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"<p>This coming term, the U.S. Supreme Court will hear the case of <em>Blueford v. Arkansas</em>.  <em>Blueford</em> raises an important question about the Fifth Amendment double jeopardy guarantee, which provides “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”</p>\n<p>This Clause protects a defendant who has been acquitted on criminal charges from having to stand trial again for the same crime.  The question in <em>Blueford</em> is what happens in the following circumstance:  A defendant’s jury has announced to the judge that it cannot reach a verdict on a lesser included offense, but it has also voted unanimously to find the defendant “Not guilty” of two greater offenses.  (A lesser included offense is a less serious version of another, greater offense.)</p>\n<p>At Blueford’s trial, the judge instructed the jury to deliberate on lesser included offenses <span style=\"text-decoration: underline;\">only after unanimously voting to acquit Blueford</span> on greater offenses.  This meant, for example, that unless and until the jury unanimously voted “Not guilty” on capital murder, it could not even discuss the charge of first-degree murder.  After some jury deliberation, the foreperson reported to the judge that the jurors had all voted “No” on capital murder and first-degree murder (the greater offenses) but were deadlocked on the charge of manslaughter (a lesser included offense) and—as instructed by the judge—did not even begin deliberation on the fourth (and least serious) charge of negligent homicide.</p>\n<p>Denying the defendant’s motion to distribute verdict forms to the jurors and allow the recording of their verdict of acquittal on the two murder charges, the judge declared a mistrial.  The State subsequently initiated a second trial on all charges, including the two murder charges, on which the jury had voted “Not guilty” at the first trial.</p>\n<p>The trial court at the second trial refused to dismiss the murder charges as barred by double jeopardy, a decision that the Arkansas Supreme Court affirmed on an interlocutory appeal (that is, an appeal that occurs during an ongoing case).</p>\n<p>Blueford contended on appeal that the Fifth Amendment Double Jeopardy Clause should have barred the State from trying him again for capital and first-degree murder, because during his first trial, the jury had reached a “Not guilty” verdict on both of these charges.</p>\n<p>However, the Arkansas Supreme Court rejected this claim and concluded that because the first jury’s verdict was never formally reduced to writing and entered of record, the double jeopardy bar had no application to Blueford’s case.</p>\n<p>In this column, I will consider Blueford’s claim in light of the facts of his case and the values that animate the Double Jeopardy Clause.  Acknowledging that the right protected by this Clause carries costs as well as ambiguities that are not always resolved in a defendant’s favor, I will suggest that the approach of Arkansas and several other states to the problem presented by <em>Blueford</em> gives insufficient weight to the meaning and worth of the right against double jeopardy.</p>\n<p><strong>The Instructions of the Judge in the First Trial:  Requiring a “Hard” Transition</strong></p>\n<p>At Blueford’s first trial, the judge issued what are sometimes called “hard transition” instructions.  This means that a judge instructs jurors that in considering greater and lesser charges, they must reach a unanimous decision on the greatest charge before even beginning deliberation on the next greatest charge, and so on with respect to each charge, in order of descending seriousness.</p>\n<p>Under the “soft transition” approach, by contrast, jurors themselves can decide in which order they will consider the offenses at issue and may go back and forth among greater and lesser offenses.</p>\n<p>Under the soft transition approach, suppose Jurors 1-11 voted to convict a defendant of the most serious of several charges presented to them.  Assume, however, that Juror 12 voted for an acquittal on that charge but voted for conviction on the next most serious charge.  Jurors could in those circumstances deliberate together and determine the appropriate verdict.  Juror 12 could change his mind or possibly persuade the others that the lesser charge is more appropriate.</p>\n<p>Soft transition could benefit the defendant in one of two ways:  As noted just above, it would permit one juror to reduce the severity of the outcome to something less than what an overwhelming majority of jurors favored.  Alternatively, soft transition could reduce the odds that eleven jurors would gang up on and pressure the twelfth into voting to convict on the greatest charge (out of an understandable wish on the part of the jurors to avoid an impasse and consequent mistrial).</p>\n<p>Under some circumstances, however, soft transition could help the prosecutor.  A twelfth juror who is sticking to his guns after a “hard transition” instruction could yield a mistrial, by refusing to agree to a conviction on the greatest charge that the other eleven jurors favor, thus creating a deadlock and precluding consideration of other, lesser included, charges.  The “soft transition” instruction, by contrast, allows a guilty verdict to be brokered despite a lack of complete consensus.  Such a verdict could result from compromise among the jurors.</p>\n<p>The difference between the two sets of instructions has important implications for double jeopardy purposes.  