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Ninth Circuit:
Defense Impliedly Consented to Mistrial Through Silence
Double-Jeopardy Contention Rejected, Echoing Reasoning of State Court of Appeal in 2012
By a MetNews Staff Writer
A defendant on trial for a double murder impliedly consented to a judge’s declaration of a mistrial by virtue of his lawyer not objecting, and his conviction at a second trial was therefore not in contravention of his right against double jeopardy, the Ninth U.S. Circuit Court of Appeals has determined—reaching the same conclusion that the state Court of Appeal for this district did in 2012 and which another panel embraced in 2016.
Affirmance of the District Court’s 2021 denial of inmate Joseph Stanley’s petition for a writ of habeas corpus came Thursday in a memorandum opinion signed by Circuit Judges Mark J. Bennett and Morgan Christen. Senior Circuit Judge Marsha S. Berzon dissented.
The controversy harks to what happened on Monday, Nov. 7, 2011, in the courtroom of then-Los Angeles Superior Court Judge Bob S. Bowers Jr. (now retired). Although a jury had been empaneled and four alternates had been seated the previous Friday, there were now requests to be excused.
One juror declared an inability to serve owing to a bias that was not previously disclosed; an alternate proclaimed a realization of a child-care obligation that precluded service; another juror announced that his fiancée with whom he resided had broken her ankle and needed care; and yet another juror declared that he had contracted contagious conjunctivitis (pinkeye) and was told by his doctor he needed to stay home for two days.
Comment at Sidebar
By replacing jurors with alternates, one alternate would have remained if there were an adjournment for two days to accommodate the juror with pinkeye. At a sidebar conference, Bowers said:
“[W]e are down three people at this point. Also what I want to say is, if we are down to no alternates, when I call them in the room before we go any farther, I’m going to say:
“ ‘[L]ook, I don’t know exactly when this will end at this point. You could be here until the last week in November. I don’t know. I cannot do that. Let me know right now. If somebody raises their hand, we are done.’ ”
The judge queried of jurors and alternates if there were someone else who could not serve. A juror raised his hand.
Bowers asked:
“Number 2, you cannot do it?”
Juror 2 replied:
“I don’t think so because I had a heart attack. I called up the doctor, seen a doctor.”
The judge remarked to counsel at a sidebar that “I believe they win,” referring to those seeking to avoid jury service.
The defendant’s lawyer at no point argued against a mistrial being ordered but did not expressly assent to it.
Mistrial Declared
Bowers, in declaring a mistrial, explained:
We simply do not have qualified jurors who can serve, and as a result, it was agreed that if we would have had only 12 jurors, we would start over, and, in addition, I believe it was number 2 that made it fairly clear in all probability we would not have even one alternate before this was over with.”
Stanley’s lawyer, disavowing having entered into any such agreement, days later moved for a dismissal based on double jeopardy. Bowers said at a hearing on the motion:
“…I think under these circumstances, there is an implied consent so I deny your motion.”
Stanley I
Stanley sought a writ of prohibition in the Court of Appeal for this district to block a retrial. Justice H. Walter Croskey (now deceased) wrote for Div. Four in saying, in a May 22, 2012 opinion, that while the California Supreme Court held in 1970 in Curry v. Superior Court that the failure of a criminal defendant’s lawyer to speak out against the declaration of a mistrial does not constitute an implied consent, thus barring a later double-jeopardy challenge, that case does not aid Stanley.
He said:
“[I]t is our view that, where, under all of the facts and circumstances, defense counsel leads the trial court to believe that counsel consents to a procedure which ultimately results in the declaration of a mistrial, the defendant cannot properly rely on Curry to argue that counsel’s ultimate silence at the moment the mistrial is declared should be interpreted as a lack of consent.”
The California Supreme Court denied review on Sept. 12, 2012.
Subsequent Proceedings
On Nov. 8, 2012, Stanley filed a petition for a writ of habeas in the U.S. District Court for the Central District of California.
District Court Judge Kronstadt of the Central District of California on April 5, 2013 denied Stanley’s request to order that proceedings in the Los Angeles Superior Court be stayed, ruling that there had been an implied consent to the declaration of a mistrial. On June 25 of that year, he dismissed the petition on the grounds that there was no “colorable” double jeopardy claim and the Younger abstention doctrine precluded meddling in a state-court matter.
The Ninth Circuit on July 8, 2013, denied a stay; a trial took place; on July 30, Stanley was convicted by a jury of two counts of murder in the first degree and one count of possession of a firearm by a felon, with a multiple-murder special circumstances allegation and use-of-firearms allegations found true. Stanley was sentenced to two consecutive terms of life without the possibility of parole plus two consecutive terms of 25 years to life based on the firearms enhancements.
