Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 88 C 3404--Gerald B. Cohn, Magistrate.
Wood, Jr., Posner, and Coffey, Circuit Judges.
WOOD, JR., Circuit Judge.
Appellant Julia Camden's state trial on charges of aggravated battery, armed violence, and attempted murder ended on June 28, 1984, when Judge A. Hanby Jones of the Circuit Court of Crawford County, Illinois determined that juror bias required his sua sponte declaration of a mistrial. Camden subsequently moved to bar her reprosecution on the ground that the fifth amendment double jeopardy clause prohibited a second trial.*fn1 The majority of an Illinois appellate court reversed the trial court's denial of Camden's motion and found that the trial court's mistrial declaration was neither supported by manifest necessity nor consented to by Camden. People v. Camden, 140 Ill. App. 3d 480, 488 N.E.2d 1082, 94 Ill. Dec. 835 (5th Dist. 1986). In a dissenting opinion, Justice Karns found that Camden had impliedly consented to the trial court's mistrial declaration and that the trial judge did not abuse his discretion. 140 Ill.App.3d at 488-89, 488 N.E.2d at 1087, 94 Ill. Dec. at 840. The Supreme Court of Illinois reversed the appellate court in a unanimous opinion and held that Camden implicitly consented to the mistrial. People v. Camden, 115 Ill. 2d 369, 504 N.E.2d 96, 105 Ill. Dec. 227, cert. denied, 481 U.S. 1070, 95 L. Ed. 2d 873, 107 S. Ct. 2464 (1987). In finding implied consent in the particular circumstances of this case, the supreme court found that defense counsel did not avail himself of the opportunity to object before or after the declaration of the mistrial. Id. at 378-79, 504 N.E.2d at 99-100, 105 Ill. Dec. at 230-31. Instead, the supreme court noted that defense counsel actively participated in the arrangements for a new trial. We also shall examine these same matters. After exhausting all state court remedies, Camden petitioned the district court for a writ of habeas corpus. The district court denied the writ, and we affirm.*fn2
On June 26, 1984, Camden's trial began on offenses she allegedly committed in a Crawford County, Illinois tavern.*fn3 At trial, Camden raised the defenses of insanity and diminished capacity by reason of intoxication. A jury was sworn, the State presented its evidence and rested, and the defendant began to present her case-in-chief. During the lunch recess on the third day of trial, one of the jurors informed Sheriff Richard Hunnicutt, the custodian of the jury, that he had misgivings about his personal ability to render an impartial verdict because of his own prior drinking problem. The sheriff immediately reported this incident to the trial judge, who conducted a hearing in his chambers in the presence of Camden, her counsel, and the State's Attorney. The trial judge proceeded to examine Sheriff Hunnicutt and the concerned juror, Donald D. Hatton.
Sheriff Hunnicutt testified that he was seated at a table with Hatton and the other jurors when Hatton stated: "I have something I have to tell you that I think you should report. I cannot give an impartial judgment because of my drinking." The sheriff stated that the other jurors overheard "every word" of his conversation with Hatton and discussed Hatton's remarks among themselves.
The judge then examined juror Hatton. Hatton testified that he had informed the sheriff during lunch that he might be unable to render an impartial verdict because of a previous drinking problem. Hatton verified the sheriff's statement that the other jurors had overheard their conversation. Hatton also stated that the alternate juror told him, "You're going to stick me yet, aren't you." When the trial judge expressed his concern that Hatton's remarks might have influenced the other jurors, Hatton responded that he "really, honestly couldn't say" what effect his statements had on his fellow jurors. Hatton conceded that his own prejudice might "place a bigger burden on the State than could be overcome."
Upon concluding his examination of Hatton, the judge allowed the attorneys to question Hatton. The interrogation of the juror proceeded with queries from the State's Attorney:
[STATE'S ATTORNEY]: You're saying that you had a prior drinking problem?
[JUROR HATTON]: Yes, definitely. Really did.
[STATE'S ATTORNEY]: Why would a prior drinking problem affect your deliberation?
[DEFENSE COUNSEL]: Judge, I object. That's just improper. You've conducted your inquiry. We've got our record--
THE COURT: Do you have any questions?
[DEFENSE COUNSEL]: Absolutely no questions.
At the conclusion of Hatton's testimony, the following colloquy between the State's Attorney and defense counsel occurred:
[DEFENSE COUNSEL]: Thank you, Mr. Hatton. I think [the State's Attorney] and I ought to talk. It might ...