Harrison v. Gillespie

er evidence could have been obtained. De- tablishes that the VA has made some sort spite generalizations its disability about the burden determination. Because we prejudice, to show give Court directed re- disability VA great determinations mand to the Veterans Court in one of weight, failure to assist McLeod in devel- it, two cases though before even that vet- oping by the record getting disability his eran had not shown what additional evi- determination into the record is reason- might dence she have to harm. ably likely show prejudicial. to have been We although Court held that some features of remand under sentence four of 42 U.S.C. suggested § record 405(g), error was concluding that agency “the harmless, suggested others opposite, erred in respect some in reaching a deci- “[gjiven uncertainties, we deny believe sion to benefits.”32 The ALJ’s fail- appropriate is to remand this help case so ure to develop McLeod the record that the Veterans Court can decide wheth- putting his VA disability determination er necessary.”28 re-consideration is into the record was an error under Tona- petyan and McCartey, so the district court that, We infer from Sanders de should remand. spite the burden to prejudice show being REVERSED. party claiming error the admin agency, istrative reviewing court can

determine from the “circumstances of the

case”29 that further administrative review

is needed to determine whether there was

prejudice from the error. probabili Mere

ty enough. is not But where the circum

stances the case show substantial like lihood of prejudice, remand is appropriate HARRISON, James M. Petitioner- agency so that the “can decide whether re Appellant, consideration necessary.”30 is By con trast, where harmlessness is clear and not Douglas GILLESPIE, Respondent- question,”31 “borderline remand for re Appellee. consideration is appropriate.

Though the exact distinction between No. 08-16602. the two veterans in Sanders crystal is not United States Court of Appeals, clear, it quite clear that no presumptions Ninth Circuit. operate, and we must exercise judgment in light of the circumstances of the case. Argued Sept. Submitted 2010. case, this suggest preju- circumstances Filed Feb. 2011. dice at least strongly as as for the veteran May Amended 2011. whose case was remanded Sanders. physicians McLeod’s differ in their evalua-

tions, true, testimony, McLeod’s if es- 28. Id. at Barnhart, 1708. Hong 32. Hoa Van v. 483 F.3d (9th Cir.2007) (quoting Akopyan v. Barn 29. Id. at 1706. hart, (9th Cir.2002)). 30. Id. at 1708. Id. KOZINSKI, ALEX

Before: Chief REINHARDT, Judge, STEPHEN THOMAS, R. SIDNEY SUSAN P. GRABER, McKEOWN, M. MARGARET WARDLAW, KIM McLANE WILLIAM FLETCHER, A. RAYMOND C. FISHER, BERZON, MARSHA S. CLIFTON, RICHARD R. and MILAN D. SMITH, JR., Judges. Circuit SMITH, Opinion by Judge MILAN D. JR.; by Judge THOMAS; Dissent Dissent by Judge REINHARDT.

ORDER Appellant’s judicial request for notice of documents filed in the state trial court is granted. Kozinski, Judge

Chief Judges and Gra- ber, McKeown, Wardlaw, Clifton, and M. deny Appellant’s petition Smith voted to for rehearing by the en banc court. Reinhardt, Thomas, Judges Fletcher, W. Fisher, and Berzon voted to grant petition. The petition is No fur- denied. petitions rehearing ther for bemay filed. majority opinion, and dissenting Reinhardt, opinion Judge filed Feb- 15, 2011, ruary are amended appear to as Schieck, David M. Clark County Special concurrently filed Judge with this Order. Defender, Vegas, NV; Public Las JoNell Thomas’s unchanged dissent is from the Thomas (argued) Scott Bindrup, Dep- and original February filed on uty Defenders, Special Public Vegas, Las Judge Chief Kozinski’s concurrence filed NV; NV, Bret Whipple, Vegas, Las on the same date is withdrawn. the petitioner-appellant. (argued) Steven S. Owens and David OPINION Roger, Office of the County Clark District SMITH, M. Judge: Circuit NV; Attorney, Vegas, Las Catherine Cor- Masto, General, tez Attorney Nevada Car- Petitioner Harrison convict- James NV, son City, for the respondent-appellee. first-degree guilt ed of murder in the brought today. here. them back trial, jury deadlocked We his but phase They’ve deliberating day. phase been all his sentence in over bring is to them back his Court’s inclination requested case. Harrison just them as to whether or question to ascertain whether polled fruitful not would be to continue and was penalty, out the death had ruled They any deliberations. have been on a sentence. The lesser deadlocked not, they if and, working day, all indicate request after denied Harrison’s court going go then ahead and the Court’s further deliberations determining that verdict, at a excuse them. help arrive would filed peti- discharged jury. clarified it had re- The court then corpus seeking to for a writ of habeas

tion lunch ceived the two notes “before the seeking from the State of Nevada prevent break,” court, in response, and that pending retrial of penalty in the the death “just keep going” had told the proceedings. penalty-phase lunch, through lunch. After the court’s ... again bailiff “asked them if want- the trial court Harrison contends deliberating. They ed to indicated keep right his be free constitutional violated no.” because the trial jeopardy double if it had unani- failed ask the objected counsel to the Harrison’s rejected penalty, and mously court’s course of action: proposed over lesser sen- instead was deadlocked inquire I’d that we from the request tence, jury. discharging before We along far process how case, of this that under the facts hold they penalty by phase, were this and discretion, her judge did not abuse trial aware, I that as this Court well mean is subject jeopardy, Harrison to double they to make a if needed determination discharg- before declining poll proved beyond were aggravators deadlocked, un- it because it was and ing I would that this reasonable doubt. ask to reach verdict. able of that. then the inquire Court And weighing process was if the second issue AND PROCEDURAL FACTUAL mitigators aggravators between the and BACKGROUND they weighing pro- if in fact done a had first-degree Harrison was convicted of cess, this poll and ask that Court I’d 21, 2006. murder on November The State and indi- individual ask them during penal- sought penalty vidually any if of them made the deter- but ty proceedings, phase mitigation outweighed mination that the eventually that it advised the aggravations this matter. Harrison’s sentence. was deadlocked over attorney A second that defense clarified mid-afternoon, In November ask or not Harrison wanted “to noted: they unanimously eliminated [the] one of punishment two from two different as a because had notes [W]e just that.” the notes to the Court indicated jurors indicating that the was dead- objected argu- The State to this request life with and life with- locked between way de- ing those in that make “[t]he We over cham- out.1 went they they to which verdicts .... were termination as [Tjhey bers indicated verdict they partial reached or a that ... when were last deadlocked record, they but were not. just the— nothing was because there’s on the miti- them, THE All please. COURT: form gating say jury having to the found mitigators mitigators these the finds the foregoing, Based on de- the court outweigh the the aggravators aggra- or discharged jury. clared a mistrial and the outweigh vators the mitigators. The The jury’s court examined the verdict only way for us to is to know that see forms, noted that four two of the actually what form is out. I filled sus- been completed. forms had two The first course, pect, going neither form is to that jury forms showed the had one found they’re be filled out because deadlocked (out factor aggravating of the two that the punishment. the offered),2 government had twenty-four (all What we don’t know is whether or not mitigating factors of the factors offered defense, they have in fact finding] by by this as [made well as an additional virtue of the they’re considering fact jury). factor added forms The penalty point signed by or at this time were the foreperson. The are not tied with given between some the was also two forms to on which penalty, death that doesn’t us where tell record Harrison’s sentence. first The "beyond The found a reasonable lation of the victim.” that "[t]he doubt” murder involved muti- ” (who foreperson if the ‘off the table.’ The meant to be used form was affiants) took a aggravating circumstance one of the three then vote “found any mitiga- if all outweigh[ed] jurors agreed or circumstances “to determine If or table,’ tion circumstances.” circumstance was off the or that ‘death death found, have been it would then so option during not be an would deliberation. term of (12) between a fixed able to select on this twelve The vote issue was possibility life with the imprisonment, (0) removing in favor of death as zero parole, life without or death. parole, verdict.” potential The three affidavits if the was meant to be used second form “[tjhat my personal further stated deliber- circum- mitigation “found mitigating weighing ation included evi- outweigh[ed] or circumstances stance against aggravating evidence dence circum- aggravating circumstance or mitigation that I determined found, If the it would stances.” so outweighed evidence of ag- evidence a fixed able to select between have been Finally, affidavits gravation.” stated possi- life with the imprisonment, term of that, I polled “if had been Court life parole. bility parole, service, I being would before excused of the sign to mark or either jury failed that I determined have answered two forms. latter mitigating outweighed circumstances seven approximately On June aggravating circumstance.” jury had penalty-phase months after the by arguing The State countered a Motion discharged, been Harrison filed post-trial juror that Harrison’s affidavits in the state Penalty the Death Strike acquittal. not constitute a verdict of did that he argued Harrison trial court. also an affidavit from The State introduced subjected penal- to the death should not jurors stating that “[t]he one of decided, twelve to ty “[t]he because po never the table’ as a penalty was ‘off zero, the use of the death against ju for me as punishment option tential de- independently had each because ror.” cir- mitigating that Harrison’s termined July state On outweighed aggravating cumstances the Motion to the Death denied Strike Harrison of the crime.” circumstances request Penalty, and denied Harrison’s ju- affidavits from three former submitted proceedings. stay penalty-phase further Harrison, which, according consti- rors day, filed a The next “Petition crystal acquittal” “a clear tuted Mandamus, or in the Alterna- affidavits, for Writ of dated penalty. death three tive, and 2006, 2006, Emergency a Writ of Prohibition 17, 22, and March February Stay Proceedings” with the 18, 2006,3 substantially Motion all December were again Supreme inside the Nevada Court. They stated that “once similar. juror room, argued that the affidavits established juror juror one announced that she clear of the penalty “crystal acquittal” was death had determined death testimony process discharged unless the "bear[s] 3. the on November berative Since 2006, 27, February and we assume that the extraneous on the deliberation.” influences 2007, 538, Pimentel, rath- affidavits were executed in March F.2d States v. 654 542 United er 2006. than (9th Cir.1981) (citing v. United Mattox 140, 50, 148-49, 36 L.Ed. U.S. 13 146 jurors’ dueling mention the affidavits We Here, 606(b)). (1892); 917 Fed.R.Evid. explain procedur- the full context does not. history al not consider of the case. We jurors’ testimony addressing jury’s deli- 896

