Harrison v. Gillespie

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES M. HARRISON,  No. 08-16602
Petitioner-Appellant,
v.  D.C. No.
2:08-cv-00802-RCJ
DOUGLAS GILLESPIE,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding

Argued and Submitted
September 23, 2010—San Francisco, California

Filed February 15, 2011

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.;
Concurrence by Chief Judge Kozinski;
Dissent by Judge Thomas;
Dissent by Judge Reinhardt

2379
 HARRISON v. GILLESPIE 2383

COUNSEL

David M. Schieck, Clark County Special Public Defender,
Las Vegas, Nevada; JoNell Thomas (argued) and Scott Bind-
rup, 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; Cather-
ine Cortez Masto, Nevada Attorney General, Carson City,
Nevada, for the respondent-appellee.
2384 HARRISON v. GILLESPIE
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 constitu-
tional 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 sen-
tence, 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.

FACTUAL AND PROCEDURAL BACKGROUND

Harrison was convicted of first-degree murder on Novem-
ber 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:
 HARRISON v. GILLESPIE 2385
[W]e had two notes from two different jurors indi-
cating 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 fruit-
ful 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 “be-
fore 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 aggrava-
tors were proved beyond a reasonable doubt. I would
ask that this Court inquire of that. And then the sec-
ond 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.
1
The court stated that the notes would be entered into the record, but
they were not.
2386 HARRISON v. GILLESPIE
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 argu-
ing 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 find-
ings of aggravating factors] is blank and it has been
signed by the foreperson, then . . . that would indi-
cate that they did not find the existence of an aggra-
vating 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 miti-
gators 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
 HARRISON v. GILLESPIE 2387
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 com-
pleted. The first two forms showed that the jury had found
2388 HARRISON v. GILLESPIE
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 Harri-
son’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 possibil-
ity of parole, life without parole, or death. The second form
was meant to be used if the jury “found that the mitigation cir-
cumstance 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 imprison-
ment, 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 indepen-
dently determined that Harrison’s mitigating circumstances
outweighed the aggravating circumstances of the crime.” Har-
rison submitted affidavits from three former jurors which,
according to Harrison, constituted “a crystal clear acquittal”
of the death penalty. The three affidavits, dated February 17,
2006, March 22, 2006, and December 18, 2006,3 were all sub-
stantially similar. They stated that “once inside the juror
room, one juror announced that she had determined that the
2
The jury found “beyond a reasonable doubt” that “[t]he murder
involved the mutilation of the victim.”
3
Since the jury was discharged on November 27, 2006, we assume that
the February and March affidavits were executed in 2007, rather than
2006.
 HARRISON v. GILLESPIE 2389
death penalty was ‘off the table.’ ” The foreperson (who was
one of the three affiants) then took a vote “to determine if all
the jurors agreed that ‘death was off the table,’ or that death
would not be an option during deliberation. The vote on this
issue was twelve (12) to zero (0) in favor of removing death
as a potential verdict.” The three affidavits further stated
“[t]hat my personal deliberation included weighing the miti-
gating evidence against the aggravating evidence and that I
determined that the mitigation evidence outweighed the evi-
dence of aggravation.” Finally, the affidavits stated that, “if I
had been polled by the Court before being excused from ser-
vice, I would have answered that I had determined that the
mitigating circumstances outweighed the aggravating circum-
stance.”

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 stat-
ing 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
stay further penalty-phase proceedings. The next day, Harri-
son filed a “Petition for Writ of Mandamus, or in the Alterna-
tive, a Writ of Prohibition and Emergency Motion for Stay of
Proceedings” with the Nevada Supreme Court. Harrison again
argued that the juror affidavits established a “crystal clear
acquittal” of the death penalty. The Nevada Supreme Court
issued a preliminary stay of further penalty-phase proceed-
ings, but on September 7, 2007, it denied Harrison’s petition
4
We mention the jurors’ dueling affidavits only to explain the full con-
text and procedural history of the case. We may not consider jurors’ testi-
mony addressing the jury’s deliberative process unless the testimony
“bear[s] on extraneous influences on the deliberation.” United States v.
Pimentel, 654 F.2d 538, 542 (9th Cir. 1981) (citing Mattox v. United
States, 146 U.S. 140, 148-49 (1892); Fed. R. Evid. 606(b)). Here, it does
not.
2390 HARRISON v. GILLESPIE
because “intervention by way of extraordinary writ is not war-
ranted,” and vacated the stay.

On June 20, 2008, Harrison filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241 in the United States
District Court for the District of Nevada. His petition raised
two arguments: first, that he had been acquitted of the death
penalty because the jurors had unanimously concluded that
the mitigating factors outweighed the aggravating factors, and
second, that the trial court erred by declaring a mistrial with-
out polling the jurors to determine whether they had unani-
mously concluded that the mitigating factors outweighed the
aggravating factors. Harrison’s petition requested that the
court order the State “to cease attempts at obtaining the death
penalty” and order the state court “not to entertain any further
capital proceedings . . . .”

The district court denied the writ after concluding that Har-
rison had failed to establish that he had been acquitted of the
death penalty. The court concluded that the partially com-
pleted verdict forms failed to establish that the jury had con-
cluded that the mitigating factors outweighed the aggravating
factors. The court also concluded that the post-trial juror affi-
davits 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.
Rather, Harrison argues that the Nevada trial court erred by
declaring a mistrial without polling the jury to determine if it
“had reached a unanimous verdict concerning the death penal-
ty.” A merits panel of our court stayed the pending state-court
proceedings, granted the petition over Judge Silverman’s dis-
sent, Harrison v. Gillespie, 590 F.3d 823 (9th Cir.), with-
drawn and superseded, 596 F.3d 551 (9th Cir. 2010), and a
 HARRISON v. GILLESPIE 2391
majority of the active nonrecused judges on our court voted
to rehear the case en banc, 608 F.3d 1117 (9th Cir. 2010).

