FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNEST LEE BRAZZEL, 

No. 05-36145

Petitioner-Appellant,

D.C. No.

v. CV-04-05892-RBL

STATE OF WASHINGTON,

 ORDER

Respondent, AMENDING

v. OPINION AND

AMENDED ALICE PAYNE,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

December 6, 2006—Seattle, Washington

Filed April 12, 2007

Amended June 22, 2007

Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge McKeown

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

7511
COUNSEL

Russell V. Leonard, Federal Public Defender, Tacoma, Washington, for the appellant. 

Gregory J. Rosen, Assistant Attorney General, Olympia,

Washington, for the appellee. 

ORDER

Judge McKeown votes to deny the petition for rehearing en

banc and Judge B. Fletcher and Judge Schwarzer so recommend. The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35. The

petition for rehearing en banc is denied. 

The Opinion filed on April 12, 2007 is amended as follows:

On slip Opinion page 4235, line 15, insert the following

text: <“a reliable inference of prejudice.” Mathews, 475 U.S.

at 246.> to replace <inferences of prejudice.> 

On slip Opinion page 4235, line 26, insert the following

text after the sentence ending in the word <charge.> and

before the sentence beginning with the word <Therefore>:

<Absent the murder charge, the landscape of the trial would

have been significantly different.> 

On slip Opinion page 4235, line 26, insert the following

text after the word <Therefore,> and before <Brazzel>: <there

7514 BRAZZEL v. STATE OF WASHINGTON
is a “reliable” inference that> and delete the word <well>. No

further petitions shall be entertaned.

OPINION

McKEOWN, Circuit Judge: 

In this 28 U.S.C. § 2254 habeas appeal, Ernest Lee Brazzel

challenges, as a violation of the Double Jeopardy Clause, his

retrial on an attempted murder charge, after his first jury

remained silent on that charge, and convicted him of a lesser

alternative offense. Two different juries have now convicted

Brazzel of the lesser offense, first degree assault. Both juries

failed to reach the alternate and more serious charge of

attempted murder. The framework for our analysis of this

double jeopardy challenge is found in two Supreme Court

cases—Green v. United States, 355 U.S. 184 (1957), and

Price v. Georgia, 398 U.S. 323 (1970). 

In Green, the Supreme Court explained the doctrine of

implied acquittal: when a jury convicts on a lesser alternate

charge and fails to reach a verdict on the greater charge—

without announcing any splits or divisions and having had a

full and fair opportunity to do so—the jury’s silence on the

second charge is an implied acquittal. 355 U.S. at 191. A verdict of implied acquittal is final and bars a subsequent prosecution for the same offense. See id. Under Price, putting the

defendant in jeopardy a second time is not necessarily harmless error or moot, even if the defendant is only convicted of

the lesser crime, because “[t]he Double Jeopardy Clause . . .

is cast in terms of the risk or hazard of trial and conviction,

not of the ultimate legal consequences of the verdict.” 398

U.S. at 331. 

Although the Washington Court of Appeals assumed that

the lack of a verdict on the attempted murder charge followBRAZZEL v. STATE OF WASHINGTON 7515
ing Brazzel’s first trial was an implied acquittal, the state

court grounded its denial of Brazzel’s double jeopardy claim

in a mootness or harmless error analysis in contravention of

Price. Accordingly, because the decision was contrary to

clearly established U.S. Supreme Court precedent, we reverse

with instructions to grant the writ of habeas corpus. As did the

Court in Price, we remand the case to enable the Washington

courts “to resolve the issues pertaining to petitioner’s retrial,

if any such retrial is to be had.” Id. at 332. 

BACKGROUND

Ernest Brazzel was charged with three counts related to the

repeated assault of his girlfriend in 1997 and 1998. Count I

alleged attempted first degree murder or, in the alternative,

first degree assault, committed between May 10 and May 16,

1998. Count II alleged second degree assault, committed

between May 4 and May 11, 1998. Count III alleged second

degree assault, committed between April 15 and April 22,

1998. 

