Case: 23-30086 Document: 00517054649 Page: 1 Date Filed: 02/02/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 2, 2024
No. 23-30086 Lyle W. Cayce
____________ Clerk
Lerone Lewis,
Petitioner—Appellant,
versus
Edward Bickham, Warden, Dixon Correctional Institute,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:20-CV-484
______________________________
Before King, Willett, and Douglas, Circuit Judges.
Per Curiam:
Lerone Lewis claims that his conviction for aggravated battery is
barred by the Double Jeopardy Clause of the Fifth Amendment. Lewis
underwent three trials for the same offense. His first trial resulted in a hung
jury, and the trial court declared a mistrial. After the trial court empaneled
and swore in a jury for a second trial, it declared a mistrial based on two
jurors’ concerns about their personal calendars. The next day, with new
jurors, a third trial resulted in a conviction.
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Pursuant to 28 U.S.C. § 2254, Lewis filed a habeas petition. The
district court considered his petition on the merits and denied habeas relief.
After reviewing the record, we conclude that the district court erred in
determining that the trial court had a manifest necessity for declaring a
second mistrial based on juror availability. Therefore, we REVERSE and
REMAND for issuance of the writ.
I. Background
A. Facts
On April 4, 2018, Lewis went to trial for an aggravated battery charge
in Louisiana. The jury failed to reach a verdict and the trial court declared a
mistrial. On October 17, 2018, a second trial began. As the parties proceeded
with voir dire, the prosecutors used peremptory strikes for two jurors who
indicated that they could not attend a second day of trial. As a result, and in
accordance with Louisiana state procedures, the trial judge swore in six jurors
and one alternate juror. See La. Code Crim. Proc. art. 782(A); La.
R.S. 14:34.
Next, the trial judge announced that while he expected trial to
conclude that day, it “may go into tomorrow.” A juror then informed the
trial judge that it was the last day of service for some of the jurors. The trial
judge responded that he would “try to wrap up this trial today.” That proved
to be challenging after some time had passed while the parties disputed over
an unavailable witness.
At least two jurors had scheduling difficulties. Before opening
arguments, a juror sent word that she was having scheduling conflicts. She
explained that she was a realtor and had “several appointments” with a client
who was getting “angry.” The following discussion occurred:
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THE COURT: Can you reschedule?
JUROR ONE: I haven’t been able to yet.
THE COURT: Why not?
JUROR ONE: Because I have to find someone, another real
estate agent, to show the property.
THE COURT: To do the property showing?
JUROR ONE: I haven’t been able to, yes.
Subsequently, a second juror informed the trial court that she had
scheduling difficulties because she needed to pick up her children from
school and watch over them. Then, the following conversation transpired:
THE COURT: Can anyone else pick up your children?
JUROR TWO: My mama is picking them up from school
right now, but I didn’t have preparation –
THE COURT: For afterwards?
JUROR TWO: Yes. I did just talk to my mama and the
deputy upstairs. The problem is coming back for tomorrow.
THE COURT: I’m sorry. Say it again.
THE JUROR: For tomorrow, like, she’ll be okay today, but
it is –
THE COURT: But for the rest of the night, you don’t intend
–
THE JUROR: Yeah. My mom, I just talked with her. She
normally has plans because she is part of a group, but she will
try to not do it for today. But if it goes into tomorrow, it would
put a hindrance on me because I don’t have anyone else besides
her.
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THE COURT: So can she watch them tonight? Is that
possible?
THE JUROR: Not overnight.
THE COURT: Not overnight. Oh, no, don’t worry. You
don’t have to worry about that. How late can you –
THE JUROR: I mean, they are fine at her house for tonight.
It can’t be – we live in two different residences and they go to
school uptown. It’s two different – that’s a lot.
THE COURT: Okay. You guys can go back upstairs.
By then, it was 4:00 p.m. and the trial judge told the parties that they
had “a decision to make” because of “logistical problems” with the two
jurors and because the parties had yet to begin their opening remarks. In
response, the prosecution moved for a continuance. The trial judge denied
the motion, stating that it was “the last day [of service] for these jurors” and
he was “not going to have [them] come back when they don’t have to . . .
tomorrow.” But to give the parties time to “make up [their] mind[s]” about
how to proceed without a complete jury panel, the trial judge held a 10-
minute recess.
