In the United States Court of Appeals For the Seventh Circuit ____________________

No. 24-2980 MITCHELL D. GREEN, Petitioner-Appellant, v.

MILWAUKEE COUNTY CIRCUIT COURT, Respondent-Appellee. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 24-CV-295 — William E. Duffin, Magistrate Judge. ____________________

ARGUED APRIL 15, 2025 — DECIDED AUGUST 1, 2025 ____________________

Before EASTERBROOK, KOLAR, and MALDONADO, Circuit Judges. EASTERBROOK, Circuit Judge. Mitchell Green was charged in Milwaukee County Circuit Court with trafficking a child and other related offenses. See Wis. Stat. §948.051(1). The case proceeded to a jury trial on January 27, 2020. Midway through trial the judge declared a mistrial, finding that Green had failed to give pretrial notice of his first witness’s testimony. Green is on bond awaiting retrial and brings this collateral 2 No. 24-2980

attack. See 28 U.S.C. §2241. He argues that retrial would vio- late his constitutional right against double jeopardy. At trial the principal evidence against Green was the mi- nor’s testimony that he had driven her to a hotel, where he forced her to engage in a sex act. As his first witness, Green called his cousin, coincidentally named Jonathan Cousin. Cousin testified that he––not Green––had driven the minor to the hotel, though he did not know the purpose of the drive. Cousin was on Green’s witness list five months before trial and named on the record at the start of trial. The state did not object to Cousin’s testimony and proceeded to cross-examine him. It wasn’t until after a lunch break that the prosecuting attorney objected. The prosecutor argued that State v. Denny, 120 Wis. 2d 614 (App. 1984), required Green to give pretrial notice that Cousin would testify as a “Denny witness.” A “Denny witness” is someone who testifies that they rather than the defendant committed the crime. In response, the court declared a mis- trial. Over Green’s objection, the judge reasoned that Cousin’s testimony was Denny evidence that required notice and a hearing on admissibility before Cousin testified. The judge deemed the lack of notice a “bell” that was “impossible to un- ring” with curative jury instructions. After the mistrial, Green filed a motion to dismiss. The trial court denied the motion. The Court of Appeals of Wis- consin entertained an interlocutory appeal and held that the mistrial was erroneous. 2022 WI App 19 (March 22, 2022) (un- published). The Supreme Court of Wisconsin ultimately sided with the trial judge, finding that he exercised sound discretion when he determined that a mistrial was manifestly necessary. 2023 WI 57 (June 29, 2023). Green then filed this collateral No. 24-2980 3

attack. The district court denied relief, 2024 U.S. Dist. LEXIS 174289 (E.D. Wis. Sept. 25, 2024), which brings us to this ap- peal. Green filed his petition for a writ of habeas corpus under §2241. Using this provision is proper because Green argues that he is “in custody in violation of the Constitution”, 28 U.S.C. §2241(c)(3), rather than in custody because of an un- constitutional conviction or sentence, §2254(a). Though fed- eral courts generally do not interfere with state judicial pro- cesses before trial and conviction, pretrial relief is available in “special circumstances requiring immediate action.” Ex parte Royall, 117 U.S. 241, 251–53 (1886); Randy Hertz & James S. Liebman, 1 Federal Habeas Corpus Practice and Procedure §5.3 & n.6 (2024) (identifying double jeopardy as a special circum- stance). Green is on a $1500 bond. The Supreme Court has inter- preted the “in custody” requirement to include people such as Green who are subject to the terms of a bond or the under- takings of recognizance. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 300–01 (1984); Lefkowitz v. Newsome, 420 U.S. 283, 286 n.2, 291 n.8 (1975); Hensley v. Municipal Court, 411 U.S. 345 (1973). Unlike Green, the petitioners in Lydon, New- some, and Hensley had been convicted before being released on bond or their own recognizance. The Supreme Court’s rea- soning does not hinge on this distinction after Lydon. Lydon’s conviction had been vacated, so his release on personal recog- nizance was pretrial. 466 U.S. at 337–38 (O’Connor, J., concur- ring in the judgment). The Court emphasized that pretrial re- view would remain rare, however, because a petitioner “re- leased on bail or on his own recognizance pending trial … 4 No. 24-2980

must still contend with the requirements of the exhaustion doctrine”. Id. at 301–02 (quoting Hensley, 411 U.S. at 353). It follows that Green is “in custody” within the meaning of §2241(c)(3). The court’s control over his release conditions impinges on his “unconditional freedom”. Wis. Stat. §§ 946.49, 969.08; Reimnitz v. State’s Attorney of Cook County, 761 F.2d 405, 408–09 (7th Cir. 1985). These restraints are “cus- tody” under Lydon. 466 U.S. at 300–01. The Attorney General of Wisconsin argues that Younger v. Harris, 401 U.S. 37 (1971), requires the federal judiciary to ab- stain. 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 ad- dresses 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 col- lateral attacks under §2241 or §2254. Younger holds that complainants must present their argu- ments to the state criminal courts initially. Green did, and the Supreme Court of Wisconsin rejected his double jeopardy ar- gument on the merits. This satisfies both the goal of Younger and the exhaustion requirement for federal collateral review. Now to the merits. Retrial following a mistrial declared over a defendant’s objection is proper only if the mistrial was supported by “manifest necessity”. Arizona v. Washington, 434 U.S. 497 (1978). If a mistrial is declared without “manifest ne- cessity”, then retrial would violate the Double Jeopardy Clause. Before ordering a mistrial, a judge must exercise “sound discretion” and consider the interest of the defendant in being tried by the current jury, which might already be No. 24-2980 5

