Does the Supreme Court Believe in Double Jeopardy Protections?

Alex Blueford was acquitted of first degree murder. Now he may be tried for it again. 



Of all the rock-ribbed beliefs that accompany our understanding of the American legal system, the idea that criminal defendants are free from being tried twice for the same crime -- double jeopardy -- is perhaps the most overstated and misunderstood. The truth is that defendants get tried twice all the time for the same conduct -- in federal court and then state court, for example -- and the constitutional protections of "double jeopardy" we all like to talk about at cocktail parties have been shaved down over and over again by judges eager to aid prosecutors at the expense of defendants.

The latest example of this trend happened front-and-center yesterday at the United States Supreme Court when the justices, by a 6-3 vote, decided to give the state of Arkansas another opportunity to convict of capital murder a man named Alex Blueford. The Court's opinion, written by Chief Justice John Roberts, and the dissent, written by Justice Sonya Sotomayor, are worth reading this holiday weekend for several reasons, not the least of which is that Blueford v. Arkansas offers a relatively brief, accessible glimpse into this corner of the law.


You don't need a legal degree, in other words, to evaluate the justice and injustice of this is case. Blueford was charged with capital murder for the 2007 death of a little boy, one-year-old Matthew McFadden, Jr., who suffered "a severe head injury" while in the care of Blueford, who was Matthew's mother's boyfriend. Arkansas did not seek the death penalty in the case, which defense attorneys portrayed as a tragic accident. The trial was hard fought and here is how Chief Justice Roberts characterized the way in which the trial judge handled jury instructions:

The trial court instructed the jury that the charge of capital murder included three lesser offenses: first-degree murder, manslaughter, and negligent homicide. In addi­tion to describing these offenses, the court addressed the order in which the jury was to consider them: "If you have a reasonable doubt of the defendant's guilt on the charge of capital murder, you will consider the charge of murder in the first degree... If you have a reasonable doubt of the defendant's guilt on the charge of murder in the first degree, you will then consider the charge of manslaugh­ter... If you have a reasonable doubt of the defendant's guilt on the charge of manslaughter, you will then consider the charge of negligent homicide."

Nothing unusual about those instructions. And there was nothing unusual, either, about the fact that Blueford's jury came back into court, after just a few hours of deliberating, to tell the judge that it was "hopelessly deadlocked" on the lesser-included offenses of manslaughter and negligent homicide. Here is how the Supreme Court characterized what happened next when the trial judge asked the Blueford jury for details about the results of its deliberations:

"THE COURT: All right. If you have your numbers together, and I don't want names, but if you have your numbers I would like to know what your count was on capital murder.

"JUROR NUMBER ONE: That was unanimous against that. No.

"THE COURT: Okay, on murder in the first degree?

"JUROR NUMBER ONE: That was unanimous against that.

"THE COURT: Okay. Manslaughter?

"JUROR NUMBER ONE: Nine for, three against.

"THE COURT: Okay. And negligent homicide?

"JUROR NUMBER ONE: We did not vote on that, sir.

"THE COURT: Did not vote on that.

"JUROR NUMBER ONE: No, sir. We couldn't get past the manslaughter. Were we supposed to go past that? I thought we were supposed to go one at a time."

To Chief Justice Roberts and five of his colleagues, this frank exchange between judge and juror did not create double jeopardy protection for Blueford because the trial judge then sent jurors back to deliberate before ultimately declaring a mistrial in the case. When that mistrial was soon thereafter declared, some 31 minutes after the courtroom exchange above, the trial judge curiously did not distinguish between the two charges the jury had resolved in Blueford's favor and the two in which it had deadlocked. The judge didn't ask jurors if they had changed their minds on anything in the interim.

Following the mistrial, Arkansas predictably moved to re-try Blueford. That happens all the time, too, without implicating double jeopardy concerns. But instead of focusing upon the two deadlocked charges, state prosecutors went for the Full Monty, charging the defendant again also for the two more serious charges on which the initial jury had voted to acquit. Blueford challenged this but the Arkansas courts ruled that the colloquy above was insufficient to invoke double jeopardy protection because the jury foreperson was not making "a formal announcement of acquittal."


What's remarkable about the majority's decision in Blueford isn't the result -- this Court has consistently sided with prosecutors over criminal defendants in procedural cases like this. What's remarkable is the extent to which the Chief Justice and his colleagues were willing to read into the trial record all sorts of unsupported assumptions about what the Blueford jury did and did not do in the case. Naturally, for this gang at least, all of the majority's assumptions favored prosecutors while none favored the defendant. Echoing the lower courts, Chief Justice Roberts held:

The foreperson's report was not a final resolution of anything. When the foreperson told the court how the jury had voted on each offense, the jury's deliberations had not yet concluded. The jurors in fact went back to the jury room to deliberate further, even after the foreperson had delivered her report. When they emerged a half hour later, the foreperson stated only that they were unable to reach a verdict. She gave no indication whether it was still the case that all 12 jurors believed Blueford was not guilty of capital or first-degree murder, that 9 of them believed he was guilty of manslaughter, or that a vote had not been taken on negligent homicide. The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses.

This was an unreasonable assumption, Blueford's attorneys had argued, because the trial judge's instructions to the jury (see above) had required it to proceed sequentially from charge to charge. There was nothing to suggest, the defense argued, that jurors went back to argue over the two charges they already had resolved instead of following the judge's instructions to continue to try to resolve the two deadlocked charges. And here is where the Supreme Court's majority truly jumped the shark. Answering this argument, Chief Justice Roberts wrote:

The jurors were never told that once they had a reasonable doubt, they could not rethink the issue. The jury was free to reconsider a greater of­fense, even after considering a lesser one. A simple example illustrates the point. A jury enters the jury room, having just been given these instructions. The foreperson decides that it would make sense to deter­mine the extent of the jurors' agreement before discus­sions begin. Accordingly, she conducts a vote on capital murder, and everyone votes against guilt. She does the same for first-degree murder, and again, everyone votes against guilt. She then calls for a vote on manslaughter, and there is disagreement.