After the recess, the parties readdressed the court. Both sides seemed
to agree that trial would continue to the next day. Defense counsel suggested
that juror two might be able to find someone else to pick up her children from
school or that trial might conclude before school ended. The trial court,
however, dismissed that idea because “[t]his was their last day of service”
and the jurors “probably have other appointments for tomorrow.” Still, he
recalled the jurors for further questioning: “If you want to ask them if they
can come back tomorrow, fine, fine with me. If they say yes, okay, we’ll go
on with it. If they say no, you’ve got a problem.”
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The trial judge then summoned the jurors to return to the courtroom.
Now, only three jurors said that they could return the next day. Again, the
trial judge dismissed the jury, remarking to the parties that he was “all ears.”
The defense counsel foresaw a double jeopardy violation in the following
colloquy:
DEFENSE COUNSEL: The jury has been sworn in.
Jeopardy is attached. We would object.
THE COURT: Jeopardy is attached when there is a witness,
right? We don’t have to worry about jeopardy. Anyway, go
ahead.
DEFENSE COUNSEL: That’s only in a bench trial, Judge.
THE COURT: What?
DEFENSE COUNSEL: That’s only in a bench trial.
THE COURT: Yeah, I know. You don’t have to worry about
that. State, I’m going to set this for a trial tomorrow and declare
a mistrial.
DEFENSE COUNSEL: Judge, we would object.
The trial court declared a mistrial sua sponte under two provisions of
the Louisiana Code of Criminal Procedure. See La. Code Crim. Proc.
art. 775(3) (mistrial permitted for a “legal defect in the proceedings” that
would make the judgment reversible); id. art. 775(5) (mistrial permitted if it
is “physically impossible” for the trial to proceed in conformity with the
law). Nonetheless, the prosecutor stated for the record that she had not
moved for a mistrial and that both parties were ready to proceed with trial.
Lewis’s third trial began the following day. At the start, defense
counsel moved to quash on double jeopardy grounds. The trial judge,
however, denied the motion without further comment. Lewis’s third jury
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voted to convict him, and the trial court sentenced him to 20 years of
incarceration.
B. Procedural History
On direct appeal, Louisiana’s Fourth Circuit Court of Appeal rejected
Lewis’s double jeopardy argument because he purportedly failed to avail
himself of Louisiana’s emergency discretionary review system. See State v.
Lewis, 2019-0448 (La. App. 4 Cir. 2/12/20), 292 So. 3d 945, 950-52 (“[W]e
find that [Lewis] failed to seek emergency review of the district court’s
mistrial order in accordance with La. C.Cr.P. art. 775.1, and therefore,
waived his right to proceed to trial with the dismissed jury.”). Louisiana’s
Supreme Court denied Lewis’s application for a supervisory writ without
explanation. See State v. Lewis, 2020-00389 (La. 6/22/20),
297 So. 3d 760.
Lewis sought a writ of habeas corpus, again challenging his conviction
on double jeopardy grounds.1 See 28 U.S.C. § 2254. A magistrate judge
determined that his claim was not barred by the doctrine of procedural
default but recommended denying it on the merits, finding no double
jeopardy violation. See Lewis v. Kent, No. CV 20-484-JWD-EWD,
2022 WL
18276906, *4-8 (M.D. La. Nov. 18, 2022), report and recommendation adopted,
No. CV 20-484-JWD-EWD,
2023 WL 174965 (M.D. La. Jan. 12, 2023).
Specifically, the district court found that the trial judge’s decision was
entitled to deference and that the record showed a manifest necessity for the
declaration of a mistrial.
Id. at *7. The district court agreed, dismissed
_____________________
1
Lewis’s original habeas petition also asserted a Batson claim and a Confrontation
Clause claim. In September 2022, the parties agreed that Lewis would withdraw those
claims in exchange for resentencing in state court. Lewis was resentenced to 5 years’
imprisonment.
