FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES M. HARRISON,  No. 08-16602

Petitioner-Appellant, D.C. No.

v. 2:08-cv-00802-RCJ-  RJJ DOUGLAS GILLESPIE,

Respondent-Appellee. ORDER AND

OPINION 

Appeal from the United States District Court

for the District of Nevada1

Robert Clive Jones, District Judge, Presiding

Argued August 10, 2009

Submitted August 14, 2009

San Francisco, California

Filed February 22, 2010

Before: Procter Hug, Jr., Stephen Reinhardt and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Silverman

1

In our order granting Harrison’s request for a certificate of appealability, we asked the parties to address “who they contend are the proper

Respondents in this action.” Harrison responded to that order in his opening brief. He asserted that Sheriff Douglas Gillespie is his current custodian and the proper respondent in this action, and requested permission to

amend his petition in order to cure his failure to name the proper respondent. The State did not respond to our order or oppose Harrison’s request,

and thus waived the issue on the custodian’s behalf. See Smith v. Idaho,

392 F.3d 350, 355-56 (9th Cir. 2004). Accordingly, the clerk is directed

that Douglas Gillespie shall be listed as the respondent in this case. 

2769
COUNSEL

JoNell Thomas (argued), David M. Schieck, Scott L. Bindrup,

Clark County Special Public Defender, Las Vegas, Nevada;

Bret O. Whipple, Law Office of Bret Whipple, Las Vegas,

Nevada, for the petitioner-appellant.

Steven S. Owens, Clark County District Attorney, Las Vegas,

Nevada, for the respondent-appellee.

ORDER

At the time of Harrison’s sentencing trial and all state court

proceedings related to the denial of his motion to strike the

death penalty, the Nevada Supreme Court had interpreted the

relevant statutory provisions to require that “[t]o obtain a

death sentence, the State must prove beyond a reasonable

doubt that at least one aggravating circumstance exists and

HARRISON v. GILLESPIE 2773
that the aggravating circumstance or circumstances outweigh

any mitigating evidence.” Gallego v. State, 23 P.3d 227, 239

(Nev. 2001) (en banc) (emphasis added); see also Johnson v.

State, 59 P.3d 450, 460 (Nev. 2002) (per curiam) (“[The]

finding regarding mitigating circumstances is necessary to

authorize the death penalty in Nevada, and we conclude that

it is in part a factual determination, not merely discretionary

weighing. . . . [W]e conclude that Ring requires a jury to make

this finding as well: ‘If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a

fact, that fact — no matter how the State labels it — must be

found by a jury beyond a reasonable doubt.’ ” (quoting Ring

v. Arizona, 536 U.S. 584, 602 (2002) (emphasis added)); Witter v. State, 921 P.2d 886, 896 (Nev. 1996) (per curiam)

(“[W]e read NRS 200.030(4) as stating that the death penalty

is an available punishment only if the state can prove beyond

a reasonable doubt at least one aggravating circumstance

exists, and that the aggravating circumstance or circumstances

outweigh the mitigating evidence offered by the defendant.”

(emphasis added)), abrogated on other grounds by Byford v.

State, 994 P.2d 700 (Nev. 2000). 

Accordingly, we were surprised to learn that the Nevada

Supreme Court issued a decision on July 23, 2009 in which

it stated that “[n]othing in the plain language of [the relevant

statutory] provisions requires a jury to find, or the State to

prove, beyond a reasonable doubt that no mitigating circumstances outweighed the aggravating circumstances in order to

impose the death penalty” and that the court itself “has

imposed no such requirement.” McConnell v. State, 212 P.3d

307, 314-15 (Nev. 2009) (per curiam) (emphasis added).

Although we heard oral argument in this appeal approximately two weeks after McConnell was decided, the District

Attorney of Clark County failed to advise us of the case, and

in fact did not do so until January 19, 2010, approximately

five months later, after we had issued our decision. In fact, it

did not do so until it filed a petition for rehearing en banc.

2774 HARRISON v. GILLESPIE
Even after the Nevada Supreme Court’s McConnell decision, it remains beyond dispute that a defendant cannot be

sentenced to death under Nevada law if a jury finds that the

mitigating circumstances outweigh the aggravating circumstances. Such a finding establishes an acquittal of the death

penalty for purposes of the Double Jeopardy Clause, regardless of what burden of proof applies. Accordingly, this case

does not require us to resolve the question whether the “beyond a reasonable doubt” standard applies to that finding, and

we now issue a superseding opinion to make clear that our

opinion does not do so. The superseding opinion is, of course,

the operative and controlling opinion for all purposes.

The prior opinion in this case is hereby withdrawn, and is

replaced with the superseding opinion filed concurrently with

this order. The pending petition for rehearing en banc is dismissed as moot. The panel will entertain any petition for

rehearing or rehearing en banc filed in accordance with the

applicable rules.

OPINION

REINHARDT, Circuit Judge:

A jury may have acquitted James Harrison of the death

penalty. We will never know, because the trial court denied

his request to ask the jury two simple questions that could

have conclusively established that fact, and instead dismissed

the jurors. Now, the State of Nevada seeks once again to have

him executed. Harrison asserts that a retrial on the death penalty would violate the Double Jeopardy Clause.

The State prosecuted Harrison for murder, and the jury

returned a guilty verdict. The State then sought the death penalty, which required proof of two additional facts beyond

guilt: that at least one aggravating circumstance existed, and

HARRISON v. GILLESPIE 2775
that there were no mitigating circumstances sufficient to outweigh the aggravating circumstances. Nev. Rev. Stat.

§ 175.554(3). The jury was permitted to impose a sentence of

death only if it made both findings unanimously. Hollaway v.

State, 6 P.3d 987, 996 (Nev. 2000) (en banc). If it made both

findings, it also had the option to sentence the defendant to a

non-capital sentence: life without parole, life with parole, or

a fixed term with parole. Nev. Rev. Stat. § 200.030(4). If the

jury determined that the there were no aggravating circumstances or that there were mitigating circumstances sufficient

to outweigh any aggravating circumstances, it was free to

choose only one form or another of the three non-capital sentences. Id.

The jury reported its inability to agree on a sentence, and

two juror notes indicated that the jury was deadlocked

between life with the possibility of parole and life without the

possibility of parole. Harrison requested that the members of

the jury be polled to determine (1) whether they had unanimously found that there were no aggravating circumstances

and (2) whether they had unanimously found that the mitigating circumstances outweighed the aggravating circumstances.

If the answer to either of the questions had been yes, the poll

would have established that Harrison had been acquitted of

the death penalty, and the Double Jeopardy Clause of the

Fifth Amendment would have prohibited the State from seeking that penalty during Harrison’s sentencing retrial. However, the prosecution objected to Harrison’s request, and trial

judge denied it. She then dismissed the jury and declared a

mistrial.

We conclude that there was no manifest necessity to

declare a mistrial without first polling the jury in order to

determine whether Harrison had been acquitted of the death

penalty. Accordingly, we hold that the trial court abused its

discretion by denying Harrison’s polling request. Because no

other alternative would adequately protect Harrison’s rights

under the Double Jeopardy Clause, we further hold that the

2776 HARRISON v. GILLESPIE
State may not seek the death penalty at a sentencing retrial,

and no such penalty may be imposed by the court.2

I. Factual and Procedural Background

In 2002, Harrison and Anthony Prentice were charged by

the State of Nevada with conspiracy to commit murder, burglary, and murder with the use of a deadly weapon in connection with the death of Daniel Miller, Prentice’s roommate.

The State sought the death penalty against both defendants.

The trials were severed, and Prentice was convicted of conspiracy to commit murder and murder with use of a deadly

weapon and sentenced to life without parole. Subsequently, a

different jury found Harrison guilty of the same charges.

Nevada law provides that Harrison’s crime may be punished by death, life without parole, life with parole eligibility,

or a definite term with parole eligibility. Nev. Rev. Stat.

§ 200.030(4). For the jury to impose death, two conditions

must be met: first, the jury must unanimously find at least one

aggravating circumstance; and second, the jury must unanimously find that the mitigating circumstance(s) do not outweigh the aggravating circumstance(s). Id.; see also Hollaway

v. State, 6 P.3d 987, 996 (Nev. 2000) (en banc). If both conditions are met, the jury may choose to impose the death penalty, or may select a lesser sentence. If either condition is not

met, the jury may not impose a death sentence. Nev. Rev.

Stat. § 175.554(3).

During the penalty stage of Harrison’s trial, the jury

informed the court that, after deliberating at length, it could

2Although, for convenience, we refer throughout this opinion to a possible sentencing retrial, we express no view as to how, under Nevada law,

a new non-death penalty sentence shall be determined, whether by a jury

or the court. We think it likely, however, that the sentencer would be free

to impose any of the three sentences that the jury could have imposed once

it eliminated the death penalty. See pages 2777 infra; Nev. Rev. Stat.

§§ 175.554(3), 200.030(4). 