Only then do the jurors engage in a discussion about the circumstances of the crime. While considering the arguments of the other jurors on how the death was caused, one of the jurors starts rethink­ing his own stance on a greater offense. After reflecting on the evidence, he comes to believe that the defendant did knowingly cause the death--satisfying the definition of first-degree murder. At that point, nothing in the instruc­tions prohibits the jury from doing what juries often do: revisit a prior vote. "The very object of the jury system," after all, "is to secure unanimity by a comparison of views, and by arguments among the jurors themselves." Allen, 164 U. S., at 501.

A single juror's change of mind is all it takes to require the jury to reconsider a greater offense. It was therefore possible for Blueford's jury to revisit the offenses of capital and first-degree murder, notwithstand­ing its earlier votes. And because of that possibility, the foreperson's report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses, quite apart from any requirement that a formal verdict be returned or judgment entered (citations omitted).

You follow? The majority simply made up a hypothetical, with no evidence to support it, to eliminate Blueford's double jeopardy protection. The fact that it was theoretically possible that the jury could have changed its mind on the Blueford acquittals (during those 31 minutes of additional deliberations) was enough for Roberts and company to reward prosecutors with a second chance to convict Blueford of capital murder. We've known for decades at the Supreme Court that ties rarely go to criminal defendants. But this was never a tie. The jury forewoman spoke for acquittal. She was clear. And yet her words counted for nothing.


It is significant that the lone former trial judge on the High Court, Justice Sotomayor, wrote the dissent on her own behalf and on behalf of Justices Elena Kagan and Ruth Bader Ginsburg. Alone among her colleagues, her trial experience allowed her to fully understood how far Blueford's trial judge had strayed from common sense and procedural protections for criminal defendants. First, in a footnote, Justice Sotomayor got to the heart of the matter by offering a factual rationale for why the jury would have voted to acquit Blueford of the most serious charges against him:

The jury's acquittals on the murder counts were unsurprising in light of the deficiencies in the State's case. For example, Dr. Adam Craig--the medical examiner who autopsied the victim, Matthew McFadden, Jr., and whose testimony was essential to the State's theory of the crime--was not board certified in anatomical pathology, having failed the certification examination five times. Dr. Craig took only 2 slides of Matthew's brain, not the 10 to 20 called for by prevailing professional standards. He dismissed Blueford's explanation for Matthew's death--that Blueford accidentally knocked Matthew to the floor--on the basis of an outdated paper on child head injuries, acknowledging that he was only "vaguely aware" of a more recent, seminal paper that supported Blueford's account.

Blueford's expert pathologist, Dr. Robert Bux, testified that Dr. Craig's autopsy was inadequate to establish whether Matthew's death was accidental or intentional. And Blueford's expert pediatrician, Dr. John Galaznik, testified that the State's theory--that Blueford slammed Matthew into a mattress on the floor--was "not a likely cause" of the boy's injuries when assessed in view of current medical literature. Even the trial judge observed that the State's proof was "circumstantial at best," and that this was "probably . . . a lesser included offense case." (citations omitted)

This wasn't a rogue jury, in other words, that unreasonably had voted to acquit a murder defendant. This was a jury that had plenty of factual reasons to do so. Next, Justice Sotomayor took head-on the majority's fantasy-jury scenario. She wrote:

Putting to one side the lack of record evidence to support this speculation--by far the more plausible inference is that the jurors spent those 31 minutes attempting to resolve their deadlock on manslaughter--I do not agree that the jury was free to reconsider its decisions when its deliberations resumed. "A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final."

The jury heard instructions and argument that it was required unanimously to acquit on capital and first-degree murder before it could reach manslaughter. And as the forewoman's colloquy makes plain, the jury followed those instructions scrupulously. There is no reason to believe that the jury's vote was anything other than a verdict in substance--that is, a "final collective decision . . . reached after full deliberation, consideration, and compromise among the individual jurors." (citations omitted)

Finally, Justice Sotomayor turned on the hapless trial judge. She wrote:

Even if the Double Jeopardy Clause did not compel that broader rule, the facts of this case confirm that there was no necessity, let alone manifest necessity, for a mistrial. There was no reason for the judge not to have asked the jury, prior to discharge, whether it remained "unanimous against" conviction on capital and first-degree murder. There would have been no intrusion on the jury's delibera­tive process. The judge was not required to issue new instructions or verdict forms, allow new arguments, direct further deliberations, or take any other action that might have threatened to coerce the jury. Merely repeating his earlier question would have sufficed.

Because the judge failed to take even this modest step--or indeed, to explore any alternatives to a mistrial, or even to make an on-the­ record finding of manifest necessity--I conclude that there was an abuse of discretion.


Now that the Supreme Court has allowed state prosecutors to go after Blueford again on all of the initial charges, it's possible that a second jury will see what the first did and acquit him. But it is also possible, especially since prosecutors will be able to buttress the holes in their case this time out, that Blueford will be convicted of capital murder and sentenced to life in prison. For someone who heard the jury acquit him of that charge in open court, that's an astonishing possibility. Almost as astonishing as the Supreme Court having to rely upon a hypothetical to evade recognition of the man's constitutional rights.