This week, the Supreme Court decided in a 6-3 decision, Blueford v. Arkansas, that if you are charged with multiple crimes, and a unanimous jury finds you not guilty of one charge, but fails to reach a verdict on others (resulting in a mistrial), you may be retried on all charges, period. Including the one that you were unanimously found not guilty of by the original jury. You know, the one who tried you. The first time.
"But Wait!" You exclaim with wild abandon, legs akimbo and arms atwitter. "Doesn’t the Double Jeopardy Clause of the Fifth Amendment prevent you from being tried twice for the same offense?"
Oh yeah. That old thing?
According to the Roberts court, the declaration of a mistrial by the trial judge has the magical effect of nullifying the fact that 12 jurors found you not guilty of an independently chargeable crime, so long as the trial judge fails to issue a final judgment of acquittal. The jury foreperson’s report indicating a unanimous verdict on the Capital murder and First degree murder charges? Hogwash!:
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.
This (in my humble opinion) is a complete mischaracterization of the trial record. They even quoted from the damn record earlier in the opinion:
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.
“THE COURT: Okay. Manslaughter?
“JUROR NUMBER ONE: Nine for, three against.
“THE COURT: Okay. And negligent homicide?
“JUROR NUMBER ONE: We did not vote on that, sir.
“THE COURT: Did not vote on that.
“JUROR NUMBER ONE: No, sir. We couldn’t get past the manslaughter. Were we supposed to go past that? I thought we were supposed to go one at a time.” Id., at 64–65.
After this exchange, the trial judge issued what’s known as an Allen instruction, which essentially amounts to the trial judge telling the jurors to “give it the ole’ college try,” and go back to the jury room and attempt to reach a verdict on all charges. They did so, but the jury returned and told the trial judge that they had failed to reach a unanimous verdict on all charges. The trial judge then declared a mistrial, and the State of Arkansas attempted to retry Blueford.
During the new proceedings, Blueford’s lawyer filed a motion to dismiss his capital and first degree murder charges on the grounds that a jury of his peers had already unanimously voted to acquit him on those charges. The trial judge denied the motion. Blueford’s lawyer then filed what’s known as an interlocutory appeal, which is an appeal taken from an adverse ruling by a trial court before the trial is completed (in most cases, you can’t appeal adverse rulings on questions of law until the trial is complete. But in some cases, an adverse ruling from a trial judge is immediately appealable. When that happenes, it’s known as an interlocutory appeal).
The Arkansas Supreme Court affirmed the trial court’s ruling, and Blueford then filed what is known as a petition for writ of certiorari, which is essentially a request to have your case reviewed by the U.S. Supreme Court. The Supreme Court granted the writ (often referred to as “granted certiorari” or “granting certification”), and issued this haberdasher of an opinion.
The 6-3 majority in this opinion is essentially saying that Blueford can be retried because the jurors could have had a change of heart on the issues they had already decided unanimously when they went back to deliberate the other charges. In other words, one of the central building blocks in the majority’s opinion is based on nothing short of naked conjecture about the jury’s intentions. The Supreme Court has placed an entire class of criminal defendants outside the protection of the Double Jeopardy Clause on the basis of pure speculation.
Three justices dissented, of course. Justice Sotomayor (or as we may call her more appropriately in this instance, la voz de la razón), tries to spell it out as plainly as possible:
The bar on retrials following acquittals is “the most fundamental rule in the history of double jeopardy jurisprudence”… . In ascertaining whether an acquittal has occurred, “form is not to be exalted over substance.” Sanabria v. United States, 437 U. S. 54, 66 (1978). Rather, we ask whether the factfinder has made “a substantive determination that the prosecution has failed to carry its burden.” Smith v. Massachusetts, 543 U. S. 462, 468 (2005)… . Jeopardy terminates upon a determination, however characterized, that the “evidence is insufficient” to prove a defendant’s “factual guilt.” Smalis v. Pennsylvania, 476 U. S. 140, 144 (1986). Thus, we have treated as acquittals a trial judge’s directed verdict of not guilty, Smith, 543 U. S., at 468; an appellate reversal of a conviction for insufficiency of the evidence, Burks, 437 U. S., at 10; and, most pertinent here, a jury’s announcement of a not guilty verdict that was “not followed by any judgment,” Ball, 163 U. S., at 671.
The quibble of the Majority in this case would be that because a verdict was not reached on all questions, a verdict was not reached period. But to reach that conclusion would be to do precisely what Sanabria v. United States forbids: exalting form over substance. The only counter-argument to this is, that the jury could have changed its mind after the Allen instruction was issued. But that’s an argument based quite literally on ignorance: the foreperson didn’t say whether they were still unanimous on the first two charges. And why would they? The trial court didn’t ask them for that information before declaring a mistrial. So again, we are back to pure speculation: the Roberts Court has removed an entire class of criminal defendants from the protection of the Double Jeopardy Clause based on jurisprudential guesswork.
Blueford may be found not guilty of the Capital murder and First-degree murder charges by a new jury. Or he may not. The point is that this is precisely the sort of situation that the Double Jeopardy clause is supposed to prevent. But perhaps we shouldn’t be surprised: the Roberts Court never did care much for preserving a Constitutional right that a criminal might possibly benefit from. Of course, Blueford might not be a criminal. But he could be. That’s close enough.
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