HARRISON v. GILLESPIE 2777
not reach a unanimous verdict. The court received “two notes

from two different jurors indicating that the jury was deadlocked between life with [the possibility of parole] and life

without [the possibility of parole].”

3

 The judge expressed her

inclination to bring the jury back and determine whether further deliberation would be fruitful, and to dismiss the jury in

the event that it would not. One of Harrison’s attorneys intervened:

I’d request that we inquire from the jurors how far

along in the process that they were in this penalty

phase, and by that I mean . . . they needed to make

a determination if the aggravators were proved

beyond a reasonable doubt. I would ask that this

Court inquire of that.

And then the second issue was if the weighing 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. 

The prosecution opposed polling the jury on the ground

that several Nevada statutes allegedly precluded the court

from doing so,4 and argued that “[t]he only way to make any

3While the trial judge stated that the notes would “be made a court

exhibit,” they are not in the record before us. The reason, according to the

State, is that “Harrison has never before raised the issue of the juror notes

. . . [and] because this issue was not previously raised in the case, the two

juror notes in question are not part of the appellate record for review by

this Court.” However, in the transcripts of the penalty phase proceedings

that are in the record, the trial judge plainly states that these notes exist,

and the State does not assert otherwise. 

4The cited statutes are as follows: 

Nev. Rev. Stat. § 50.065. Competency: Juror as witness. 

2778 HARRISON v. GILLESPIE
determination as to which verdicts they reached or a partial

verdict that may have been reached in this case is to look at

the verdict form.”

The court did not expressly deny defense counsel’s requests

to poll the jury, but impliedly agreed with the prosecution’s

argument. The court explained that if the special verdict forms

reflected that the jury had found no aggravators, then “the

State would be precluded from seeking the death penalty in a

subsequent hearing.” As to whether the jury had made a deter1. A member of the jury shall not testify as a witness in the trial

of the case in which he is sitting as a juror. If he is called to

testify, the opposing party shall be afforded an opportunity

to object out of the presence of the jury. 

2. Upon an inquiry into the validity of a verdict or indictment:

(a) A juror shall not testify concerning the effect of anything upon his or any other juror’s mind or emotions as

influencing him to assent to or dissent from the verdict

or indictment or concerning his mental processes in

connection therewith. 

(b) The affidavit or evidence of any statement by a juror

indicating an effect of this kind is inadmissible for any

purpose. 

Nev. Rev. Stat. § 175.531. Polling jury; further deliberation or discharge.

When a verdict is returned and before it is recorded the jury shall

be polled at the request of any party or upon the court’s own

motion. If upon the poll there is not unanimous concurrence, the

jury may be directed to retire for further deliberation or may be

discharged. 

Nev. Rev. Stat. § 175.556 Procedure when jury unable to reach unanimous

verdict. 

1. In a case in which the death penalty is sought, if a jury is

unable to reach a unanimous verdict upon the sentence to be

imposed, the district judge who conducted the trial or

accepted the plea of guilty shall sentence the defendant to

life imprisonment without the possibility of parole or

impanel a new jury to determine the sentence. 

HARRISON v. GILLESPIE 2779
mination regarding the relative weight of the mitigators and

aggravators, the court said: “The only way for us to know that

is to see what form is actually filled out. I suspect, of course,

neither form is going to be filled out because they’re deadlocked on the punishment.”

When the jury returned, the court inquired whether further

deliberations would be productive, and the foreperson

responded that they were “at an impasse.” The court then collected all of the special verdict forms. Two were completed

and signed (i.e., unanimously agreed-upon). One completed

and signed form reflected that the jury found that one aggravating factor — that “[t]he murder involved mutilation of the

victim” — had “been established beyond a reasonable doubt.”

The other completed and signed form reflected that the jury

had found no fewer than twenty-four mitigating factors.

The other two forms were blank. The first was to be completed if the jury had arrived at its sentence; it was to be used

only if the jury found that the aggravating circumstance(s)

outweighed any mitigating circumstance(s), and it contained

all four sentencing options. The second form was also to be

completed if the jury had arrived at its sentence; it was to be

used only if the jury found that the mitigating circumstance(s)

outweighed the aggravating circumstance(s), and it contained

three non-death sentencing options. Each of the two uncompleted forms contained a blank line next to each sentencing

option, allowing the jury to indicate that it had chosen that

option, a blank line allowing the jury to indicate the date, and

a blank line for the foreperson’s signature; but each was to be

filled out only if the jury had decided on the sentence. The

jury was not furnished with any form that was to be used to

report a finding as to whether the mitigating circumstances

outweighed the aggravating circumstances, or vice versa, in

the absence of an agreement upon a sentence.

After collecting the forms, the court dismissed the jury and

declared a mistrial without conducting the inquiry that Harri2780 HARRISON v. GILLESPIE
son had requested.5

 Six months later, before the second penalty phase was scheduled to begin, Harrison made a motion

to strike the death penalty. He stated that the members of the

jury had “decided, twelve to zero, against the use of the death

penalty because they had each independently determined that

Harrison’s mitigating circumstances outweighed the aggravating circumstances of his crime.” He also argued that he had

“insisted upon finding out whether or not the jury had reached

a unanimous decision as to the death penalty, but the [trial]

court denied his request to make further inquiry of the jury.”

He asserted that the Double Jeopardy Clause “entitled [him]

to establish the record of the jury’s verdict so that his rights

could be protected.”

Harrison also introduced three affidavits from former members of the jury, taken after they had been dismissed. The

three affidavits state that, during the penalty phase deliberations, the jury had voted 12-0 that death was “off the table.”

The three jurors stated that “if [they] had been polled by the

Court before being excused from service, [they] would have

answered that [they] had determined that the mitigating circumstances outweighed the aggravating circumstance.” The

jury, they explained, was at an impasse between life with the

possibility of parole and life without, and the last vote taken

was 9-3 in favor of life without.

The State responded by arguing that the jury found Harrison guilty of murder plus an aggravating circumstance beyond

a reasonable doubt, and simply had not decided which of the

available sentences to impose. The State submitted another

5The court neither polled the individual jurors nor asked the foreperson

whether the jury had reached a unanimous determination regarding Harrison’s eligibility for the death penalty. Nonetheless, the State “disputes that

Harrison’s request for polling was denied.” The record plainly belies this

assertion. Harrison made the request, the prosecution opposed the request,

and the court did not conduct the requested inquiry. Moreover, in its briefs

in state court, the State acknowledged that “[t]he Court denied Defendant’s request, and the jury was dismissed.” 

HARRISON v. GILLESPIE 2781
affidavit from a former member of the jury, which stated that,

for her, “[t]he death penalty was never ‘off the table’ as a

potential punishment option.”

The state court denied Harrison’s motion to strike the death

penalty. Harrison petitioned the Nevada high court for a writ

of mandamus, which was denied without explanation.6 He

next petitioned the United States District Court in Nevada for

a writ of habeas corpus under 28 U.S.C. § 2241. He argued

that the jury had acquitted him of the greater, death-penaltyeligible, offense, and that retrial on the death penalty would

constitute double jeopardy. He further argued that he “had the

constitutional right to have the jury polled in order to determine whether the jurors had reached a unanimous decision

regarding the death penalty so that his rights against double

jeopardy could be preserved.”

The district court denied Harrison’s petition, finding that

nothing before it constituted an acquittal of the death penalty,

and that double jeopardy was not implicated. The district

court did not address whether the trial court abused its discretion by denying Harrison’s polling request. Harrison appeals.

II. Jurisdiction and Standard of Review

[1] The federal courts have jurisdiction to grant a petition

for habeas corpus when the petitioner “is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c). “[A] habeas petition raising a

double jeopardy challenge to a petitioner’s pending retrial in

state court is properly treated as a petition filed pursuant to 28

U.S.C. § 2241.” Wilson v. Belleque, 554 F.3d 816, 821 (9th

Cir. 2009) (citing Stow v. Murashige, 389 F.3d 880, 885 (9th

Cir. 2004)).

6The Nevada Supreme Court stated only that its “intervention by way

of extraordinary writ [was] not warranted.” 

2782 HARRISON v. GILLESPIE
The State acknowledges that § 2241 creates jurisdiction

over pretrial double jeopardy claims, but notes that Harrison’s

claim pertains “not to a charge for which he is being detained

pre-trial, but only as to one of several potential sentencing

options at a re-sentencing hearing.” Because “Harrison makes

no challenge to the jury’s verdict of guilty of first degree murder for which he is being detained,” the State argues, we lack

jurisdiction to hear his claim.

Our decision in Wilson v. Belleque, 554 F.3d 816 (9th Cir.

