Harrison v. Gillespie, 636 F.3d 472

Harrison was convicted of first‑degree murder; penalty phase death penalty sought but jury deadlocked on sentence.
Trial court discharged the deadlocked penalty jury without polling to see if death penalty was definitively rejected.
Harrison sought habeas relief under 28 U.S.C. § 2241 to stop future capital proceedings.
Nevada penalty‑phase forms showed partial findings (some aggravators and many mitigators) but no final weighing.
Post‑trial juror affidavits claimed death was off the table; state court denied relief on these grounds.
The district court denied relief; the Ninth Circuit ultimately addressed whether polling was constitutionally required and whether manifest necessity supported the mistrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the mistrial without polling violated double jeopardy	Harrison argues polling was required to show death eligibility was rejected.	State contends no per se polling right; discretionary interrogation is not compelled.	No per se polling right; no abuse of discretion; no double jeopardy bar on retrial.
Whether Nevada capital-sentencing structure permits partial verdicts to trigger double jeopardy protections	Partial verdicts or implied acquittals on death eligibility bar retrial for death penalty.	Nevada's three‑step scheme requires final sentencing decision; no partial acquittal.	Nevada law does not recognize a partial verdict of acquittal in unbifurcated capital sentencing; no double jeopardy bar.
Whether the district court’s dismissal was justified by manifest necessity	Discharge was improper without polling; there was no manifest necessity.	Discharge was proper given deadlock and the need to avoid coercion.	There was no manifest necessity; polling should have been considered; district court abused discretion.
Whether a constitutional right to polling exists in capital cases	Polling death-eligibility questions is constitutionally required before mistrial.	No constitutional right to polling; discretion governs when to inquire.	No per se right to polling; contextual discretion governs whether to poll; in this case, the court did not abuse discretion.

Bullington v. Missouri, 451 U.S. 430 (1981) (double jeopardy applies to capital-sentencing decisions that resemble guilt trials)
Arizona v. Rumsey, 467 U.S. 203 (1984) (acquittal on merits bars retrial; death penalty context emphasized)
Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (deadlocked jury not an acquittal; focus on final verdict)
Yeager v. United States, 129 S. Ct. 2360 (2009) (clarified implied acquittals and jury finality concepts)
Renico v. Lett, 130 S. Ct. 1855 (2010) (permissible to defer rigid polling rules; discretion in deadlocked jury cases)
Jorn v. United States, 400 U.S. 470 (1971) (manifest necessity standard rooted in careful, case-specific discretion)
Washington v. United States, 434 U.S. 497 (1978) (high caution in mistrial decisions in capital cases)
Perez v. United States, 22 U.S. (9 Wheat.) 579 (1824) (classic Perez framework for manifest necessity in mistrials)
Bates v. United States, 917 F.2d 388 (9th Cir. 1991) (designates factors for assessing manifest necessity in mistrials)
Yeager v. United States, 129 S. Ct. 2360 (2009) (acquittal and finality principles in multi-count trials)