Arizona might the verdict of a tribunal he believe to be However, Washing- at S.Ct. at 832-33. favorably disposed (quoting to his fate.” Id. reviewing ton cautions that have the courts obli- Jorn, United States v. 91 S.Ct. gation to ensure that a trial court exercised (1971)). 27 L.Ed.2d 543 declaring “sound discretion” in a mistrial. Id. at declared. properly trial court exercised its discre- was He also contends that state (1) improved whether the state tion. These factors are state its case in the second trial parties position evidence, heard the of the finding by finding trial court new a new wit- (2) mistrial; whether it regard to a by calling important with an ness and defense granting a mistri- considered alternatives witness as its own. (3) al; deliberately not it acted whether Weighing light these four factors in of the (4) it abruptly; and whether determined case, in error that oсcurred we conclude would benefit from a mistrial. defendant necessity that manifest did not exist and

Bates, at 395-96. declaration the mistrial over Weston’s ob- be The first and third these factors jection and without his consent was unwar- together in The state considered this case. ranted. parties argument from trial court heard both concerning ‍‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌​​​‌​‌‌​​‌​​​​​‌​‌​​​​‌​‌‌​‌‍propriety a mistrial and V overnight. issue deliberated over the day again argument next heard We conclude that Weston’s second trial parties from the and considered Weston’s was barred declaring Questions the mistrial. Fifth present-

written Amendment. concerning The record demonstrates the state ed Weston’s second trial are deliberately determining judge acted that moot. However, required.

a mistrial was AFFIRMED. objec- abruptly by cutting off Adaehi’s acted refusing him with tions and to allow to confer WALLACE, Judge, dissenting: Chief jury. discharged before he My colleagues conclude that Weston did properly trial court did not not consent to declared consider alternatives to a mistrial and did not first was not de- determine that the mistrial would be necessity. clared for manifest On the con- the im defendant’s best interests. When trary, the record shows Weston consent- occurred, proper questioning the state trial ed to the first mistrial without immediately offending struck the testi so, Even if that the state were mony from the record and admonished the properly his discretion and de- exerсised disregard gave it. The court little grounds clared the mistrial on the of mani- thought impact to the beneficial of this action Furthermore, necessity. fest because on the or to the curative value of limit judge improper comments made the state ing any prejudice resulting instructions on unduly prejudi- in trial the second were improper testimony. from the Weston re cial, I district court’s issu- would reverse the quested this exact form of in relief the event ance of the writ. grant that the state trial court declined to a prejudice. with The error this was such that curative ease instructions any juror prejudice. have eradicated well surrounding The circumstances a mistrial conclude that the statе trial court did not We Jeopardy will dictate whether adequately these alternatives. consider If Clause bars retrial. Weston consented mistrial, is retrial allowed. United judge The state trial also did not (9th Bates, 392 Cir. States properly consider whether the mistrial would 1991) (Bates). consent, If Weston did not ruling benefit Weston. In the state only justified by if permitted will be retrial prejudicial, ments were the state trial court However, if necessity.” Id. even “manifest prejudicial im did not consider whether the at re the mistrial was declared Weston’s pact outweighed of the statements would be will still by allowing quest, the Double the harm caused to Weston if he “can show that the ‘conduct prosecution opportunity. a second trial bar retrial for mis go giving rise to the successful motion Weston contends that the first was very provoke into mov- ing [him] well for him at the time the mistrial trial was intended

640 ” Lun, a it was on would not declare mistrial unless ing mistrial.’ United States v. for a Cir.1991) defense, (Lun), “you’ve got quot- motion otherwise jeopardy.” After the discussion of Oregon Kennedy, double ing consequences jeopardy, double L.Ed.2d judge “anyway, you a motion state said made majority consent The considers Weston’s a am I correct?” Weston’s at- for prejudice ambiguous, as to a mistrial without torney replied “yes.” “wholly and states that the district court point, At has moved for a the later written this failed to determine whether goading by effectively grounds: on two superseded and revoked mistrial (which request.” Maj. op. prosecutor the state indicated the earlier at 637. The unsuccessful), support analysis. will be and on the basis of record does not Wes- discussion, argues prejudice. to the At the end of the ton that he did not consent judge made sure that attor- mistrial in this case unless it was to be with Weston’s ney Certainly prejudice. reading entire had made the motion. But a fair record, context, supports finding knew from this discussion that the state grant judge would not the mistrial on his own Weston did consent. motion. for The first mention of motion mistri- Thus, recess, before the the state attorney, Mr. Ada-

