Argument preview: Does double jeopardy require partial verdicts?
Professor Poulin is a Professor at Villanova University School of Law. She teaches and writes in the areas of criminal procedure and evidence. In addition, Professor Poulin serves as Co-Reporter for the Committee on Model Criminal Jury Instructions for the Third Circuit. She chaired the ABA Death Penalty Moratorium Project for Pennsylvania. She is a member of the Board of Directors of the Pennsylvania Innocence Project.
On February 22, the Court will hear oral argument in Blueford v. Arkansas. At issue in the case are two strains of double jeopardy jurisprudence. The first addresses the question of what constitutes an acquittal and will therefore bar further prosecution, while the second governs when a mistrial will bar further prosecution.
The peculiar facts and procedural posture of the case frame the two double jeopardy issues narrowly. The defendant was tried on four offenses, including both greater- and lesser-included offenses. The jury was instructed to proceed to the next lesser offense only after concluding that the defendant was not guilty of the greater. Failing to reach a verdict on the lesser offenses, the jury reported that it agreed the defendant was not guilty on the two most serious offenses. However, that jury vote was never further formalized. Jeopardy attached when the jury was empanelled and sworn, so the issue before the Supreme Court is whether the resolution of the case raises a double jeopardy bar to further prosecution.
Blueford was charged with capital murder for the death of his girlfriend’s nineteen-month old son. The charge of capital murder implicitly charged the lesser-included offenses of first-degree murder, manslaughter, and negligent homicide. The evidence established that the child was injured while in Blueford’s care, leading to his death two days later. At trial, the prosecution and defense disputed what had precipitated the fatal injury. Relying heavily on the testimony of a medical expert who had failed to obtain board certification in anatomical pathology, the prosecution contended that Blueford had thrown the child down on a mattress with such force that it caused the injury and death. The prosecution also stressed that Blueford had given inconsistent statements to the police and had left the state to avoid arrest.
By contrast, the defense sought to show that the injury was accidental. Blueford testified to a chain of events that led to the child accidentally hitting his head on a table. That account was supported by two expert medical witnesses, who were highly critical of both the autopsy performed by the prosecution’s expert and his assessment of the likely cause of death. In closing, the defense asked the jury to convict Blueford of negligent homicide and acquit him of the three more serious offenses.
The trial court instructed the jury on all four offenses, starting with the most serious offense (capital murder) and proceeding to the least serious (negligent homicide). Between the instructions on each offense and the next less serious offense, the trial court instructed the jury: “if you have a reasonable doubt of the defendant’s guilt on the [greater charge], you will consider the [next less serious charge].” Prosecutors then repeated these instructions in their closing arguments, reminding the jury that it should only consider a lesser charge if it had first decided unanimously that the defendant was not guilty of the greater charge.
After four hours of deliberation, the jury signaled that it might be deadlocked. The court encouraged the jury to attempt to reach a verdict, and deliberations continued for an additional half-hour. When the jury again reported that it still could not reach a verdict, the trial court brought the jury into the courtroom and asked the foreperson for more information. In response to the court’s questions, the foreperson reported that the jury was unanimously against conviction on both capital murder and murder in the first degree and was divided on the manslaughter charge, with nine for it and three against. The jurors had not addressed the lesser charge of negligent homicide because they understood the instructions to require them to consider only one charge at a time, moving from most to least serious. The juror’s report to the judge thus expressed the jury’s understanding that it could not consider the next lesser offense without first agreeing unanimously that the defendant was not guilty of the greater offense.
The court again encouraged the jury to continue deliberating to reach a verdict. At this point, Blueford asked the court to give the jury verdict forms on which to record its verdicts on the two counts on which it did agree, but the trial court refused. As a result, the foreperson’s report was never formalized, and no findings or verdicts were entered.
Before the jury was again sent out to deliberate, prosecutors suggested that the judge should enter a mistrial, but Blueford’s lawyers countered that they were not asking for a mistrial. After deliberating an additional half-hour, the jury again reported that it was deadlocked on the other charges; the court then immediately entered a mistrial on all of the charges. At that point, Blueford neither objected nor consented to the mistrial.
The Supreme Court of Arkansas concluded that the Double Jeopardy Clause did not bar the state from trying Blueford again. The court rejected the argument that Blueford had been acquitted, reasoning that the report by the jury foreperson indicating that the jury was unanimously against conviction on the two most serious grounds was never translated into a formal acquittal. Moreover, the court held, Blueford was not entitled to a partial verdict; in reaching that conclusion, the court declined to adopt the minority position that double jeopardy in some cases requires a partial “not guilty” verdict on greater offenses when the jury is deadlocked on lesser-included offenses.
The Arkansas court did not squarely address whether the mistrial on the two most serious charges was manifestly necessary. The court noted that a defendant can invoke a double jeopardy bar if a mistrial is declared without “overruling necessity.” However, the court seemed to accept two responses to the argument that the mistrial barred further prosecution. First, the court appeared to endorse the state’s argument that, by failing to object, Blueford impliedly consented to the mistrial. Second, because it rejected the argument that the trial court was required to take a partial verdict, the court classified Blueford’s case as a run-of-the-mill hung jury case in which a mistrial is clearly permitted.
