                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 07a0221p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                   X
                             Petitioner-Appellee, -
 LAWRENCE WALLS,
                                                    -
                                                    -
                                                    -
                                                         No. 06-3472
          v.
                                                    ,
                                                     >
 KELLEH KONTEH, Warden,                             -
                          Respondent-Appellant. -
                                                   N
                     Appeal from the United States District Court
                     for the Northern District of Ohio at Toledo.
                    No. 04-07352—David A. Katz, District Judge.
                                      Argued: March 13, 2007
                                 Decided and Filed: June 15, 2007
                 Before: NORRIS, GILMAN, and McKEAGUE, Circuit Judges.
                                         _________________
                                              COUNSEL
ARGUED: Diane Mallory, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. John F. Potts, LAW OFFICE OF JOHN F. POTTS, Toledo, Ohio, for Appellee.
ON BRIEF: Diane Mallory, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. John F. Potts, LAW OFFICE OF JOHN F. POTTS, Toledo, Ohio, for Appellee.
         NORRIS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. GILMAN,
J. (pp. 8-12), delivered a separate dissenting opinion.
                                         _________________
                                             OPINION
                                         _________________
         ALAN E. NORRIS, Circuit Judge. Warden Kelleh Konteh appeals from the judgment of the
district court granting petitioner Lawrence Walls a writ of habeas corpus based upon its conclusion
that the sua sponte declaration of a mistrial by the judge in his state-court trial violated petitioner’s
right not to be placed twice in jeopardy. Walls v. Konteh, 418 F. Supp. 2d 962 (N.D. Ohio 2006).
This appeal requires us to balance petitioner’s double jeopardy interest against the determination of
the state trial judge that calamitous events occurring outside the courtroom – the September 11, 2001
attacks upon the World Trade Center and Pentagon – created the kind of “manifest necessity” that
justified a mistrial. While there are undoubtedly considerations that weigh in favor of the contrary
position, we conclude that the trial judge acted within the bounds of his discretion in view of the
novel and fluid circumstances that existed at the time of his decision. Specifically, he expressed


                                                   1
No. 06-3472           Walls v. Konteh                                                               Page 2


concern that the jurors would be so distracted by outside events that they would be unable to focus
on the trial, thereby compromising petitioner’s right to a verdict based upon the evidence.
        Because this case comes to us in a habeas posture, a writ may issue only if we conclude that
the state-court decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). For the reasons that follow, we hold that the Ohio Court of Appeals’ affirmance of
the declaration of a mistrial was neither “contrary to,” nor an “unreasonable” application of, federal
law. Consequently, the judgment of the district court must be reversed.
                                                   I.
       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.
No. 104-132, 110 Stat. 1214, “a determination of a factual issue made by a State court shall be
presumed to be correct.” 28 U.S.C. § 2254(e)(1). This consideration, coupled with the fact that the
underlying facts are essentially undisputed, make the summary provided by the Ohio Court of
Appeals the best place to begin our analysis:
                On May 31, 2001, appellant was indicted on one count of aggravated robbery,
       one count of aggravated burglary, one count of felonious assault, and one count of
       robbery. A jury trial commenced on September 10, 2001. On September 11, 2001,
       the trial judge sua sponte declared a mistrial and rescheduled the case for a pretrial
       hearing on September 17, 2001. On September 18, 2001, appellant filed a motion to
       dismiss the case on the grounds of double jeopardy. On October 9, 2001, a visiting
       judge conducted a hearing on the motion and found that the trial judge had not
       abused his discretion in sua sponte granting a mistrial.
              A bench trial commenced on November 5, 2001. On November 6, 2001,
       appellant was found guilty of aggravated robbery with a firearm specification,
       aggravated burglary with a firearm specification, and the second degree felony
       offense of robbery. He was sentenced to 11 years in prison. . . .
               ....
               At the dismissal hearing, the Honorable Charles S. Wittenberg testified that
       he was presiding over appellant’s trial on the morning of September 11, 2001. The
       state had rested its case the day before and the defense was scheduled to begin its
       case with an alibi witness. Judge Wittenberg testified that before the trial began that
       morning he was informed that terrorists had just crashed an airliner into the World
       Trade Center in New York City. The jurors were unaware of the unfolding events.
       During testimony, the judge received a note from someone informing him that there
       had been a “bombing” at the pentagon and another plane crash in Pennsylvania. The
       Judge testified that he also received information that a plane containing a bomb was
       flying from the city of Cleveland towards Toledo.
                The Judge called a recess and asked to speak to a specific juror who was a
       member of the air force. Knowing the military was on active alert, Judge Wittenberg
       testified that he thought it was important to tell the juror about the attacks and to give
       him an opportunity to call his commanding officer. Both the prosecution and defense
       counsel agreed to the discharge of the juror.
               The judge testified that he then decided to recess for the day and tell the other
       jurors about the breaking national news. The Judge excused the jurors and instructed
       them to call the court later in the day to find out whether or not they should report
No. 06-3472              Walls v. Konteh                                                                   Page 3