JURISDICTION AND STANDARD OF REVIEW

We agree with the original panel majority’s discussion of
28 U.S.C. § 2241 and the standard of review. Harrison, 596
F.3d at 559-61. Our precedent makes clear that 28 U.S.C.
§ 2241 is the proper vehicle for asserting a double jeopardy
claim prior to (or during the pendency of) a successive trial.
See Wilson v. Belleque, 554 F.3d 816, 822-24 (9th Cir.), cert.
denied, 130 S. Ct. 75 (2009). The Supreme Court has
explained that 28 U.S.C. § 2241 allows individuals who are
“in custody under one sentence to attack a sentence which
they had not yet begun to serve.” Braden v. 30th Judicial Cir-
cuit Court of Ky., 410 U.S. 484, 498 (1973). In light of the
Supreme Court’s precedents stating that the Double Jeopardy
Clause can bar the state from re-seeking the death penalty in
certain cases, e.g., Bullington v. Missouri, 451 U.S. 430, 446
(1981), the principles discussed in Wilson v. Belleque are
properly extended to the present case. In effect, Harrison is
currently in custody under an indeterminate sentence for his
first-degree murder conviction, and he is attacking the possi-
bility of receiving a death sentence in the future. We therefore
have jurisdiction under 28 U.S.C. § 2241.

For the reasons stated by the original panel majority, Harri-
son, 596 F.3d at 561, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, does not
apply to this appeal. By its own terms 28 U.S.C. § 2254
applies only to individuals in “custody pursuant to the judg-
ment of a State court,” and it is undisputed that the Nevada
courts have not yet entered judgment against Harrison.
Accordingly, we review the district court’s conclusions de
novo, and the state trial court’s grant of a mistrial for abuse
of discretion. See Wilson, 554 F.3d at 828; Arizona v. Wash-
ington, 434 U.S. 497, 510 & n.28 (1978).
2392 HARRISON v. GILLESPIE
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 Jeop-
ardy 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. Gil-
lespie, 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.” U.S. Const. amend.
V. In Bullington, the Supreme Court held that the Double
Jeopardy Clause applies to capital-sentencing proceedings
that “have the hallmarks of [a] trial on guilt or innocence.”
451 U.S. at 439. The Court explained that the Double Jeop-
ardy Clause bars the retrial of a defendant following a deter-
mination that the “government . . . failed to prove its case[ ].”
Id. at 442 (internal quotation marks omitted). The Court con-
cluded that, although sentencing proceedings ordinarily are
governed by discretionary judgments, the Double Jeopardy
Clause applies to any sentencing proceeding that “explicitly
requires the jury to determine whether the prosecution has
‘proved its case.’ ” Id. at 444. If a trial-like sentencing pro-
ceeding is resolved in the defendant’s favor, the Double Jeop-
ardy Clause bars the state from subsequently seeking the same
sentence, because “[a] verdict of acquittal on the issue of guilt
or innocence is, of course, absolutely final.” Id. at 445.

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
 HARRISON v. GILLESPIE 2393
on appeal because it was premised on legal error, the Court
held that the initial finding was preclusive because “an acquit-
tal 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 dif-
ferent 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 particu-
lar 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 argu-
ment 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 pen-
alty. Id. After the underlying conviction was reversed on
appeal, the state again sought the death penalty on retrial. Id.
at 105. Addressing the petitioner’s claim that the Double
Jeopardy Clause barred the state’s second attempt to obtain
the death penalty, the Court emphasized that “the touchstone
for double-jeopardy protection in capital-sentencing proceed-
ings is whether there has been an ‘acquittal.’ ” Id. at 109. The
Court noted that the defendant’s life sentence had been
imposed by operation of a statute rather than the jury’s factual
2394 HARRISON v. GILLESPIE
conclusion that the state had not proven its case. Id. at 109-10.
Absent an express or implied finding of guilt or innocence,
the Court explained, a deadlocked jury is a “non-result” for
double jeopardy purposes. Id. at 109.

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 dead-
locked 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 con-
viction for second-degree murder operates as implied acquit-
tal on first-degree murder count).

[3] Thus, in a jury trial, an “acquittal,” whether express or
implied, occurs only when the jury renders a verdict as to all
or some of the charges against a defendant. Accordingly,
since acquittals are the “touchstone for double-jeopardy pro-
tection in capital-sentencing proceedings,” Sattazahn, 537
U.S. at 109, then jury verdicts are an essential element in find-
ing double jeopardy as well.5 “ ‘[A] jury has not reached a
5
There are two basic types of verdicts, general verdicts and special ver-
dicts:
 HARRISON v. GILLESPIE 2395
valid verdict until deliberations are over, the result is
announced in open court, and no dissent by a juror is regis-
tered.’ ” United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir.
1982) (quoting United States v. Taylor, 507 F.2d 166, 168
(5th Cir. 1975)); see also United States v. Rastelli, 870 F.2d
822, 834 (2d Cir. 1989) (noting that this rule is “well estab-
lished”) (collecting cases). In order to fulfill its essential func-
tions, a jury must engage in group deliberations that result in
a collective determination of guilt or innocence. See Williams
v. Florida, 399 U.S. 78, 100 (1970). As then-Judge Kennedy
explained for our court, the purpose of the deliberative pro-
cess is to reach unanimity (or the requisite supermajority in
some jurisdictions), which in turn “insure[s] that the views of
each of the jurors have been fully considered and expressed.”
United States v. Lopez, 581 F.2d 1338, 1342 (9th Cir. 1978).
“[T]he minority view [must] be examined and, if possible,
accepted or rejected by the entire jury.” Id. at 1341; see also
Johnson v. Louisiana, 406 U.S. 356, 361 (1972). Because of
the significance of the entire deliberative process, the jurors’
preliminary votes in the jury room do not constitute a final
verdict, even if they are unanimous. United States v.
Chinchic, 655 F.2d 547, 549-50 (4th Cir. 1981); see also Tay-
lor, 507 F.2d at 168 (collecting cases). Instead, the verdict
must be rendered by the jury in open court and accepted by
the court in order to become final. Nelson, 692 F.2d at 84-85.6

