JAMES M. HARRISON, Petitioner-Appellant, v. DOUGLAS GILLESPIE, Respondent-Appellee.
No. 08-16602
D.C. No. 2:08-cv-00802-RCJ
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted September 23, 2010—San Francisco, California. Filed February 15, 2011. Amended May 10, 2011.
6147
Appeal from the United States District Court for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt, Sidney R. Thomas, Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, Marsha S. Berzon, Richard R. Clifton, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Thomas;
Dissent by Judge Reinhardt
COUNSEL
David M. Schieck, Clark County Special Public Defender, Las Vegas, Nevada; JoNell Thomas (argued) and Scott Bindrup, Deputy Special Public Defenders, Las Vegas, Nevada; Bret O. Whipple, Las Vegas, Nevada, for the petitioner-appellant.
Steven S. Owens (argued) and David Roger, Office of the Clark County District Attorney, Las Vegas, Nevada; Catherine Cortez Masto, Nevada Attorney General, Carson City, Nevada, for the respondent-appellee.
ORDER
Appellant‘s request for judicial notice of documents filed in the state trial court is granted.
Chief Judge Kozinski, and Judges Graber, McKeown, Wardlaw, Clifton, and M. Smith voted to deny Appellant‘s
The majority opinion, and the dissenting opinion by Judge Reinhardt, filed on February 15, 2011, are amended to appear as filed concurrently with this Order. Judge Thomas‘s dissent is unchanged from the original filed on February 15, 2011, and Chief Judge Kozinski‘s concurrence filed on the same date is withdrawn.
OPINION
M. SMITH, Circuit Judge:
Petitioner James Harrison was convicted of first-degree murder in the guilt phase of his trial, but the jury deadlocked over his sentence in the penalty phase of his case. Harrison requested that the jury be polled to ascertain whether the jury had ruled out the death penalty, and was deadlocked on a lesser sentence. The trial court denied Harrison‘s request and, after determining that further deliberations would not help the jury arrive at a verdict, discharged the jury. Harrison filed a petition for a writ of habeas corpus seeking to prevent the State of Nevada from seeking the death penalty in the pending retrial of penalty-phase proceedings.
Harrison contends that the trial court violated his constitutional right to be free from double jeopardy because the trial court failed to ask the jury if it had unanimously rejected the death penalty, and instead was deadlocked over a lesser sentence, before discharging the jury. We hold that under the facts of this case, the trial judge did not abuse her discretion, or subject Harrison to double jeopardy, by declining to poll the jury before discharging it because it was deadlocked, and unable to reach a verdict.
Harrison was convicted of first-degree murder on November 21, 2006. The State sought the death penalty during the penalty phase of the proceedings, but the jury eventually advised the trial judge that it was deadlocked over Harrison‘s sentence.
In mid-afternoon, November 27, 2006, the trial judge noted:
[W]e had two notes from two different jurors indicating that the jury was deadlocked between life with and life without.1 We went over those in chambers . . . . [T]hey indicated they were deadlocked . . . when they were last here. We brought them back today. They‘ve been deliberating all day. The Court‘s inclination is to bring them back and just question them as to whether or not it would be fruitful to continue in any deliberations. They have been working all day, and if they indicate not, then the Court‘s going to go ahead and excuse them.
The court then clarified that it had received the two notes “before the lunch break,” and that the court, in response, had told the jury to “just keep going” through lunch. After lunch, the court‘s bailiff “asked them again . . . if they wanted to keep deliberating. They indicated no.”
Harrison‘s counsel objected to the court‘s proposed course of action:
I‘d request that we inquire from the jurors how far along in the process that they were in this penalty phase, and by that I mean as this Court is well aware,
they needed to make a determination if the aggravators were proved beyond a reasonable doubt. I would ask that this Court inquire of that. And then the second issue was if the weighing process between the aggravators and mitigators if they had in fact done a weighing process, and I‘d ask that this Court poll the 12 individual jurors and ask them individually if any of them made the determination that the mitigation outweighed the aggravations in this matter.
A second defense attorney clarified that Harrison wanted “to ask whether or not they unanimously eliminated [the] death penalty as a punishment because one of the notes to the Court indicated just that.” The State objected to this request by arguing that “[t]he only way to make any determination as to which verdicts they reached or a partial verdict that may have been reached in this case is to look at the verdict form.” In response, Harrison‘s attorney acknowledged that “we don‘t know if a verdict has been reached in the sense that there were special verdict forms. They had to make a determination on a special verdict form if the aggravators had been proved beyond a reasonable doubt. That is something they could have in fact reached.”
In response to the parties’ assertions, the court stated:
I think . . . if that form [containing the jury‘s findings of aggravating factors] is blank and it has been signed by the foreperson, then . . . that would indicate that they did not find the existence of an aggravating circumstance beyond a reasonable doubt. And so then I think the State would be precluded from seeking the death penalty in a subsequent hearing.
The problem is . . . if they found aggravators and they found mitigators, until they actually fill out one of the two verdict forms indicating the penalty, we don‘t know what their weighing analysis was
because there‘s nothing on the mitigating form to say the jury having found these mitigators finds the mitigators outweigh the aggravators or the aggravators outweigh the mitigators. The only way for us to know that is to see what form is actually filled out. I suspect, of course, neither form is going to be filled out because they‘re deadlocked on the punishment. What we don‘t know is whether or not they have in fact [made this finding] by virtue of the fact they‘re not considering the death penalty or at this point in time are not tied between some with the death penalty, that doesn‘t tell us where they are in terms of the aggravators and the mitigators.
The court then called the jury into the courtroom and engaged in the following colloquy with the foreperson:
THE COURT: The court has received notes from two members of the jury indicating that the jury is deadlocked and after deliberations is unable to reach a verdict. Is that your assessment of the situation?
THE FOREPERSON: Yes.
THE COURT: Do you feel that further deliberations could aid the jury, or do you feel that the jury is at an impossible impasse in terms of a punishment in this case?
THE FOREPERSON: I think it‘s at an impasse.
THE COURT: Has the jury completed any of the verdict forms?
