Mitchell D. Green v. Milwaukee County Circuit Court, Appeal No. 24-2980 (7th Cir. Aug. 1, 2025).
Midway through Mitchell Green’s trial, the state moved for a mistrial, and the circuit court granted the state’s motion over Green’s objection. Ultimately, the Wisconsin Supreme Court concluded that the trial judge exercised sound discretion. The 7th Circuit now holds that retrying Green would violate the Double Jeopardy Clause, as a mistrial could have been avoided; i.e., a mistrial was not “manifestly necessary.”
Green went to trial on charges involving trafficking a child in Milwaukee County in 2020. After Green presented testimony from a “Denny witness,” the state moved for a mistrial, arguing that State v. Denny, 120 Wis. 2d 614 (App. 1984), required Green to give pretrial notice that the witness would provide Denny evidence. After the mistrial, Green filed a motion to dismiss, which the circuit court denied.
On an interlocutory appeal, the state court of appeals held that the mistrial was erroneous. The Wisconsin Supreme Court accepted review, and held that the trial judge exercised sound discretion in determining that a mistrial was manifestly necessary. (Read our posts on the COA opinion here, and on SCOW’s reversal here). Green then filed a collateral attack, in which the district court denied relief.
Green filed his petition for a writ of habeas corpus under 28 U.S.C. §2241, because he was “in custody in violation of the Constitution” under 28 U.S.C. §2241(c)(3), rather than in custody because of an unconstitutional conviction or sentence, §2254(a). Though federal courts generally do not interfere with state judicial processes before trial and conviction, pretrial relief is available in “special circumstances requiring immediate action.” Ex parte Royall, 117 U.S. 241, 251–53 (1886). As Green was on bond, he was “in custody” for purposes of §2241(c)(3).
First, the Court deals with an argument by the state that it must abstain from deciding this case:
The Attorney General of Wisconsin argues that Younger v. Harris, 401 U.S. 37 (1971), requires the federal judiciary to abstain. Younger abstention is not appropriate, however. Younger dealt with an attempt to enjoin a state criminal prosecution through 42 U.S.C. §1983. The resulting abstention doctrine addresses how federal judges ought to handle civil litigation that might interfere with state criminal prosecutions. Nothing in Younger suggests that the same policy should apply to collateral attacks under §2241 or §2254.
Retrial following a mistrial declared over a defendant’s objection is proper only if the mistrial was supported by “manifest necessity”–if it is not supported by manifest necessity, then retrial violates the Double Jeopardy Clause. Arizona v. Washington, 434 U.S. 497 (1978). Here, the Court concludes that the trial judge did not exercise discretion soundly because its decision was based on a misunderstanding of the Denny requirements, and the evidence was admissible. Denny establishes an admissibility standard, not a notice requirement. There is no requirement that the evidentiary threshold must be met pre-trial, and the supreme court did not address whether Wisconsin law requires pretrial disclosure. In addition, in preparation for the second trial, the circuit court ruled that the Denny witness’s testimony was admissible. Therefore, a mistrial was not manifestly necessary, and Green cannot be retried.
The Court also declines to apply the 28 U.S.C. §2254(d) standard of review on appeal, as the state suggests, holding that the additional standards imposed by §2254(d) do not apply to petitions under §2241.