“[I]f the jury announces only its ultimate conclusions, it returns
an ordinary general verdict; if it makes factual findings in addi-
tion 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.”
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)).
6
Under Nevada law, in cases imposing the death penalty the jury must
return a “written verdict.” Nev. Rev. Stat. § 175.554(4) (“If a jury imposes
a sentence of death, the jury shall render a written verdict signed by the
foreman.”).
2396 HARRISON v. GILLESPIE
The court may also reject the jury’s verdict if it is inconsistent
or ambiguous. See, e.g., United States v. Freedson, 608 F.2d
739, 741 (9th Cir. 1979) (per curiam).7

B. Partial Verdicts and Nevada’s Capital-Sentencing
Regime

[4] The general principles discussed supra undercut Harri-
son’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, Nev.
Rev. Stat. § 175.554(3); Hollaway v. State, 6 P.3d 987, 996
(Nev. 2000) (en banc); that finding is considered a factual
determination under Nevada law, Johnson v. State (Johnson
I), 59 P.3d 450, 460 (Nev. 2002) (en banc) (per curiam). Sec-
ond, each juror must individually conclude that the mitigating
factors do not outweigh the aggravating factors, Nev. Rev.
Stat. § 175.554(3); Hollaway, 6 P.3d at 996; that conclusion
is “in part a factual determination” and in part “discretionary
weighing” under Nevada law, Johnson I, 59 P.3d at 460.
Third, the jury must unanimously decide to impose the death
penalty rather than life without the possibility of parole, life
with the possibility of parole, or a fixed sentence with the pos-
sibility of parole, Nev. Rev. Stat. § 200.030(4); Hollaway, 6
P.3d at 996; this is “a moral decision that is not susceptible
to proof,” McConnell v. State (McConnell II), 212 P.3d 307,
315 (Nev. 2009) (en banc) (per curiam). If the jury is unable
7
The parties may poll the jury in order “to ascertain for a certainty that
each of the jurors approves of the verdict as returned.” Humphries v. Dist.
of Columbia, 174 U.S. 190, 194 (1899). Such a poll exists primarily to dis-
pel uncertainty about the jury’s verdict. See, e.g., Nelson, 692 F.2d at
84-85; United States v. Lustig, 555 F.2d 737, 746 (9th Cir. 1977) (holding
that trial court did not abuse its discretion by not conducting multiple polls
of jury where none of the jurors expressed uncertainty or disagreement
about the verdict).
 HARRISON v. GILLESPIE 2397
to agree upon a sentence, the trial court may either “sentence
the defendant to life imprisonment without the possibility of
parole or impanel a new jury to determine the sentence.” Nev.
Rev. Stat. § 175.556(1).

[5] We note that, in certain cases, defendants in Nevada
may file a pretrial motion to bifurcate the capital-sentencing
hearing into distinct phases. See Johnson v. State (Johnson II),
148 P.3d 767, 770 (Nev. 2006) (en banc). In Johnson II, for
example, the court granted the motion and bifurcated the hear-
ing into a “death-eligibility” phase (in which the jury returned
a special verdict finding (1) an aggravating circumstance
beyond a reasonable doubt and (2) that the aggravating cir-
cumstance outweighed the mitigating circumstances) and a
“selection” phase (in which the jury concluded that the death
penalty was the appropriate punishment). Id. at 771, 773. But
here, in contrast to Johnson II, there is no evidence that Harri-
son requested a bifurcated penalty-phase proceeding, objected
to the trial court’s special verdict forms, or submitted alterna-
tive verdict forms that would have allowed the jury to render
a partial verdict of acquittal.

[6] Furthermore, the Nevada Supreme Court has explained
that although juries are given special verdict forms to guide
their analysis in these unbifurcated penalty-phase proceed-
ings, these forms are not legally significant. See Gallego, 23
P.3d at 239-40. Instead, the only conclusion of any signifi-
cance is the jury’s final sentencing decision.8 See id. at 240
(holding that “a verdict form specifying [the jury’s mitigation]
findings is not required”); see also Nev. Rev. Stat.
§ 175.554(4). Contrary to Judge Reinhardt’s suggestion in his
separate dissent, the purpose of the penalty-phase proceeding
under Nevada law is not simply to decide whether the defen-
8
If the sentence is death, however, the jury must also specify the aggra-
vating circumstance(s) and conclude that the mitigating circumstances do
not outweigh the aggravating circumstance(s). Nev. Rev. Stat.
§ 175.554(4).
2398 HARRISON v. GILLESPIE
dant is legally eligible for a capital sentence and whether such
a sentence should be imposed. See Reinhardt Dissent at
2425-27. Rather, the purpose of the penalty-phase proceeding
is to impose a final sentence, whether it be life without the
possibility of parole, life with the possibility of parole, a fixed
term of years, or, in some cases, the death penalty. See Nev.
Rev. Stat. § 200.030(4). In other words, unless the penalty-
phase proceeding is bifurcated, 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.

[7] In light of the structure of Nevada’s capital-sentencing
scheme, and the underlying principles discussed supra, Harri-
son 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 circum-
stances, second, with respect to the balancing of the aggravat-
ing 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 pro-
ceeding 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
9
It goes without saying—and Harrison has never argued as much—that
the jury’s partially completed special verdict forms do not constitute a par-
 HARRISON v. GILLESPIE 2399
C. The United States Constitution Does Not Create a
Per Se Right to Polling in Harrison’s Case

Harrison contends that even though the penalty phase was
conducted as an unbifurcated proceeding, the Double Jeop-
ardy 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 constitu-
tional 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 dis-
charge 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 con-
stitutional 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

tial verdict in his favor. Even if we were to conclude that these forms were
properly “returned by the jury to the judge in open court,” Nev. Rev. Stat.
§ 175.481, the forms provide no indication that the jury weighed the miti-
gating factors with the aggravating factor. This is an essential and required
step in determining whether the death penalty may be imposed under
Nevada law. See Nev. Rev. Stat. § 175.554(3).
10
As described supra, Nevada law does not recognize a “partial verdict
of acquittal” in unbifurcated capital sentencing proceedings. The only
“verdict” is the jury’s final sentence. It is thus more appropriate to say that
Harrison requested that the court inquire about the jury’s preliminary
determinations rather than a “partial verdict.” In light of Nevada’s capital-
sentencing scheme, Harrison’s proposed rule is not simply a requirement
that trial courts inquire about a partial verdict on a distinct charge, as is
the issue presented in all of the prior case law (except for Daniel v. State,
78 P.3d at 906, which like Harrison’s case addressed a jury deadlock in
2400 HARRISON v. GILLESPIE
such decisions are entrusted to the sound discretion of trial
judges, as they are properly positioned to determine whether
such a mid-deliberation inquiry is warranted in the circum-
stances.