penalty. Supreme The Nevada Court is- reached a concerning unanimous verdict preliminary stay sued a of further penalty- penalty.” A panel merits of our 7, phase proceedings, September but on court stayed pending state-court pro- 2007, it petition denied Harrison’s because ceedings, granted petition over Judge by way extraordinary “intervention writ dissent, Silverman’s Gillespie, Harrison v. warranted,” not stay. and vacated the (9th Cir.), 590 F.3d 823 withdrawn and (9th superseded, Cir.2010), 596 F.3d 551 2008, On June peti- Harrison filed a majority and a of the active nonrecused tion for a corpus writ of habeas under 28 judges on our § 2241 in court voted to rehear U.S.C. the United States Dis- banc, Cir.2010). trict Court for the District of case en Nevada. F.3d petition first, His arguments: raised two acquitted that he had been of the death AND JURISDICTION STANDARD penalty because the had unani- OF REVIEW

mously concluded that the mitigating fac- outweighed factors, tors aggravating agree We with the original panel second, that the trial court erred majority’s § discussion of 28 U.S.C. declaring a mistrial without polling ju- Harrison, the standard of review. they rors determine whether had unani- 596 F.3d at 559-61. precedent Our makes mously concluded that the mitigating fac- § clear that 28 proper U.S.C. is the tors outweighed aggravating factors. asserting vehicle for jeopardy a double petition Harrison’s requested that (or of) prior claim during pendency court order the State “to cease attempts a successive trial. See Wilson Belleque, obtaining penalty” death and order (9th Cir.), 822-24 cert. de the state court “not to entertain fur- —nied, -, U.S. 130 S.Ct. ” ther proceedings.... (2009). L.Ed.2d 53 The Supreme Court The district court denied the writ after explained § has that 28 U.S.C. 2241 allows concluding that Harrison had failed to es- individuals who are “in custody under one tablish that acquitted he had been sentence to attack a sentence which death The court concluded that yet begun had not to serve.” Braden v. partially completed verdict forms 30th Judicial Circuit Ky., Court failed to establish that the had con- 35 L.Ed.2d cluded that mitigating factors out- In light of weighed the aggravating factors. The precedents stating Court’s that the Double court also post-trial concluded that ju- Jeopardy Clause can bar the state from re- ror affidavits did constitute a verdict. seeking the cases, in certain The court then denied the writ without e.g., Missouri, Bullington addressing argument Harrison’s (1981), trial court erred declaring mistrial principles discussed Wilson v. Bel- polling jury concerning wheth- leque properly are extended to present er it had ruled out the penalty. death effect, case. In currently Harrison is here, appeal custody On Harrison under an longer no con- indeterminate sentence posttrial tends that the for first-degree conviction, affidavits his establish murder acquittal Rather, his penalty. attacking death he is possibility of receiving argues that the Nevada a death trial sentence in the future. We there- by declaring erred jurisdiction a mistrial fore have under 28 U.S.C. polling § to determine if it “had 2241.

897 omitted). (internal marks by origi quotation reasons stated For the that, Harrison, although sentencing at 596 F.3d concluded majority, Court panel nal by ordinarily governed Death are 561, proceedings and Effective the Antiterrorism (AEDPA), judgments, Jeop- discretionary 1996 28 U.S.C. the Double Penalty Act of By 2254, apply appeal. applies any sentencing pro- § not to this to ardy does Clause applies § 2254 requires terms 28 U.S.C. ceeding “explicitly its own “custody pursuant individuals has prosecution to determine court,” it is 444, of a judgment State 101 its case.’” Id. at S.Ct. ‘proved that the Nevada courts undisputed sentencing proceeding If a trial-like 1852. Harri judgment against yet favor, entered in the is resolved defendant’s we the district Accordingly, review son. the state Jeopardy Clause bars Double novo, de the state conclusions court’s sen- subsequently seeking the same from of of a for abuse grant trial court’s mistrial tence, acquittal of on “[a] because verdict 828; Wilson, at discretion. See course, is, guilt or the issue innocence 497, Washington, 510 v. 434 U.S. Arizona 445, absolutely final.” Id. at 28, 824, 717 S.Ct. 54 L.Ed.2d & n. 98

(1978). Bullington applied Court noted, the district court Finally, as judicially imposed to a death sentence doctrine, Younger see Younger abstention 203, Rumsey, v. Arizona 467 U.S. Harris, 746, 37, 401 U.S. 2305, 81 In S.Ct. L.Ed.2d 164 (1971), does not bar us L.Ed.2d 669 trial that the Rumsey, concluded the merits Harrison’s Dou considering prove statutory failed to state See Har Jeopardy argument. Clause ble at aggravating present. factors were Id. Court Eighth Judicial Dist. rison 205-06, 104 Although S.Ct. 2305. this con J, Nev., 2:08-cv-00802-RC J-R J No. appeal reversed because clusion was on (D.Nev. 2008) *2at June WL error, legal on the Court premised was F.2d Gillespie, Mannes v. (citing initial finding preclusive that the held Cir.1992)). acquittal merits “an on the because proceeding in the sole decisionmaker DISCUSSION charge.” retrial final and bars on the same 211, 104 at S.Ct. 2305. Acquittals Id. The Role of and Verdicts A. Finding Jeopardy Double Arizona, Later, 476 U.S. in Poland v. (1986), Double S.Ct.

The Fifth Amendment’s person judge erroneously concluded Jeopardy “[n]o Clause states and, proven its case accord- subject ... be same offence the state shall at Id. jeopardy ingly, imposed of life or limb.” put be twice Const, Bullington, the 1749. The sentence was amend. V. Jeop because the had relied held that the Double then reversed Supreme Court that was not ade- applies capital-sentencing aggravating on an factor ardy Clause record. Id. quately supported that “have hallmarks of proceedings [a] remand, 149-50, 106 S.Ct. 1749. After guilt trial innocence.” imposed the death sen- explained judge again 101 S.Ct. 1852. The Court tence, on a differ- based his conclusion Jeopardy Double Clause bars but initial- factor that had not following aggravating a determi ent retrial of a defendant sentencing. Id. at the “government ly ... failed to been found first nation that the 150, allowed 442, Id. 1852 at 106 S.Ct. 1749. Court prove its at 101 S.Ct. case[ ].” light the second death sentence to stand be- Court’s emphasis acquittals cause the defendant was sentenced to on as the “touchstone proceeding, double-jeopardy protection death in the first in capital- “the law id., particular significance sentencing proceedings,” attaches an proceed ac- we (inter- 156, to an examination of quittal.” principles Id. at 106 S.Ct. 1749 the basic omitted). governing acquittals. explained nal We have quotation marks Absent an acquittal may that an “express in be either or “acquittal” which the factfinder con- implied by jury silence.” Brazzel v. prosecution cludes that Wash failed to (9th Cir.2007). ington, 976, case,” “prove[] Jeopardy its the Double definition, (or By an express acquittal “ac Clause does not bar retrial. Id. at 156- fact”) in (internal quittal requires re 57, 106 quotation S.Ct. 1749 turn a omitted). verdict favor of the accused. See marks 2009). Dictionary Black’s Law ed. recently, More Pennsyl Sattazahn v. An implied acquittal occurs “when a vania, 109-10, 101, 732, 123 S.Ct. convicts on a charge lesser alternate (2003), 154 L.Ed.2d 588 the Court ad fails to reach a greater verdict on the petitioner’s argument dressed a that he ” Brazzel, charge.... 491 F.3d at 978. acquitted of the death penalty when The Supreme recently Court examined the imposed a life sentence after circumstances in which an implied acquit was deadlocked. Under the state tal can jury’s be inferred from a findings. sentencing case, scheme at issue in that —States, Yeager U.S. -, v. United required the trial court was impose 2360, S.Ct. life sentence if the failed to render a explained Court where a renders unanimous verdict favor of the death a verdict on one count but is deadlocked on Id. After the underlying convic count, government another is barred tion appeal, was reversed on the state from relitigating factual issues that are again sought the death on retrial. conclusively jury’s resolved “valid at Id. 123 S.Ct. Addressing and final judgment” as to the count on petitioner’s claim that the Jeopar Double which a verdict was reached. Id. at dy Clause barred the state’s second at 2370; see also Green United tempt to obtain penalty, 184, 190-91, U.S. 78 S.Ct. 2 L.Ed.2d emphasized Court that “the touchstone for (1957) (holding that conviction for sec- double-jeopardy protection in capital-sen ond-degree operates implied murder as ac- tencing proceedings is whether there has quittal count). first-degree ” murder ‘acquittal.’ been an Id. at 732. The Court Thus, noted that the trial, defendant’s in jury an “acquit life sentence had been imposed by opera tal,” whether express implied, or occurs tion of a statute rather jury’s than the only when the jury renders a verdict as to factual conclusion that the state had not all or some of charges against a defen proven 109-10, its case. Id. at dant. Accordingly, since acquittals are 732. Absent an express or implied finding the “touchstone for double-jeopardy pro guilt innocence, explained, Court tection capital-sentencing proceedings,” Sattazahn, deadlocked “non-result” for 123 jeopardy double purposes. Id. 123 then verdicts are an essential element “ S.Ct. 732. finding jeopardy double well.5 as ‘[A] verdicts, types 5. There are gener- two basic special al verdicts and verdicts:

899 (4th 547, Cir.1981); Tay- see also until 549-50 a valid verdict not reached jury has cases). over, an lor, the result is (collecting are F.2d at 168 In- deliberations 507 court, by a no dissent open in stead, nounced by must be rendered the verdict ” v. United States juror registered.’ is jury open accepted court and Cir.1982) (9th 83, Nelson, 692 F.2d 84-85 Nelson, to become final. order Taylor, 507 F.2d States v. (quoting United F.2d at 84-85.6 The court also 692 (5th Cir.1975)); 166, see also United 168 jury’s if it inconsistent reject the verdict (2d Rastelli, 822, 834 870 F.2d States v. See, ambiguous. e.g., or United States v. Cir.1989) is “well (noting that this rule (9th Cir.1979) Freedson, 739, F.2d 741 608 established”) cases). (collecting order curiam).7 (per functions, a must essential to fulfill its that result engage group deliberations Capi- B. Partial Verdicts Nevada’s guilt or collective determination of a tal-Sentencing Regime Florida, v. 399 innocence. See Williams 100, 1893, 78, 90 S.Ct. U.S. general principles dis (1970). then-judge Kennedy explained As argu undercut supra cussed Harrison’s court, purpose of the delibera for our post ment that a defendant can make an ex (or unanimity is to reach process tive request penalty-phase pro to bifurcate jurisdic in some requisite supermajority ceeding “partial in order to receive a ver tions), in turn “insure[s] which acquittal” penalty. on the death dict fully have been views of each three-step pro Nevada statutes establish a expressed.” United States considered and imposing cedure for (9th 1338, Cir. Lopez, v. 581 F.2d 1342 First, unanimously must find that 1978). be ex minority view “[T]he [must] present beyond factor is aggravating an and, reject possible, accepted amined if doubt, reasonable Nev.Rev.Stat. 1341; see jury.” the entire Id. ed State, 175.554(3); Hollaway § v. 116 Nev. Louisiana, 356, 406 Johnson v. also (2000) (en 732, 987, banc); that 6 P.3d 996 (1972). 361, 1620, 32 L.Ed.2d 152 finding is considered a factual determina significance of the entire Because of the law, State, tion under Nevada Johnson v. process, jurors’ prelimi deliberative (en (2002) 450, 118 Nev. 59 P.3d nary in the room do not consti votes banc) curiam). Second, juror (per each verdict, if unani a final even are tute Chinchic, individually conclude that the miti- v. 655 F.2d must mous. United States signed by only render a written verdict announces its ultimate shall "[I]f conclusions, foreman.”). ordinary general it returns an verdict; findings in addi- if it makes factual conclusions, legal tion to the ultimate parties may poll in order "to 7. The interrogato- general verdict with returns certainty ju for a that each of the ascertain findings, If it returns factual ries. approves of the verdict as returned.” rors leaving the court to determine the ultimate Columbia, Humphries v. Dist. of result, legal special verdict.” it returns a 43 L.Ed. 944 Such Warden, (9th Williams uncertainty poll primarily dispel exists Cir.2005) (quoting Zhang v. Am. Gem Sea Nelson, See, e.g., jury’s about the verdict. Inc., (9th foods, F.3d Cir. 84-85; Lustig, F.2d at United States 2003)). 1977) (holding Cir. F.2d by not law, trial court did not abuse its discretion imposing 6. Under Nevada cases conducting multiple polls jury where none a "written must return uncertainty 175.554(4) (“If jurors expressed or dis § verdict.” Nev.Rev.Stat. verdict). death, agreement about the jury imposes a sentence of gating outweigh sentence, factors do not the aggra- impose a final whether it be factors, 175.554(3); vating § Nev.Rev.Stat. possibility life without the of parole, life 996; Hollaway, 6 P.3d at that conclusion is possibility with the parole, of a fixed term “in part a factual determination” and in or, cases, years, of in some the death part “discretionary weighing” under Neva- 200.030(4). § See Nev.Rev.Stat. law, I, Third, da at Johnson 59 P.3d 460. words, In other penalty-phase unless the unanimously the must decide to im- bifurcated, proceeding only jury is the de- pose rather than life any significance termination the of —and possibility parole, without the life with only sufficiently one that is to consti- final possibility the parole, or fixed sen- tute a “verdict” in ordinary the sense—is tence with possibility parole, the Nev. jury’s regarding decision which sen- 200.030(4); § Rev.Stat. Hollaway, 6 P.3d impose. tence to 996; this is “a moral decision that not is susceptible to proof,” McConnell State In light of the structure of Neva — (McConnell II), -, Nev. 212 P.3d scheme, da’s capital-sentencing and the un (2009) (en banc) curiam). (per If derlying principles supra, discussed Harri agree upon is unable to a sen- automatically son was not entitled under tence, the trial court either “sentence poll Nevada law to deadlocked on imprisonment defendant to life the status of its deliberations his unbifurcated possibility of parole impanel or a new capital sentencing proceeding. jury to determine the sentence.” Nev. State, See Daniel v. 119 Nev. 78 P.3d 175.556(1). § Rev.Stat. (2003) (en banc) curiam) (per (holding that trial “court required [i]s Nevada Court has explained although juries poll jurors” given regarding possible are ac special quittal verdict guide analy penalty). Although forms to their sis in these jury may unbifurcated penalty-phase preliminary reached conclu proceedings, these forms are not sions at legally any of the three stages of its State, significant. Gallego See capital-sentencing inquiry first, Nev. with re — (2001) (en banc). 23 P.3d 239-40 spect presence to the aggra absence of Instead, any signifi circumstances, conclusion of vating second, respect with cance jury’s is the final sentencing decis balancing of the aggravating and ion.8 id. at (holding circumstances, See that “a mitigating third, ver with dict specifying jury’s form mitigation] [the respect to the final “moral” decision to findings required”); is not see also Nev. impose particular sentence —Nevada law 175.554(4). § Rev.Stat. Contrary Judge any procedural does not include mecha suggestion Reinhardt’s separate his dis nism in jury’s preliminary which the deter sent, purpose penalty-phase pro minations can be embodied in a valid final ceeding under Nevada simply law is not to verdict in an penalty-phase unbifurcated decide whether legally defendant proceeding such as Harrison’s. Absent eligible for a capital sentence and jury’s full deliberation and final deci such a sentence should imposed. regarding sentence, See sion the defendant’s Rather, Reinhardt Dissent at 915-16. penalty-phase jury Nevada pro has not purpose penalty-phase proceeding is duced a “valid and final judgment” that death, however, If the sentence is outweigh aggravating cumstances do not specify aggravating must also stance(s) circum- circumstance(s). 175.554(4). § Nev.Rev.Stat. mitigating and conclude that the cir- trial,” Washington, to a Yeager, submit second acquittal. See partial constitutes However, 98 S.Ct. 824. Harri- at 2367.9 trial argues that the court committed son by concluding that constitutional error Constitution States United C. “hung” may actually it Right jury was when a Per to Not Create Se Does decision not to im- preliminary reached a Polling in Harrison’s Case penalty.10 pose disagree, the death We contends that even Harrison and conclude that such decisions are en- was conducted penalty phase though the to the sound discretion of trial trusted the Double proceeding, as an unbifurcated they properly positioned are to judges, as that the trial required Jeopardy Clause determine whether such a mid-deliberation discharging the deadlocked judge, prior to is warranted in the circumstances. inquiry to polled jury deter jury, should have outset, that At the we note there can be rejected mine if it had dispute jury reasonable that was no brief, Harrison phrased opening his As regarding deadlocked its deter- genuinely a matter of federal consti that “as argues mination of Harrison’s sentence under Ne- law,” [should have] “the tutional 175.554(2)(c). § Revised Statutes vada to confirm polled be[en] objected Harrison never to the court’s con- of death unanimously rejected a sentence deadlocked, jury was clusion sentences.” split between lesser and were challenge not now the accu- Harrison does “a retrial follow Undisputably, jury racy of the court’s conclusion violate the Dou ‘hung jury’ does not ing a agreement unable to reach as to his Clause,” v. Unit Instead, Richardson Jeopardy dissenting ble our col- sentence. “mani- leagues suggest ed that there was no (1984), mistrial, and a “trial necessity” declaring for a but 82 L.Ed.2d fest jury fact that the genuinely undisputed a dead overlook the may discharge regarding deadlocked its fi- genuinely to was jury require the defendant locked simply requirement that trial saying rule is not a goes Harrison has 9. It —and inquire partial a jury’s partial- about a verdict on argued as much—that the courts never charge, presented in all special forms do not as is the issue ly completed verdict distinct (except prior Even for Daniel v. partial verdict in his favor. of the case law constitute a State, that these forms were which like Harrison’s if we were to conclude 78 P.3d at jury properly jury to the in Nevada ’’returned addressed a deadlock case 175.481, court,” Rather, § open capital-sentencing proceedings). Nev.Rev.Stat. jury provide essentially requested no indication forms that the trial aggra- mitigating weighed the factors with special interrogatories to the court submit vating and re- This is an essential factor. ele- in order to determine if of the determining step whether the death quired charge rejected. had been Al- ments imposed Nevada law. under though penalty-phase jury a Nevada must 175.554(3). § See Nev.Rev.Stat. legal factual and is- consider three distinct sues, presented with is not distinct might charges upon render or counts which supra, Nevada law does not As described Instead, jury may ren- partial a verdict. acquittal” recognize "partial verdict of agrees upon der a final verdict if it sentencing proceedings. unbifurcated sentence; anything of that final conclu- short jury’s only "verdict” is the final sentence. determination, merely preliminary sion is appropriate say that Harri- more It is thus request therefore not a verdict. Harrison’s inquire requested that the about the son attempt preliminary to an to elicit amounted preliminary than jury's determinations rather the various elements determinations on light capi- Nevada's "partial verdict.” In scheme, single inquiry. proposed charged to the as a sentencing Harrison's tal— judges nal verdict. See Thomas Dissent 907- decide whether deadlock war- Renico, It that “[a] 912-13. is well established rants a mistrial.” 130 S.Ct. at upon judge’s (internal omitted). premised ‘mistrial quotation marks unable to reach a belief that the Moreover, required the Court has “never long verdict has been considered the clas- judge, declaring a mistrial before ” proper for a mistrial.’ Renico v. sic basis deadlock, based force —Lett, U.S. -, time, period deliberate a minimum (2010) (alterations omit question jurors individually, to con- ted) (quoting Washington, 434 U.S. at (or of) sult with obtain the consent either 824). Here, 98 neither Harrison’s counsel, prosecutor to issue defense counsel, counsel, appellate trial nor our instruction, supplemental or to dissenting colleagues suggest that the any other breaking consider means of regarding was not deadlocked the issue added). impasse.’’ (emphasis Id. at 1864 presented to sentence impose it—which to short, Supreme Court has never on Harrison. adopted per regarding se rule Nevertheless, Harrison and our dissent- judges’ responses juries. to deadlocked ing colleagues contend the trial court Instead, the emphasized Court has the im- erred not because of its conclusion that the portance of deferring judge’s to the trial deadlocked, but because it failed involving discretion cases deadlocked inquire to about whether 1863-64; juries. at Washington, Id. penalty decided to take the death off the at n. 98 S.Ct. 824. Consistent prior discharging jury. table Harri- general with the approach Court’s to dead- requested son that the trial court conduct juries, locked we judges conclude that trial First, inquiries. three distinct request- he are entitled to exercise their “sound dis- inquire ed “that we from the how cretion” deciding when whether to inquire far along process they were in this jury’s into a preliminary determinations ” penalty Next, phase.... requested he declaring before a mistrial. poll ju- “that this Court 12 individual partially Our conclusion is by informed rors and ask them if individually any of first, two basic rationales: that a judge’s them made the determination that the mit- inquiry preliminary jury into a determina- igation outweighed aggravations in this tion can jury, coercive effect on the Finally, matter.” requested he “on their second, that such an inquiry may elicit way out to ask whether or not unani- jury’s preliminary tentative or vote mously eliminated the death as a rather than its final verdict. punishment....”11 'Supreme occasions, “express Court has On numerous ly require declined to appli the mechanical judges Court has warned trial to avoid rigid cation formula coercing jurors.12 when trial deadlocked The Court 11. Our discussion is intended to address not with an additional verdict form and allowing report whether it had or could "polling" argument, Harrison’s but also agreeing resolve that issue without on a sen- determining the various "alternative means of Harrison, tence.” 596 F.3d at 566 n. 14. acquitted whether Harrison had been of the penalty” original panel majori- types 12. The Court has addressed two basic ty example, asking listed: “for ... the fore- coercion: deliberate coercion one of the person whether the had reached unani- parties, e.g.,Remmer v. United agreement mitigators mous as to whether 377, 381-82, 76 S.Ct. 100 L.Ed. 435 outweighed (1956), aggravators, providing or ... or unintentional coercion coercion, if it is and uninten- even subtle judges that “trial concern expressed has tional, impermissible coercive means break creates an risk ‘employ ... might deadlock,’ creating a thereby apparent dynamics with the [an] interference may result that a verdict ‘significant risk generally Lowenfield, 484 U.S. process, see inherent in the situation pressures 238-40, 546, and studies have 108 S.Ct. judgment of all considered rather than the dead- judge’s response that a shown ” Renico, at 1863 jurors.’ juries significant can have distort- locked 509-10, Washington, 434 U.S. (quoting jury’s delib- effect on the course of the ing 824). “the concern is that One al., The Sarah Thimsen et erations. See join one of the factions judge appears to Explosive Too Its Dynamite Charge: “thereby lends his hung jury,” which Good?, 109-10 Val. U.L.Rev. Own faction” adherents of that prestige to the (2009); Bateman, P. see also Samantha jury’s deliber- the course of the and affects Comment, Charges Allen Blast it All: Note, Instructing Deadlocked ations. On Dangers Playing Dynamite, with (1968) (here- Junes, Yale L.J. (2010) (detail- 323, Haw. L.Rev. 333-38 U. Juries). judge’s inafter Deadlocked studies). mock ing (for subtle, in- such as may be partiality judicial coer- Our second concern about stance) more to- her comments directing jurors might cion is the “risk that some rather dissenting minority vote ward the to be- mistakenly permit a tentative vote Williams, 547 F.3d majority, see than final forgo come an irrevocable vote and between cases (distinguishing 1206-07 at insights” opportunity gain to new and does not know in which does through further deliberations. United juror), encourag- dissenting or identity of (2d 140, F.2d 147 DiLapi, v. 651 States toward unanim- jury’s “movement” ing the Cir.1981). Although jury voting room is 976, 40 F.3d 980-81 ity, Myers, v. Jiminez curiam). Cir.1994) jury’s (9th judicial important part an of the decision- Such (per opinions jurors' personal or permissi- formation of held that it is The Court has court. deliberations, dissenting jurors the conduct of their collective to to instruct ble for courts Remmer, 382, views, e.g., at S.Ct. 425 350 U.S. 76 Allen v. willing reconsider their be to (”[I]t objective guard jealously 492, 501, 154, States, is the law’s U.S. 17 S.Ct. United 164 right operate sanctity jury’s as of the (1896), poll them to and to 41 L.Ed. 528 freely possible outside unauthorized as from further deliberations determine made.”). purposefully intrusions beneficial, Phelps, v. 484 would be Lowenfield 546, 231, 240, 98 L.Ed.2d 568 stake, U.S. 108 "delicacy” rights Given the (1988), courts it has barred federal Heriot, 601, (6th but States v. 496 F.3d United courts) inquiring (though about omitted), not state Cir.2007) (internal quotation marks jury, of a divided numerical breakdown to discuss coercion we too have had occasion 448, 450, States, 272 v. United appeals, United States v. in both direct see Brasfield 135, (1926), 1187, and from Williams, (9th 71 L.Ed. 345 47 S.Ct. 1205-07 Cir. 547 F.3d verdict, requiring coercive) (collect either 2008) (court’s to return a conduct was actions, 380 U.S. explicitly, cases), Jenkins v. United e.g., ing DeW and in habeas 1059, 445, 446, Runnels, 995, 13 L.Ed.2d 957 85 S.Ct. 1007-08 eaver v. 556 F.3d (1965) curiam), coercive), implicitly, (state (per Cir.) United court's conduct was not Co., 183, denied, - U.S. -, Gypsum v. 438 U.S. States U.S. 130 S.Ct. cert. Hill, (2009); 57 L.Ed.2d 854 v. 291 F.3d 98 S.Ct. Packer L.Ed.2d 569, Thus, (9th Cir.) (state a court’s conduct although we have held that court’s 578-81 Packer, coercive), Early permissible, v. mildly conduct rev’dsub nom. coercive was Madrid, see United States curiam); cases), (2002) Thompson, (9th Cir.1988) (collecting (per Weaver the Su- (9th Cir.1999) (state F.3d 365-66 preme law indicates that Court’s case coercive). with court’s conduct not to interfere courts must be careful nothing process heightened it more than a are making process, is present toward a final unani one. tool used to move cases such as See Low- Juries, 238-39, mous conclusion. See Deadlocked enfield, 484 U.S. (describing preliminary at 130 how

