Where a jury states, in open court, that a defendant is not guilty on a greater offense, but then deadlocks on a lesser offense, does the Double Jeopardy Clause bar a retrial of the greater offense?
The State of Arkansas brought charges against Alex Blueford for the murder of 20-month-old Matthew McFadden, Jr. Initially, the forewoman told the court that the jury unanimously agreed that Blueford had not committed capital murder or first-degree murder, but that it was unable to arrive at a verdict on the lesser-included offense of manslaughter, and had not reached the lesser-included offense of negligent homicide. Ultimately, the jury announced that it was deadlocked, and the court declared a mistrial. Blueford moved to prevent retrial of the murder charges, arguing that the jury had acquitted him on those counts. Arkansas contended that there was no acquittal because the hung jury was unable to reach a verdict. The Supreme Court of Arkansas denied Blueford’s motion, and he appealed to the U.S. Supreme Court. Blueford argues that allowing a retrial on all the charges would violate the Constitution’s Double Jeopardy Clause and allow the state to overreach its authority. Arkansas asserts that barring a retrial on the capital and first-degree murder charges would result in a partial verdict, which leads to jury decisions based on compromise and coercion. The Supreme Court's decision will affect the protections defendants receive from the threat of multiple trials, the pressure on juries to reach a conclusive decision, and whether a court must record a verdict before it becomes final.
Questions as Framed for the Court by the Parties
Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars re-prosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.
On November 28, 2007, Petitioner Alex Blueford was watching Matthew McFadden, Jr., his girlfriend's 20-month-old son, in their home. Shortly after Blueford began babysitting, McFadden stopped breathing. He died in the hospital from a closed head injury a few days later. Blueford was charged with capital murder in the death of McFadden, and trial began in the Pulaski County Circuit Court in August 2009. At trial, Blueford claimed that McFadden’s injuries occurred while Blueford was on his bed taking a phone call and McFadden climbed up on the bed. Blueford said he was startled when McFadden waved a lit cigarette near his face, causing him to accidentally hit McFadden in the head and knock him to the floor. While Blueford states that he did not initially recognize that McFadden was harmed, he soon realized something was wrong and tried to revive McFadden. In contrast to Blueford’s testimony, Arkansas’ expert pediatricians and the state medical examiner compared McFadden’s injuries to those from a serious car accident and contended that the injuries were caused by severe, intentional trauma.
The court instructed the jury to consider capital murder, first-degree murder, manslaughter, and negligent homicide, in that order. If the jury doubted Blueford's guilt for the offense under consideration, the court instructed the jury to move on and consider the next, lesser offense. After some deliberation, the jury informed the court that not all jurors could agree on a charge; subsequently, the court gave the jury an Allen instruction to continue deliberating. The jury continued, but felt that they were unable to reach a consensus and again appeared before the court. In explaining the deadlock to the judge, the forewoman stated that the jury was unanimously against charges of capital murder and first-degree murder, and that nine of the twelve jurors were in favor of manslaughter. The forewoman then admitted that the jury had not yet discussed negligent homicide, so the judge asked the jury to continue deliberating. After the jury again reported a deadlock, the judge declared a mistrial.
As a result of the mistrial, another trial was scheduled for March 2010. Prior to retrial, Blueford filed a motion with the circuit court arguing that a retrial of the capital murder and first-degree murder charges was barred by the Fifth Amendment’s Double Jeopardy Clause. Blueford asserted that those charges could not be retried because the jury in the August 2009 trial had acquitted him on the two charges when the forewoman announced, in open court, that the jury was unanimously against convicting him for capital or first-degree murder. The circuit court denied Blueford's motion, holding that there was no acquittal as the jury never finished its deliberations to arrive at a verdict.
Blueford appealed to the Supreme Court of Arkansaswhich affirmed the circuit court's denial of the motion. The supreme court reasoned that a foreperson’s statement in open court does not result in an acquittal, unless their verdict is recorded with the court. The U.S. Supreme Court granted certiorari on October 11, 2011.
The Double Jeopardy Clause prohibits trying a defendant twice for the same offense. The Supreme Court of Arkansas ruled that although the jury foreperson announced that the jury had unanimously voted against finding Blueford guilty of capital and first-degree murder, the announcement was neither a “finding” nor a “verdict” as intended by the law.. Thus, the court ruled that the announcement by the jury foreperson was not an acquittal for purposes of establishing former jeopardy.