THE FOREPERSON: Yes.
THE COURT: Would you please hand those forms to my bailiff.
THE FOREPERSON: All of them or just the —
THE COURT: All of them, please.
Based on the foregoing, the court declared a mistrial and discharged the jury. The court examined the jury‘s verdict forms, and noted that two of the four forms had been completed. The first two forms showed that the jury had found one aggravating factor (out of the two that the government had offered),2 and twenty-four mitigating factors (all of the factors offered by the defense, as well as an additional factor added by the jury). The forms were signed by the foreperson. The jury was also given two forms on which to record Harrison‘s sentence. The first form was meant to be used if the jury “found that the aggravating circumstance or circumstances outweigh[ed] any mitigation circumstance or circumstances.” If the jury so found, it would then have been able to select between a fixed term of imprisonment, life with the possibility of parole, life without parole, or death. The second form was meant to be used if the jury “found that the mitigation circumstance or circumstances outweigh[ed] any aggravating circumstance or circumstances.” If the jury so found, it would have been able to select between a fixed term of imprisonment, life with the possibility of parole, or life without parole. The jury failed to mark or sign either of the latter two forms.
On June 20, 2007, approximately seven months after the penalty-phase jury had been discharged, Harrison filed a Motion to Strike the Death Penalty in the state trial court. Harrison argued that he should not be subjected to the death penalty because “[t]he jury decided, twelve to zero, against the use of the death penalty because they had each independently determined that Harrison‘s mitigating circumstances outweighed the aggravating circumstances of the crime.” Harrison submitted affidavits from three former jurors which,
The State countered by arguing that Harrison‘s post-trial juror affidavits did not constitute a verdict of acquittal. The State also introduced an affidavit from one of the jurors stating that “[t]he death penalty was never ‘off the table’ as a potential punishment option for me as a juror.”4
On July 12, 2007, the state trial court denied the Motion to Strike the Death Penalty, and denied Harrison‘s request to
On June 20, 2008, Harrison filed a petition for a writ of habeas corpus under
The district court denied the writ after concluding that Harrison had failed to establish that he had been acquitted of the death penalty. The court concluded that the partially completed verdict forms failed to establish that the jury had concluded that the mitigating factors outweighed the aggravating factors. The court also concluded that the post-trial juror affidavits did not constitute a verdict. The court then denied the writ without addressing Harrison‘s argument that the trial court erred by declaring a mistrial without polling the jury concerning whether it had ruled out the death penalty.
On appeal here, Harrison no longer contends that the post-trial affidavits establish his acquittal of the death penalty.
JURISDICTION AND STANDARD OF REVIEW
We agree with the original panel majority‘s discussion of
For the reasons stated by the original panel majority, Harrison, 596 F.3d at 561, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Finally, as the district court noted, the Younger abstention doctrine, see Younger v. Harris, 401 U.S. 37 (1971), does not bar us from considering the merits of Harrison‘s Double Jeopardy Clause argument. See Harrison v. Eighth Judicial Dist. Court of Nev., No. 2:08-cv-00802-RCJ-RJJ, 2008 WL 2570925, at *2 (D. Nev. June 25, 2008) (citing Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992)).
DISCUSSION
A. The Role of Acquittals and Verdicts in Finding Double Jeopardy
[1] The Fifth Amendment‘s Double Jeopardy Clause states that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”
The Supreme Court applied Bullington to a judicially imposed death sentence in Arizona v. Rumsey, 467 U.S. 203 (1984). In Rumsey, the trial judge concluded that the state failed to prove that any statutory aggravating factors were present. Id. at 205-06. Although this conclusion was reversed on appeal because it was premised on legal error, the Court held that the initial finding was preclusive because “an acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge.” Id. at 211.
Later, in Poland v. Arizona, 476 U.S. 147 (1986), the trial judge erroneously concluded that the state had proven its case and, accordingly, imposed the death penalty. Id. at 149. The sentence was then reversed because the judge had relied on an aggravating factor that was not adequately supported by the record. Id. at 149-50. After remand, the trial judge again imposed the death sentence, but based his conclusion on a different aggravating factor that had not initially been found at the first sentencing. Id. at 150. The Court allowed the second death sentence to stand because the defendant was sentenced to death in the first proceeding, and “the law attaches particular significance to an acquittal.” Id. at 156 (internal quotation marks omitted). Absent an “acquittal” in which the factfinder concludes that the prosecution failed to “prove[ ] its case,” the Double Jeopardy Clause does not bar a retrial. Id. at 156-57 (internal quotation marks omitted).
[2] More recently, in Sattazahn v. Pennsylvania, 537 U.S. 101, 109-10 (2003), the Court addressed a petitioner‘s argument that he was acquitted of the death penalty when the trial court imposed a life sentence after the jury was deadlocked. Under the state sentencing scheme at issue in that case, the trial court was required to impose a life sentence if the jury failed to render a unanimous verdict in favor of the death penalty. Id. After the underlying conviction was reversed on
In light of the Supreme Court‘s emphasis on acquittals as the “touchstone for double-jeopardy protection in capital-sentencing proceedings,” id., we proceed to an examination of the basic principles governing acquittals. We have explained that an acquittal may be either “express or implied by jury silence.” Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir. 2007). By definition, an express acquittal (or “acquittal in fact“) requires that the jury return a verdict in favor of the accused. See Black‘s Law Dictionary 27 (9th ed. 2009). An implied acquittal occurs “when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge . . . .” Brazzel, 491 F.3d at 978. The Supreme Court recently examined the circumstances in which an implied acquittal can be inferred from a jury‘s findings. Yeager v. United States, 129 S. Ct. 2360 (2009). The Court explained that where a jury renders a verdict on one count but is deadlocked on another count, the government is barred from re-litigating factual issues that are conclusively resolved by the jury‘s “valid and final judgment” as to the count on which a verdict was reached. Id. at 2367, 2370; see also Green v. United States, 355 U.S. 184, 190-91 (1957) (holding that conviction for second-degree murder operates as implied acquittal on first-degree murder count).
