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May 24, 2012

SCOTUS limts the limits of Double Jeopardy via 6-3 ruling in Blueford

The Supreme Court this morning handed down one criminal justice opinion in Blueford v. Arkansas (available here).  The ruling goes against the defendant, and the Chief Justice wrote the majority opinion which starts and ends this way:

The Double Jeopardy Clause protects against being tried twice for the same offense. The Clause does not, however, bar a second trial if the first ended in a mistrial. Before the jury concluded deliberations in this case, it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. All agree that the defendant may be retried on charges of manslaughter and negligent homicide. The question is whether he may also be retried on charges of capital and first-degree murder....

The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either. When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury.  As a consequence, the Double Jeopardy Clause does not standin the way of a second trial on the same offenses.

Justice Sotomayor, in an opinion joined by Justices Ginsburg and Kagan, has a dissent that starts with these points:

The Double Jeopardy Clause “unequivocally prohibits a second trial following an acquittal.” Arizona v. Washington, 434 U. S. 497, 503 (1978).  To implement this rule, ourcases have articulated two principles.  First, an acquittal occurs if a jury’s decision, “whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.”  United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977).  Second, a trial judge may not defeat a defendant’s entitlement to “the verdict of a tribunal he might believe to be favorably disposed to his fate” by declaring a mistrial beforedeliberations end, absent a defendant’s consent or a “‘manifest necessity’” to do so.  United States v. Jorn, 400 U. S. 470, 486, 481 (1971) (plurality opinion) (quoting United States v. Perez, 9 Wheat. 579, 580 (1824)).

Today’s decision misapplies these longstanding principles.  The Court holds that petitioner Alex Bluefordwas not acquitted of capital or first-degree murder, even though the forewoman of the Arkansas jury empaneled totry him announced in open court that the jury was “unanimous against” convicting Blueford of those crimes.  Nor, the Court concludes, did the Double Jeopardy Clauseoblige the trial judge to take any action to give effect to thejury’s unambiguous decision before declaring a mistrial as to those offenses. The Court thus grants the State whatthe Constitution withholds: “the proverbial ‘second bite atthe apple.’”  Burks v. United States, 437 U. S. 1, 17 (1978).

May 24, 2012 at 10:48 AM | Permalink


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Quick question from a non-lawyer: Why can't a jury say not guilty on charges 1 and 2 and deadlocked on 3 and 4 and have the court only declare a mistrial on the latter while entering judgements on the former?

Posted by: NickS | May 24, 2012 11:06:35 AM

That is the 64 dollar question here. The jury can say that, and the judge could have done so here.

Posted by: defendergirl | May 24, 2012 11:29:04 AM

Seems as if the defense attorney tried that (and rightfully so) and the judge shot him (her?) down:
After deliberations resumed, Blueford’s counsel asked the court to submit new verdict forms to the jurors, to be completed “for those counts that they have reached averdict on.” Id., at 67. The prosecution objected on the grounds that the jury was “still deliberating” and that a verdict of acquittal had to be “all or nothing.” Id., at 68. The court denied Blueford’s request. To allow for a partial verdict, the court explained, would be “like changing horses in the middle of the stream,” given that the juryhad already received instructions and verdict forms. Ibid. The court informed counsel that it would declare a mis- trial “if the jury doesn’t make a decision.” Id., at 69.

Posted by: E. Borg | May 24, 2012 11:32:51 AM

Nick. That is normal procedure for multiple counts, but not the circumstance here.

Here there was one charge which had lesser includeds (which are technically the same offense for double jeopardy purposes. In some states, the procedure is to have a verdict on the charged offense and then verdicts on whichever lesser-includeds are reached. In other states (including Arkansas), the procedure is one verdict (i.e. guilty of the charged offense or one of the lesser-includeds or not guilty of all of the offenses).

The essence of the Supreme Court holding is that which of the two options a state uses is a matter of state law, not federal constitutional law. So, while Arkansas could have gone with individual verdicts, it does not have to, and has chosen to go with the one verdict option.

