James Harrison v. Eighth Judicial District Court

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES M. HARRISON,  No. 08-16602
Petitioner-Appellant, D.C. No.
v.
 2:08-cv-00802-RCJ-
RJJ
DOUGLAS GILLESPIE,
Respondent-Appellee. ORDER AND
 OPINION
Appeal from the United States District Court
for the District of Nevada1
Robert Clive Jones, District Judge, Presiding
Argued August 10, 2009
Submitted August 14, 2009
San Francisco, California
Filed February 22, 2010
Before: Procter Hug, Jr., Stephen Reinhardt and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Silverman
1
In our order granting Harrison’s request for a certificate of appeala-
bility, we asked the parties to address “who they contend are the proper
Respondents in this action.” Harrison responded to that order in his open-
ing brief. He asserted that Sheriff Douglas Gillespie is his current custo-
dian and the proper respondent in this action, and requested permission to
amend his petition in order to cure his failure to name the proper respon-
dent. The State did not respond to our order or oppose Harrison’s request,
and thus waived the issue on the custodian’s behalf. See Smith v. Idaho,
392 F.3d 350, 355-56 (9th Cir. 2004). Accordingly, the clerk is directed
that Douglas Gillespie shall be listed as the respondent in this case.
2769
HARRISON v. GILLESPIE 2773
COUNSEL
JoNell Thomas (argued), David M. Schieck, Scott L. Bindrup,
Clark County Special Public Defender, Las Vegas, Nevada;
Bret O. Whipple, Law Office of Bret Whipple, Las Vegas,
Nevada, for the petitioner-appellant.
Steven S. Owens, Clark County District Attorney, Las Vegas,
Nevada, for the respondent-appellee.
ORDER
At the time of Harrison’s sentencing trial and all state court
proceedings related to the denial of his motion to strike the
death penalty, the Nevada Supreme Court had interpreted the
relevant statutory provisions to require that “[t]o obtain a
death sentence, the State must prove beyond a reasonable
doubt that at least one aggravating circumstance exists and
2774 HARRISON v. GILLESPIE
that the aggravating circumstance or circumstances outweigh
any mitigating evidence.” Gallego v. State, 23 P.3d 227, 239
(Nev. 2001) (en banc) (emphasis added); see also Johnson v.
State, 59 P.3d 450, 460 (Nev. 2002) (per curiam) (“[The]
finding regarding mitigating circumstances is necessary to
authorize the death penalty in Nevada, and we conclude that
it is in part a factual determination, not merely discretionary
weighing. . . . [W]e conclude that Ring requires a jury to make
this finding as well: ‘If a State makes an increase in a defen-
dant’s authorized punishment contingent on the finding of a
fact, that fact — no matter how the State labels it — must be
found by a jury beyond a reasonable doubt.’ ” (quoting Ring
v. Arizona, 536 U.S. 584, 602 (2002) (emphasis added)); Wit-
ter v. State, 921 P.2d 886, 896 (Nev. 1996) (per curiam)
(“[W]e read NRS 200.030(4) as stating that the death penalty
is an available punishment only if the state can prove beyond
a reasonable doubt at least one aggravating circumstance
exists, and that the aggravating circumstance or circumstances
outweigh the mitigating evidence offered by the defendant.”
(emphasis added)), abrogated on other grounds by Byford v.
State, 994 P.2d 700 (Nev. 2000).
Accordingly, we were surprised to learn that the Nevada
Supreme Court issued a decision on July 23, 2009 in which
it stated that “[n]othing in the plain language of [the relevant
statutory] provisions requires a jury to find, or the State to
prove, beyond a reasonable doubt that no mitigating circum-
stances outweighed the aggravating circumstances in order to
impose the death penalty” and that the court itself “has
imposed no such requirement.” McConnell v. State, 212 P.3d
307, 314-15 (Nev. 2009) (per curiam) (emphasis added).
Although we heard oral argument in this appeal approxi-
mately two weeks after McConnell was decided, the District
Attorney of Clark County failed to advise us of the case, and
in fact did not do so until January 19, 2010, approximately
five months later, after we had issued our decision. In fact, it
did not do so until it filed a petition for rehearing en banc.
HARRISON v. GILLESPIE 2775
Even after the Nevada Supreme Court’s McConnell deci-
sion, it remains beyond dispute that a defendant cannot be
sentenced to death under Nevada law if a jury finds that the
mitigating circumstances outweigh the aggravating circum-
stances. Such a finding establishes an acquittal of the death
penalty for purposes of the Double Jeopardy Clause, regard-
less of what burden of proof applies. Accordingly, this case
does not require us to resolve the question whether the “be-
yond a reasonable doubt” standard applies to that finding, and
we now issue a superseding opinion to make clear that our
opinion does not do so. The superseding opinion is, of course,
the operative and controlling opinion for all purposes.
The prior opinion in this case is hereby withdrawn, and is
replaced with the superseding opinion filed concurrently with
this order. The pending petition for rehearing en banc is dis-
missed as moot. The panel will entertain any petition for
rehearing or rehearing en banc filed in accordance with the
applicable rules.
OPINION
REINHARDT, Circuit Judge:
A jury may have acquitted James Harrison of the death
penalty. We will never know, because the trial court denied
his request to ask the jury two simple questions that could
have conclusively established that fact, and instead dismissed
the jurors. Now, the State of Nevada seeks once again to have
him executed. Harrison asserts that a retrial on the death pen-
alty would violate the Double Jeopardy Clause.
The State prosecuted Harrison for murder, and the jury
returned a guilty verdict. The State then sought the death pen-
alty, which required proof of two additional facts beyond
guilt: that at least one aggravating circumstance existed, and
2776 HARRISON v. GILLESPIE
that there were no mitigating circumstances sufficient to out-
weigh the aggravating circumstances. Nev. Rev. Stat.
§ 175.554(3). The jury was permitted to impose a sentence of
death only if it made both findings unanimously. Hollaway v.
State, 6 P.3d 987, 996 (Nev. 2000) (en banc). If it made both
findings, it also had the option to sentence the defendant to a
non-capital sentence: life without parole, life with parole, or
a fixed term with parole. Nev. Rev. Stat. § 200.030(4). If the
jury determined that the there were no aggravating circum-
stances or that there were mitigating circumstances sufficient
to outweigh any aggravating circumstances, it was free to
choose only one form or another of the three non-capital sen-
tences. Id.
The jury reported its inability to agree on a sentence, and
two juror notes indicated that the jury was deadlocked
between life with the possibility of parole and life without the
possibility of parole. Harrison requested that the members of
the jury be polled to determine (1) whether they had unani-
mously found that there were no aggravating circumstances
and (2) whether they had unanimously found that the mitigat-
ing circumstances outweighed the aggravating circumstances.
If the answer to either of the questions had been yes, the poll
would have established that Harrison had been acquitted of
the death penalty, and the Double Jeopardy Clause of the
Fifth Amendment would have prohibited the State from seek-
ing that penalty during Harrison’s sentencing retrial. How-
ever, the prosecution objected to Harrison’s request, and trial
judge denied it. She then dismissed the jury and declared a
mistrial.
We conclude that there was no manifest necessity to
declare a mistrial without first polling the jury in order to
determine whether Harrison had been acquitted of the death
penalty. Accordingly, we hold that the trial court abused its
discretion by denying Harrison’s polling request. Because no
other alternative would adequately protect Harrison’s rights
under the Double Jeopardy Clause, we further hold that the
HARRISON v. GILLESPIE 2777
State may not seek the death penalty at a sentencing retrial,
and no such penalty may be imposed by the court.2
I. Factual and Procedural Background
In 2002, Harrison and Anthony Prentice were charged by
the State of Nevada with conspiracy to commit murder, bur-
glary, and murder with the use of a deadly weapon in connec-
tion with the death of Daniel Miller, Prentice’s roommate.
The State sought the death penalty against both defendants.
The trials were severed, and Prentice was convicted of con-
spiracy to commit murder and murder with use of a deadly
weapon and sentenced to life without parole. Subsequently, a
different jury found Harrison guilty of the same charges.
Nevada law provides that Harrison’s crime may be pun-
ished by death, life without parole, life with parole eligibility,
or a definite term with parole eligibility. Nev. Rev. Stat.
§ 200.030(4). For the jury to impose death, two conditions
must be met: first, the jury must unanimously find at least one
aggravating circumstance; and second, the jury must unani-
mously find that the mitigating circumstance(s) do not out-
weigh the aggravating circumstance(s). Id.; see also Hollaway
v. State, 6 P.3d 987, 996 (Nev. 2000) (en banc). If both condi-
tions are met, the jury may choose to impose the death pen-
alty, or may select a lesser sentence. If either condition is not
met, the jury may not impose a death sentence. Nev. Rev.
Stat. § 175.554(3).
During the penalty stage of Harrison’s trial, the jury
informed the court that, after deliberating at length, it could
2
Although, for convenience, we refer throughout this opinion to a possi-
ble sentencing retrial, we express no view as to how, under Nevada law,
a new non-death penalty sentence shall be determined, whether by a jury
or the court. We think it likely, however, that the sentencer would be free
to impose any of the three sentences that the jury could have imposed once
it eliminated the death penalty. See pages 2777 infra; Nev. Rev. Stat.
