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Did 9/11 Mistrial Violate Defendant's Rights?

Yesterday the U.S. Court of Appeals for the Sixth Circuit issued an interesting divided opinion in Walls v. Konteh, a habeas case arising from a particularly interesting — and somewhat unique — set of facts connected to the events of September 11, 2001.

In September 2001, Lawrence Walls was on trial in an Ohio court for for various crimes. On September 11, as the horrific events in New York City and elsewhere began to unfold, the judge declared a mistrial, and rescheduled the case. Walls sought to dismiss the case on grounds that a new trial would constitute double jeopardy, but the judge rejected this motion and conducted a bench trial in November 2001. The court found Walls guilty on several counts and sentenced him to 11 years in prison. The decision was upheld on appeal.

The trial judge in this case testified that prior to declaring a mistrial, he was concerned about the effect the breaking national news would have on the jury. The judge noted the seriousness of the charges and testified he was worried the jurors would not be able to devote their full attention to the evidence given the fact that the country appeared to be under attack. He further testified that he considered the option of instructing the jurors to return the next day. He testified he rejected the option because, once again, he was worried about the jurors' ability to concentrate and because he did not know if the courthouse would be open the next day. Based on the particular facts in this case as well as the foregoing testimony, we conclude that the trial judge properly exercised his discretion in finding a manifest necessity for declaration of a mistrial. Appellant's sole assignment of error is found not well-taken.
Walls filed a petition for a writ habeas corpus in federal district court. Here the judge concluded that the state court judge's sua sponte decision to declare a mistrial violated the defendant's constitutional right against double jeopardy. A majority of the reviewing panel of the U.S. Court of Appeals for the Sixth Circuit disagreed, however. Judge Norris, joined by Judge McKeague found that the "Ohio Court of Appeals' affirmance of [the judge's] declaration of a mistrial under these circumstances, grounded as it was on a concern about jury bias, is neither contrary to, nor an unreasonable application of, clearly established federal law as defined by any holding of the United States Supreme Court," and therefore no writ of habeas corpus was warranted. Judge Gilman dissented.
The majority opinion cites the proper authorities and engages in the correct analysis, but I believe that it gives short shrift to one key fact that, if adequately factored in, would undermine much of its persuasiveness and lead to the opposite result. Specifically, the state trial judge possessed no knowledge concerning the potential effect of the September 11 attacks on the ability of the jurors to fulfill their civic duties in Walls's case. Nor, of course, could he have possessed such knowledge; attacks like these had never before occurred on American soil. But the judge's lack of familiarity with events that were totally extraneous to Walls's trial distinguishes the present case from each of the cases cited . . . as examples of the deference usually accorded to a trial court's evaluation of "possible juror bias."

Litigator:
Ah, yes, one of my favorite genres of cases-- "Jurors are clinically retarded, to the point where they should not be entrusted with hard decisions or scissors. Judges are superheroes without flaw". It needs its own reporter or, at a minimum, Westlaw key number.
6.16.2007 11:03pm
Peter Young:
This seems to be a case in which the trial judge himself freaked out over 9/11 and granted a mistrial for reasons entirely unrelated to the case at hand because of events occurring hundreds of miles away.

Absolutely nothing supports the trial judge's conclusion that these jurors would not have been able to do their job. He didn't even bother to interview any of the jurors to find out how they felt about it. Lots of people--held jobs which required their full attention on 9/11 and 9/12--health care workers, construction workers, plumbers, teachers, judges, government workers, in general, the same sort of people who become jurors--and they weren't deemed incapable of carrying on because of 9/11.

Any generalized, unsubstantiated fear that jurors might be unable to focus on the trial because of the shock of 9/11 could have been dealt with by much less extreme measures. The trial could have been delayed for another day, or even a few more days; it was at a convenient breaking point anyway, the prosecution having just rested its case.

The defense objected to the mistrial, thus waiving any claim it might have had that 9/11 prevented a fair trial, a claim the courts would have dismissed out of hand in any event. Once the defense did that, the question of a mistrial should have been dead.

There was no showing that any juror was particularly affected by 9/11, that, for example, one of them lost a friend or relative in the tragedy, in which case that particular juror's excusal would have been justified. But this judge acted as if every juror was so affected by 9/11 without the slightest reason to do so except, perhaps, his own fear--that is, his own wish not to be distracted by a trial as he himself dealt with the tragedy of 9/11.

The case shouldn't even have been considered close. This is how dilution of our most fundamental constitutional liberties takes place--gradual erosion. Manifest necessity justifying a retrial in the face of the twice in jeopardy guarantee becomes not really necessary but desirable, which becomes judge's discretion, which becomes judge's preference, which becomes judge's wish although unsupported by any demonstrable reason.

What else is now within a judge's discretion as ground for a mistrial although unrelated to the case at hand and although the defense objects? A plane crash, fire or other disaster that kills many local residents? The death of a beloved president or governor or mayor?
6.17.2007 12:18am
Peter Young:
Lots of people--held jobs which required their full attention on 9/11 and 9/12--health care workers, construction workers, plumbers, teachers, judges, government workers, in general, the same sort of people who become jurors--and they weren't deemed incapable of carrying on because of 9/11.

"Lots of people--held jobs" should be "Lots of people held jobs ..." But I shouldn't have included judges as the sort of people who become jurors, although I did read fairly recently of a judge who served on a jury. It might have been Chief Justice Ronald George of the Cal Supremes, although my memory is a bit hazy.
6.17.2007 12:34am
John (mail):
I disagree with the prior comments. Even the dissent in the Circuit Court concedes that no one could know what effect 9/11 was going to have. It seems to me the trial judge was playing it safe.

Also, these decisions are routinely made based on what one thinks of theoretical jury behavior--just the way we decide what a "reasonable man" would do without taking surveys. For better or worse, that's how the system works.

Finally, the trial judge was THERE in the courtroom, in the city, when 9/11 happened. He could see what was going on around him and was in the best position to tell whether a fair trial was likely.
6.17.2007 12:36am
Yankee_Mark:
The snippet from above that caught my eye was:

Walls sought to dismiss the case on grounds that a new trial would constitute double jeopardy, but the judge rejected this motion and conducted a bench trial in November 2001.

What about the defendant's right to trial by jury?? And then a bench trial by the very same judge whose mistrial declaration had earlier been contested. I dunno about this one ...
6.17.2007 2:02am
Student:
If jurors may "not be able to devote their full attention to the evidence given the fact that the country appeared to be under attack," why are we to believe that the judge would be able to do so? There's no reason to believe he is not as human and fallible as the jurors.
6.17.2007 3:08am
Dave N (mail):
Under the deference due state court decisions in federal habeas corpus, the Sixth Circuit got the decision right. It is not a matter of whether the Circuit Court disagreed with the state court decision, but rather whether the state court decision was objectively unreasonable based on Supreme Court precedent. The majority correctly hed it was not.
6.17.2007 12:31pm
Peter Young:
It's sound discretion that gets deferred to in federal habeas corpus, not caprice and whim. This judge acted on the basis of nothing--no evidence, no experience, no jury poll, no argument of counsel (he had decided on a mistrial before consulting counsel) in declaring a mistrial on the basis of events entirely unrelated to the case. Down the hall in the same courthouse at the same time another judge proceeded with a jury trial in another case.

This kind of dilution of "manifest necessity" justifying a judge's unilateral declaration of a mistrial and thus a second trial is far beyond the pale of what is acceptable as an exercise of discretion. The dissenting opinion gets it right; there was no exercise of sound discretion to be deferred to.
6.17.2007 9:55pm