Julia CAMDEN, Petitioner-Appellant, v. CIRCUIT COURT OF the SECOND JUDICIAL CIRCUIT, CRAWFORD COUNTY, ILLINOIS, Honorable Patrick McLaughlin, and Neil F. Hartigan, Illinois Attorney General, Respondents-Appellees, 892 F.2d 610

HARLINGTON 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 repros-ecution on the ground that the fifth amendment double jeopardy clause prohibited a second trial.

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, 107 S.Ct. 2464, 95 L.Ed.2d 873 (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. I. FACTUAL BACKGROUND On June 26, 1984, Camden’s trial began on offenses she allegedly committed in a Crawford County, Illinois tavern. 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.

Hat-ton conceded that his own prejudice might “place a bigger burden on the State than could be overcome.” Upon concluding his examination of Hat-ton, 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 pri- or 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 save the county a lot of money. [State’s Attorney]: Put that on the record. [Defense Counsel]: Put that on. Ten minutes to talk? The Court: Yes, sir. The court took a recess while the State’s Attorney and defense counsel had an unreported discussion.

Court reconvened and the jury was brought into the courtroom. The judge then informed the jury and counsel that he was declaring a mistrial due to juror bias: The Court: All right, ladies and gentlemen of the jury, the Court, at this particular moment, has made the following minutes on its docket: The Court is advised by an officer of this Court that one of the jurors has indicated before other members of the Jury and the Alternate that they [sic] cannot be giving an unbiased verdict or render an unbiased verdict in this cause. And so it is the duty of the Court at this time to declare a mistrial.

And this juror and the officer of the Court were both duly sworn by the Court and did testify out of the presence of the Jury. The bond of the Defendant will be continued for a further trial setting. And the jury is now discharged. I want to thank you very much for your kindness and attention. I realize that this has been a long ordeal, but this is one of the main theories that we have here is justice for all. And it would not be fair to all concerned if this juror did continue to sit and the fact that the other jurors heard the statements that he made.

I do want to thank you and you are now excused. [Defense Counsel]: Thank you ladies and gentlemen; I appreciate it very much. [State’s Attorney]: Appreciate your attention. After the judge dismissed the jury, the attorneys discussed a new trial date. Defense counsel conceded that the case might be assigned to a different trial judge and then waived his client’s speedy trial rights in response to the assertion by the State’s Attorney that Camden had earlier filed a speedy trial demand.

At no point during the judge’s explanation to the jury of the need to abort the trial did Camden’s attorney object to the mistrial declaration. On July 19, 1984, the trial court reset the case by agreement of the parties for a trial to begin on November 13,1984. Camden first raised her objection to the mistrial declaration on September 11, 1984, by filing a motion to dismiss on the ground that the mistrial had been declared peremptorily, affording defendant no opportunity to object.

On appeal from the district court’s denial of her petition for a writ of habeas corpus, Camden claims that the magistrate erred in finding that she impliedly consented to the trial court’s mistrial declaration. Camden also claims that the magistrate should have conducted an evidentiary hearing on her petition for a writ of habeas corpus and

summary judgment motion in order to assess defense counsel’s subjective state of mind during the trial court proceedings. II. DOUBLE JEOPARDY Camden maintains that a retrial is barred by the double jeopardy clause of the fifth amendment, which is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2058, 23 L.Ed.2d 707 (1969). The double jeopardy clause safeguards a criminal defendant’s “valued right to have his trial completed by a particular tribunal,” as well as the public’s interest in “fair trials designed to end in just judgments.” Wade v.

Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); see also United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971); Lovinger v. Circuit Court of the 19th Judicial Circuit, 845 F.2d 739, 743 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct. 136, 102 L.Ed.2d 108 (1988). The double jeopardy clause bars retrial unless the trial court’s mistrial declaration was occasioned by “manifest necessity,” United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980) (citing United States v.

Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824)), or consented to by the defendant, Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). Under the manifest necessity standard, a court may declare a mistrial only if a “scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Jorn, 400 U.S. at 485, 91 S.Ct. at 557. Whether this standard has been met can only be determined on a case-by-case basis, Illinois v.

Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973); therefore, application of the double jeopardy clause is neither facile nor routine, DiFrancesco, 449 U.S. at 127, 101 S.Ct. at 432. A trial court’s failure to explicitly find manifest necessity or examine alternatives to a mistrial, however, does not render the ruling constitutionally defective so long as the record provides adequate justification for the trial court’s ruling. Arizona v. Washington, 434 U.S. 497, 516-17, 98 S.Ct. 824, 835-36, 54 L.Ed.2d 717 (1978); see also United States ex rel. Clauser v.

McCevers, 731 F.2d 423, 427 (7th Cir.1984). Generally, trial judges are vested with broad discretion in assessing the propriety of a mistrial declaration. Somerville, 410 U.S. at 462-63, 93 S.Ct. at 1069-70; McCevers, 731 F.2d at 427. A. CONSENT When a defendant consents to a mistrial, however, the double jeopardy clause will bar a retrial only if governmental or judicial conduct was intended to goad the defendant into assenting to the mistrial. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982); see also Lovinger v.

Circuit Court of the 19th Judicial Circuit, 845 F.2d 739, 743 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct. 136, 102 L.Ed.2d 108 (1988). Because Camden neither requested nor expressly consented to a mistrial, the double jeopardy clause will only permit her retrial if defense counsel’s conduct constituted implied consent or if the mistrial decision was supported by manifest necessity. An implied consent to a mistrial has the same effect as an express consent and vitiates any double jeopardy bar to retrial. See United States v.

Buljubasic, 808 F.2d 1260, 1265-66 (7th Cir.) (defendant’s silence constituted consent when judge proposed mistrial and invited comments), cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987); United States v. Puleo, 817 F.2d 702, 705 (11th Cir.) (defendant failed to take advantage of his opportunity to object to mistrial declaration), cert. denied, 484 U.S. 978, 108 S.Ct. 491, 98 L.Ed.2d 489 (1987); United States v.

Smith, 621 F.2d 350, 351-52 (9th Cir.1980) (defense counsel’s failure to object to mistrial and his discussion of defendant’s retrial amounted to implied consent to court’s sua sponte declaration of mistrial), cert. denied, 449 U.S. 1087, 101 S.Ct. 877, 66 L.Ed.2d 813 (1981); United States v. Gordy, 526 F.2d 631, 635 n. 1 (5th Cir.1976) (dictum) (failure to object may constitute consent); United States v.

Goldstein, 479 F.2d 1061, 1067 (2d Cir.) (defendants failed to recant previously denied mistrial motion or object, despite opportunity to do so), cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973); Raslich v. Bannan, 273 F.2d 420, 420-21 (6th Cir.1959) (defendant and his attorney “acquiesced in, and in substantial effect consented to,” mistrial). The record reveals that Camden and her attorney were afforded a minimal but adequate opportunity to object, albeit in the presence of the jury while the mistrial was being declared.

If a trial judge declares a mistrial in the presence of the jury without giving the defendant an adequate opportunity to object, it would of course be unfair to infer consent absent other circumstances indicating acquiescence. See Lovinger, 845 F.2d at 745-46; Puleo, 817 F.2d at 705; Buljubasic, 808 F.2d at 1265-66; Smith, 621 F.2d at 351-52; Goldstein, 479 F.2d at 1067; Henderson v. Wright, 533 F.Supp. 1373, 1376 (D.Me.1982). In the instant case, after the trial judge declared a mistrial, but before he discharged the jury, he stated that there would be a further trial setting.

While the trial court’s contemplation of a new trial is not conclusive on the issue of double jeopardy, United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978), the court’s comments about a mistrial and reference to a second trial should have prompted defense counsel to object if he did not agree with the need for a mistrial or the propriety of a retrial. Instead of immediately objecting or requesting a sidebar and objecting outside the presence of the jury, however, defense counsel chose to remain silent during the whole proceeding, except to thank the jury.

Camden’s assertion that Lovinger v. Circuit Court of the 19th Judicial Circuit, 845 F.2d 739 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct. 136, 102 L.Ed.2d 108 (1988), precludes a finding of implied consent is unfounded. The defendant in Lo-vinger opted for a bench trial in state court on charges of unlawful delivery of cocaine and marijuana. During the State’s case-in-chief, the prosecutor was unable to establish a simple chain of custody for its exhibits. Moreover, the State had failed to comply with discovery orders and had purportedly talked to witnesses during recesses in their testimony.

