Appellant James Cherry seeks a reversal of the judgment of the district court denying him habeas corpus relief from a 1963 conviction in the Superior Court of Fulton County, Georgia for robbery by use of an offensive weapon. We reverse the district court for the reasons set forth in this opinion.

In October 1963, Cherry was put on trial in Georgia state court on the robbery charge.1 On the first day of trial, at 4:30 p. m., after two witnesses had already testified and a third was being examined, the trial judge was informed that the mother of one of the jurors had died.2 After determining the veracity of the report, the judge met with counsel for both the state and the defendant and asked counsel for the defendant whether he would waive the presence of the juror and proceed with 11 jurors. Counsel for the defendant responded that he wished to continue with the 12 jurors previously selected at which point the trial judge dismissed the jury for the rest of the day.

The next day the trial judge dismissed the juror from the trial because "it would be inhuman, indecent, inappropriate, cruel and an injustice to require Mr. Royce Terry (the juror) to have been in court this morning." The judge then declared a mistrial.

At the second trial, Cherry was convicted and received a sentence of life imprisonment. On direct appeal, Cherry made several arguments for a new trial or for his release. He alleged that the second trial constituted double jeopardy but this point was overruled, apparently on the basis that the bill of exceptions was not properly perfected.3 His other points of contention dealing with procedural matters in the second trial were denied also.

In his state habeas petition, Cherry argued only that the second trial violated his Fifth Amendment right not to be placed in double jeopardy. That petition was denied in November 1976 without an opinion.

In his federal habeas petition, Cherry argued the double jeopardy contention, as well as some of the procedural contentions he had raised on direct appeal in the state court.4 Cherry also raised for the first time in federal court the issue that the state had adduced testimony from an individual who had shared a cell with him by making a deal with that individual. The failure of the state to disclose the deal, Cherry charged, was a ground for relief under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).

The district court denied Cherry's petition for a writ of habeas corpus, adopting the recommendations of a magistrate. In his opinion, the magistrate concluded first, that Cherry had exhausted his state remedies as to the double jeopardy issue and that the trial judge's action in terminating the first trial was based on manifest necessity within the meaning of Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Therefore, Cherry's right not to be placed in double jeopardy had not been violated. He then concluded, as to the Giglio issue, that Cherry had "purposefully bypassed an available state remedy" by failing to raise it earlier and therefore the issue would not be considered. Other procedural contentions of Cherry's surrounding the second trial were also denied. This appeal ensued.

We first must determine whether the defendant exhausted his state remedies, a requirement codified at 28 U.S.C. § 2254(b), (c) (1977).5 The doctrine dictates that a state prisoner's claim first be presented to the state court system and exhausted there.6 One reason given for the exhaustion doctrine is that:

it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation . . . . Fay v. Noia, 372 U.S. 391, 419-20, 83 S. Ct. 822, 838, 9 L. Ed. 2d 837 (1963) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587, 590, 94 L. Ed. 761 (1950).

There have been circumstances delineated, however, when the exhaustion requirement does not apply.7

In Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978), this Court found that if a prisoner had not exhausted state remedies as to all claims in a petition, then the district court must dismiss the claim. However, this Court held that if "a district court erroneously reaches the merits of an exhausted claim in a mixed petition and an appeal is taken from its dispositive order, we shall review the merits of the claim." Id. at 362.

At the state level, Cherry appealed his conviction alleging double jeopardy and his conviction was affirmed in Cherry v. State, 220 Ga. 695, 141 S.E.2d 412 (1965). He again raised the double jeopardy issue in a state application for habeas which was denied by both the trial court and the Georgia Supreme Court. Therefore, Cherry exhausted his state remedies as to the double jeopardy issue.

However, Cherry did not raise the Giglio issue on either direct appeal or in his state application for a writ of habeas corpus, raising it for the first time in federal district court. According to Georgia law:

All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of the State of Georgia otherwise requires, or any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. Ga.Code Ann. § 50-127(10)(1979).

We read this statute as saying that a petitioner who failed to allege a violation in his original state petition is not barred from raising it in the state court until a state court judge considers the subsequent petition and decides the matter could "reasonably have been raised" before. If the judge has not decided that, then a possible state remedy has not been completely exhausted. Since Cherry has failed to bring the Giglio claim before any Georgia trial judge, he has not exhausted his state remedies as required on that claim.8

Having decided, however, that Cherry has not exhausted his remedies on the Giglio issue, we are not foreclosed from considering his double jeopardy claim since the district court erroneously reached the merits of an exhausted claim in these mixed petitions. Galtieri, 582 F.2d at 362. Reaching and considering that double jeopardy claim, we find Cherry's Fifth Amendment right not "to be twice put in jeopardy of life or limb" to have been violated.