Posted by: TMM | May 24, 2012 11:40:44 AM

This case is utterly baffling. The jury announces on the record after deliberations that they have unanimously determined that the defendant is not guilty of the main offense, but they are still debating the lesser charges (they ultimately hang). That sounds an awful lot like a verdict of not guilty to me.

Roberts' logic is that it is "possible" that the jury might have changed their mind during further deliberations. But there's a really easy way to figure this out if this happened -- you can simply ask them, at the conclusion of their deliberations, whether they still think he's not guilty of the main offense. And that exactly what the defense sought to do in this case -- and what the court and prosecution prevented him from doing.

I don't see why the State should be heard to complain about any uncertainty about the meaning of the jury's verdict when they are responsible for creating that uncertainty in the first place.

Posted by: Ryan | May 24, 2012 12:35:03 PM

typical two-faced action from a criminal govt! Sorry a mistrial is still a TRIAL therefore jeopardy attaches and it should be OVER!

just like a LIE of OMISSION is still a LIE!

and nicks as for why the jury can't seem to pick one or the other. Well unfortunately thinks to the dumbing down of american. We are scrwed. 200+ years ago the public would NEVER have abrogated thier duty in this way. They didn't think you needed any OTHER options besides GUILTY or NOT GUILTY!

Posted by: rodsmith | May 24, 2012 12:52:42 PM

This is a terrible decision. The record reflects that counsel tried to get the judge to accept a partial verdict and was refused. What else could counsel have done? The "possibility" of which Roberts speaks is wholly theoretical, and essentially impropable in an acquittal first deliberation context.

Posted by: Defense attorney | May 24, 2012 3:24:46 PM

Bites of the apple:

1. manslaughter

2. and negligent homicide.

3. capital and

4. first-degree murder

And now the state can eat its apple and have it too.

Or in 3-strikes terms, the state gets 1, 2, 3, 4 and another 1, 2, 3, 4, for a total of 8 strikes before it is out. Can anyone imagine the batting average of a player who gets 8 strikes before being out?

Posted by: Anon | May 24, 2012 8:48:32 PM

The big problem I have is that the state should have to choose which bite at the apple it's going to take for any single trial. Capital murder, first degree murder, manslaughter and negligent homicide are fundamentally different crimes. The prosecution should have to pick the one they think fits the facts and try it. They shouldn't be allowed serve the smorgasbord and tell the jury, "here you can choose the one you like".

Posted by: Jardinero1 | May 24, 2012 10:53:25 PM

Why would the State even try another capital element , with a 12-0 against them the first time ?

Had there been 10-G 2-NG hang on the capital charge , I could see a re-try on capital .


Nemo Me Impune Lacessit

Posted by:  They call me —►Mister Blank◄— | May 25, 2012 6:40:40 AM


It's the Supreme Courts (and state courts) that tell prosecutions that they have to instruct down, typically at defense request who think that having all of the various degrees in front of them will lead the jury to convict on a lesser.

From the defense and appellate court perspective, the fear is that if a jury only got the capital homicide, they would convict on it because it was clear that the defendant had wrongfully killed the victim and the jury would not want to acquit and let the defendant get away with it.

Additionally, the difference between the degrees of homicide in most states is primarily a matter of mental state which is almost always an inference from the evidence. A defendant walks the murder victim out into a field at gunpoint before shooting him -- was the defendant thinking about killing the victim all the way (i.e. deliberation) or did the defendant get upset at the last second when the victim tried to escape (intentional but not deliberate). Nothing in the Constitution requires the State to make that choice instead of letting the jury make that choice.

p.s. If capital murder and negligent homicide are really different offenses, then the double jeopardy clause (which only prohibits dual trials for the same offense) would permit the State to try Mr. Blueford four times -- first for capital murder, then for murder in the first degree, then for manslaughter, and then for negligent homicide.

Posted by: TMM | May 25, 2012 11:57:15 AM

I agree that there's nothing wrong with charging a defendant with multiple offenses in a single trial. But when the jury hangs in such a trial, I cannot see what legitimate justification there is for refusing to find out whether the jury reached a unanimous verdict on any of the charges, or how there can be "manifest necessity" to retry the defendant on the charges absent such an inquiry.

Posted by: Ryan | May 25, 2012 1:48:58 PM

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