Let’s Make it a True Daily Double (Jeopardy): How James Harrison was Acquitted of the Death Penalty Only to Face it Again

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.