Several times during the trial, the trial judge bemoaned the prosecutor’s conduct, noting that substantial error was beginning to “creep” into the record. The trial judge, apparently frustrated by the State’s pervasive misconduct and concerned that the defendant was not receiving a fair trial, declared a mistrial sua sponte and recused himself from the case. The judge departed the courtroom as he was completing the mistrial declaration. Id. at 742. This court affirmed the trial court’s order granting Lovinger’s petition for writ of habeas corpus.

The petitioner in Lovinger was precluded from objecting to the mistrial declaration by the trial judge’s swift departure from the courtroom. Moreover, when the judge in Lovinger declared a mistrial “ ‘things were going defendant’s way, making an inference of assent from silence implausible.’ ” Id. at 745 (quoting United States v. Buljubasic, 808 F.2d 1260, 1266 (7th Cir.1987)). Defense counsel has not cited any portion of the record supporting his assertion that the trial had been proceeding favorably for Camden.

Juror Hatton’s revelation of his bias derived from a past affliction does not necessarily indicate that the case was proceeding in Camden’s favor. It is obvious from Hat-ton’s remarks, however, that he was unable to render an unbiased verdict and that the judge had to circumnavigate this unanticipated impasse in the proceedings.

Hatton could not remain on the jury as “[njeither party has a right to have his case decided by a jury which may be tainted by bias; in these circumstances, ‘the public’s interest in fair trials designed to end in just judgments’ must prevail over the defendant’s ‘valued right’ to have his trial concluded before the first jury impaneled.” Arizona v. Washington, 434 U.S. 497, 516, 98 S.Ct. 824, 835, 54 L.Ed.2d 717 (1978) (footnotes omitted) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)).

Unlike the situation in Lovinger, the judge at Camden’s trial did not flee the courtroom immediately upon declaring a mistrial. After the mistrial was declared, but before the jury dispersed, the judge explained for the record that the witnesses had been sworn and had testified out of the jury’s presence. The judge stated that the jury was discharged, but he detained the jurors in court to thank them for their service and to explain the necessity of his ruling. Defense counsel and the State’s Attorney both thanked the jurors for their attention before the jurors departed.

If defense counsel did not wish to acquiesce in the trial judge’s decision to abandon the trial, he should have reserved his expression of gratitude until after he objected to the judge’s declaration. Under the circumstances in the present case, the possibility of a mistrial was evident and defense counsel’s failure to take advantage of his opportunity to object in any way to the trial court’s mistrial declaration amounted to implied consent to the mistrial ruling.

After Hatton’s comment was reported to the trial judge and he conducted a hearing in chambers with all parties present, the ensuing alternative courses of action should have been evident. The trial judge could only retain Hatton and continue the trial if the jury custodian’s report to the judge was unfounded or exaggerated. Because the report of Hat-ton’s bias proved to be accurate, the trial judge could have imposed a less drastic remedy than the declaration of a mistrial, such as seating an alternate in place of juror Hatton, see, e.g., Arizona v.

Washington, 434 U.S. 497, 512 n. 31, 98 S.Ct. 824, 834 n. 31, 54 L.Ed.2d 717 (1978); People v. Silagy, 101 Ill.2d 147, 170-71, 461 N.E.2d 415, 426-27, 77 Ill.Dec. 792, 803-04 (1984), or seating a jury of less than twelve upon stipulation of the parties, see People v. Scudieri, 363 Ill. 84, 87, 1 N.E.2d 225, 227 (1936); People v. Burries, 144 Ill.App.3d 138, 140, 494 N.E.2d 750, 752, 98 Ill.Dec. 628, 630 (4th Dist.1986). The alternate juror, however, had promptly voiced his dissatisfaction with being called as a substitute juror. Hatton’s remarks were apparently heard and later discussed by all the jurors.

All potential remedies to Hat-ton’s revealed bias would have resulted in Hatton’s dismissal from the jury. Any advantage that Camden enjoyed from having a member of the jury indelibly biased in her favor would have immediately dissipated upon Hatton’s removal. Because the other jurors, including the disgruntled alternate, overheard Hatton’s remarks, the trial might have continued, but with a jury possibly biased against Camden.

