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Blueford's explanation for Matthew's death--that Blueford accidentally knocked Matthew to the floor--on the basis of an outdated paper on child head injuries, acknowledging that he was only "vaguely aware" of a more recent, seminal paper that supported Blueford's account.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.