        back to the courtroom the next morning. The attorneys were also excused. The judge
        testified that within a half hour of excusing the jury, the courthouse was evacuated
        and closed.
                Soon after, Judge Wittenberg testified that he summoned the prosecutor back
        to the courtroom and contacted defense counsel by phone. In chambers, the judge
        informed counsel that: “I have no idea what’s going to happen tomorrow, so at this
        point, I think we’ll leave a message for the jurors not to return and just declare a
        mistrial.” Defense counsel objected to the declaration.
               Appellant contends that it was improper for the trial judge to sua sponte
        declare a mistrial before he had determined that a fair trial was no longer possible
        and before he had considered other alternatives.
                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.
State v. Walls, No. L-01-1492, 2003 WL 220460, at *1-2 (Ohio App. Jan. 31, 2003).
                                                        II.
        Before reviewing the legal reasoning of the Ohio Court of Appeals, which upheld the trial
judge’s declaration of a mistrial, it is worth remembering the lens through which AEDPA requires
us to view state court decisions. As already mentioned, the writ shall not issue unless the state-court
adjudication “resulted in a decision that was contrary to, or an unreasonable application of, clearly
established Federal   law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).1 This standard requires that federal courts give considerable deference to state-court
decisions. Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) (“[AEDPA] tells federal courts:
Hands off, unless the judgment in place is based on an error grave enough to be called
unreasonable.”) (citation and quotation marks omitted).
       A state-court decision is considered “contrary to . . . clearly established Federal law” if it is
“diametrically different, opposite in character or nature, or mutually opposed.” Williams v. Taylor,
529 U.S. 362, 405 (2000) (quotation marks omitted). Alternatively, to be found an “unreasonable
application of . . . clearly established Federal law,” the state-court decision must be “objectively
unreasonable” and not simply erroneous or incorrect. Id. at 409-11. In short, “a federal habeas court
may not issue the writ simply because that court concludes in its independent judgment that the



        1
           In the alternative, AEDPA sanctions the issuance of the writ if the state-court decision “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). Neither party contends that the factual determinations in this case were unreasonable and our focus is
therefore exclusively upon § 2254(d)(1).
No. 06-3472                  Walls v. Konteh                                                                  Page 4


