Wednesday, June 6, 2012
Kasich stays execution of mentally ill inmate
Ohio Gov. John Kasich granted a two-week stay of execution for a man convicted of shooting his wife and brother-in-law in a courthouse 20 years ago. The execution is rescheduled for June 20.
The Cleveland Plain Dealer reported that Abdul Awkal was scheduled to face execution by lethal injection at a prison in Lucasville today. He arrived at the prison Tuesday evening, however, the reprieve was granted before he could be served his last meal.
According to UPI, Awkal's lawyers argued their client is mentally ill and unaware of his punishment, and thus cannot be executed. In the motion filed to stay the execution, they said Awkal believes himself to be working with the CIA in the war on terror, and the agency is executing him because it is unhappy with him.
Prosecutors counter Awkal is a known liar, who has acknowledged his death sentence to mental health professionals in the past, proving he is aware of his punishment.
To read more: http://www.upi.com/Top_News/US/2012/06/06/Stay-of-execution-granted-for-Ohio-killer/UPI-51501339015785/#ixzz1x41hDliu
Mississippi executes killer of four children
The 19th Execution of 2012
Henry Curtis Jackson Jr. was executed by lethal injection at the Mississippi State Penitentiary in Parchman. He fatally stabbed two nieces and two nephews - aged 2 to 5 years - while he searched for money to steal from a safe kept in his mother's home.
During the attack on November 1, 1990, Regina Jackson, a sister of Jackson's, and two other nieces were also stabbed but survived. One of them, an infant at the time, was critically injured and remained paralyzed until her death in 2009, according to Reuters.
Regina Jackson-also the mother of two of his victims-said she and other family members including the mother of the other children killed had asked Mississippi's Republican Governor Phil Bryant on Monday to halt the execution.
"There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency," the governor told Reuters.
In Mississippi, the governor has the sole authority to grant clemency and can also commute death sentences to life in prison. Jackson was the fourth person executed this year in Mississippi.
He did not request a last meal and ate none of the standard dinner offered to him, corrections officials said. He also declined a sedative ahead of the execution, reported Reuters.
To read more: http://news.yahoo.com/mississippi-man-executed-killing-four-children-001530364.html
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Henry Curtis Jackson Jr. was executed by lethal injection at the Mississippi State Penitentiary in Parchman. He fatally stabbed two nieces and two nephews - aged 2 to 5 years - while he searched for money to steal from a safe kept in his mother's home.
During the attack on November 1, 1990, Regina Jackson, a sister of Jackson's, and two other nieces were also stabbed but survived. One of them, an infant at the time, was critically injured and remained paralyzed until her death in 2009, according to Reuters.
Regina Jackson-also the mother of two of his victims-said she and other family members including the mother of the other children killed had asked Mississippi's Republican Governor Phil Bryant on Monday to halt the execution.
"There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency," the governor told Reuters.
In Mississippi, the governor has the sole authority to grant clemency and can also commute death sentences to life in prison. Jackson was the fourth person executed this year in Mississippi.
He did not request a last meal and ate none of the standard dinner offered to him, corrections officials said. He also declined a sedative ahead of the execution, reported Reuters.
To read more: http://news.yahoo.com/mississippi-man-executed-killing-four-children-001530364.html
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Tuesday, June 5, 2012
Supreme Court Reins in Double Jeopardy Clause
In 2009, Alex Blueford sat before an Arkansas jury and listened as the jury foreperson told the judge that she and her fellow jurors were unanimous in finding that Blueford was not guilty of capital murder or first-degree murder. Yet, less than an hour later, a mistrial was declared and Blueford would once again face a jury on both charges.
The Pennsylvania Law Weekly
June 5, 2012
In 2009, Alex Blueford sat before an Arkansas jury and listened as the jury foreperson told the judge that she and her fellow jurors were unanimous in finding that Blueford was not guilty of capital murder or first-degree murder. Yet, less than an hour later, a mistrial was declared and Blueford would once again face a jury on both charges.
On Nov. 28, 2007, Blueford was babysitting his girlfriend's 20-month-old son while she took a relative to an appointment. Shortly after leaving, the toddler stopped breathing. Another adult in the home called for help. The child later died in the hospital. The cause of death — a traumatic closed head injury.
According to court documents, Blueford was charged with murder. The prosecutors pursuing Blueford called a pediatrician and the state medical examiner. Both compared the child's injuries to those from a serious car accident. Prosecutors contended the injuries were intentional.
At trial, Blueford took responsibility for the child's injuries, but suggested the injury was the result of a tragic accident. Blueford said he was startled when the toddler waved a lit cigarette near his face, causing him to accidentally hit him in the head and knock him to the floor.
