Argument recap: Double jeopardy limits on state procedural choices?
The Supreme Court heard arguments Wednesday in Blueford v. Arkansas. The case focuses on the double jeopardy implications of the trial court’s failure to take a partial verdict after the jury foreperson in Blueford’s case announced in open court that the jury had unanimously agreed that Blueford was not guilty of the two most serious offenses but was deadlocked on the lesser offense. Throughout the argument, the Justices struggled to fit the Arkansas procedure and what specifically happened in Blueford’s trial into the framework of double jeopardy analysis. They wrestled with the fact that the jury announcement was not contemplated under Arkansas procedure and was not formalized into a verdict of acquittal. Justices Breyer and Kennedy were particularly concerned that a holding in Blueford’s favor would impose a constitutional requirement that a trial court take a partial verdict, at least once the jury announced its agreement to acquit.
Clifford Sloan, counsel for petitioner Alex Blueford, set out the defense position succinctly, explaining that “the jury foreperson’s announcement that the jury had voted unanimously that Petitioner was not guilty of capital murder and first degree murder has double jeopardy consequences” because, first, it acts as an acquittal, and “second, even if it is not viewed as an acquittal, under this Court’s well established standard, there was not manifest necessity for a second trial on the same murder charges.” For the balance of his allotted time, Sloan made little headway as he was buffeted by questions challenging his characterization of the case.
The Justices did not appear receptive to the argument that the jury report constituted an acquittal for purposes of double jeopardy. Justices Scalia and Kennedy pressed Sloan on whether the foreperson’s report represented the jury’s final decision on the two most serious charges or whether the jury would have been free to revisit those charges when the trial court sent the jury back to attempt to reach a verdict on all the charges. Justice Sotomayor came to Sloan’s assistance, focusing on the nature of the “acquittal first” instructions that directed the jury not to proceed to the less serious offense without first reaching agreement that the defendant was not guilty of the more serious offense. The jury’s continued report that it was still deadlocked, which prompted the declaration of the mistrial, signaled that the jury had not revisited the more serious offenses. The other Justices continued to struggle with the relationship between Arkansas procedure, double jeopardy protection, and the peculiar facts of the case.
Having faced tough going in his argument that Blueford had been acquitted, Sloan moved on to his manifest necessity argument. Justice Alito immediately raised the Arkansas court’s holding that state law does not permit the trial court to take a partial verdict. Sloan responded that the state law must yield to the requirements of double jeopardy. Justice Breyer pressed Sloan to explain why the state could not preclude partial verdicts. Justice Scalia asserted that Blueford’s argument rests on the premise that “there is a constitutional necessity to, to sever the various charges, there is a constitutional necessity to let the jury come in on one charge without coming in on the other” and questioned the constitutional basis for that premise. Sloan repeatedly argued that the case fell at the core of double jeopardy protection, but Justice Kennedy pressed him for a clearer explanation of why an announcement of a jury count that was never formalized as a verdict raised any double jeopardy concerns whatsoever. Justice Breyer invited Sloan to consider the impact of a decision in favor of his client, questioning whether such a ruling would give the criminal defendant a constitutional right to determine whether the jury has reached agreement on some of the charges whenever a jury reports that it is deadlocked. Sloan responded that the defendant would have that right only in a “hard transition” or “acquittal first” state. Justice Sotomayor attempted to bring Sloan back to his core point that once the jury announces an acquittal, the defendant has full double jeopardy protection, even though there is no constitutional right to a pre-verdict report from the jury, and that once the jury announces its agreement to acquit on some charges, there is no manifest necessity to declare a mistrial as to those charges. However, returning to the manifest necessity argument, Chief Justice Roberts emphasized the deference due the trial court on the question of whether to declare a mistrial when a jury reports that it is deadlocked. Sloan argued that the jury was not deadlocked on the charges in question, so the issue was the propriety of declaring a mistrial on charges as to which the jury had reached a decision.
In the final moments of Petitioner’s argument, the Chief Justice asked for clarification on whether the defense had objected to the mistrial. Sloan stressed that “defense counsel had been very explicit” that the defense wanted a mistrial only on the remaining counts and not on those that are before the Court. He further emphasized that the defendant forgoes the manifest necessity argument only if defendant affirmatively consents to or moves for the mistrial – which had not happened in this case.
Dustin McDaniel, Attorney General for the State of Arkansas, argued for the state. His first assertion – that the jury could have revisited the more serious charges – prompted questioning by Justice Kagan. Justice Kagan pointed out, first, that the charges directed the jury to move from most serious to least serious and not to deliberate on the next charge until they reached agreement on the more serious charge; second, that the parties had stressed that procedure in their arguments to the jury in this case; and, third, that the jury reported that it followed the prescribed procedure. McDaniel sought to cast the Arkansas law in a different light, repeatedly arguing that the jury could have proceeded to the less serious charge without first acquitting on the more serious and also stressing that the jury remained free to reconsider all the charges. Toward the end of McDaniel’s argument, Justice Alito asked if the Arkansas procedure required the jury only to arrive at a “reasonably firm” vote on the more serious offense before moving to the less serious offense but left open the possibility to return to the more serious charges. McDaniel responded that this was “precisely correct.” As the argument proceeded, Justice Kagan returned to the clear “acquit first” directions to the jury, while Justice Scalia stressed more than once that nothing prevented the jury from returning to further consideration of the more serious charges. McDaniel emphasized that the jury forms did not include the option of a partial verdict, and that it would have been error under Arkansas law for the trial court to take a partial verdict. The only options under Arkansas law, as stated by Justice Breyer, are “a verdict of guilty of something, a verdict of acquittal of everything” or deadlocked. Both Justices Kagan and Ginsburg pointed out that there was nothing to suggest that the jury had revisited the more serious charges during its final half hour of deliberations, after it had reported its agreement to acquit on the two most serious charges. Justice Sotomayor asked if the state’s position would be different if the jury had reaffirmed its decision on those charges immediately before it was discharged.
Justice Sotomayor also questioned McDaniel about precedent establishing that “the form of the State law judgments doesn’t control” double jeopardy outcomes. Justice Kagan asked why the Court should not make the “reasonable assumption” that the jury had acquitted on the more serious charges, as the court has in cases where the jury convicted the defendant only of the lesser offense and did not return a verdict on the more serious offense. McDaniel stood on the fact that the jury in this case did not reach a verdict. Without a verdict, he argued, there could be no implied acquittal.
The Court clearly divided during McDaniel’s argument between those Justices seeking to reconcile the state procedure with the Constitution and those more sympathetic to the argument that this particular case raised double jeopardy concerns. Overall, however, the tenor and content of the Court’s questions throughout the arguments does not bode well for Blueford.