Arizona v. Washington, 434 U.S. 497 (1978)

MR. JUSTICE WHITE, dissenting.

I cannot agree with the Court of Appeals that the failure of a state trial judge to express the legal standard under which he has declared a mistrial is, in itself and without further examination of the record, sufficient reason to infer constitutional error foreclosing a second trial. The Court’s opinion in Townsend v. Sain, 372 U.S. 293 (1963), is to the contrary. There, in the course of a full scale exposition of the proper approach to be followed by a federal court in determining whether a writ of habeas corpus should be issued on the petition of a state prisoner, the Court addressed the situation where the state trial judge, in making the challenged ruling, did not articulate the constitutional standard under which he acted. The Court concluded that

the coequal responsibilities of state and federal judges in the administration of federal constitutional law are such that we think the district judge may, in the ordinary case in which there has been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied.

Id. at 314-315. A silent record is not a sufficient basis for concluding that the state judge has committed constitutional error; the mere possibility of error is not enough to warrant habeas corpus relief.

The Court of Appals, as well as the District Court, was therefore in error in granting relief without further examination of the record to determine whether the use of an incorrect legal standard was sufficiently indicated by something beyond mere silence and, if not, whether the declaration of a mistrial, which the Court of Appeals said it was "normally inclined to uphold," at least in the absence of "clear abuse of discretion," was constitutionally vulnerable. I would not, however, undertake an examination of the record here in the first instance. Rather, I would vacate the judgment of the Court of Appeals and direct that court to remand the case to the District Court to make the initial judgment, under the correct legal standard, as to whether the writ should issue. This disagreement with the Court’s disposition leads me to dissent.

1. This proposition is essentially unremarkable. It is a truism that findings of fact by the trial court may not be set aside on appeal unless "clearly erroneous," and that, on review, appropriate deference must be given to the trial court’s opportunity to judge the credibility of the witnesses. See, e.g., Fed.Rule Civ.Proc. 52(a); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969). While the determination that there is no alternative but a mistrial to cure prejudice created by an improper opening statement is in part one of law, in a case of this sort, it is based primarily on a factual evaluation of the extent to which the particular jury has been prejudiced.

2. Contrary to the majority’s implication, ante at 502 nn. 8-9, the courts below did not hold that the absence of express findings relating to the necessity for a mistrial was by itself dispositive. Rather, the rulings of the District Court and the Court of Appeals were based on their respective conclusions that on this record it could not independently be determined that "the jury was prevented from arriving at a fair and impartial verdict," and therefore that a finding of manifest necessity was not implicit in this record. 546 F.2d 832; see App. 128-129 (District Court’s view that any prejudice could have been cured by cautionary instruction).

Nor can I agree with the majority that the Court of Appeals applied an inappropriate standard of review. It expressly recognized that "[t]he power to discharge a jury . . . is discretionary with the trial court" and that, "[i]n the absence of clear abuse, we . . . normally . . . uphold discretionary orders of this nature." 546 F.2d at 832. But this is so, noted the court, where

[i]n the usual case, the trial judge has observed the complained-of event, heard counsel, and made specific findings. Under such circumstances, a mistrial declaration accompanied by a finding that the jury could no longer render an impartial verdict would not lightly be set aside.

Ibid.

3. See App. 173, 176, 178, 182, 183.

4. As is recognized by the majority in its search for an implied finding that the prejudice was sufficient to warrant a mistrial, mere error by either the prosecutor or the defense is insufficient by itself to provide the "high degree" of necessity, ante at 506, required to permit a retrial following the grant of a mistrial over the defendant’s objections. See United States v. Dinitz, 424 U.S. 600, 608 (1976), quoting United States v. Jorn, 400 U.S. 470, 484 (1971) (plurality opinion of Harlan, J.) .

5. I do not mean to suggest that curative instructions are always or even generally sufficient to cure prejudice resulting from evidentiary errors, see Bruton v. United States, 391 U.S. 123, 129 (1968), quoting Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring), particularly where the error is one by the prosecutor and must be shown to have been harmless beyond any reasonable doubt in order for the conviction to be sustained, see Chapman v. California, 386 U.S. 18, 21-24 (1967). However, it must be recognized that the cases are legion in which convictions have been upheld despite the jury’s exposure to improper material relating to the defendant’s past conduct, often because curative instructions have been found sufficient to dispel any prejudice. See, e.g., United States v. Bloom, 538 F.2d 704, 710 (CA5 1976); id. at 711 (Tuttle, J., concurring); United States v. Plante, 472 F.2d 829, 831-832 (CA1), cert. denied, 411 U.S. 950 (1973); United States v. Roland, 449 F.2d 1281 (CA5 1971); Driver v. United States, 441 F.2d 276 (CA5 1971); Beasley v. United States, 94 U.S.App.D.C. 406, 218 F.2d 366 (1954), cert. denied, 349 U.S. 907 (1955). See also United States v. Hoffman, 415 F.2d 14, 21 (CA7), cert. denied, 396 U.S. 958 (1969) (prosecutor’s closing argument referring to accused as "liar, crook, and wheeler and dealer" was improper but harmless error). If instructions may be found to have cured prosecutorial error relating to the defendant’s past misconduct beyond a reasonable doubt, they ought surely to be considered in deciding whether to subject a defendant to a second trial because of defense error in referring to past misconduct by the prosecution.