B. Partial Verdicts and Nevada‘s Capital-Sentencing Regime
[4] The general principles discussed supra undercut Harrison‘s argument that a defendant can make an ex post request to bifurcate a penalty-phase proceeding in order to receive a “partial verdict of acquittal” on the death penalty. Nevada statutes establish a three-step procedure for imposing the death penalty. First, the jury must unanimously find that an aggravating factor is present beyond a reasonable doubt,
[5] The Nevada Supreme Court has explained that although juries are given special verdict forms to guide their analysis in these unbifurcated penalty-phase proceedings, these forms are not legally significant. See Gallego v. State, 23 P.3d 227, 239-40 (Nev. 2001) (en banc). Instead, the only conclusion of any significance is the jury‘s final sentencing decision. See id. at 240 (holding that “a verdict form specifying [the jury‘s mitigation] findings is not required“); see also
[6] In light of the structure of Nevada‘s capital-sentencing scheme, and the underlying principles discussed supra, Harrison was not automatically entitled under Nevada law to poll the deadlocked jury on the status of its deliberations in his unbifurcated capital-sentencing proceeding. See Daniel v. State, 78 P.3d 890, 906 (Nev. 2003) (en banc) (per curiam) (holding that trial “court [i]s not required to poll the jurors” regarding possible acquittal on death penalty). Although the jury may have reached preliminary conclusions at any of the three stages of its capital-sentencing inquiry—first, with respect to the presence or absence of aggravating circumstances, second, with respect to the balancing of the aggravating and mitigating circumstances, and third, with respect to the final “moral” decision to impose a particular sentence—Nevada law does not include any procedural mechanism in which the jury‘s preliminary determinations can be embodied in a valid final verdict in an unbifurcated penalty-phase proceeding such as Harrison‘s. Absent the jury‘s full deliberation and final decision regarding the defendant‘s sentence, a Nevada penalty-phase jury has not produced a “valid and final judgment” that constitutes a partial acquittal. See Yeager, 129 S. Ct. at 2367.9
Harrison contends that even though the penalty phase was conducted as an unbifurcated proceeding, the Double Jeopardy Clause required that the trial judge, prior to discharging the deadlocked jury, should have polled the jury to determine if it had rejected the death penalty. As phrased in his opening brief, Harrison argues that “as a matter of federal constitutional law,” “the jurors [should have] be[en] polled to confirm that they had unanimously rejected a sentence of death and were split between lesser sentences.”
Undisputably, “a retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause,” Richardson v. United States, 468 U.S. 317, 324 (1984), and a “trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial,” Washington, 434 U.S. at 509. However, Harrison argues that the trial court committed constitutional error by concluding that the jury was “hung” when it may have actually reached a preliminary decision not to impose the death penalty.10 We disagree, and conclude that
At the outset, we note that there can be no reasonable dispute that the jury was genuinely deadlocked regarding its determination of Harrison‘s sentence under
Nevertheless, Harrison and our dissenting colleagues contend that the trial court erred not because of its conclusion that the jury was deadlocked, but because it failed to inquire about whether the jury had decided to take the death penalty off the table prior to discharging the jury. Harrison requested that the trial court conduct three distinct inquiries. First, he requested “that we inquire from the jurors how far along in the process they were in this penalty phase . . . .” Next, he requested “that this Court poll the 12 individual jurors and ask them individually if any of them made the determination that the mitigation outweighed the aggravations in this matter.” Finally, he
[7] The Supreme Court has “expressly declined to require the mechanical application of any rigid formula when trial judges decide whether jury deadlock warrants a mistrial.” Renico, 130 S. Ct. at 1863 (internal quotation marks omitted). Moreover, the Court has “never required a trial judge, before declaring a mistrial based on jury deadlock, to force the jury to deliberate for a minimum period of time, to question the jurors individually, to consult with (or obtain the consent of) either the prosecutor or defense counsel, to issue a supplemental jury instruction, or to consider any other means of breaking the impasse.” Id. at 1864 (emphasis added). In short, the Supreme Court has never adopted a per se rule regarding trial judges’ responses to deadlocked juries. Instead, the Court has emphasized the importance of deferring to the trial judge‘s discretion in cases involving deadlocked juries. Id. at 1863-64; Washington, 434 U.S. at 510 n.28. Consistent with the Court‘s general approach to deadlocked juries, we conclude that trial judges are entitled to exercise their “sound discretion” when deciding whether to inquire into a jury‘s preliminary determinations before declaring a mistrial.
[8] Our conclusion is partially informed by two basic rationales: first, that a judge‘s inquiry into a preliminary jury determination can have a coercive effect on the jury, and second, that such an inquiry may elicit the jury‘s tentative or preliminary vote rather than its final verdict.
Our second concern about judicial coercion is the “risk that some jurors might mistakenly permit a tentative vote to become an irrevocable final vote and forgo the opportunity to gain new insights” through further deliberations. United States v. DiLapi, 651 F.2d 140, 147 (2d Cir. 1981). Although jury room voting is an important part of the jury‘s decision-making process, it is nothing more than a tool used to move toward a final unanimous conclusion. See Deadlocked Juries, supra, at 130 (describing how preliminary votes contribute to “the most effective use” of the jury‘s decision-making process). We agree with the many courts that have observed that a preliminary vote is nothing more than a tentative survey of the individual juror‘s views, and that “continuing deliberations might well have shaken views on counts previously considered.” Nelson, 692 F.2d at 85.13 This concern about finality
In light of these concerns about potential judicial coercion and the lack of finality in a jury‘s preliminary conclusions, it would be wholly inappropriate to create a per se requirement that judges must inquire into the possibility that a jury has reached a conclusion regarding a defendant‘s eligibility for the death penalty. Concerns about the integrity of the jury process are heightened in death penalty cases such as the present one. See Lowenfield, 484 U.S. at 238-39, 241. Coercion and non-finality are therefore even more important in capital cases than in non-capital cases.
