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Supreme Court Takes A Bite Out Of Double Jeopardy

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The Double Jeopardy Clause forbids retrial on a charge that previously resulted in an acquittal. But in Blueford v. Arkansas, the Supreme Court allowed the state to retry a defendant after a jury announced in open court that it had unanmiously rejected murder charges. In 2007, Alex Blueford was accused of killing his girlfriend's young son. The charge of capital murder included three lesser-included offenses: first-degree murder, manslaughter and negligent homicide. Arkansas is an "acquittal-first" jurisdiction, in which a jury may not consider a lesser-included offense unless and until it rejects a more serious offense. In other words, Blueford's jury could not consider the first-degree murder charge unless and until it rejected the capital murder charge, and it could not consider manslaughter unless and until it rejected first-degree murder. When Blueford's jury told the court it could not reach agreement, the forewoman told the judge that it was "unanimous against" capital and first-degree murder, but could not agree on manslaughter or negligent homicide. The judge sent the jury to deliberate further, refusing Blueford's request that the jury be allowed to enter a partial acquittal on the two charges. When the jury announced it was still deadlocked a half-hour later, the court declared a mistrial. When Blueford was re-indicted, for capital and first-degree murder in addition to manslaughter and negligent homicide, he argued that the first two charges were barred by the double jeopardy clause. In a 6-3 decision, the Supreme Court disagreed. Chief Justice Roberts, writing for the majority, held that the jury's announcement that it was "unanimous against" the charges of capital and first-degree murder did not bar a retrail on those charges because "no formal judgment of acquittal was entered," and because the jury could have reconsidered its finding on these charges when it returned to deliberations. He further held that it was not error for the trial court to declare a mistrial without allowing the first jury to enter a partial verdict on capital and first-degree murder. In dissent, Justice Sotomayor wrote that the forewoman's announcement was an "acquittal for double jeopardy purposes," and that requiring entry of a formal judgment exalts form over substance. Moreover, she concluded that the trial court erred in declaring a mistrial without taking a partial verdict. She noted that an acquittal-first instruction increases the likelihood of conviction on a greater offense, and held that requiring a partial verdict in such a case "ensures that the jurisdiction takes the bitter with the sweet."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.