On Feb. 19, 2014—while Stanley was appealing his conviction in state court—the Ninth Circuit vacated Kronstadt’s order of dismissal of the habeas corpus petition, in Stanley II, and remanded the matter to the District Court to make certain findings. The District Court stayed proceedings pending resolution of the state-court appeal.
Stanley III
In Stanley III, Div. Three of the Court of Appeal for this district on Dec. 8, 2016, affirmed in an opinion by Presiding Justice Lee Edmon. On the issue of double jeopardy, she said Stanley I controls as law of the case.
Justice Luis Lavin dissented, arguing that Stanley I was inapplicable because there was no pronouncement that it was to be applied retroactively. He reasoned:
“[B]efore Stanley I, published double jeopardy cases uniformly held that a defendant’s silence could not imply consent to a mistrial in California.”
He went on to say:
“Before Stanley I, a competent, diligent criminal defense attorney could reasonably conclude that remaining silent in the face of an unnecessary mistrial would always preserve a later plea of once in jeopardy for his client. Because Stanley I changed the rules of the game, its holding should not be applied retroactively to Stanley.”
District Court Decision
Back in District Court, on Dec. 30, 2020, Magistrate Judge Gail J. Standish filed a report and recommendation in response to Stanley’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, applicable to state prisoners. She said:
“Petitioner’s Section 2254(d)(1) theory, boiled down, is that a trial judge may repeatedly warn that mistrial will happen if a particular juror event occurs, a defendant who does not want a mistrial can nonetheless affirmatively choose not only to stay silent every time the threat of a mistrial is raised but can make a misleading remark in response indicating his acquiescence in the trial court’s planned course of action, and when that juror event occurs and mistrial is a hair away, the defendant can continue to stay silent and participate in scheduling the new trial opting instead to wait and cry ‘double jeopardy’ in a ‘gotcha’ move later on.”
She continued:
“Petitioner’s view that a defense attorney may mimic Harpocrates (the ancient Greek god of silence and secrecy) in the face of repeated warnings of impending mistrial is not consistent with ample federal law on the issue of implied consent and mistrials. More importantly for Section 2254(d)(1) purposes, his theory has no support in clearly established Supreme Court precedent.”
Kronstadt adopted the report and recommendation as his decision, and the judgment dismissing the action with prejudice was filed April 15, 2021.
Ninth Circuit Opinion
In an opinion affirming that judgment, Bennett and Christen said:
“[T]he first extended sidebar conversation put defense counsel on notice that the judge was considering declaring a mistrial. Subsequently, when the judge clearly explained to the jury his intention to declare a mistrial if another juror opted out. counsel did not object. Similarly, after Juror Number 2 claimed to have had a heart attack, the judge stated in another side bar conversation. ‘I think they win,’ but again Stanley’s lawyer did not object. Finally, the judge explained to the jury his frustration about being unable to go forward, and defense counsel still did not object. Even after the jury had departed. Stanley’s attorney did not object to declaration of a mistrial, instead engaging in a discussion about the timing of a new trial. Stanley’s attorney states that he was confused by these events, but he never sought clarification.”
The judges added:
“Stanley’s brief argues that his counsel’s actions must be viewed through the lens of what he understood to be California’s standard, which required more than silence from defense counsel to find implied consent. But in the declarations filed in connection with Stanley’s double jeopardy challenge. Stanley’s counsel did not claim to be operating under that impression of California law. Further, the California Court of Appeal clarified in [Stanley I]…that defense counsel’s actions in this case did satisfy the state’s implied consent standard….
“The trial court’s declaration of mistrial was not precipitous. And given these circumstances—particularly counsel’s participation in multiple sidebar conversations regarding the possibility of a mistrial and the multiple opportunities to object—defense counsel’s actions were sufficient to manifest implied consent to the mistrial.”
Berzon’s Dissent
Berzon said in her dissent:
“Stanley’s attorney had no opportunity to confer with his client as to whether to consent to a mistrial. From the moment the court told the jury that it could not go forward if someone “tells me you can’t do it.” until the time the court dismissed the jury, there was no recess. And the only person other than the judge who had a recognized opportunity to speak was the juror who did not “think” he could serve. Neither defense counsel nor the prosecutor got a word in. and there was no time for defense counsel to confer with Stanley.”
She asserted that “[a]ny conclusion that Stanley consented under the circumstances here, when he had no opportunity to make a ‘deliberate election’… is a fiction.”
The case is Stanley v. Biter, 21-55371.
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