The court's instructions to the jury required the panel to consider the offenses of capital murder, first-degree murder, manslaughter and negligent homicide. The state of Arkansas' jury instructions specifically direct jurors not to consider the lesser charges until they make a unanimous decision on the more serious charge.
There are two basic approaches to jury deliberations regarding lesser offenses. A majority of jurisdictions use an "acquittal-first" instruction, requiring juries to unanimously convict or acquit the defendant of an offense before considering less serious charges.
Twenty-three other jurisdictions, including Pennsylvania, allow courts to give an "unable to agree" instruction. In these jurisdictions, the jury will consider a less serious charge after making reasonable efforts to reach a verdict on a more serious charge and finding itself unable to agree (Daniels v. Washington, 130 S.Ct. 85, 2009, Petition for Writ of Certiorari).
After deliberating for several hours, the Blueford jurors notified the court that they were hopelessly deadlocked. In explaining the deadlock to the judge, the foreperson stated that the jury was unanimously against charges of capital murder and first-degree murder, and nine of the 12 jurors were in favor of manslaughter. The following colloquy was entered on the record in open court:
The court: "All right. If you have your numbers together, and I don't want names, but if you have your numbers I would like to know what your count was on capital murder."
Juror Number One: "That was unanimous against that. No."
The court: "Okay, on murder in the first degree?"
Juror Number One: "That was unanimous against that."
Blueford asked for a partial verdict on the two most serious charges. The judge declined and instructed the jurors to continue deliberations. After the jury again reported a deadlock, the judge declared a mistrial.
The prosecution indicated the state's intention to retry Blueford. He moved to dismiss the capital and first-degree murder charges, citing the double jeopardy clause embodied in the Fifth Amendment to the U.S. Constitution. The trial court denied the motion, and the Supreme Court of Arkansas affirmed.
Blueford's case ultimately made its way to the U.S. Supreme Court. During oral argument in Blueford v. Arkansas, No. 10-1320, the petitioner's counsel zeroed in on the jury foreperson's statement that the jury had unanimously voted not guilty on the two most serious offenses. In responding to a question by Justice Stephen Breyer, Clifford M. Sloan, Blueford's attorney, said, "With respect, your honor, I disagree that it's a minor matter when a foreperson stands up, with the jury present, and says we have voted not guilty."
However, Justice Samuel Alito provided some insight into where the court was heading. Alito told Sloan, "The one characteristic of a verdict that seems perfectly clear to me is that it is final."
The double jeopardy clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Fifth Amendment provides that the state should not be allowed to use its power and resources to repeatedly attempt to convict a defendant and thereby subject him to embarrassment, expense and anxiety and increasing the possibility that he be found guilty despite his innocence (Green v. United States, 355 U.S. 184 (1957)).
The Supreme Court found that the jury foreperson's statement of the jury's position was not final. The double jeopardy clause does not prevent the reprosecution of a greater offense if a jury deadlocks on a lesser offense.
"The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either," Chief Justice John G. Roberts Jr. wrote on behalf of the majority.
The court provided a hypothetical to bolster its position. The court theorized this: A jury begins its deliberations with a vote on first-degree murder. Everyone votes not guilty. The foreperson calls for a vote on manslaughter and the vote is split. The jurors then begin to discuss the case. At that point one of the jurors begins to rethink his vote on first-degree murder and changes to guilty.
Roberts concluded, "It was therefore possible for Blueford's jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes." He added, "And because of that possibility, the foreperson's report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses."
Although plausible, Roberts' hypothetical did not reconcile with the facts in Blueford. Nor did the hypothetical resonate with all members of the court.
Justice Sonia Sotomayor dissented, joined by Justices Ruth Bader Ginsburg and Elena Kagan. She wrote, "Blueford's jury had the option to convict him of capital and first-degree murder, but expressly declined to do so."
The theory behind the "acquittal-first" jury instruction was to avoid double jeopardy problems by requiring the jury to render a verdict on the most serious charge or to hang without reaching any other charges, thereby allowing a new trial on all charges.
Blueford provided a different scenario — unanimity on the most serious charges and deadlock on the less serious charges. Sotomayor pointed to such a scenario when she wrote, "It would be anomalous if the double jeopardy clause offered less protection to a defendant whose jury has dead locked on the lesser and thus convicted of nothing at all."
The trial judge in Blueford should have honored Blueford's request for a partial verdict before declaring a mistrial on the deadlocked manslaughter offense — double jeopardy would have attached and justice would have been served. In light of Blueford, trial courts would do well to consider partial verdicts under similar circumstances.