relevant state-court decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also have been unreasonable.” Id. at 411.
        The key question, then, is whether the decision of Judge Wittenberg, as affirmed by the Ohio
Court of Appeals,2 is either contrary to, or an unreasonable application of, established United States
Supreme Court precedent. Herbert v. Billy, 160 F.3d at 1135 (“A district court or court of appeals
no longer can look to lower federal court decisions in deciding whether the state decision is contrary
to, or an unreasonable application of, clearly established federal law.”). Moreover, “clearly
established federal law” is determined by “the holdings, as opposed to the dicta,” of United States
Supreme Court decisions, as of the time of the state court decision under review. Carey v. Musladin,
127 S.Ct. 649, 653 (2006) (quoting Williams, 529 U.S. at 412). The Ohio Court of Appeals reached
its decision based upon the following reasoning:
                   It is within a trial judge’s sound discretion to grant a mistrial. State v. Sage
           (1987), 31 Ohio St.3d 173, 510 N.E.2d 343. The Double Jeopardy Clauses of the
           United States and the Ohio Constitutions protect against successive prosecutions and
           successive punishments for the same offense. United States v. Dixon (1993), 509
           U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556. A trial court’s sua sponte declaration of
           mistrial does not violate the double jeopardy doctrine so long as (1) a manifest
           necessity existed or the ends of public justice would otherwise be defeated and
           (2) the trial court considered alternatives to declaring a mistrial. Arizona v.
           Washington (1978), 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717. A trial court has
           discretion to declare a mistrial where (1) “manifest necessity” or a “high degree of
           necessity” dictate; (2) the trial judge has no reasonable alternative to declaring a
           mistrial; and (3) the public interest in fair trials designed to end in just judgments is
           best served by ordering a mistrial. State v. Widner (1981), 68 Ohio St.2d 188, 190,
           429 N.E.2d 1065. “It is clear that manifest necessity is not synonymous with absolute
           necessity, but that a ‘high degree’ of necessity must exist before a mistrial may
           properly be declared.” United States v. Cameron, (6th Cir.Ohio 1992) 953 F.2d 240,
           244, citing Washington, 434 U.S. at 506. In evaluating whether the declaration of a
           mistrial was proper in a particular case, the Supreme Court of Ohio has “declined to
           apply inflexible standards, due to the infinite variety of circumstances in which a
           mistrial may arise.” State v. Glover (1988), 35 Ohio St.3d 18, 19, 517 N.E.2d 900,
           citing Widner, supra. Rather, the Ohio Supreme Court “has * * * adopted an
           approach which grants great deference to the trial court’s discretion in this area, in
           recognition of the fact that the trial judge is in the best position to determine whether
           the situation in his [or her] courtroom warrants the declaration of a mistrial.” State
           v. Glover, supra.
State v. Walls, supra, at *1.
        The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
provides that no person shall “be subjected for the same offense to be twice put in jeopardy of life
or limb.” U.S. Const. amend. V. This provision “represents a fundamental ideal in our
constitutional heritage, and it . . . appl[ies] to the States through the Fourteenth Amendment.”
Benton v. Maryland, 395 U.S. 784, 794 (1969). As the Ohio Court of Appeals recognized, for our
purposes the most instructive United States Supreme Court case on the subject is Arizona v.
Washington, 434 U.S. 497 (1978). In Washington, the trial court declared a mistrial on the motion



           2
               The Ohio Supreme Court did not accept this case for review. State v. Walls, 789 N.E.2d 1117 (Ohio 2003)
(table).
No. 06-3472           Walls v. Konteh                                                              Page 5


of the prosecutor, who objected to “improper and prejudicial comment during defense counsel’s
opening statement.” Id. at 498. The Court framed the issues before it as follows:
       The questions presented are whether the record reflects the kind of “necessity” for
       the mistrial ruling that will avoid a valid plea of double jeopardy, and if so, whether
       the plea must nevertheless be allowed because the Arizona trial judge did not fully
       explain the reasons for his mistrial ruling.
Id. Just as in the case before us, the trial judge in Washington “did not expressly find that there was
‘manifest necessity’ for a mistrial; nor did he expressly state that he had considered alternative
solutions and concluded that none would be adequate.” Id. at 501.
       After discussing why double jeopardy precludes a second trial in most situations, the Court
explained that a retrial is permissible when “manifest necessity” requires it. Id. at 505. That concept
was originally defined by Justice Story as follows:
               We think, that in all cases of this nature, the law has invested Courts of
       justice with the authority to discharge a jury from giving any verdict, whenever, in
       their opinion, taking all the circumstances into consideration, there is a manifest
       necessity for the act, or the ends of public justice would otherwise be defeated. They
       are to exercise a sound discretion on the subject; and it is impossible to define all the
       circumstances, which would render it proper to interfere. To be sure, the power ought
       to be used with the greatest caution, under urgent circumstances, and for very plain
       and obvious causes. . . . But, after all, they have the right to order the discharge; and
       the security which the public have for the faithful, sound, and conscientious exercise
       of this discretion, rests, in this, as in other cases, upon the responsibility of the
       Judges, under their oaths of office.
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). While adopting Justice
Story’s “classic formulation,” the Court in Washington emphasized that it required flexibility in its
application:
       [T]hose words do not describe a standard that can be applied mechanically or without
       attention to the particular problem confronting the trial judge. Indeed, it is manifest
       that the key word “necessity” cannot be interpreted literally; instead . . . we assume
       that there are degrees of necessity and we require a “high degree” before concluding
       that a mistrial is appropriate.
Id. at 506 (footnotes omitted).
        In Washington, the Court considered whether the trial court’s perception that the jury would
be impermissibly biased by the inappropriate comments of defense counsel during opening argument
was entitled to deference. The Court concluded that it was: “There are compelling institutional
considerations militating in favor of appellate deference to the trial judge’s evaluation of the
significance of possible juror bias.” Id. at 513 (footnote omitted). This is so even when alternatives
are available:
               We recognize that the extent of the possible bias cannot be measured, and
       that the District Court was quite correct in believing that some trial judges might
       have proceeded with the trial after giving the jury appropriate cautionary
       instructions. In a strict, literal sense, the mistrial was not “necessary.” Nevertheless,
       the overriding interest in the evenhanded administration of justice requires that we
       accord the highest degree of respect to the trial judge’s evaluation of the likelihood
No. 06-3472               Walls v. Konteh                                                                       Page 6