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Lewis’s habeas petition, and granted him a certificate of appealability on that
issue. Id.
We have jurisdiction to review Lewis’s petition pursuant to 28 U.S.C.
§§ 1291 and 2253.2
II. Standard of Review
We review the district court’s findings of fact for clear error and its
legal conclusions de novo. Thomas v. Vannoy, 898 F.3d 561, 565–66 (5th Cir.
2018). Because the state court’s denial of Lewis’s claim was on procedural
grounds,3 we owe no AEDPA-related deference to the state court’s
decision.4 See Woodfox v. Cain,
609 F.3d 774, 794 (5th Cir. 2010)
(“AEDPA’s deferential standard is afforded to a state court decision only
when the state court adjudicated the petitioner’s claims on the merits.”).
_____________________
2
Because Lewis was resentenced to 5 years in prison, his sentence has expired, but
under Spencer v. Kemna, his petition is not moot. See Spencer v. Kemna, 523 U.S. 1, 8 (1998)
(explaining that we may “presume that a wrongful criminal conviction has continuing
collateral consequences” for the purpose of establishing jurisdiction under Article III, § 2,
of the Constitution).
3
There is no dispute that Lewis exhausted his claim in state court. Based on the
doctrine of procedural default, however, Bickham argued that Lewis’s claim is
unreviewable. The district court rejected that argument, explaining that the state court
relied on a procedural rule that was not an adequate state procedural bar. Bickham has not
challenged that ruling in this appeal. Accordingly, Bickham has abandoned the procedural
default argument. See United States v. Guillen-Cruz, 853 F.3d 768, 777 (5th Cir. 2017)
(finding that the appellee forfeited an issue by failing to raise the argument in its brief).
4
See 28 U.S.C. § 2254(d) (considering whether the state court’s adjudication of a
claim “(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law . . . or (2) resulted in a decision that was
based on an unreasonable determination of the facts”).
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III. Applicable Law
The Double Jeopardy Clause provides that no person subject to the
same offense shall “be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. If a trial court declares a mistrial over a defendant’s objection, the
Double Jeopardy Clause will bar a future trial unless there is a “manifest
necessity” for the mistrial.5 Arizona v. Washington, 434 U.S. 497, 505 (1978)
(citation omitted). “[T]he key word ‘necessity’ cannot be interpreted
literally; instead . . . we assume that there are degrees of necessity,” and the
Court requires a “‘high degree’ before concluding that a mistrial is
appropriate.”
Id. at 506.
Whether a mistrial was based on a sufficiently “high degree” of
necessity “is answered more easily in some kinds of cases than in others.” Id.
at 506-07. Accordingly, this standard cannot “be applied mechanically or
without attention to the particular problem confronting the trial judge.”
Id.
at 506. Because there is a “spectrum of trial problems which may warrant a
mistrial” and they “vary in their amenability to appellate scrutiny,” the
deference owed to the trial court “varies depending on the cause of the
mistrial.” United States v. Fisher,
624 F.3d 713, 718 (5th Cir. 2010).
Mistrials based on “the unavailability of critical prosecution
evidence” or “when there is reason to believe that the prosecutor is using the
superior resources of the State to harass or to achieve a tactical advantage
over the accused” are viewed with “the strictest scrutiny.” Id. at 508; see also
Cherry v. Dir., State Bd. of Corr., 635 F.2d 414, 419 n.6 (5th Cir. 1981) (en
banc); see, e.g., Fisher,
624 F.3d at 718-19 (providing examples).
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5
See Crist v. Bretz, 437 U.S. 28, 36 (1978) (“Throughout [Anglo-American] history
there ran a strong tradition that once banded together a jury should not be discharged until
it had completed its solemn task of announcing a verdict.”).