At the outset, we note that there can be no reasonable dis-
pute that the jury was genuinely deadlocked regarding its
determination of Harrison’s sentence under Nevada Revised
Statutes § 175.554(2)(c). Harrison never objected to the
court’s conclusion that the jury was deadlocked, and Harrison
does not now challenge the accuracy of the court’s conclusion
that the jury was unable to reach agreement as to his sentence.
Instead, our dissenting colleagues suggest that there was no
“manifest necessity” for declaring a mistrial, but overlook the
undisputed fact that the jury was genuinely deadlocked
regarding its final verdict. See Thomas Dissent at 2412-16,
2419-21. It is well established that “[a] ‘mistrial premised
upon the trial judge’s belief that the jury is unable to reach a
verdict has been long considered the classic basis for a proper
mistrial.’ ” Renico v. Lett, 130 S. Ct. 1855, 1863 (2010) (alter-
ations omitted) (quoting Washington, 434 U.S. at 509). Here,
neither Harrison’s trial counsel, appellate counsel, nor our dis-
senting colleagues suggest that the jury was not deadlocked
regarding the issue presented to it—which sentence to impose
on Harrison.

Nevada capital-sentencing proceedings). Rather, Harrison essentially
requested that the trial court submit special interrogatories to the jury in
order to determine if any of the elements of the charge had been rejected.
Although a Nevada penalty-phase jury must consider three distinct factual
and legal issues, the jury is not presented with distinct charges or counts
upon which it might render a partial verdict. Instead, the jury may render
a final verdict only if it agrees upon a sentence; anything short of that final
conclusion is merely a preliminary determination, not a verdict. Given that
there is no evidence that Harrison ever requested a bifurcated penalty-
phase hearing, revised special verdict forms, or explicit jury instructions
informing the jury about the possibility of acquitting him of the death pen-
alty, Harrison’s request amounted to an attempt to elicit preliminary deter-
minations on the various elements charged to the jury as a single inquiry.
 HARRISON v. GILLESPIE 2401
Nevertheless, Harrison and our dissenting colleagues con-
tend 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 individu-
ally if any of them made the determination that the mitigation
outweighed the aggravations in this matter.” Finally, he
requested “on their way out to ask whether or not they unani-
mously eliminated the death penalty as a punishment . . . .”11

[8] 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 supple-
mental 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
11
Our discussion is intended to address not only Harrison’s “polling”
argument, but also the various “alternative means of determining whether
Harrison had been acquitted of the death penalty” that the original panel
majority listed: “for example, . . . asking the foreperson whether the jury
had reached unanimous agreement as to whether the mitigators out-
weighed the aggravators, or . . . 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.” Harrison, 596 F.3d at 566 n.14.
2402 HARRISON v. GILLESPIE
the Court’s general approach to deadlocked juries, we con-
clude that trial judges are entitled to exercise their “sound dis-
cretion” when deciding whether to inquire into a jury’s
preliminary determinations before declaring a mistrial.

[9] Our conclusion is partially informed by two basic ratio-
nales: first, that a judge’s inquiry into a preliminary jury
determination can have a coercive effect on the jury, and sec-
ond, that such an inquiry may elicit the jury’s tentative or pre-
liminary vote rather than its final verdict.

[10] On numerous occasions, the Supreme Court has
warned trial judges to avoid coercing deadlocked jurors.12 The
12
The Court has addressed two basic types of coercion: deliberate coer-
cion 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 ben-
eficial, 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 implic-
itly, 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 per-
sonal opinions or the conduct of their collective deliberations, e.g., Rem-
mer, 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 con-
duct was coercive) (collecting cases), and in habeas actions, e.g.,
DeWeaver v. Runnels, 556 F.3d 995, 1007-08 (9th Cir.) (state court’s con-
duct 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).
 HARRISON v. GILLESPIE 2403
Court has expressed concern that “trial judges might . . .
‘employ coercive means to break [an] apparent deadlock,’
thereby creating a ‘significant risk that a verdict may result
from pressures inherent in the situation rather than the consid-
ered judgment of all the jurors.’ ” Renico, 130 S. Ct. at 1863
(quoting Washington, 434 U.S. at 509-10). One concern is
that “the judge appears to join one of the factions in a hung
jury,” which “thereby lends his prestige to the adherents of
that faction” and affects the course of the jury’s deliberations.
Note, On Instructing Deadlocked Juries, 78 Yale L.J. 100,
137 (1968) (hereinafter Deadlocked Juries). The judge’s par-
tiality may be subtle, such as (for instance) directing her com-
ments more toward the dissenting minority vote rather than
the majority, see Williams, 547 F.3d at 1206-07 (distinguish-
ing between cases in which judge does and does not know
identity of dissenting juror), or encouraging the jury’s “move-
ment” toward unanimity, Jiminez v. Myers, 40 F.3d 976,
980-81 (9th Cir. 1994) (per curiam). Such judicial coercion,
even if it is subtle and unintentional, creates an impermissible
risk of interference with the dynamics of the jury process, see
generally Lowenfield, 484 U.S. at 238-40, and studies have
shown that a judge’s response to deadlocked juries can have
a significant distorting effect on the course of the jury’s delib-
erations. See Sarah Thimsen et al., The Dynamite Charge:
Too Explosive for Its Own Good?, 44 Val. U.L. Rev. 93,
109-10 (2009); see also Samantha P. Bateman, Comment,
Blast it All: Allen Charges and the Dangers of Playing with
Dynamite, 32 U. Haw. L. Rev. 323, 333-38 (2010) (detailing
mock jury studies).

