Harrison v. Gillespie, 640 F.3d 888 (9th Cir. 2011; Reversing Harrison v. Gillespie, 596 F.3d 551, (9th Cir. 2010)

Harrison v. Gillespie is a perfect example why a governor-or a President of the United States-should not appoint lawyers who have never tried a civil or criminal case, never sat as a trial judge and whose only credential is writing law books.  This describes Mr. Liu whom Governor Brown appointed to the California Supreme Court.  Uninformed as to criminal or civil trial practice, Liu will undoubtedly bring his academic policy choices to the Court and decide cases uninformed by the chemistry of a trial.  

Harrison v. Gillespie, a death penalty case from  Nevada State court, illustrates this prediction.  A jury reported to the trial judge it was at “impasse.”  The trial judge questioned the foreman of the jury who reported an inability of the jurors, having voted guilty on the merits, to reach a decision on the death penalty.  The judge questioned the foreman in general terms but did not poll the jury or request the jury to report on the numerical count of their  vote.  Declaring a mistrial, the judge excused the jury.

The defendant appealed to the Nevada courts on grounds the jury was unable to reach a verdict alleging the Double Jeopardy clause of the Fifth Amendment applicable to the states forbade retrial on the unbifurcated penalty phase.  The court rejected this contention.  The defendant filed habeas corpus in U.S. District Court, and the judge denied the petition. Defendant appealed, and a 9th Circuit three judge panel reversed on grounds the judge should have polled the jury.  An en banc court reversed the three judge panel.

The three judge panel had cited a litany of cases in its decision, all irrelevant and unrelated to trial practice.  The Supreme Court has never ruled the trial judge must poll the jury.  Nor has the Court expressed  any formulaic litany for a judge to perform in questioning the jury on their inability to reach a verdict. An en banc panel reversed, noting judges must exercise restraint in speaking with jurors under those circumstances.  Any of their words can be construed as favoring one side, or isolating a juror, or otherwise seeking to compel a verdict.  In the 9th Circuit, no matter what the trial judge says it will lead to a reversal in the event the jury votes the death penalty.

The best practice for the trial judge in “impasse” cases includes initially conferring with all counsel to solicit their recommendations.  Obviously the lawyers will differ.  The court can suggest counsel to document their  objections, or at least place them on the record.  The court must then carefully inquire of the jury foreperson on the general  nature of the impasse without disclosing the numbers for guilt or innocence.  Or the judge may elect to narrowly answer a written question submitted from the jury.

In most cases the personality of the jurors is the cause of the problem. The court should consider the  length  of time in deliberation, the opinion of the foreperson as to the desirability of further deliberations, or some other reasonably based inquiry. Polling the jury is only an option, not a mandate.

The dissent in the en bance decision cites a variety of irrelevant cases.  These cases are fact specific, and the use of common sense is the appropriate rationale.  The dissenting judges, none of whom have trial experience, illustrates its inability to do that. And neither will Judge Liu.
Numerous experienced judges on the Court of Appeal were excellent candidates for the California Supreme Court.  Governor Brown selected an inexperienced law professor who never set foot in a courtroom.