2009), and the Supreme Court decisions discussed in that

opinion, compel us to reject the State’s argument. In Wilson,

the petitioner challenged his pending retrial in state court on

double jeopardy grounds. Id. at 821. At the time, Wilson was

incarcerated as a result of two prior convictions, neither of

which he challenged in his habeas petition. Id. We were therefore required to determine “whether the current ‘in custody’

jurisprudence should be construed to include circumstances

where the sovereign seeking to prosecute a petitioner is currently detaining the petitioner based on convictions or charges

not being challenged.” Id. at 822. We answered that question

in the affirmative, noting that the Supreme Court “has construed the phrase ‘in custody’ very broadly” in the habeas

context. Id. We found it particularly relevant that the Court

had recognized federal jurisdiction over habeas claims based

on future as well as present confinement. Id. (citing Braden

v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 488-89

(1973)). In light of that precedent and its underlying policy

“of encouraging prompt resolution of federal constitutional

claims,” we concluded that we had jurisdiction to hear Wilson’s claim under § 2241. Id. at 824.

[2] Just as Wilson brought a double jeopardy challenge to

a pending retrial while incarcerated as a result of unchallenged prior convictions, Harrison brings a double jeopardy

challenge to a pending retrial while incarcerated as a result of

a guilty verdict that he does not presently challenge. Although

Wilson involved a double jeopardy challenge to a pending

HARRISON v. GILLESPIE 2783
guilt phase retrial rather than a pending capital sentencing

retrial, the distinction does not affect our conclusion that we

have jurisdiction over Harrison’s claim. Trial-like capital sentencing proceedings are fully covered by the Double Jeopardy

Clause. See Bullington v. Missouri, 451 U.S. 430, 446 (1981).

The interests of a capital defendant in not being retried for the

death penalty are at least as strong as the interests of any other

defendant in not being retried for a lesser offense. Id. at 445.

Accordingly, if the Double Jeopardy Clause prohibits the

State from seeking the death penalty at Harrison’s sentencing

retrial, allowing capital sentencing proceedings to go forward

would create a “violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c). The interpretation of § 2241 urged by the State would create federal

jurisdiction to prevent double jeopardy violations in the context of a guilt phase retrial, but not in the context of a capital

sentencing retrial to which the same protections apply. We do

not believe that Congress would have intended such an anomalous result. We therefore conclude that we have jurisdiction

under § 2241 to reach the merits of Harrison’s claim.

We next address whether the requirements imposed by the

Antiterrorism and Effective Death Penalty Act of 1996 apply

to this appeal. See Pub. L. No. 104-132, Title I, § 104, 110

Stat. 1218. When a petitioner is “in custody pursuant to the

judgment of a State court” (emphasis added), 28 U.S.C.

§ 2254 limits the authority of federal courts to grant habeas

relief. See White v. Lambert, 370 F.3d 1002, 1006 (9th Cir.

2004). However, if no valid judgment of conviction is in

place, § 2254 does not apply. Murashige, 389 F.3d at 888.

Here, no judgment of conviction has been entered against

Harrison. Indeed, no valid judgment of conviction could have

been entered at this stage, because Nevada law requires such

a judgment to set forth “the adjudication and sentence” in

addition to the verdict. See Petrocelli v. Angelone, 248 F.3d

877, 891 (9th Cir. 2001) (citing Nev. Rev. Stat. § 176.105(1)).

Accordingly, Harrison is not “in custody pursuant to the judg2784 HARRISON v. GILLESPIE
ment of a State court,” and the requirements imposed by

§ 2254 do not apply to his habeas petition.

Another AEDPA provision requires that a habeas petitioner

seeking review of “the final order in a habeas corpus proceeding in which the detention complained of arises out of process

issued by a State court” must obtain a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A) (emphasis added). We have

held this requirement applicable to petitions brought under 28

U.S.C. § 2241(c)(3). Wilson, 554 F.3d at 825. Harrison has

satisfied this requirement, as he obtained a Certificate of

Appealability from this court on May 21, 2009.

[3] The deferential standards of review imposed by

AEDPA do not apply to § 2241 petitions. Wilson, 554 F.3d at

828 (citing Murashige, 389 F.3d at 888). “We review de novo

a district court’s decision granting or denying a petition for a

writ of habeas corpus filed pursuant to § 2241.” Id. (citing

Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149 (9th Cir.

2002)).

Having established our jurisdiction over this claim, and

bearing in mind the appropriate standard of review, we turn

now to the merits of Harrison’s habeas corpus petition.

III. Discussion

In the habeas petition presented to the district court, Harrison originally raised two separate arguments in support of his

claim that the Double Jeopardy Clause would be violated if

the State were permitted to seek the death penalty at his pending sentencing retrial. First, Harrison argued that the original

trial jury had acquitted him of the death penalty. Second, Harrison argued that the trial court abused its discretion by

declaring a mistrial, because there was no manifest necessity

to do so without first granting Harrison’s request to poll the

jury concerning their verdict as to the death penalty. Although

Harrison no longer contends that the record establishes an

HARRISON v. GILLESPIE 2785
implied acquittal of the death penalty, the two issues are interrelated, such that an explanation of why the implied acquittal

claim fails is necessary to the explanation of why the manifest

necessity claim succeeds. Accordingly, we address both

issues.

A. Implied Acquittal

[4] The Double Jeopardy Clause states that no person shall

“be subject for the same offence to be twice put in jeopardy

of life or limb.” U.S. Const. amend. V. The Supreme Court

has explained the values underlying this requirement:

[T]he State with all its resources and power should

not be allowed to make repeated attempts to convict

an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and

compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found

guilty.

Green v. United States, 355 U.S. 184, 187-88 (1957). These

values “are equally applicable when a jury has rejected the

State’s claim that the defendant deserves to die.” Bullington

v. Missouri, 451 U.S. 430, 445 (1981).

Notwithstanding the text of the Double Jeopardy Clause,

not all retrials create a double jeopardy violation. Rather, “the

law attaches particular significance to an acquittal.” United

States v. Scott, 437 U.S. 82, 91 (1978). A defendant cannot be

retried for an offense of which he has been expressly acquitted, through a not guilty verdict, or impliedly acquitted,

through a guilty verdict on a lesser included offense that

occurs after the jury has had a full and fair opportunity to

reach a verdict and has not reported deadlock on the greater

offense. Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir.

2007) (citing Green, 355 U.S. at 191).

2786 HARRISON v. GILLESPIE
[5] The Double Jeopardy Clause applies to capital sentencing proceedings that “have the hallmarks of the trial on guilt

or innocence.” Bullington, 451 U.S. at 439. Those hallmarks

include a hearing held separately from the guilt phase, legal

standards constraining the jury’s choice among sentencing

options, and a requirement that the prosecution must prove

additional facts beyond guilt in order to obtain a sentence of

death. Id. at 438-39. If a defendant has been acquitted of the

death penalty at a trial-like sentencing proceeding, “the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death

penalty, at his retrial.” Id. at 446; see also Arizona v. Rumsey,

467 U.S. 203, 212 (1984) (reaffirming that, after a defendant

is “acquitted” of the death penalty in a capital sentencing proceeding that resembles a trial, he cannot be retried for the

death sentence).

[6] Although the Double Jeopardy Clause prohibits a capital sentencing retrial after a defendant has been acquitted of

the death penalty, imposition of a lesser sentence will not

always be interpreted as an implied acquittal of the death penalty.7

Sattazahn v. Pennsylvania, 537 U.S. 101, 107 (2003)

7

If a non-death sentence does not satisfy the standard for establishing

an implied acquittal of the death penalty, the absence of an acquittal does

not mean that the prosecution can continue to seek the death penalty in

spite of the imposition of the lesser sentence. “The double jeopardy clause

prohibits additions to criminal sentences in a subsequent proceeding where

the legitimate expectation of finality has attached to the sentence.” Stone

v. Godbehere, 894 F.2d 1131, 1135 (9th Cir. 1990) (citing United States

v. DiFrancesco, 449 U.S. 117, 139 (1980)). State sentencing law constitutes one potential source of such a legitimate expectation. Id. Under

Nevada law, a sentence becomes final when the judgment is signed by the

judge and entered by the clerk. Miller v. Hayes, 604 P.2d 117, 118 (Nev.

1979) (citing Nev. Rev. Stat. § 176.105). In addition, Nevada law provides

that the jury shall have responsibility for sentencing determinations in

death penalty cases, unless it cannot unanimously agree upon a verdict.

Nev. Rev. Stat. §§ 175.554(2), 175.556(1). The state’s sentencing law

creates no procedure through which the prosecution or the court may disturb a jury’s unanimous decision to impose a sentence of life rather than

HARRISON v. GILLESPIE 2787
(citing Bullington, 451 U.S. at 446). Rather, an acquittal will

be found only if the lesser sentence resulted from “findings

sufficient to establish legal entitlement to the life sentence” —

i.e., findings that the prosecution failed to prove the additional

facts beyond guilt necessary to create death eligibility, despite

having had “one complete opportunity” to do so. Id. at 108,

115.

Here, Harrison’s sentencing hearing was “comparable to a

trial for double jeopardy purposes.” Rumsey, 467 U.S. at 209.

