Metropolitan News-Enterprise


Wednesday, January 6, 2010


Page 4


Ninth Circuit Rules Nevada Killer Cannot Be Sentenced to Death on Retrial


By a MetNews Staff Writer


A Nevada killer whose jury deadlocked in the penalty phase, apparently because it could not decide whether to impose a life-without-parole sentence or one of life imprisonment with the possibility of parole, cannot be sentenced to death on retrial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided three-judge panel said the trial judge erred in failing to give the jury a requested clarification as to how aggravating and mitigating circumstances are weighed under Nevada law. Because the clarification might have resulted in a unanimous verdict, Judge Stephen Reinhardt wrote for the Ninth Circuit, there was no manifest necessity for the ensuing mistrial and any retrial would violate the Double Jeopardy Clause.

According to testimony and news accounts, the defendant, James M. Harrison, was a racist skinhead nicknamed “Evil” who, along with Anthony Prentice, had murdered Daniel Miller, an older man who had befriended Prentice after his earlier troubles with the law. Prentice was convicted in a separate trial and sentenced to life imprisonment without parole.

After jurors found Harrison guilty of first degree murder and conspiracy, the trial went to a penalty phase. The judge instructed the jury that under Nevada law, they could return a death penalty verdict only if one or more aggravating circumstances were proved beyond a reasonable doubt, and only if those circumstances outweighed any mitigating circumstances beyond a reasonable doubt.

Even if the prosecution met its burden, the judge added, jurors could still impose a life-without-parole, life-with-possibility-of-parole, or fixed-term-with-possibility-of-parole sentence.

When jurors indicated they were deadlocked, one of the defense lawyers urged the judge to poll the jury, first as to whether aggravating circumstances had been proven, and then, if so, whether the mitigating circumstances outweighed the aggravating circumstances.

Prosecutors argued that such a poll would be contrary to state law. The judge apparently agreed, saying the jury’s answers to the questions could only be determined from the verdict form.

Ultimately, the judge ordered the verdict forms collected. There were two signed and dated forms, one indicating that the jury found as an aggravating factor that the victim had been mutilated and another indicating that the jury had found 24 mitigating factors.

The forms containing the sentencing options were blank. The judge then dismissed the jury and declared a mistrial.

Affidavits subsequently filed by the defense in support of a motion to bar the death penalty indicated that jurors were unanimous in concluding that the death sentence should not be imposed and that nine of 12 favored life without parole, with the remainder favoring life with possibility of parole.

The judge denied the motion. Harrison challenged the ruling in writ petitions,  which the Nevada Supreme Court and U.S. District Judge Robert C. Jones denied, saying the jury had not acquitted Harrison of the death penalty.

Reinhardt said it was impossible to definitively determine, based on the verdict forms and the jury’s communications with the court, whether the jury made the factual findings that would have spared Harrison under Nevada law, although it was “possible—even likely” that it did.

But the trial judge, Reinhardt went on to say, committed an abuse of discretion by dismissing the jury without the poll required by the defense and without obtaining the defendant’s consent to a mistrial.

Nothing in the Nevada statutes barred such a poll, nor can the Nevada Supreme Court’s view of the issue be determined from past cases. But courts in some other states have held that a defendant’s polling request should be granted before a mistrial is declared, which Reinhardt said was the persuasive view, particularly under the facts of Harrison’s case.

Senior Judge Procter Hug Jr. concurred, while Judge Barry Silverman dissented.

Silverman argued:

“The foreperson told the judge in open court, without contradiction, that the jury was deadlocked on the issue of punishment. There is no court case anywhere holding that the constitution requires a state trial judge to ask more specific questions about the status of the jury’s unfinished deliberations in a sentencing matter entrusted to its discretion. In the face of the jury’s return of the unsigned punishment verdict forms, plus the foreman’s statement that the jury was at an impasse as to the sentence, the trial judge did not abuse her discretion in declaring a mistrial and ordering a new sentencing trial.”

The case is Harrison v. Gillespie, 08-16602.


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