§§ 175.554(3), 200.030(4).
2778 HARRISON v. GILLESPIE
not reach a unanimous verdict. The court received “two notes
from two different jurors indicating that the jury was dead-
locked between life with [the possibility of parole] and life
without [the possibility of parole].”3 The judge expressed her
inclination to bring the jury back and determine whether fur-
ther deliberation would be fruitful, and to dismiss the jury in
the event that it would not. One of Harrison’s attorneys inter-
vened:
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 . . . 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 pro-
cess 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.
The prosecution opposed polling the jury on the ground
that several Nevada statutes allegedly precluded the court
from doing so,4 and argued that “[t]he only way to make any
3
While the trial judge stated that the notes would “be made a court
exhibit,” they are not in the record before us. The reason, according to the
State, is that “Harrison has never before raised the issue of the juror notes
. . . [and] because this issue was not previously raised in the case, the two
juror notes in question are not part of the appellate record for review by
this Court.” However, in the transcripts of the penalty phase proceedings
that are in the record, the trial judge plainly states that these notes exist,
and the State does not assert otherwise.
4
The cited statutes are as follows:
Nev. Rev. Stat. § 50.065. Competency: Juror as witness.
HARRISON v. GILLESPIE 2779
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.”
The court did not expressly deny defense counsel’s requests
to poll the jury, but impliedly agreed with the prosecution’s
argument. The court explained that if the special verdict forms
reflected that the jury had found no aggravators, then “the
State would be precluded from seeking the death penalty in a
subsequent hearing.” As to whether the jury had made a deter-
1. A member of the jury shall not testify as a witness in the trial
of the case in which he is sitting as a juror. If he is called to
testify, the opposing party shall be afforded an opportunity
to object out of the presence of the jury.
2. Upon an inquiry into the validity of a verdict or indictment:
(a) A juror shall not testify concerning the effect of any-
thing upon his or any other juror’s mind or emotions as
influencing him to assent to or dissent from the verdict
or indictment or concerning his mental processes in
connection therewith.
(b) The affidavit or evidence of any statement by a juror
indicating an effect of this kind is inadmissible for any
purpose.
Nev. Rev. Stat. § 175.531. Polling jury; further deliberation or discharge.
When a verdict is returned and before it is recorded the jury shall
be polled at the request of any party or upon the court’s own
motion. If upon the poll there is not unanimous concurrence, the
jury may be directed to retire for further deliberation or may be
discharged.
Nev. Rev. Stat. § 175.556 Procedure when jury unable to reach unanimous
verdict.
1. In a case in which the death penalty is sought, if a jury is
unable to reach a unanimous verdict upon the sentence to be
imposed, the district judge who conducted the trial or
accepted the plea of guilty shall sentence the defendant to
life imprisonment without the possibility of parole or
impanel a new jury to determine the sentence.
2780 HARRISON v. GILLESPIE
mination regarding the relative weight of the mitigators and
aggravators, the court said: “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 dead-
locked on the punishment.”
When the jury returned, the court inquired whether further
deliberations would be productive, and the foreperson
responded that they were “at an impasse.” The court then col-
lected all of the special verdict forms. Two were completed
and signed (i.e., unanimously agreed-upon). One completed
and signed form reflected that the jury found that one aggra-
vating factor — that “[t]he murder involved mutilation of the
victim” — had “been established beyond a reasonable doubt.”
The other completed and signed form reflected that the jury
had found no fewer than twenty-four mitigating factors.
The other two forms were blank. The first was to be com-
pleted if the jury had arrived at its sentence; it was to be used
only if the jury found that the aggravating circumstance(s)
outweighed any mitigating circumstance(s), and it contained
all four sentencing options. The second form was also to be
completed if the jury had arrived at its sentence; it was to be
used only if the jury found that the mitigating circumstance(s)
outweighed the aggravating circumstance(s), and it contained
three non-death sentencing options. Each of the two uncom-
pleted forms contained a blank line next to each sentencing
option, allowing the jury to indicate that it had chosen that
option, a blank line allowing the jury to indicate the date, and
a blank line for the foreperson’s signature; but each was to be
filled out only if the jury had decided on the sentence. The
jury was not furnished with any form that was to be used to
report a finding as to whether the mitigating circumstances
outweighed the aggravating circumstances, or vice versa, in
the absence of an agreement upon a sentence.
After collecting the forms, the court dismissed the jury and
declared a mistrial without conducting the inquiry that Harri-
HARRISON v. GILLESPIE 2781
son had requested.5 Six months later, before the second pen-
alty phase was scheduled to begin, Harrison made a motion
to strike the death penalty. He stated that the members of the
jury had “decided, twelve to zero, against the use of the death
penalty because they had each independently determined that
Harrison’s mitigating circumstances outweighed the aggravat-
ing circumstances of his crime.” He also argued that he had
“insisted upon finding out whether or not the jury had reached
a unanimous decision as to the death penalty, but the [trial]
court denied his request to make further inquiry of the jury.”
He asserted that the Double Jeopardy Clause “entitled [him]
to establish the record of the jury’s verdict so that his rights
could be protected.”
Harrison also introduced three affidavits from former mem-
bers of the jury, taken after they had been dismissed. The
three affidavits state that, during the penalty phase delibera-
tions, the jury had voted 12-0 that death was “off the table.”
The three jurors stated that “if [they] had been polled by the
Court before being excused from service, [they] would have
answered that [they] had determined that the mitigating cir-
cumstances outweighed the aggravating circumstance.” The
jury, they explained, was at an impasse between life with the
possibility of parole and life without, and the last vote taken
was 9-3 in favor of life without.
The State responded by arguing that the jury found Harri-
son guilty of murder plus an aggravating circumstance beyond
a reasonable doubt, and simply had not decided which of the
available sentences to impose. The State submitted another
5
The court neither polled the individual jurors nor asked the foreperson
whether the jury had reached a unanimous determination regarding Harri-
son’s eligibility for the death penalty. Nonetheless, the State “disputes that
Harrison’s request for polling was denied.” The record plainly belies this
assertion. Harrison made the request, the prosecution opposed the request,
and the court did not conduct the requested inquiry. Moreover, in its briefs
in state court, the State acknowledged that “[t]he Court denied Defen-
dant’s request, and the jury was dismissed.”
2782 HARRISON v. GILLESPIE
affidavit from a former member of the jury, which stated that,
for her, “[t]he death penalty was never ‘off the table’ as a
potential punishment option.”
The state court denied Harrison’s motion to strike the death
penalty. Harrison petitioned the Nevada high court for a writ
of mandamus, which was denied without explanation.6 He
next petitioned the United States District Court in Nevada for
a writ of habeas corpus under 28 U.S.C. § 2241. He argued
that the jury had acquitted him of the greater, death-penalty-
eligible, offense, and that retrial on the death penalty would
constitute double jeopardy. He further argued that he “had the
constitutional right to have the jury polled in order to deter-
mine whether the jurors had reached a unanimous decision
regarding the death penalty so that his rights against double
jeopardy could be preserved.”
The district court denied Harrison’s petition, finding that
nothing before it constituted an acquittal of the death penalty,
and that double jeopardy was not implicated. The district
court did not address whether the trial court abused its discre-
tion by denying Harrison’s polling request. Harrison appeals.
II. Jurisdiction and Standard of Review
[1] The federal courts have jurisdiction to grant a petition
for habeas corpus when the petitioner “is in custody in viola-
tion of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c). “[A] habeas petition raising a
double jeopardy challenge to a petitioner’s pending retrial in
state court is properly treated as a petition filed pursuant to 28
U.S.C. § 2241.” Wilson v. Belleque, 554 F.3d 816, 821 (9th
Cir. 2009) (citing Stow v. Murashige, 389 F.3d 880, 885 (9th
Cir. 2004)).
6
The Nevada Supreme Court stated only that its “intervention by way
of extraordinary writ [was] not warranted.”
HARRISON v. GILLESPIE 2783
The State acknowledges that § 2241 creates jurisdiction
over pretrial double jeopardy claims, but notes that Harrison’s
claim pertains “not to a charge for which he is being detained
pre-trial, but only as to one of several potential sentencing
options at a re-sentencing hearing.” Because “Harrison makes
no challenge to the jury’s verdict of guilty of first degree mur-
der for which he is being detained,” the State argues, we lack
jurisdiction to hear his claim.
Our decision in Wilson v. Belleque, 554 F.3d 816 (9th Cir.
2009), and the Supreme Court decisions discussed in that
opinion, compel us to reject the State’s argument. In Wilson,
the petitioner challenged his pending retrial in state court on
double jeopardy grounds. Id. at 821. At the time, Wilson was
incarcerated as a result of two prior convictions, neither of
which he challenged in his habeas petition. Id. We were there-
fore required to determine “whether the current ‘in custody’
jurisprudence should be construed to include circumstances
where the sovereign seeking to prosecute a petitioner is cur-
rently detaining the petitioner based on convictions or charges
not being challenged.” Id. at 822. We answered that question
in the affirmative, noting that the Supreme Court “has con-
strued the phrase ‘in custody’ very broadly” in the habeas
context. Id. We found it particularly relevant that the Court
had recognized federal jurisdiction over habeas claims based
on future as well as present confinement. Id. (citing Braden
v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 488-89
(1973)). In light of that precedent and its underlying policy
“of encouraging prompt resolution of federal constitutional
claims,” we concluded that we had jurisdiction to hear Wil-
son’s claim under § 2241. Id. at 824.