The penalty phase was a separate hearing at which evidence

was presented by both sides and the parties made opening and

closing statements. The jury did not have unlimited discretion

to choose among sentencing options; rather, its discretion to

impose the death penalty was strictly constrained by a

requirement that it make new findings beyond those required

to find guilt.8“[A] defendant in Nevada becomes death eligible only after two steps: a finding that at least one aggravator

exists and a finding that the mitigating evidence does not outweigh any aggravator or aggravators.” McConnell v. State,

107 P.3d 1287, 1292 (Nev. 2005) (en banc) (per curiam). Both

death. Accordingly, a defendant would have a legitimate expectation in the

finality of a jury’s unanimous decision to impose a non-death sentence

unless he affirmatively chose to challenge the sentence or the underlying

conviction. See United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir.

1987) (A defendant “has no legitimate expectation of finality in the original sentence when he has placed those sentences in issue by direct appeal

and has not completed serving a valid sentence.”). 

8

In Nevada, if the mitigating circumstances do not outweigh the aggravating circumstances, the death penalty is not mandatory; the jury may at

that point choose between death and three different non-capital sentences.

Nev. Rev. Stat. § 200.030(4). A lesser penalty of incarceration, however,

is mandatory if the findings are insufficient to impose death; i.e., if the

findings are either that there are no aggravating circumstances or that the

mitigating circumstances outweigh the aggravating circumstances. Id.

§ 175.554(3); see also id. § 200.030(4)(a). In that case, three different

non-capital sentencing options are available to the jury. Id.

§ 200.030(4)(b). 

2788 HARRISON v. GILLESPIE
of those findings had to be made by the jury; neither could be

made by the judge. Johnson v. State of Nevada, 59 P.3d 450,

460-61 (Nev. 2002) (per curiam).

[7] Because Nevada’s capital sentencing laws require “two

distinct findings to render a defendant death-eligible,” id. at

460, a defendant can be acquitted of the death penalty either

through a finding that no aggravating circumstance exists, or

through a finding that the mitigating circumstances outweigh

the aggravating circumstances. Nev. Rev. Stat. § 175.554(3).

Although the State argues that the “weighing” determination

is “not a finding of fact,” the Nevada Supreme Court has held

to the contrary:

[The] finding regarding mitigating circumstances is

necessary to authorize the death penalty in Nevada,

and we conclude that it is in part a factual determination, not merely discretionary weighing. So even

though Ring expressly abstained from ruling on any

“Sixth Amendment claim with respect to mitigating

circumstances,” we conclude that Ring requires a

jury to make this finding as well: “If a State makes

an increase in a defendant’s authorized punishment

contingent on the finding of a fact, that fact — no

matter how the State labels it — must be found by

a jury beyond a reasonable doubt.”

Johnson, 59 P.3d at 460 (emphasis added) (citing Ring v. Arizona, 536 U.S. 584, 597 n.4, 602 (2002)).9

We are puzzled by one aspect of the law of Nevada. For

years, the Nevada Supreme Court expressly recognized that

9Because the Nevada Supreme Court held in Johnson that the jury’s

determination as to whether mitigation outweighed aggravation is a factual

finding rather than “merely discretionary weighing,” the dissent’s characterization of that finding as “a profoundly discretionary matter” is incorrect as a matter of Nevada law. See dissent at 2812. 

HARRISON v. GILLESPIE 2789
“[t]o obtain a death sentence, the State must prove beyond a

reasonable doubt that at least one aggravating circumstance

exists and that the aggravating circumstance or circumstances

outweigh any mitigating evidence.” Gallego v. State, 23 P.3d

227, 239 (Nev. 2001) (en banc) (emphasis added); see also

Johnson, 59 P.3d at 460 (quoted supra p. 2790); Witter v.

State, 921 P.2d 886, 896 (Nev. 1996) (per curiam) (“[T]he

death penalty is an available punishment only if the state can

prove beyond a reasonable doubt at least one aggravating circumstance exists, and that the aggravating circumstance or

circumstances outweigh the mitigating evidence offered by

the defendant.” (emphasis added)), abrogated on other

grounds by Byford v. State, 994 P.2d 700 (Nev. 2000).

Recently, however, the Nevada Supreme Court stated that

“[n]othing in the plain language of [the relevant statutory]

provisions requires a jury to find, or the State to prove,

beyond a reasonable doubt that no mitigating circumstances

outweighed the aggravating circumstances in order to impose

the death penalty” and that the court itself “has imposed no

such requirement.” McConnell v. State, 212 P.3d 307, 314-15

(Nev. 2009) (per curiam).10 In support of that assertion, the

court cited only cases decided in and before 1995, and did not

acknowledge its contrary decisions issued in and after 1996.

We need not speculate as to what the Nevada Supreme

Court will say in the future regarding the applicability of the

“beyond a reasonable doubt” standard to the second of the

two required findings, because the resolution of that issue has

no impact on the outcome of this case. Whatever else it may

or may not have done, the recent decision of the Nevada

10In McConnell, a state habeas petitioner brought an ineffective assistance claim “based on appellate counsel’s failure to argue that the district

court should have instructed the sentencing jury that the aggravating factors had to outweigh the mitigating factors beyond a reasonable doubt

before it could impose death.” 212 P.3d at 314. The Nevada Supreme

Court rejected the claim because it concluded that “the underlying legal

argument would not have had a reasonable probability of success on

appeal.” Id.

2790 HARRISON v. GILLESPIE
Supreme Court neither altered the trial-like character of

Nevada’s capital sentencing proceedings nor eliminated the

statutory requirements for death eligibility. A defendant cannot be given the death penalty in Nevada unless the jury finds

that the mitigating circumstances do not outweigh the aggravating ones. Nev. Rev. Stat. § 175.554(3). Accordingly, even

if the State had no burden at all with regard to that finding,

a finding to the contrary, regardless of the burden, would still

be “sufficient to establish legal entitlement to the [noncapital] sentence,” Sattazahn, 537 U.S. at 108, and thus would

constitute an acquittal for purposes of the Double Jeopardy

Clause.11

[8] Here, the jury signed one verdict form indicating that

it had found the existence of an aggravating factor, and

another indicating that it had found the existence of twentyfour mitigating factors. We therefore know that the jury made

one of the two factual findings necessary to establish Harrison’s statutory eligibility for the death penalty. However, the

verdict forms do not tell us whether or not the jury then found

that the twenty-four mitigating factors outweighed the aggravating factor — a finding that would have made him statutorily ineligible for the death penalty. Accordingly, the verdict

11The State’s assertion that the prosecution “bears no burden with

regard to the finding of mitigating circumstances or the weighing process”

is not only irrelevant, for the reasons explained above, but is refuted by

the decisions of the Nevada Supreme Court. See, e.g., Floyd v. State, 42

P.3d 249, 258 (Nev. 2002) (en banc) (per curiam) (“The State has the burden of . . . proving that aggravating circumstances exist and are not outweighed by any mitigating circumstances.”), abrogated on other grounds

by Grey v. State, 178 P.3d 154 (Nev. 2008) (en banc); see also Witter, 921

P.2d at 896 (rejecting the argument that Nevada’s death penalty statute

“shifts the burden of proof to the defendant to prove that mitigating circumstances outweigh aggravating circumstances”); accord Blake v. State,

121 P.3d 567, 580 (Nev. 2005) (en banc). The recent McConnell decision

stated only that the State was not required to carry its burden “beyond a

reasonable doubt.” 

HARRISON v. GILLESPIE 2791
forms do not allow us to reach any conclusion as to whether

the jury acquitted Harrison of the death penalty.12

The notes passed to the trial court by the deadlocked jurors

are similarly inconclusive. The notes stated that the jury was

hung between life with parole and life without parole, giving

rise to the inference that the jury had eliminated the death

penalty as a sentencing option. Even if this information conclusively established the status of the jury’s deliberations —

which it does not, since no official vote was taken or

announced in open court — it would not tell us whether the

jury favored a penalty other than death as a matter of choice

(i.e., despite its finding that the aggravating factor outweighed

the mitigating factors), or as a matter of legal obligation (i.e.,

because it found that the mitigating factors outweighed the

aggravating factor).

12The dissent makes two erroneous assertions about the conclusions that

can be drawn based on the verdict forms. First, the dissent states that the

“findings reflected on these verdict forms . . . establish [Harrison’s] eligibility for [the death penalty.]” Dissent at 2811. The Nevada Supreme

Court, however, has held that a defendant is not eligible for the death penalty unless the jury makes the factual determination that mitigating factors

did not outweigh aggravating factors. Johnson, 59 P.3d at 460. Because

no such finding was reported on the verdict forms, this first assertion is

incorrect as a matter of Nevada law. Second, the dissent makes the contradictory claim that the verdict forms “reflect[ ] a lack of unanimous agreement about whether or not the aggravation outweighed the mitigation.”