supra, non-finality 546. Coercion and are there- votes contribute to “the most effective important fore even more cases jury’s decision-making pro use” of the non-capital than in cases.

cess). agree many with the courts We that a vote preliminary that have observed suggest The dissenters that even nothing survey more than a tentative is per polling requirement, without a se views, juror’s that “con the individual trial court its abused discretion under the tinuing might deliberations well have shak However, of this case. their inter facts previously en views on counts considered.” pretation necessity” far “manifest Nelson, 692 F.2d at 85.13 This concern different from the one described merely finality product about is not of Supreme They suggest Court. rigid proper adherence forms necessity” requires “manifest Rather, jury procedure. ais result of court to consider reasonable alternatives importance the fundamental declaring mistrial. See Thomas Dis final, reach a full collective decision after 909-10, However, sent at in their Lopez, deliberation the issues. See extensive collection of case law on this F.2d at 1341-42. Tentative individual point, they involving cite two cases jury expressed views the room are far deadlock, jury and each of those cases is verdict, different from true which must easily distinguishable.14 colleagues Our unanimous, final, and, be to en order rely largely generic on the mistrial stan accuracy, publicly sure its announced and Bates, dard announced United States v. Nelson, affirmed. See 692 F.2d at 84-85. (9th Cir.1991), 917 F.2d 395-96 while importance process of the deliberative overlooking deadlock-specific standard cannot be overstated. Id. discussed in a number of our other cases:

In light poten- of these concerns about by “the factors to be considered judicial finality tial coercion and the lack jury’s opinion of include the collective that it conclusions, jury’s preliminary in a agree, cannot the length of the trial and wholly issues, would inappropriate complexity to create a length of the per requirement deliberated, se judges jury must in- time the has quire into possibility jury that a has timely objec defendant has made a mistrial, reached a regarding conclusion a defen- tion to the and the effects of eligibility penalty. dant’s for the death jury.” Rog exhaustion or coercion on the Concerns about the integrity jury of the ers v. United 609 F.2d Instead, proposition 13. This basic has been articulated decision.” both the trial court on numerous our occasions sister circuits. appeals analysis the court of focused their See, Heriot, 608; e.g., 496 F.3d at United juror jury the fact that one had a Bible in the Benedict, (8th v. States 95 F.3d Cir. room. Id. 1996); Wheeler, United States v. 802 F.2d Razmilovic, In United States 507 F.3d Chinchic, 1986); Cir. 655 F.2d at (2d Cir.2007), 139-40 the trial re- 550. entirely jury’s stating lied on the note that it deadlocked, jury was and did jury 14. The not ask the was deadlocked in United States Lara-Ramirez, (1st Cir.2008), foreperson to confirm the statement on the F.3d deliberating, reported but trial court "did not treat the note or to continue both of important deadlock as an factor in its mistrial which the trial court did in Harrison’s case. (9th Cir.1979).15 jury conclusively rejected had properly This standard has Supreme Notably, jurors Court recognizes none of the consider trial courts to required never objected foreperson agreed when discharging a alternatives” to “reasonable was “unable to reach a verdict” Renico, jury. In deadlocked genuinely impasse.” and was “at an explained that Supreme Court point during At no the proceeding did Moore, Fulton v. Sixth Circuit’s any jurors suggest (6th Cir.2008), standard —which conclusively finally determined after nearly four-part identical to the Bates full deliberation that upon dissenting relied our col- test applied could not be to Harrison. The analysis, requires leagues, and like their trial court was concerned both that a to consider “reasonable alter- trial courts poll compromise” “could have been a vote natives” to mistrial —is not an accurate fully jurors’ that did not reflect the consid- prior articulation of the Court’s deliberations, ered and that “the case took Renico, holdings. 1866-67. longer any a lot than ... of us anticipated” Instead, required has “never the Court jurors and some of the appeared “frustrat- any ... to consider ... means ed” returning day about for the final impasse.” breaking Id. words, deliberations. other impasse, An is an and as we have impasse properly court was concerned that in- “al- explained supra, conceivable quiry jury’s into the deliberations would present ternatives” a serious risk of implicate the central eliciting non-final votes. concerns articulated coercing possibility coercing here: the case, In Harrison’s there is no clear verdict, reach a and the possibility of indication the record that the was treating a preliminary vote as a final genuinely deadlocked over the sentenc- conclusive determination. The trial court Instead, ing relatively this is a verdict. evidently was aware of the relevant legal straightforward case which the concerns that an inquiry and concluded expressly deadlocked and informed jury’s preliminary into the determinations judge that it was unable to reach a verdict. unnecessary given was the circumstances. judge jury asked whether accordingly The trial court exercised its verdict,” reach a fore- “unable to and the rejecting “sound discretion” in Harrison’s “[y]es.” person judge said also asked to request inquire possi- further about the jury impossible “the at an [wa]s rejected bility jury pen- that the the death impasse punishment in terms of a this alty. case,” foreperson and the answered that it impasse.” Although jury