al comes where Weston’s chi, had clarified that the issue he was con- states: sidering was Westоn’s motion for a mistrial mistrial, your I have a motion for a honor. upon prejudice. based This is what he took just prosecutor As the court heard the day. under advisement for decision the next ... [that] elicited certain information was totally extraneous to here ... and the case following day, The Weston’s counsel sub- prosecutor] knowledge I assume had [the motion for mitted new written going say of what his witness was grounds prosecution intentional- put up he him on this. ly goaded making the defense into the mistri- That al motion. motion asked for a mistrial charge here was that prejudice. majority with somehow takes intentionally “goaded” attorney into Weston’s this written motion as withdrawal of the asking A for a mistrial. mistrial on those motion, stating first the trial Lun, grounds, Kennedy under would bar “wholly failed” to determine this later mo- point, retrial. at this what the defense So request. But tion revoked the earlier asking was was a mistrial with lawyer. is not His law- judge quickly responded But the state yer adequate prior had time to withdraw his by stating: prose- that view of events “[The writing motion. He did not do so or thing.” doesn’t do that sort of cutor] Wes- Indeed, orally. the record shows he did not attorney replied, ton’s then “I am not accus- it. intend to withdraw ing prosecutor]” say: [the and went on to majority point fails to out What was, [AJnyway in addition it I think also submitted, after this written motion was unnecessarily] extraneous and cumulative argument ruling court heard further parole as well as to have the transcript on the mistrial. Here is what the up officer come not here. Now the shows: only knows that when he is arrested he is fraud, involved in Court: I have before me a motion for [that] check but he is on parole. along a with memorandum filed Any morning.... argument further added.) (Emphasis I this matter other than what have was, effect, This a for a second basis already heard? prejudice. based on Weston’s attor- ney changes then the direction of the conver- (Prosecutor):

sation, honor, stating “my position Cling that is that the Mr. Your mistrial,” allegations intentionally attempted court ... a I declare at which time that judge specifically ruling really told him that I the court to circumvent the court’s prejudicial, and that it robbed the defense of perfect- I am preposterous_ are think course, the chance for a fair trial. Of a reaction to Attor- your honor’s ly aware granted grounds something that has mistrial on those is without attempt to do neys who only It is clear that not was the ruled inadmissible. been previous preju- for a mistrial without motion by filing dice not withdrawn the written mo- Counsel): (Defense if Mr. Now Adachi Mr. tion, being pressed but it was anew when inexperienced an Cling were again argued testimony that the Adachi was say perhaps it was could that the court unfairly judge prejudicial. The found no it- The statement negligence or reckless. prosecutorial goading, finding and this was Cling’s speaks for Mr. intent. I think self Lun, clearly F.2d at erroneous. 644. disposed The court then of the motion for prosecutorial based misconduct just say thing? Cling: I one more Mr. Can day argued made the before and for Ada- Court: Sure. day. chi on held that the second yet. finished Mr. Adachi: I’m not testimony parole pri- about Weston’s thought you Cling: I were. Mr. against prejudice or arrest “creates the de- addressing the issue Mr. Adachi: Now granted fendant” and any I that evidence of bad prejudice, think ground. mistrial on this always prejudicial to a is defendant. acts All clear from the If this seems record. going to think well he was a is any ambiguity, there was it occurred after occasion he is a bad [so] bad man on one the motion for a mistrial. really think this occasion. And I man on “Judge, It that stated: was then Adachi really good I shot in the case. had my I wanted to talk to client before the court Cling by question his his And Mr. Clearly, was not under [ruled].” my robbed me chances in this answer point to Adachi obligation at that allow case. his motion or to withdraw his to withdraw majority correctly points ruling. The out going all I am Right. All First of Court: Jeop- purposes of the Double one finding expressed make an so the record keep ardy is to allow the defendant to attempt crystal clear there was no is But that does not mean control of his fate. goad. hearing over two that once a has held days prejudicial nature of the regarding the testimony, obligated, after mak- he is further Secоndly ... think that [the do Court: to with- ing ruling, to allow the defense against testimony] prejudice creates no rule of law that its motion. There is draw This cumulative error so defendant.... a defendant requires a to allow grant speak enough for me to a mistrial once it has withdraw a motion for will be motion. The motion for mistrial granted. been granted. added.) (Emphasis prosecution Adachi’s statement to win the him of his chance things. had “robbed” a number of This discussion shows the extent to which simply underscores judge was aware of the ease It shows that arguing prejudice. does was So the defense motion and memorandum submitted written testimony was “devas- It makes his statement morning the defense. also us to come before tating.” For the defense judge had in mind and it clear that the state might gone have argue that Adachi day now and arguments made the would consider disingenuous first case is to the with the on motion for before which focused Weston’s that the light of the assertion upon prejudice. It further a mistrial based “devastating” prosecutor was ‍‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌​​​‌​‌‌​​‌​​​​​‌​‌​​​​‌​‌‌​‌‍the submit- conduct of that after the defense demonstrates to win the motion, him” of his chances and “robbed the written Adachi continued ted testimony was case. argue court that the to the