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,
2404 HARRISON v. GILLESPIE
supra, at 130 (describing how preliminary votes contribute to
“the most effective use” of the jury’s decision-making pro-
cess). 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 delibera-
tions might well have shaken views on counts previously con-
sidered.” Nelson, 692 F.2d at 85.13 This concern about finality
is not merely a product of rigid adherence to the proper forms
of jury procedure. Rather, it is a result of the fundamental
importance that the jury reach a final, collective decision after
full deliberation of the issues. See Lopez, 581 F.2d at 1341-42.
Tentative individual views expressed in the jury room are far
different from a true verdict, which must be unanimous, final,
and, in order to ensure its accuracy, publicly announced and
affirmed. See Nelson, 692 F.2d at 84-85. The importance of
the deliberative process cannot be overstated. Id.

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 pres-
ent 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”
13
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. Ben-
edict, 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.
 HARRISON v. GILLESPIE 2405
requires the trial court to consider reasonable alternatives to
declaring a mistrial. See Thomas Dissent at 2414-15, 2420.
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
rely largely on the generic mistrial standard announced in
United States v. Bates, 917 F.2d 388, 395-96 (9th Cir. 1991),
while overlooking the deadlock-specific standard discussed in
a number of our other cases: “the factors to be considered by
the judge include the jury’s collective opinion that it cannot
agree, the length of the trial and complexity of the issues, the
length of time the jury has deliberated, whether the defendant
has made a timely objection to the mistrial, and the effects of
exhaustion or coercion on the jury.” Rogers v. United States,
609 F.2d 1315, 1317 (9th Cir. 1979).15 This standard properly
recognizes that the Supreme Court has never required trial
courts to consider “reasonable alternatives” to discharging a
genuinely deadlocked jury. In Renico, the Supreme Court
explained that the Sixth Circuit’s Fulton v. Moore, 520 F.3d
522, 529 (6th Cir. 2008), standard-which is nearly identical to
the four-part Bates test relied upon by our dissenting col-
leagues, and like their analysis, requires trial courts to con-
sider “reasonable alternatives” to mistrial—is not an accurate
14
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 dead-
lock 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.
15
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).
2406 HARRISON v. GILLESPIE
articulation of the Supreme Court’s prior holdings. Renico,
130 S. Ct. at 1866-67. Instead, the Court has “never required
a trial judge . . . to consider any . . . means of breaking the
impasse.” Id. at 1864. An impasse is an impasse, and as we
have explained supra, the only conceivable “alternatives”
present a serious risk of coercing jurors or eliciting non-final
votes.

[11] In Harrison’s case, there is no clear indication in the
record that the jury was not genuinely deadlocked over the
sentencing verdict. Instead, this is a relatively straightforward
case in which the jury was deadlocked and expressly
informed the judge that it was unable to reach a verdict. The
judge asked whether the jury was “unable to reach a verdict,”
and the foreperson said “[y]es.” The judge also asked whether
“the jury [wa]s at an impossible impasse in terms of a punish-
ment in this case,” and the foreperson answered that it was “at
an impasse.” Although the jury had sent a pair of notes sug-
gesting that they were deadlocked between life with the possi-
bility of parole and life without the possibility of parole, this
indication alone is not a sufficient basis for us to conclude
that the trial court abused its discretion by not inquiring fur-
ther into the possibility that the jury had conclusively rejected
the death penalty. Notably, none of the jurors objected when
the foreperson agreed that the jury was “unable to reach a ver-
dict” and was “at an impasse.”

[12] At no point during the proceeding did any of the
jurors suggest that the jury had conclusively and finally deter-
mined 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 delib-
erations would implicate the central concerns articulated here:
 HARRISON v. GILLESPIE 2407
the possibility of coercing the jury to reach a verdict, and the
possibility of treating a preliminary jury vote as a final con-
clusive 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
further about the possibility that the jury rejected the death
penalty.

CONCLUSION

[13] 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 manda-
tory right would lead to an unacceptable risk that the trial
court’s conduct would coerce the jury into reaching a compro-
mise 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 dead-
locked, we defer to the trial courts’ exercise of “sound discre-
tion” 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 possi-
bility 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 indi-
cated 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
2408 HARRISON v. GILLESPIE
the State from including the death penalty as a sentencing
option.

The district court’s order denying Harrison’s petition is
accordingly

AFFIRMED.

KOZINSKI, Chief Judge, concurring:

I join the opinion but believe there is a shorter path to the
same conclusion. Nothing prevented Harrison from seeking to
bifurcate his capital-sentencing hearing so that the jury could
render a verdict on his death eligibility, a request the trial
judge may well have granted. See, e.g., Johnson v. State, 148
P.3d 767, 770-71 (Nev. 2006). Harrison also could have
requested that the jury be instructed to return a special verdict
on the specific question of his death eligibility. Had Harrison
made a timely request for some such procedure, and had the
trial judge denied it, this would be a much harder case. We’d
then be forced to decide whether a capital defendant is consti-
tutionally entitled to insist that the jury render a separate ver-
dict as to whether he is death eligible. The Nevada Supreme
Court doesn’t seem to recognize such a right, see Summers v.
State, 148 P.3d 778, 783 (Nev. 2006); Gallego v. State, 23
P.3d 227, 241 (Nev. 2001), but it may be wrong on that score.