was “at an pair suggesting had sent a of notes that it CONCLUSION pos- was deadlocked between life with the hold that capital We defendants sibility parole possi- and life without the not a per right do have se constitutional bility parole, this indication alone is not inquire possibility penalty- about the that a a sufficient basis for us to conclude that phase jury preliminary trial its not has reached deci court abused discretion inquiring possibility against imposing penalty. further into the sion the death Banks, 1345, (9th Cir.1980); Arnold 15. See also United States v. 514 F.3d 1348-49 1377, (9th Cir.2008); (9th McCarthy, United States v. Her- 566 F.2d Cir. nandez-Guardado, See, (9th 1978); United States 228 F.3d 505 F.2d Cir.2000); 1974). Cawley, United States v. 851-52 Cir. mandatory right judge they informed the trial were We conclude that such parole life with an risk that the deadlocked between unacceptable would lead to parole. life without The trial ac- jury would coerce the trial court’s conduct knowledged “was not discuss- might reaching compromise into However, ing penalty.” the death rather reach, encourage otherwise jury poll requested by than conduct the jury room vote as a preliminary treat a defense counsel to ascertain whether the In reaching decisive final verdict. this reached, reach, jury had or could a verdict conclusion, princi- two we reaffirm basic penalty, on the death sum- First, jury’s a final ples. verdict marily declared the trial over and dis- collective decision that is reached after full charged jury. deliberation, consideration, compro- Second, among jurors. mise the individual certainty We will never know with what deadlocked, jurors when are we defer to would have if answered asked. the trial courts’ exercise of “sound discre- But we do know this: Harrison’s chance of is in fact determining tion” likely acquittal penalty on the death left genuinely and deadlocked. hopelessly jurors. courthouse with light principles, of these two we further Jeopardy protects The Double Clause judges conclude are entrusted right the “valued of a defendant to have deciding with “sound discretion” when completed by particular his trial tribu- inquire possibility whether to about the judgment nal to sit in him.” summoned partial that a has reached a decision. Downum v. United Applying these conclusions to Harrison’s (1963) hold that trial court appeal, we did not added). (emphasis way, Put another by refusing abuse its discretion to poll the right have a “[c]riminal defendants clearly where the were dead- impaneled try first them reach locked, appeared lengthy frustrated after Bates, a verdict.” United States v. proceedings, may have been inclined to (9th Cir.1991). Thus, F.2d a de- a preliminary compromise treat as a final fendant not be tried on the same issue verdict, and never indicated that again if a mistrial is declared his finding acquitting reached a final necessity.” consent and without “manifest We also hold that in (9 Wheat.) Perez, 22 United States v. phase the retrial of the the Double 579, 580, 6 L.Ed. Jeopardy preclude Clause does not need, There was no much less manifest including penalty State from the death as a necessity, for in discharging this sentencing option. conducting requested jury case without denying The district court’s order Harri- poll that ques- would have answered the son’s is petition accordingly jurors tion of whether the had reached a

AFFIRMED. penalty verdict. The trial vio- right “particu- lated Harrison’s to have the THOMAS, Judge, Circuit with whom complete lar tribunal give consideration to REINHARDT, .FLETCHER, FISHER, Sammaripa, his case.” v. United States BERZON, Judges, join, and Circuit (9th Cir.1995). 433, 55 F.3d 434 dissenting: likely a deprived acquittal, of and the indications, By all in him Jeopardy prevents James Double Clause being subject Harrison’s trial had decided to ac- him quit penalty. They again. of the death

907 Accordingly, trial courts must use cau- I deciding grant in not tion whether or consistently Court has Supreme “[T]he sponte. mistrial sua As Justice Stevens major purpose of the double recognized noted, has Court has protection as the of de- jeopardy clause power repeatedly reaffirmed right to have his fendant’s ‘valued ” discharge prior to verdict particular tribunal.’ completed “extraordinary should be reserved for Crist, 1336, 1345 n. 21 v. Bretz circumstances,” Downum[, striking and Cir.1976) Hunter, v. (quoting Wade (internal 736, at 83 1033] 372 U.S. S.Ct. 684, 834, 689, L.Ed. 69 S.Ct. 93 336 U.S. omitted); marks that the trial quotation (1949)) cases), aff'd, (collecting 437 974 judge may “weighty” step, not take this 2156, 28, 24 57 L.Ed.2d 98 S.Ct. U.S. Somerville, 458, 471, 410 U.S. [Illinois deep which has “roots right, This (1973) 1066, ], 35 L.Ed.2d 425 93 S.Ct. by jury of trial development in the historic until “scrupulously]” unless and he has criminal Anglo-American system assessed the situation and care “take[n] Bretz, 36, 437 U.S. 98 justice,” Crist v. “ to assure himself that warrants ac [it] (1978), is ‘val- S.Ct. 57 L.Ed.2d part foreclosing tion on his the defen ... ... the defendant has a ued because potentially judg dant from a favorable significant interest the decision whether tribunal,” [Jorn, ment 400 U.S. at not to take the case from the when or 547]; that, 91 S.Ct. to exercise might circumstances occur which be discretion, judge may sound not act to warrant a declaration of mistri- thought ” “irrationally,” “irresponsibly,” “pre Washington, al.’ Arizona cipitately” must instead act but “deliber n. 54 L.Ed.2d 717 ately” “careful[ly],” Washington, (1978) Jorn, (quoting States v. United 514-15, 824]; U.S.[ U.S. S.Ct. that, in view of “the elusive nature of the (1971) (plurality opinion)). As the Court problem,” are no mechanical rules sub explained: jeopardy mistrial stitute the double why right” reasons this “valued application context for sensitive protection merits constitutional are wor- standards, Jorn, general U.S.[ thy Even if the first trial repetition. 485, 91 547]. S.Ct. completed, prosecution a second is — Lett, -, Renico v. may unfair. It grossly increases (2010) (Ste- 1855, 1869, 176 L.Ed.2d 678 financial and emotional burden on the vens, J., accused, dissenting). prolongs period which he by an stigmatized unresolved accusa- course, circumstances, under certain Of wrongdoing, may tion of even en- right the defendant’s to have his case com- an hance the risk that innocent defen- pleted particular tribunal must before danger dant be convicted. public’s “be subordinated interest to the defendant exists such unfairness designed just judg- fair trials to end in a it whenever trial is aborted before Wade, 689, at 69 ments.” 336 U.S. S.Ct. completed. Consequently, general as a Hence, we have the “manifest neces- rule, one, prosecutor is entitled to sity” rule. The rule is not one of recent one, require an opportunity Indeed, judicial invention. the “classic for- accused to stand trial. test,” mulation of the “has been which (footnotes 503-05, quoted again provide over and over Id. at 98 S.Ct. 824 omit- ted). variety a wide guidance in the decision of 908 judicial cases,” scrupulous at exercise of discretion Washington, Story’s opin- the ends of comes from Justice leads to the conclusion

S.Ct. justice ion in Perez: public would not be served Jorn, proceedings.” of the continuation justice law has invested Courts [T]he It 400 U.S. at 91 S.Ct. 547. entails authority discharge with the verdict, whenever, “heavy” burden before a mistrial can be any in giving sponte. Washington, declared sua. opinion, taking all the circum- their consideration, there is a at 98 S.Ct. 824. stances into U.S. act, necessity for the or the manifest jury’s inability “a expect, As one would justice public ends of would otherwise to reach a decision is the kind of ‘manifest They are to a sound defeated. exercise necessity’ permits the declaration of a subject; and it is im- discretion on the — Yeager mistrial.” United circumstances, all possible to define -, 2360, 2366, 174 U.S. 129 S.Ct. it inter- proper would render which (2009) (citing Washington, 434 L.Ed.2d 78 sure, power ought fere. To be to be Perez, 505-06, 824; at U.S. S.Ct. caution, greatest with the under used 580). (9 Wheat.) at In such circum- U.S. circumstances, urgent very plain and for stances, rightly great we afford deference causes; and, in and obvious cases decision, to the court’s but its discre- extremely should be especially, Courts respect tion in this is not unfettered: as careful how interfere with observed, Supreme recently Court has life, pris- the chances of in favour of the judge’s Perez itself noted that the exer- But, all, they right oner. after have the “sound,” cise of discretion must be [22 security discharge; to order the and the (9 Wheat.) 580], at and we have U.S. faithful, public

which the have for made clear that the record reveals “[i]f sound, and conscientious exercise of this that the trial has failed to exercise discretion, rests, this, as other him, ‘sound discretion’ entrusted to cases, upon responsibility of the reason for an such deference Judges, under their oaths of office. Washing- appellate disappears.” (9 Wheat.) at 580. U.S. 824], ton, at 510 n. [434 U.S. “The rule announced the Perez case , — , U.S. 130 S.Ct. at 1863. Renico — has been the basis for all later decisions of jeopardy.” on double [the Court] In synthesizing Supreme jurispru- Court Wade, 834; 336 U.S. at ac dence, applied we four factors de- — Renico, at -, cord. termining whether trial court has exer- Accordingly, it 1862-64. is well-settled properly finding cised its discretion attaches, jeopardy the court’s “[a]fter necessity” granting “manifest a mistri- ... declaration of a mistrial does not bar “(1) namely, al: has heard the retrial where the mistrial was declared opinions parties of the the propriety about ” necessity.’ because of ‘manifest Sam (2) mistrial, considered the alterna- maripa, (quoting 55 F.3d at 434 Thomas v. tives to mistrial and chosen the” course J.D., Municipal Antelope Valley Court of of action “least harmful to a defendant’s (9th Cir.1989)). (3) rights, deliberately acted instead of (4) abruptly, properly Perez doctrine of manifest neces- determined that “[T]he sity judges stands as a command to trial the defendant would benefit from the dec- Bates, right not to foreclose the defendant’s” to a laration of mistrial.” 917 F.2d at particular decision tribunal “until a 396.