[2] Just as Wilson brought a double jeopardy challenge to
a pending retrial while incarcerated as a result of unchal-
lenged prior convictions, Harrison brings a double jeopardy
challenge to a pending retrial while incarcerated as a result of
a guilty verdict that he does not presently challenge. Although
Wilson involved a double jeopardy challenge to a pending
2784 HARRISON v. GILLESPIE
guilt phase retrial rather than a pending capital sentencing
retrial, the distinction does not affect our conclusion that we
have jurisdiction over Harrison’s claim. Trial-like capital sen-
tencing proceedings are fully covered by the Double Jeopardy
Clause. See Bullington v. Missouri, 451 U.S. 430, 446 (1981).
The interests of a capital defendant in not being retried for the
death penalty are at least as strong as the interests of any other
defendant in not being retried for a lesser offense. Id. at 445.
Accordingly, if the Double Jeopardy Clause prohibits the
State from seeking the death penalty at Harrison’s sentencing
retrial, allowing capital sentencing proceedings to go forward
would create a “violation of the Constitution or laws or trea-
ties of the United States.” 28 U.S.C. § 2241(c). The interpre-
tation of § 2241 urged by the State would create federal
jurisdiction to prevent double jeopardy violations in the con-
text of a guilt phase retrial, but not in the context of a capital
sentencing retrial to which the same protections apply. We do
not believe that Congress would have intended such an anom-
alous result. We therefore conclude that we have jurisdiction
under § 2241 to reach the merits of Harrison’s claim.
We next address whether the requirements imposed by the
Antiterrorism and Effective Death Penalty Act of 1996 apply
to this appeal. See Pub. L. No. 104-132, Title I, § 104, 110
Stat. 1218. When a petitioner is “in custody pursuant to the
judgment of a State court” (emphasis added), 28 U.S.C.
§ 2254 limits the authority of federal courts to grant habeas
relief. See White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.
2004). However, if no valid judgment of conviction is in
place, § 2254 does not apply. Murashige, 389 F.3d at 888.
Here, no judgment of conviction has been entered against
Harrison. Indeed, no valid judgment of conviction could have
been entered at this stage, because Nevada law requires such
a judgment to set forth “the adjudication and sentence” in
addition to the verdict. See Petrocelli v. Angelone, 248 F.3d
877, 891 (9th Cir. 2001) (citing Nev. Rev. Stat. § 176.105(1)).
Accordingly, Harrison is not “in custody pursuant to the judg-
HARRISON v. GILLESPIE 2785
ment of a State court,” and the requirements imposed by
§ 2254 do not apply to his habeas petition.
Another AEDPA provision requires that a habeas petitioner
seeking review of “the final order in a habeas corpus proceed-
ing in which the detention complained of arises out of process
issued by a State court” must obtain a Certificate of Appeala-
bility. 28 U.S.C. § 2253(c)(1)(A) (emphasis added). We have
held this requirement applicable to petitions brought under 28
U.S.C. § 2241(c)(3). Wilson, 554 F.3d at 825. Harrison has
satisfied this requirement, as he obtained a Certificate of
Appealability from this court on May 21, 2009.
[3] The deferential standards of review imposed by
AEDPA do not apply to § 2241 petitions. Wilson, 554 F.3d at
828 (citing Murashige, 389 F.3d at 888). “We review de novo
a district court’s decision granting or denying a petition for a
writ of habeas corpus filed pursuant to § 2241.” Id. (citing
Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149 (9th Cir.
2002)).
Having established our jurisdiction over this claim, and
bearing in mind the appropriate standard of review, we turn
now to the merits of Harrison’s habeas corpus petition.
III. Discussion
In the habeas petition presented to the district court, Harri-
son originally raised two separate arguments in support of his
claim that the Double Jeopardy Clause would be violated if
the State were permitted to seek the death penalty at his pend-
ing sentencing retrial. First, Harrison argued that the original
trial jury had acquitted him of the death penalty. Second, Har-
rison argued that the trial court abused its discretion by
declaring a mistrial, because there was no manifest necessity
to do so without first granting Harrison’s request to poll the
jury concerning their verdict as to the death penalty. Although
Harrison no longer contends that the record establishes an
2786 HARRISON v. GILLESPIE
implied acquittal of the death penalty, the two issues are inter-
related, such that an explanation of why the implied acquittal
claim fails is necessary to the explanation of why the manifest
necessity claim succeeds. Accordingly, we address both
issues.
A. Implied Acquittal
[4] The Double Jeopardy Clause states that no person shall
“be subject for the same offence to be twice put in jeopardy
of life or limb.” U.S. Const. amend. V. The Supreme Court
has explained the values underlying this requirement:
[T]he State with all its resources and power should
not be allowed to make repeated attempts to convict
an individual for an alleged offense, thereby subject-
ing him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxi-
ety and insecurity, as well as enhancing the possibil-
ity that even though innocent he may be found
guilty.
Green v. United States, 355 U.S. 184, 187-88 (1957). These
values “are equally applicable when a jury has rejected the
State’s claim that the defendant deserves to die.” Bullington
v. Missouri, 451 U.S. 430, 445 (1981).
Notwithstanding the text of the Double Jeopardy Clause,
not all retrials create a double jeopardy violation. Rather, “the
law attaches particular significance to an acquittal.” United
States v. Scott, 437 U.S. 82, 91 (1978). A defendant cannot be
retried for an offense of which he has been expressly acquit-
ted, through a not guilty verdict, or impliedly acquitted,
through a guilty verdict on a lesser included offense that
occurs after the jury has had a full and fair opportunity to
reach a verdict and has not reported deadlock on the greater
offense. Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir.
2007) (citing Green, 355 U.S. at 191).
HARRISON v. GILLESPIE 2787
[5] The Double Jeopardy Clause applies to capital sentenc-
ing proceedings that “have the hallmarks of the trial on guilt
or innocence.” Bullington, 451 U.S. at 439. Those hallmarks
include a hearing held separately from the guilt phase, legal
standards constraining the jury’s choice among sentencing
options, and a requirement that the prosecution must prove
additional facts beyond guilt in order to obtain a sentence of
death. Id. at 438-39. If a defendant has been acquitted of the
death penalty at a trial-like sentencing proceeding, “the pro-
tection afforded by the Double Jeopardy Clause to one acquit-
ted by a jury also is available to him, with respect to the death
penalty, at his retrial.” Id. at 446; see also Arizona v. Rumsey,
467 U.S. 203, 212 (1984) (reaffirming that, after a defendant
is “acquitted” of the death penalty in a capital sentencing pro-
ceeding that resembles a trial, he cannot be retried for the
death sentence).
[6] Although the Double Jeopardy Clause prohibits a capi-
tal sentencing retrial after a defendant has been acquitted of
the death penalty, imposition of a lesser sentence will not
always be interpreted as an implied acquittal of the death pen-
alty.7 Sattazahn v. Pennsylvania, 537 U.S. 101, 107 (2003)
7
If a non-death sentence does not satisfy the standard for establishing
an implied acquittal of the death penalty, the absence of an acquittal does
not mean that the prosecution can continue to seek the death penalty in
spite of the imposition of the lesser sentence. “The double jeopardy clause
prohibits additions to criminal sentences in a subsequent proceeding where
the legitimate expectation of finality has attached to the sentence.” Stone
v. Godbehere, 894 F.2d 1131, 1135 (9th Cir. 1990) (citing United States
v. DiFrancesco, 449 U.S. 117, 139 (1980)). State sentencing law consti-
tutes one potential source of such a legitimate expectation. Id. Under
Nevada law, a sentence becomes final when the judgment is signed by the
judge and entered by the clerk. Miller v. Hayes, 604 P.2d 117, 118 (Nev.
1979) (citing Nev. Rev. Stat. § 176.105). In addition, Nevada law provides
that the jury shall have responsibility for sentencing determinations in
death penalty cases, unless it cannot unanimously agree upon a verdict.
Nev. Rev. Stat. §§ 175.554(2), 175.556(1). The state’s sentencing law
creates no procedure through which the prosecution or the court may dis-
turb a jury’s unanimous decision to impose a sentence of life rather than
2788 HARRISON v. GILLESPIE
(citing Bullington, 451 U.S. at 446). Rather, an acquittal will
be found only if the lesser sentence resulted from “findings
sufficient to establish legal entitlement to the life sentence” —
i.e., findings that the prosecution failed to prove the additional
facts beyond guilt necessary to create death eligibility, despite
having had “one complete opportunity” to do so. Id. at 108,
115.
Here, Harrison’s sentencing hearing was “comparable to a
trial for double jeopardy purposes.” Rumsey, 467 U.S. at 209.