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On the other hand, a decision to declare a mistrial based on a
deadlocked jury is afforded “great deference.” Arizona, 434 U.S. at 510; see
also Renico v. Lett,
559 U.S. 766, 774 (2010); Fisher,
624 F.3d at 718-19. In all
instances, the ultimate inquiry is whether “the trial judge exercised ‘sound
discretion’ in declaring a mistrial.” Arizona,
434 U.S. at 514; see also United
States v. Campbell,
544 F.3d 577, 581 (5th Cir. 2008). Because this court’s
inquiry into manifest necessity is not “cabined by the explanations that the
trial court has explicitly set forth, . . . the court is free to scrutinize the entire
record.” Fisher,
624 F.3d at 718 (citing Bauman, 887 F.2d at 550). This
“plenary review” requires that we decide whether the trial judge “carefully
considered the alternatives and did not act in an abrupt, erratic or precipitate
manner.” United States v. Bauman,
887 F.2d 546, 550 (5th Cir. 1989)
(citation omitted). Thus, our standard of review is a “spectrum” not
“static.” Fisher,
624 F.3d at 718.
IV. Analysis
Lewis contends that the trial court abused its discretion by declaring a
mistrial because: (1) none of the jurors were legitimately unavailable; (2) the
trial judge did not consider available alternatives to a mistrial; (3) the trial
judge acted abruptly and erratically; (4) the trial judge did not inquire into
the reasoning behind the scheduling conflicts for two of the jurors; and (5)
the prosecution benefitted from the mistrial.
In terms of available alternatives, Lewis argues that: (1) the jurors
could have stayed as late as necessary to finish Lewis’s trial because it is
commonplace for Orleans Parish criminal juries to deliberate late into the
night or early next morning hours; and (2) the trial court failed to inquire as
to whether the jurors could have returned after a recess of two or more days.
Further, Lewis contends that the trial judge appeared unaware that jeopardy
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had attached. Before addressing Lewis’s contentions, we first consider the
degree of deference owed to the trial court.
A. Deference
Lewis contends that the highest degree of deference to the trial court
should not apply in these circumstances. First, he argues that the prosecutors
at his trial benefited from the mistrial because they sought and effectively
received a continuance. Lewis appears to invoke the strictest-scrutiny
standard that applies when the prosecution acts in “bad faith” or to “harass”
or “achieve a tactical advantage over” a defendant. Arizona, 434 U.S. at 508.
Second, Lewis claims that the degree of deference is diminished by the trial
court’s lack of awareness that jeopardy had attached.
We conclude that the strictest-scrutiny standard does not apply here.
The record indicates that the prosecution properly moved for a continuance
twice. In both instances, there was no improper benefit or bad faith.6 See
Arizona, 434 U.S. at 508. Specifically, the prosecutor clarified for the trial
court that she had not moved for a mistrial and had been ready to proceed
with trial. Defense counsel had similarly requested a continuance while
discussing the unavailable witness. The trial court declared a mistrial sua
sponte and refused to grant any continuances. Thus, we are not persuaded by
Lewis’s request for the strict scrutiny standard.
We agree that the highest degree of deference cannot be afforded to
the trial court where, as here, the trial judge was not aware that jeopardy had
attached before declaring a mistrial. The trial court transcript shows a clear
_____________________
6
We acknowledge that there are troubling instances in the record of potential
prosecutorial misconduct on direct appeal. Because our decision hinges on the trial court’s
and district court’s actions, we only address the prosecutor’s conduct as it relates to the
declaration of a mistrial and the underlying trial transcript.
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failure to realize that jeopardy had attached. Specifically, the trial court
appears to have conflated the standards for a bench and jury trial. The trial
court remarked that jeopardy was not a “worry” because it “attaches when”
a witness is sworn in. That is incorrect. For a bench trial, jeopardy does not
attach “until the first witness is sworn.” Willhauck v. Flanagan, 448 U.S.
1323, 1326 (1980) (citing Crist,
437 U.S. at 37 & n.15; Serfass v. United States,
420 U.S. 377, 388 (1975)). But for a jury trial, as here, jeopardy does not attach
“[u]ntil a jury is empaneled and sworn.”
Id. (citing Crist,
437 U.S. at 38).
Defense counsel flagged this error for the trial court. Unfazed, the trial court
repeated that the parties “don’t have to worry about” jeopardy and
immediately declared a mistrial.
