Gouvela v. Espinda, No. 17-16892 (6-12-19)(Berzon w/Wardlaw & Rawlinson).  The 9^th affirms habeas relief arising from granting a mistrial without manifest necessity. 

In a state manslaughter trial, the jury came back with a verdict.  Before the verdict was read, the jury expressed concern about a “menacing looking” man seated on the prosecutor’s side of the courtroom. The jurors, being questioned, said that this did not affect the verdict. Yet the court granted a mistrial, because there was nothing it could do.

The 9^th held there was. The court could have instructed, taken steps, or assured the jury about matters.  The verdict had not been recorded yet.  The petitioner had the right to a trial.  And, all the parties, including the court, felt that it would be an acquittal. Thus, because of the protections of the double jeopardy clause, the granting of habeas relief was affirmed.

On appeal, the state raised a jurisdictional argument. The state argued that 28 U.S.C. § 2241 does not cover double jeopardy writs.  The strength of the argument was summed up by the opinion’s conclusion why the 9^th had not previously addressed this point: “Our gap on this point is understandable, as it is rare that we are asked to address an argument so transparently without merit.” (8).

Oh yes, what was the sealed verdict the jury had returned before the mistrial?  “Not Guilty.”

Congrats to Peter Wolff, FPD Hawaii, for the win.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/12/17-16892.pdf