The Pennsylvania Law Weekly
June 5, 2012
In 2009, Alex Blueford sat before an Arkansas jury and listened as the jury foreperson told the judge that she and her fellow jurors were unanimous in finding that Blueford was not guilty of capital murder or first-degree murder. Yet, less than an hour later, a mistrial was declared and Blueford would once again face a jury on both charges.
On Nov. 28, 2007, Blueford was babysitting his girlfriend's 20-month-old son while she took a relative to an appointment. Shortly after leaving, the toddler stopped breathing. Another adult in the home called for help. The child later died in the hospital. The cause of death — a traumatic closed head injury.
According to court documents, Blueford was charged with murder. The prosecutors pursuing Blueford called a pediatrician and the state medical examiner. Both compared the child's injuries to those from a serious car accident. Prosecutors contended the injuries were intentional.
At trial, Blueford took responsibility for the child's injuries, but suggested the injury was the result of a tragic accident. Blueford said he was startled when the toddler waved a lit cigarette near his face, causing him to accidentally hit him in the head and knock him to the floor.
The court's instructions to the jury required the panel to consider the offenses of capital murder, first-degree murder, manslaughter and negligent homicide. The state of Arkansas' jury instructions specifically direct jurors not to consider the lesser charges until they make a unanimous decision on the more serious charge.
There are two basic approaches to jury deliberations regarding lesser offenses. A majority of jurisdictions use an "acquittal-first" instruction, requiring juries to unanimously convict or acquit the defendant of an offense before considering less serious charges.
Twenty-three other jurisdictions, including Pennsylvania, allow courts to give an "unable to agree" instruction. In these jurisdictions, the jury will consider a less serious charge after making reasonable efforts to reach a verdict on a more serious charge and finding itself unable to agree (Daniels v. Washington, 130 S.Ct. 85, 2009, Petition for Writ of Certiorari).
After deliberating for several hours, the Blueford jurors notified the court that they were hopelessly deadlocked. In explaining the deadlock to the judge, the foreperson stated that the jury was unanimously against charges of capital murder and first-degree murder, and nine of the 12 jurors were in favor of manslaughter. The following colloquy was entered on the record in open court:
The court: "All right. If you have your numbers together, and I don't want names, but if you have your numbers I would like to know what your count was on capital murder."
Juror Number One: "That was unanimous against that. No."
The court: "Okay, on murder in the first degree?"
Juror Number One: "That was unanimous against that."
Blueford asked for a partial verdict on the two most serious charges. The judge declined and instructed the jurors to continue deliberations. After the jury again reported a deadlock, the judge declared a mistrial.
The prosecution indicated the state's intention to retry Blueford. He moved to dismiss the capital and first-degree murder charges, citing the double jeopardy clause embodied in the Fifth Amendment to the U.S. Constitution. The trial court denied the motion, and the Supreme Court of Arkansas affirmed.
Blueford's case ultimately made its way to the U.S. Supreme Court. During oral argument in Blueford v. Arkansas, No. 10-1320, the petitioner's counsel zeroed in on the jury foreperson's statement that the jury had unanimously voted not guilty on the two most serious offenses. In responding to a question by Justice Stephen Breyer, Clifford M. Sloan, Blueford's attorney, said, "With respect, your honor, I disagree that it's a minor matter when a foreperson stands up, with the jury present, and says we have voted not guilty."
However, Justice Samuel Alito provided some insight into where the court was heading. Alito told Sloan, "The one characteristic of a verdict that seems perfectly clear to me is that it is final."
The double jeopardy clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Fifth Amendment provides that the state should not be allowed to use its power and resources to repeatedly attempt to convict a defendant and thereby subject him to embarrassment, expense and anxiety and increasing the possibility that he be found guilty despite his innocence (Green v. United States, 355 U.S. 184 (1957)).
The Supreme Court found that the jury foreperson's statement of the jury's position was not final. The double jeopardy clause does not prevent the reprosecution of a greater offense if a jury deadlocks on a lesser offense.
"The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either," Chief Justice John G. Roberts Jr. wrote on behalf of the majority.
The court provided a hypothetical to bolster its position. The court theorized this: A jury begins its deliberations with a vote on first-degree murder. Everyone votes not guilty. The foreperson calls for a vote on manslaughter and the vote is split. The jurors then begin to discuss the case. At that point one of the jurors begins to rethink his vote on first-degree murder and changes to guilty.