This court has yet to address a case in which the trial court declared a
mistrial based on the mistaken assumption that jeopardy had not attached.
Our precedent suggests that appellate deference in such circumstances is
reduced. See United States v. Starling, 571 F.2d 934, 941 (5th Cir. 1978). In
Starling, the trial court’s “total lack of awareness of the double-jeopardy
consequences of” a mistrial meant that “the very basis for appellate
deference to the court’s determination that a mistrial was required [was]
diminished beyond the point of significance.”
Id. The basis for mistrial in
Starling was the trial court’s uncorroborated belief that the jurors developed
“resentment” against the defendant because he conversed with a juror.
Id.
at 939. When the trial court in Starling declared a mistrial, it showed a “total
lack of awareness of the double-jeopardy consequences” by (1) failing to give
the parties “an opportunity to [object or] address the possibility of bias or the
need for a mistrial,” (2) failing to consider any alternatives, and (3) reaching
its decision after “only a brief and confusing exchange” with the jury.
Id. at
941.
Unlike Starling, the trial court in this case made some effort to inquire
into the scheduling issues with two jurors and gave the parties some time to
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object and propose alternative solutions. Therefore, we must carefully
straddle the line between the degrees of deference owed to the trial court’s
decision to declare a mistrial. We look for any basis in the record to support
the trial court’s decision while also enunciating “the correct law on the
record facts.” Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 338
n.5 (5th Cir. 2004). In doing so, we must resolve all doubts in favor of the
accused. Downum v. United States,
372 U.S. 734, 738 (1963) (“We resolve any
doubt in favor of the liberty of the citizen, rather than exercise what would be
an unlimited, uncertain, and arbitrary judicial discretion.” (internal
quotation marks and citation omitted)).
B. Juror Availability and Alternatives
Lewis argues that two jurors were not “legitimately unavailable” to
participate in trial because scheduling conflicts that consist of work and
parental responsibilities are not “so emotionally” taxing so as to prevent
their continued jury service.
“The proposition that the legitimate unavailability of a juror is
‘manifest necessity’ permitting a retrial has been widely accepted, in varying
formulations.” Cherry, 635 F.2d at 419 (collecting cases). In Cherry, a juror
could not continue with trial because his parent had died, thus the juror’s
“uninterrupted service [became] impractical.” Cherry,
635 F.2d at 417.
“Common experience” indicated in Cherry that the juror was “legitimately
unavailable” to continue deliberating in trial. Id.; see also Campbell,
544 F.3d
at 583.
The scheduling concerns of two jurors in Lewis’s trial fall short of our
standard for manifest necessity. To be sure, realtor appointments, angry
clients, and the need to pick up and watch over one’s children are important.
But they are not the sort of emergencies that took place in Cherry (death of a
parent), Holley (significant illness that is confirmed by a doctor), or Campbell
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(inability to understand English). “Common experience” indicates that none
of the jurors were “legitimately unavailable” to continue deliberating in
Lewis’s trial. See Cherry, 635 F.2d at 417; Campbell,
544 F.3d at 583. In fact,
the trial court appeared to recognize the importance of juror unavailability
when scheduling issues were previously addressed in that same trial, as two
jurors were excused during voir dire because they could not attend a second
day of trial. To be clear, we are not attempting to delineate the outer bounds
of what counts as “unavailable.”
Lewis’s case is akin to Grandberry v. Bonner, where the trial court
declared a mistrial because a juror became ill but failed to inquire into the
seriousness of the illness. 653 F.2d 1010 (5th Cir. 1981). In Grandberry, we
reversed the trial court because the juror never “indicate[d] that his
condition was so serious that he felt unable to continue his jury service.”
Id.
at 1015. Instead, the juror stated that he would feel “okay” if he were to
“simply take his blood pressure medication,” which was easily retrievable.
Id. And by ignoring these remarks, that trial court failed to give “careful
consideration of the question [of] whether [the juror’s] condition was
sufficiently serious to render him incapable of further service as a juror.”