The dissenters suggest that even without a per se polling requirement, the trial court abused its discretion under the facts of this case. However, their interpretation of “manifest necessity” is far different from the one described by the Supreme Court. They suggest that “manifest necessity” requires the trial court to consider reasonable alternatives to declaring a mistrial. See Thomas Dissent at 6181-82, 6186. However, in their extensive collection of case law on this point, they cite only two cases involving jury deadlock, and each of those cases is easily distinguishable.14 Our colleagues
[11] At no point during the proceeding did any of the jurors suggest that the jury had conclusively and finally determined after full deliberation that the death penalty could not be applied to Harrison. The trial court was concerned both that a jury poll “could have been a compromise” vote that did not fully reflect the jurors’ considered deliberations, and that “the case took a lot longer than any of us anticipated” and some of the jurors appeared “frustrated” about returning for the final day of deliberations. In other words, the trial court was properly concerned that any inquiry into the jury‘s deliberations would implicate the central concerns articulated here: the possibility of coercing the jury to reach a verdict, and the possibility of treating a preliminary jury vote as a final conclusive determination. The trial court was evidently aware of the relevant legal concerns and concluded that an inquiry into the jury‘s preliminary determinations was unnecessary given the circumstances. The trial court accordingly exercised its “sound discretion” in rejecting Harrison‘s request to inquire
CONCLUSION
[12] We hold that capital defendants do not have a per se constitutional right to inquire about the possibility that a penalty-phase jury has reached a preliminary decision against imposing the death penalty. We conclude that such a mandatory right would lead to an unacceptable risk that the trial court‘s conduct would coerce the jury into reaching a compromise it might not otherwise reach, or encourage the jury to treat a preliminary jury room vote as a decisive final verdict. In reaching this conclusion, we reaffirm two basic principles. First, a jury‘s verdict is a final collective decision that is reached after full deliberation, consideration, and compromise among the individual jurors. Second, when jurors are deadlocked, we defer to the trial courts’ exercise of “sound discretion” in determining that the jury is in fact genuinely and hopelessly deadlocked. In light of these two principles, we further conclude that trial judges are entrusted with “sound discretion” when deciding whether to inquire about the possibility that a jury has reached a partial decision. Applying these conclusions to Harrison‘s appeal, we hold that the trial court did not abuse its discretion by refusing to poll the jury where the jurors were clearly deadlocked, appeared frustrated after lengthy proceedings, may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting Harrison of the death penalty. We also hold that in the retrial of the penalty phase the Double Jeopardy Clause does not preclude the State from including the death penalty as a sentencing option.
The district court‘s order denying Harrison‘s petition is accordingly
AFFIRMED.
By all indications, the jurors in James Harrison‘s capital trial had decided to acquit him of the death penalty. They had informed the trial judge that they were deadlocked between life with parole and life without parole. The trial judge acknowledged that the jury “was not discussing the death penalty.” However, rather than conduct the jury poll requested by defense counsel to ascertain whether the jury had reached, or could reach, a verdict on the death penalty, the trial judge summarily declared the trial over and discharged the jury.
We will never know with certainty what the jury would have answered if asked. But we do know this: Harrison‘s chance of a likely acquittal on the death penalty left the courthouse with the jurors.
The Double Jeopardy Clause protects the “valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him.” Downum v. United States, 372 U.S. 734, 736 (1963) (emphasis added). Put another way, “[c]riminal defendants have a right to have the jury first impaneled to try them reach a verdict.” United States v. Bates, 917 F.2d 388, 392 (9th Cir. 1991). Thus, a defendant may not be tried on the same issue again if a mistrial is declared without his consent and without “manifest necessity.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
There was no need, much less manifest necessity, for discharging the jury in this case without conducting the requested jury poll that would have answered the question of whether the jurors had reached a death penalty verdict. The trial judge violated Harrison‘s right to have the “particular tribunal give complete consideration to his case.” United States v. Sammaripa, 55 F.3d 433, 434 (9th Cir. 1995). Harrison was
I
“[T]he Supreme Court has consistently recognized a major purpose of the double jeopardy clause as the protection of a defendant‘s ‘valued right to have his trial completed by a particular tribunal.‘” Bretz v. Crist, 546 F.2d 1336, 1345 n.21 (9th Cir. 1976) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)) (collecting cases), aff‘d, 437 U.S. 28 (1978). This right, which has “roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice,” Crist v. Bretz, 437 U.S. 28, 36 (1978), is “valued . . . because . . . the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.” Arizona v. Washington, 434 U.S. 497, 508 n.25 (1978) (quoting United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion)). As the Court explained:
The reasons why this “valued right” merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.
Id. at 503-05 (footnotes omitted).
repeatedly reaffirmed that the power to discharge the jury prior to verdict should be reserved for “extraordinary and striking circumstances,” Downum[, 372. U.S. at 736] (internal quotation marks omitted); that the trial judge may not take this “weighty” step, [Illinois v. Somerville, 410 U.S. 458, 471 (1973)], unless and until he has “scrupulous[ly]” assessed the situation and “take[n] care to assure himself that [it] warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal,” [Jorn, 400 U.S. at 485]; that, to exercise sound discretion, the judge may not act “irrationally,” “irresponsibly,” or “precipitately” but must instead act “deliberately” and “careful[ly],” Washington, 434 U.S.[ at 514-15]; and that, in view of “the elusive nature of the problem,” mechanical rules are no substitute in the double jeopardy mistrial context for the sensitive application of general standards, Jorn, 400 U.S.[ at 485].
Renico v. Lett, 559 U.S. 766, 130 S. Ct. 1855, 1869 (2010) (Stevens, J., dissenting).
Of course, under certain circumstances, the defendant‘s right to have his case completed before a particular tribunal must “be subordinated to the public‘s interest in fair trials designed to end in just judgments.” Wade, 336 U.S. at 689. Hence, we have the “manifest necessity” rule. The rule is not one of recent judicial invention. Indeed, the “classic formulation of the test,” which “has been quoted over and over again to provide guidance in the decision of a wide variety of cases,” Washington, 434 U.S. at 506, comes from Justice Story‘s opinion in Perez:
[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.