Roberts concluded, "It was therefore possible for Blueford's jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes." He added, "And because of that possibility, the foreperson's report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses."
Although plausible, Roberts' hypothetical did not reconcile with the facts in Blueford. Nor did the hypothetical resonate with all members of the court.
Justice Sonia Sotomayor dissented, joined by Justices Ruth Bader Ginsburg and Elena Kagan. She wrote, "Blueford's jury had the option to convict him of capital and first-degree murder, but expressly declined to do so."
The theory behind the "acquittal-first" jury instruction was to avoid double jeopardy problems by requiring the jury to render a verdict on the most serious charge or to hang without reaching any other charges, thereby allowing a new trial on all charges.
Blueford provided a different scenario — unanimity on the most serious charges and deadlock on the less serious charges. Sotomayor pointed to such a scenario when she wrote, "It would be anomalous if the double jeopardy clause offered less protection to a defendant whose jury has dead locked on the lesser and thus convicted of nothing at all."
The trial judge in Blueford should have honored Blueford's request for a partial verdict before declaring a mistrial on the deadlocked manslaughter offense — double jeopardy would have attached and justice would have been served. In light of Blueford, trial courts would do well to consider partial verdicts under similar circumstances.
Monday, June 4, 2012
Part VIII: The Crime Report examines youth violence
This is the eighth, and final, in a series of posts derived from Ted Gest's article Crime and Justice Trends in America: How We Got Here; Where We Go Next on cutting edge evidence-based crime fighting practices posted at The Crime Report.
Youth Violence--Franklin E. Zimring, University of California at Berkeley.
Zimring offered a "cautionary tale" about projecting juvenile crime rates. Based on rises in reported youth crime in the late 1980s and early 1990s, scholars like John DiIulio and James Alan Fox projected that if current trends continued, the number of arrests for juvenile homicide might reach 5,000 or more--creating by 2005 what DiIulio termed a generation of "superpredators."
This proved to be a "catastrophic error." Zimring said.
The actual number of juvenile homicide arrests turned out to be 1,073. The drop in juvenile crime numbers in the 1990s prompted John Donohue and Steven Levitt to propose what Zimring termed a misguided theory that the growth in abortions after the Supreme Court's 1973 Roe v. Wade ruling contributed to a decrease in juvenile offending later.
The mistaken projections about juvenile crime growth encouraged ineffective policy changes such as states' enacting laws providing for trying more juvenile defendants as adults, Zimring said.
What did not happen was a building boom in juvenile detention facilities because policymakers learned that crime was actually decreasing before they could vote for new institutions.
Zimring expects juvenile homicide rates between now and 2025 to track adult homicide rates.
Youth Violence--Franklin E. Zimring, University of California at Berkeley.
Zimring offered a "cautionary tale" about projecting juvenile crime rates. Based on rises in reported youth crime in the late 1980s and early 1990s, scholars like John DiIulio and James Alan Fox projected that if current trends continued, the number of arrests for juvenile homicide might reach 5,000 or more--creating by 2005 what DiIulio termed a generation of "superpredators."
This proved to be a "catastrophic error." Zimring said.
The actual number of juvenile homicide arrests turned out to be 1,073. The drop in juvenile crime numbers in the 1990s prompted John Donohue and Steven Levitt to propose what Zimring termed a misguided theory that the growth in abortions after the Supreme Court's 1973 Roe v. Wade ruling contributed to a decrease in juvenile offending later.
The mistaken projections about juvenile crime growth encouraged ineffective policy changes such as states' enacting laws providing for trying more juvenile defendants as adults, Zimring said.
What did not happen was a building boom in juvenile detention facilities because policymakers learned that crime was actually decreasing before they could vote for new institutions.
Zimring expects juvenile homicide rates between now and 2025 to track adult homicide rates.
Sunday, June 3, 2012
Inmate fights to avoid death
The Youngstown Vindicator
June 3, 2012
Mark Wayne Wiles paid the ultimate price on April 18. Wiles was executed at the Southern Ohio Correctional Facility near Lucasville. It was Ohio’s first execution in five months because of legal wrangling about lethal-injection.
Wiles was convicted in the fatal stabbing of a 15-year-old boy in 1985. He was out of prison on an aggravated-robbery conviction when he committed the Portage County murder.
Six weeks have passed since Wiles’ execution. Four more men have been executed nationwide and Ohio has another execution scheduled for this week.
Abdul Awkal is scheduled to die by lethal injection on Wednesday. Awkal shot and killed his wife and brother-in-law at the Cuyahoga County Courthouse during a divorce proceeding.