Blueford argues that the jury’s statement regarding the murder charges was an express acquittal. He points out that the jury foreperson had clearly stated, in open court, that the jury was unanimously against the charges of capital and first-degree murder. As evidence for this argument, Blueford cites the dual purposes of the Double Jeopardy Clause: the preservation of finality and the limitation of a state’s ability to repeatedly subject a defendant to embarrassment, expense, and anxiety. . In light of those purposes, he argues, the law considers acquittals to be “particular[ly] significan[t]” and assesses them based on substance and not form. . Thus, Blueford contends that the absence of a traditional verdict does not change the finality and weight of an acquittal. . Allowing the state to retry the case despite the unambiguous acquittal, Blueford asserts, would contradict the history and purpose of the Double Jeopardy Clause. He maintains that because the jury resolved some or all of the factual elements for the first two murder charges, its statements must considered its final decision. . Further, Blueford argues there is no reason to doubt the accuracy of the foreperson’s statement because it was the jury’s last statement on the capital and first-degree murder charges.
Arkansas argues that a formal verdict is the only way a jury can makes its determination known; a formal verdict is clear, represents an end to jury deliberations, and cannot ordinarily be reconsidered once accepted. See Brief for Respondent The state contends that a mid-deliberation report by the foreperson does not possess these characteristics, as it lacks clarity and finality. Arkansas points out that the foreperson’s statement to the court was a tentative report of ongoing deliberations and only conveyed the fact that the jury could not reach a consensus on any one charge. The foreperson’s report, the state asserts, was never confirmed to actually reflect the votes of each juror. Furthermore, Arkansas argues, the report was not final because the jury continued to deliberate and the jurors still had the opportunity to revisit and change their earlier votes on the first two charges. The state asserts that the true final report, reflecting the jury’s only decision, was that the jury agreed it could not reach a verdict for Blueford.. Ultimately, Arkansas concludes that the jury report cannot carry the same weight as a formal verdict for Double Jeopardy purposes.
Blueford argues that the court's acquittal-first instructions support that the jury acquitted him of murder. He points out that the trial judge had instructed the jurors “to consider the offenses one at a time, beginning with the greatest offense and proceeding to a lesser offense only if it acquitted the defendant on the greater offense” and argues that there is a well-established presumption that the jury followed these acquittal-first instructions. Thus, Blueford contends, when the jury reported that it had reached a deadlock on the manslaughter charge, it was also reporting that it had acquitted the defendant on the murder charges. . He asserts that the acquittal-first instructions establish that there was no “manifest necessity” to retry him on the murder charges. . The “manifest necessity” requirement recognizes a policy of avoiding multiple trials by preventing the court from subjecting the defendant to another trial absent compelling reasons. . While the jury’s inability to reach a verdict is usually a strong basis for declaring a mistrial, Blueford argues that the acquittal-first instructions establish that the jury had already reached a verdict on the murder charges; therefore, there was no “manifest necessity” for the judge to declare a mistrial regarding the murder charges. .
In contrast, Arkansas argues that acquittal-first jury instructions do not allow defendants to translate deliberation reports into full-fledged acquittals. It asserts that these instructions did not require the jury to “acquit” the defendant of a one charge before moving on to the next—they only required the jury to have a “reasonable doubt of the defendant’s guilt” on the greater charge. This, Arkansas contends, is not the same as asking the jury to “acquit” before deliberating lesser charges. The state further argues that these instructions did not prevent the jury from re-visiting their earlier deliberations or from changing their votes. . Therefore, Arkansas maintains that it is possible that the jury revisited its votes on the murder charges after the mid-deliberation report and decided to re-vote on all of the charges. Accordingly, the state contends that the jury’s report should not be viewed as an acquittal for Double Jeopardy purposes. Arkansas responds to Blueford’s lack of “manifest necessity” claims by asserting that this argument was waived when Blueford did not object to the trial judge’s discharge of the hung jury. By failing to object when the judge declared a mistrial, Arkansas argues that Blueford actually consented to that judgment and should not be permitted to argue that the judge lacked the “manifest necessity” to declare a mistrial.
Blueford contends that since the jury had the opportunity to decide on the murder charges, a retrial of those charges is not permitted. He argues that the Supreme Court has previously held that a conviction on a lesser offense impliedly acquits a defendant of the greater offenses. . Although the jury reached a deadlock instead of convicting him on the lesser charges, Blueford argues that the deadlock actually makes it a stronger case for Double Jeopardy protection because it indicates that some jurors actually voted to acquit on the lesser offense. . It would be ironic, he explains, to give Double Jeopardy protection to defendants convicted of lesser charges but to deny protection to defendants that a jury has trouble convicting.
Arkansas argues that the jury did not implicitly acquit Blueford because there is a difference between a hung jury and one that reaches a verdict.The state first contends the foreperson’s report did not constitute an implicit acquittal, in that the jury was able to resume its deliberations on the murder charges after the report. In contrast, where the jury has convicted a defendant of a lesser charge, the jury has delivered a final verdict by deciding that the defendant was “not guilty” on some charges and “guilty” on one charge. . Arkansas argues that a jury deadlock cannot be equated to a conviction on a lesser charge, because a deadlocked jury has not come to any decision. Thus, the state maintains, because the jury did not deliver any verdict on the lesser charge, it did not implicitly acquit Blueford of the higher charges.