The jury convicted Brazzel of first degree assault on Count

I, second degree assault on Count II, and second degree

assault on Count III. On Count I, the jury remained silent on

the first degree attempted murder charge, leaving the verdict

form blank. During the jury poll, at the conclusion of their

deliberations, the jurors did not claim to be hung or announce

any splits or divisions. The state did not request that the jury

be declared hung as to the attempted murder count; nor did

the state take any other post-verdict action on the attempted

murder charge. The trial judge discharged the jury, taking as

final the convictions on the assault counts, and sentenced

Brazzel to 456 months in prison. 

After Brazzel appealed, the prosecutor conceded that a significant jury instruction unrelated to this appeal was erroneous. The case was remanded for a new trial. 

7516 BRAZZEL v. STATE OF WASHINGTON
The prosecutor refiled the same alternative charge as the

original Count I: Attempted Murder in the First Degree “and

in the alternative” Assault in the First Degree, and the various

other assault charges. Brazzel moved to dismiss the attempted

murder allegation on double jeopardy grounds. In response,

the government argued that based on the phrasing of the first

set of jury instructions, the jury’s silence indicated a hung

jury and not an implied acquittal.

The relevant portion of the jury instruction reads as follows: 

When completing the verdict forms, you will first

consider the crime of ATTEMPTED MURDER IN

THE FIRST DEGREE as charged in Count I. If you

unanimously agree on a verdict, you must fill in the

blank provided in verdict form A the words “not

guilty” or the word “guilty,” according to the decision you reach. If you cannot agree on a verdict, do

not fill in the blank provided in Verdict Form A. 

If you find the defendant guilty on verdict form A,

do not use verdict form B. If you find the defendant

not guilty of the crime of ATTEMPTED MURDER

IN THE FIRST DEGREE, or if after full and careful

consideration of the evidence you cannot agree on

that crime, you will consider the alternative crime of

ASSAULT IN THE FIRST DEGREE as charged in

Count I. 

Referencing this instruction, the government posited that the

jury must not have “unanimously” agreed as to the attempted

murder charge, therefore leaving the form blank, which

resulted in a hung jury and a mistrial on that charge, and permitted a retrial for attempted murder. 

Brazzel countered that the record provided no indication or

evidence that the jury hung or that a mistrial had been

BRAZZEL v. STATE OF WASHINGTON 7517
declared with respect to the attempted murder charge. He

acknowledged that the instruction stated that if the jury could

not agree they should leave the form blank and convict on the

lesser alternate count, but argued that a mere inability to agree

with the option of compromising on a lesser alternate offense,

without more, does not rise to the level of a hung jury permitting retrial. After the second trial judge rejected Brazzel’s

motion to bar retrial on the attempted murder charge, Brazzel

stood trial a second time for attempted murder. Once again,

the jury did not convict Brazzel of that charge, leaving the relevant verdict form blank. The jury was similarly instructed to

proceed to the assault charge if they could not agree on the

attempted murder charge. In a reprise of the first trial, the jury

convicted Brazzel of first degree assault and the other assault

counts. Brazzel was sentenced to 240 months in prison. 

Brazzel exhausted his double jeopardy claim in state court

in a pro se supplemental brief to the Washington Court of

Appeals. In an unpublished opinion, the court concluded that

any double jeopardy violation was “moot” since Brazzel was

“essentially acquitted” of first degree murder following the

second trial: 

Relying on the double jeopardy clause, Brazzel

claims pro se that he should not have been tried for

attempted first degree murder in the second trial,

given that the jury in the first trial acquitted him of

that crime. If his claim is valid, we should dismiss

the charge of first degree murder. Yet that has

already been done, because he has essentially been

acquitted of that charge. Assuming that his contention was valid earlier, it is moot now. 

Washington v. Brazzel, No. 27877-4-II (Wash. Ct. App. filed

Sept. 30, 2003) (Emphasis added). 

In essence, the Washington Court of Appeals reasoned that

the double jeopardy violation was harmless error because the

7518 BRAZZEL v. STATE OF WASHINGTON
jury’s silence on the attempted murder charge in the second

case amounted to an implied acquittal. The jury’s silence,

which the court of appeals treated as an implied acquittal in

the second trial, was identical to the jury’s silence following

the first trial. 

After the Washington Court of Appeals denied relief, Brazzel moved for discretionary review by the Washington

Supreme Court, again claiming a double jeopardy violation.