Clemency denied
Awkal was recently denied clemency by the Ohio Parole Board. Last week, his challenge to lethal injection was rejected by U.S. District Court Judge Gregory Frost, whose prior court order was behind the five month lull in executions.
Frost ruled that Awkal misunderstood Ohio’s long-running lethal injection lawsuit, which focused on the process of administering lethal drugs, and didn’t address Awkal’s concern that Ohio might execute a mentally ill inmate.
That’s not to say that Ohio’s death penalty procedure has been problem free.
Twice Ohio officials had to halt executions because something “went wrong.” In the case of Romell Broom, prison staff labored for two hours to establish an IV for administering the lethal injection. Finally, Ohio Gov. Ted Strickland intervened and stopped the execution.
The concern with Awkal’s execution has nothing to do with procedure; it has to do with Awkal’s mental health.
A court initially found him not competent to stand trial because of his mental health. He was sent to a psychiatric hospital and placed on medication before the court found him competent for trial.
WOIO-TV in Cleveland reported that Awkal was recently evaluated by an expert who found that he does not have a rational understanding of the reasons for this punishment and did not meet the legal standard necessary for execution.
Awkal was diagnosed with schizoaffective disorder. He is reported to have had delusions that included his belief that he managed the U.S. military efforts in Iraq and Afghanistan, and that he has been in direct communication with the CIA and Presidents George W. Bush and Barack Obama.
Moratorium
Four states have dropped the death penalty in recent years. California has put the issue on the ballot for this fall and Oregon’s governor has imposed a moratorium on carrying out executions.
The number of Americans who support the death penalty has fallen to 61 percent—down from 80 percent less than 20 years ago.
The U.S. Supreme Court has barred the execution of those who, because of insanity, have no rational understanding that death is imminent and why.
Last week, Texas, the most prolific state in terms of executions, stayed the execution of a paranoid-schizophrenic prone to delusions. He was being forced to take medication to remain competent for execution.
Although, in recent years, Ohio has been a leader in executions nationwide, capital punishment is on the decline.
The number of death sentences and the number of executions has tumbled. Public support for the death penalty has waned. Ohio would do well to closely examine the planned execution of Awkal. A cruel and merciless execution of a seriously mentally ill inmate may influence already declining public support for the ultimate penalty.
Visit The Vindicator
Saturday, June 2, 2012
Incompetent inmates languish in California jails
Inmates with serious mental illnesses deemed incompetent to stand trial are languishing in California jail cells for months as they wait for state hospital beds to open up, according to advocates, jail officials and family members, according to The Sacramento Bee.
State and county budget cuts to mental health programs are combining with prison realignment and a shrinking number of state hospital beds to exacerbate the problem, they say.
In many counties, seriously mentally ill inmates routinely wait three to six months in jail before a state hospital bed opens up, Randall Hagar, director of government affairs for the California Psychiatric Association told The Bee. He calls the situation, which he says has gotten worse in recent years, "tragic."
In recent years, counties around California have been severely hit by budget cuts to mental health services. From 2009 to 2012, California has reduced mental health funding by $765 million, more than a fifth of its mental health budget, according to a report by the nonprofit National Alliance on Mental Illness, or NAMI, which advocates for services and treatment. As funds and services have disappeared, the number of people with mental illness landing behind bars has surged, reported The Bee.
State prison inmates with mental illnesses increased from 19 percent in 2007 to 25 percent in 2012, according to the California Department of Corrections and Rehabilitation.
To read more: http://www.sacbee.com/2012/05/27/4519117/mentally-ill-inmates-on-the-rise.html
State and county budget cuts to mental health programs are combining with prison realignment and a shrinking number of state hospital beds to exacerbate the problem, they say.
In many counties, seriously mentally ill inmates routinely wait three to six months in jail before a state hospital bed opens up, Randall Hagar, director of government affairs for the California Psychiatric Association told The Bee. He calls the situation, which he says has gotten worse in recent years, "tragic."
In recent years, counties around California have been severely hit by budget cuts to mental health services. From 2009 to 2012, California has reduced mental health funding by $765 million, more than a fifth of its mental health budget, according to a report by the nonprofit National Alliance on Mental Illness, or NAMI, which advocates for services and treatment. As funds and services have disappeared, the number of people with mental illness landing behind bars has surged, reported The Bee.
State prison inmates with mental illnesses increased from 19 percent in 2007 to 25 percent in 2012, according to the California Department of Corrections and Rehabilitation.
To read more: http://www.sacbee.com/2012/05/27/4519117/mentally-ill-inmates-on-the-rise.html
Friday, June 1, 2012
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.
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.
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