“The rule announced in the Perez case has been the basis for all later decisions of [the Supreme Court] on double jeopardy.” Wade, 336 U.S. at 690; accord. Renico, 559 U.S. 766, 130 S. Ct. at 1862-64. Accordingly, it is well-settled that “[a]fter jeopardy attaches, the court‘s declaration of a mistrial does not bar retrial where the mistrial was declared because of ‘manifest necessity.‘” Sammaripa, 55 F.3d at 434 (quoting Thomas v. Municipal Court of Antelope Valley J.D., 878 F.2d 285, 287 (9th Cir. 1989)).
“[T]he Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant‘s” right to a decision by a particular tribunal “until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Jorn, 400 U.S. at 485. It entails a
As one would expect, “a jury‘s inability to reach a decision is the kind of ‘manifest necessity’ that permits the declaration of a mistrial.” Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 2366 (2009) (citing Washington, 434 U.S. at 505-06; Perez, 22 U.S. (9 Wheat.) at 580). In such circumstances, we rightly afford great deference to the trial court‘s decision, but its discretion in this respect is not unfettered: as the Supreme Court has recently observed,
Perez itself noted that the judge‘s exercise of discretion must be “sound,” [22 U.S. (9 Wheat.) at 580], and we have made clear that “[i]f the record reveals that the trial judge has failed to exercise the ‘sound discretion’ entrusted to him, the reason for such deference by an appellate court disappears.” Washington, [434 U.S. at 510 n.28].
Renico, 559 U.S. 766, 130 S. Ct. at 1863.
In synthesizing Supreme Court jurisprudence, we have applied four factors in determining whether a trial court has exercised its discretion properly in finding “manifest necessity” and granting a mistrial: namely, whether it has “(1) heard the opinions of the parties about the propriety of the mistrial, (2) considered the alternatives to a mistrial and chosen the” course of action “least harmful to a defendant‘s rights, (3) acted deliberately instead of abruptly, and (4) properly determined that the defendant would benefit from the declaration of mistrial.” Bates, 917 F.2d at 396.
As to the first Bates factor, we have held that the manifest necessity requirement was not met when the trial court “allowed no opportunity for argument from either side on the need for a mistrial.” United States v. Sanders, 591 F.2d 1293, 1298 (9th Cir. 1979). Similarly, in Jorn, the Supreme Court
The second key consideration in assessing the “manifest necessity” of declaring a mistrial sua sponte is whether the trial judge adequately considered alternatives. The Supreme Court emphasized the importance of this factor in Jorn, noting that the trial judge had not considered alternatives and “made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial.” 400 U.S. at 487.
Our sister circuits have also emphasized that no “manifest necessity” exists where there are reasonable alternatives to declaring a mistrial. In United States v. Rivera, 384 F.3d 49 (3d Cir. 2004), the Third Circuit held that the Double Jeopardy Clause barred reprosecution because the district court did not “giv[e] due consideration to reasonably available alternatives to the drastic measure of a mistrial.” Id. at 56 (“Critically, a mistrial must not be declared without prudent consideration of reasonable alternatives.“); see also Love v. Morton, 112 F.3d 131, 137 (3d Cir. 1997) (“To demonstrate manifest necessity, the state must show that under the circumstances the trial judge ‘had no alternative to the declaration of a mistrial.’ . . . The trial judge must consider and exhaust all other possibilities.” (citation omitted) (quoting United States v. McKoy, 591 F.2d 218, 222 (3d Cir. 1979))). As the Third Circuit concluded in Rivera, “[w]here a District Court sua sponte declares a mistrial in haste, without carefully considering alternatives available to it, it cannot be said to be acting under a manifest necessity.” 384 F.3d at 56. The First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh circuits have reached a similar conclusion.1 Our own
The third factor is whether the trial court acted deliberately or abruptly. The Supreme Court has held that a trial court abuses its discretion in granting a mistrial when it acts precipitately. Washington, 434 U.S. at 514-15. In Jorn, the Court held that the Double Jeopardy Clause precluded retrial when the trial judge‘s abrupt declaration of mistrial provided the defendant with no opportunity to object to the discharge of the jury. 400 U.S. at 487. As we noted in Bates, “[a] trial court‘s
The fourth factor is whether the court properly determined that the defendant would benefit from the declaration of mistrial. As we noted in Bates, a well-founded determination that the mistrial would assist the defendant indicates the exercise of sound discretion; an erroneous declaration that the mistrial would assist the defendant may warrant reversal, as might a mistrial declaration that assists only the government. 917 F.2d at 388.
The manifest necessity doctrine also requires, in addition to consideration of the traditional Bates factors, that the trial judge exercise particular care when it appears that the proceedings might result in an acquittal. Indeed, the Double Jeopardy Clause “prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict.” Green v. United States, 355 U.S. 184, 188 (1957). It is improper for a court to declare a mistrial and grant the state, “with all its resources and power,” id. at 187, “another, more favorable opportunity to convict the accused,” Gori v. United States, 367 U.S. 364, 369 (1961).
Finally, the manifest necessity doctrine requires that greater care be exercised in death penalty cases. It commands that “in
II
When we apply these principles to this capital case, it is readily apparent that no manifest necessity justified the trial judge in declaring a mistrial without permitting the jury poll that Harrison requested.
First, the record is absolutely, crystal clear that the jury might have determined that Harrison should not be put to death. The trial court commenced the discussion with this report:
THE COURT: For the record, we had two notes from two different jurors indicating that the jury was deadlocked between life with and life without [the possibility of parole].
The trial court then observed that “the fact that they‘re not considering the death penalty” did not “tell us where they are in terms of the aggravators and the mitigators.” Thus, the court noted, it was important to see the actual verdict forms if the jury had filled them out.
The court then called the jury back and asked the jury foreperson where matters stood. The foreperson replied: “I think it‘s at an impasse.” Then, the court inquired whether any of the forms had been completed. The foreperson replied that some forms had been completed. The court instructed the foreperson to hand the forms to the bailiff and, without examining them, summarily discharged the jury. The court did not ask counsel whether they objected to the declaration of mistrial and the discharge of the jury. The court did not invite or consider any alternatives. The court did not make a finding that manifest necessity required a mistrial.
