A Failure of Vigilance

The New York Times
In the trial of Alex Blueford, an Arkansas jury voted him not guilty on charges of capital and first-degree murder, but deadlocked on lesser charges. By a 6-to-3 vote last week, the Supreme Court misguidedly ruled that the state can retry him on all charges, including those for murder.

Justice Sonia Sotomayor properly noted in dissent, “the threat to individual freedom from reprosecutions that favor states and unfairly rescue them from weak cases has not waned with time. Only this court’s vigilance has.”

For the majority, Chief Justice John Roberts Jr. wrote that the Constitution’s protection against double jeopardy — trying a defendant twice for the same offense — does not apply in this case. There was “no formal judgment of acquittal” on the murder charges, he said, so there was no “final resolution of anything” that would trigger the bar against double jeopardy.

But Justice Sotomayor rightly explained that the principle of double jeopardy applies when a jury makes a decision for acquittal, and that the form of the acquittal is less important than the substantive determination. In this case, the forewoman announced in open court that the jury had voted unanimously that Mr. Blueford was not guilty of the murder charges. Justice Sotomayor also said that the trial judge should have asked the jury to deliver a partial verdict before declaring a mistrial, as the defendant requested. Chief Justice Roberts said the Supreme Court has “never required” a trial judge to break the impasse of a jury by seeking a partial verdict.

That position ignores a reality of Arkansas law. The jury was instructed to decide the most serious charge first, and then move on to the next charge (in descending order of seriousness) only if it acquitted on the previous charge. The Blueford jury reached an impasse only when it got to the lesser charge of manslaughter; it did not vote on the least serious charge, negligent homicide.

The trial judge, as Justice Sotomayor noted, failed to respect the finality of the jury’s vote to acquit on murder. The court’s majority failed to protect the defendant’s constitutional right to be spared double jeopardy, and instead protected the trial judge’s mistake.