SCOTUS Decides Blueford, Declines Opportunity to Tighten Up Double Jeopardy “Manifest Necessity” Rule
On some apparently flimsy evidence of intent to kill, the State of Arkansas prosecuted Alex Blueford for the capital murder of his girlfriend’s one-year-old son. After deliberating for some time, the jury reported that it had unanimously voted to acquit on both capital murder and a lesser-included murder charge, but was deadlocked on another lesser-included offense, manslaughter. The judge sent the jurors back to deliberate further. Meanwhile, Blueford requested that the jury be given a new verdict form on which it could enter a partial verdict of acquittal on the greater offenses. The judge declined and, after another half hour of fruitless deliberations, declared a mistrial.
Can Blueford now be retried in front of a new jury on the capital-murder charge? The prosecutor announced an intention to try, and Blueford predictably objected on double jeopardy grounds. Yesterday, the United States Supreme Court overruled his objections, clearing the path for a second trial.
Blueford had two colorable double jeopardy arguments. The first was that the foreperson’s uncontradicted statement in open court that the jury was unanimously against murder constituted an aquittal for double jeopardy purposes, thereby barring retrial. The Court, however, concluded that the foreperson’s statement did not have sufficient finality to count as an aquittal:
The foreperson’s report was not a final resolution of anything. When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded. The jurors in fact went back to the jury room to deliberate further, even after the foreperson had delivered her report. When they emerged a half hour later, the foreperson stated only that they were unable to reach a verdict. She gave no indication whether it was still the case that all 12 jurors believed Blueford was not guilty of capital or first-degree murder, that 9 of them believed he was guilty of manslaughter, or that a vote had not been taken on negligent homicide. The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses.
The Court’s reasoning thus leaves open the possibility that it might have reached a different result if the trial judge declared a mistrial immediately after the jury reported its unanimous decision, without permitting further deliberation.
But what if the jury could not have reconsidered murder during its further deliberation? Indeed, Blueford argued that this was precisely the situation in his case. He pointed to the jury’s instructions and to Arkansas law, both of which mandated a sequential consideration of charges from most to least serious. As Blueford saw it, once the jury reached manslaughter, it could not properly go back to murder.
The Court disagreed, finding greater flexibility in the jury instructions:
But even if we assume that the instructions required a unanimous vote before the jury could consider a lesser offense . . . nothing in the instructions prohibited the jury from reconsidering such a vote. The instructions said simply, “If you have a reasonable doubt of the defendant’s guilt on the charge of [the greater offense], you will [then] consider the charge of [the lesser offense].” The jurors were never told that once they had a reasonable doubt, they could not rethink the issue. The jury was free to reconsider a greater offense, even after considering a lesser one.
It is interesting that the Court did not disagree with a key premise of Blueford’s argument, i.e., that the foreperson’s statement might have counted as an acquittal if the jury had been instructed not to revisit murder; rather, the Court only took issue with Blueford’s interpretation of the particular jury instructions in his case.
The Court thus seems to avoid a formalistic approach to defining what counts as an aquittal, continuing in the spirit of earlier cases that emphasize the substance of a decision. Although Blueford lost, one is left with the sense that in other circumstances, a foreperson’s report might be enough to trigger double jeopardy protections.
Blueford’s second, and to my mind more compelling, argument focused on the trial judge’s refusal to give the jury an opportunity to formalize its acquittal decision on a partial verdict form. This argument turned on the “manifest necessity” rule for mistrials. For close to two centuries, the black-letter law has been that a mistrial in the absence of manifest necessity triggers the double-jeopardy bar to retrial. Although the “manifest necessity” language might suggest that it would be difficult to justify a mistrial, the Supreme Court has not actually given the standard much bite. Blueford’s argument, however, offered the Court a plausible opportunity to demand that trial judges fully explore the alternatives before giving the state an unimpaired shot at a second trial. Indeed, several states already require their trial judges to grant a defendant’s request for a partial verdict before declaring a mistrial on the ground of jury deadlock.
The Court nonetheless rejected Blueford’s argument. The Court’s reasoning essentially boiled down to “well, we’ve never required this before”:
According to Blueford, the [trial] court . . . should have taken “some action,” whether through partial verdict forms or other means, to allow the jury to give effect to those votes, and then considered a mistrial only as to the remaining charges.
We reject that suggestion. We have never required a trial court, before declaring a mistrial because of a hung jury, to consider any particular means of breaking the impasse—let alone to consider giving the jury new options for a verdict. As permitted under Arkansas law, the jury’s options in this case were limited to two: either convict on one of the offenses, or acquit on all.
This strikes me as a rather lame response to a significant constitutional argument. As Justice Sotomayor, writing in dissent, noted, Blueford’s argument was not about some obscure, technical wrinkle in double-jeopardy law, but instead implicated a central concern of the Double Jeopardy Clause:
Before declaring a mistrial, therefore, a trial judge must weigh heavily a “defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U. S. 684, 689 (1949). And in light of the historical abuses against which the Double Jeopardy Clause guards, a trial judge must tread with special care where a mistrial would “help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunityto convict the accused.” Gori v. United States, 367 U. S. 364, 369 (1961).
One final thought on Blueford, unrelated to the constitutional question. It strikes me as at least ethically questionable for the prosecutor to attempt to retry Blueford on capital murder. ABA Criminal Justice Standard 3-3.9(a) states, “A prosectuor should not . . . permit the continued pendency of criminal charges in the absence of of sufficient admissible evidence to support a conviction.” Similarly, Standard 3-3.9(f) states, “The prosecutor should not bring or seek charges greater in . . . degree than can reasonably be supported with evidence at trial . . . .”
Doesn’t one jury’s unanimous vote against not only capital murder but also the lesser-included offense of first-degree murder create at least a rebuttable presumption that there is insufficient evidence to support a capital-murder conviction? Perhaps that presumption could be fairly overcome if there was some reason to think that the jury was biased or incompetent — and such may be the case here, for all I know, although the trial judge apparently also shared the jury’s skepticism of the merits of the capital-murder charge – but I would hope that prosecutors would not regard their ethical duties in this regard as coterminous with the minimal requirements of the Double Jeopardy Clause. A clear loss on one charge in front of one jury should prompt not only a reconsideration of trial strategy, but also a reconsideration of the fairness of continuing to litigate that charge.
Cross posted at Life Sentences.
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