A jury that receives a soft transition instruction and reports, “We are hopelessly deadlocked on the manslaughter charge” does not thereby signify an acquittal on the murder charges, because a soft transition jury can lawfully deadlock on more than one charge; here, the jury could have deadlocked on both murder and manslaughter.</p>\n<p>In contrast, the jury that receives a hard transition instruction either convicts or acquits on each charge, proceeding in order of the gravity of the offense, and jurors must stop deliberating after they deadlock just once.</p>\n<p><strong>A Group of Criminal Law Professors’ Outstanding Amicus Brief</strong></p>\n<p>For an outstanding presentation of several doctrinal arguments for holding a retrial unconstitutional in the context of <em>Blueford</em>, I would advise reading <a href=\"http://sblog.s3.amazonaws.com/wp-content/uploads/2011/07/09-26-Blueford-Crim-Law-Prof-Amicus.pdf\" target=\"_blank\">this brief</a> of amicus curiae criminal law professors in support of Blueford’s petition for certiorari, authored primarily by Professor George C. Thomas III of Rutgers Law School in Newark, and Mr. Charles G. Curtis, Jr. of Arnold &amp; Porter in Washington, D.C.</p>\n<p>Existing precedents point strongly in the direction of prohibiting what authors of the brief call “acquittal avoidance,” a practice by which judges declare a mistrial in order to avoid an anticipated acquittal, thus permitting the State to come back with a more persuasive case against the defendant.</p>\n<p>It seems fair to characterize as “acquittal avoidance” the trial judge’s refusal in <em>Blueford</em> to grant the defendant a partial verdict of acquittal on either the capital murder or first-degree murder charges.</p>\n<p>There, the jury received and evidently followed the judge’s instructions to deliberate about a lesser charge only after unanimously rejecting a greater charge.  The jury plainly did not deadlock on the first two charges.  A judge who declares a mistrial on these facts accordingly disregards a jury’s unanimous determination that a defendant is not guilty of an offense.</p>\n<p><strong>The Costs and Limitations of the Double Jeopardy Right</strong></p>\n<p>Before describing the value of having a right against double jeopardy, we can acknowledge that the right has its costs and limitations as well.  Juries are made up of fallible human beings who are capable of error.  Evidence of guilt introduced at trial might, for example, be so powerful that a verdict of “Not guilty” is indisputably wrong.  Jurors can err in the other direction, as well, and convict a person who is obviously innocent.</p>\n<p>For the latter error, there is a remedy:  A prisoner is entitled to a judgment of acquittal from the court, notwithstanding a jury’s verdict of guilty, in the rare event that no rational fact-finder could have concluded that the evidence at trial was sufficient to prove guilt beyond a reasonable doubt.</p>\n<p>When a jury errs in favor of the defendant, however, and acquits in the face of overwhelming evidence of guilt, the judge may not direct a verdict of conviction, because the Sixth Amendment guarantees a right to trial by jury, and such a directed verdict would amount to a compulsory bench trial.</p>\n<p>Without a Double Jeopardy Clause, though, a judge in this situation could conceivably order a mistrial and allow a second jury to remedy an egregiously erroneous acquittal.  When acquittals are in tension with the evidence, it may seem like a major injustice to preclude retrial by a more reasonable jury.  Yet such preclusion is clearly part of the right against double jeopardy.  Guilty people whose guilt has been evidenced beyond any doubt can avoid punishment if a rogue jury decides to vote “Not guilty.”</p>\n<p>In addition to this cost of the Double Jeopardy Clause, it is also true that sometimes, people will be lawfully tried twice for the same offense, without violating that Clause.  If a jury simply cannot reach a verdict because, for example, it is sincerely deadlocked on the charge, then the judge will eventually (and legitimately) declare a mistrial.  In such a case, the prosecution is authorized to bring the same charges against the defendant in a new trial, thus forcing the defendant to endure two separate trials on one charge.  When a judge properly declares a mistrial on a charge, precedent holds that jeopardy on that charge is not “terminated,” and retrial is permissible.</p>\n<p>Similarly, if a defendant is tried and convicted but successfully persuades an appellate court that his trial included reversible error, his remedy in most instances will be the opportunity for another trial on the same charge.  That is, even constitutional error at the first trial, resulting in a conviction, generally does not preclude subjecting the defendant to a whole new trial, a result that can potentially occur several times.</p>\n<p>The Supreme Court has therefore issued rulings that, despite the language of the Double Jeopardy Clause, allow some criminal defendants to experience repeat trials for the same offense.</p>\n<p>That raises an interesting question:  Why shouldn’t the Supreme Court allow courts to retry erroneously decided cases whenever possible, consistent with the Constitution’s text?  Why not limit the application of double jeopardy to those cases in which there is a formal acquittal that has been entered on the record (which, as readers may recall, did not happen at Blueford’s first trial), thereby minimizing the cost articulated above?