The Supreme Court’s recent ruling that an informal jury poll did not rise to the level of an acquittal for double jeopardy purposes didn’t just draw mixed reactions from the justices themselves.
Lawyers are also falling on both sides of the fence, with some expressing fear that the court rolled back defendants’ constitutional rights and others saying the decision comports with current courthouse practices and logic.
“I think this ruling has got to be fairly discouraging to defense attorneys, because this case reflects the problem that arises if the Double Jeopardy Clause is not used to prevent the prosecution from being rescued from a weak case,” said Elizabeth B. Wydra, chief counsel for the Washington-based Constitutional Accountability Center.
But others say that allowing implied acquittals would create a system that is more confusing and unworkable for all parties involved.
“It gets very convoluted and difficult to navigate these cases when a judge takes a partial verdict on the lesser-included offenses,” said Randy Chapman, a criminal defense attorney in Chelsea, Mass.
The case, Blueford v. Arizona, stemmed from the trial of Alex Blueford, who was charged with capital murder in connection with the death of his girlfriend’s 1-year-old child. The jury was instructed to consider the capital murder charge first, and then move to each of the lesser-included charges — first-degree murder, manslaughter and negligent homicide — stopping if they reached a guilty verdict on any charge or acquitted the defendant of all charges.
The jurors deliberated for several hours, but then indicated to the judge that they were having trouble reaching a verdict. When the judge asked the foreperson about the progress the jury had made, the foreperson said that the jury was unanimously against convicting Blueford of capital murder or first-degree murder, but jurors were deadlocked on the charge of negligent homicide.
The court told the jury to continue to deliberate, but after they failed to reach a verdict again, the judge declared a mistrial.
When prosecutors sought a retrial on all counts, Blueford moved to dismiss the two most serious charges, arguing that he’d been acquitted by the jury and therefore a retrial on those counts would be unconstitutional. The trial court rejected the motion and the Arkansas Supreme Court agreed.
In a 6-3 ruling, the U.S. Supreme Court affirmed, holding that the juror’s statements did not have the requisite finality to trigger the Double Jeopardy Clause.
“[T]he jury’s deliberations had not yet concluded,” Chief Justice John G. Roberts, Jr. wrote for the majority. “[T]he fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses.”
But in dissent, Justice Sonia M. Sotomayor said the majority’s opinion “misapplies [the] longstanding principles” of the Double Jeopardy Clause because in “acquittal-first” states such as Arkansas, jurists cannot even begin deliberating a lesser-included offense until they reach a unanimous vote to acquit on the more serious charges.
“In this context, the forewoman’s announcement in open court that the jury was ‘unanimous against’ conviction on capital and first-degree murder … was an acquittal for double jeopardy purposes,” Sotomayor wrote. “[T]hat acquittal cannot be reconsidered without putting [the defendant] twice in jeopardy.”
Wydra said she was disappointed that at least two more justices were not swayed by Sotomayor’s reasoning.
“I think she did a great job in explaining the threat to an individual’s liberty from allowing a state to retry someone on charges that they have been found not guilty on,” Wydra said. “It is as real now as it was when the founders wrote the Double Jeopardy Clause in the Constitution.”
The case also creates a more practical problem for defense attorneys, Wydra said.
“Here, you had a case where the defense did a fantastic job of showing the inadequacy of the state’s case,” Wydra said. “Now the prosecution has the benefit of a trial run to try to plug the holes in [its] case. And now that they have a second bite [at] the apple, the prosecutor will take advantage of the defense attorneys’ work in defending the case.”
But other attorneys said that the ruling didn’t give the prosecution a windfall.
“I think both sides have an opportunity to make adjustments” in a retrial, said Dana A. Curhan, a Boston attorney concentrating in criminal appeals and post-conviction remedies.
Further, the Blueford ruling may have limited impact in state courts, because most jurisdictions frown upon partial verdicts in criminal cases, even when they uphold defendants’ double jeopardy challenges.
For example, in Commonwealth v. Roth, Massachusetts’ highest court ruled that where a judge erroneously took “partial verdicts” on lesser-included offenses within a single indictment, double jeopardy principles precluded retrial of the defendant on the offenses for which the jury rendered verdicts of not guilty.
“In the end, the court said, ‘You know what? Don’t do this. Don’t take a lesser-included verdict,’” Chapman said of Roth.
Lawyers USA is a sister publication of The Daily Record.