Harrison may have had a tactical reason for not asking for
a separate death verdict. Perhaps he feared it would empha-
size to jurors that he committed a capital offense. Or maybe
he wanted to avoid drawing attention to the aggravating
circumstance—that he carved a large swastika on the victim’s
back. Cf., e.g., United States v. Aiello, 900 F.2d 528, 533-34
(2d Cir. 1990). But if he had a constitutional right to this sepa-
rate verdict, he had to assert it before the jury retired to delib-
erate. See United States v. Jones, 425 F.2d 1048, 1057 (9th
 HARRISON v. GILLESPIE 2409
Cir. 1970); see also Fed. R. Crim. P. 30(d). His belated effort
to extract information about the state of deliberations by poll-
ing the jury after it declared itself deadlocked was unavailing
“[b]ecause a jury speaks only through its verdict,” and its “in-
ability to reach a verdict [as to punishment is] a nonevent.”
Yeager v. United States, 129 S. Ct. 2360, 2366-67 (2009).
Having failed to squarely pose the question of death eligibility
to the jury, Harrison cannot now complain that he didn’t get
an answer.

THOMAS, Circuit Judge, with whom REINHARDT,
FLETCHER, FISHER, and BERZON, Circuit Judges, join,
dissenting:

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 pen-
alty.” 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 court-
house with the jurors.

The Double Jeopardy Clause protects the “valued right of
a defendant to have his trial completed by the particular tribu-
nal 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
2410 HARRISON v. GILLESPIE
may not be tried on the same issue again if a mistrial is
declared without his consent and without “manifest necessi-
ty.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
(1824).

There was no need, much less manifest necessity, for dis-
charging 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 tri-
bunal give complete consideration to his case.” United States
v. Sammaripa, 55 F.3d 433, 434 (9th Cir. 1995). Harrison was
deprived of a likely acquittal, and the Double Jeopardy Clause
prevents him from being subject to the death penalty again.

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 par-
ticular 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 jus-
tice,” 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 dec-
laration 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 constitu-
tional 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 emo-
tional burden on the accused, prolongs the period in
 HARRISON v. GILLESPIE 2411
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. Conse-
quently, 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).

Accordingly, trial courts must use caution in deciding
whether or not to grant a mistrial sua sponte. As Justice Ste-
vens has noted, the Supreme Court has

repeatedly reaffirmed that the power to discharge the
jury prior to verdict should be reserved for “extraor-
dinary and striking circumstances,” Downum[, 372.
U.S. at 736] (internal quotation marks omitted); that
the trial judge may not take this “weighty” step, [Illi-
nois v. Somerville, 410 U.S. 458, 471 (1973)], unless
and until he has “scrupulous[ly]” assessed the situa-
tion and “take[n] care to assure himself that [it] war-
rants action on his part foreclosing the defendant
from a potentially favorable judgment by the tribu-
nal,” [Jorn, 400 U.S. at 485]; that, to exercise sound
discretion, the judge may not act “irrationally,” “irre-
sponsibly,” 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 sub-
stitute in the double jeopardy mistrial context for the
sensitive application of general standards, Jorn, 400
U.S.[ at 485].

Renico v. Lett, ___ U.S. ___, 130 S. Ct. 1855, 1869 (2010)
(Stevens, J., dissenting).
2412 HARRISON v. GILLESPIE
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 formula-
tion 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 circum-
stances into consideration, there is a manifest neces-
sity 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 circum-
stances, 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 responsibil-
ity of the Judges, under their oaths of office.

22 U.S. (9 Wheat.) at 580.

“The rule announced in the Perez case has been the basis
for all later decisions of [the Supreme Court] on double jeop-
ardy.” Wade, 336 U.S. at 690; accord. Renico, ___ U.S. at
___, 130 S. Ct. at 1862-64. Accordingly, it is well-settled that
“[a]fter jeopardy attaches, the court’s declaration of a mistrial
 HARRISON v. GILLESPIE 2413
. . . 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
“heavy” burden before a mistrial can be declared sua sponte.
Washington, 434 U.S. at 505.

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, ___ U.S.___, 129 S.
Ct. 2360, 2366 (2009) (citing Washington, 434 U.S. at
505-06; Perez, 22 U.S. (9 Wheat.) at 580). In such circum-
stances, 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 discre-
tion 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 def-
erence by an appellate court disappears.” Washing-
ton, [434 U.S. at 510 n.28].

Renico, ___ U.S. at ___, 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 necessi-
ty” and granting a mistrial: namely, whether it has “(1) heard
the opinions of the parties about the propriety of the mistrial,
2414 HARRISON v. GILLESPIE
(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 deter-
mined 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 “al-
lowed 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
held that the trial court abused its discretion in discharging the
jury without hearing from counsel. 400 U.S. at 487.

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 Jeop-
ardy Clause barred reprosecution because the district court did
not “giv[e] due consideration to reasonably available alterna-
tives 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 circum-
stances 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
 HARRISON v. GILLESPIE 2415
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 consider-
ing alternatives available to it, it cannot be said to be acting
under a manifest necessity.” 384 F.3d at 56. The First, Sec-
ond, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Elev-
enth circuits have reached a similar conclusion.1 Our own
circuit’s precedent on the matter could not be more clear. See
Bates, 917 F.2d at 396 (“A trial court should consider and
correctly evaluate the alternatives to a mistrial.”).
1
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 alterna-
tives 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 care-
fully 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 alter-
natives, 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 mis-
trial 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 alterna-
tives 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 scruti-
ny.”).
2416 HARRISON v. GILLESPIE
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 precip-
itately. 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
abrupt declaration of a mistrial suggests that it failed to exer-
cise sound discretion.” 917 F.2d at 396; see also Lovinger,
845 F.2d at 746 (“abrupt and precipitate action . . . is inconsis-
tent with the exercise of sound discretion under the ‘manifest
necessity’ test”). On the other hand, evidence of deliberation
by the trial court indicates that it exercised sound discretion.
See Washington, 434 U.S. at 516 (praising the trial judge for
acting “responsibly and deliberately” and for “accord[ing]
careful consideration to [the defendant’s] interest in having
the trial concluded in a single proceeding”); United States v.
Elliot, 463 F.3d 858, 867 (9th Cir. 2006) (“Rather than hastily
declaring a mistrial, the district court made every effort to
resolve the conflict and continue the trial.”).

