Ninth Circuit: January 2010 Archives

Yesterday, the 9th Circuit, in a 2-1 opinion in Harrison v. Gillespie, found that a defendant's right against double jeopardy would be violated if the State were allowed to seek the death penalty in a second trial.

The jury returned a verdict of guilt on the charge of first-degree murder.  Following the penalty trial, the jury reported that it was deadlocked, and two juror notes indicated that the deadlock was between life with parole, and life without. Harrison's counsel asked to poll the jurors on whether there was unanimous agreement that as to whether aggravated circumstances existed and whether they found that mitigating circumstances outweighed aggravators. The trial court denied the request, and declared a mistrial. The State of Nevada wants to seek the death penalty in a second penalty trial.  Harrison's counsel filed a petition for a writ of mandamus or prohibition with the Nevada Supreme Court, which was denied without analysis of the issue presented.  Harrison then filed a petition pursuant to 28 USC 2241 for a writ of habeas corpus in federal court.  It was summarily denied.  On appeal, the 9th Circuit (Judge Reinardt joined by Senior Judge Hug) granted relief and reversed the district court's denial of the petition. The panel held the trial court abused its discretion by declaring a mistrial without first granting petitioner's request to poll the jury to determine whether it had acquitted petitioner of the death penalty. The panel further held that, because no other alternative would adequately protect petitioner's rights under the Double Jeopardy Clause, the State could not seek and the court could not impose the death penalty at a sentencing retrial. Judge Silverman dissented, after finding that the federal constitution does not require a state trial judge to inquire into the unfinished deliberations of a discretionary matter before declaring a mistrial.

About this Archive

This page is a archive of entries in the Ninth Circuit category from January 2010.

Ninth Circuit: November 2009 is the previous archive.

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