         that the impartiality of one or more jurors may have been affected by the improper
         comment.
Id. at 511.
        In light of the guidance provided by Washington, it is clear that the district court
overemphasized Judge Wittenberg’s failure to explore alternatives adequately before declaring a
mistrial:
                 There were several alternatives available to the Judge . . . which the trial
         court could have undertaken to avoid a mistrial or at least to investigate as to whether
         a mistrial was necessary. Not only could he have called the jurors back the next day
         and conducted voir dire to determine their ability to continue, he could have placed
         a message on the court telephones that the jurors should phone in on a daily basis to
         determine when they would be returning to the courthouse. Alternatively, because
         of the relatively small number of people involved, the Court Administrator or other
         administrative personnel could have undertaken to call the individual jurors back into
         service when the court activities resumed after September 11. . . .
Walls, 418 F. Supp. 2d at 963-64. While it is undoubtedly true that Judge Wittenberg had
alternatives to a mistrial, the Supreme Court has never required that a judge consider other options
when “the record provides sufficient justification for the state-court ruling.” Washington, 434 U.S.
at 516-17. Washington’s discussion of such considerations as the manner in which the trial court
exercised its discretion (i.e., with or without deliberations and consideration of alternatives) is not
mere dicta, but neither did the court hold that a declaration of mistrial without deliberate
consideration of alternatives is necessarily an abuse of discretion. As Washington makes clear, we
owe a high degree of deference to a trial judge’s assessment that the jury’s ability to render a verdict
uninfluenced by improper considerations has been compromised.
        The case before us is unusual to the extent that the perceived improper taint came from
outside the courthouse. Thus, one might argue that the deference that we usually accord to a trial
judge’s assessment of potential prejudice should be reduced because he was in no better position to
assess the threat than anyone else. As petitioner points out, another judge in the same courthouse
elected to allow an on-going trial to proceed. Under the novel circumstances that existed that day,
petitioner contends that Judge Wittenberg should first have explored less drastic alternatives, such
as polling or making voir dire inquiry of the jury, before declaring a mistrial.
        While these considerations undeniably make this a close case, they do not mean that
petitioner is entitled to the writ. As the district court candidly acknowledged,3“no one . . . suggests
or has suggested that Judge Wittenberg behaved irrationally or irresponsibly.” Walls, 418 F. Supp.
2d at 964. Neither party contends that concern about the jury’s ability to focus on the evidence
before it is not a legitimate consideration in the “manifest necessity” calculation. That “some trial
judges might have proceeded with the trial,” suggesting that continuance was not strictly
“necessary,” does not compel the conclusion that Judge Wittenberg’s decision was not an exercise
of sound discretion or, much less, that its affirmance by the Ohio Court of Appeals was contrary to
clearly established federal law. Washington, 434 U.S. at 511. If we step back for a moment and
review the events facing Judge Wittenberg, it is clear that his decision comported with Washington.
He knew of the World Trade Center and Pentagon attacks, had been told that a plane carrying a
bomb was heading towards his city, and had learned that the courthouse would be evacuated without