The penalty phase was a separate hearing at which evidence
was presented by both sides and the parties made opening and
closing statements. The jury did not have unlimited discretion
to choose among sentencing options; rather, its discretion to
impose the death penalty was strictly constrained by a
requirement that it make new findings beyond those required
to find guilt.8 “[A] defendant in Nevada becomes death eligi-
ble only after two steps: a finding that at least one aggravator
exists and a finding that the mitigating evidence does not out-
weigh any aggravator or aggravators.” McConnell v. State,
107 P.3d 1287, 1292 (Nev. 2005) (en banc) (per curiam). Both
death. Accordingly, a defendant would have a legitimate expectation in the
finality of a jury’s unanimous decision to impose a non-death sentence
unless he affirmatively chose to challenge the sentence or the underlying
conviction. See United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir.
1987) (A defendant “has no legitimate expectation of finality in the origi-
nal sentence when he has placed those sentences in issue by direct appeal
and has not completed serving a valid sentence.”).
8
In Nevada, if the mitigating circumstances do not outweigh the aggra-
vating circumstances, the death penalty is not mandatory; the jury may at
that point choose between death and three different non-capital sentences.
Nev. Rev. Stat. § 200.030(4). A lesser penalty of incarceration, however,
is mandatory if the findings are insufficient to impose death; i.e., if the
findings are either that there are no aggravating circumstances or that the
mitigating circumstances outweigh the aggravating circumstances. Id.
§ 175.554(3); see also id. § 200.030(4)(a). In that case, three different
non-capital sentencing options are available to the jury. Id.
§ 200.030(4)(b).
 HARRISON v. GILLESPIE 2789
of those findings had to be made by the jury; neither could be
made by the judge. Johnson v. State of Nevada, 59 P.3d 450,
460-61 (Nev. 2002) (per curiam).
[7] Because Nevada’s capital sentencing laws require “two
distinct findings to render a defendant death-eligible,” id. at
460, a defendant can be acquitted of the death penalty either
through a finding that no aggravating circumstance exists, or
through a finding that the mitigating circumstances outweigh
the aggravating circumstances. Nev. Rev. Stat. § 175.554(3).
Although the State argues that the “weighing” determination
is “not a finding of fact,” the Nevada Supreme Court has held
to the contrary:
[The] finding regarding mitigating circumstances is
necessary to authorize the death penalty in Nevada,
and we conclude that it is in part a factual determi-
nation, not merely discretionary weighing. So even
though Ring expressly abstained from ruling on any
“Sixth Amendment claim with respect to mitigating
circumstances,” we conclude that Ring requires a
jury to make this finding as well: “If a State makes
an increase in a defendant’s authorized punishment
contingent on the finding of a fact, that fact — no
matter how the State labels it — must be found by
a jury beyond a reasonable doubt.”
Johnson, 59 P.3d at 460 (emphasis added) (citing Ring v. Ari-
zona, 536 U.S. 584, 597 n.4, 602 (2002)).9
We are puzzled by one aspect of the law of Nevada. For
years, the Nevada Supreme Court expressly recognized that
9
Because the Nevada Supreme Court held in Johnson that the jury’s
determination as to whether mitigation outweighed aggravation is a factual
finding rather than “merely discretionary weighing,” the dissent’s charac-
terization of that finding as “a profoundly discretionary matter” is incor-
rect as a matter of Nevada law. See dissent at 2812.
2790 HARRISON v. GILLESPIE
“[t]o obtain a death sentence, the State must prove beyond a
reasonable doubt that at least one aggravating circumstance
exists and that the aggravating circumstance or circumstances
outweigh any mitigating evidence.” Gallego v. State, 23 P.3d
227, 239 (Nev. 2001) (en banc) (emphasis added); see also
Johnson, 59 P.3d at 460 (quoted supra p. 2790); Witter v.
State, 921 P.2d 886, 896 (Nev. 1996) (per curiam) (“[T]he
death penalty is an available punishment only if the state can
prove beyond a reasonable doubt at least one aggravating cir-
cumstance exists, and that the aggravating circumstance or
circumstances outweigh the mitigating evidence offered by
the defendant.” (emphasis added)), abrogated on other
grounds by Byford v. State, 994 P.2d 700 (Nev. 2000).
Recently, however, the Nevada Supreme Court stated that
“[n]othing in the plain language of [the relevant statutory]
provisions requires a jury to find, or the State to prove,
beyond a reasonable doubt that no mitigating circumstances
outweighed the aggravating circumstances in order to impose
the death penalty” and that the court itself “has imposed no
such requirement.” McConnell v. State, 212 P.3d 307, 314-15
(Nev. 2009) (per curiam).10 In support of that assertion, the
court cited only cases decided in and before 1995, and did not
acknowledge its contrary decisions issued in and after 1996.
We need not speculate as to what the Nevada Supreme
Court will say in the future regarding the applicability of the
“beyond a reasonable doubt” standard to the second of the
two required findings, because the resolution of that issue has
no impact on the outcome of this case. Whatever else it may
or may not have done, the recent decision of the Nevada
10
In McConnell, a state habeas petitioner brought an ineffective assis-
tance claim “based on appellate counsel’s failure to argue that the district
court should have instructed the sentencing jury that the aggravating fac-
tors had to outweigh the mitigating factors beyond a reasonable doubt
before it could impose death.” 212 P.3d at 314. The Nevada Supreme
Court rejected the claim because it concluded that “the underlying legal
argument would not have had a reasonable probability of success on
appeal.” Id.
HARRISON v. GILLESPIE 2791
Supreme Court neither altered the trial-like character of
Nevada’s capital sentencing proceedings nor eliminated the
statutory requirements for death eligibility. A defendant can-
not be given the death penalty in Nevada unless the jury finds
that the mitigating circumstances do not outweigh the aggra-
vating ones. Nev. Rev. Stat. § 175.554(3). Accordingly, even
if the State had no burden at all with regard to that finding,
a finding to the contrary, regardless of the burden, would still
be “sufficient to establish legal entitlement to the [non-
capital] sentence,” Sattazahn, 537 U.S. at 108, and thus would
constitute an acquittal for purposes of the Double Jeopardy
Clause.11
[8] Here, the jury signed one verdict form indicating that
it had found the existence of an aggravating factor, and
another indicating that it had found the existence of twenty-
four mitigating factors. We therefore know that the jury made
one of the two factual findings necessary to establish Harri-
son’s statutory eligibility for the death penalty. However, the
verdict forms do not tell us whether or not the jury then found
that the twenty-four mitigating factors outweighed the aggra-
vating factor — a finding that would have made him statu-
torily ineligible for the death penalty. Accordingly, the verdict
11
The State’s assertion that the prosecution “bears no burden with
regard to the finding of mitigating circumstances or the weighing process”
is not only irrelevant, for the reasons explained above, but is refuted by
the decisions of the Nevada Supreme Court. See, e.g., Floyd v. State, 42
P.3d 249, 258 (Nev. 2002) (en banc) (per curiam) (“The State has the bur-
den of . . . proving that aggravating circumstances exist and are not out-
weighed by any mitigating circumstances.”), abrogated on other grounds
by Grey v. State, 178 P.3d 154 (Nev. 2008) (en banc); see also Witter, 921
P.2d at 896 (rejecting the argument that Nevada’s death penalty statute
“shifts the burden of proof to the defendant to prove that mitigating cir-
cumstances outweigh aggravating circumstances”); accord Blake v. State,
121 P.3d 567, 580 (Nev. 2005) (en banc). The recent McConnell decision
stated only that the State was not required to carry its burden “beyond a
reasonable doubt.”
2792 HARRISON v. GILLESPIE
forms do not allow us to reach any conclusion as to whether
the jury acquitted Harrison of the death penalty.12
The notes passed to the trial court by the deadlocked jurors
are similarly inconclusive. The notes stated that the jury was
hung between life with parole and life without parole, giving
rise to the inference that the jury had eliminated the death
penalty as a sentencing option. Even if this information con-
clusively established the status of the jury’s deliberations —
which it does not, since no official vote was taken or
announced in open court — it would not tell us whether the
jury favored a penalty other than death as a matter of choice
(i.e., despite its finding that the aggravating factor outweighed
the mitigating factors), or as a matter of legal obligation (i.e.,
because it found that the mitigating factors outweighed the
aggravating factor).
12
The dissent makes two erroneous assertions about the conclusions that
can be drawn based on the verdict forms. First, the dissent states that the
“findings reflected on these verdict forms . . . establish [Harrison’s] eligi-
bility for [the death penalty.]” Dissent at 2811. The Nevada Supreme
Court, however, has held that a defendant is not eligible for the death pen-
alty unless the jury makes the factual determination that mitigating factors
did not outweigh aggravating factors. Johnson, 59 P.3d at 460. Because
no such finding was reported on the verdict forms, this first assertion is
incorrect as a matter of Nevada law. Second, the dissent makes the contra-
dictory claim that the verdict forms “reflect[ ] a lack of unanimous agree-
ment about whether or not the aggravation outweighed the mitigation.”