We must first consider the proper standard to be applied in ruling on the district court's order denying Cherry habeas relief. The state urges that a "clearly erroneous" standard be applied. See White v. Estelle, 566 F.2d 500, 502 (5th Cir. 1978). However, the appellant is correct in responding that the district court's holding is subject to a broader, more lenient standard of review. The "clearly erroneous" rule referred to in White applies to factual determinations made by a district court.9 The determination before us here concerning the possible application of double jeopardy is clearly a question of law.

The legal standards to be applied in cases dealing with claims of double jeopardy have been discussed at length, both in this court and in the Supreme Court. The Fifth Amendment to the United States Constitution commands that no "person (shall) be subject for the same offence to be twice put in jeopardy of life or limb."10 It is a maxim with roots deep in the history of jurisprudence.11 As Mr. Justice Black once wrote in dissent, "Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization." Bartkus v. Illinois, 359 U.S. 121, 151, 79 S. Ct. 676, 696, 3 L. Ed. 2d 684 (1958) (Black, J., dissenting).

The point where most analyses begin as to when jeopardy first attaches is with Mr. Justice Story's opinion in United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L. Ed. 165 (1824) that said:

We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all of the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.

22 U.S. at 579. Through the years this standard of "manifest necessity" for a mistrial has continued to be applied by courts in determining whether or not a mistrial and subsequent trial constitutes double jeopardy.12 Thus it has been held that the failure of a jury to agree on a verdict of either acquittal or conviction does not bar retrial of the defendant, United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L. Ed. 165 (1824); nor does the reversal of a conviction on appeal, United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896).13 Yet despite the many attempts to expound upon the meaning of what constitutes "manifest necessity," no precise formula has yet emerged. See Illinois v. Somerville, 410 U.S. 458, 464, 93 S. Ct. 1066, 1070, 35 L. Ed. 2d 425 (1973) ("virtually all of the cases turn on the particular facts and thus escape meaningful categorization.")14

In United States v. Starling, 571 F.2d 934 (1978), this Court set out some of the broad standards to be applied in determining whether a mistrial barred a second prosecution:

The decision to declare a mistrial and dismiss the jury is not to be undertaken lightly. The courts, in assessing the need to terminate the proceedings before conclusion, have been instructed to balance 'a defendant's valued right to have his trial completed by a particular tribunal' with the 'public's interest in fair trials designed to end in just judgments.' Wade v. Hunter, 336 U.S. (684) at 689-690, 69 S.Ct. (834) at 837 (93 L. Ed. 974). And although a district court is accorded broad discretion in determining that particular circumstances arising at trial require it to abort the proceedings, 'reviewing courts have an obligation to satisfy themselves that . . . the trial judge exercised "sound discretion" in declaring a mistrial.' Arizona v. Washington, 98 S. Ct. at 835, Quoting United States v. Perez, 22 U.S. at 579; United States v. Jorn, 400 U.S. 470, 485, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). In particular we must insure that the district court kept in the forefront the defendant's valued right 'of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.' Id. at 486, 91 S.Ct. at 558; See Illinois v. Somerville, 410 U.S. at 466, 93 S. Ct. 1066; Wade v. Hunter, 336 U.S. at 689, 69 S. Ct. 834. (Footnotes omitted).

571 F.2d at 938. In Starling, this Court also noted that while not determinative, the failure of a trial judge to consider adequately less severe alternatives to a mistrial shows "an inadequate concern for the severe consequences of ordering a mistrial without the accused's consent." Id. at 941, n.10. Cf. United States v. Spinella, 506 F.2d 426, 432 (5th Cir. 1975), Cert. denied, 423 U.S. 917, 96 S. Ct. 227, 46 L. Ed. 2d 147 (1975). In Arizona v. Washington, the Supreme Court noted that such a consideration is not constitutionally mandated when "the record provides sufficient justification" for the mistrial. 434 U.S. 497, 516-17, 98 S. Ct. 824, 836, 54 L. Ed. 2d 717 (1978).

In this case, it is somewhat difficult to tell what the trial judge considered as alternatives since there is no transcript of the first trial. The trial court's order of mistrial mentions no consideration of other alternatives, such as the possibility of recessing the case for several days. From the record before us, we must conclude that Cherry did not consent to the mistrial and his attorney was not given an adequate opportunity to object.15

Having decided that, we conclude that the trial judge's action did not meet the high standard of "manifest necessity." We do not question the trial judge's sincerity in wishing to spare a juror the anguish of attending a trial after the death of his mother and his feeling that the juror would no longer be able to perform his duty adequately. But the death of a juror's relative does not constitute "manifest necessity" in all cases. Here, where the trial judge apparently did not canvass the alternatives such as continuance, it is clear that an inadequate concern for the rights of the accused to have his case tried once before the same tribunal was present.16 Perhaps the juror would have been willing to continue hearing the trial. The judge could have inquired of the juror how long his absence would be and have delayed the trial for that length of time. But none of these steps was taken.17 Unlike the factual situation in Arizona v. Washington, 434 U.S. 497, 500-01, 98 S. Ct. 824, 827, 54 L. Ed. 2d 717 (1978), the trial court here did not give each side an opportunity to explain its position on a mistrial. Instead, the trial court acted unilaterally. From all of the facts before us, we cannot find that the court was solicitous enough of the defendant's valued right "to have his trial completed by the particular tribunal summoned to sit in judgment on him," Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963), when it declared a mistrial with little inquiry because a juror's mother had died.

