Brazzel v. Payne, No. 05-36145 (4-12-07). Habeas petition is granted for double jeopardy. The first jury convicted on a lesser state assault charge, failing to reach the alternate and more serious charge of attempted murder; the same result with the second jury. The 9th, using the implied acquittal doctrine articulated in Green, 355 US 184 (1957), finds that the petitioner had been placed in jeopardy. Moreover, using Price, 398 US 323, it could not be harmless since double jeopardy goes to risks and not results. This case presents a landscape of double jeopardy and is very good about the language of "unable to agree" in a jury instruction as meaning something less than a deadlock or hung jury.

Congrats to AFPD Russ Leonard, W.D. Wa. (Tacoma).

US v. Gamba, No. 06-35021 (4-11-07). Defense counsel may waive a defendant's right to have an article III judge conduct closing argument where the decision is one of trial tactics and strategy. It is a technical and strategic decision that counsel can properly make for his client. In dissent, Fisher would have required a knowing consent by the defendant rather than just a decision by counsel given the extent of what could go wrong.