6. See Tr. of Voir Dire by Defendant’s Counsel 22.

7. In this respect, the instant case differs markedly from the situation in Thompson v. United States, 155 U.S. 271 (1894), discussed ante at 512. There, upon discovery that one of the petit jurors had served on the grand jury indicting the defendant, the trial court immediately announced that, "[if it] is insisted on by the gentlemen, there is no way left but for the court to discharge the jury on that ground. . . ." Record in No. 637, O.T. 1893, p. 20. Defense counsel objected to the juror’s participation, but also objected to a discharge of the jury, arguing that he was entitled to an acquittal once having been placed in jeopardy. The trial court was of the view, clearly correct, that, had the juror remained on the panel despite counsel’s objection, any conviction would have been reversed. Id. at 21-22. That being the case, the trial court held that the jury could be discharged and a new jury impaneled without violating the Double Jeopardy Clause. This Court affirmed.

8. Thus, while the trial court repeatedly challenged defense counsel on his theories for admissibility of the Arizona Supreme Court’s ruling, see App. 204, 205, 209, 211, 217, 248, not once did the court refer to "manifest necessity"; question defense counsel as to the nature of any curative instructions that might be propounded; or otherwise indicate a consciousness that mere error on either side is insufficient to warrant the grant of a mistrial over defense objections, seen. 4, supra.

9.

Based upon defense counsel’s remarks in his opening statement concerning the Arizona Supreme Court opinion and its effect for the reasons for the new trial, the motion for mistrial will be granted.

App. 271-272. As was noted in the Court of Appeals, the circumstances of the argument on the mistrial motion and the ruling itself make it

quite possible that the grant of mistrial was based on the fact that the impropriety of counsel’s conduct had been established without reaching the question whether there could, nevertheless, be a fair trial.

546 F.2d at 833 (Merrill, J., concurring).

10. The majority relies on three aspects of the record to support its conclusion that the trial court did make an evaluation of the prejudicial impact of counsel’s remarks and of the need for a mistrial to correct the error. Ante at 514-515, n. 34, 517 n. 39. The first is that the trial court was aware of the double jeopardy consequences of an improvidently granted mistrial, namely, that the defendant may not be tried again. While this is true, none of the comments by the court suggests a concern with the propriety of anything other than its ruling on the evidentiary question. See App. 225, 253. Second, the majority points to the fact that counsel each argued whether the prejudice could be cured by means other than a mistrial. But such argument occupied only a minuscule portion of each side’s discussion and elicited no comment or response from the court.

Finally, the Court notes that at the voir dire of the jury, the trial court expressed concern about "poisoning of the panel" and that to allay this concern, the jury was questioned as to its knowledge of the reasons for a new trial. The transcript of the voir dire, however, suggests that this questioning had two purposes: to determine whether any jurors knew why there was a second trial, and to determine whether such knowledge would prejudice them in their deliberations. Tr. of Voir Dire, supra at 35. Since no jurors knew of the reason for the new trial, no inquiry was made as to prejudice -- recognized at this time by the court and by counsel as a separate issue. None of these portions of the record establishes that the trial court at any time made a determination that the prejudice from counsel’s opening statement could not be cured by an instruction, or that the court had any basis, such as through a voir dire, on which to make such a determination.

11. See, e.g., Thompson v. United States, discussed ante at 512, and in n. 7, supra. Although not every error that would require reversal upon conviction necessitates a mistrial, frequently the "high degree of necessity" required by the Perez doctrine is present, and may be implied from the record if not expressed thereon, when an error of such magnitude prompts a mistrial. See Illinois v. Somerville, 410 U.S. 458, 477-483 (173) (MARSHALL, J., dissenting).

12. Moreover, given the wide variety of situations in which it may be appropriate to grant a mistrial, and the difficulty in setting forth a single standard that can provide meaningful guidance on each occasion, a statement of reasons by the trial court would contribute to the development of a body of rules, precedents, and principles that might be useful in providing guidance to other courts. Cf. United States ex rel. Johnson v. Chairman of N.Y. State Bd. of Parole, 500 F.2d 925, 928-934 (CA2), vacated as moot, 419 U.S. 1015 (1974).

13. Given the importance of respondent’s constitutionally protected interest in avoiding unnecessary second trials, United States v. Jorn, 400 U.S. at 486, it might even be argued that a statement of reasons explicitly relating to the need for a mistrial is always required. I do not go this far here, but only observe that we have held in numerous contexts that governmental decisionmakers must state their reasons for decision, particularly where the decision is adverse to the constitutionally or statutorily protected interests of an individual. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Goldberg v. Kelly, 397 U.S. 254, 271 (1970).

14. In Simmons v. United States, 142 U.S. 148 (1891), discussed ante at 512, the trial court had explained at length the reasons for its conclusion that there was a "manifest necessity" for the mistrial. 142 U.S. at 149-150. Indeed, even in Thompson v. United States, discussed ante at 512, and in n. 7, supra, the trial court’s finding that there was "no [other] way" to respond to the grand juror’s presence on the petit jury sufficiently indicated on the record an exercise of discretion informed by the "manifest necessity" standard.