Harrison v. Gillespie, No. 08-16602 (2-15-11) (en banc: M. Smith; Kozinski concurrence; Thomas dissent and Reinhardt dissent). The jury said it was hung on the penalty phase of a capital trial. It was pretty clear in the notes and the proposed verdict forms that death was off the table, and the choices were between LWOP, LWP, or a term of years. Before the jury was discharged, the defendant asked that the jury be polled. The trial judge declined and discharged the jury. The petitioner then argued that the death penalty was barred by double jeopardy. Sitting en banc, the 9th concluded that the trial judge neither abused its discretion nor subjected petitioner to double jeopardy in discharging the jury because of the deadlock. The 9th held that there was not a constitutional right to inquire into the possibility of a preliminary decision against the death penalty. Allowing the court to do so would risk coercion. Moreover, preliminary jury votes are that: preliminary. The verdict is not final until stated in open court. A refusal to poll by the court fell within the court's sound discretion. Concurring, Kozinski argues that the petitioner could have, and should have, asked for a special verdict. Dissenting, Thomas (joined by Reinhardt, W. Fletcher, Fisher, and Berzon) argue that the judge acted summarily in discharging the jury, and that by all indications, the jury had reached an acquittal on death, and should have been polled. State statutes allowed for various sentences, as did the capital structure, and the jury seemed to have decided on lesser sentences, and split there. The judge's actions in declaring a mistrial were not manifestly necessary, and violated double jeopardy. The judge should have polled. The polling would not have lead to a new rule, or right, but under these circumstances, was required. Reinhardt, also dissenting, emphasizes the clear violation of manifest necessity, and the result is the more egregious given the death penalty. Death is different.

U.S. v. Valdovinos-Mendez, No. 09-50532 (2-15-11) (Jarvey, D.J., S.D. Iowa with Schroeder and Tallman). In a 1326 illegal re-entry case, the 9th acknowledges that the admission of a "non-existence of record" (CNR) did violate the constitutional right to confrontation. However, the error was harmless as the agent had testified that the A-file was bereft of any indication requesting admission, and the agent was subject to cross examination. This was also not an error under the best evidence rule, which goes to admitted contents of writings, and not records of missing documents. As for the prior conviction for assault with a deadly weapon or by force likely to produce great bodily injury under California law, that qualifies as a "crime of violence." See U.S. v. Grajeda, 581 F.3d 1186 (9th Cir. 2009). Lastly, Almendarez-Torres is still good law as to prior convictions.

Fairbank v. Ayers, No. 08-99018 (2-15-11) (Thomas with Schroeder and Gould). The 9th affirms denial of a habeas capital petition. The 9th found no IAC in the lack of mitigation investigation claims. Strategic choices were made by defense counsel. The 9th also deferred to the state court's determination that the prosecutorial misconduct claim was procedurally. There was also a lack of state involvement in the Massiah claim.