The fourth factor is whether the court properly determined
that the defendant would benefit from the declaration of mis-
trial. 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 pro-
ceedings might result in an acquittal. Indeed, the Double
Jeopardy Clause “prevents a prosecutor or judge from subject-
ing a defendant to a second prosecution by discontinuing the
trial when it appears that the jury might not convict.” Green
 HARRISON v. GILLESPIE 2417
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
capital cases especially, Courts should be extremely careful
how they interfere with any of the chances of life, in favour
of the prisoner.” Perez, 22 U.S. (9 Wheat.) at 580.

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
2418 HARRISON v. GILLESPIE
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 exam-
ining them, summarily discharged the jury. The court did not
ask counsel whether they objected to the declaration of mis-
trial 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.

One of the completed and signed jury forms indicated that
the jury had found one aggravating factor. The other com-
pleted and signed form indicated that the jury had found
twenty-four mitigating factors. The forms regarding weighing
of the factors and the imposition of punishment were not
filled out. Later, three jurors submitted affidavits indicating
that the death penalty was “off the table.” One submitted an
affidavit stating that it was not.

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 indicat-
ing a finding of one aggravating factor and twenty-four miti-
2
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).
 HARRISON v. GILLESPIE 2419
gating factors, the jury made one of the two factual findings
necessary to establish Harrison’s statutory eligibility for the
death penalty. See Nev. Rev. Stat. § 175.554(3). Had the trial
court conducted the poll Harrison requested and, prior to
declaring a mistrial, simply asked the jury if it had determined
whether the mitigating factors outweighed the aggravating
factor, we would know, according to Nevada law, whether the
jury unanimously “ ‘agree[d] . . . that the prosecution ha[d]
not proved its case’ ” that Harrison deserved to die. Poland v.
Arizona, 476 U.S. 147, 152 (1986) (quoting Bullington v. Mis-
souri, 451 U.S. 430, 443 (1981)). And had the poll results
established as much, that would constitute a “finding[ ] suffi-
cient to establish legal entitlement to the life sentence.” Sat-
tazahn v. Pennsylvania, 537 U.S. 101, 108 (2003).

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 jeop-
ardy of being put to death, the court permitted the state “an-
other, more favorable opportunity to convict the accused,” an
opportunity that, but for manifest necessity, the Double Jeop-
ardy Clause forbids. Gori, 367 U.S. at 369.

Given the particular care required in making mistrial deci-
sions when it appears that a jury might not convict and, more,
in capital cases, what was the manifest necessity here? A
3
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).
2420 HARRISON v. GILLESPIE
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 propri-
ety of declaring a mistrial. The record shows that the judge
informed counsel about the jury note, defense counsel asked
for a poll of the jury, and the government opposed the poll.
Critically, the judge did not invite or entertain argument about
a mistrial after the foreperson reported in open court that the
jury had, in fact, completed two verdict forms.

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 imposi-
tion 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 instruc-
tions. 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 repre-
sentation of deadlock and promptly discharged the jury with-
4
See Allen v. United States, 164 U.S. 492 (1896).
5
See Wilkins v. State, 96 Nev. 367, 373-74 n.2 (1980).
 HARRISON v. GILLESPIE 2421
out 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 con-
clusion that there was no “manifest necessity” for the judge
to declare a mistrial without conducting the poll Harrison
requested. Especially in light of the stakes—this is a capital
case where the jury likely acquitted Harrison of the death
penalty—the conclusion is clear: the Double Jeopardy Clause
prevents subjecting the defendant to the death penalty on
retrial. As the Supreme Court observed in Washington, if a
judge “discharges the jury when further deliberations may
produce a fair verdict, the defendant is deprived of his valued
right to have his trial completed by a particular tribunal.” 434
U.S. at 509 (quotation marks omitted). The jury in this case
was discharged when it was likely that it had reached agree-
ment, or could reach agreement, on whether to impose the
death penalty. The Constitution forbids Harrison from being
placed in jeopardy of death a second time.

III

Rather than defend the manifest necessity of declaring a
mistrial without polling the jury, the government urges affir-
mance 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 pro-
tections 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
2422 HARRISON v. GILLESPIE
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-
sity test “command[s] courts in considering whether a trial
should be terminated without judgment to take ‘all circum-
stances into account’ and thereby forbid[s] the mechanical
application of an abstract formula.” Wade, 336 U.S. at 691.
The standard cannot

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 con-
cluding 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 for-
mula 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 rele-
vant 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
 HARRISON v. GILLESPIE 2423
has been settled for a long time. The doctrine of manifest
necessity is of even longer lineage. The two have lived com-
fortably 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 per-
mitted under Nevada law to poll the jury. However, none of
the statutory provisions cited would have posed a barrier to
granting Harrison’s request. The first statute, Nev. Rev. Stat.
§ 50.065, prohibits inquiry as to the juror’s mental processes.
There was nothing in Harrison’s request that remotely posed
that danger. The second statute, Nev. Rev. Stat. § 175.531,
requires the jury to be polled at the request of a party after the
jury returns a verdict. It does not address the circumstance at
bar. The third statute, Nev. Rev. Stat. § 175.556(1), provides
that when a jury is at an impasse in a capital case, the judge
has the option of imposing a life sentence without the possi-
bility of parole or impaneling a new jury. There is nothing in
that provision that prohibits a judge from taking measures to
ascertain whether the jury had made a decision regarding the
death penalty. There is nothing in Nevada law that would
have prohibited the judge from granting Harrison’s request for
a poll, or asking whether the jury was at an impasse as to the
imposition of the death penalty.

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 satis-
fied none of the standards that we have held important in find-
ing 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 dead-
locked regarding the death penalty. The trial court’s decision
2424 HARRISON v. GILLESPIE
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 sec-
ond time to impose a penalty of death.

For these reasons, I disagree with my friends in the major-
ity and must respectfully dissent.