His motion was denied without comment. The United States

Supreme Court denied his petition for writ of certiorari. Brazzel v. Washington, 543 U.S. 1004 (2004) (mem.). 

Brazzel filed a timely federal habeas petition in the United

States District Court for the Western District of Washington.

The district court, upon the recommendation of the magistrate

judge, dismissed Brazzel’s double jeopardy claim. The magistrate judge reasoned that assault is not a lesser included

offense of attempted murder, and that the jury’s failure to

convict Brazzel of the alternative murder charge did not

amount to an implied acquittal. 

ANALYSIS

We review de novo the district court’s decision to dismiss

Brazzel’s federal habeas petition. Lockhart v. Terhune, 250

F.3d 1223, 1228 (9th Cir. 2001). Under the Anti-Terrorism

and Effective Death Penalty Act of 1996 (AEDPA), we may

not grant relief to a state habeas petitioner unless the state

courts’ failure to grant relief was “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). “In a habeas appeal, we review the last

reasoned decision in the state court system,” here the Washington Court of Appeals’ determination that the double jeopardy violation was “moot.” Riggs v. Fairman, 399 F.3d 1179,

1182 (9th Cir. 2005) (citing Robinson v. Ignacio, 360 F.3d

1044, 1055 (9th Cir. 2004)). “We have relaxed AEDPA’s

BRAZZEL v. STATE OF WASHINGTON 7519
strict standard of review when the state court reaches a decision on the merits but provides no reasoning to support its

conclusion. Under such circumstances, we independently

review the record to determine whether the state court clearly

erred in its application of Supreme Court law.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 

I. THE DOUBLE JEOPARDY LANDSCAPE

[1] The Fifth Amendment’s Double Jeopardy Clause prohibits retrial after an acquittal, whether express or implied by

jury silence. See Green, 355 U.S. at 191. An implied acquittal

occurs when a jury returns a guilty verdict as to a lesser

included or lesser alternate charge, but remains silent as to

other charges, without announcing any signs of hopeless

deadlock. See id. at 191, 194. As early as 1898, the Supreme

Court announced that jury silence is tantamount to acquittal,

explaining: “where a jury, although convicting as to some, are

silent as to other, counts in an indictment, and are discharged

without the consent of the accused, . . . the effect of such discharge is ‘equivalent to acquittal’ . . . .” Selvester v. United

States, 170 U.S. 262, 269 (1898). 

[2] When, as here, the defendant’s conviction is overturned

due to a jury instruction error, the government may retry the

defendant as to the charge of conviction, but not for other

charges of which the first jury impliedly or expressly acquitted him. See, e.g., Ball v. United States, 163 U.S. 662, 672

(1896) (“[A] defendant who procures a judgment against him

upon an indictment to be set aside may be tried anew upon the

same indictment, or upon another indictment, for the same

offense of which he had been convicted.”). In Green, the

Supreme Court made plain the prohibition on retrial following

jury silence: 

[H]ere, the jury was dismissed without returning any

express verdict . . . and without Green’s consent. . . .

[U]nder established principles of former jeopardy

7520 BRAZZEL v. STATE OF WASHINGTON
. . . Green’s jeopardy for first degree murder came

to an end when the jury was discharged so that he

could not be retried for that offense. . . . [T]his case

can be treated no differently, for purposes of former

jeopardy, than if the jury had returned a verdict

which expressly read: “We find the defendant not

guilty of murder in the first degree but guilty of murder in the second degree.

355 U.S. at 191 (citations omitted). Then, in Price, the Court

reaffirmed its “refus[al] to rule that jeopardy for an offense

continues after an acquittal, whether that acquittal is express

or implied by a conviction on a lesser included offense when

the jury was given a full opportunity to return a verdict on the

greater charge.” 398 U.S. at 329. 

In contrast to an implied acquittal, retrial is permitted

where there is a mistrial declared due to the “manifest necessity” presented by a hung jury. See United States v. Perez, 22

U.S. 579, 580 (1824). A hung jury occurs when there is an

irreconcilable disagreement among the jury members. A “high

degree” of necessity is required to establish a mistrial due to

the hopeless deadlock of jury members. See Arizona v. Washington, 434 U.S. 497, 506 (1978). The record should reflect

that the jury is “genuinely deadlocked.” Richardson v. United

States, 468 U.S. 317, 324-25 (1984) (explaining that when a

jury is genuinely deadlocked, the trial judge may declare a

mistrial and require the defendant to submit to a second trial);

see also Selvester, 170 U.S. at 270 (“But if, on the other hand,

after the case had been submitted to the jury they reported

their inability to agree, and the court made record of it and

discharged them, such discharge would not be equivalent to

an acquittal, since it would not bar the further prosecution.”).