642

My reading judge’s entire record ence to the trial evaluation of the juror issue convinces me that Adachi made a mo- significance possible of bias.” Wash- separate 513, tion for a mistriаl based on two ington, 434 at U.S. 98 S.Ct. at 834. It is grounds, prosecutorial goading preju- doubly perplexing majori- therefore dice, judge granted and that the the motion ty following clearly insists on not the estab- ground. on the second Because the motion precedent lished of this court and of the Weston, was made there was consent. Supreme requires Court which us “to accord highest degree respect” the or to the trial

II court’s decision in this case. Since Weston consented to the I Finally, majority ignores perverse the the get would not to the issue of whether the incentives its decision creates. The trial justified by necessity. mistrial was manifest primary duty court is with vested the Nevertheless, majority’s analy- believe the protect integrity the of the trial and to en- wanting. sis of this issue is also gets sure the defendant a fair trial. “degree of deference to be accorded While curative instructions and other sanc- judge’s trial determination of manifest remedy prejudicial tions often suffice to necessity varies with the circumstances of “[ujnless testimony, statements and unscru- Jarvis, each case.” United States v. 792 pulous defense counsel are to be allowed an 767, Cir.) (Jarvis), cert. de advantage, unfair the trial must have nied, U.S. 93 L.Ed.2d power appropriate declare mistrial in Supreme Both the Court and By failing cases.” Id. to accord deference expressly this court have held that we must judge’s to the trial evaluation of the likeli- highest degree respect “accord the of to the juror may hood that preju- have been judge’s evaluation the likelihood that improper testimony, majori- diced jurors impartiality may of one or more ty’s opinion unduly will chill trial courts from improper have been affected com exercising their discretion to declare mistri- Washington, ment.” Arizona v. necessary. als when Supreme As the 98 S.Ct. 54 L.Ed.2d 717 explained, has adoption stringent “[t]he of a (1978) Jarvis, (Washington); 792 F.2d at appellate standard of review this area” will Indeed, may 769. we reverse the declaration deter trial exercising courts from their dis- grounds only of a mistrial on those the trial “by cretion to declare mistrials a concern judge’s decision was irresponsi “irrational or reviewing disagreed time a Washington, ble.” at U.S. 98 S.Ct. with its assessment of the trial situation 834-35; Jarvis, at 792 F.2d at 770. automatically retrial would be barred.” Id. eminently It is sensible for us to accord great deference to court’s evaluation majority correctly points out that be- impermissible the likelihood that an state- cause the error that arose in the first trial ment would affect the outcome of the trial. clearly was not of the sort that require expert The trial is the when it comes reversal, may we analysis include in our determining poten- how a will react to (a) judge: whether the opinions heard the tially prejudicial Moreover, statements. be- parties regarding propriety of a mis- trial, cause he has observed the entire he is (b) considered alternatives and chose unique position in a accurately to ascertain (c) defendant, the one least harmful to the whether the statement would affect acted with deliberation abruptly, and not jury’s Reviewing only portions decision. of a (d) determined the defendant would benefit record, entirely cold divorced from the con- Bates, from the mistrial. 917 F.2d at 395-96. proceeding, text of the we stand in a remark- majority concedes, ably poor As the position the trial to determine whether an improper parties did hear from all of jury’s comment on the affect the de- mistri- (in faсt, Supreme cision. al explained, hearings As the Court has there were over “[tjhere (the compelling days), are institutional two consider- did act with deliberation militating ations appellate favor of defer- took the motion under submission the Moreover, forfeited the defendant had the acts. argument day and heard additional first testify his own behalf for the right his to on day). next from the keeping this information purpose of however, concludes, the that majority The Thus, jury. prejudiced was not properly consider alternatives judge did “not knowledge past jury’s of his crimes the that the not and did determine to a mistrial acts, effectively was also and bad but he best in the defendant’s would be right testify, right a he deprived of his to But the record Maj. op. at 638. interests.” have wanted to exercise apparently would the alter- judge did consider the shows that keep prior crimes but for his desire to his instruction, and giving a curative native of jury’s knowledge. the and bad acts from be would such an instruction decided that “the In a case this where we review like jury: the judge explained to The insufficient. that judge’s evaluation of the likelihood was granted mistrial] I [the “The reason jurors may more impartiality of one or the you that things came into evidence [that] two improper affected the com- have been very hard to and I think it is hear shouldn’t ment,” required give the the we are it you forget about ... I can tell strike. Jarvis, resрect.” “highest degree of do, it. And forget about hard to but that is the trial court’s deci- F.2d at 769. Because in a the I that is the reason “irrational a mistrial was not sion to declare added.) (Emphasis matter.” irresponsible,” id. at but rather judge did record also shows exercise of his thoughtful a and considered on Wes- impact of the mistrial consider the the attempt to secure for discretion an is not judge stated: “[Weston] ton. The disagree I with a must defendant fair trial under circumstances getting [the] a fair majority’s conclusion that the testimony] terribly prejudi- is [the because retrial. precluded Weston’s cial.” that judge apparently believed The trial III fairly and that close one had been the trial casе, get I must I see the Because of how obtaining ac- good chance of had Adaehi judge’s whether the com to a third issue: elic- quittal for Weston trial rose to such a level at the ments second arrested that Weston was the statement ited a fair trial. they deprived Weston of parole. and that he was on fraud check on scope of our review habeas Because court that argued to the trial Adaehi narrow, if the con very must determine we “devastating.” As comments were improper jury predisposed the a level that duct rose to jury now knows explained: “The Adaehi v. guilty. Donnelly See to find the defendant fraud. was arrested for check defendant 642-43, DeChristoforo, 416 U.S. the stand kept Mr. Weston off specifically I (1974); 1868, 1871-72, 40 L.Ed.2d 431 United excluding prior bad acts as of pin-pose for the (5th Bermea, 1539, 1569 States court my I made in earlier Cir.1994). comments made convictions, They they felony now know. not lawyer that I believe should point- parolee.” is a After know that he also However, judge gave a have been made. had witness” that an “untouchable ing out telling jury not be curative instruction testimony directly contradicted the bench. comments from influenced victim, emphasizing “[n]ow that he was dispose of the sufficient to usually This is prejudice,” Adaehi addressing the issue of See United States perceived unfairness. really good shot “I had further exclaimed: Cir.1979) Schoor, ‍‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌​​​‌​‌‌​​‌​​​​​‌​‌​​​​‌​‌‌​‌‍by his prosecutor] [the in this cаse. And flowing court’s (“any [from com prejudice my me of by his answer robbed question and timely by the court’s was cured ments] chances in this case.” instructions”). In addi cautionary several had that Weston agreed tion, many the comments The trial presence in the not even made unduly prejudiced, points and his to were conclusion been Furthermore, did jury. have In what certainly reasonable. was indicating charge, every ease, exposed convict Weston very close was been a argu seriously his counsel’s defen- it took knowledge that the to the the dis- reverse therefore ments. prior crimes and bad committed dant had