909 factor, ing As to the first Bates we have held Rivera, mistrial. In United States v. (3d Cir.2004), necessity requirement the manifest 384 F.3d 49 the Third Cir- cuit held that the Jeopardy was not met when the trial court Double “allowed Clause barred reprosecution opportunity argument no the district from either because “giv[e] did not due consideration to side on the need for a mistrial.” United reasonably available Sanders, alternatives 1293, (9th States v. 591 F.2d 1298 drastic measure of a Cir.1979). Jom, mistrial.” Id. at 56 Similarly, in Supreme (“Critically, a mistrial must not be de- Court held the trial court abused its prudent clared without consideration of in discharging discretion alternatives.”); reasonable see also Love v. 487, hearing from counsel. 400 91 Morton, (3d 131, Cir.1997) 112 F.3d 137 S.Ct. (“To demonstrate manifest necessity, the key The second consideration assess- state must show that under the circum- ing necessity” the “manifest declaring judge stances the trial ‘had no alternative mistrial sponte sua is whether the trial to the declaration of a ... mistrial.’ judge adequately considered alternatives. judge must consider and exhaust all emphasized Court the im- (citation omitted) possibilities.” other Jom, portance noting of this factor in (quoting McKoy, United States v. 591 F.2d judge had not considered alterna- (3d 218, Cir.1979))). 222 As the Third tives and “made no effort to exercise a “[wjhere Rivera, Circuit concluded in that, sound discretion to taking assure all District Court sua sponte declares a mis- account, the circumstances into there was haste, trial in without carefully considering necessity a manifest for the sponte sua it, alternatives available to it cannot be declaration of this mistrial.” 400 U.S. at said to acting under a manifest necessi- 487, 91 S.Ct. 547. ty.” First, Second, 384 F.3d at 56. The emphasized Fourth, Fifth, Our sister circuits have also Sixth, Seventh, Eighth, necessity” Tenth, that no “manifest exists where and Eleventh circuits have reached there are reasonable alternatives to declar- a similar conclusion.1 Our own circuit’s Lara-Ramirez, 1999) (in 1. See United States v. concluding 519 F.3d Cir. the Double 76, (1st Cir.2008) (" 88 'Where there is a Jeopardy reprosecution, Clause barred find- viable alternative to a mistrial and the district ing “significant that the trial court it, adequately explore finding court fails alternatives, failed to consider less drastic but ") necessity (quot manifest cannot stand.’ immediately instead decided that a mistrial ing 33, Toribio-Lugo, United States v. 376 F.3d appropriate”); Lovinger v. Circuit Court (1st Cir.2004)); 39 United States v. Razmi Circuit, Ill., County, the 19th Judicial Lake lovic, 130, (2d Cir.2007) 507 F.3d 138-39 739, (7th Cir.1988) ("Whether 845 F.2d 746 141, (citing Dunkerley Hogan, v. 579 F.2d options or not short of mistrial were feasible Cir.1978), (2d denied, rt. ce ..., preferable the court did not consider (1979)); United them and proper thus did not afford solici- (4th Shafer, v. States 987 F.2d tude for right [the valued defendant’s] to con- Cir.1993) (“In order to determine if the mis- trial.”); tinue with the Moussa Gouleed v. required by necessity, trial was manifest (8th Cir.2009) Wengler, 589 F.3d inquiry critical is whether less drastic alterna- ("In determining justi- whether a mistrial is available.”); tives were United States Fish- necessity, fied manifest particularly we are er, (5th Cir.2010) ("mani- 624 F.3d concerned with whether less drastic alterna- necessity” only justifies fest sponte the sua (citations tives were available.” and internal declaring govern- of a mistrial where "the omitted)); Edmondson, quotations Walck v. ment ... show[s] district court care- (10th Cir.2007) ("Be- 472 F.3d fully considered whether reasonable alterna- none”); cause the trial tives existed and that the court found did not consider ... Karnes, alternatives, Johnson necessity viable manifest did not 910 discretion; an erroneous declara- not more of sound on matter could be the

precedent (“A Bates, the de- F.2d at 396 trial tion that the mistrial would assist 917 clear. See reversal, correctly might evalu- and fendant warrant as court should consider mistrial.”). to a ate the alternatives that assists mistrial declaration F.2d at government. 917 388. the trial third factor is The deliberately abruptly. or court acted necessity re- The manifest doctrine also that a trial court has held Supreme Court in quires, addition consideration granting in mistrial its discretion abuses factors, that the trial traditional Bates Washington, precipitately. it acts when judge particular ap- care when it exercise 514-15, S.Ct. 824. at 98 434 U.S. proceedings might result pears that Jorn, that the Double the Court held Indeed, acquittal. Jeopardy an Double precluded retrial when Jeopardy Clause judge “prevents prosecutor Clause judge’s abrupt declaration of the trial to a second subjecting defendant with no provided the defendant mistrial trial when prosecution by discontinuing the discharge object opportunity appears might not convict.” 400 at 91 547. jury. U.S. S.Ct. States, 184, 188, Green v. United 355 U.S. Bates, noted in trial court’s “[a] As we 221, 2 L.Ed.2d It is 78 S.Ct. suggests a mistrial abrupt declaration of improper for a court to a mistrial declare it failed to sound discretion.” that exercise state, grant and “with all resources its 396; Lovinger, 917 F.2d see also power,” and id. at “an- precipitate ac (“abrupt F.2d at 746 other, to con- opportunity more favorable ... is inconsistent with exercise tion accused,” vict the Gori v. United under the ‘manifest of sound discretion L.Ed.2d test”). hand, necessity’ On the other evi 901.(1961). of deliberation the trial court dence necessity manifest Finally, the doctrine it exercised sound discre indicates requires greater care be exercised 434 U.S. at Washington, tion. See It “in cases. commands that (praising for capital especially, cases should be Courts acting “responsibly deliberately” extremely careful how interfere with “according] consideration to careful life, any of chances of in favour of the having interest [the defendant’s] (9 Wheat.) Perez, 22 prisoner.” single proceeding”); concluded in a trial Elliot, States v. 463 F.3d United Cir.2006) (9th (“Rather hastily than de II mistrial, claring a the district court made principles When we these to this apply every effort the conflict and resolve case, readily that no apparent it is trial.”). continue necessity justified manifest fourth is whether factor declaring permitting a mistrial without properly determined defendant jury poll requested. that Harrison would benefit from the declaration of mis- Bates, First, crystal absolutely, the record is trial. As we a well-found- noted jury might clear that the have determined ed determination that the mistrial would put indicates the should not to death. assist defendant exercise Quiala, mistrial.”); jects abrupt require a district court's declaration of United States v. Cir.1994) ("The lack of appellate scrutiny.”). to close mistrial to a consideration of alternatives mistrial sub- stating discussion an affidavit trial court commenced the submitted that it was The report: this not. with record, we had COURT: For the THE not, course, of do know with We assur- jurors from two indi- (2003). foreperson in reported open court fact, had, jury completed in two verdict the trial court declared a mistrial When forms. as re- polling the Harrison

without Second, trial not consider right of the court did deprived it his quested, fact, any judge In the never Clause to have alternatives. Jeopardy under the Double request expressly denied defense counsel’s completed by the tribunal sum- his case she jury poll In for viable alternative judgment to sit in him. moned —a so, rejected she declared a the the out-of-hand when doing prevented court ig- jury. dismissed the She legal effect to whatever con- mistrial and giving well. reached,3 nored other viable alternatives as likely acquit- it had clusions have the penalty. By judge The could asked ting Harrison of the death imposi- the again jeopardy being him of whether it was deadlocked on put putting death, judge tion of The could permitted the the state court “another, given equiva- opportunity charge4 more have an Allen or its favorable However, accused,” that, opportunity an lent Nevada state law.5 convict under necessity, judge possibili- neither considered the but for manifest Double Gori, ty nor counsel as views of asked to their Jeopardy Clause forbids. jury with instruc- providing additional if parties tions. did not ask the She particular care required Given the saw alternatives to a mistrial. In when making appears mistrial decisions it short, judge meaningfully did not and, more, jury might that a convict not action, courses of much less consider other cases, what was the manifest neces- “least harm- determine which the one A sity here? careful review of the record Bates, rights.” ful to [Harrison’s] can light of the factors lead Bates F.2d at 396. absolutely to one conclusion: there was no reason, Third, much trial compelling enough judge less one demonstrated high none necessity” to meet the “manifest stan- of the deliberation that courts dard, discharging poll- approved as indicia of exercise of without sound Rather, accepted ing requested. as Harrison discretion. foreperson’s representation of deadlock First, not the trial court did ask the discharged without promptly declaring about the of parties propriety entire exchange further ado. The with the judge mistrial. record shows occupies foreperson discharge and the note, de- informed counsel about single less transcript page. than jury, poll fense counsel asked for a Fourth, government opposed poll. and the made no determi- Critically, declaring not nation a mistrial judge did invite or en- completed Jeopardy ha[s] 3. The Double Clause "should be un- its solemn task of announc- Crist, safeguard simply derstood to the individu- ing a 437 U.S. at verdict.” vexation, avoiding al defendant's interest (1978). integrity petit jury’s the initial but also Amar, judgment.” Akhil Reed The Bill of 4. See v. United Allen Constitution, Rights as a 100 Yale L.J. (1896). 41 L.Ed. 528 Indeed, (1991). through there runs "the Anglo-American justice system of criminal State, 5. See Wilkins v. 96 Nev. 373-74 n. strong ... a that once banded to- tradition 609 P.2d 309 gether discharged should not be until it fact, completed defendant. In as the trial was not demonstrates benefit the would discussed, severely not the prejudiced right, the mistrial the violation vindica- tion of it. rights. Harrison’s sum, fac- consideration the Bates government argues criminal compels the conclusion that there was