“The trial judge’s decision to declare a mistrial when he

considers the jury deadlocked is . . . accorded great deference

by a reviewing court.” Arizona v. Washington, 434 U.S. at

510; United States v. Salvador, 740 F.2d 752, 755 (9th Cir.

BRAZZEL v. STATE OF WASHINGTON 7521
1984) (citations omitted). When a judge does not find a mistrial to be of manifest necessity in his or her own judgment,

“the prosecutor must shoulder the burden of justifying the

mistrial if he is to avoid the double jeopardy bar. His burden

is a heavy one. The prosecutor must demonstrate ‘manifest

necessity’ for any mistrial declared over the objection of the

defendant.” Arizona v. Washington, 434 U.S. at 505. 

[3] Contrary to the impression of the magistrate judge, for

double jeopardy to attach, there is no explicit requirement that

the charged offenses be greater and lesser included offenses.

Rather, the Supreme Court is clear that a defendant may not

be retried after an implied acquittal of any offense. See, e.g.,

Green, 355 U.S. at 191, 194. The defining fact is that “it is

a distinct and different offense”:

It is immaterial whether [it] . . . is a lesser offense

included . . . or not. The vital thing is that it is a distinct and different offense. If anything, the fact that

it cannot be classified as “a lesser included offense”

. . . buttresses our conclusion . . . . American courts

have held with uniformity that where a defendant is

charged with two offenses, neither of which is a

lesser offense included within the other, and has

been found guilty on one but not on the second he

cannot be tried again on the second even though he

secures reversal of the conviction and even though

the two offenses are related offenses charged in the

same indictment. 

Id. at 194 (citation omitted) (emphasis added). 

II. THE STATE COURT’S ASSUMPTION OF IMPLIED ACQUITTAL

In deciding Brazzel’s double jeopardy claim the Washington Court of Appeals treated the jury’s silence as “essentially”

an acquittal. Addressing Brazzel’s claim that he had been

acquitted of murder in the first trial, the court stated: “If his

7522 BRAZZEL v. STATE OF WASHINGTON
claim is valid, we should dismiss the charge of first degree

murder. Yet that has already been done because he has essentially been acquitted of that charge.” The jury’s silence following the first trial was identical to that following the

second, indicating that the Washington Court of Appeals

understood the earlier jury’s silence as “essentially” an acquittal as well. The court of appeals assumed, in effect, that the

jury’s silence on the attempted murder charge was not evidence that the jury hung; had their silence resulted in a hung

jury, then there unquestionably would have been no legitimate

double jeopardy claim and no need to consider the prejudicial

effect of the jury’s silence. 

Under AEDPA, we ordinarily defer to the state court’s

determination of a mixed question of law and fact such as this

unless it is contrary to or an unreasonable application of

Supreme Court law. See 28 U.S.C. § 2254(d)(1). We apply a

less stringent standard of review when the state court reaches

a decision on the merits but does not supply reasoning for its

decision. Pirtle, 313 F.3d at 1167. Under such circumstances,

we review the record to determine if there was clear error. Id.

If the state court has not addressed a constitutional issue at all,

then our review is de novo. Id.; accord Menendez v. Terhune,

422 F.3d 1012, 1026 (9th Cir. 2005). 

The Washington Court of Appeals reached the constitutional issue presented by Brazzel’s double jeopardy challenge

and treated the jury’s silence following Brazzel’s first trial as

an implied acquittal, but held it was moot due to the subsequent implied acquittal. Because the state court did not provide any reasons for its determination, our review is for clear

error. See Pirtle, 313 F.3d at 1167. We note, however, that if

we treat the state court finding with complete AEDPA deference, the result is the same. 