trict court’s issuance of the writ on this

ground as well.

IV reasons,

For I the above conclude that prej-

Weston consented to a mistrial without and, any event,

udice that manifest neces-

sity has been shown. I also conclude that judge’s

the trial comments at the second trial deprive

did not of a fair trial. Be- I

cause would reverse the district court’s corpus

issuance of the writ of habeas on each court,

ground upon by relied the district

respectfully dissent. EPSTEIN, al., Plaintiffs,

Lawrence et Minton, Plaintiff-Appellant,

Walter

MCA, INC.; Acquisition Matsushita Cor-

poration; Matsushita Electric Industri- Co., Ltd.; Holding Corpo-

al Matsushita

ration; Wasserman; Sidney Lew J.

Sheinberg, Defendants-Appellees. EPSTEIN; Linder;

Lawrence John Jane

Rockford, as trustee of the Michael J. Trust; Karlin;

Rockford Maurice Ruth

Karlin; Karlin; Beth Ann Bert P. Kar

lin, Plaintiffs-Appellants,

MCA, INC.; Acquisition Matsushita Cor

poration; Matsushita Electric Industri Co., Ltd.; Holding Corpo

al Matsushita

ration; Wasserman; Sidney Lew J.

Sheinberg, Defendants-Appellees. 92-55632,

Nos. 92-55675.

United Appeals, States Court of

Ninth Circuit.

Argued Aug. Submitted 1993.

Submission Aug. Vacated 1993.

Reargued and Resubmitted Oct. 1993.

Decided Feb. 1995.

Case Details

Case Name: Theodore A. Weston v. Peg Kernan, Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 24, 1995

Citation: 50 F.3d 633

Docket Number: 94-15391

Court Abbreviation: 9th Cir.