Id.
at 1014-15; compare
id., with United States v. Holley,
986 F.2d 100, 103-04 (5th
Cir. 1993) (affirming trial court’s declaration of a mistrial because juror
became ill, and her doctor confirmed that she “would not be able to
continue” service), and Campbell,
544 F.3d at 581 (affirming trial court’s
finding of mistrial where the jury notified the court that a juror spoke limited
English and may not have understood “the evidence presented during
trial.”). Thus, our precedent indicates that a juror’s unavailability must be
“clearly so serious that [the juror] could not continue to serve.” Grandberry,
653 F.2d at 1015.
Similar to Grandberry, the trial court failed to confirm whether the
jurors’ scheduling issues were “sufficiently serious” to render them
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incapable of service. Grandberry, 653 F.2d at 1014. For example, the first
juror never indicated that she could not serve as a juror despite her real estate
appointments. To the contrary, she said that she had not “yet” been able to
find a substitute. And the trial court neither confirmed whether the juror
could find a replacement, nor whether the appointments would, in fact,
preclude her from serving on the jury. The same is true for the second juror.
The trial court did not confirm whether the juror could make other
arrangements for the next day or reschedule. Further, the trial court did not
inquire into why a third juror was suddenly unavailable.
To be clear, we are not requiring a trial court to ask any magic words.
Rather, the trial court should at the very least inquire about the juror’s
availability for trial or a continuance for purposes of the manifest necessity
standard. As Bickham conceded during oral argument, a juror’s scheduling
concerns, without more, do not supersede a defendant’s constitutional rights
with respect to double jeopardy. Resolving all doubts in Lewis’s favor, the
jurors’ scheduling issues are not sufficiently serious to make their service
impractical, and thus the trial court erred in declaring a mistrial. Downum,
372 U.S. at 738.
In addition, Lewis contends that the trial judge failed to consider
available alternatives to mistrial. For example, one alternative was ordering a
continuance of the trial for one to two days.7 A trial judge “act[s] within his
sound discretion in rejecting possible alternatives and granting a mistrial, if
reasonable judges could differ about the proper disposition.” Fay v. McCotter,
765 F.2d 475, 478 (5th Cir. 1985) (quoting Cherry,
635 F.2d at 418-19).
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7
In addition, Lewis suggests a second alternative: allowing for the trial to continue
and start opening arguments at 4:00 p.m. Because we find one alternative sufficient, we do
not speculate on whether the trial court could have finished trial late that night or early the
next morning.
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Though alternatives to a mistrial must be considered, “the Constitution does
not require canvassing of specific alternatives or articulation of their
inadequacies.” Cherry, 635 F.2d 414, 418. Indeed, a “state trial judge’s
mistrial declaration is not subject to collateral attack in a federal court simply
because he failed . . . to articulate on the record all the factors which informed
the deliberate exercise of his discretion.” Arizona,
434 U.S. at 517; see also
Renico, 559 U.S. at 779.
In denying the prosecution’s motion for a continuance, the trial court
lacked a “manifest necessity” for declaring a mistral. See Arizona, 434 U.S.
at 517. The court reasoned that it was the last day of trial for some jurors, and
the court did not want them to return if they did not have to. In light of the
moderate deference owed in this circumstance, the trial court’s stated reason
for rejecting the continuance is meritless. While it is possible that the trial
court assumed that two jurors might not be available even after a
continuance, that justification would not require a mistrial.
This is not a case in which the trial court exercised “sound discretion”
in declaring a mistrial. Arizona, 434 U.S. at 514. Contrary to the trial court’s
belief, the general end date for jury service does not justify a mistrial, even
for a one-day trial. See Crist,
437 U.S. at 36 (“[A] jury should not be
discharged until it had completed the solemn task of announcing a verdict.”);
cf. La. Code. Crim. Proc. art. 409.5(C) (providing that, even if a juror
is selected for a one-day trial, “[a]ny juror selected to serve on a jury shall
serve until he is discharged from the jury”). Thus, the estimated duration of
service neither creates a “legal defect in the proceedings” nor does it make
it “physically impossible” for the trial to proceed. See La. Code. Crim.