It is likely that if the judge had chosen to proceed with the trial after dismissing Hatton, defense counsel would now contend that the jury was irrevocably tainted by the removal of a juror who had expressed a bias in favor of Camden and the related discussion in the presence of the jury. If the trial judge had substituted the resentful alternate, Camden would now probably claim that she was prejudiced by the court's decision to seat a juror who had expressed a reluctance and resentment to participating in the deliberations before all the other jurors.

Furthermore, the trial judge could have reasonably believed that the remaining jurors were contaminated after they heard one of their members confess his bias due to a prior drinking problem in the midst of a trial involving a defense of diminished capacity by reason of intoxication. The record does not suggest in any degree that the court declared a mistrial to give the government a second opportunity to convict because the first attempt was going badly. Cf. Gori v.

United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961) (judge abuses discretion if mistrial declared to provide the prosecution with a more favorable opportunity to convict the accused or to harass the defendant with successive, oppressive prosecutions). Furthermore, there is no evidence of prosecutorial overreaching to secure a mistrial; in fact, defense counsel stymied the interrogation of juror Hatton by strenuously objecting to a pertinent question from the prosecutor and pressing the court to conclude the hearing on juror bias.

Defense counsel should have realized that the midtrial revelation of juror bias carried with it the strong possibility of a mistrial. Hence, when a mistrial was declared, it should have come as no surprise. While not conclusive on the issue of implied consent, defense counsel’s conduct after the mistrial declaration bolsters our finding that he impliedly consented to the trial court’s mistrial ruling. After the mistrial ruling, the State’s Attorney immediately sought a setting for Camden’s retrial in the belief that Camden had made a speedy-trial demand.

Defense counsel responded by waiving any speedy-trial demand and agreeing to a second trial date of November 13, 1984. When the trial judge recused himself, defense counsel filed a motion to substitute the judge to whom the case was then assigned. Defense counsel did not file the motion to bar Camden’s reprosecution until more than two months after the mistrial was declared and retrial preparations had been made.

If defense counsel harbored a tacit objection to the mistrial declaration and believed that he was caught unaware and had no opportunity to make a timely objection, he should have made an adequate record immediately after the trial judge’s ruling and the dismissal of the jury. Camden’s trial would not have been salvaged thereby, but defense counsel would have provided some support in the record for his present claim that he disagreed with the need for a mistrial. Instead, defense counsel actively assisted in arranging his client’s retrial.

The unique circumstances of this case strongly support our finding that defense counsel impliedly consented to the trial judge’s mistrial declaration. Defense counsel should have anticipated the possibility of a mistrial and been prepared to object or suggest more acceptable alternatives when the trial judge announced his ruling. Of course, defense counsel’s decision not to move initially for a mistrial would be expected if he perceived some advantage in having a juror with a prior drinking problem on the jury.

Defense counsel concedes that he viewed these circumstances as an opportune juncture to attempt to negotiate a plea agreement. Defense counsel’s request for a plea negotiation, which was unsuccessful, demonstrates his realization that a new trial was likely. At no time did Camden or her counsel object to the mistrial declaration. Camden’s attorney was not obliged to engage in any prejudicial histrionics to object effectively to the trial court’s mistrial declaration. Defense counsel merely had to rise in a respectful manner prior to the dispersal of the jury and indicate his objection to the mistrial.

If defense counsel was dissatisfied with the trial judge’s resolution of the problem, he should have at least requested a sidebar to voice his objection or suggest an alternative solution. He made no record suggesting that there was any objection to what was happening. Defense counsel cannot now avoid a second trial with a double jeopardy argument and thereby profit from a failure to act. All of defense counsel’s actions or lack thereof clearly demonstrate that the double jeopardy argument was merely an afterthought that took form long after the first trial ended in a mistrial.