[4] The state court did not clearly err when it treated the

first jury’s silence as an implied acquittal. Although the

Washington Court of Appeals cited no state precedent directly

BRAZZEL v. STATE OF WASHINGTON 7523
on point, under then-governing Washington law, Brazzel’s

retrial for the greater offense following conviction only on the

lesser alternative offense was probably impermissible. See,

e.g., State v. Brown, 903 P.2d 459, 463 (Wash. 1995) (holding

that following the jury’s inability to agree on a greater charge,

“[d]ue to double jeopardy concerns, the defendant cannot be

retried on charges greater than the charge for which he was

convicted.”) (citations omitted).1 The Washington Supreme

Court has identified avoidance of hung juries as one of the

purposes of the “unable to agree” instruction, suggesting that

a conviction for the lesser charged offense pursuant to such

instruction does not render the “inability to agree” on the

greater charge jury hanging. See State v. Labanowski, 816

P.2d 26, 34 (Wash. 1991) (noting that unable to agree instruc1The Washington Supreme Court recently decided two cases with factual circumstances more closely related to Brazzel’s. In State v. Linton,

132 P.3d 127 (Wash. 2006), which failed to garner a majority opinion, the

lead opinion held: “Where an unable to agree instruction is used which

allows the jury to move on to a lesser included offense when it acquits or

is unable to agree on the greater charge, and the jury does move on without entering a verdict, the jury will necessarily remain ‘silent’ on the

greater offense. . . . Under the implied acquittal doctrine then, the judge

would have had to conclude that the jury implicitly acquitted Linton of

first degree assault.” Id. at 133. Only several months later, the court

changed course and in State v. Ervin, 147 P.3d 567 (Wash. 2006), held

that where an unable to agree instruction is given “the blank verdict forms

[on the greater offense] indicate . . . that the jury was unable to agree.” Id.

at 572. The court permitted retrial for the greater offense. Id. at 573. Yet,

in a puzzling footnote, the court stated: “This is not to decide, however,

that the jury’s inability to agree on the greater charges is the equivalent of

a mistrial on those charges. Unable to agree instructions instruct the jury

to end deliberations on a greater charge and move on to a lesser charge

once disagreement on the greater has been established. Comparatively,

state and federal jurisprudence establishes that a jury must be ‘genuinely

deadlocked’ before a mistrial can be declared.” Id. at 572 n.10 (citations

omitted). In any event, the Washington Court of Appeals did not have the

benefit of these cases in deciding Brazzel’s appeal, and could only have

been influenced by existing state precedent prohibiting retrial for a greater

offense after reversal of a conviction for a lesser offense charged in the

same count. See Brown, 903 P.2d at 463. 

7524 BRAZZEL v. STATE OF WASHINGTON
tions serve a variety of purposes, among them reducing the

incidence of hung juries). 

No Supreme Court case addresses precisely such an “unable to agree” jury instruction, so the state court’s treatment

of the jury’s silence cannot be characterized as “contrary to”

federal law. Under federal law, the Washington Court of

Appeals’ determination was also not unreasonable. Consistent

with Supreme Court precedent, the state court could reasonably conclude that the inability of Brazzel’s first jury, as

instructed, “to reach [a] unanimous decision after full and

careful deliberation on the charge of attempted murder in the

first degree” did not by itself result in a hung jury and “mistrial” by “manifest necessity” on the attempted murder charge,

but rather was an implied acquittal. Assuming, as we must,

that the jury followed the instructions, we know the jury did

not actually acquit Brazel on the attempted murder charge

because it did not fill in the box with a “not guilty” notation.

Instead, the jury “[could] not agree” on that charge, remained

“silent,” and convicted of a lesser alternative offense. Under

Green and Price, “petitioner’s jeopardy on the greater charge

had ended when the first jury ‘was given a full opportunity to

return a verdict’ on that charge and instead reached a verdict

on the lesser charge.” Price, 398 U.S. at 329 (quoting Green,

355 U.S. at 191). 

Following Brazzel’s first trial, the judge polled the jury

asking two questions: “Is this your verdict, is this the way you

individually, personally voted” and “Is this the verdict of the

jury, meaning is this the verdict of all twelve of you?” Each

juror responded in turn, “Yes” or “Yes, it is.” 

