By Alex Kreit, associate professor of law and director of the Center for Law and Social Justice at Thomas Jefferson School of Law. Kreit is also the chair of the American Constitution Society’s San Diego Lawyer Chapter.
Tomorrow, the Supreme Court will be hearing oral argument on an unusual double jeopardy issue in Blueford v. Arkansas. Blueford presents the following problem: What happens if a jury orally announces in Court that it has voted “unanimous against” guilt on Charges A and B, is sent back to continue deliberating about lesser-included Charge C without a verdict being entered as to A and B, and finally deadlocks. Can the government retry the defendant on Charges A and B?
The facts of the case are heartbreaking: Blueford’s then live-in girlfriend left her 19-month-old son McFadden in Blueford’s care while she went to run some errands. Soon after, the baby suffered a serious head injury. He was taken to the hospital and died days later. The injury’s cause was hotly contested at trial. The prosecution’s theory — based on expert testimony and evasive conduct by Blueford following the incident — was that Blueford had slammed the child to a mattress on the floor. Blueford testified that the injury resulted from an accident. According to Blueford, McFadden had grabbed hold of a lit cigarette and brought it near Blueford’s face from behind. This startled Blueford and led him to jump, striking McFadden in the process. The defense presented two medical expert witnesses of its own in support of Blueford’s account.
The trial court instructed the jury on capital murder and three lesser-included offenses: first-degree murder, manslaughter, and negligent homicide. The court told the jurors that they should consider the charges one at a time, starting with the most serious. Only if the jury had a “reasonable doubt of the defendant’s guilt on the charge of capital murder” should it go onto to consider the lesser-included offense of first-degree murder, and so on.