Blueford v. Arkansas: Double Jeopardy on Trial

 

Alex Blueford was charged with killing his girlfriend’s 20-month-old son. The counts were capital murder, first degree murder, manslaughter, and negligent homicide. At trial, Blueford testified that the killing was an accident, and he “reflexively elbowed” the child’s head only after he was startled from behind when the child climbed on him while holding a lit cigarette Blueford had set down. The state, on the other hand, compared the boy’s brain injuries to being dropped off a building.

The state’s medical testimony was hotly contested by the defense. The state’s medical examiner was not board certified, having failed the exam five times. The defense’s board certified physician in anatomical pathology, the head medical examiner for a Colorado county and published in JAMA, testified that the state’s autopsy was so poorly performed as to be useless, and suggested that as a supervisor he would have fired the state’s examiner for his shoddy work.

The jury was given instructions to guide deliberation from one count to the next. These instructions created a hierarchical order of deliberation: only after unanimously agreeing that Blueford did not commit capital murder should the jury consider whether there was first degree murder; only after unanimously ruling out first degree murder should it proceed to manslaughter, etc. The jury apparently was convinced in part by Blueford’s testimony and experts, but indicated that they were deadlocked on the lesser charges.

“Judge: If you have your numbers together… I would like to know what your count was on capital murder.

Jury Foreperson: That was unanimous against that. No.

Judge: Okay, on murder in the first degree?

Foreperson: That was unanimous against that.

Judge: Okay. Manslaughter?

Foreperson: Nine for, three against.

Judge: Okay. And negligent homicide?

Foreperson: We did not vote on that, sir… We couldn’t get past the manslaughter. Were we supposed to go past that? I thought we were supposed to go one at a time.”

The jury was ordered to deliberate further, and Blueford requested that the court submit verdict forms to be completed by the jurors on the counts they had decided upon. The court denied the request, and a short time later, after the jury reported they had not reached a verdict, the court declared a mistrial. The prosecution attempted to re-charge Blueford with capital murder and first degree murder. After Blueford lost his double jeopardy motion in trial court and interlocutory appeal at the Arkansas Supreme Court, the case was accepted this month by the U.S. Supreme Court.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” While a mistrial does not trigger Double Jeopardy when a jury could not decide on a charge, here the jury deliberated and rejected the greater offenses. Does Double Jeopardy prevent the re-trial of a defendant on greater offenses if the jury has deadlocked only on lesser offenses?

Though the majority of states have answered ‘no’ to that question, Arkansas is the first state to have an “acquittal first” or “hard transition” regime, yet still permit retrial on greater offenses. By requiring the jury to consider and absolutely eliminate greater offenses before moving on to lesser offenses, all other “acquittal first” states have found that the structure creates implied partial verdicts on greater offenses by the time lesser offenses are deliberated on, if there is “clear and uncontradicted evidence... that the jury was prepared to render” a partial verdict. If there was no formal jury polling in this case, that is only because the request for verdict forms was denied by the judge. The foreperson announced that the jury was “unanimous against” the greater offenses, in open court, and in front of all of her fellow jurors. And the Supreme Court has found that formal verdict forms are not necessary in all cases, e.g. Green v. United States: when the jury convicts only on lesser charges, there is implied acquittal on greater charges.

Finally, it should be recognized that the “hard transition” system already strongly favors the prosecution by prohibiting juries from first seeking compromise on lesser offenses, and forcing them to start with the greatest offense. Indeed at Blueford’s trial, the prosecutor rejected any implication by the defense that the jury could “just lay everything out here and say, well, we have four choices. Which one does it fit the most?” Instead, the prosecutor insisted, “unless all 12 of you agree that this man’s actions were not consistent with capital murder, then and only then would you go down to murder in the first degree.”

By allowing states to have both the “hard transition” advantage and the ability to re-prosecute on all greater charges, the Court may be creating an incentive for prosecutors to attach many lesser offenses to deadlock juries. This would create a backdoor around the Double Jeopardy rule. The Court wrote in Green that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” That is precisely what the state is doing to Blueford right now. Although the prosecution’s arguments for greater offenses were found lacking by a jury of his peers, he is still subject to another trial on the same rejected charges, and the prosecution has time and opportunity to find more evidence, better witnesses, and create a more compelling case.