It is true that a number of courts have held that a death or illness in the family of a juror does provide proper grounds for a mistrial.18 But most of those cases were decided before the Supreme Court and lower courts had delineated the importance of the consideration of other less severe consequences to a mistrial.19 As stated in United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971):

. . . the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion (is made) . . . .

Id. at 485, 91 S.Ct. at 557. Given the development of the protections of the double jeopardy clause over the last fifteen years, we find that the death of a juror's relative cannot be considered an automatic ground for a mistrial.

Having ruled in Cherry's favor on his double jeopardy claim, we find it unnecessary to consider his other claims. Accordingly, we REVERSE and REMAND to the district court for proceedings not inconsistent with this opinion.

I respectfully dissent from the panel's holding that the state trial judge was not justified by manifest necessity in declaring a mistrial. I believe that the Supreme Court's decision in Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978), and other precedents require that we reject Cherry's double jeopardy claim.

The state trial judge properly decided not to compel the bereaved juror to remain through the trial, because that jury member would not have been able to consider the case fairly in his emotional distress. Cherry explicitly rejected the alternative of an eleven member jury. We do not know whether the trial judge formally discussed and assessed the possibility of a continuance. Cherry's counsel had an opportunity which he did not take to propose a continuance of the trial. Cherry's counsel had an opportunity which apparently he did not take to object to the mistrial.1 Yet the panel majority today assumes, in the absence of a record that the trial judge did not consider alternatives to a mistrial. Their unsupported assumption that this habeas petitioner met his burden of proof is a significant departure from settled law. The panel decision effectively requires that a convicted armed robber be freed on that evanescent basis.

Cherry and two accomplices, all armed and wearing masks, abducted their victim at gunpoint and ordered him into a stolen automobile as the victim left his job for the evening. They took him back to his place of employment and forced him to open its door and the safe. Cherry and his cohorts then bound their victim and stole over $11,000. The prosecution produced overwhelming proof of Cherry's guilt: the victim and two witnesses identified him; Cherry drove the automobile and his fingerprints were found in it; and he and his wife were found carrying $1,230 in cash. His cellmate testified that Cherry subsequently offered him $2,000 to confess to Cherry's crime. The second jury found Cherry guilty of armed robbery, and the trial judge sentenced him to life imprisonment.II.

A "mistrial declared over the objection of the defendant" violates the double jeopardy provision of the fifth and fourteenth amendments unless it is required by " 'manifest necessity.' " Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830 (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824)). Accord, United States v. Aguiar, 610 F.2d 1296, 1301 (5th Cir. 1980). Manifest necessity does not mean absolute necessity that the judge declare a mistrial; "we assume that there are degrees of necessity and we require a 'high degree' before concluding that a mistrial is appropriate." Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. at 831 (footnote omitted). Accord, United States v. Starling, 571 F.2d 934, 937 (5th Cir. 1978).

The required high degree of necessity supported the trial judge's action in this case. He learned during the trial that a juror's mother had died, and he decided against compelling that juror to remain until the jury reached a verdict. He asked Cherry whether he would consent to trial by an eleven member jury, but Cherry refused that alternative. He discussed the situation with Cherry's counsel, but Cherry's counsel apparently did not propose a continuance.2

The majority opinion denies that manifest necessity existed apparently because the state judge did not specifically consider and reject alternative measures in his written order.

(W)e conclude that the trial judge's action did not meet the high standard of "manifest necessity." . . . Here, where the trial judge apparently did not canvass the alternatives such as continuance, it is clear that an inadequate concern for the rights of the accused to have his case tried once before the same tribunal was present.

The panel majority assumes what we do not know. We do not have the trial transcript because Cherry did not produce it and the state no longer has it after sixteen years;3 we only have the three page order of mistrial. The majority opinion bases its conclusions that the trial judge did not canvass alternatives, that Cherry's counsel did not have an opportunity to object, and that the trial judge did not act under manifest necessity on the silence of the short mistrial order rather than on the contents of the full trial transcript.4 The panel opinion thereby concludes from the absence of evidence that Cherry has met his burden of proof, and presumes from a silent record that the state trial court did not correctly dispose of the case. This conclusion is erroneous. See Townsend v. Sain, 372 U.S. 293, 315, 83 S. Ct. 745, 758, 9 L. Ed. 2d 770 (1963);5 E. g., Arizona v. Washington, 434 U.S. at 516, 98 S.Ct. at 836.

