On May 10, 2011, in Harrison v. Gillespie, the U.S. Court of Appeals for the Ninth Circuit held that defendants do not have a per se constitutional right to poll the jury before a trial judge declares a mistrial. Further, the court held that the Double Jeopardy Clause does not preclude a court from considering the death penalty as a potential sentence on retrial. This Comment argues, however, that in doing so, the court made it more likely that capital defendants will receive the death penalty, because a fresh jury may impose the death penalty, even though the previously discharged jury merely deadlocked over which lesser included punishment to impose.
Tyler Z. Bernstein, Let’s Make It a True Daily Double (Jeopardy): How James Harrison Was Acquitted of the Death Penalty Only to Face It Again, 53 B.C.L. Rev. E. Supp. 147 (2012), https://lawdigitalcommons.bc.edu/bclr/vol53/iss6/13