Fourth Circuit Grants Habeas Relief to Pre-Trial State Prisoner on Double Jeopardy Grounds
by Dale Chappell
Finding that a South Carolina state court violated a state pre-trial defendant’s right against double jeopardy by granting a mistrial when the State wasn’t prepared for trial, the U.S. Court of Appeals for the Fourth Circuit granted federal habeas relief on June 21, 2019, barring retrial.
Broderick Seay Jr. was charged with murder in connection with an execution-style killing of a person suspected of being a law enforcement informant in 2012. The State’s star witness (and only solid evidence putting Seay at the murder scene) was under subpoena to testify for the State at the upcoming trial. She had testified at one of Seay’s codefendant’s trial, and her testimony helped convict him of murder.
But two years later at the start of Seay’s trial, this key witness, who was still under subpoena, refused to show up. She said she was in fear for her life and sent a text message to the prosecutor: “I’m scared as hell,” she wrote. “I am all that my son has ... I decided not to take the stand and I’m willing to accept all consequences. Jail times is better than leaving my son in this world without a mother.”
This was after the trial had started, and the jury was empaneled but before any proceedings began. The next day, the State moved for a mistrial, claiming “surprise” about the witness’ change of heart. The trial court heard Seay’s opposition to the motion but granted a mistrial without considering any alternatives. “I think the public is entitled to a fair trial,” the court reasoned.
Seay then petitioned the U.S. District Court for the District of South Carolina for habeas corpus relief under 28 U.S.C. § 2241, and the state court stayed his retrial pending the outcome.
In a detailed opinion by District Judge Timothy Cain, he said he was “most concerned” with the trial court’s failure to explore alternatives to a mistrial. But Cain agreed that a mistrial was proper because the court had granted a continuance to find the witness before declaring a mistrial the next day. (Note: the witness was found and arrested the day after the mistrial was declared, and she was convicted of contempt.)
Finding a “manifest necessity” existed for a mistrial, Cain granted summary judgment to the State, denying Seay’s habeas petition. The court granted a certificate of appealability, and Seay appealed.
Federal habeas corpus under § 2241 is available to state pre-trial defendants to challenge their custody on the basis that it is in violation of the U.S. Constitution. This remedy is the exclusive federal remedy for state pre-trial defendants because the well-known remedy for state prisoners under § 2254 is only available for prisoners “in custody pursuant to the judgment of a state court.” § 2254(d). The Court explained that “the special deference we ordinarily accord to state court judgments under 28 U.S.C. § 2254 is inapplicable” with respect to a § 2241 habeas proceeding.
And while petitioners are usually required to exhaust their state court remedies before turning to federal habeas corpus, here the Fourth Circuit recognized that Seay didn’t have that option: South Carolina does not allow a double jeopardy challenge until after a conviction. State v. Rearick, 790 S.E.2d 192 (S.C. 2016). Thus, the Court ruled that Seay was allowed the petition directly to the federal court with his challenge under § 2241.
Under the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution (applicable to the states via the Fourteenth Amendment), the government is prohibited from subjecting a person to trial twice for the same crime. Crist v. Bretz, 437 U.S. 28 (1978). Jeopardy attaches once the jury is empaneled. United States v. Shafer, 987 F.2d 1054 (4th Cir. 1993). Few exceptions exist to the double jeopardy bar, but one is when a mistrial is required by “manifest necessity.”
The U.S. Supreme Court explained in Arizona v. Washington, 434 U.S. 497 (1978), that the government’s burden of proving “manifest necessity” for a mistrial is “a heavy one.” This burden is reviewed by a court under the “strictest scrutiny” standard, which means that the court must strictly construe the government’s reasons for a mistrial against it, with an inclination toward not granting one. This standard is typically applied to questions involving a person’s “fundamental rights,” such as the bar against double jeopardy,” and the government is required to prove it has a “compelling interest” in the retrial.
The State started the trial off on the wrong foot, Circuit Judge Barbara Keenan said, writing for the Court. “The record shows the government allowed jeopardy to attach with the awareness that [the witness], a critical government witness, might not appear to testify.” After all, she hadn’t shown in court the first day trial was scheduled to start (which was delayed for other reasons). And neither did she show the next day before the jury was empaneled.
“All alternative options must be evaluated, and all reasonable choices exhausted,” before a mistrial may be granted under manifest necessity, the Court explained. The trial court must give “careful consideration” to any alternatives before granting a mistrial, the Court said.
The Court found that the state trial court failed to consider available alternatives to a mistrial. For example, the court did not consider continuing the trial for a day or over the weekend until the witness was found. The trial court also never explained why the State could not continue with its other witnesses until the missing witness was found.
Manifest necessity was not shown, the Court concluded, and therefore a mistrial should not have been granted.
The Court made one final point: “We emphasize that this case sharply illustrates the consequences of the government’s too-ready reliance on the short-term solution of a mistrial to solve a common trial predicament” – the government’s rush to trial without being ready.
“The clear loser in this scenario is the public, which had a strong interest in having Seay tried under the murder indictment,” the Court admonished.
Accordingly, the Court vacated the district court’s denial of Seay’s habeas petition and remanded with instructions to grant habeas corpus relief. See: Seay v. Cannon, 927 F.3d 776 (4th Cir. 2019).
Writer’s Note: This is a good example of the remedy under the classic habeas corpus statute for those in custody in violation of the U.S. Constitution. While this remedy is rarely seen for state pre-trial defendants, especially pro se, the Ninth Circuit granted habeas relief on double jeopardy grounds in another case just days before the Fourth Circuit granted Seay’s petition. In that case, the Ninth Circuit held that a mistrial granted after the jury’s verdict acquitting the defendant was the perfect example of what the Double Jeopardy Clause was created to prevent: giving the government another bite at the apple when it doesn’t win at trial. See: Gouveia v. Espinda, 926 F.3d 1102 (9th Cir. 2019).
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Related legal case
Gouveia v. Espinda
|Cite||926 F.3d 1102 (9th Cir. 2019)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|