Blueford argues that the Double Jeopardy Clause prevents Arkansas from retrying him on capital and first-degree murder charges because the jury forewoman’s statements in his first trial acquitted him on those charges. Arkansas counters that it is permitted to retry Blueford because the jury in his trial ultimately deadlocked, so they never reached an official verdict on any of the charges. The Supreme Court's decision will affect the burden placed on a jury to reach a conclusive verdict and the possibilities of retrial faced by defendants, and will determine what constitutes a final verdict.
Effects on Jurors from Allowing a Partial Verdict
Arkansas claims that the Supreme Court should not allow partial verdicts because such verdicts can lead to unjust judgments. The state asserts that situational pressures lead to jurors who become tired, frustrated, and upset during jury deliberations. If partial verdicts were allowed, Arkansas argues, jurors would be more likely to compromise or claim deadlock early into the deliberations to escape this stressful environment. Michigan and 22 other states (“States”) support Arkansas, arguing that jurors frequently compromise during deliberations and agree to a lesser charge. See Brief of Amici Curiae . The States assert that because the jurors have has already agreed on the murder charges, asking them to review that decision could lead to compromised verdicts that result from situational pressures. Ultimately, Arkansas contends that a partial verdict is an unnecessary solution to a hung jury—deadlocked juries protect the integrity of the trial system and ensure justice by preventing jurors from being coerced into a verdict.
In contrast, the National Association of Criminal Defense Lawyers (“NACDL”) argues, in support of Blueford, that the Court should allow partial verdicts The NACDL asserts that a defendant's right to protection from multiple trials for the same offense under the Double Jeopardy Clause is more important than the concern for “perceived pressure” on the jury. . Blueford claims that multiple trials on the same charges cause the defendant anxiety and embarrassment, and increase the possibility that an innocent defendant will be found guilty. Partial verdicts, the NACDL argues, can prevent the government from coercing a jury into an unjust judgment by forcing them to reconsider the same charges over and over. Further, the NACDL contends that a partial verdict does not deprive the prosecution of any rights—when the jury has already reached a decision on some charges, the prosecution has exhausted its sole opportunity to win a conviction on those charges.
Effects on Finality of Judgments
The States contend that the foreperson’s in-court announcement does not represent the final verdict of the jury. They claim that the verdict is not final until deliberations are complete, the parties have had a chance to poll the jury, and the jurors are discharged. . Polling, the States claim, confirms that the verdict is not the result of a mistake or coercion and that it accurately reflects the opinion of every juror. They argue that the foreperson’s announcement was only given to update the court on the status of the jury deliberations and was not intended to be considered a final verdict. . Ultimately, the States contend that a “casual declaration” by one member of the jury should not be granted the finality of a verdict.
Blueford argues that the jury’s verdict is final when the foreperson reads it in open court. Otherwise, Blueford contends, the finality of the verdict would be dependent upon its formal recordation by the court. The Constitutional Accountability Center argues that relying on formal recordation for finality would allow prejudiced judges to block a verdict, and thereby prevent double jeopardy from taking effect, by simply not recording the jury’s decision. Further, Blueford claims that if the foreperson’s announcement is not considered to be final, a court could discharge a jury after such an in-court announcement in order to block a final verdict, giving the state a chance to retry its case.
In this case, the Supreme Court will decide whether the Double Jeopardy Clause bars the retrial of murder charges after a jury announced, in a mid-trial report, that it had voted unanimously against guilt on those charges, but ultimately deadlocked. Petitioner Blueford argues that the foreperson’s report both expressly and implicitly acquitted the defendant of murder because, despite lacking the form of a formal verdict, its substance demonstrated that the jury found him to be “not guilty” of murder. In contrast, Arkansas argues that the mid-trial report was neither final nor clear and that nothing in the instructions prevented the jury from reconsidering the murder charges after the mid-trial report. Thus, the state argues, the report was not indicative of any final resolution on the murder charges. Ultimately, the Court’s decision will determine whether a jury’s announcement at the trial court can act as a verdict for the purposes of the Double Jeopardy Clause.
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
- Verdict, Sherry F. Colb, What Purpose Does the Double Jeopardy Clause Serve?: The U.S. Supreme Court Grants Review in Blueford v. Arkansas (Nov. 2, 2011)
- Harvard Law & Policy Review, David Yin, Blueford v. Arkansas: Jeopardy on Trial (Oct. 28, 2011).