The Ninth Circuit Court of Appeals today released an amended order in BRAZZEL v. STATE OF WASHINGTON, No. 05-36145, a habeas corpus appeal. The panel consisted of Betty B. Fletcher and M. Margaret McKeown, Circuit Judges, and William W Schwarzer, District Judge.
McKEOWN, Circuit Judge:
In this 28 U.S.C. Â§ 2254 habeas appeal, Ernest Lee Brazzel challenges, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense. Two different juries have now convicted Brazzel of the lesser offense, first degree assault. Both juries failed to reach the alternate and more serious charge of attempted murder. The framework for our analysis of this double jeopardy challenge is found in two Supreme Court cases–Green v. United States, 355 U.S. 184 (1957), and Price v. Georgia, 398 U.S. 323 (1970). In Green, the Supreme Court explained the doctrine of implied acquittal: when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge-without announcing any splits or divisions and having had a full and fair opportunity to do so–the jury’s silence on the second charge is an implied acquittal. 355 U.S. at 191. A verdict of implied acquittal is final and bars a subsequent prosecution for the same offense. See id. Under Price, putting the defendant in jeopardy a second time is not necessarily harmless error or moot, even if the defendant is only convicted of the lesser crime, because “[t]he Double Jeopardy Clause . . . is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict.” 398 U.S. at 331. Although the Washington Court of Appeals assumed that the lack of a verdict on the attempted murder charge follow. . .
Judge McKeown votes to deny the petition for rehearing en banc and Judge B. Fletcher and Judge Schwarzer so recommend. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is denied. The Opinion filed on April 12, 2007 is amended as follows: On slip Opinion page 4235, line 15, insert the following text: <”a reliable inference of prejudice.” Mathews, 475 U.S. at 246.> to replace <inferences of prejudice.> On slip Opinion page 4235, line 26, insert the following text after the sentence ending in the word <charge.> and before the sentence beginning with the word <Therefore>: <Absent the murder charge, the landscape of the trial would have been significantly different.> On slip Opinion page 4235, line 26, insert the following text after the word <Therefore,> and before <Brazzel>: <there . . .