tors are not to a per defendants entitled se rule necessity” for the no “manifest so, requiring jury Perhaps polling. but conducting a mistrial declare question is irrelevant to the issue of in poll requested. Especially Harrison necessity. Supreme The manifest Court a case of the stakes —this is light emphasized, again, has time and that the likely acquitted Harrison where necessity determination of manifest must the death conclusion is penalty of —the basis, case-by-case be on a done a fact- Jeopardy pre- clear: the Double Clause specific necessity context. The manifest the defendant to the subjecting vents in considering test courts “command[s] death on retrial. As the a trial whether should be terminated with- Washington, judge observed in if a Court judgment out to ‘all take circumstances “discharges when further deliber- thereby into account’ and forbid[s] the me- verdict, a fair de- produce ations application chanical of an abstract formu- right of his deprived fendant is valued Wade, 691, la.” U.S. at S.Ct. 834. completed by particular have his trial a The standard cannot tribunal.” 434 U.S. 98 S.Ct. 824 ... applied without attention to the omitted). jury in (quotation marks The particular problem confronting the trial discharged case was like- this when was Indeed, judge. it is manifest that the agreement, that it ly had reached or could key “necessity” word cannot be inter- on agreement, impose reach whether to instead, preted literally; contrary to the The Constitution for- teaching Webster, of we assume that being placed jeopar- bids Harrison from degrees there are necessity of and we of death a time. dy second require “high a degree” before conclud- Ill a ing that mistrial appropriate. is Rather than defend the manifest neces- 824; Washington, 434 sity of declaring polling a mistrial without Somerville, see also 410 U.S. at jury, government 'urges affirmance (the “abjures applica S.Ct. 1066 test of by slaying pro- straw men and stand tion mechanical formula which to ducing parade of horribles. propriety declaring mistrial government The ardently argues that varying unique and often situations acquittal there was no actual this arising during case of a course criminal pro- trial”); Jorn, and therefore that Double Jeopardy 400 U.S. at 91 S.Ct. 547 rules”). tections do not Of apply. (eschewing course Harrison “mechanical As we “[cjourts Bates, But acquitted. prohibition steadfastly “[t]he said contin being not against punished, twice but ue to refuse to fact categorize patterns put in against being jeopardy.” twice Ball necessity constitute manifest and fact United patterns do not.” F.2d at right 41 L.Ed. 300 per The of a rule on poll absence se right at issue here is Harrison’s ing case-specific is not relevant to the ap completed by impaneled plication necessity manifest doc sit in judgment him. The fact that trine. stan- actions satisfied none of the granting worries that court’s government important held in find- juror dards we have in this will create a rule relief case likely necessity. manifest When it was juror ing has law of coercion coercion. The acquitted would be long time. The doctrine defendant settled for a been penalty, sua longer the death necessity is of even of manifest proper comfortably sponte declared mistrial —without lineage. The have lived two deliberation, and without juris- consultation of American together for centuries conducting jury poll request- Harrison lines judges Trial walk difficult prudence. asking ed or even day. rights every competing between pen- regarding were deadlocked cir- that, these Holding particular under alty. The trial court’s decision to dis- cumstances, judge discharged a trial of his charge jury deprived necessity not alter would without manifest to be right impaneled tried juror at all. law of coercion settled judgment in on him. violation of sit The trial government contends right precludes government the from that judge permitted was not under Nevada for time a seeking impose a second to However, jury. none of the poll law to the penalty of death. provisions have statutory cited would reasons, my these I disagree For with a re- posed granting barrier to Harrison’s majority in respect- friends the must statute, quest. The first Nev.Rev.Stat. fully dissent. 50.065,prohibits inquiry juror’s § the as to nothing There processes.

mental remotely posed that request Harrison’s REINHARDT, Judge, Circuit with statute, danger. The second Nev. Thomas, Judge, joins, whom Circuit 175.581, § requires jury Rev.Stat. dissenting: request party of a after polled dissent, join Judge I Thomas’s which jury a It returns verdict. does ably judge’s so demonstrates that the trial the circumstance at bar. address hasty decision to dismiss violated 175.556(1), statute, § third Nev.Rev.Stat. every regarding tenet of the law “manifest impasse a an provides that when is at mistrial, necessity” for a the declaration of case, judge option in a has right and thus Harrison’s to be free from imposing a life sentence without jeopardy. I write separately double or a new possibility parole impaneling emphasize that the trial court’s declaration jury. nothing provision There is of a mistrial when there was no manifest meas- prohibits judge taking a from necessity to so was on a funda- do based had ures ascertain whether misunderstanding mental function of regarding penal- made a decision capital sentencing By her proceeding. ty. nothing There law that Nevada actions, judge precluded the trial from prohibited would that, obtaining from confirmation as seems granting request poll, Harrison’s for a or for likely, ineligible had found him asking impasse an whether the was at death, Jeopardy and that the Double imposition as to the death him being thus sen- Clause barred any subsequent None of these address the tenced to death in sentenc- diversions case, Mis- key ing proceedings. Bullington issue this whether there was See souri, 430, 446, 68 necessity manifest for 451 U.S. (1981).1 sponte. The trial discharge sua L.Ed.2d response dissenting opinions, to the of a mistrial without attempt to deter- mine whether majority acknowledges at, the rele arrived or at, could arrive verdict regarding the vant test for court’s dec critical issue that it was convened to an- laration of mistrial violates the Double swer fails to satisfy the “manifest necessi- Jeopardy protections Clause’s is whether test, ty” and thus violates the Double necessity” there was “manifest to declare Jeopardy Somerville, Clause. See See, Jorn, e.g., a mistrial. United States v. 93 S.Ct. 1066.2 470, 481, 400 U.S. 27 L.Ed.2d The fundamental why, reason unlike (1971); Chapman, United States v. offenses, run-of-the-mill capital crimes Cir.2008). F.3d Whether generally provide separate sentencing necessity” “manifest for a mistrial exists is not, proceedings is majority asserts, as the inquiry an that depends upon “the varying to arrive at sentence, some sort of such as unique and often arising during situations parole life with or life parole the course of a criminal trial.” Illinois even a punishment, lesser after it arrives Somerville, at its answer as to eligibility.3 Maj. Here, Op. Rather, at 900. separate capital sen- “unique facing situation” the trial judge tencing proceedings were implemented by was a sentencing hearing the central pur states in the late specific 1970s for the pose of which was to determine whether purpose complying of with the Supreme eligible capital Harrison was for a sen Court’s mandate that “where discretion is tence. See Nev.Rev.Stat. 175.554. The afforded a sentencing body on a matter so trial judge nonetheless dismissed the jury grave as the determination of whether a making any effort to determine human life should spared, be taken or that whether it had at a arrived unanimous discretion must be suitably directed and question conclusion on this or whether it limited so as to minimize wholly the risk of would be able to given do so more of an arbitrary capricious and Gregg action.” v. opportunity to deliberate. Under the Georgia, 2909, 428 U.S. 96 S.Ct. unique presented by circumstances a capi (1976) 49 (joint L.Ed.2d 859 opinion of tal sentencing proceeding, Stewart, Powell, Stevens, declaration JJ.); see 101, court, Pennsylvania, In 537 U.S. necessity Sattazahn trial there awas manifest 732, (2003), Somerville, for the declaration of a mistrial. Supreme 462, "acquittal” Court held that an of the 410 U.S. at 93 S.Ct. 1066. We have an death sentence can obligation occur when a question, to answer that "accord- unanimously prosecution ing finds that the failed understanding to our best of the individu- prove statutory eligi- involved,” criteria for death al rights constitutional ... Witt v. bility, Force, but does not Dep’t occur when a sentence Air 823 of imposed Cir.2008) J., other than death is (Canby, without such a concurring part 112-13, finding. See id. at dissenting part), 123 S.Ct. 732. rather than to look to precise question whether this previ- has been ously Supreme addressed Court. majority implies 2. To the extent that the in order to conclude that there nowas mani- necessity fest given to dismiss a under a majority 3. cites Nev.Rev.Stat. 200.030(4) Supreme set of § circumstances there must be a authority proposition. as for this previously Court provision case that has simply reached the That pun- states the various conclusion, 904-05, Maj. Op. same see first-degree con- ishments available in Nevada for rule, fuses the apply says AEDPA which does not nothing regard- murder and whatsoever case, applicable in this ing with the rule: separate penalty hearing wheth- the use of a er, light "unique capital of the situation[]” before cases. 916 State, Coherence, Contradiction, Hollaway v. penalty.” the death Sigler,