         3
           This concession distinguishes this case from the situation in Johnson v. Karnes, 198 F.3d 589 (6th Cir. 1999),
which petitioner relies heavily upon. In Johnson, we found that “the trial judge failed to act rationally, responsibly or
deliberately, and thus failed to exercise sound discretion as required by Perez and its progeny.” Id. at 596.
No. 06-3472               Walls v. Konteh                                                                       Page 7


knowing when it would reopen. Before declaring a mistrial, he considered the alternative course
of instructing the jury to return the next day. In the press of these unfolding events, however, he
concluded – quite rationally, as the district court recognized – that the jury might not be able to
devote its full attention to the evidence. The Ohio Court of Appeals’ affirmance of his 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. See Carey, 127 S.Ct. at 654 (“Given the lack of
holdings from this court regarding . . . conduct of the kind involved here, it cannot be said that the
state court ‘unreasonably applied clearly established Federal law.’”).4
                                                          III.
         The judgment of the district court is reversed and the writ of habeas corpus is vacated.




         4
           While the dissenting opinion alludes to the deferential standard of review mandated by AEDPA, it fails to
identify any holding of the United States Supreme Court to which the Ohio Court of Appeals’ ruling is contrary or of
which the Ohio Court of Appeals’ ruling is an unreasonable application. Instead, the dissent relies largely on Sixth
Circuit decisions issued before the United States Supreme Court first made it clear in Williams that “clearly established
federal law” is determined by the holdings of Supreme Court decisions. Consequently, the dissent’s analysis, in our
view, neglects the “principles of comity, finality and federalism” that AEDPA is designed to serve. Dennis v. Mitchell,
354 F.3d 511, 517 (6th Cir. 2003) (quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)).
No. 06-3472           Walls v. Konteh                                                              Page 8


                                          _______________
                                             DISSENT
                                          _______________
          RONALD LEE GILMAN, Circuit Judge, dissenting. 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 by the majority, as well as
from the two 19th-century cases cited in Arizona v. Washington, 434 U.S. 497, 512 (1978), as
examples of the deference usually accorded to a trial court’s evaluation of “possible juror bias.”
        In each of those cases, the event or conduct that precipitated the declaration of a mistrial bore
a clearly discernible relationship to the ongoing trial. Washington itself involved “improper and
prejudicial” remarks made by the defendant’s attorney during his opening statement that “may have
affected the impartiality of the jury.” Id. at 510, 511. United States v. Jorn, 400 U.S. 470, 473
(1971), involved the possibility that several government witnesses might incriminate themselves
without full knowledge of their constitutional rights under the Fifth Amendment. Simmons v. United
States, 142 U.S. 148 (1891), the first 19th-century case cited in Washington, “involved the
possibility of bias caused by a newspaper story describing a letter written by defense counsel
denying a charge by a third party that one of the jurors was acquainted with the defendant.”
Washington, 434 U.S. at 512 (summarizing Simmons). Finally, Thompson v. United States, 155 U.S.
271 (1894), the second 19th-century case cited in Washington, involved the possibility of bias where
“one of the trial jurors had served on the grand jury that indicted the defendant.” Washington, 434
U.S. at 512 (summarizing Thompson).
        Each of the above cases reflects the rationale underlying the basic jurisprudential principle
of deference: The reason that reviewing courts typically defer to the judgment of the initial arbiter
on largely fact-based matters is that the latter’s “vantage point and day-to-day experience” with such
matters endows it with “an institutional advantage over appellate courts in making these sorts of
determinations.” Koon v. United States, 518 U.S. 81, 98 (1996) (discussing federal appellate courts’
deference to district courts in their application of the U.S. Sentencing Guidelines to criminal
defendants); Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionary Workers Union, AFL-CIO,
430 U.S. 243, 253 (1977) (“[I]t is because of his special experience, expertise, and selection by the
parties that courts generally defer to an arbitrator’s interpretation of the collective-bargaining
agreement.”).
       The same principle applies in the present context of manifest-necessity determinations based
on possible juror bias, as the Supreme Court reiterated in Washington:
        There are compelling institutional considerations militating in favor of appellate
        deference to the trial judge’s evaluation of the significance of possible juror bias. He
        has seen and heard the jurors during their voir dire examination. He is the judge
        most familiar with the evidence and the background of the case on trial. He has
        listened to the tone of the argument as it was delivered and has observed the apparent
        reaction of the jurors. In short, he is far more “conversant with the factors relevant
        to the determination” than any reviewing court can possibly be.
434 U.S. at 513-14 (footnotes omitted).
No. 06-3472           Walls v. Konteh                                                            Page 9