REINHARDT, Circuit Judge, with whom Thomas, Circuit
Judge, joins, dissenting:

I join in Judge Thomas’s dissent, which so ably demon-
strates 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 pro-
ceeding. 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. Mis-
souri, 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 necessi-
1
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.
 HARRISON v. GILLESPIE 2425
ty” 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 a context-specific 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 Nev. Rev. Stat. 175.554. The trial judge none-
theless dismissed the jury without making any effort to deter-
mine whether it had arrived at a unanimous conclusion on this
question or whether it would be able to do so given more of
an opportunity to deliberate. Under the unique circumstances
presented by a capital sentencing proceeding, the declaration
of a mistrial without any attempt to determine whether the
jury had arrived or could arrive at a verdict regarding the criti-
cal issue that it was convened to answer fails to satisfy the
“manifest necessity” test, and thus violates the Double Jeop-
ardy Clause. See Somerville, 410 U.S. at 459.2

The fundamental reason why, unlike run-of-the-mill
offenses, capital crimes generally provide for separate sen-
tencing 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
2
To the extent that the majority implies that in order to conclude there
was no manifest necessity to dismiss a jury under a given set of circum-
stances there must be a Supreme Court case that has previously reached
the same conclusion, see Maj. Op. 2404-06, 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 under-
standing 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.
2426 HARRISON v. GILLESPIE
answer as to death eligibility.3 Maj. Op. at 2397-98. 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 deter-
mination of whether a human life should be taken or spared,
that discretion must be suitably directed and limited so as to
minimize the risk of wholly arbitrary and capricious action.”
Gregg v. Georgia, 428 U.S. 153, 189 (1976) (joint opinion of
Stewart, Powell, and Stevens, JJ.); see Mary Sigler, Contra-
diction, Coherence, and Guided Discretion in the Supreme
Court’s Capital Sentencing Jurisprudence, 40 Am. Crim. L.
Rev. 1151, 1152 (2003). That is, as a matter of historical fact,
separate penalty proceedings were instituted in capital cases
for the explicit purpose of having fact-finders apply objective
criteria for death eligibility, ensuring that a punishment
“unique in its severity and in its irrevocability” not be arbi-
trarily applied. Spaziano v. Florida, 468 U.S. 447, 459 n.7
(1984).4 Which form of life imprisonment or lesser sentence
is to be imposed on non-death eligible defendants who have
been “acquitted” of the death penalty is at most an incidental
or ancillary purpose of the proceeding, which could as easily
be done by allowing the trial judge to make that decision.5
3
The majority cites Nev. Rev. Stat. § 200.030(4) as authority for this
proposition. That provision simply states the various punishments avail-
able in Nevada for first-degree murder and says nothing whatsoever
regarding the use of a separate penalty hearing in capital cases.
4
See also Ring v. Arizona, 536 U.S. 584, 606 (2002) (“States have con-
structed elaborate sentencing procedures in death cases, Arizona empha-
sizes, because of constraints we have said the Eighth Amendment places
on capital sentencing.”).
5
Indeed, under Nevada law, where the jury fails to decide upon a sen-
tence in a capital case, a judge may, rather than convene a new jury, sim-
ply enter a non-capital sentence of life without parole. Nev. Rev. Stat.
§ 175.556. That a jury’s verdict is not required for a sentence of life with-
out parole in a capital case should remove any doubt that the primary con-
cern of capital sentencing proceedings in Nevada is not, as the majority
suggests, simply to allow a jury to arrive at a final sentence, even if it be
life with or without parole.
 HARRISON v. GILLESPIE 2427
The Nevada Supreme Court has affirmed that what is true of
capital sentencing schemes generally is true of the Nevada’s
use of a separate capital sentencing hearing, explaining that
the state adopted separate sentencing proceedings in capital
cases for the specific purpose of “genuinely narrow[ing] the
class of persons eligible for the death penalty.” Hollaway v.
State, 6 P.3d 987, 996 (Nev. 2000) (quoting Arave v. Creech,
507 U.S. 463, 474 (1993)) (emphasis added).

Given that separate capital penalty proceedings are held for
the express purpose of determining whether the defendant is
eligible for capital punishment under objective criteria pre-
scribed by the legislature, see Hollaway, 6 P.3d at 996, there
is never a manifest necessity to declare a mistrial without first
inquiring as to whether the jury was, or would be, able to
arrive at a unanimous conclusion regarding the defendant’s
death-eligibility. The majority declares that the trial judge
determined “that further deliberations would not help the jury
arrive at a verdict,” Maj. Op. at 2384; that the jury “was dead-
locked, and unable to reach a verdict,” Maj. Op. at 2384; and
that the jury “was deadlocked over Harrison’s sentence,” Maj.
Op. at 2384. But there is absolutely no basis for believing that
the jury “was deadlocked, and unable to reach a verdict”
regarding the central question that the capital sentencing pro-
ceeding was intended to address: whether Harrison was “eligi-
ble for the death penalty.” Hollaway, 6 P.3d at 996. Indeed,
there is abundant evidence suggesting that the jury was not
deadlocked on that question, and that it had, in fact, decided
Harrison was not eligible for death. Simply because the jury
could not come to a decision regarding whether Harrison
should be sentenced to life with or without parole, does not
mean that there was a manifest necessity for the trial judge to
dismiss the jury without inquiring whether it had decided that
Harrison was not death eligible or providing it the opportunity
to reach that verdict and inform the court that it had done so.6
6
The majority states that under Nevada law, “the only jury determina-
tion of any significance—and the only one that is sufficiently final to con-
2428 HARRISON v. GILLESPIE
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 eligibil-
ity, 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 correspond-
ingly 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 dou-
ble 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. In
case I have not made it sufficiently clear, 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).

stitute a ‘verdict’ in the ordinary sense—is the jury’s decision regarding
which sentence to impose.” Maj. Op. at 2398 (emphasis removed). This
highly dubious and conclusory assertion, even if correct, would be simply
irrelevant to the federal constitutional question whether the Double Jeop-
ardy Clause barred the trial judge from declaring a mistrial without first
determining whether the jury was deadlocked regarding death eligibility.
The same is true with respect to the other arguments made by the majority
with respect to state procedure, although it is clear that nothing in Nevada
law purports to prevent the trial judge from inquiring as to whether the
jury had decided or could decide the question of death eligibility, and
accepting a verdict on that issue.
 HARRISON v. GILLESPIE 2429
I dissent.