1, 7, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (emphasis added) (quoting Sapir v. United States, 348 U.S. 373, 374-75, 75 S.Ct. 422, 99 L.Ed. 426 (1955)). Here, the verdict was not “duly rendered,” because an 11-person jury cannot make any decision in a capital case under state law, absent the defendant’s agreement. Appellant’s waiver was not knowing and voluntary because he was not advised of his right to obtain a mistrial. Allowing jury deliberations to proceed with 11 people is a structural defect, not a trial error. See State v. Goodley, 423 So.2d 648 (La.1982) (determining double jeopardy principles would not prevent defendant from being retried where acquittal resulted from an illegal verdict based on non-unanimous vote, but holding defendant 5, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (<HOLDING>), Ex parte Gillentine, 980 So.2d 966 (Ala.2007)
holding that to declare a denial of due process we must find a denial of fundamental fairness holding that imposition of more severe sentence following trial de novo does violate defendants due process rights holding that the denial of due process in a particular case is subject to harmless error analysis holding it is denial of due process to impose vindictive sentence following successful appeal holding that a denial of due process warrants mandamus relief