The Cautionary Instruction: The Double Jeopardy squeeze -- justice denied

The Pittsburgh Post-Gazette/Ipso Facto
June 1, 2012

When the U.S. Supreme Court ruled last week that a criminal defendant may be retried even though the jury in his first trial had unanimously rejected the most serious charges against him, Justice Sonia Sotomayor wrote that the court had given prosecutors “the proverbial second bite at the apple.” 

Indeed, the court had done just that. Imagine facing a jury as the foreperson tells the judge that she and her fellow jurors were unanimous in finding you not guilty of capital murder and first degree murder. Yet, less than an hour later a mistrial is declared and you will face a second jury on both charges.

In Blueford v. Arkansas, No. 10-1320, the U.S. Supreme Court held that a jury's unanimous but “not final” vote to acquit a defendant on some charges does not count as a verdict.

In 2009, Alex Blueford was tried for murder and manslaughter in the death of his girlfriend's 20-month-old toddler. The jury voted unanimously against the murder charges, but the foreperson said they were "hopelessly deadlocked" on whether he was guilty of manslaughter. The defense asked for a partial verdict on the more serious charges. The judge refused and declared a mistrial.

Was the foreperson’s disclosure of jury votes prior to the judge declaring a mistrial a verdict?

Chief Justice John Roberts said that at the time of the disclosure the jury was still deliberating and had the ability to reconsider capital murder charges. Roberts wrote, “The foreperson’s report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on these offenses, quite apart from any requirement that a formal verdict be returned or judgment entered.”

The Founding Fathers included the Double Jeopardy Clause in the Constitution in response to prosecutorial abuses by the British monarchy. Sotomayor wrote in her dissent, "This case demonstrates that the threat to individual freedom from reprosecutions that favor States and unfairly rescue them from weak cases has not waned with time. Only this Court's vigilance has."

At the core of the controversy are the trial court’s jury instructions. The instructions required the panel to consider four separate grades of homicide. Arkan sas’ jury instructions specifically direct jurors not to consider the lesser charges until they make a unanimous decision on the more serious charge.

A majority of jurisdictions use Arkansas’ “acquittal-first” instruction, requiring juries to unanimously convict or acquit on each offense before considering less serious charges. The remaining jurisdictions, including Pennsylvania, allow courts to give an “unable to agree” instruction. The jury can consider less serious charges after making reasonable efforts to reach a verdict on the more serious charges.

Sotomayor’s criticism is pointed, "The Double Jeopardy Clause requires a trial judge, in an acquittal-first jurisdiction, to honor a defendant's request for a partial verdict before declaring a mistrial on the ground of jury deadlock."

For Alex Blueford the trial judge’s failure was justice denied.