Dissent at 2811. As we have noted, however, unlike the question whether
aggravating and mitigating factors exist and the number of each, nothing
on the verdict forms suggested that the jury could report its finding on
whether mitigators outweighed aggravators or vice versa in the absence of
an agreement upon the ultimate sentence to be imposed. See supra at
2780. Accordingly, the verdict forms are entirely consistent with the prop-
osition that the jury had unanimously determined that the mitigating fac-
tors outweighed the aggravating factor, thereby acquitting Harrison of the
death penalty. They are, of course, also consistent with the proposition that
it had not. Only the inquiry of the jury requested by Harrison would have
shown which was correct: whether he had been acquitted of the death pen-
alty or not.
HARRISON v. GILLESPIE 2793
[9] Considering the record before us,13 we are left to con-
clude that it is entirely possible — even likely — that the jury
had unanimously agreed that the twenty-four mitigating cir-
cumstances outweighed the single aggravating circumstance,
and that the jury had therefore made the factual finding that
rendered Harrison statutorily ineligible for the death penalty.
Still, on the record alone, we have an insufficient basis on
which to reach a definitive conclusion. There was, however,
a simple way to determine whether the jury had made the crit-
ical factual determination. Harrison requested that the jury be
polled in order to ask it whether it had determined that the
mitigating factors outweighed the aggravating factor. The
jury’s answer would have established whether it had acquitted
him of the death penalty. However, the trial court denied the
request, dismissed the jury, and declared a mistrial. Because
of the trial judge’s decision to declare a mistrial without
granting Harrison’s polling request, we cannot determine
whether the jury acquitted Harrison of the death penalty.
Accordingly, his implied acquittal claim must fail.
B. Manifest Necessity
Had the judge polled the jury before declaring a mistrial,
and had the jury announced that it had unanimously found
that the mitigators outweighed the aggravator, Harrison would
have been unambiguously acquitted of the death penalty, and
the State would be barred from seeking that penalty in future
sentencing proceedings.14 Had it answered otherwise, the
13
Harrison has conceded that the juror declarations obtained after trial
have no evidentiary weight here, as a matter of law, and that is the State’s
legal position as well. Accordingly, we do not consider the declarations as
part of the record upon which we may base our decision.
14
Our discussion of polling does not reflect any determination that poll-
ing offered the only means of protecting Harrison’s double jeopardy
rights. Rather, it results from Harrison’s specific request that the trial court
“poll the 12 individual jurors and ask them individually if any of them
made the determination that the mitigation outweighed the aggravations in
2794 HARRISON v. GILLESPIE
State would have been free to seek the death penalty once
more. Accordingly, we now turn to the question whether,
under these circumstances, the declaration of a mistrial with-
out Harrison’s consent constituted an abuse of discretion.15
[10] The Double Jeopardy Clause, in addition to “unequiv-
ocally prohibit[ing] a second trial following an acquittal[,]
. . . . also embraces the defendant’s valued right to have his
trial completed by a particular tribunal.” Arizona v. Washing-
ton, 434 U.S. 497, 503 (1978) (citation and internal quotation
marks omitted). At the same time, “a variety of circumstances
. . . may make it necessary to discharge a jury before a trial
is concluded.” Id. at 503. When those circumstances do not
this matter.” The trial court denied that request without offering any alter-
native means of determining whether Harrison had been acquitted of the
death penalty — for example, by asking the foreperson whether the jury
had reached unanimous agreement as to whether the mitigators out-
weighed the aggravators, or by providing the jury with an additional ver-
dict form and allowing it to report whether it had or could resolve that
issue without agreeing on a sentence. Should the parties expressly agree
to substitute a report by the foreperson for a polling of the jurors by the
court, that alternative would certainly be acceptable. Moreover, the parties
could, of course, agree to a foreperson’s report without waiving their right
to an open juror poll by the court. The prosecution has no right, however,
to bar a juror poll if requested by the defendant, at least in the absence of
some good cause not present here. Of course, if a defendant consents to
the declaration of a mistrial at any time, including after an inquiry into the
status of a jury’s deliberations, whether that inquiry involves individual
polling or any other procedure, manifest necessity is not required. See
United States v. Scott, 437 U.S. 82, 93 (1978).
15
Our analysis is simplified by the fact that the court was informed
before it dismissed the jury of the answer to the first question that could
have determined that Harrison could not be tried a second time on the
issue of the death penalty. The jury had answered that question, whether
an aggravating circumstance existed, adversely to Harrison, thus leaving
only the answer to the second question to inform the court whether the
jury had decided that the State had failed to prove that Harrison was death-
eligible. Accordingly, although Harrison asked that the jury be polled on
both questions, we will hereafter discuss only the second.
HARRISON v. GILLESPIE 2795
result in unfairness to the defendant, a trial court may exercise
its discretion to declare a mistrial, and a subsequent prosecu-
tion will not violate the Double Jeopardy Clause. Id. at 505.
However, because of the importance of a defendant’s right to
a single trial, a declaration of a mistrial violates a defendant’s
double jeopardy rights if it is done without his consent, unless
there is a “manifest necessity” for the court’s action. Id.
[11] A jury’s inability to reach a verdict can, in some cir-
cumstances, create “manifest necessity” for declaring a mis-
trial. Id. While an appellate court owes “great deference” to
a trial court’s decision to declare a mistrial because of a hung
jury, “[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.” Id. at 510
n.28.
[12] Here, the question is not whether the trial court
abused its discretion in determining, based on the verdict
forms and the colloquy with the foreperson, that the jury had
reached an impasse as to the sentence to be imposed. The
jury’s failure to agree upon a sentence provides no informa-
tion about whether it had acquitted Harrison of the death pen-
alty by unanimously reaching a final determination that, under
the facts as it had found them, he was statutorily ineligible for
that penalty.16 As we have explained, see supra at 2793, there
is a substantial possibility that the jury had already resolved
that preliminary question in Harrison’s favor after it had first
determined that there were twenty-four mitigating factors and
16
The colloquy between the trial court and the foreperson addressed
only whether the jury could reach an agreement as to the ultimate sentence
to be imposed, and not whether the jury had already resolved the prelimi-
nary factual questions that determined Harrison’s statutory eligibility for
the death penalty. Accordingly, United States v. Cawley, 630 F.2d 1345
(9th Cir. 1980), cited by the dissent, is inapposite. Cawley addressed the
difference between questioning the foreperson and polling each juror indi-
vidually. Here, however, the trial court did not poll the jurors or ask the
foreperson whether the jury had acquitted Harrison of the death penalty.
2796 HARRISON v. GILLESPIE
one aggravating one. Accordingly, the issue presented in this
case is not whether the judge should have declared a mistrial
at all, but whether the mistrial should have been declared
without first honoring Harrison’s request to ask whether the
jury had acquitted him of the death penalty. If there was no
manifest necessity to dismiss the jury without asking it
whether it had done so, the trial court abused its discretion by
declaring a mistrial in violation of the rights guaranteed to
Harrison under the Double Jeopardy Clause.17
1.
We first examine the Nevada statutes cited by the prosecu-
tion in opposition to Harrison’s polling request. As explained
below, our decision does not examine the validity of those
statutes, because none posed any barrier to the granting of
Harrison’s request.
The first statute cited by the prosecution prohibits asking a
juror about “the effect of anything upon his or any other
17
The district court did not address this issue in its decision denying
Harrison’s habeas petition. The State contends that the issue “[has] not
been squarely raised in this case until now and [has] not been previously
addressed by any court below.” Harrison did, however, raise these issues
both in the state courts and the federal district court. In his Motion to
Strike, he argued that the members of the jury “had each independently
determined that [his] mitigating circumstances outweighed the aggravating
circumstances of his crime” and that the Double Jeopardy Clause “entitled
[him] to establish the record of the jury’s verdict so that his rights could
be protected.” Before the Nevada Supreme Court, he argued that the jury
had “determined that the mitigation evidence outweighed the aggravation
evidence” and that “[u]nder the Fifth and Fourteenth Amendments, [he]
was entitled to establish the record of the jury’s verdict so that his rights
could be protected.” In the habeas petition presented to the district court,
he argued that the jury “unanimously concluded that the mitigating factors
outweighed the one aggravating factor” and that he “was entitled to estab-
lish the record concerning the jury’s verdict so that his Double Jeopardy
rights could be protected.” We conclude that the issue was squarely and
adequately raised below.
HARRISON v. GILLESPIE 2797
juror’s mind or emotions as influencing him to assent or to
dissent from the verdict or indictment or concerning his men-
tal processes in connection therewith.” Nev. Rev. Stat.
§ 50.065. Harrison requested a poll as to the jury’s conclusion
about his statutory eligibility for the death penalty. This was
an objective question about whether the jury had resolved an
issue that it was required to resolve, not an inquiry into the
jury’s emotions or thought processes in reaching its conclu-
sions. Accordingly, the trial court would not have violated
this statute by granting Harrison’s polling request.
The second statute cited by the prosecution requires the
jury to be polled at the request of any party, or by the court
sua sponte, after the jury returns a verdict. Nev. Rev. Stat.