Defense counsel cannot now manipulate the events at Camden’s trial to obscure his original implied consent to the mistrial declaration. This court therefore finds that Camden impliedly consented to the trial court’s sua sponte mistrial declaration. III. NEED FOR AN EVIDENTIARY HEARING Finally, Camden asserts that the magistrate erred by ruling on Camden’s petition for a writ of habeas corpus and

summary judgment motion without conducting an evidentiary hearing. Significantly, defense counsel failed to request a hearing for either the

summary judgment motion or the habeas petition. The disputed question of fact that Camden believes justified a hearing involved defense counsel’s “unexpressed subjective thoughts” at the time of the mistrial proceedings. The magistrate evidently found that holding a hearing to examine defense counsel’s erstwhile cogitations would not aid the court’s decision making. This court likewise finds that defense counsel’s state of mind had no bearing on the merits of either the

summary judgment motion or the petition for a writ of habeas corpus. Counsel’s failure to object was sufficient evidence of implied consent to the mistrial declaration; there was no need to delve into defense counsel’s psyche. We have the record of what in fact happened. In any event, this court previously has ruled that a dispute over the application of a constitutional principle to a historic fact, rather than a dispute over the fact itself, is not the type of “issue of fact” that requires the holding of an evidentiary hearing. Sutton v. Lash, 576 F.2d 738, 745 (7th Cir.1978) (citing Townsend v.

Sain, 372 U.S. 293, 309, 83 S.Ct. 745, 755, 9 L.Ed.2d 770 (1963)); see also Cartee v. Nix, 803 F.2d 296, 298-99 (7th Cir.1986) (if state fact-finding procedures in postconviction proceedings provide defendant with a full and fair hearing, district court does not abuse its discretion when it declines to hold evidentiary hearing on habeas petition), cert. denied, 480 U.S. 938, 107 S.Ct. 1584, 94 L.Ed.2d 774 (1987). Camden’s attorney does not dispute the pertinent facts that the magistrate relied on when denying Camden’s

summary judgment motion and habeas corpus petition. Rather, defense counsel disputes allegations in an affidavit filed by the State’s Attorney regarding defense counsel’s state of mind. Counsel should have moved to strike any matter in the affidavit not made on personal knowledge and inadmissible as evidence. See Fed.R.Civ.P. 56(e); see also Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir.1985) (trial court properly excluded unsupported suspicion and argumentation that lacked foundation in the record), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986). It is apparent from the order denying Camden’s

summary judgment motion, however, that the magistrate did not rely on that portion of the Anderson affidavit purporting to reveal defense counsel’s private thoughts. IV. CONCLUSION This court finds that Camden impliedly consented to the trial court’s mistrial declaration by failing to object despite having a brief but adequate opportunity to do so. The magistrate’s decision denying Camden’s petition for a writ of habeas corpus is therefore Affirmed. . The fifth amendment provides: "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb_” U.S. Const, amend. V.

Jeopardy attaches in a jury trial when the jury is impaneled and sworn, Downum v. United States, 372 U.S. 734, 737-38, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963), and in a bench trial when the judge begins to hear the evidence, Serfass v. United States, 420 U.S. 377, 388-89, 95 S.Ct. 1055, 1062-63, 43 L.Ed.2d 265 (1975). . Pursuant to 28 U.S.C. § 636(c), the parties consented to the entry of final judgment by a United States magistrate. . On the evening of July 21, 1983, Ivan L.

York, the victim of Camden's attack, was seated at a table in the Saloon, a tavern in Robinson, Illinois, with Kevin Pethel and Pethel’s mother. At approximately 10 p.m., Kevin Pethel and York hastened to another tavern. After their departure, Julia Camden arrived at the Saloon and asked Mrs. Pethel if York was accompanied by a particular female patron of the Saloon on his tippling excursion. Mrs. Pethel denied that York had left the Saloon with a woman. York returned to the Saloon at approximately 11 p.m. and resumed his conviviality with Kevin and Mrs. Pethel.

Shortly thereafter, Camden approached York from behind, leaned over, and stated: "I hope that you have enjoyed yourself.” Camden concluded her discourse by shooting York in the abdomen and quickly exiting the Saloon. When Camden was later arrested, a .22-caliber pistol was found in her purse. Prior to trial, Camden filed a statement of facts admitting the factual allegations contained in the information but denying that she acted with the requisite mens rea. . Camden's claim that the magistrate granted

summary judgment in appellees’ favor is erroneous. The magistrate’s order dated December 20, 1988, and the judgment entered on December 22, 1988, merely denied Camden’s motion for

summary judgment and her petition for a writ of habeas corpus. Furthermore, appellees never filed a cross-motion for

summary judgment. . A trial judge's manifest necessity evaluation in cases of jury deadlock or juror bias is entitled to greater deference because the determination is based on such factors as the judge’s observation of the jurors during voir dire, his familiarity with the evidence, the background of the case on trial, and the tone of the argument delivered and its effect on the jurors. Washington, 434 U.S. at 510 n. 28, 513-14, 98 S.Ct. at 832-33 n. 28, 832.

