Cite as: 537 U. S. 101 (2003)
Ginsburg, J., dissenting
We also sanctioned retrial in Scott, even though that case involved a final adjudication. But there, the defendant voluntarily avoided subjecting himself to a determination of guilt or innocence in the first proceeding; he did so by successfully moving, prior to submission of the case to the jury, for dismissal of the count in question because of preindictment delay. Ibid.; see Green, 355 U. S., at 188 (suggesting that double jeopardy protection does not apply if defendant consents to dismissal of his first jury). That was not the situation here: Unlike Scott, Sattazahn did not successfully avoid having the question of his guilt or innocence submitted to the first jury. The "issue of guilt" in his case indeed was "submitted to the first trier of fact." Scott, 437 U. S., at 96. Sattazahn was thus "forced to run the gantlet once" on death. Green, 355 U. S., at 190. Nor did Sattazahn himself bring about termination of his first trial.5 Once the jury deadlocked, state law directly mandated that the trial end. In
5 The governing statute provides that "the court may, in its discretion, discharge the jury if it is of the opinion that further deliberation will not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment." Pa. Stat. Ann., Tit. 42, § 9711(c)(1)(v) (Purdon Supp. 2002). In Sattazahn's case, after the jury had deliberated for about 31/2 hours, the judge announced that he had "received a communication from the foreperson indicating this jury is hopelessly deadlocked." App. 22. He then stated: "I will bring the jury down and inquire of the foreperson and the jury whether or not any further deliberations would be productive." Ibid. Only at that point did Sattazahn move "that the jury be discharged" and that a life sentence be entered under § 9711(c)(1)(v). Ibid. The judge did not grant Sattazahn's motion. Instead, he conducted an inquiry to determine whether the jury was "hopelessly deadlocked"; he then found that it was, discharged the jury, and announced that "by virtue of the law" he would enter a life sentence. Id., at 23-24. The judge, at that stage, never referred back to Sattazahn's motion. As I read this record, the judge's decision to conduct an inquiry, discharge the jury, and enter a life sentence was prompted not by a defensive motion, but simply by the jury's announcement that it was deadlocked, just as the statute instructs.
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