Dissent at 2811. As we have noted, however, unlike the question whether

aggravating and mitigating factors exist and the number of each, nothing

on the verdict forms suggested that the jury could report its finding on

whether mitigators outweighed aggravators or vice versa in the absence of

an agreement upon the ultimate sentence to be imposed. See supra at

2780. Accordingly, the verdict forms are entirely consistent with the proposition that the jury had unanimously determined that the mitigating factors outweighed the aggravating factor, thereby acquitting Harrison of the

death penalty. They are, of course, also consistent with the proposition that

it had not. Only the inquiry of the jury requested by Harrison would have

shown which was correct: whether he had been acquitted of the death penalty or not. 

2792 HARRISON v. GILLESPIE
[9] Considering the record before us,13 we are left to conclude that it is entirely possible — even likely — that the jury

had unanimously agreed that the twenty-four mitigating circumstances outweighed the single aggravating circumstance,

and that the jury had therefore made the factual finding that

rendered Harrison statutorily ineligible for the death penalty.

Still, on the record alone, we have an insufficient basis on

which to reach a definitive conclusion. There was, however,

a simple way to determine whether the jury had made the critical factual determination. Harrison requested that the jury be

polled in order to ask it whether it had determined that the

mitigating factors outweighed the aggravating factor. The

jury’s answer would have established whether it had acquitted

him of the death penalty. However, the trial court denied the

request, dismissed the jury, and declared a mistrial. Because

of the trial judge’s decision to declare a mistrial without

granting Harrison’s polling request, we cannot determine

whether the jury acquitted Harrison of the death penalty.

Accordingly, his implied acquittal claim must fail.

B. Manifest Necessity

Had the judge polled the jury before declaring a mistrial,

and had the jury announced that it had unanimously found

that the mitigators outweighed the aggravator, Harrison would

have been unambiguously acquitted of the death penalty, and

the State would be barred from seeking that penalty in future

sentencing proceedings.14 Had it answered otherwise, the

13Harrison has conceded that the juror declarations obtained after trial

have no evidentiary weight here, as a matter of law, and that is the State’s

legal position as well. Accordingly, we do not consider the declarations as

part of the record upon which we may base our decision. 

14Our discussion of polling does not reflect any determination that polling offered the only means of protecting Harrison’s double jeopardy

rights. Rather, it results from Harrison’s specific request that the trial court

“poll the 12 individual jurors and ask them individually if any of them

made the determination that the mitigation outweighed the aggravations in

HARRISON v. GILLESPIE 2793
State would have been free to seek the death penalty once

more. Accordingly, we now turn to the question whether,

under these circumstances, the declaration of a mistrial without Harrison’s consent constituted an abuse of discretion.15

[10] The Double Jeopardy Clause, in addition to “unequivocally prohibit[ing] a second trial following an acquittal[,]

. . . . also embraces the defendant’s valued right to have his

trial completed by a particular tribunal.” Arizona v. Washington, 434 U.S. 497, 503 (1978) (citation and internal quotation

marks omitted). At the same time, “a variety of circumstances

. . . may make it necessary to discharge a jury before a trial

is concluded.” Id. at 503. When those circumstances do not

this matter.” The trial court denied that request without offering any alternative means of determining whether Harrison had been acquitted of the

death penalty — for example, by asking the foreperson whether the jury

had reached unanimous agreement as to whether the mitigators outweighed the aggravators, or by providing the jury with an additional verdict form and allowing it to report whether it had or could resolve that

issue without agreeing on a sentence. Should the parties expressly agree

to substitute a report by the foreperson for a polling of the jurors by the

court, that alternative would certainly be acceptable. Moreover, the parties

could, of course, agree to a foreperson’s report without waiving their right

to an open juror poll by the court. The prosecution has no right, however,

to bar a juror poll if requested by the defendant, at least in the absence of

some good cause not present here. Of course, if a defendant consents to

the declaration of a mistrial at any time, including after an inquiry into the

status of a jury’s deliberations, whether that inquiry involves individual

polling or any other procedure, manifest necessity is not required. See

United States v. Scott, 437 U.S. 82, 93 (1978). 

15Our analysis is simplified by the fact that the court was informed

before it dismissed the jury of the answer to the first question that could

have determined that Harrison could not be tried a second time on the

issue of the death penalty. The jury had answered that question, whether

an aggravating circumstance existed, adversely to Harrison, thus leaving

only the answer to the second question to inform the court whether the

jury had decided that the State had failed to prove that Harrison was deatheligible. Accordingly, although Harrison asked that the jury be polled on

both questions, we will hereafter discuss only the second. 

2794 HARRISON v. GILLESPIE
result in unfairness to the defendant, a trial court may exercise

its discretion to declare a mistrial, and a subsequent prosecution will not violate the Double Jeopardy Clause. Id. at 505.

However, because of the importance of a defendant’s right to

a single trial, a declaration of a mistrial violates a defendant’s

double jeopardy rights if it is done without his consent, unless

there is a “manifest necessity” for the court’s action. Id.

[11] A jury’s inability to reach a verdict can, in some circumstances, create “manifest necessity” for declaring a mistrial. Id. While an appellate court owes “great deference” to

a trial court’s decision to declare a mistrial because of a hung

jury, “[i]f the record reveals that the trial judge has failed to

exercise the ‘sound discretion’ entrusted to him, the reason for

such deference by an appellate court disappears.” Id. at 510

n.28.

[12] Here, the question is not whether the trial court

abused its discretion in determining, based on the verdict

forms and the colloquy with the foreperson, that the jury had

reached an impasse as to the sentence to be imposed. The

jury’s failure to agree upon a sentence provides no information about whether it had acquitted Harrison of the death penalty by unanimously reaching a final determination that, under

the facts as it had found them, he was statutorily ineligible for

that penalty.16 As we have explained, see supra at 2793, there

is a substantial possibility that the jury had already resolved

that preliminary question in Harrison’s favor after it had first

determined that there were twenty-four mitigating factors and

16The colloquy between the trial court and the foreperson addressed

only whether the jury could reach an agreement as to the ultimate sentence

to be imposed, and not whether the jury had already resolved the preliminary factual questions that determined Harrison’s statutory eligibility for

the death penalty. Accordingly, United States v. Cawley, 630 F.2d 1345

(9th Cir. 1980), cited by the dissent, is inapposite. Cawley addressed the

difference between questioning the foreperson and polling each juror individually. Here, however, the trial court did not poll the jurors or ask the

foreperson whether the jury had acquitted Harrison of the death penalty.

HARRISON v. GILLESPIE 2795
one aggravating one. Accordingly, the issue presented in this

case is not whether the judge should have declared a mistrial

at all, but whether the mistrial should have been declared

without first honoring Harrison’s request to ask whether the

jury had acquitted him of the death penalty. If there was no

manifest necessity to dismiss the jury without asking it

whether it had done so, the trial court abused its discretion by

declaring a mistrial in violation of the rights guaranteed to

Harrison under the Double Jeopardy Clause.17

1.

We first examine the Nevada statutes cited by the prosecution in opposition to Harrison’s polling request. As explained

below, our decision does not examine the validity of those

statutes, because none posed any barrier to the granting of

Harrison’s request.

The first statute cited by the prosecution prohibits asking a

juror about “the effect of anything upon his or any other

17The district court did not address this issue in its decision denying

Harrison’s habeas petition. The State contends that the issue “[has] not

been squarely raised in this case until now and [has] not been previously

addressed by any court below.” Harrison did, however, raise these issues

both in the state courts and the federal district court. In his Motion to

Strike, he argued that the members of the jury “had each independently

determined that [his] mitigating circumstances outweighed the aggravating

circumstances of his crime” and that the Double Jeopardy Clause “entitled

[him] to establish the record of the jury’s verdict so that his rights could

be protected.” Before the Nevada Supreme Court, he argued that the jury

had “determined that the mitigation evidence outweighed the aggravation

evidence” and that “[u]nder the Fifth and Fourteenth Amendments, [he]

was entitled to establish the record of the jury’s verdict so that his rights

could be protected.” In the habeas petition presented to the district court,

he argued that the jury “unanimously concluded that the mitigating factors

outweighed the one aggravating factor” and that he “was entitled to establish the record concerning the jury’s verdict so that his Double Jeopardy

rights could be protected.” We conclude that the issue was squarely and

adequately raised below. 

2796 HARRISON v. GILLESPIE
juror’s mind or emotions as influencing him to assent or to

dissent from the verdict or indictment or concerning his mental processes in connection therewith.” Nev. Rev. Stat.

§ 50.065. Harrison requested a poll as to the jury’s conclusion

about his statutory eligibility for the death penalty. This was

an objective question about whether the jury had resolved an

issue that it was required to resolve, not an inquiry into the

jury’s emotions or thought processes in reaching its conclusions. Accordingly, the trial court would not have violated

this statute by granting Harrison’s polling request.

The second statute cited by the prosecution requires the

jury to be polled at the request of any party, or by the court

sua sponte, after the jury returns a verdict. Nev. Rev. Stat.

§ 175.531. The statute does not state that only post-verdict

polling is permissible, and therefore would not have prohibited the judge from polling the jurors after they had reported

their inability to reach a sentencing decision.