        As noted above, however, the state trial judge in the present case was in no way “conversant”
with how large-scale terrorist attacks would affect totally unrelated trial proceedings when the
events of September 11, 2001 occurred. This was through no fault of his own, to be sure. How was
the judge, more than anyone else, supposed to know what the effects of the attacks on the jurors
might be? The answer is simply that without asking them—which the judge undisputedly failed to
do —he could not have known. He therefore was not any “better positioned” than either the Ohio
Court of Appeals or ourselves to make a manifest-necessity determination on the basis of possible
juror bias. See Pierce v. Underwood, 487 U.S. 552, 560 (1988) (explaining the rationale underlying
the abuse-of-discretion standard in a case involving a district court’s authority to award attorney fees
under the Equal Access to Justice Act).
         In short, the majority correctly states as a general principle that “[t]here are compelling
institutional considerations militating in favor of appellate deference to the trial judge’s evaluation
of the significance of possible juror bias.” Maj. Op. at 5 (quoting Washington, 434 U.S. at 513).
And concern about juror bias is indeed “a legitimate consideration in the ‘manifest necessity’
calculation.” Maj. Op. at 6. But the problem in the present case is the impossibility of abstractly
divining what the bias would have been. Because the trial judge could not have known the answer,
deference to his uninformed judgment to declare a mistrial is less reasonable than under normal
circumstances where the bias-precipitating event bears a direct relationship to the trial at issue.
        Caselaw from this circuit provides support for my conclusion. Johnson v. Karnes, 198 F.3d
589, 597 (6th Cir. 1999), is our leading case in this area, where the court issued a writ of habeas
corpus because “the state trial court failed to exercise ‘sound discretion’ in declaring a mistrial.”
In Johnson, the defense attorney asked the victim on cross-examination whether he was aware of
the defendant’s prior acquittal for robbery. Id. at 591. The trial judge immediately convened a
sidebar, where he expressed anger at the defense attorney for having asked the question and
indicated to the prosecutor that he would grant a mistrial “if you want [it].” Id. at 592. After a brief,
10-to-15-minute recess, and after conducting another, more thorough sidebar conference with both
attorneys present, the judge declared a mistrial over the defendant’s objection. Id.
        Johnson sought habeas relief based upon the trial court’s subsequent denial of his motion to
dismiss the remaining counts against him on double-jeopardy grounds. The district court denied
Johnson’s habeas petition, but this court reversed, holding that “manifest necessity” did not justify
the mistrial. Id. at 597. As the majority here points out, the Johnson court determined that “the trial
judge failed to act rationally, responsibly or deliberately, and thus failed to exercise sound discretion
as required by [United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)] and its progeny.” Maj.
Op. at 6 n.3 (quoting Johnson, 198 F.3d at 596). The trial judge’s declaration of a mistrial was
accordingly determined to be an “unreasonable application” of clearly established federal law. Id.
at 597. Judge Boggs vigorously dissented, emphasizing that because the judge “heard argument by
both sides” before declaring a mistrial, he cannot be said to have acted “irrationally or
irresponsibly.” Id. at 598 (Boggs, J., dissenting) (quoting Washington, 434 U.S. at 514).
       Interestingly, the reasoning of Judge Boggs’s pro-government dissent in Johnson actually
supports the district court’s decision to grant Walls a habeas writ in the present case. Judge Boggs
reached his conclusion by distinguishing “[t]he primary cases from this circuit cited to support” the
majority’s decision to grant habeas relief to Johnson. Id. at 598 (Boggs, J., dissenting). These were
Glover v. McMackin, 950 F.2d 1236 (6th Cir. 1991), and Harpster v. Ohio, 128 F.3d 322 (6th Cir.
1997).
         Regarding Glover, Judge Boggs stressed that the “judge declared a mistrial without any
motion or argument, in the midst of a heated cross-examination.” Johnson, 198 F.3d at 598 (Boggs,
J., dissenting) (discussing Glover). Therefore, “the judge’s actions in Glover were a far cry from
what happened in [Johnson], where argument was permitted, and the judge did not make a final
No. 06-3472           Walls v. Konteh                                                          Page 10


