dissenting:
I join in Judge Thomas’s dissent, which so ably demonstrates that the trial judge’s hasty decision to dismiss the jury violated every tenet of the law regarding “manifest necessity” for the declaration of a mistrial, and thus Harrison’s right to be free from double jeopardy. I write separately to emphasize that the trial court’s declaration of a mistrial when there was no manifest necessity to do so was based on a fundamental misunderstanding of the function of a capital sentencing proceeding. By her actions, the trial judge precluded Harrison from obtaining confirmation that, as seems likely, the jury had found him ineligible for death, and that the Double Jeopardy Clause thus barred him from being sentenced to death in any subsequent sentencing proceedings. See Bullington v. Missouri 451 U.S. 430, 446, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).1
*499In response to the dissenting opinions, the majority acknowledges that the relevant test for whether the trial court’s declaration of a mistrial violates the Double Jeopardy Clause’s protections is whether there was a “manifest necessity” to declare a mistrial. See, e.g., United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 27 L.Ed.2d 543 (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, 93 S.Ct. 1066, 35 L.Ed.2d 425 (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 nonetheless dismissed the jury without making any effort to determine 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 critical issue that it was convened to answer fails to satisfy the “manifest necessity” test, and thus violates the Double Jeopardy Clause. See Somerville, 410 U.S. at 459, 93 S.Ct. 1066.2
The fundamental reason why, unlike run-of-the-mill offenses, capital crimes generally provide for separate sentencing proceedings is not, as the majority asserts, to arrive at some sort of sentence, such as life with parole or life without parole or even a lesser punishment, after it arrives at its answer as to death eligibility.3 Maj. Op. at 483-84. Rather, separate capital sentencing proceedings were implemented by states in the late 1970s for the specific purpose of complying with the Supreme Court’s mandate that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, 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, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); see *500Mary Sigler, Contradiction, 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 arbitrarily applied. Spaziano v. Florida, 468 U.S. 447, 459 n. 7, 104 S.Ct. 3154, 82 L.Ed.2d 340 (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 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, 116 Nev. 732, 6 P.3d 987, 996 (2000) (quoting Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (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 prescribed 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 476; that the jury “was deadlocked, and unable to reach a verdict,” Maj. Op. at 476; and that the jury “was deadlocked over Harrison’s sentence,” Maj. Op. at 476. 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 proceeding was intended to address: whether Harrison was “eligible 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
*501In holding that a capital sentencing jury-may be discharged without even a minimal inquiry as to whether it had arrived at a unanimous conclusion as to the defendant’s death eligibility, the majority fails to respect what the Supreme Court declared over a generation ago: that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (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, 6 L.Ed. 165 (1824) (emphasis added). As a result of the trial court’s failure to follow long-established law regarding double jeopardy and the death penalty, Harrison could well be put to death notwithstanding the fact that the first jury impaneled in this case may have already concluded, or might shortly have concluded if asked whether it had deadlocked over the issue, that he was ineligible for the punishment of death. 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, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).
I dissent.
. 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 circumstances there must be a Supreme Court case that has previously reached the same conclusion, see Maj. Op. 487-89, 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, 93 S.Ct. 1066. We have an obligation to answer that question, "according to our best understanding of the individual constitutional rights ... involved,” Witt v. Dep’t of Air Force, 527 F.3d 806, 823 (9th Cir.2008) (Canby, J., concurring in part and dissenting in part), rather than to look to whether this precise question has been previously addressed by the Supreme Court.
. The majority cites Nev.Rev.Stat. § 200.030(4) as authority for this proposition. That provision simply states the various punishments available in Nevada for first-degree murder and says nothing whatsoever regarding the use of a separate penalty hearing in capital cases.
. See also Ring v. Arizona, 536 U.S. 584, 606, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (“States have constructed elaborate sentencing procedures in death cases, Arizona emphasizes, because of constraints we have said the Eighth Amendment places on capital sentencing.”).
. Indeed, under Nevada law, where the jury fails to decide upon a sentence in a capital case, a judge may, rather than convene a new jury, simply enter a non-capital sentence of life without parole. Nev.Rev.Stat. § 175.556. That a jury's verdict is not required for a sentence of life without parole in a capital case should remove any doubt that the primary concern 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.
. The majority states that under Nevada law, "the only jury determination of any significance — and the only one that is sufficiently final to constitute a ‘verdict’ in the ordinary sense — is the jury’s decision regarding which sentence to impose.” Maj. Op. at 483 (emphasis removed). This highly dubious and conclusory assertion, even if correct, would be simply irrelevant to the federal constitutional question whether the Double Jeopardy 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.