The third and final statute sets forth the procedure to be followed when a jury is unable to reach a unanimous sentencing

decision in a capital case. Nev. Rev. Stat. § 175.556(1). When

that situation occurs, “the district judge who conducted the

trial or accepted the plea of guilty shall sentence the defendant

to life imprisonment without the possibility of parole or

impanel a new jury to determine the sentence.” Id. In Harrison’s case, the judge chose the latter option. Nothing in the

statute, however, precluded the judge from conducting a poll,

before discharging the initial jury, in order to determine either

whether it was actually deadlocked or whether Harrison had

been acquitted of the death penalty so that only the non-death

sentencing options would be submitted to the new jury.

[13] “A court abuses its discretion when it rests its decision on an inaccurate view of the law.” United States v. Jones,

472 F.3d 1136, 1141 (9th Cir. 2007) (citing United States v.

Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005)). Although it is

clear that the statutes cited by the prosecution did not preclude

HARRISON v. GILLESPIE 2797
the trial court from honoring Harrison’s polling request, and

that the prosecution’s view of the law was erroneous, the

record does not make clear whether the trial court relied on

the cited statutes in denying the request. The judge’s response

to the parties’ arguments about polling does not state why she

believed that she was not permitted to make any inquiry that

went beyond the verdict forms, whatever the reason for her

belief:

The problem is if they found that the — if they

found aggravators and they found mitigators, until

they actually fill out one of the two verdict forms

indicating the penalty, we don’t know what their

weighing analysis was because there’s nothing on

the mitigating form to say the jury having found

these mitigators finds the mitigators outweigh the

aggravators or the aggravators outweigh the 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 by virtue of the fact they’re not considering the

death penalty or at this point in time are not tied

between some with the death penalty, that doesn’t

tell us where they are in terms of the aggravators and

the mitigators.

As explained below, the court was clearly in error. There was

a way for it to determine whether the jury had acquitted Harrison of the death penalty. In fact, the court not only was permitted but required to honor his request to determine whether

the jury had done so. By denying the polling request on the

basis that the verdict forms provided “[t]he only way for us

to know” what the jury decided, the judge relied upon an erroneous interpretation of the law, believing that her discretion

to inquire into the jury’s findings was constrained. Because

2798 HARRISON v. GILLESPIE
the judge failed to explain why she concluded that there was

no way to determine whether the jury had “acquitted” Harrison of the death penalty, we will explain below why her conclusion was legally erroneous and why she was obligated to

grant Harrison’s counsel’s request.

2.

[14] The specific issue before us — whether the trial judge

in a capital case is required to grant a request to poll the jury

when it may have reached a unanimous determination that the

defendant was statutorily ineligible for the death penalty —

has rarely reached the courts.18 The Nevada Supreme Court

may have addressed this issue in Daniel v. State of Nevada,

78 P.3d 890 (Nev. 2003). In that case, the defendant was

found guilty, and the jury was unable to reach a verdict during

the penalty phase. Id. at 896. The defendant argued that the

trial court erred by “refusing to poll the jury to determine if

the jury had unanimously rejected death and had deadlocked

on a lesser sentence.” Id. That question is of course broader

than the question before us: whether the jury had unanimously

found that the mitigating factors outweighed the aggravating

factor. In any event, the Nevada state court rejected the defendant’s argument with only a conclusory statement and no

explanation:

Appellant asserts that before dismissing the jurors

the district court should have granted his request to

poll them to determine whether they had unani18This is due in part to the uniqueness of Nevada’s capital sentencing

scheme. Only 35 states have the death penalty to begin with. In 28 of those

states, either the ultimate decision to impose the death penalty is not made

by the jury, or there are only two sentencing options, so that a hung jury

necessarily reflects an absence of unanimity as to the death penalty. Three

states and the federal system have safety-valves wherein if a jury cannot

reach a unanimous decision, a lesser sentence must be imposed by the

court. Nevada is one of only four jurisdictions in which the circumstances

present in Harrison’s case could possibly arise. 

HARRISON v. GILLESPIE 2799
mously rejected death and were deadlocked over a

lesser sentence. Because appellant argues that imposition of the death penalty after remand and retrial

would violate the Double Jeopardy Clause, we reach

this issue and conclude that the district court was not

required to poll the jurors. Cf. People v. Hickey, 103

Mich.App. 350, 303 N.W.2d 19, 21 (1981); A Juvenile v. Com., 392 Mass. 52, 465 N.E.2d 240 (1984).

Id. at 906 (footnoted citation included as main text). As we

explained earlier, the jury could have rejected the death penalty even if it had made the two factual findings that rendered

the defendant eligible for a capital penalty. Thus, the answer

to the question whether the jury rejected the death penalty

would not have answered the question whether the jury had

found the defendant statutorily ineligible for the death penalty. The Nevada court could have rejected the defendant’s

appeal on the ground that the requested polling could not have

established the acquittal necessary to trigger double jeopardy

protections. Primarily for this reason, but also because Daniel

does not state whether it is construing Nevada’s double jeopardy clause or the double jeopardy clause of the Fifth Amendment, we are unable to conclude that the Nevada Supreme

Court has previously interpreted the United States Constitution with respect to the question now before us.19

A number of courts have addressed the issue that arises

when a greater offense and lesser included offenses are submitted to a jury, the jury reports its inability to reach a verdict,

and the defendant seeks to establish whether the jury has

unanimously agreed on acquittal of the greater offense. Courts

have split as to whether a trial court facing that situation

abuses its discretion by declaring a mistrial without allowing

19In Harrison, the Nevada Supreme Court reached the equally unhelpful

conclusion that its “intervention by way of extraordinary writ [was] not

warranted.” This tells us little or nothing as to whether the court considered, let alone decided, the question we must answer here. 

2800 HARRISON v. GILLESPIE
the defendant to create a record of the jury’s decision as to the

greater offense.

A New Hampshire Supreme Court decision typifies the reasoning of courts holding that a trial court must grant a defendant’s request to poll a hung jury in order to determine

whether it has acquitted the defendant of the greater offense.

The court framed the question as “whether, without first

inquiring what the jury had in fact done, there was a ‘manifest

necessity’ to declare a mistrial or whether the ends of public

justice would otherwise be defeated if the trial court failed to

discharge the jury.” State v. Pugliese, 422 A.2d 1319, 1320-

21 (N.H. 1980) (per curiam). Deciding the case under the

double jeopardy clause of the New Hampshire constitution,

the court answered that question in the negative and held that

a retrial on the greater offense was barred:

Not only did the trial court fail to expressly find a

manifest necessity, but no such necessity could have

been found. Nor would the ends of public justice

have been defeated by simply asking the jury if they

had reached a verdict on the [greater] charge. If the

answer had been in the negative, there would then

have been a basis for the mistrial. If the answer had

been that the jury had agreed on acquittal, then the

defendant’s “valued right” would have been upheld.

There was no necessity at all, much less a high

degree of necessity, to declare a mistrial before making the inquiry requested. All possible alternatives to

a mistrial must be considered, employed and found

wanting before declaration of a mistrial over the

defendant’s objection is justified. That was not done

in this case.

Id. at 1321 (citations omitted); see also Wallace v. Havener,

552 F.2d 721, 724 (6th Cir. 1977) (“There is no acceptable

reason why the state should have a second opportunity to convince a jury of facts necessary to secure a conviction of a

HARRISON v. GILLESPIE 2801
crime.”); Stone v. Superior Court, 646 P.2d 809, 820 (Cal.

1982) (“[T]he trial court is constitutionally obligated to afford

the jury an opportunity to render a partial verdict of acquittal

on a greater offense when the jury is deadlocked only on an

uncharged lesser included offense. Failure to do so will cause

a subsequently declared mistrial to be without legal necessity.”).

In People v. Hickey, 303 N.W.2d 19 (Mich. App. 1981), the

Michigan Court of Appeals reached the opposite conclusion.

The court determined that “polling the jury on the various

possible verdicts submitted to it would constitute an unwarranted and unwise intrusion into the province of the jury.” Id.

at 21. The court also expressed the concern that “jury votes

on included offenses may be the result of a temporary compromise in an effort to reach unanimity.” Id.; accord A Juvenile v. Commonwealth, 465 N.E.2d 240, 244 (Mass. 1984).

[15] We are persuaded by the reasoning of the cases

decided in favor of granting a defendant’s polling request, and

certainly in a capital case. We believe that the cases give

appropriate weight to a defendant’s “valued right to have his

trial completed by a particular tribunal,” Washington, 434

U.S. at 503, and recognize that there can be no “manifest

necessity” for declaring a mistrial without allowing the defendant the opportunity to establish whether he has been acquitted of a charge brought against him.

The concerns expressed in the cases that disfavor polling

are simply too insubstantial to outweigh the countervailing

risk that a defendant will be subjected to a second trial for an

offense of which he has already been acquitted. A jury poll,

when conducted in open court and with proper instructions,

does not create a risk that a juror’s temporary compromise

vote will be erroneously treated as a final conclusion. When

the pressure to compromise is a concern, courts have recognized that polling is the solution, not the problem. “Polling is

useful to indicate an irregularity in a verdict.” United States

2802 HARRISON v. GILLESPIE
v. Paniagua-Ramos, 135 F.3d 193, 199 (1st Cir. 1998) (citing

Siverson v. O’Leary, 764 F.2d 1208, 1219-20 (7th Cir. 1985)).