Blueford argues that the jury’s action constituted an explicit acquittal of the defendant; the jury expressed its “clear, express, and final determination.” He emphasizes that the instructions, reinforced by the prosecution’s closing argument, directed the jury to resolve each more serious offense before considering the next less serious offense. The instruction directed the jury to take an “acquittal first” or “hard transition” approach; in contrast, some jurisdictions use a “soft transition” approach, under which the jury may consider the greater and lesser offenses in whatever order it chooses. As a result, the jury’s final report before it was discharged, stating that it could not reach a verdict on manslaughter, necessarily established that it had agreed to acquit the defendant on the two more serious charges.
Blueford further argues that the trial court declared a mistrial in the absence of manifest necessity, barring further prosecution. Although the trial court was justified in declaring a mistrial on those counts as to which the jury could not reach a verdict, the jury was able to reach a verdict on the two more serious charges. Because, as a result, there was no constitutionally sufficient reason to declare a mistrial as to those two charges, the mistrial bars further prosecution on those charges.
The state argues that the jury’s action did not constitute either an actual or implied acquittal. It was not formalized, and the jurors could have returned to the more serious charges in their deliberations and reached a different decision. The state also disagrees with Blueford’s characterization of the instructions as “hard transition” or “acquittal first” instructions. It emphasizes that, although the jurors were told they must not move to the next lesser offense unless they agreed that they have a reasonable doubt of the defendant’s guilt on the more serious charge, they were neither instructed that they must acquit the defendant of the more serious charge before moving to deliberate on the less serious charge nor given a verdict form that would have permitted them to do so.
The state also argues that Blueford waived the argument that the mistrial was declared without manifest necessity by not objecting to the court’s sua sponte declaration of the mistrial when the jury continued to report that it was deadlocked. Further, the trial court could properly declare a mistrial on all of the charges because the Constitution does not require the trial court to take partial verdicts. Finally, the state adds that Blueford’s request for partial verdicts came too late, after several hours of deliberation.
Permitting the state to further prosecute Blueford on the two charges in question threatens core double jeopardy protection. A retrial in this case, in which the prosecution failed to establish the more serious charges altogether, would not only subject Blueford to another trial but would also allow the state to treat the first trial as a dress rehearsal and to improve its case in the second proceeding. Nevertheless, the appropriate resolution of the case under the Court’s double jeopardy jurisprudence is not clear.
One question for the Court is whether Blueford was in fact acquitted. The critical issue is whether the foreperson’s statement that the jury was unanimous that he was not guilty on the two charges was sufficiently formal to constitute an acquittal. The state argues that the jury never finalized a verdict on either of these counts and was free to continue deliberating on those counts until it was discharged, while Blueford counters that the “hard transition” instruction, which the jury clearly followed, precluded the jury from even deliberating on the lesser charge on which it eventually deadlocked unless it first decided that Blueford was not guilty of the more serious charge. Having unanimously agreed on the more serious charges, as instructed, there was no reason for the jury to return to those charges. Nevertheless, the Court is unlikely to conclude that the mere announcement by the jury’s foreperson of its position on the charges without further steps to formalize the verdict – the steps that the defendant requested and the trial court declined to take – should be deemed an acquittal.
Blueford also argues that the proceedings below resulted in an implied acquittal on the greater charges. The Court has held that a jury verdict convicting a defendant only of a lesser included offense implicitly acquits the defendant of the more serious offense on which the jury returned no verdict. However, it seems unlikely that the Court will extend this precedent and hold that a jury’s mere declaration that it is deadlocked on a lesser offense necessarily acts as an implied acquittal on all the greater charges.
The stronger argument for Blueford may be that the trial court should not have declared a mistrial on the charges as to which the jurors agreed and that the mistrial therefore bars further prosecution. Atrial court is required to explore less drastic resolutions before declaring a mistrial and forcing the defendant through a second proceeding on the charges. The entry of a partial verdict on the charges as to which the jury agreed arguably represented a less drastic resolution, supporting the argument that a mistrial on those charges was not manifestly necessary. However, this result would force all jurisdictions to allow the entry of partial verdicts, a procedural option that is not currently available in many states. The Court could conclude that the state’s interest in not taking partial verdicts is sufficient to outweigh Blueford’s interests in being protected against further proceedings.
Finally, Blueford should not be regarded as having consented to the mistrial. If the Court concludes that he did indeed consent to the mistrial, double jeopardy will not bar further prosecution. In this case, Blueford had asked the court to take a partial verdict and had earlier stated that the defense was not requesting a mistrial. His failure to again protest when the court entered the mistrial should not be construed as consent. Only express consent should defeat the defendant’s double jeopardy claim.