favorable to him. Id. at 514. Often this involves adequately weighing alternatives to a mistrial, such as a continuance. See Illinois v. Somerville, 410 U.S. 458, 465–66 (1973). See also Lov- inger v. Circuit Court of the 19th Judicial Circuit, 845 F.2d 739, 745 (7th Cir. 1988); United States v. Fisher, 624 F.3d 713, 721–22 (5th Cir. 2010) (collecting cases). A failure to consider alterna- tives is not a constitutional error so long as adequate justifica- tion is provided by the trial judge. Camden v. Circuit Court of Second Judicial Circuit, 892 F.2d 610, 614 (7th Cir. 1989). The state argues, and the Supreme Court of Wisconsin found, that the trial judge exercised discretion soundly. He considered whether a curative instruction would remedy the unnoticed testimony. But the trial judge’s assessment rested on the assumption that Denny requires pretrial notice. Denny establishes an admissibility standard, State v. Wil- son, 2015 WI 48 (May 12, 2015), not a notice requirement. Denny does not say when the defense must meet this eviden- tiary threshold. We cannot find a pretrial-notice requirement that was in effect before Green’s trial (or today, for that mat- ter). Apparently neither could the Attorney General of Wis- consin, the trial judge, the Court of Appeals of Wisconsin, the Supreme Court of Wisconsin, or the district court in this col- lateral attack. Such a requirement might come from a statute, rule, or judicial decision, but no one has pointed to any of these sources, and our own search did not reveal one. By re- lying on a mistake about what the law requires, the trial court failed to exercise sound discretion. Bakov v. Consolidated World Travel, Inc., 68 F.4th 1053, 1056 (7th Cir. 2023); United States v. Mietus, 237 F.3d 866, 870 (7th Cir. 2001). The district court thought that the Supreme Court of Wis- consin’s opinion endorses the trial judge’s determination that 6 No. 24-2980

Green needed to disclose Denny evidence before trial. But the Supreme Court found it was “reasonable” for the trial judge to declare a mistrial, without addressing whether Wisconsin law requires pretrial disclosure. See 2023 WI 57, ¶¶ 27, 34–39. The state’s Supreme Court appeared to rely on a proce- dural quirk: The day of trial, the case had been “spun” or as- signed to a new judge, as is common in Milwaukee County when a judge has multiple trials scheduled at once. The pros- ecution had filed a motion in limine some five months before trial, seeking to exclude “other-acts evidence involving a third-party perpetrator, unless and until defendant satisfies his burden and such evidence is ruled admissible by the court”. Though neither judge ultimately ruled on the motion, the Supreme Court stated that “it was not unreasonable for [the trial judge] to presume [the previous judge] had granted the motion”. Id. at ¶38. Yet we do not understand how “man- ifest necessity” can be established by presuming something contrary to fact. It is never “necessary” (let alone “manifestly” so) for a judge to impose on the defense, in mid-trial, a re- quirement that cannot be found in a statute, rule, judicial opinion, or case-specific order. Lawyers commonly discuss Denny evidence before trial. As the district court observed, Wisconsin’s case law often mentions pretrial admissibility hearings concerning Denny evidence. 2024 U.S. Dist. LEXIS 174289 at *6 (collecting cases). The motion in limine that the prosecutor filed is one way to seek notice. The prosecutor could have reminded the judge that the motion remained pending. The prosecutor also could have made a discovery demand. But none of these things hap- pened. Defense counsel need not comply with rulings never made. No. 24-2980 7

So where was the “manifest necessity” to end the trial? The jury did not hear inadmissible testimony. In preparing for a second trial, the same judge ruled that Cousin’s testimony is admissible under Denny. Nor did Green fail to disclose a witness. Green notified the state five months earlier that he intended to call Cousin. Even if there was an error that necessitated correction, the trial judge did not sufficiently consider reasonable alterna- tives or the effect of a mistrial on Green, who very well may have had the jury’s favor. The judge considered and rejected the possibility of a curative jury instruction. The judge over- looked another alternative to mistrial, one used often in trial practice: dismissing the jury for the day, giving the state a chance to prepare, holding a hearing on the admissibility of Cousin’s testimony the next morning, and if necessary giving the prosecutor more time to assemble rebuttal evidence. Be- cause Cousin’s testimony was admissible, a mistrial could have been avoided. Even now, the prosecution does not argue that a lack of pretrial notice affected its cross-examination of Cousin. A second trial therefore would be identical to the first. This means that there was utterly no reason to stop the first trial, let alone manifest necessity to do so. The district court and the parties make much of the stand- ard of review on appeal, and the state argues that we should afford the same deference to the Supreme Court of Wisconsin as we would if Green had been convicted and filed his collat- eral attack under 28 U.S.C. §2254(d)(1). But the additional standards imposed by §2254(d) do not apply to a petition un- der §2241. See Felker v. Turpin, 518 U.S. 651 (1996). We appre- ciate that this produces different standards of review, de- pending on the statute that authorizes the federal role, but 8 No. 24-2980

that is a consequence of different statutory language. Judges must not treat such differences as obstacles to be overcome. The judgment of the district court is reversed, and the case is remanded to the district court with instructions to issue an unconditional writ.