This is because a poll places the members of a jury “in a situation (i.e., polling in open court) that allows them to be free

of jury-room coercion.” United States v. Williams, 990 F.2d

507, 512 (9th Cir. 1993). Moreover, any concern about tentative findings can be resolved by simply instructing the members of the jury to answer the polled question in the

affirmative only if they have reached a final conclusion. See

also supra note 14.

Under the circumstances of this case, the concern about

temporary compromise votes carries even less weight than in

other contexts. Harrison sought to poll the jury as to whether

it had found that the mitigating circumstances of his crime

outweighed the aggravating circumstance. Under Nevada law,

the jury’s answer to that question did not affect the availability of any sentence other than death. See Nev. Rev. Stat.

§ 200.030(4); id. § 175.554(3). A vote that the mitigating circumstances outweighed the aggravating circumstance would

thus have little value as a temporary compromise, because

unanimous agreement on that issue would eliminate death as

a possible penalty without bringing the jury any closer to

agreement on a particular non-death sentence.20 When asked

in open court whether the juror had reached a final conclusion

that the mitigating circumstances of Harrison’s crime outweighed the aggravating circumstance, we can see no reason

for a juror to respond with an affirmative answer unless the

juror had actually concluded with finality that Harrison was

statutorily ineligible for the death penalty.

20When reporting a non-death sentence, the jury would have had to

choose between one form stating that “the aggravating circumstance or

circumstances outweigh any mitigating circumstance or circumstances”

and another stating that “the mitigating circumstance or circumstances

outweigh any aggravating circumstance or circumstances.” However,

there is no reason to believe that the decision about which form to use in

reporting a non-death sentence would bring the jury any closer to a decision about which non-death sentence should be imposed. 

HARRISON v. GILLESPIE 2803
Nor do we believe that the requested inquiry would impermissibly invade the province of the jury. Courts are permitted

to make “brief and objective inquiries into the status of jury

deliberations.” United States v. Ross, 626 F.2d 77, 81 (9th Cir.

1980). When a jury announces that it has come to an impasse,

asking “whether the jury [has] reached a unanimous verdict

on any one count” is permissible. Id. at 80. Moreover, a court

may ask a jury to clarify an inconsistent or ambiguous verdict.

United States v. McCaleb, 552 F.3d 1053, 1058 (9th Cir.

2009) (citing Larson v. Neimi, 9 F.3d 1397, 1402 (9th Cir.

1993)). There is no relevant distinction between those inquiries and the one at issue here. Whether the jury unanimously

found that the mitigators outweighed the aggravators is a single, objective, yes-or-no question that would have been

answered by which verdict form was used if the jury had

agreed upon a sentence. The requested poll would not have

required the members of the jury to reveal their reasons for

reaching a particular conclusion, see United States v. Nelson,

692 F.2d 83, 85 (9th Cir. 1982), or any other protected aspect

of the deliberative process. Rather, it would have elicited

clearly permissible information: whether the jury had reached

a unanimous decision about one of the factual issues it was

required to resolve in the prosecution’s favor before it could

consider imposition of the death penalty.

[16] In summary, the requested poll would have conclusively established whether Harrison had been acquitted of the

death penalty without creating a significant risk of giving

final weight to a tentative conclusion or intruding upon protected aspects of the deliberative process. Under these circumstances, there was no manifest necessity for declaring a

mistrial over the defendant’s objection without first polling

the jury as to whether it had unanimously found that the mitigating circumstances of his crime outweighed the aggravating

circumstance. Accordingly, we hold that the trial court abused

its discretion by declaring a mistrial without granting Harrison’s polling request.

2804 HARRISON v. GILLESPIE
C. Future Proceedings

Having concluded that the trial court abused its discretion

by declaring a mistrial in the absence of manifest necessity,

we must now determine what means are available to ensure

that the pending state sentencing proceedings will not violate

Harrison’s rights under the Double Jeopardy Clause.

[17] In the context of a guilt phase trial for related

offenses, a double jeopardy violation may bar retrial as to the

greater offense, the lesser included offense, or both, depending on the nature of the prejudice to the defendant. See Brazzel, 491 F.3d at 986-87; United States v. Jose, 425 F.3d 1237,

1241-44 (9th Cir. 2005). Because the Double Jeopardy Clause

applies fully to trial-like capital sentencing proceedings, see

Bullington v. Missouri, 451 U.S. 430, 446 (1981), the same

principle applies to the sentencing options available in such

proceedings, and a double jeopardy violation may bar retrial

for the death penalty while permitting the imposition of

another sentence. Here, Harrison was prejudiced by the trial

court’s erroneous refusal to allow him to establish whether the

jury had acquitted him of the death penalty. That error did not

cause him any prejudice with regard to the other sentencing

options. Accordingly, the requirements of the Double Jeopardy Clause would be satisfied by simply barring the State

from seeking the death penalty in any future proceedings, and,

of course, barring the courts from imposing that penalty.

Before determining finally that a sentencing proceeding

involving only non-death options is the appropriate remedy in

this case, however, we explore one alternative means of curing the trial court’s failure to honor Harrison’s polling request

before dismissing the jury. If the original jury could be reconstituted and polled as to whether it had unanimously determined during deliberations that the mitigating circumstances

of Harrison’s crime outweighed the aggravating circumstance,

and if that procedure were adequate to establish a reliable

record of its verdict, the prejudice to Harrison would be

HARRISON v. GILLESPIE 2805
removed. Both parties have expressed their opposition to this

course of action, and Harrison has argued that it would be

contrary to law. For the reasons stated below, we conclude

that reassembling the jury would not provide an adequate cure

for the trial court’s erroneous denial of Harrison’s polling

request.

We begin by examining whether reconvening Harrison’s

original jury would be permissible under Nevada law. No

Nevada statute expressly allows or disallows reassembly of a

jury after it has been discharged, but a Nevada Supreme Court

decision sheds considerable light on how the state courts

would view such a procedure. In Davidson v. State of Nevada,

192 P.3d 1185, 1186 (Nev. 2008), the court considered

“whether the district court can change a jury’s verdict from

not guilty to guilty for a criminal charge based on a purported

clerical error after the jury has been discharged.” The court

acknowledged a Nevada statute providing that “[c]lerical mistakes in judgments, orders or other parts of the record and

errors in the record arising from oversight or omission may be

corrected by the court at any time and after such notice, if

any, as the court orders.” Id. at 1189 & n.9 (quoting Nev. Rev.

Stat. § 176.565). However, the court found the application of

that statute to be limited by the Double Jeopardy Clause,

which “does not allow the district court to enhance a verdict

if the jury has been discharged.” Id. at 1189. In reaching that

conclusion, the court cited Burchett v. Commonwealth, 734

S.W.2d 818, 820 (Ky. Ct. App. 1987), for the proposition that

“[o]nce a jury is discharged, it cannot reassemble if the jurors

have separated and have left the presence of the courtroom.”

Davidson, 192 P.3d at 1189 n.10. Although the court discussed both the Double Jeopardy Clause of the federal Constitution and its counterpart in the Nevada constitution, the court

appeared to base its decision on the federal constitutional provision. Id. at 1188-89. Accordingly, while Davidson advises

that the United States Constitution would not allow a jury to

be reassembled after it had been discharged, the case does not

compel that conclusion as a matter of Nevada state law.

2806 HARRISON v. GILLESPIE
Like Davidson, our own precedent strongly suggests that

reassembling a jury to report on guilt or innocence is unlawful. “A court treads on dangerous ground when it reassembles

the jurors to clarify a verdict after the trial has concluded.”

United States v. Boone, 951 F.2d 1526, 1532 (9th Cir. 1991).

With the passage of time, “memories may fail, and in the

interim, ex parte contact with former jurors by dissatisfied litigants may encourage jurors to falsify or invent facts.” Id.

(quoting People v. Romero, 646 P.2d 824, 829 (Cal. 1982)).

In light of the many problems associated with belated jury

polls, we concluded in Boone that the jury could not be reconvened to clarify a discrepancy between its written and oral

verdicts more than two years after the trial had ended. Id.

We reached a similar conclusion in United States v. Washington, 819 F.2d 221 (9th Cir. 1987). Two years after a jury

found the defendant guilty, we determined that the trial court

had erred by failing to expose potential juror prejudice during

voir dire. Id. at 224. The government suggested reassembly of

the jury in order to question each juror about the unexamined

source of potential prejudice. Id. We rejected that suggestion,

in part because “[m]emories fade and biases change over

time,” undermining the reliability of such a procedure. Id. We

also recognized that reassembling a jury after the passage of

two years would involve “manifest difficulties,” including the

logistical problems involved in locating each of the twelve

jurors, and would be a wasted effort if any member of the jury

could not be reached. Id. at 224-25. Our decision rested

largely on such “pragmatic” considerations. Id. at 225; see

also United States v. Sweat, 555 F.3d 1364, 1368 (11th Cir.