The panel majority seems to require that a state judge specifically consider and reject alternatives to a mistrial, emphasizing that the "trial judge apparently did not canvass the alternatives such as (a) continuance."6 That requirement contradicts the Supreme Court's holding in Washington that "(t)he state trial judge's mistrial declaration is not subject to collateral attack in a federal court simply because he failed . . . to articulate on the record all the factors which informed the deliberate exercise of his discretion" in this case, to state his reasons for rejecting alternative measures other than a mistrial. 434 U.S. at 517, 98 S.Ct. at 836 (footnote omitted).7 The panel decision today also conflicts with the recent fifth circuit decision in Grooms v. Wainwright, 610 F.2d 344 (5th Cir. 1980):

Even though other trial judges might have used cautionary instructions or other measures short of a mistrial to correct prejudice to the jury, a judge need not expressly consider these alternatives to satisfy the fifth amendment.

Id. at 346.8 The majority's requirement also ignores the context of this mistrial: the challenged trial occurred in 1963, and the trial judge had no reason to articulate and explicitly to reject alternatives to a mistrial. The state judge had every reason to know and to apply the venerable manifest necessity test, but no reason to foresee a new fifth circuit requirement imposed seventeen years later.

The state judge confronted a manifest necessity to do something. He apparently did consider compelling the bereaved juror to remain through the trial, and did consider proceeding with eleven jurors.9 He may or may not have considered whether to continue the trial. That certainly was sufficient consideration of the alternatives to the mistrial ordered. See, e. g. United States v. Pridgeon, 462 F.2d 1094, 1095 (5th Cir. 1972); Jones v. Anderson, 404 F. Supp. 182, 188 (S.D.Ga.1974), Aff'd, 522 F.2d 181 (5th Cir. 1975) (" 'manifest necessity' required a mistrial" when "the trial judge . . . was presented with a situation of no realistic alternative to a mistrial as a result of . . . the petitioner's insistence upon a twelve-person jury").

The Supreme Court in Washington required a " 'high degree' " of necessity that the trial judge take some action to ensure a fair trial, but also accorded "great deference" to the trial judge's " 'sound discretion' in declaring a mistrial." Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 834-35. Accord Grooms v. Wainwright, 610 F.2d at 346.10 Some action was clearly necessary. If reasonable judges could differ about the precise form that such action should take, the trial judge acted within his sound discretion in rejecting alternatives and granting a mistrial, even though "(i)n a strict, literal sense, the mistrial (is) not 'necessary.' " Arizona v. Washington, 434 U.S. at 511, 98 S.Ct. at 833. Accord Grooms v. Wainwright, 610 F.2d at 347.11

I believe that the trial judge did not abuse his sound discretion in rejecting alternative measures and declaring a mistrial. Even if another judge or an appellate panel might have selected a less drastic alternative, a reasonable judge may have exercised sound discretion in ordering a mistrial. Grooms v. Wainwright, 610 F.2d at 347. See Arizona v. Washington, 434 U.S. at 512, 98 S.Ct. at 834; United States v. Pridgeon, 462 F.2d at 1095; Jones v. Anderson, 404 F. Supp. at 187-88. Although the trial judge did not expressly assess the alternative of a continuance, he considered other options and acted within his sound discretion under a high degree of necessity. See, e. g., United States v. Pridgeon, 462 F.2d at 1095 (failure to adopt an eleven member jury or other alternatives was not an abuse of sound discretion); Jones v. Anderson, 404 F. Supp. at 187 (failure to consider substituting a replacement juror when neither district attorney nor defense counsel advised the court of the option was not an abuse of sound discretion).

The majority opinion does not give any deference, much less "great deference," to the trial judge's decision. It assumes from a missing transcript that he did not assess alternatives and did not have manifest necessity. It overlooks the opportunity that the state judge gave, and Cherry's counsel apparently did not take, to propose other measures such as a continuance.12 It requires a mistrial to be absolutely necessary rather than being of a " 'high degree' " of necessity. It demands that the trial judge choose alternatives that a reasonable judge might reject.

The fact is that we do not have a trial transcript and cannot truthfully assert that the state trial judge did not consider mistrial alternatives and did not find manifest necessity. There was manifest necessity for the trial judge to take some action to ensure a fair trial. He did not abuse his sound discretion in reasonably deciding upon a mistrial, even if two appellate judges retrospectively would have decided differently. The state, as well as the petitioner, is entitled to fairness. See United States v. Pridgeon, 462 F.2d at 1095.