mistrial not “manifestly necessary” when juror's mother died, because “the trial judge apparently did not canvass the alternatives such as continuance_ The judge could have inquired of the juror how long his absence would be and have delayed the trial for that length of time.”
How later courts described this case
- mistrial not “manifestly necessary” when juror's mother died, because “the trial judge apparently did not canvass the alternatives such as continuance_ The judge could have inquired of the juror how long his absence would be and have delayed the trial for that length of time.”
- “If [a state court] judge has not decided that, then a possible state remedy has not been completely exhausted.”
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before COLEMAN, Chief Judge, BROWN, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, JR., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON AND THOMAS A. CLARK, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.
IT IS ORDERED that the cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.