§ 175.531. The statute does not state that only post-verdict
polling is permissible, and therefore would not have prohib-
ited the judge from polling the jurors after they had reported
their inability to reach a sentencing decision.
The third and final statute sets forth the procedure to be fol-
lowed when a jury is unable to reach a unanimous sentencing
decision in a capital case. Nev. Rev. Stat. § 175.556(1). When
that situation occurs, “the district judge who conducted the
trial or accepted the plea of guilty shall sentence the defendant
to life imprisonment without the possibility of parole or
impanel a new jury to determine the sentence.” Id. In Harri-
son’s case, the judge chose the latter option. Nothing in the
statute, however, precluded the judge from conducting a poll,
before discharging the initial jury, in order to determine either
whether it was actually deadlocked or whether Harrison had
been acquitted of the death penalty so that only the non-death
sentencing options would be submitted to the new jury.
[13] “A court abuses its discretion when it rests its deci-
sion on an inaccurate view of the law.” United States v. Jones,
472 F.3d 1136, 1141 (9th Cir. 2007) (citing United States v.
Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005)). Although it is
clear that the statutes cited by the prosecution did not preclude
2798 HARRISON v. GILLESPIE
the trial court from honoring Harrison’s polling request, and
that the prosecution’s view of the law was erroneous, the
record does not make clear whether the trial court relied on
the cited statutes in denying the request. The judge’s response
to the parties’ arguments about polling does not state why she
believed that she was not permitted to make any inquiry that
went beyond the verdict forms, whatever the reason for her
belief:
The problem is if they found that the — 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 mitiga-
tors. The only way for us to know that is to see what
form is actually filled out. I suspect, of course, nei-
ther 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 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.
As explained below, the court was clearly in error. There was
a way for it to determine whether the jury had acquitted Harri-
son of the death penalty. In fact, the court not only was per-
mitted but required to honor his request to determine whether
the jury had done so. By denying the polling request on the
basis that the verdict forms provided “[t]he only way for us
to know” what the jury decided, the judge relied upon an erro-
neous interpretation of the law, believing that her discretion
to inquire into the jury’s findings was constrained. Because
HARRISON v. GILLESPIE 2799
the judge failed to explain why she concluded that there was
no way to determine whether the jury had “acquitted” Harri-
son of the death penalty, we will explain below why her con-
clusion was legally erroneous and why she was obligated to
grant Harrison’s counsel’s request.
2.
[14] The specific issue before us — whether the trial judge
in a capital case is required to grant a request to poll the jury
when it may have reached a unanimous determination that the
defendant was statutorily ineligible for the death penalty —
has rarely reached the courts.18 The Nevada Supreme Court
may have addressed this issue in Daniel v. State of Nevada,
78 P.3d 890 (Nev. 2003). In that case, the defendant was
found guilty, and the jury was unable to reach a verdict during
the penalty phase. Id. at 896. The defendant argued that the
trial court erred by “refusing to poll the jury to determine if
the jury had unanimously rejected death and had deadlocked
on a lesser sentence.” Id. That question is of course broader
than the question before us: whether the jury had unanimously
found that the mitigating factors outweighed the aggravating
factor. In any event, the Nevada state court rejected the defen-
dant’s argument with only a conclusory statement and no
explanation:
Appellant asserts that before dismissing the jurors
the district court should have granted his request to
poll them to determine whether they had unani-
18
This is due in part to the uniqueness of Nevada’s capital sentencing
scheme. Only 35 states have the death penalty to begin with. In 28 of those
states, either the ultimate decision to impose the death penalty is not made
by the jury, or there are only two sentencing options, so that a hung jury
necessarily reflects an absence of unanimity as to the death penalty. Three
states and the federal system have safety-valves wherein if a jury cannot
reach a unanimous decision, a lesser sentence must be imposed by the
court. Nevada is one of only four jurisdictions in which the circumstances
present in Harrison’s case could possibly arise.
2800 HARRISON v. GILLESPIE
mously rejected death and were deadlocked over a
lesser sentence. Because appellant argues that impo-
sition of the death penalty after remand and retrial
would violate the Double Jeopardy Clause, we reach
this issue and conclude that the district court was not
required to poll the jurors. Cf. People v. Hickey, 103
Mich.App. 350, 303 N.W.2d 19, 21 (1981); A Juve-
nile v. Com., 392 Mass. 52, 465 N.E.2d 240 (1984).
Id. at 906 (footnoted citation included as main text). As we
explained earlier, the jury could have rejected the death pen-
alty even if it had made the two factual findings that rendered
the defendant eligible for a capital penalty. Thus, the answer
to the question whether the jury rejected the death penalty
would not have answered the question whether the jury had
found the defendant statutorily ineligible for the death pen-
alty. The Nevada court could have rejected the defendant’s
appeal on the ground that the requested polling could not have
established the acquittal necessary to trigger double jeopardy
protections. Primarily for this reason, but also because Daniel
does not state whether it is construing Nevada’s double jeop-
ardy clause or the double jeopardy clause of the Fifth Amend-
ment, we are unable to conclude that the Nevada Supreme
Court has previously interpreted the United States Constitu-
tion with respect to the question now before us.19
A number of courts have addressed the issue that arises
when a greater offense and lesser included offenses are sub-
mitted to a jury, the jury reports its inability to reach a verdict,
and the defendant seeks to establish whether the jury has
unanimously agreed on acquittal of the greater offense. Courts
have split as to whether a trial court facing that situation
abuses its discretion by declaring a mistrial without allowing
19
In Harrison, the Nevada Supreme Court reached the equally unhelpful
conclusion that its “intervention by way of extraordinary writ [was] not
warranted.” This tells us little or nothing as to whether the court consid-
ered, let alone decided, the question we must answer here.
HARRISON v. GILLESPIE 2801
the defendant to create a record of the jury’s decision as to the
greater offense.
A New Hampshire Supreme Court decision typifies the rea-
soning of courts holding that a trial court must grant a defen-
dant’s request to poll a hung jury in order to determine
whether it has acquitted the defendant of the greater offense.
The court framed the question as “whether, without first
inquiring what the jury had in fact done, there was a ‘manifest
necessity’ to declare a mistrial or whether the ends of public
justice would otherwise be defeated if the trial court failed to
discharge the jury.” State v. Pugliese, 422 A.2d 1319, 1320-
21 (N.H. 1980) (per curiam). Deciding the case under the
double jeopardy clause of the New Hampshire constitution,
the court answered that question in the negative and held that
a retrial on the greater offense was barred:
Not only did the trial court fail to expressly find a
manifest necessity, but no such necessity could have
been found. Nor would the ends of public justice
have been defeated by simply asking the jury if they
had reached a verdict on the [greater] charge. If the
answer had been in the negative, there would then
have been a basis for the mistrial. If the answer had
been that the jury had agreed on acquittal, then the
defendant’s “valued right” would have been upheld.
There was no necessity at all, much less a high
degree of necessity, to declare a mistrial before mak-
ing the inquiry requested. All possible alternatives to
a mistrial must be considered, employed and found
wanting before declaration of a mistrial over the
defendant’s objection is justified. That was not done
in this case.
Id. at 1321 (citations omitted); see also Wallace v. Havener,
552 F.2d 721, 724 (6th Cir. 1977) (“There is no acceptable
reason why the state should have a second opportunity to con-
vince a jury of facts necessary to secure a conviction of a
2802 HARRISON v. GILLESPIE
crime.”); Stone v. Superior Court, 646 P.2d 809, 820 (Cal.
1982) (“[T]he trial court is constitutionally obligated to afford
the jury an opportunity to render a partial verdict of acquittal
on a greater offense when the jury is deadlocked only on an
uncharged lesser included offense. Failure to do so will cause
a subsequently declared mistrial to be without legal necessi-
ty.”).
In People v. Hickey, 303 N.W.2d 19 (Mich. App. 1981), the
Michigan Court of Appeals reached the opposite conclusion.
The court determined that “polling the jury on the various
possible verdicts submitted to it would constitute an unwar-
ranted and unwise intrusion into the province of the jury.” Id.
at 21. The court also expressed the concern that “jury votes
on included offenses may be the result of a temporary com-
promise in an effort to reach unanimity.” Id.; accord A Juve-
nile v. Commonwealth, 465 N.E.2d 240, 244 (Mass. 1984).
[15] We are persuaded by the reasoning of the cases
decided in favor of granting a defendant’s polling request, and
certainly in a capital case. We believe that the cases give
appropriate weight to a defendant’s “valued right to have his
trial completed by a particular tribunal,” Washington, 434
U.S. at 503, and recognize that there can be no “manifest
necessity” for declaring a mistrial without allowing the defen-
dant the opportunity to establish whether he has been acquit-
ted of a charge brought against him.
The concerns expressed in the cases that disfavor polling
are simply too insubstantial to outweigh the countervailing
risk that a defendant will be subjected to a second trial for an
offense of which he has already been acquitted. A jury poll,
when conducted in open court and with proper instructions,
does not create a risk that a juror’s temporary compromise
vote will be erroneously treated as a final conclusion. When
the pressure to compromise is a concern, courts have recog-
nized that polling is the solution, not the problem. “Polling is
useful to indicate an irregularity in a verdict.” United States
HARRISON v. GILLESPIE 2803
v. Paniagua-Ramos, 135 F.3d 193, 199 (1st Cir. 1998) (citing
Siverson v. O’Leary, 764 F.2d 1208, 1219-20 (7th Cir. 1985)).