We do not, of course, know with assurance what verdict the jury would have eventually rendered on the sole question of whether Harrison was to be put to death. We do not even know whether the jury was deadlocked on that question. However, every single bit of record evidence demonstrates a high probability that the jury would not have imposed a death sentence, if the question had been posed.2
Second, given the application of Nevada capital sentencing law to these facts, the poll Harrison requested would have been sufficient to determine whether the jury had acquitted him of the death penalty. In signing the verdict forms indicating a finding of one aggravating factor and twenty-four mitigating factors, the jury made one of the two factual findings necessary to establish Harrison‘s statutory eligibility for the death penalty. See
When the trial court declared a mistrial without polling the jurors as Harrison requested, it deprived Harrison of his right under the Double Jeopardy Clause to have his case completed by the tribunal summoned to sit in judgment on him. In doing so, the court prevented the jury from giving legal effect to whatever conclusions it had reached,3 and likely acquitting Harrison of the death penalty. By putting him again in jeopardy of being put to death, the court permitted the state “another, more favorable opportunity to convict the accused,” an opportunity that, but for manifest necessity, the Double Jeopardy Clause forbids. Gori, 367 U.S. at 369.
Given the particular care required in making mistrial decisions when it appears that a jury might not convict and, more, in capital cases, what was the manifest necessity here? A careful review of the record in light of the Bates factors can only lead to one conclusion: there absolutely was no reason, much less one compelling enough to meet the high “manifest necessity” standard, for discharging the jury without polling it as Harrison requested.
First, the trial court did not ask the parties about the propriety of declaring a mistrial. The record shows that the judge informed counsel about the jury note, defense counsel asked
Second, the trial court did not consider any alternatives. In fact, the judge never expressly denied defense counsel‘s request for a jury poll—a viable alternative she rejected out-of-hand when she declared a mistrial and dismissed the jury. She ignored other viable alternatives as well. The judge could have asked the jury whether it was deadlocked on the imposition of the death penalty. The judge could have given an Allen charge4 or its equivalent under Nevada state law.5 However, the judge neither considered the possibility nor asked counsel as to their views of providing the jury with additional instructions. She did not ask the parties if they saw any alternatives to a mistrial. In short, the trial judge did not meaningfully consider other courses of action, much less determine which was the one “least harmful to [Harrison‘s] rights.” Bates, 917 F.2d at 396.
Third, the trial judge demonstrated none of the deliberation that courts have approved as indicia of a sound exercise of discretion. Rather, the court accepted the foreperson‘s representation of deadlock and promptly discharged the jury without further ado. The entire exchange with the jury foreperson and the discharge occupies less than a single transcript page.
Fourth, the trial judge made no determination of whether declaring a mistrial would benefit the defendant. In fact, as discussed, the mistrial severely prejudiced Harrison‘s rights.
In sum, consideration of the Bates factors compels the conclusion that there was no “manifest necessity” for the judge to declare a mistrial without conducting the poll Harrison
III
Rather than defend the manifest necessity of declaring a mistrial without polling the jury, the government urges affirmance by slaying a stand of straw men and producing a parade of horribles.
The government ardently argues that there was no actual acquittal in this case and therefore that Double Jeopardy protections do not apply. Of course Harrison was not acquitted. But “[t]he prohibition is not against being twice punished, but against being twice put in jeopardy.” Ball v. United States, 163 U.S. 662, 669 (1896). The right at issue here is Harrison‘s right to have the trial completed by the jury impaneled to sit in judgment on him. The fact that the trial was not completed demonstrates the violation of the right, not the vindication of it.
The government argues that criminal defendants are not entitled to a per se rule requiring jury polling. Perhaps so, but that question is irrelevant to the issue of manifest necessity. The Supreme Court has emphasized, time and again, that the determination of manifest necessity must be done on a case-by-case basis, in a fact-specific context. The manifest neces-
be applied . . . without attention to the particular problem confronting the trial judge. Indeed, it is manifest that the key word “necessity” cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a “high degree” before concluding that a mistrial is appropriate.
Washington, 434 U.S. at 506; see also Somerville, 410 U.S. at 462 (the test “abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial“); Jorn, 400 U.S. at 450 (eschewing “mechanical rules“). As we said in Bates, “[c]ourts steadfastly continue to refuse to categorize fact patterns that constitute manifest necessity and fact patterns that do not.” 917 F.2d at 394. The absence of a per se rule on jury polling is not relevant to the case-specific application of the manifest necessity doctrine.
The government worries that granting relief in this case will create a rule of juror coercion. The law of juror coercion has been settled for a long time. The doctrine of manifest necessity is of even longer lineage. The two have lived comfortably together for centuries of American jurisprudence. Trial judges walk difficult lines between competing rights every day. Holding that, under these particular circumstances, a trial judge discharged a jury without manifest necessity would not alter the settled law of juror coercion at all.
The government contends that the trial judge was not permitted under Nevada law to poll the jury. However, none of
None of these diversions address the key issue in this case, whether there was a manifest necessity for the trial judge to discharge the jury sua sponte. The trial court‘s actions satisfied none of the standards that we have held important in finding manifest necessity. When it was likely that the defendant would be acquitted of the death penalty, the trial judge sua sponte declared a mistrial—without proper consultation or deliberation, and without conducting the jury poll Harrison requested or even asking the jurors whether they were deadlocked regarding the death penalty. The trial court‘s decision to discharge the jury deprived Harrison of his right to be tried by the jury impaneled to sit in judgment on him. The violation of that right precludes the government from seeking for a second time to impose a penalty of death.
For these reasons, I disagree with my friends in the majority and must respectfully dissent.