No inquiry was made to determine whether the jury had

“genuinely deadlocked” or simply moved to the lesser alternative assault charge as a compromise. Notably as well, after

Brazzel’s first trial, the government did not construe the jury’s

silence as “hanging” or seek a retrial as to that count, even

BRAZZEL v. STATE OF WASHINGTON 7525
though the state now argues the blank form should be construed as a hopeless deadlock. 

Under federal law, an inability to agree with the option of

compromise on a lesser alternate offense does not satisfy the

high threshold of disagreement required for a hung jury and

mistrial to be declared. See, e.g., Arizona v. Washington, 434

U.S. at 509. The Supreme Court has characterized disagreement sufficient to warrant a mistrial as “hopeless” or “genuine” “deadlock.” Id. (“[T]he trial judge may discharge a

genuinely deadlocked jury and require the defendant to submit to a second trial.”). Genuine deadlock is fundamentally

different from a situation in which jurors are instructed that if

they “cannot agree,” they may compromise by convicting of

a lesser alternative crime, and they then elect to do so without

reporting any splits or divisions when asked about their unanimity. 

In contrast, in Ervin, where similar “unable to agree”

instructions were used, the jury deliberated for five weeks,

reporting repeatedly in notes to the court that it was unable to

reach a unanimous verdict: 

The jury has continued to deliberate according to the

court’s direction. We are still unable to reach a unanimous verdict on any of the three charges . . . . Since

our last inquiry to the court, there has been no movement toward a unanimous verdict on any of the

counts. We believe that additional deliberation

would not result in a unanimous verdict on any of

the three counts. We have stopped deliberations and

asked for the court’s direction.

147 P.3d at 568. Ultimately, the jury in Ervin left two verdict

forms blank pursuant to the “unable to agree” instructions and

the Washington Supreme Court held that the blank verdict

forms did not prohibit retrial. See id. at 572. 

7526 BRAZZEL v. STATE OF WASHINGTON
In Salvador, 740 F.2d at 754 (9th Cir. 1984), after deliberating for “approximately nine hours,” on the second day of

deliberations, the jury sent the judge a note stating: “The jury

is not able to reach a decision on either defendant. We are

deadlocked.” The judge instructed the jury to continue deliberating and after an additional four hours and overnight recess

the jury foreman sent a second note: 

We are unable to reach a decision. The problem is a

reliance on an answer arrived at through religious

inspiration, and an unwillingness to move from that

decision and base a decision on the evidence. The

evidence has been thoroughly examined. Those basing their decision on the evidence are unwilling to

change. 

Id. After reading this second note, the court discharged the

jury and declared a mistrial, over the defendants’ objections.

Id. This court held that a mistrial was warranted and that “the

requisite ‘manifest necessity’ exist[ed] to declare a mistrial.”

Id. at 755. 

The Eighth Circuit addressed a similar circumstance in

United States v. Bordeaux, 121 F.3d 1187 (8th Cir. 1997).

The jury that was given an “unable to agree” instruction wrote

on that instruction “[a]fter all reasonable efforts, we, the jury,

were unable to reach a verdict on the charge ‘Attempted

Aggravated Sexual Abuse.’ ” Id. at 1192. The trial judge

declared a mistrial and retrial on that charge was upheld as

permissible. See id. at 1193. 

[5] As compared to the evidence of jury deadlock in Ervin,

Salvador, and Bordeaux, nothing in the record of Brazzel’s

case indicates the jury’s inability to agree was hopeless or

irreconcilable—a manifest necessity permitting a retrial for

attempted murder. In contrast, following Brazzel’s first trial,

the jury offered no indication of any inability to reach a verdict beyond what may be deduced from the jury instruction

BRAZZEL v. STATE OF WASHINGTON 7527
itself and the trial judge did not declare a mistrial. “[T]here

are degrees of necessity and we require a ‘high degree’ before

concluding that a mistrial is appropriate.” Arizona v. Washington, 434 U.S. at 506. 

[6] The purpose of the rule permitting retrial if a jury hangs

is to accord “recognition to society’s interest in giving the

prosecution one complete opportunity to convict those who

have violated its laws.” Id. at 509. Here, the prosecution was

given one complete opportunity to convict Brazzel of

attempted first degree murder. The jury declined to do so. In

Green, the Supreme Court rejected the proposition that “in

order to secure the reversal of an erroneous conviction of one

offense, a defendant must surrender his valid defense of former jeopardy not only on that offense but also on a different

offense for which he was not convicted and which was not

involved in his appeal.” 355 U.S. at 193. The state court’s

treatment of the jury’s “silence” following Brazzel’s first trial

as an implied acquittal is a permissible application of governing law. 