This is because a poll places the members of a jury “in a situ-
ation (i.e., polling in open court) that allows them to be free
of jury-room coercion.” United States v. Williams, 990 F.2d
507, 512 (9th Cir. 1993). Moreover, any concern about tenta-
tive findings can be resolved by simply instructing the mem-
bers of the jury to answer the polled question in the
affirmative only if they have reached a final conclusion. See
also supra note 14.
Under the circumstances of this case, the concern about
temporary compromise votes carries even less weight than in
other contexts. Harrison sought to poll the jury as to whether
it had found that the mitigating circumstances of his crime
outweighed the aggravating circumstance. Under Nevada law,
the jury’s answer to that question did not affect the availabil-
ity of any sentence other than death. See Nev. Rev. Stat.
§ 200.030(4); id. § 175.554(3). A vote that the mitigating cir-
cumstances outweighed the aggravating circumstance would
thus have little value as a temporary compromise, because
unanimous agreement on that issue would eliminate death as
a possible penalty without bringing the jury any closer to
agreement on a particular non-death sentence.20 When asked
in open court whether the juror had reached a final conclusion
that the mitigating circumstances of Harrison’s crime out-
weighed the aggravating circumstance, we can see no reason
for a juror to respond with an affirmative answer unless the
juror had actually concluded with finality that Harrison was
statutorily ineligible for the death penalty.
20
When reporting a non-death sentence, the jury would have had to
choose between one form stating that “the aggravating circumstance or
circumstances outweigh any mitigating circumstance or circumstances”
and another stating that “the mitigating circumstance or circumstances
outweigh any aggravating circumstance or circumstances.” However,
there is no reason to believe that the decision about which form to use in
reporting a non-death sentence would bring the jury any closer to a deci-
sion about which non-death sentence should be imposed.
2804 HARRISON v. GILLESPIE
Nor do we believe that the requested inquiry would imper-
missibly invade the province of the jury. Courts are permitted
to make “brief and objective inquiries into the status of jury
deliberations.” United States v. Ross, 626 F.2d 77, 81 (9th Cir.
1980). When a jury announces that it has come to an impasse,
asking “whether the jury [has] reached a unanimous verdict
on any one count” is permissible. Id. at 80. Moreover, a court
may ask a jury to clarify an inconsistent or ambiguous verdict.
United States v. McCaleb, 552 F.3d 1053, 1058 (9th Cir.
2009) (citing Larson v. Neimi, 9 F.3d 1397, 1402 (9th Cir.
1993)). There is no relevant distinction between those inqui-
ries and the one at issue here. Whether the jury unanimously
found that the mitigators outweighed the aggravators is a sin-
gle, objective, yes-or-no question that would have been
answered by which verdict form was used if the jury had
agreed upon a sentence. The requested poll would not have
required the members of the jury to reveal their reasons for
reaching a particular conclusion, see United States v. Nelson,
692 F.2d 83, 85 (9th Cir. 1982), or any other protected aspect
of the deliberative process. Rather, it would have elicited
clearly permissible information: whether the jury had reached
a unanimous decision about one of the factual issues it was
required to resolve in the prosecution’s favor before it could
consider imposition of the death penalty.
[16] In summary, the requested poll would have conclu-
sively established whether Harrison had been acquitted of the
death penalty without creating a significant risk of giving
final weight to a tentative conclusion or intruding upon pro-
tected aspects of the deliberative process. Under these circum-
stances, there was no manifest necessity for declaring a
mistrial over the defendant’s objection without first polling
the jury as to whether it had unanimously found that the miti-
gating circumstances of his crime outweighed the aggravating
circumstance. Accordingly, we hold that the trial court abused
its discretion by declaring a mistrial without granting Harri-
son’s polling request.
HARRISON v. GILLESPIE 2805
C. Future Proceedings
Having concluded that the trial court abused its discretion
by declaring a mistrial in the absence of manifest necessity,
we must now determine what means are available to ensure
that the pending state sentencing proceedings will not violate
Harrison’s rights under the Double Jeopardy Clause.
[17] In the context of a guilt phase trial for related
offenses, a double jeopardy violation may bar retrial as to the
greater offense, the lesser included offense, or both, depend-
ing on the nature of the prejudice to the defendant. See Braz-
zel, 491 F.3d at 986-87; United States v. Jose, 425 F.3d 1237,
1241-44 (9th Cir. 2005). Because the Double Jeopardy Clause
applies fully to trial-like capital sentencing proceedings, see
Bullington v. Missouri, 451 U.S. 430, 446 (1981), the same
principle applies to the sentencing options available in such
proceedings, and a double jeopardy violation may bar retrial
for the death penalty while permitting the imposition of
another sentence. Here, Harrison was prejudiced by the trial
court’s erroneous refusal to allow him to establish whether the
jury had acquitted him of the death penalty. That error did not
cause him any prejudice with regard to the other sentencing
options. Accordingly, the requirements of the Double Jeop-
ardy Clause would be satisfied by simply barring the State
from seeking the death penalty in any future proceedings, and,
of course, barring the courts from imposing that penalty.
Before determining finally that a sentencing proceeding
involving only non-death options is the appropriate remedy in
this case, however, we explore one alternative means of cur-
ing the trial court’s failure to honor Harrison’s polling request
before dismissing the jury. If the original jury could be recon-
stituted and polled as to whether it had unanimously deter-
mined during deliberations that the mitigating circumstances
of Harrison’s crime outweighed the aggravating circumstance,
and if that procedure were adequate to establish a reliable
record of its verdict, the prejudice to Harrison would be
2806 HARRISON v. GILLESPIE
removed. Both parties have expressed their opposition to this
course of action, and Harrison has argued that it would be
contrary to law. For the reasons stated below, we conclude
that reassembling the jury would not provide an adequate cure
for the trial court’s erroneous denial of Harrison’s polling
request.
We begin by examining whether reconvening Harrison’s
original jury would be permissible under Nevada law. No
Nevada statute expressly allows or disallows reassembly of a
jury after it has been discharged, but a Nevada Supreme Court
decision sheds considerable light on how the state courts
would view such a procedure. In Davidson v. State of Nevada,
192 P.3d 1185, 1186 (Nev. 2008), the court considered
“whether the district court can change a jury’s verdict from
not guilty to guilty for a criminal charge based on a purported
clerical error after the jury has been discharged.” The court
acknowledged a Nevada statute providing that “[c]lerical mis-
takes in judgments, orders or other parts of the record and
errors in the record arising from oversight or omission may be
corrected by the court at any time and after such notice, if
any, as the court orders.” Id. at 1189 & n.9 (quoting Nev. Rev.
Stat. § 176.565). However, the court found the application of
that statute to be limited by the Double Jeopardy Clause,
which “does not allow the district court to enhance a verdict
if the jury has been discharged.” Id. at 1189. In reaching that
conclusion, the court cited Burchett v. Commonwealth, 734
S.W.2d 818, 820 (Ky. Ct. App. 1987), for the proposition that
“[o]nce a jury is discharged, it cannot reassemble if the jurors
have separated and have left the presence of the courtroom.”
Davidson, 192 P.3d at 1189 n.10. Although the court dis-
cussed both the Double Jeopardy Clause of the federal Consti-
tution and its counterpart in the Nevada constitution, the court
appeared to base its decision on the federal constitutional pro-
vision. Id. at 1188-89. Accordingly, while Davidson advises
that the United States Constitution would not allow a jury to
be reassembled after it had been discharged, the case does not
compel that conclusion as a matter of Nevada state law.
HARRISON v. GILLESPIE 2807
Like Davidson, our own precedent strongly suggests that
reassembling a jury to report on guilt or innocence is unlaw-
ful. “A court treads on dangerous ground when it reassembles
the jurors to clarify a verdict after the trial has concluded.”
United States v. Boone, 951 F.2d 1526, 1532 (9th Cir. 1991).
With the passage of time, “memories may fail, and in the
interim, ex parte contact with former jurors by dissatisfied liti-
gants may encourage jurors to falsify or invent facts.” Id.
(quoting People v. Romero, 646 P.2d 824, 829 (Cal. 1982)).
In light of the many problems associated with belated jury
polls, we concluded in Boone that the jury could not be recon-
vened to clarify a discrepancy between its written and oral
verdicts more than two years after the trial had ended. Id.
We reached a similar conclusion in United States v. Wash-
ington, 819 F.2d 221 (9th Cir. 1987). Two years after a jury
found the defendant guilty, we determined that the trial court
had erred by failing to expose potential juror prejudice during
voir dire. Id. at 224. The government suggested reassembly of
the jury in order to question each juror about the unexamined
source of potential prejudice. Id. We rejected that suggestion,
in part because “[m]emories fade and biases change over
time,” undermining the reliability of such a procedure. Id. We
also recognized that reassembling a jury after the passage of
two years would involve “manifest difficulties,” including the
logistical problems involved in locating each of the twelve
jurors, and would be a wasted effort if any member of the jury
could not be reached. Id. at 224-25. Our decision rested
largely on such “pragmatic” considerations. Id. at 225; see
also United States v. Sweat, 555 F.3d 1364, 1368 (11th Cir.