Less deference is accorded to a trial judge’s manifest necessity evaluation when the record suggests that bad-faith conduct by the judge or prosecutor may have prompted the mistrial declaration. The Washington Court noted that the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve an advantage over the accused. Id. at 508, 98 S.Ct. at 831 (footnotes omitted); see also United States v.

Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976); Jorn, 400 U.S. at 485, 91 S.Ct. at 557. . The jury’s presence during the judge's mistrial declaration does not foreclose a finding that Camden had an adequate opportunity to object to a mistrial. If defense counsel objects to a mistrial declaration prompted by a judge's finding of juror bias, he does not risk offending the trier of fact, which could occur if the mistrial was prompted by a deadlocked jury. See Henderson v. Wright, 533 F.Supp. 1373, 1376 (D.Me.1982).

When defense counsel objects in the jury’s presence after a mistrial declaration due to jury deadlock, he endures the risk that the jury will hold him responsible for compelling them to continue deliberations contrary to the opinion of both judge and jury. If defense counsel objects to a mistrial declaration based on the trial court’s finding of juror bias, however, he merely informs the court and the jury of his confidence in the jury’s ability to reach an unbiased verdict. .

Defense counsel’s actions after the mistrial had been declared and the jury had dispersed could not alone support a finding of implied consent. While the mistrial declaration alone was not a talismanic utterance, the discharge and dispersal of the jury rendered the mistrial a fait accompli. Once the jury is discharged and has dispersed, a trial court is unable to reconsider its intention to declare a mistrial. See United States v.

Smith, 621 F.2d 350, 352 n. 2 (9th Cir.1980) (defense counsel's statements and silences after declaration of mistrial but before discharge of jury constituted implied consent), cert. denied, 449 U.S. 1087, 101 S.Ct. 877, 66 L.Ed.2d 813 (1981); United States v. Estremera, 531 F.2d 1103, 1109-10 (2d Cir.) (The trial court granted defendant’s mistrial motion. The defendant then withdrew the motion before the jury was actually excused and the trial proceeded. Conviction affirmed.), cert. denied, 425 U.S. 979, 96 S.Ct. 2184, 48 L.Ed.2d 804 (1976); Scott v.

United States, 202 F.2d 354, 355-56 (D.C.Cir.) (defense counsel faulted for failing to object during the interval between the court’s mistrial declaration and the actual dismissal of the jurors, after which it was "too late for his objection to be effective”), cert. denied, 344 U.S. 881, 73 S.Ct. 180, 97 L.Ed. 682 (1952). Here, the opportunity to salvage Camden’s trial by objecting to the mistrial declaration terminated upon the dismissal of the jury.

Nonetheless, defense counsel’s active assistance in arranging Camden’s retrial and his failure to object on the record even after the mistrial declaration and dispersal of the jury provide strong evidence that his silence during the mistrial declaration constituted agreement that a mistrial was necessary. . Proceeding by agreement of the parties with a jury of less than twelve would not likely be an attractive option to a defendant who might prefer to select a new jury after hearing the government’s entire case presented in the first trial.

In a second trial, defense counsel would have the opportunity to revise his opening statement and reconsider his cross-examination of government witnesses. In all events, Camden’s counsel neither objected to the trial judge's selection of the mistrial option nor suggested a more acceptable alternative. . While it is doubtful that manifest necessity supported the mistrial declaration, we need not determine whether the trial court’s action was supported by manifest necessity because we have determined that Camden impliedly consented to the mistrial. . Local Rule 7(

c) of the Local Rules for the Southern District of Illinois provides in pertinent part that "[a]ny party desiring oral argument [on a motion] shall make appropriate note thereof upon the cover page of his brief. The Court may, in its discretion, rule on the motion without oral argument.” District courts have considerable discretion in interpreting and applying their own local rules. See Max M. v. New Trier High School Dist. No. 203, 859 F.2d 1297, 1300-01 (7th Cir.1988); Congregation of the Passion v. Touche, Ross & Co., 854 F.2d 219, 223 (7th Cir.1988). There was no request for a hearing anywhere in the briefs Camden filed with the district court.