Mary (2000) (quot 6 P.3d 996 Nev. Supreme in the Discretion and Guided Creech, ing Arave v. Sentencing Jurisprudence, Capital Court’s (em (1993)) 1534, 123 L.Ed.2d 188 S. Ct. 1151, 1152 Am.Crim. L.Rev. added). phasis fact, is, of historical as a matter That insti- were penalty proceedings separate case, trial denied twice this pur- the explicit capital cases tuted opportunity Harrison the to learn objective apply having fact-finders pose acquitted penal- of the death he had been decisions, en- eligibility to death criteria ty: motion for first she denied Harrison’s in its “unique suring punishment in which penalty proceeding a bifurcated irrevocability” be severity and in its to his have been rendered as verdict would Florida, arbitrarily applied. Spaziano any eligibility prior determination 7,n. sentence;6 then she as to ultimate his (1984).4 form of life Which L.Ed.2d request be denied Harrison’s to be sentence is imprisonment or lesser polled eligibility prior his death regarding eligible defendants imposed non-death necessity discharging it without “acquitted” been who have majority that not- therefor. The contends an incidental ancil- is most withstanding Harrison’s Fifth Amendment lary purpose proceeding, which such right Jeopardy, free of Double be by allowing the easily as be done could trial simply to made in the decisions are judge to make that decision.5 discretion, if, court’s in the exercise has affirmed that Nevada Court discretion, judge deprived sentencing true what is schemes any opportunity to learn Harrison of use of generally is true of Nevada’s him found whether or not sentencing capital hearing, ex- separate be ineligible penalty, for the death then so adopted separate that the state plaining disregard it. view would seem to This sentencing proceedings capital cases for totally rule that the trial the constitutional discharge nar- specific purpose “genuinely judge may jury the of not the unless necessity doing there manifest for so. persons eligible the is a rowing] class for Arizona, opinion majority emphasized prior 6. the Ring 4. also its See (2002) that failed to move for such bifurca- Harrison ("States have sentenc- constructed elaborate tion, opportuni- arguing that had an Harrison cases, ing procedures em- in death Arizona ty separate regarding a to obtain verdict phasizes, of constraints we have said because it, eligibility was there- but waived Eighth places capital sen- the Amendment poll jury subject fore to on the not entitled tencing.”). during proceedings. any future time brought Now Harrison has to the court’s that Indeed, law, jury under Nevada where fact that he did move for bifur- attention the upon capital fails to decide a sentence in a cation, case, majority simply mention of judge omits may, a rather than a new convene jury, simply non-capital analysis underlying enter a sentence its subject and leaves parole. § without Nev.Rev.Stat. life 175.556. entirely completely unchanged, of the case jury’s required verdict is not for That the fact that the trial unbothered parole capital sentence life without in a consistently opportunity denied Harrison the any pri- doubt that case should remove jury deemed to whether or not the learn mary capital sentencing proceed- concern of ineligible him and whether for execution not, majority sug- ings in as the Nevada is being Fifth thus bars him from Amendment simply jury gests, allow a to arrive at to proceedings. death in future sentenced to sentence, final even if it be life with or with- parole. out to the trial majority appears judge suggest believe when “was —that deadlocked, judge simply every denies effort a to reach a unable verdict” regarding question defendant makes to learn whether the the central ineligible found him to for the death sentencing proceeding be was intend- satisfied to ed penalty, hope he should be to address: Harrison whether was “eli- him ineligible gible a second will find for the death penalty.” Hollaway, 6 penalty, Indeed, as this case Harri- P.3d at 996. there is abundant son’s to appears first have done. The evidence suggesting was not to not right placed constitutional be twice deadlocked on question, and that it had, fact, in jeopardy appar- of the death decided was not ently eligible now to those available defen- for a death Simply sentence. be- dants fortune to good assigned with be cause the could not come to a decision to judges who are inclined enforce it. whether Harrison should be sentenced to life with or without or parole, even wheth- Clearly it cannot be the case that the er impose sentence, to some lesser does important enforcement of an such constitu- not mean that there awas manifest neces- right entirely tional hinges on a trial sity for the trial dismiss the jury Rather, judge’s discretionary rulings. giv- without inquiring it whether had decided separate capital en that penalty proceed- that Harrison was death eligible not ings express are purpose held for the providing it the opportunity reach that determining whether defendant is eli- verdict and inform that it had gible for capital punishment objec- under Quite done so.7 the opposite. tive criteria prescribed legislature, Hollaway, see P.3d there is never In holding that a capital sentencing jury necessity manifest declare a discharged mistrial without even a minimal inquiring, pursuant first inquiry to the as to had arrived at a request, was, defendant’s whether the jury unanimous as to conclusion the defen- be, or would able to arrive at a unanimous dant’s death eligibility, majority fails conclusion regarding respect defendant’s what Court de- death-eligibility. majority declares clared over a generation ago: that “the that the trial judge qualitative determined “that fur- of death difference from all ther help deliberations punishments would other requires correspond- verdict,” 892; at a Maj. Op. arrive at ingly greater degree scrutiny of the deadlocked, capital “was and sentencing unable to determination.” Cali- verdict,” 892; reach a Maj. Op. Ramos, 992, 998-99, and that v. 463 U.S. fornia (1983). “was deadlocked over Harrison’s L.Ed.2d It sentence,” Maj. Op. 893. But ignores there is also what the Court declared al- absolutely no for believing-nor basis years did most 200 it ago when established the law, majority 7. The judge declaring states under Nevada barred the trial from mistri- only jury any “the signifi- determining determination of al without first whether the cance—and the one that sufficiently was regarding eligibility. deadlocked death final to constitute 'verdict' in ordinary respect The same is true with to the other jury’s regarding arguments sense—is the by majority decision which respect made with (em- impose.” Maj. Op. procedure, although sentence to at to state it is clear that removed). phasis highly nothing purports prevent This dubious and Nevada law assertion, conclusoiy even if it were inquiring correct trial as to whether law, simply as matter of state would be or could decided decide the ques- question irrelevant to the eligibility, accepting federal constitutional of death Jeopardy tion Double verdict on that Clause issue. necessity “in cases manifest test: extremely Courts should

especially, any with of the how interfere

careful life, prisoner.” in favour

chances (9 Wheat.) Perez, 22 v. States

United (1824)

579, 580, (emphasis 6 L.Ed. 165

added). of the trial court’s As result law re- long-established to follow

failure jeopardy double

garding well be put could

penalty, fact notwithstanding the

death in this case have jury impaneled

first concluded,

already might shortly it if asked whether had dead-

concluded issue, ineligi- over the that he

locked punishment of death. To reit-

ble for the

erate, dismissed the Harrison’s unquestionably no

jury when there was necessity to do so

manifest asking whether was dead-

ever relating to the question

locked It is difficult conceive

a more obvious or serious violation of the Jeopardy

Double Clause. See Downum

United I regret majority it. acknowledge refuses

I dissent. LIU, Petitioner,

YAN Jr., Attorney

Eric H. HOLDER

General, Respondent.

No. 08-72849. Appeals,

United States Court of

Ninth Circuit.

Argued Submitted March 2010. Feb.

Filed 3, 2011. May

Amended notes entered into the The court stated that the would be they aggravators look at the terms of the been reached this case is to are In Harrison’s at- response, verdict form.” mitigators. torney don’t acknowledged “we know The court then called the into the in the sense if a verdict has been reached engaged following courtroom special there were forms. verdict colloquy foreperson: with They had to on a make a determination THE The court has received COURT: special aggravators verdict form if the notes from two members of the proved beyond been a reasonable doubt. indicating is deadlocked they have in fact something That could and after deliberations is unable reached.” verdict. your reach a Is that assess- assertions, response parties’ to the ment the situation? stated: THE Yes. FOREPERSON: I think ... if [containing that form you THE Do feel COURT: that further jury’s findings aggravating fac- jury, deliberations could aid the or do signed by is blank tors] and it has been you feel is at an impossible foreperson, ... then that would indi- in terms impasse punishment of a in this they cate that did not find existence case? beyond aggravating of an circumstance THE I FOREPERSON: think at an it’s I reasonable doubt. And then think so impasse. the State would precluded seek- ing the death penalty subsequent in a THE jury completed COURT: Has the hearing. any of the verdict forms? The problem they ag- is ... if found THE FOREPERSON: Yes. mitigators, gravators found un- THE you please COURT: Would hand they actually til fill out one the two to my those forms bailiff. penalty, verdict forms indicating the we THE All FOREPERSON: of them or know analysis don’t what their weighing

Notes

notes different two jury ance what verdict the would cating jury that the was be- deadlocked eventually on the of question rendered sole [the life with and life without tween Harrison was to put whether to death. parole]. of possibility even know jury We do not whether the court “the The trial then observed that on question. was deadlocked that Howev- fact they’re pen- death considering not the that er, every single bit of record evidence they are in alty” did not “tell us where a high probability demonstrates the that the miti- aggravators of the terms and jury imposed not have would a death sen- noted, Thus, the court gators.” tence, question if the had been posed.2 to see the actual forms if important verdict Second, application given of Nevada had jury filled them out. capital sentencing facts, law to these back and The court then called the poll requested would have been jury foreperson matters asked where sufficient to determine whether foreperson The “I think replied: stood. him acquitted had of the penalty. death Then, an court in- impasse.” it’s at signing indicating In the verdict forms had quired any whether of the forms been one finding aggravating of and factor foreperson replied completed. factors, twenty-four mitigating forms had completed. some been made one of the two factual findings neces- foreperson instructed the to hand sary eligi- to establish Harrison’s statutory and, to the bailiff exam- the forms death bility for the See Nev.Rev. them, summarily discharged the ining 175.554(3). § Stat. Had the trial court The court did not counsel jury. ask poll conducted the Harrison requested they objected to the declaration of and, mistrial, prior declaring simply jury. discharge mistrial and the of asked the if it had determined wheth- The court did not invite or consider er mitigating outweighed factors alternatives. The court did not make a factor, know, aggravating we would ac- finding necessity required that manifest law, cording to Nevada whether the “ mistrial. ‘agree[d] ... unanimously prose- that the signed jury completed proved One cution its case’” that ha[d] indicated that had found to die. forms Harrison deserved Poland v. Ari- zona, 147, 152, aggravating factor. com- one The other 476 U.S. 106 S.Ct. (1986) signed pleted (quoting Bullington form indicated L.Ed.2d 123 Missouri, twenty-four mitigating had found fac- (1981)). regarding weighing The forms And tors. much, imposition poll and the established punishment factors results as Later, jurors “finding[ not filled out. were three would constitute sufficient ] indicating legal submitted affidavits establish entitlement to the life sen- penalty Pennsylvania, was “off the One tence.” table.” Sattazahn majority addition indicat- favored record evidence the outcome high probability ing Sundby, of an life sen- vote. Scott E. eventual first War verdict, Jury study Capital tence a recent concluded Peace in the Room: How Juries Unanimity, eighty-nine percent juries Hastings the studied reach LJ. cases, the eventual verdict was about after the argument 154 L.Ed.2d tertain a mistrial

Case Details

Case Name: Harrison v. Gillespie

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 15, 2011

Citation: 640 F.3d 888

Docket Number: 08-16602

Court Abbreviation: 9th Cir.