I join in Judge Thomas‘s dissent, which so ably demonstrates that the trial judge‘s hasty decision to dismiss the jury violated every tenet of the law regarding “manifest necessity” for the declaration of a mistrial, and thus Harrison‘s right to be free from double jeopardy. I write separately to emphasize that the trial court‘s declaration of a mistrial when there was no manifest necessity to do so was based on a fundamental misunderstanding of the function of a capital sentencing proceeding. By her actions, the trial judge precluded Harrison from obtaining confirmation that, as seems likely, the jury had found him ineligible for death, and that the Double Jeopardy Clause thus barred him from being sentenced to death in any subsequent sentencing proceedings. See Bullington v. Missouri, 451 U.S. 430, 446 (1981).1
In response to the dissenting opinions, the majority acknowledges that the relevant test for whether the trial court‘s declaration of a mistrial violates the Double Jeopardy Clause‘s protections is whether there was a “manifest necessity” to declare a mistrial. See, e.g., United States v. Jorn, 400 U.S. 470, 481 (1971); United States v. Chapman, 524 F.3d 1073, 1081 (9th Cir. 2008). Whether “manifest necessity” for a mistrial exists is an inquiry that depends upon “the varying and often unique situations arising during the course of a criminal trial.” Illinois v. Somerville, 410 U.S. 458, 462 (1973). Here, the “unique situation” facing the trial judge was a sentencing hearing the central purpose of which was to determine whether Harrison was eligible for a capital sentence. See
The fundamental reason why, unlike run-of-the-mill offenses, capital crimes generally provide for separate sentencing proceedings is not, as the majority asserts, to arrive at some sort of sentence, such as life with parole or life without parole or even a lesser punishment, after it arrives at its answer as to death eligibility.3 Maj. Op. at 6165-66. Rather, separate capital sentencing proceedings were implemented by states in the late 1970s for the specific purpose of complying with the Supreme Court‘s mandate that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared,
In holding that a capital sentencing jury may be discharged without even a minimal inquiry as to whether it had arrived at a unanimous conclusion as to the defendant‘s death eligibility, the majority fails to respect what the Supreme Court declared over a generation ago: that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998-99 (1983). It also ignores what the Court declared almost 200 years ago when it established the manifest necessity test: “in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824) (emphasis added). As a result of the trial court‘s failure to follow long-established law regarding double jeopardy and the death penalty, Harrison could well be put to death notwithstanding the fact that the first jury impaneled in this case may have already concluded, or might shortly have concluded if asked whether it had deadlocked over the issue, that he was ineligible for the punishment of death. To reiterate, Harrison‘s trial judge dismissed the jury when there was unquestionably no manifest necessity to do so and without ever asking the jury whether it was deadlocked on any question relating to the death penalty. It is difficult to conceive of a more obvious or serious violation of the Double Jeopardy Clause. See Downum v. United States, 372 U.S. 734, 736 (1963). I regret that the majority refuses to acknowledge it.
I dissent.
Notes
See United States v. Lara-Ramirez, 519 F.3d 76, 88 (1st Cir. 2008) (“Where there is a viable alternative to a mistrial and the district court fails adequately to explore it, a finding of manifest necessity cannot stand.” (quoting United States v. Toribio-Lugo, 376 F.3d 33, 39 (1st Cir. 2004))); United States v. Razmilovic, 507 F.3d 130, 138-39 (2d Cir. 2007) (citing Dunkerley v. Hogan, 579 F.2d 141, 147 (2d Cir. 1978), cert. denied, 439 U.S. 1090 (1979)); United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir. 1993) (“In order to determine if the mistrial was required by manifest necessity, the critical inquiry is whether less drastic alternatives were available.“); United States v. Fisher, 624 F.3d 713, 722 (5th Cir. 2010) (“manifest necessity” only justifies the sua sponte declaring of a mistrial where “the government show[s] that the district court carefully considered whether reasonable alternatives existed and that the court found none“); Johnson v. Karnes, 198 F.3d 589, 596 (6th Cir. 1999) (in concluding that the Double Jeopardy Clause barred reprosecution, finding it “significant that the trial court judge failed to consider less drastic alternatives, but instead immediately decided that a mistrial was appropriate“); Lovinger v. Circuit Court of the 19th Judicial Circuit, Lake County, Ill., 845 F.2d 739, 746 (7th Cir. 1988) (“Whether or not options short of mistrial were feasible and preferable . . ., the court did not consider them and thus did not afford proper solicitude for [the defendant‘s] valued right to continue with the trial.“); Moussa Gouleed v. Wengler, 589 F.3d 976, 981 (8th Cir. 2009) (“In determining whether a mistrial is justified by manifest necessity, we are particularly concerned with whether less drastic alternatives were available.” (citations and internal quotations omitted)); Walck v. Edmondson, 472 F.3d 1227, 1240 (10th Cir. 2007) (“Because the trial judge did not consider . . . viable alternatives, manifest necessity did not require a mistrial.“); United States v. Quiala, 19 F.3d 569, 572 (11th Cir. 1994) (“The lack of consideration of alternatives to a mistrial subjects the district court‘s abrupt declaration of a mistrial to close appellate scrutiny.“).
In Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), the Supreme Court held that an “acquittal” of the death sentence can occur only when a jury unanimously finds that the prosecution failed to prove the statutory criteria for death eligibility, but does not occur when a sentence other than death is imposed without such a finding. See id. at 112-13.
In addition to the record evidence indicating a high probability of an eventual life sentence verdict, a recent study concluded that in eighty-nine percent of juries in the studied capital cases, the eventual penalty verdict was the outcome favored by the majority of jurors on the first vote. Scott E. Sundby, War and Peace in the Jury Room: How Capital Juries reach Unanimity, 62 Hastings L.J. 103, 107 (2010).
To the extent that the majority implies that in order to conclude that there was no manifest necessity to dismiss a jury under a given set of circumstances there must be a Supreme Court case that has previously reached the same conclusion, see Maj. Op. 6172-74, it confuses the AEDPA rule, which does not apply in this case, with the applicable rule: whether, in light of the “unique situation[ ]” before the trial court, there was a manifest necessity for the declaration of a mistrial. Somerville, 410 U.S. at 462. We have an obligation to answer that question, “according to our best understanding of the individual constitutional rights involved,” Witt v. Dep‘t of Air Force, 527 F.3d 806, 823 (9th Cir. 2008) (Canby, J., concurring in part and dissenting in part), rather than to look to whether this precise question has been previously addressed by the Supreme Court.
