Monday, March 22, 2010

Harrison v. Gillespie, 590 F.3d 823 (9th Cir. 2010); en banc reversed: 2011 WL 546585 (C.A. 9)

Whether the Ninth Circuit reverses on grounds of alleged improper exclusion of jurors, prosecutorial misconduct, evidentiary errors committed by the trial court, insufficiency of the evidence, faulty jury instructions or ineffective counsel, the nadir of their opinions is a Nevada state court decision in Harrison v. Gillespie, 2010 WL 597487.
The jury found the defendant guilty of murder but could not agree on the appropriate sentence of life or death. The jury foreman informed the judge the jury was at impasse and could not reach a verdict. The judge declared a mistrial and discharged the jury without polling them for their agreement or disagreement with the jury foreman. The Ninth Circuit held Nevada could not retry the defendant on the penalty phase on the grounds of double jeopardy (The State cannot try the defendant twice for the same crime). The dissenting judge of a three judge panel noted the majority had not cited a single case supporting its decision.
Polling (determining the votes by the number of jurors in disagreement; or otherwise discussing the impasse) the jury whose foreman declared the jurors were at impasse is discretionary with the judge, undoubtedly good trial practice, but failure to do so certainly does not warrant reversal on grounds of double jeopardy. Said the dissenting judge: 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. Unsurprisingly, this case was reheard by the full court; Harrison v. Gillespie, 596 F.3d 551 (9th Cir. 2010)
On rehearing, the en banc court reversed: "1) section 2241 supplied jurisdiction over petitioner's double jeopardy challenge;
(2) the Antiterrorism and Effective Death Penalty Act (AEDPA) did not apply;
(3) trial court did not err by refusing to poll the jury regarding whether it had ruled out the death penalty as a sentence before declaring a mistrial;
(4) petitioner had no per se constitutional right to have trial court poll jury about whether it had reached a preliminary decision against imposing the death penalty; and
(5) Double Jeopardy Clause did not preclude inclusion of death penalty as sentencing option upon retrial."
District Court judgment affirmed.