III. THE STATE COURT’S FINDING OF MOOTNESS

[7] Following its assumption that the jury’s silence on the

attempted murder charge was “essentially” an acquittal, the

state court concluded that Brazzel’s double jeopardy claim

was “moot” because he was “essentially acquitted” of

attempted murder following the second trial. The Supreme

Court has held that a double jeopardy violation is not to be

readily disposed of as “moot” or harmless: 

The Double Jeopardy Clause . . . is cast in terms of

the risk or hazard of trial and conviction, not of the

ultimate legal consequences of the verdict. To be

charged and to be subjected to a second trial for firstdegree murder is an ordeal not to be viewed lightly.

Further, and perhaps of more importance, we cannot

determine whether or not the murder charge against

7528 BRAZZEL v. STATE OF WASHINGTON
petitioner induced the jury to find him guilty of the

less serious offense of voluntary manslaughter rather

than to continue to debate his innocence. 

Price, 398 U.S. at 331. In other words, acquittal (even if

implied) upon retrial of the greater offense does not by itself

render the double jeopardy violation harmless. 

[8] Because Brazzel’s circumstances are similar to those in

Price, Brazzel was twice put in jeopardy for attempted murder. The circumstance of a retrial on the murder charge should

not have been characterized as moot. As in Price, “we cannot

determine whether or not the murder charge against petitioner

induced the jury to find him guilty of the [first degree assault]

rather than to continue to debate his innocence.” Id. In this

respect, the Washington Court of Appeals’ decision finding

any error “moot” was contrary to clearly established Supreme

Court precedent. 

The Supreme Court has distinguished Price from cases in

which the jury did not acquit the defendant of the greater

offense, but found the defendant guilty of the greater offense

and the alternative lesser offense by implication. Under such

circumstances, the burden rests on the defendant to establish

that being tried twice for the greater offense tainted the conviction of the lesser offense. Morris v. Mathews, 475 U.S.

237, 246 (1986) (“Price did not impose an automatic retrial

rule . . . . Rather, the Court relied on the likelihood that . . .

the charge of the greater offense for which the jury was

unwilling to convict also made the jury less willing to consider the defendant’s innocence on the lesser charge. . . . The

jury did not acquit Mathews of the greater offense . . . but

found him guilty of that charge and, a fortiori, of the lesser

offense of murder as well.”). 

Unlike in Matthews, Brazzel was impliedly acquitted at his

second trial of the greater offense and convicted of the lesser

alternative charge. Given the similarity of the facts here to

BRAZZEL v. STATE OF WASHINGTON 7529
Price, and the clear differences between Brazzel’s second trial

and the challenged result in Matthews, the analysis in Price

controls. 

[9] Even applying Matthews, however, Brazzel has come

forward with “a reliable inference of prejudice.” Mathews,

475 U.S. at 246. He contends that the jury may have been

induced to return a verdict of guilty as to first degree assault

because of the light in which the attempted murder charge

cast the domestic violence incidents. Without the presence of

the greater alternative offense, attempted first degree murder,

the jury may have convicted him only of the two second

degree assault counts. Although the evidence as characterized

by the Washington Court of Appeals is more than sufficient

to satisfy the elements of first degree assault, the same evidence is also sufficient to support a conviction for attempted

first degree murder, and two juries declined to convict Brazzel

of that charge. Absent the murder charge, the landscape of the

trial would have been significantly different. Therefore, there

is a “reliable” inference that Brazzel may have been prejudiced by the presence of the greater, jeopardy barred charge

at his second trial, and the Washington Court of Appeals’

determination that Brazzel’s double jeopardy claim was

“moot” contravened clearly established Supreme Court precedent. 

REVERSED with instructions to grant the writ of habeas

corpus, and REMANDED to the state to determine what nonjeopardy barred retrial, if any, is to be had. 

7530 BRAZZEL v. STATE OF WASHINGTON