{"id":17336,"date":"2012-05-25T11:25:10","date_gmt":"2012-05-25T16:25:10","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=17336"},"modified":"2012-05-25T11:25:10","modified_gmt":"2012-05-25T16:25:10","slug":"scotus-decides-blueford-declines-opportunity-to-tighten-up-double-jeopardy-manifest-necessity-rule","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/05\/scotus-decides-blueford-declines-opportunity-to-tighten-up-double-jeopardy-manifest-necessity-rule\/","title":{"rendered":"SCOTUS Decides Blueford, Declines Opportunity to Tighten Up Double Jeopardy \u201cManifest Necessity\u201d Rule"},"content":{"rendered":"

\"\"<\/a>On some apparently flimsy evidence of intent to kill, the State of Arkansas prosecuted Alex Blueford for the capital murder of his girlfriend\u2019s 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.<\/p>\n

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,<\/a> clearing the path for a second trial.\u00a0<\/p>\n

Blueford had two colorable double jeopardy arguments. The first was that the foreperson\u2019s 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\u2019s statement did not have sufficient finality to count as an aquittal:<\/p>\n

The foreperson\u2019s report was not a final resolution of anything. When the foreperson told the court how the jury had voted on each offense, the jury\u2019s 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.<\/p><\/blockquote>\n

The Court\u2019s 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.<\/p>\n

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\u2019s 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.<\/p>\n

The Court disagreed, finding greater flexibility in the jury instructions:<\/p>\n

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, \u201cIf you have a reasonable doubt of the defendant\u2019s guilt on the charge of [the greater offense], you will [then] consider the charge of [the lesser offense].\u201d 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.<\/p><\/blockquote>\n

It is interesting that the Court did not disagree with a key premise of Blueford\u2019s argument, i.e., that the foreperson\u2019s 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\u2019s interpretation of the particular jury instructions in his case.<\/p>\n

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\u2019s report might be enough to trigger double jeopardy protections.<\/p>\n

Blueford\u2019s second, and to my mind more compelling, argument focused on the trial judge\u2019s refusal to give the jury an opportunity to formalize its acquittal decision on a partial verdict form. This argument turned on the \u201cmanifest necessity\u201d 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 \u201cmanifest necessity\u201d language might suggest that it would be difficult to justify a mistrial, the Supreme Court has not actually given the standard much bite. Blueford\u2019s 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\u2019s request for a partial verdict before declaring a mistrial on the ground of jury deadlock.<\/p>\n

The Court nonetheless rejected Blueford\u2019s argument. The Court\u2019s reasoning essentially boiled down to \u201cwell, we\u2019ve never required this before\u201d:<\/p>\n

According to Blueford, the [trial] court . . . should have taken \u201csome action,\u201d 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.<\/p>\n

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\u2014let alone to consider giving the jury new options for a verdict. As permitted under Arkansas law, the jury\u2019s options in this case were limited to two: either convict on one of the offenses, or acquit on all.<\/p><\/blockquote>\n

This strikes me as a rather lame response to a significant constitutional argument. As Justice Sotomayor, writing in dissent, noted, Blueford\u2019s argument was not about some obscure, technical wrinkle in double-jeopardy law, but instead implicated a central concern of the Double Jeopardy Clause:<\/p>\n

Before declaring a mistrial, therefore, a trial judge must weigh heavily a \u201cdefendant\u2019s valued right to have his trial completed by a particular tribunal.\u201d Wade v. Hunter<\/em>, 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 \u201chelp the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunityto convict the accused.\u201d Gori v. United States<\/em>, 367 U. S. 364, 369 (1961).<\/p><\/blockquote>\n

One final thought on Blueford<\/em>, 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, \u201cA prosectuor should not . . . permit the continued pendency of criminal charges in the absence of of sufficient admissible evidence to support a conviction.\u201d Similarly, Standard 3-3.9(f) states, \u201cThe prosecutor should not bring or seek charges greater in . . . degree than can reasonably be supported with evidence at trial . . . .\u201d<\/p>\n

Doesn\u2019t one jury\u2019s 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 \u2014 and such may be the case here, for all I know, although the trial judge apparently also shared the jury\u2019s skepticism of the merits of the capital-murder charge \u2013 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.<\/p>\n

Cross posted at Life Sentences<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

On some apparently flimsy evidence of intent to kill, the State of Arkansas prosecuted Alex Blueford for the capital murder of his girlfriend\u2019s 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 […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[126,30,122,24],"tags":[],"class_list":["post-17336","post","type-post","status-publish","format-standard","hentry","category-constitutional-law","category-criminal-justice","category-public","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/17336","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=17336"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/17336\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=17336"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=17336"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=17336"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}