2009) (concluding that three months after the jury had been
dismissed, reassembly implicated “inherent concerns about
recalling and interrogating jurors, plus the likely fogging of
memories with the passage of time from the end of the trial”).
Other courts have held that a jury may not be reassembled
for polling after it has dispersed, citing concerns about the
impact of lifting the admonition against discussing the case or
2808 HARRISON v. GILLESPIE
engaging in ex parte contact after the trial has ended. For
example, the Seventh Circuit reasoned that even after a single
day, a jury “will have been subjected to exposure of outside
factors rendering the reliability of any poll on recall problem-
atic.” United States v. Marinari, 32 F.3d 1209, 1213 (7th Cir.
1994). The court explained:
[A]fter discharge, the jurors are quite properly free
to discuss the case with whomever they choose. Sim-
ple questions such as “Did we do alright?” or “We
did the right thing, didn’t we?”— responded to either
positively or negatively would taint any subsequent
poll. In any realistic sense, no meaningful poll, unaf-
fected by outside influences, could be conducted at
this point.
Id. at 1214. The court thus determined that “the jury contin-
ued to exist as a judicial body under the control of the court”
only during the time that the members of the jury “had not
dispersed and . . . remained untainted by any outside contact.”
Id. at 1215; see also Speaks v. United States, 617 A.2d 942,
949 (D.C. App. 1992) (“While a poll of the jury immediately
after return of a verdict or immediately after a note of dead-
lock is a commonly accepted procedure, a poll comes too late
after the jury has dispersed.”).
Here, more than three years have passed since Harrison’s
original jury was dismissed on November 27, 2006. We are
aware of no case, civil or criminal, in which we have allowed
a court to reassemble a jury after such a significant passage
of time.21 All of the concerns noted above — the reliability
21
In E.F. Hutton & Co., Inc. v. Arnebergh, 775 F.2d 1061, 1063 (9th
Cir. 1985), the trial court reconvened the jury several weeks after the close
of a civil trial in order to clarify an ambiguity in the verdict. Because the
parties had stipulated to that procedure, we allowed the judgment to stand
without deciding whether reassembling the jury had been proper. Id. at
1064. Here, in contrast, both Harrison and the State have expressed their
opposition to reassembling the jury.
HARRISON v. GILLESPIE 2809
problems caused by the fogging of memory over time; the
logistical difficulties involved in contacting and reconvening
twelve jurors, some of whom may have moved away or died
in the interim; and the potential bias introduced by outside
influences after the admonition has been lifted — are present
in this case.
We are especially concerned that a belated poll of Harri-
son’s original jury would be tainted by outside influences.
Because death penalty cases attract a great deal of interest and
publicity, we safely assume that most if not all of the jurors
read about Harrison’s case or discussed it with friends and
family after the trial ended. Moreover, because three jurors
gave affidavits for the defense and one gave an affidavit for
the prosecution, we can be certain that extensive ex parte con-
tact has occurred. Accordingly, even if the logistical problems
were resolved such that a poll of the reassembled jury could
occur, we have no confidence that the poll would accurately
reflect what the jury decided during its deliberations more
than three years ago.
[18] Under these circumstances, reassembling Harrison’s
jury for polling would be neither feasible nor adequate to cure
the constitutional violation that occurred when the trial court
declared a mistrial in the absence of manifest necessity. By
failing to honor Harrison’s polling request, the trial court
deprived him of the only possible means of establishing
whether he had been acquitted of the death penalty. Accord-
ingly, we conclude that the State must not be permitted to
seek, and the sentencer may not impose, the death penalty
against Harrison in any future proceeding relating to the
offense on which he was tried.
Conclusion
The trial court abused its discretion by declaring a mistrial
without first granting Harrison’s request to poll the jury as to
whether it had unanimously determined that the mitigating
2810 HARRISON v. GILLESPIE
circumstances of his crime outweighed the aggravating cir-
cumstance such that he was statutorily ineligible for the death
penalty. Under these circumstances, allowing the State to
seek, or the court to impose, the death penalty in the pending
sentencing proceeding would violate the rights guaranteed to
Harrison under the Double Jeopardy Clause. Accordingly, we
REVERSE the decision of the district court and REMAND
with instructions to issue a writ directing the State to refrain
from seeking the death penalty at Harrison’s sentencing retrial
or at any future sentencing proceeding.
REVERSED and REMANDED WITH INSTRUC-
TIONS.
SILVERMAN, Circuit Judge, dissenting:
The foreperson told the judge in open court, without contra-
diction, that the jury was deadlocked on the issue of punish-
ment. There is no court case anywhere holding that the
constitution requires a state trial judge to ask more specific
questions about the status of the jury’s unfinished delibera-
tions in a sentencing matter entrusted to its discretion. In the
face of the jury’s return of the unsigned punishment verdict
forms, plus the foreman’s statement that the jury was at an
impasse as to the sentence, the trial judge did not abuse her
discretion in declaring a mistrial and ordering a new sentenc-
ing trial.
Two jurors sent the judge a note indicating that the jury
was deadlocked between life with parole and life without
parole. The remaining ten jurors neither signed nor sent such
a note. Everyone agrees that a note is not a verdict.
The judge then called the jury into open court and the fol-
lowing colloquy occurred:
HARRISON v. GILLESPIE 2811
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 impasse in terms of a punishment in this case?
THE FOREPERSON: I think it is at an impasse.
Although the judge’s question focused on whether a verdict
had been reached “in terms of a punishment in this case,” and
even though the notes were specifically referenced, none of
the other jurors, not even the note-writers, contradicted the
foreperson.
The court then obtained the four verdict forms and ascer-
tained that only two of them had been signed by the foreper-
son. The two signed forms reflected unanimous findings of
both aggravating and mitigating factors. It is undisputed that
the findings reflected on these verdict forms do not acquit
Harrison of the death penalty. To the contrary, they establish
his eligibility for it.
The two remaining verdict forms were returned unsigned,
reflecting a lack of unanimous agreement about whether or
not the aggravation outweighed the mitigation, and whether
death or some term of imprisonment should be imposed. If the
jury had returned a verdict indicating unanimous agreement
that the mitigation outweighed the aggravation, Harrison
would have been acquitted of the death penalty. But that is not
what happened. The forms calling for the weighing of the
aggravation against the mitigation were returned unsigned. To
recap, the verdict forms reflected unanimous findings of
aggravating and mitigating factors, but no finding on whether
2812 HARRISON v. GILLESPIE
the aggravation outweighed the mitigation, or whether the
sentence should be death or some period of incarceration.
Harrison’s counsel wanted the court “to poll the 12 individ-
ual jurors and ask them individually if any of them made the
determination that the mitigation outweighed the aggravations
in this matter.” However, the trial judge was not constitution-
ally obligated to question each juror individually before find-
ing a deadlock and declaring a mistrial. According to United
States v. Cawley, 630 F.2d 1345, 1349 (9th Cir. 1980),
“[u]pon receiving a communication from the jury that agree-
ment cannot be reached, the judge must question the jury to
determine independently whether further deliberations might
overcome the deadlock. A judge can appropriately determine
that there is a manifest necessity for a mistrial by questioning
only the jury foreman.” (citations omitted).
The foreperson’s answers to the judge’s questions were cat-
egorical, unequivocal, uncontradicted, and consistent with the
jury’s failure to return a written verdict. Conspicuously miss-
ing from the majority opinion is a single federal case — or
indeed any case — establishing a constitutional right to a par-
tial verdict when it comes to sentencing, and certainly not
when a jury is required to “weigh” intangible factors and ulti-
mately determine a just punishment as a matter of discretion.
The verdict in a penalty phase trial is the gestalt of the jury’s
weighing, balancing, and moral judgment. It is the jury’s final
decision that counts, not its thoughts in progress. Whether or
not the state judge could have engaged in more detailed ques-
tioning, the federal constitution simply does not require an
inquiry into the status of unfinished deliberations in a pro-
foundly discretionary matter such as this before declaring a
mistrial.
A trial judge has “broad discretion in deciding whether or
not ‘manifest necessity’ justifies a discharge of the jury. . . .
The trial judge’s decision to declare a mistrial when he con-
siders the jury deadlocked is therefore accorded great defer-
HARRISON v. GILLESPIE 2813
ence by a reviewing court.” Arizona v. Washington, 434 U.S.
497, 510 (1978). The state trial court did not abuse its discre-
tion in finding that the jury was at an impasse with respect to
the sentence and in declaring a mistrial. Because a retrial on
sentencing will not violate Harrison’s right against double
jeopardy, Sattazahn v. Pennsylvania, 537 U.S. 101, 109
(2003), the district court correctly denied the petition for writ
of habeas corpus. I therefore respectfully dissent.