ruling until after a motion had been made.” Id. The facts of the present case fit more closely with
Glover than with Johnson. To be sure, the trial judge met with both the prosecutor (in person) and
the defense attorney (by phone) and gave each a chance to raise objections or other concerns prior
to the judge’s official declaration of a mistrial. But the judge admitted in his later testimony that he
had made up his mind to declare a mistrial before contacting counsel for their views. The
prosecutor, moreover, never made a motion for a mistrial, unlike in Johnson; the mistrial was instead
declared by the judge sua sponte, as in Glover.
        Most critically, the judge here by his own admission never gave any consideration
whatsoever—either at the time that he declared the mistrial or in his post-judgment testimony—to
Walls’s constitutional right not to be subjected to double jeopardy. This, if nothing else, the judge
was required to do. As the Supreme Court clearly stated in Jorn, 400 U.S. at 558, “in the final
analysis, the judge must always temper the decision whether or not to abort the trial by considering
the importance to the defendant of being able, once and for all, to conclude his confrontation with
society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” See
also Washington, 434 U.S. at 515 (emphasizing that the trial judge, in compliance with Jorn, had
“evinc[ed] a concern for the possible double jeopardy consequences of an erroneous ruling” and
“accorded careful consideration to respondent’s interest in having the trial concluded in a single
proceeding”). “The ‘particular tribunal’ principle [underlying the prohibition on double jeopardy]
is implicated whenever a mistrial is declared over the defendant’s objection and without regard to
the presence or absence of governmental overreaching.” Washington, 434 U.S. at 508 n.25
(quotation marks omitted). These were the precise circumstances surrounding the mistrial
declaration in the present case.
        Regarding Harpster, Judge Boggs emphasized that case’s conclusion that the “amount of
prejudice that could have existed [on account of the borderline improper testimony for which the
mistrial was declared], if any existed at all, was minuscule.” Harpster, 128 F.3d at 330 (noting that
not even the very basis for the mistrial—namely, the defense counsel’s violation of a pretrial
order—was clear from the record). The trial judge’s failure to consider alternatives to a mistrial was
accordingly fatal to a finding of “manifest necessity” because a “simple corrective instruction would
have been adequate” to cure whatever prejudice did exist. Johnson, 198 F.3d at 598 (Boggs, J.,
dissenting) (discussing Harpster) (quotation marks omitted). Judge Boggs thus clarified that any
discussion of the consideration-of-alternatives factor of the manifest-necessity analysis must occur
“in the context” of the degree of possible prejudice involved. Id.
        Stated differently, Judge Boggs’s basic point was that a standard of proportionality is at play
in these cases: the lesser the amount of possible prejudice involved, the greater the trial judge’s
responsibility to consider alternative curative measures to a mistrial. Judge Boggs impliedly agreed
with the result in Harpster, where the degree of possible prejudice was “minuscule or nonexistent.”
Johnson, 198 F.3d at 598 (Boggs, J., dissenting). Johnson, conversely, where the degree of possible
prejudice was by comparison much greater, was wrongly decided in his opinion. Judge Boggs
instead would have ruled as the Supreme Court did in Washington—that is, “[s]ince the record
provides sufficient justification for the state-court ruling, the failure to explain that ruling more
completely does not render it constitutionally defective.” Id. at 598-99 (Boggs, J., dissenting)
(quoting Washington, 434 U.S. at 516-17).
        Again, the facts of the present case align more closely with Harpster (“miniscule or
nonexistent” prejudice) than with Johnson and/or Washington. Certainly, the trial judge’s instincts
to safeguard Walls’s presumptive innocence are laudable. But attempting to understand how the
attacks of September 11 would have prejudiced the jury against Walls strains the imagination. The
two have nothing in common. Hijacking jetliners for use as guided missiles versus robbing a
residence at gunpoint, although both violent criminal acts, are otherwise incomparable. The
September 11 terrorists sought the death of American lives and the destruction of recognizable
No. 06-3472           Walls v. Konteh                                                          Page 11