2009) (concluding that three months after the jury had been

dismissed, reassembly implicated “inherent concerns about

recalling and interrogating jurors, plus the likely fogging of

memories with the passage of time from the end of the trial”).

Other courts have held that a jury may not be reassembled

for polling after it has dispersed, citing concerns about the

impact of lifting the admonition against discussing the case or

HARRISON v. GILLESPIE 2807
engaging in ex parte contact after the trial has ended. For

example, the Seventh Circuit reasoned that even after a single

day, a jury “will have been subjected to exposure of outside

factors rendering the reliability of any poll on recall problematic.” United States v. Marinari, 32 F.3d 1209, 1213 (7th Cir.

1994). The court explained:

[A]fter discharge, the jurors are quite properly free

to discuss the case with whomever they choose. Simple questions such as “Did we do alright?” or “We

did the right thing, didn’t we?”— responded to either

positively or negatively would taint any subsequent

poll. In any realistic sense, no meaningful poll, unaffected by outside influences, could be conducted at

this point.

Id. at 1214. The court thus determined that “the jury continued to exist as a judicial body under the control of the court”

only during the time that the members of the jury “had not

dispersed and . . . remained untainted by any outside contact.”

Id. at 1215; see also Speaks v. United States, 617 A.2d 942,

949 (D.C. App. 1992) (“While a poll of the jury immediately

after return of a verdict or immediately after a note of deadlock is a commonly accepted procedure, a poll comes too late

after the jury has dispersed.”).

Here, more than three years have passed since Harrison’s

original jury was dismissed on November 27, 2006. We are

aware of no case, civil or criminal, in which we have allowed

a court to reassemble a jury after such a significant passage

of time.21 All of the concerns noted above — the reliability

21In E.F. Hutton & Co., Inc. v. Arnebergh, 775 F.2d 1061, 1063 (9th

Cir. 1985), the trial court reconvened the jury several weeks after the close

of a civil trial in order to clarify an ambiguity in the verdict. Because the

parties had stipulated to that procedure, we allowed the judgment to stand

without deciding whether reassembling the jury had been proper. Id. at

1064. Here, in contrast, both Harrison and the State have expressed their

opposition to reassembling the jury. 

2808 HARRISON v. GILLESPIE
problems caused by the fogging of memory over time; the

logistical difficulties involved in contacting and reconvening

twelve jurors, some of whom may have moved away or died

in the interim; and the potential bias introduced by outside

influences after the admonition has been lifted — are present

in this case.

We are especially concerned that a belated poll of Harrison’s original jury would be tainted by outside influences.

Because death penalty cases attract a great deal of interest and

publicity, we safely assume that most if not all of the jurors

read about Harrison’s case or discussed it with friends and

family after the trial ended. Moreover, because three jurors

gave affidavits for the defense and one gave an affidavit for

the prosecution, we can be certain that extensive ex parte contact has occurred. Accordingly, even if the logistical problems

were resolved such that a poll of the reassembled jury could

occur, we have no confidence that the poll would accurately

reflect what the jury decided during its deliberations more

than three years ago.

[18] Under these circumstances, reassembling Harrison’s

jury for polling would be neither feasible nor adequate to cure

the constitutional violation that occurred when the trial court

declared a mistrial in the absence of manifest necessity. By

failing to honor Harrison’s polling request, the trial court

deprived him of the only possible means of establishing

whether he had been acquitted of the death penalty. Accordingly, we conclude that the State must not be permitted to

seek, and the sentencer may not impose, the death penalty

against Harrison in any future proceeding relating to the

offense on which he was tried.

Conclusion

The trial court abused its discretion by declaring a mistrial

without first granting Harrison’s request to poll the jury as to

whether it had unanimously determined that the mitigating

HARRISON v. GILLESPIE 2809
circumstances of his crime outweighed the aggravating circumstance such that he was statutorily ineligible for the death

penalty. Under these circumstances, allowing the State to

seek, or the court to impose, the death penalty in the pending

sentencing proceeding would violate the rights guaranteed to

Harrison under the Double Jeopardy Clause. Accordingly, we

REVERSE the decision of the district court and REMAND

with instructions to issue a writ directing the State to refrain

from seeking the death penalty at Harrison’s sentencing retrial

or at any future sentencing proceeding.

REVERSED and REMANDED WITH INSTRUCTIONS.

SILVERMAN, Circuit Judge, dissenting:

The foreperson told the judge in open court, without contradiction, that the jury was deadlocked on the issue of punishment. There is no court case anywhere holding that the

constitution requires a state trial judge to ask more specific

questions about the status of the jury’s unfinished deliberations in a sentencing matter entrusted to its discretion. In the

face of the jury’s return of the unsigned punishment verdict

forms, plus the foreman’s statement that the jury was at an

impasse as to the sentence, the trial judge did not abuse her

discretion in declaring a mistrial and ordering a new sentencing trial.

Two jurors sent the judge a note indicating that the jury

was deadlocked between life with parole and life without

parole. The remaining ten jurors neither signed nor sent such

a note. Everyone agrees that a note is not a verdict. 

The judge then called the jury into open court and the following colloquy occurred:

2810 HARRISON v. GILLESPIE
THE COURT: The court has received notes from

two members of the jury indicating that the jury is

deadlocked and after deliberations is unable to reach

a verdict. Is that your assessment of the situation?

THE FOREPERSON: Yes.

THE COURT: Do you feel that further deliberations

could aid the jury, or do you feel that the jury is at

an impasse in terms of a punishment in this case?

THE FOREPERSON: I think it is at an impasse. 

Although the judge’s question focused on whether a verdict

had been reached “in terms of a punishment in this case,” and

even though the notes were specifically referenced, none of

the other jurors, not even the note-writers, contradicted the

foreperson. 

The court then obtained the four verdict forms and ascertained that only two of them had been signed by the foreperson. The two signed forms reflected unanimous findings of

both aggravating and mitigating factors. It is undisputed that

the findings reflected on these verdict forms do not acquit

Harrison of the death penalty. To the contrary, they establish

his eligibility for it. 

The two remaining verdict forms were returned unsigned,

reflecting a lack of unanimous agreement about whether or

not the aggravation outweighed the mitigation, and whether

death or some term of imprisonment should be imposed. If the

jury had returned a verdict indicating unanimous agreement

that the mitigation outweighed the aggravation, Harrison

would have been acquitted of the death penalty. But that is not

what happened. The forms calling for the weighing of the

aggravation against the mitigation were returned unsigned. To

recap, the verdict forms reflected unanimous findings of

aggravating and mitigating factors, but no finding on whether

HARRISON v. GILLESPIE 2811
the aggravation outweighed the mitigation, or whether the

sentence should be death or some period of incarceration.

Harrison’s counsel wanted the court “to poll the 12 individual jurors and ask them individually if any of them made the

determination that the mitigation outweighed the aggravations

in this matter.” However, the trial judge was not constitutionally obligated to question each juror individually before finding a deadlock and declaring a mistrial. According to United

States v. Cawley, 630 F.2d 1345, 1349 (9th Cir. 1980),

“[u]pon receiving a communication from the jury that agreement cannot be reached, the judge must question the jury to

determine independently whether further deliberations might

overcome the deadlock. A judge can appropriately determine

that there is a manifest necessity for a mistrial by questioning

only the jury foreman.” (citations omitted).

The foreperson’s answers to the judge’s questions were categorical, unequivocal, uncontradicted, and consistent with the

jury’s failure to return a written verdict. Conspicuously missing from the majority opinion is a single federal case — or

indeed any case — establishing a constitutional right to a partial verdict when it comes to sentencing, and certainly not

when a jury is required to “weigh” intangible factors and ultimately determine a just punishment as a matter of discretion.

The verdict in a penalty phase trial is the gestalt of the jury’s

weighing, balancing, and moral judgment. It is the jury’s final

decision that counts, not its thoughts in progress. Whether or

not the state judge could have engaged in more detailed questioning, the federal constitution simply does not require an

inquiry into the status of unfinished deliberations in a profoundly discretionary matter such as this before declaring a

mistrial. 

A trial judge has “broad discretion in deciding whether or

not ‘manifest necessity’ justifies a discharge of the jury. . . .

The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great defer2812 HARRISON v. GILLESPIE
ence by a reviewing court.” Arizona v. Washington, 434 U.S.

497, 510 (1978). The state trial court did not abuse its discretion in finding that the jury was at an impasse with respect to

the sentence and in declaring a mistrial. Because a retrial on

sentencing will not violate Harrison’s right against double

jeopardy, Sattazahn v. Pennsylvania, 537 U.S. 101, 109

(2003), the district court correctly denied the petition for writ

of habeas corpus. I therefore respectfully dissent.

HARRISON v. GILLESPIE 2813