Justices consider Double Jeopardy without formal verdict

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Sometime jury members can’t come to an agreement in criminal cases. But when jurors are prepared to acquit a defendant on the most serious charges in a case and are deadlocked on the lesser included charges, can a defendant be retried or has jeopardy attached?

That was the question confronting the justices of the U.S. Supreme Court on Feb.22 during oral arguments in the case Blueford v. Arkansas.

The defendant, Alex Blueford, was charged with capital murder in connection with the death of his girlfriend’s 20-month-old son. Blueford maintained that the closed head injury that led to the child’s death was accidental, but prosecutors alleged Blueford intentionally abused the boy, causing his injuries.

The capital murder charge included three lesser-included charges: first-degree murder, manslaughter and negligent homicide. After the trial, the jury deliberated and then sent a question to the judge asking what happened if they couldn’t agree.

The judge summoned the jury and asked how they voted. The jurors reported they voted unanimously against capital murder and first-degree murder, but could not reach a decision on the lesser charge of manslaughter. Because of this, they had not considered the negligent homicide charge. The judge sent them to back to deliberate longer, but the jury indicated it was deadlocked and the judge declared a mistrial.

When the state said it would retry Blueford on all courts, the defense moved to dismiss the two most serious charges, arguing that a retrial on those charges would violate the Constitution’s Double Jeopardy Clause. The trial court rejected the motion and the Arkansas Supreme Court affirmed.

The Supreme Court granted certiorari.

‘Tentative thoughts’

Clifford Sloan, a partner in the Washington, D.C., office of Skadden, Arps, Slate, Meagher & Flom, argued on Blueford’s behalf that the jury’s announcement that it voted unanimously against the most serious charges amounts to acquitting the defendant of those charges. He also argued the state did not demonstrate manifest necessity to retry the defendant on all counts.

“When the foreperson announced that the jury had voted unanimously against guilt on the murder charges, she was announcing a jury decision,” Sloan said. “There was nothing equivocal or qualified about that.”

But when Sloan noted the jury “could have gone back [to] correct or revise a verdict while it continues … sitting,” Justice Samuel Alito saw a problem.

“I think you’ve conceded away your case when you said that,” Alito said. “The one characteristic of a verdict that seems perfectly clear to me is that it is final.”

Justice Ruth Bader Ginsburg noted that after the jurors indicated their unanimous vote on the first two counts “they went out again” to deliberate more.

“The jury could have then said: ‘We’ll go back to square one,’” Ginsburg said. “‘We’ll consider capital murder, first degree murder.”

“The defense counsel asked for verdict forms to be sent into the jury room that would allow them to record their verdicts on the murder charges,” Sloan said. “And that’s a very important point here [because it was] the state that prevented any additional elucidation about what the jury thought on the murder charges.”

“But so long as it’s still tentative thoughts,” Justice Antonin Scalia said, “it doesn’t matter.”

‘Where do we draw the line?’

Arkansas Attorney General Dustin McDaniel argued there was never an acquittal in the case, and that “the jury was free to revisit capital and first degree murder when it resumed its deliberations.”

But Justice Elena Kagan noted the jury instructions directed the jurors to consider the charges one at a time, starting with the most serious, and only to move on when they came to a vote on the previous one.

“It’s clear that they all thought that they had to unanimously agree on something before they could go to the next crime,’ Kagan said. “And, again, there is no suggestion in what anybody said that they could go back up.”

Scalia questioned that assumption however, saying, “Isn’t it usually assumed that the jury is not finished until it’s finished?”

“States vary on how they enter judgments after the jury speaks its verdict,” Justice Sonia Sotomayor said. “So where do we draw the line as to … when a federal law, the Double Jeopardy Clause, trumps a state system?”

“I think that your answer is contained within the question,” McDaniel replied. “A verdict is the true answer.”

Ginsburg tried to nail down a rule.

“What’s wrong with a simple rule,” she said, “that says: once a jury announces that it is unanimous on acquittal of a count, you can’t go back unless the jury says that it’s not unanimous in some way?”

McDaniel argued that would be difficult to apply in practicality, however.

A decision is expected later this term.