symbols of American power. Walls’s alleged actions sought only money. The terrorists’ attacks
killed approximately 3,000 people. Walls’s alleged actions resulted in no deaths at all. Finally,
regarding more tangible indices such as physical appearance that typically account for “spillover
effect,” those responsible for the September 11 attacks were of Middle Eastern origin and Islamic
beliefs. Nothing in the record indicates that Lawrence Walls was of either.
        The likelihood that the attacks would have prejudiced the jury against Walls was therefore,
as in Harpster, “minuscule or nonexistent.” Johnson, 198 F.3d at 598 (Boggs, J., dissenting)
(discussing Harpster). Regarding the trial judge’s principal concern (expressed for the first time
during his post-judgment testimony) that the focus on the attacks would divert the jury’s attention
from the case before them, he simply had no basis to make such an assumption. He had not been
confronted with similar circumstances at any point in his judicial career, much less on a regular,
“day-to-day” basis. See Koon, 518 U.S. at 98. If anything, the fact that Walls’s counsel objected
to the mistrial should have indicated to the judge that his assumption of divided-attention-based
prejudice was faulty, requiring that an actual inquiry be made into the matter. Such an inquiry was
especially critical because this was not a case where, as in Washington, “the record provides
sufficient justification for the state-court ruling.” 434 U.S. at 516-17. The record, in fact, provides
no justification at all for any of the trial judge’s alleged grounds for declaring the mistrial. Compare
id. at 517 (noting that the record included “the extensive argument of counsel prior to the judge’s
ruling”).
        To be sure, the majority properly concedes that “[t]he case before us is unusual to the extent
that the perceived improper taint came from outside the courthouse.” Maj. Op. at 6. What makes
this case unusual, however, is not simply that the “perceived improper taint came from outside from
courthouse,” but more specifically that it derived from events that were completely unprecedented
and beyond the realm of ordinary human experience. This additional characteristic of the September
11 attacks distinguishes the present case from those involving other “outside the courthouse”
taints—for example, the death of a prospective witness or of a juror’s family member—where the
judge would be far more capable of gauging the potential effect of the taint on the jury.
        Undisputedly, AEDPA requires federal courts to give considerable deference to state-court
decisions. See Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) (“[AEDPA] tells federal courts:
Hands off, unless the judgment in place is based on an error grave enough to be called
unreasonable.”) (quotation marks omitted). As applied to the present case, therefore, AEDPA adds
another layer of deference onto a largely fact-based ruling that is already entitled to substantial
deference. But AEDPA deference is not absolute, as each of the numerous post-1996 cases granting
a writ of habeas corpus attests. A critical footnote in Washington that is not mentioned by the
majority is directly relevant to the degree of deference that we should afford in the present case:
       It should be noted, however, that the rationale for this deference in the “hung” jury
       situation is that the trial court is in the best position to assess all the factors which
       must be considered in making a necessarily discretionary determination whether the
       jury will be able to reach a just verdict if it continues to deliberate. If the record
       reveals that the trial judge has failed to exercise the “sound discretion” entrusted
       to him, the reason for deference by an appellate court disappears. Thus, if the trial
       judge acts for reasons completely unrelated to the trial problem which purports to
       be the basis for the mistrial ruling, close appellate scrutiny is appropriate.
434 U.S. at 510 n.28 (emphasis added).
       The failure of the Ohio Court of Appeals to recognize the inapplicability of deferential
review to the facts of this case—as mandated by the same Supreme Court precedent on which it
No. 06-3472         Walls v. Konteh                                                    Page 12


otherwise relied—renders its ruling unreasonable within the meaning of AEDPA. I would therefore
AFFIRM the judgment of the district court.
