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.
During the deliberations, the jury sent a note saying that it could not “agree on any one charge in this case.” In response, the judge brought the jury out and asked the forewoman for the jury’s vote on each charge. The forewoman reported that the jury was “unanimous against” the charges of capital murder and first-degree murder. They were stuck, however, on the manslaughter charge with “[n]ine for, three against” and so were sent back to continue deliberating.
In light of the jury’s report, Blueford’s attorney moved for verdicts of not guilty on the first two charges but the court denied this request. A short time later, the judge brought the jury back to see if they had reached a verdict. When the forewoman reported they had not, the judge declared a mistrial.
Arkansas is now hoping to retry Blueford on the capital and first-degree murder charges.
Distilled down to its essence, the legal arguments in the case are easy to summarize. Blueford contends that the jury’s statement amounted to an acquittal on capital and first-degree murder. Accordingly, the Fifth Amendment’s Double Jeopardy Clause should bar the state from retrying him on those charges. (Blueford does not dispute that he can be retried on the manslaughter and negligent homicide charges.) Arkansas argues that the forewoman’s statement was a “mid-deliberation report” and not a final verdict of acquittal. This position rests on more than “mere formalism,” the state contends, because the jurors could have rethought their positions (and decided to convict on either the capital or first-degree charge) any time before the verdict was final.
Guessing at how the Court might resolve this dispute is much more difficult. Though the Court has addressed the question of what constitutes an acquittal for purposes of double jeopardy in the context of a judge’s ruling, the effect of a jury’s oral report presents a novel problem.
Blueford’s debate about form versus substance and constitutional implications of jury action strikes faint echoes from a recent line of Sixth Amendment cases. In Apprendi and its progeny, splintered Courts struck down various sentencing schemes under which defendants received sentences beyond those authorized by the jury verdict alone on the basis of judge-found facts. The Court determined that this practice was incompatible with the Sixth Amendment right to a jury trial. In holding the mandatory federal sentencing guidelines unconstitutional on this theory, Justice Stevens wrote that the result was one “not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.”
In drawing this comparison, I do not mean to suggest that Apprendi provides any guidance about Blueford in substance. The legal issues in each are quite distinct. Moreover, however the Court decides Blueford, the case does not have the same far-reaching implications for the criminal justice system that Apprendi did.
But, Blueford does call on the Court to wrestle with some similar concepts, broadly speaking. In Apprendi, the Court determined the meaning of a jury’s verdict for purposes of the Sixth Amendment and its relationship to the role of the judge. Blueford presents some of these dynamics — the meaning of a jury’s actions, the scope of a judge’s discretion — in the Double Jeopardy context.
The mix of considerations in the Apprendi line of cases resulted in an unusual grouping of Justices, with Stevens, Scalia, Souter, Thomas, and Ginsburg in the Apprendi majority. Perhaps we will see a strange bedfellows lineup of Justices in Blueford as well.