The Double Jeopardy Clause “should be understood to safeguard not simply the individual defendant‘s interest in avoiding vexation, but also the integrity of the initial petit jury‘s judgment.” Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1190 (1991). Indeed, there runs through “the Anglo-American system of criminal justice . . . a strong tradition that once banded together a jury should not be discharged until it ha[s] completed its solemn task of announcing a verdict.” Crist, 437 U.S. at 36 (1978).
The majority cites
See Allen v. United States, 164 U.S. 492 (1896).
See also Ring v. Arizona, 536 U.S. 584, 606 (2002) (“States have constructed elaborate sentencing procedures in death cases, Arizona emphasizes, because of constraints we have said the Eighth Amendment places on capital sentencing.“).
Williams v. Warden, 422 F.3d 1006, 1009 (9th Cir. 2005) (quoting Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1031 (9th Cir. 2003)).“[I]f the jury announces only its ultimate conclusions, it returns an ordinary general verdict; if it makes factual findings in addition to the ultimate legal conclusions, it returns a general verdict with interrogatories. If it returns only factual findings, leaving the court to determine the ultimate legal result, it returns a special verdict.”
See Wilkins v. State, 96 Nev. 367, 373-74 n.2 (1980).
Indeed, under Nevada law, where the jury fails to decide upon a sentence in a capital case, a judge may, rather than convene a new jury, simply enter a non-capital sentence of life without parole.
In its prior opinion the majority emphasized that Harrison failed to move for such bifurcation, arguing that Harrison had an opportunity to obtain a separate verdict regarding death eligibility but waived it, and was therefore not entitled to poll the jury on the subject at any future time during the proceedings. Now that Harrison has brought to the court‘s attention the fact that he did move for bifurcation, the majority simply omits mention of the subject and leaves its underlying analysis of the case entirely unchanged, completely unbothered by the fact that the trial judge consistently denied Harrison the opportunity to learn whether or not the jury had deemed him ineligible for execution and whether the Fifth Amendment thus bars him from being sentenced to death in any future proceedings.
The majority states that under Nevada law, “the only jury determination of any significance—and the only one that is sufficiently final to constitute a ‘verdict’ in the ordinary sense—is the jury‘s decision regarding which sentence to impose.” Maj. Op. at 6166 (emphasis removed). This highly dubious and conclusory assertion, even if it were correct as a matter of state law, would be simply irrelevant to the federal constitutional question whether the Double Jeopardy Clause barred the trial judge from
The Court has addressed two basic types of coercion: deliberate coercion by one of the parties, e.g., Remmer v. United States, 350 U.S. 377, 381-82 (1956), or unintentional coercion by the court. The Court has held that it is permissible for courts to instruct dissenting jurors to be willing to reconsider their views, Allen v. United States, 164 U.S. 492, 501 (1896), and to poll them to determine whether further deliberations would be beneficial, Lowenfield v. Phelps, 484 U.S. 231, 240 (1988), but it has barred federal courts (though not state courts) from inquiring about the numerical breakdown of a divided jury, Brasfield v. United States, 272 U.S. 448, 450 (1926), and from requiring the jury to return a verdict, either explicitly, Jenkins v. United States, 380 U.S. 445, 446 (1965) (per curiam), or implicitly, United States v. U.S. Gypsum Co., 438 U.S. 422, 460, 462 (1978). Thus, although we have held that a court‘s mildly coercive conduct may be permissible, see United States v. Madrid, 842 F.2d 1090, 1095 (9th Cir. 1988) (collecting cases), the Supreme Court‘s case law indicates that trial courts must be careful not to interfere with the jurors’ formation of personal opinions or the conduct of their collective deliberations, e.g., Remmer, 350 U.S. at 382 (“[I]t is the law‘s objective to guard jealously the sanctity of the jury‘s right to operate as freely as possible from outside unauthorized intrusions purposefully made.“).
Given the “delicacy” of the rights at stake, United States v. Heriot, 496 F.3d 601, 608 (6th Cir. 2007) (internal quotation marks omitted), we too have had occasion to discuss coercion in both direct appeals, see United States v. Williams, 547 F.3d 1187, 1205-07 (9th Cir. 2008) (court‘s conduct was coercive) (collecting cases), and in habeas actions, e.g., DeWeaver v. Runnels, 556 F.3d 995, 1007-08 (9th Cir.) (state court‘s conduct was not coercive), cert. denied, 130 S. Ct. 183 (2009); Packer v. Hill, 291 F.3d 569, 578-81 (9th Cir.) (state court‘s conduct was coercive), rev‘d sub nom. Early v. Packer, 537 U.S. 3 (2002) (per curiam); Weaver v. Thompson, 197 F.3d 359, 365-66 (9th Cir. 1999) (state court‘s conduct was coercive).
This basic proposition has been articulated on numerous occasions by our sister circuits. See, e.g., Heriot, 496 F.3d at 608; United States v. Benedict, 95 F.3d 17, 19 (8th Cir. 1996); United States v. Wheeler, 802 F.2d 778, 781 (5th Cir. 1986); Chinchic, 655 F.2d at 550.
The jury was deadlocked in United States v. Lara-Ramirez, 519 F.3d 76, 85 (1st Cir. 2008), but the trial court “did not treat the reported deadlock as an important factor in its mistrial decision.” Instead, both the trial court and the court of appeals focused their analysis on the fact that one juror had a Bible in the jury room. Id. In United States v. Razmilovic, 507 F.3d 130, 139-40 (2d Cir. 2007), the trial court relied entirely on the jury‘s note stating that it was deadlocked, and did not ask the jury foreperson to confirm the statement on the note or to continue deliberating, both of which the trial court did in Harrison‘s case.
See also United States v. Banks, 514 F.3d 959, 974 (9th Cir. 2008); United States v. Hernandez-Guardado, 228 F.3d 1017, 1029 (9th Cir. 2000); United States v. Cawley, 630 F.2d 1345, 1348-49 (9th Cir. 1980); Arnold v. McCarthy, 566 F.2d 1377, 1387 (9th Cir. 1978); United States v. See, 505 F.2d 845, 851-52 (9th Cir. 1974).