Harrison

concurring:

I join the opinion but believe there is a shorter path to the same conclusion. Nothing prevented Harrison from seeking to bifurcate his capital-sentencing hearing so that the jury could render a verdict on his death eligibility, a request the trial judge may well have granted. See, e.g., Johnson v. State, 122 Nev. 1344 , 148 P.3d 767, 770-71 (2006). Harrison also could have requested that the jury be instructed to return a special verdict on the specific question of his death eligibility. Had Harrison made a timely request for some such procedure, and had the trial judge denied it, this would be a much harder case. We’d then be forced to decide whether a capital defendant is constitutionally enti *490 tied to insist that the jury render a separate verdict as to whether he is death eligible. The Nevada Supreme Court doesn’t seem to recognize such a right, see Summers v. State, 122 Nev. 1326, 148 P.3d 778, 783 (2006); Gallego v. State, 117 Nev. 348 , 23 P.3d 227, 241 (2001), but it may be wrong on that score.

Harrison may have had a tactical reason for not asking for a separate death verdict. Perhaps he feared it would emphasize to jurors that he committed a capital…

*476 Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Chief Judge KOZINSKI; Dissent by Judge THOMAS; Dissent by Judge REINHARDT.

OPINION

Petitioner James Harrison was convicted of first-degree murder in the guilt phase of his trial, but the jury deadlocked over his sentence in the penalty phase of his case. Harrison requested that the jury be polled to ascertain whether the jury had ruled out the death penalty, and was deadlocked on a lesser sentence. The trial court denied Harrison’s request and, after determining that further deliberations would not help the jury arrive at a verdict, discharged the jury. Harrison filed a petition for a writ of habeas corpus seeking to prevent the State of Nevada from seeking the death penalty in the pending retrial of penalty-phase proceedings.

Harrison contends that the trial court violated his constitutional right to be free from double jeopardy because the trial court failed to ask the jury if it had unanimously rejected the death penalty, and instead was deadlocked over a lesser sentence, before discharging the jury. We hold that under the facts of this case, the trial judge did not abuse her discretion, or subject Harrison to double…

dissenting:

By all indications, the jurors in James Harrison’s capital trial had decided to acquit him of the death penalty. They had informed the trial judge that they were deadlocked between life with parole and life without parole. The trial judge acknowledged that the jury “was not discussing the death penalty.” However, rather than conduct the jury poll requested by defense counsel to ascertain whether the jury had reached, or could reach, a verdict on the death penalty, the trial judge summarily declared the trial over and discharged the jury.

We will never know with certainty what the jury would have answered if asked. But we do know this: Harrison’s chance of a likely acquittal on the death penalty left the courthouse with the jurors.

The Double Jeopardy Clause protects the “valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him.” Downum v. United States, 372 U.S. 734, 736 , 83 S.Ct. 1033 , 10 L.Ed.2d 100 (1963) (emphasis added). Put another way, “[c]riminal defendants have a right to have the jury first impaneled to try them reach a verdict.” United States v. Bates, 917 F.2d 388, 392 (9th Cir.1991). Thus, a…

dissenting:

I join in Judge Thomas’s dissent, which so ably demonstrates that the trial judge’s hasty decision to dismiss the jury violated every tenet of the law regarding “manifest necessity” for the declaration of a mistrial, and thus Harrison’s right to be free from double jeopardy. I write separately to emphasize that the trial court’s declaration of a mistrial when there was no manifest necessity to do so was based on a fundamental misunderstanding of the function of a capital sentencing proceeding. By her actions, the trial judge precluded Harrison from obtaining confirmation that, as seems likely, the jury had found him ineligible for death, and that the Double Jeopardy Clause thus barred him from being sentenced to death in any subsequent sentencing proceedings. See Bullington v. Missouri 451 U.S. 430, 446 , 101 S.Ct. 1852 , 68 L.Ed.2d 270 (1981).

*499 In response to the dissenting opinions, the majority acknowledges that the relevant test for whether the trial court’s declaration of a mistrial violates the Double Jeopardy Clause’s protections is whether there was a “manifest necessity” to declare a mistrial. See, e.g., United States v. Jorn, 400 U.S. 470, 481 , 91…