Proc. art. 775(3), (5). And under the Double Jeopardy Clause, it is
particularly unreasonable that the trial court failed to grant a continuance,
when it did not consider whether the jurors’ scheduling conflicts were
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“clearly so serious” that they could not serve as a juror. Grandberry, 653 F.2d
at 1015.
Our conclusion is reinforced by the fact that the same trial court was
perfectly willing to entertain a non-consecutive-day recess the very next day
after assembling a third jury, but refused to consider it for the second jury.
We find that the trial court should have granted a continuance in this case.
See Arizona, 434 U.S. at 514. The trial court’s stated reasons do not support
its rejection of the continuance—and the record does not suggest any viable
reasons why the trial judge rejected this option. For these reasons, we must
reverse the district court’s finding that the trial court had a manifest necessity
for a mistrial.
C. Timing of Trial Court’s Decision
Lewis also claims that the trial court’s declaration of mistrial was
abrupt and erratic. While the timing is an important consideration, we find
that it was not abrupt or erratic in this case. See Grandberry, 653 F.2d at 1014-
16 (“[T]he precipitate character of the trial judge’s decision” may “indicate
that the judge had not devoted time or thought to alternatives or carefully
considered the defendant’s” jeopardy rights “before declaring a mistrial.”).
We have upheld declarations of mistrial where the trial court reaches
its decision after (1) some inquiry and deliberation; (2) some consultation
with counsel; and (3) providing the parties with at least the opportunity to
object. Cherry, 635 F.2d at 418; see Bauman,
887 F.2d at 552 (finding that the
trial court “did not act in an abrupt, erratic, or precipitate manner” where it
“consulted with the counsel of all defendants”); Campbell,
544 F.3d at 583
(finding that the trial court did not act abruptly where it “solicited the
opinion of both the Government and [the defendant], and its ultimate
decision was neither abrupt nor precipitate”).
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No. 23-30086
In contrast, this court has reversed where the trial court declared
mistrial so quickly that the parties had no time to object or address the trial
court’s concerns. See e.g., Grandberry, 653 F.2d at 1016 (trial court acted
precipitously where it declared mistrial “only a matter of minutes” after a
juror conveyed illness “without addressing either counsel and without
pausing long enough for an objection to be registered”); Starling,
571 F.2d at
934 (trial court showed “a total lack of awareness of the double-jeopardy
consequences” because it declared mistrial “after only a brief and confusing
exchange between the court and the jury”).
In light of our precedent, the trial court did not act in an abrupt,
erratic, or precipitate manner. Here, the record shows the trial court
repeatedly asked the parties for suggestions on how to resolve the jurors’
logistical concerns. The court also provided the parties with a recess to
consider alternatives. Further, the record shows that the parties were able to
lodge their respective objections to the trial court’s sua sponte declaration of
mistrial.
Although we find that the trial court failed to properly consider juror
unavailability and thus, improperly rejected the continuance, the trial court
did not act precipitously in declaring mistrial. Instead, the record indicates
that Lewis should be granted habeas relief because double jeopardy had
attached and there was not a manifest necessity for a mistrial.8
_____________________
8
The parties also dispute whether Crawford v. Cain, 55 F.4th 981, 994 (5th Cir.
2022) requires Lewis to demonstrate factual innocence to seek habeas relief. This court has
vacated the holding in Crawford and it is no longer good law. See Crawford v. Cain,
72 F.4th
109, 109 (5th Cir. 2023) (granting petition for rehearing en banc). Therefore, we do not
address that issue here.
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No. 23-30086
V. Conclusion
The jurors’ scheduling conflicts do not rise to the level of “legitimate
unavailability” that this court has endorsed in the past to allow for a mistrial.
Because the trial court failed to confirm whether these concerns were
sufficiently serious, and it failed to comprehend that jeopardy had attached,
there was no manifest necessity for its’ mistrial declaration. Under these
circumstances, reasonable judges could not differ “about the proper
disposition” of the case. We therefore conclude that Lewis’s third trial is
constitutionally barred by the Double Jeopardy Clause and order that the writ
of habeas corpus should be granted.
REVERSED and REMANDED for issuance of the writ.
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