</p>\n<p><strong>Why the Double Jeopardy Right Has Significant Value, Despite Its Costs</strong></p>\n<p>To respond to this question is to explain why we would want to recognize a double jeopardy right at all.  Why not allow a judge to grant a mistrial, followed by a brand new trial, whenever jurors erroneously—in the judge’s eyes—find a defendant “Not guilty”?</p>\n<p>One answer is that this allowance would empower judges who believe that a given defendant is guilty to keep rejecting successive juries’ contrary determinations, until the judge finds a jury that agrees with her.  Such a practice on a judge’s part would, perhaps, be less blatantly defiant of the jury’s role than simply issuing a “judgment of conviction notwithstanding the verdict.”  Yet the authority to order retrial at will might ultimately amount to the same thing as such a judgment:  Both would equally express a judge’s refusal to accept a jury’s “erroneous” decision to acquit.  If the right to jury trial is important to the integrity of the criminal justice system, then we cannot tolerate repeat mistrials of this sort.</p>\n<p>For similar reasons, a judge who unnecessarily declares preemptive mistrials when no mistrial is warranted could effectively undermine the jury trial right.  Suppose that, whenever a jury seemed poised to declare its (erroneous, by the judge’s lights) vote of “Not guilty,” the judge opted to grant a mistrial.  The judge in <em>Blueford</em>, for example, chose not to issue a verdict of acquittal on capital murder and first-degree murder even after the jury had announced its 12–0 determinations of “Not guilty” on those charges.  The judge decided to act as though the jury had deadlocked on capital and first-degree murder, and thus granted a mistrial that invited re-prosecution on charges that had already been fully tried before a jury that saw fit to vote unanimously for acquittal.</p>\n<p>Double jeopardy, moreover, reflects more than simply a choice to defer to juries over judges.  After all, a defendant might agree to a bench trial at which a judge would decide his guilt or innocence.  Nonetheless, if the judge announced that the defendant was “Not guilty,” the Double Jeopardy Clause would still bar retrial before a jury, regardless of whether an appellate court believed the acquittal was justified by the evidence.</p>\n<p>Readers may wonder, if favoring juries over judges is not the sole key to double jeopardy, what else is?  I believe the answer is that double jeopardy represents a constitutional acknowledgment that enduring a criminal trial causes enormous stress and anxiety that no one should have to bear repeatedly in the absence of “manifest necessity,” a phrase that the Court itself has used in discussing the standard for granting a mistrial.</p>\n<p>As the Court has explained, the “underlying idea” of double jeopardy includes the desire to protect an individual from repeat prosecutions that would “subject[] him to live in a continuing state of anxiety and insecurity.”  The Double Jeopardy Clause thus reflects the judgment that compelling a person to undergo a second criminal trial for an offense is inhumane when there are perfectly acceptable alternatives to retrial.</p>\n<p>Sometimes, of course, there are no good alternatives.  Perhaps a jury has not reached a verdict in either direction, and the State has an interest in trying its case to verdict.  Or maybe a jury has brought back a conviction, but the defendant can show that substantial errors tainted the trial.  In neither of these cases has a jury indicated in any way that it views an acquittal to have been warranted.  Either the jury simply could not decide, or the defense took issue with something about the process by which the jury affirmatively <span style=\"text-decoration: underline;\">rejected</span> the option of acquittal.</p>\n<p>In Blueford’s case, by contrast to these examples, there was a straightforward alternative to retrial on the two murder counts:  The judge could have recognized the jury’s unanimous determination that the defendant was “Not guilty” of murder by issuing a partial verdict of acquittal on the capital murder and first-degree murder charges alone.  The State would then have remained free to try the defendant again, on the residual charges of manslaughter and negligent homicide.  For the latter charges, there is no adequate alternative to a second trial, because the jury in the first trial reached no conclusions.  Blueford has already endured trial on the murder charges and persuaded a jury of his peers to find him not guilty.  On these two charges, a jury has thus spoken, and Blueford is entitled to have his need for closure met.  The Double Jeopardy Clause wisely incorporates that entitlement, and the Supreme Court should decide the case accordingly.</p>\n<div class=\"powerpress_player\" id=\"powerpress_player_5699\"><audio class=\"wp-audio-shortcode\" id=\"audio-6510-2\" preload=\"none\" style=\"width: 100%;\" controls=\"controls\"><source type=\"audio/mpeg\" src=\"http://verdict.justia.com/wp-content/uploads/2011/11/colb_20111102.mp3?_=2\" /><a href=\"http://verdict.justia.com/wp-content/uploads/2011/11/colb_20111102.mp3\">http://verdict.justia.com/wp-content/uploads/2011/11/colb_20111102.mp3</a></audio></div><p class=\"powerpress_links powerpress_links_mp3\">Podcast: <a href=\"http://verdict.justia.com/wp-content/uploads/2011/11/colb_20111102.mp3\" class=\"powerpress_link_pinw\" target=\"_blank\" title=\"Play in new window\" onclick=\"return 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