Bill of Rights (From public domain.)

Early on, trial lawyers are taught to “know your judge” and your jury. As a consequence, decisions whether to proceed to trial or settle a criminal or civil case require considering the potential judges and jurors who will sit at one’s trial.

Yesterday’s Renico v. Lett U.S. Supreme Court decision does not appear to address the extent to which the Supreme Court or the Michigan state appellate courts took into account the silence of Lett’s lawyer in the face of his original trial judge’s rapid-fire declaration of a mistrial without giving the foreperson a sufficient opportunity to answer her questions about whether the jury could reach a unanimous decision or remain deadlocked, and without giving the opposing lawyers in Lett’s murder case a chance to provide their views, objections, or consent about any mistrial.  Renico v. Lett  (May 3, 2010).

As it turned out, on retrial, Mr. Lett was convicted of second degree murder rather than of the original charge of first degree murder. Was the second degree murder conviction a good outcome as compared to the first degree murder charge, or did Lett have a better chance of an even better outcome had his first jury not been discharged? How much was Lett’s first jury trial lawyer taking a wise and calculated risk not to object to the mistrial declaration? Under Michigan trial procedure, does the judge’s declaration of a mistrial represent an irreversible fait accompli even if a party objects immediately after the mistrial declaration?

At issue in Lett is not whether the trial judge erred in declaring a mistrial, but whether the Michigan Supreme Court’s affirming the mistrial declaration entitled him to federal habeas corpus relief in the form of a barred retrial under Double Jeopardy principles, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

As Lett’s majority opinion explains:

The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of . . . clearly established Federal law.” §2254(d)(1). 

We have explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U. S. 362, 410 (2000). Indeed, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id., at 411. Rather, that application must be “objectively unreasonable.” Id., at 409.

Lett. 

Joined by Justice Sotomayor in full and by Justice Breyer in the first two of his three-section dissent, Justice Stevens emphatically insisted that the Michigan Supreme Court unreasonably applied clearly established federal law:

The judge then declared a mistrial on the spot. Her entire exchange with the foreperson took three minutes, from 12:45 p.m. to 12:48 p.m. App. to Pet. for Cert. 93a— 94a. The entire jury deliberations took roughly four hours. The judge gave the parties no opportunity to comment on the foreperson’s remarks, much less on the question of mistrial. Cf. Washington, 434 U. S., at 515—516 (trial judge “gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial”); Fed. Rule Crim. Proc. 26.3 (“Before order-ing a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives”). Just as soon as the judge declared a mistrial, she set a new pretrial date, discharged the jury, and concluded proceedings. By 12:50 p.m., everyone was free to take off for the weekend. App. to Pet. for Cert. 94a.

In addition to the remarkable hast[e], Washington, 434 U. S., at 515, n. 34, and inexplicabl[e] abrupt[ness], 316 Fed. Appx., at 428, with which she acted, it is remarkable what the trial judge did not do. Never did the trial judge consider alternatives or otherwise provide evidence that she exercised sound discretion. For example, the judge did not poll the jurors, give an instruction ordering further deliberations, query defense counsel about his thoughts on continued deliberations, or indicate on the record why a mistrial declaration was necessary. Lett, 466 Mich., at 227“228, 644 N. W. 2d, at 755 (Cavanagh, J., dissenting).Nor did the judge invite any argument or input from the prosecutor, make any findings of fact or provide any statements illuminating her thought process, follow up on the foreperson’s final response, or give any evident consideration to the ends of public justice or the balance between the defendant’s rights and the State’s interests. The manner in which this discharge decision was made contravened standard trial-court guidelines.¹⁵ The judge may not have had a constitutional obligation to take any one of the aforementioned measures, but she did have an obligation to exercise sound discretion and thus to assure h[er]self that the situation warrant[ed] action on h[er] part foreclosing the defendant from a potentially favorable judgment by the tribunal. Jorn, 400 U. S., at 486 (plurality opinion).

Add all these factors up, and I fail to see how the trial judge exercised anything resembling sound discretion in declaring a mistrial, as we have defined that term. In-deed, I fail to see how a record could disclose much less evidence of sound decisionmaking. Within the realm of realistic, nonpretextual possibilities, this mistrial declaration was about as precipitate as one is liable to find. Despite the multitude of cases involving hung-jury mistrials that have arisen over the years, neither petitioner nor the Court has been able to identify any in which such abrupt judicial action has been upheld. See Tr. of Oral Arg. 12“15. Even the prosecutor felt compelled to ac-knowledge that the trial court’s decision to discharge the jury ˜clearly was error.’ 316 Fed. Appx., at 427 (quoting postconviction hearing transcript).

Notably, Lett does not represent a clear split among the Supreme Court’s ideological spectrum, because Justice Ginsburg joined the majority.

From a practical perspective, it is essential for lawyers to consult with their clients about whether to object or consent to such critical issues as the declaration of a mistrial. Maybe Lett’s lawyer did so by whispering or exchanging notes with Mr. Lett, but the judge’s rapid-fire mistrial declaration would not have provided sufficient courtroom attorney-client discussion time on the matter. Jon Katz