Opinion analysis: Retrial does not violate Double Jeopardy Clause
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.
In Blueford v. Arkansas, the Court voted six to three that the Double Jeopardy Clause does not bar retrial when the jury did not formally acquit the defendant and the trial court simply adhered to state law in declining to accept a partial verdict of acquittal and declaring a mistrial. The majority and dissent disagreed on how the state procedure followed in the defendant’s first trial affected the defendant’s double jeopardy protection from being tried twice on the same charges.
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. At trial, the prosecution and defense disputed what had precipitated the child’s fatal injury. The defense sought to show that the injury was accidental, while the prosecution contended that Blueford had thrown the child down on a mattress with such force that it caused the injury and death. Blueford testified to a chain of events that led to the child accidentally hitting his head on a table. In closing, the defense asked the jury to convict Blueford of negligent homicide and acquit him of the three more serious offenses. Both the court and the prosecution emphasized that the jury should consider a lesser charge only after first deciding 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 could not reach a verdict, the trial court brought the jury into the courtroom and asked the foreperson how the jury was divided on each of the charges. 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, was divided on the manslaughter charge, with nine for it and three against, and had not addressed the least serious charge of negligent homicide.
Before the court sent the jury back for further deliberations, each of the parties suggested a procedural response. First, Blueford sought to have the jury return a partial verdict, resolving the counts as to which the jury was in unanimous agreement. The trial court refused, consistent with Arkansas law – which does not allow partial verdicts. Second, the prosecutors suggested that the judge should enter a mistrial, but Blueford’s lawyers countered that they were not asking for a mistrial. When, after a short period of further deliberations (after which the jury again reported it was deadlocked), the court entered a mistrial on all of the charges without inquiring about the division of the jury on the specific charges.
Blueford invoked the Double Jeopardy Clause in an attempt to bar his retrial on capital and first-degree murder; he did not argue that retrial on the two lesser charges was barred. Blueford advanced two lines of argument: first, he contended that the jury had effectively acquitted him of the two most serious charges; and second, he argued that the trial court improperly declared a mistrial on those charges without manifest necessity.
In an opinion written by the Chief Justice, the six-member majority rejected both of these arguments. The Court first addressed the contention that the jury had acquitted the defendant. It is clear that an acquittal raises a double jeopardy bar to further proceedings. The Court has defined an acquittal as a resolution in the defendant’s favor of some or all of the factual elements of the offense. In this case, however, the majority concluded, the jury had not resolved anything. The Court emphasized that, after the foreperson reported the count, the jury was sent back to deliberate further and never again confirmed that the jurors remained in unanimous agreement that the defendant was not guilty of the two most serious charges. Blueford relied on the instructions directing the jury to consider the offenses in order from most serious to least serious and to proceed to the next least serious offense only after reaching unanimous agreement that the defendant was not guilty of the more serious charge. The majority pointed out that the jurors had not been instructed that they could not revisit the more serious charge. Thus, the majority speculated, the jurors may have reconsidered the more serious counts, so the foreperson’s report may not have reflected the final position of the jury after all its deliberations.
Second, the majority addressed Blueford’s argument that the mistrial barred further prosecution. Under double jeopardy jurisprudence, a mistrial does not bar retrial if the trial court has adequate justification for declaring a mistrial – manifest necessity. It is well established that if the jury cannot reach a verdict, manifest necessity exists, the trial court has discretion to declare a mistrial, and double jeopardy will normally not preclude further proceedings on the charges. Blueford argued that because the jury was able to reach a verdict on the two charges, there was no constitutionally sufficient reason to declare a mistrial as to them. Again, the Court disagreed. The majority noted that a trial court has broad discretion to determine when a jury cannot reach a verdict, and it held that the trial court acted within its discretion in refusing to take a partial verdict and declaring a mistrial.
In dissent, Justice Sotomayor, joined by Justices Ginsburg and Kagan, sharply took issue with the majority on both points. She condemned the majority for misapplying double jeopardy principles and allowing the prosecution a “second bite at the apple.” First, she argued that the defendant had won an acquittal that should bar further proceedings on the two most serious charges. Justice Sotomayor read the Court precedent as supporting a less formalistic definition of what constitutes an acquittal. As a result, because Arkansas is “a classic ‘acquittal-first’ or ‘hard-transition’ jurisdiction,” Justice Sotomayor concluded that the foreperson’s report that the jury was unanimously against conviction on the two most serious offenses established that the prosecution had failed to produce sufficient proof on those counts and that the jury had resolved the charges in the defendant’s favor. The jury was not free to reconsider its position on the two counts as to which it had reached unanimity. The jury instructions, the parties’ arguments, and the foreperson’s conversation with the trial court made it clear that the jury understood its obligation to reach unanimous agreement to acquit on a more serious charge before moving on to deliberate on the next charge. The defendant had won an acquittal “in essence.” To the extent that the Arkansas procedure created ambiguity about the jury’s process, that ambiguity must “be resolved in favor of the defendant.”
Second, Justice Sotomayor excoriated the majority for allowing the trial court to terminate the prosecution in a way that deprived the defendant of the favorable verdict reached by the jury. As a result, she would hold “that the Double Jeopardy Clause requires a trial judge, in an acquittal-first jurisdiction, to honor a defendant’s request of a partial verdict before declaring a mistrial on the ground of jury deadlock.” The prosecution in such a jurisdiction benefits from the increased likelihood that the jury will convict on a more serious offense and should not be permitted to “deprive a defendant of the corresponding benefits of having been acquitted.” In this case, the trial court could have inquired about the jury count again before declaring the mistrial. The trial court, confused about the law, did not give adequate consideration to the defendant’s double jeopardy interests, and “unfairly rescue[d]” the prosecution from its weak case. As a result, the dissenting Justices did not regard the mistrial as sufficiently justified to overcome the defendant’s double jeopardy interests.
The Court’s approach to double jeopardy protection leaves states a remarkable degree of latitude to adopt procedures allowing a trial court to abort a trial in which the defendant appears likely to prevail and allowing the prosecution then to retry the defendant on the same charges. The retrial in this case will not only subject Blueford to an additional proceeding but will also allow the state to benefit from the lessons of the first trial and to improve its case in the second proceeding.
Nevertheless, the Court’s decision is not surprising. The majority took a narrow approach to double jeopardy jurisprudence, leaving ample room for states to retain distinctive procedures and trial judges to control procedures within their courtrooms without triggering double jeopardy protection that would disadvantage the prosecution.
Plain English Summary: The Supreme Court held, by a vote of six to three, that the defendant can be tried again on two serious charges even though the jury in the defendant’s first trial unanimously agreed that the defendant was not guilty of those charges. Because the jury could not agree on the other charges in the case, the judge could properly declare a mistrial, requiring the defendant to face a second trial on all charges. The judge was not required to take a partial verdict acquitting the defendant on some of the charges.