May 24, 2012

"This case demonstrates that 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." 

So ends the dissenting opinion in Blueford v. Arkansas, written Justice Sotomayor and joined by Justices Ginsburg and Kagan. It's quite an interesting double jeopardy problem, where a mistrial was declared after a report from the jury that there had been a unanimous vote of not guilty on the capital murder charge and the first degree murder charge.

The jury got hung up at the manslaughter charge. As Chief Justice John Roberts wrote for the majority, the jurors were instructed to decide one charge at a time and only to move on to consider the next, lesser charge after they'd found the defendant not guilty on the more serious charge. Roberts writes that despite the report from the jury, mid-deliberation, that revealed that there had been a unanimous not guilty vote on the 2 highest charges, he hadn't been "actually acquitted" of them.
The foreperson’s report was not a final resolution of anything. When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded. The jurors in fact went back to the jury room to deliberate further, even after the foreperson had delivered her report. When they emerged a half hour later, the foreperson stated only that they were unable to reach a verdict. She gave no indication whether it was still the case that all 12 jurors believed Blueford was not guilty of capital or first-degree murder, that 9 of them believed he was guilty of manslaughter, or that a vote had not been taken on negligent homicide. The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses....

But even if we assume that the instructions required a unanimous vote before the jury could consider a lesser offense—as the State assumes for purposes of this case, see Brief for Respondent 25, n. 3—nothing in the instructions prohibited the jury from reconsidering such a vote. The instructions said simply, “If you have a reasonable doubt of the defendant’s guilt on the charge of [the greater offense], you will [then] consider the charge of [the lesser offense].” App. 51–52. The jurors were never told that once they had a reasonable doubt, they could not rethink the issue....

20 comments:

PWS said...

It's interesting to ask: what can criminal defense attorneys do, if anything, to convert a foreperson report into an acquittal?

Maybe nothing b/c the deliberation wasn't over.

I don't care for Roberts and the conservatives, but it seems like this might be the correct result. It probably happens at least sometimes that at one moment in time the jury is unanimous one or way or the other and then shifts.

While the deliberations are in motion, they don't have any meaning.

MadisonMan said...

Maybe they should report back, in stages, as to guilt, and then go back and deliberate the lesser charge. Why couldn't they do that, if they're unanimous about something?

Bender said...
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Bender said...

I was going to say that the lesson to be learned here is if the foreman merely "reports" that the jury has found against certain charges, then insist that it formally return a verdict on those charges and not merely leave it ambiguously open.

However, it appears that that is what defense counsel asked for and it was denied.

The problem was in the initial instructions and submission of verdict forms --
There were four separate forms allowing the jury to convict on each of the charged offenses: capital murder, first-degree murder, manslaughter, and negligent homicide. A fifth form allowed the jury to return a verdict of acquittal, if the jury found Blueford not guilty of any offense. There was no form allowing the jury to acquit on some offenses but not others. As stated in the court’s instructions, the jury could either “find the defendant guilty of one of these offenses” or “acquit him outright.” Id., at 51. Any verdict — whether to convict on one or to acquit on all — had to be unanimous.

Such instructions and biased verdict forms are the problem. The defense should have demanded that each of the forms include BOTH a "guilty" and a "not guilty" option, and not merely four "guilty" forms with a fifth "not guilty" catch-all form.

Rob said...

The real outrage isn't this extraordinarily rare set of facts, it's the Government's ability to get two bites at the apple with consecutive state and federal prosecutions for essentially the same offense. That's what happened with the Rodney King cops, who were acquitted in state court then convicted in federal court for civil rights violations. And it's what's threatened by the DOJ investigation into prosecution of George Zimmerman for civil rights violations.

It would be nice if Justice Sotomayor's concern about "the threat to individual freedom from reprosecutions that favor States and unfairly rescue them from weak cases" would extend to these parallel state and federal prosecutions, but nothing in her dissent suggests that.

David said...

"It would be nice if Justice Sotomayor's concern about "the threat to individual freedom from reprosecutions that favor States and unfairly rescue them from weak cases" would extend to these parallel state and federal prosecutions, but nothing in her dissent suggests that."

Federalism, baby.

This was a Wisconsin bar exam question in 1970. The issue had been settled in the 7th Circuit in a 1969 case, the name of which I was able to remember. Still do, because the poor sucker who was convicted by the feds after a state court acquittal on the same facts and elements of crime was the father of a woman who, many years later, became my girlfriend.

Great girlfriend. Great daughter, who visited her dad twice a month in prison for his entire term.

Richard Dolan said...

The case represents an unfortunate exercise in form triumphing over substance. That happens with some frequency to defendants in criminal cases (the waiver doctrine is often the vehicle of choice); rather less often to prosecutors.

Zach said...

Harsh words for a case in which the jury literally did not return a verdict. Just to ask the most obvious question: could you use this logic to convict someone as well as acquit?

In this case, the jury has received instructions and received forms to fill out to return a verdict. They did not return any forms, because the instructions (and the forms embodying them) were faulty. How is that not a mistrial?

Ken said...
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Bender said...

parallel state and federal prosecutions . . . Federalism, baby

It is more like the oxymoronic illogic of "dual sovereignty."

Ken said...

The real problem is that a prosecutor can prosecute the same crime on multiple levels hoping one of them will stick. SCOTUS decided the case correctly. No actual verdict had been returned, as all are required at the same time.

I disagree with MM's "stages" theory. Charge a man with the crime he committed and you can prove. Not everything and the kitchen sink, hoping one will stick. A single outcome for a single trial. The "stages" theory seems a lot like double jeopardy to me, but so does charging a person with multiple offenses for the same crime.

The multiple prosecution of a single crime looks like a neat trick to prosecute double jeopardy without technically being double jeopardy. And as we all know being technically correct is the best kind of correct.

Zach said...

The case represents an unfortunate exercise in form triumphing over substance.

More than that, I would think. It's the difference between a communication to the Judge and an actual verdict.

Hypothetical situation: a man is on trial for murder and arson. The jury reports that they have decided to convict on arson but are deadlocked on murder. The judge requires them to keep deliberating. After sleeping on it, the jury acquits on both charges. Should the man be sentenced?

Richard Dolan said...

"Just to ask the most obvious question: could you use this logic to convict someone as well as acquit?"

No, because this aspect of the Bill of Rights is intended as a limitation on governmental power. Limitations are the opposite of extensions. The more fundamental point is that legal rules can (often do) function asymetrically.

Richard Dolan said...

"After sleeping on it, the jury acquits on both charges. Should the man be sentenced?"

Yes. Your hypo is the situation in which CJ Roberts' analysis makes sense. Sentencing in that situation upholds the jury's decision; both form and substance require that result. There is no double jeopardy and no reason to question the jury's final decision. The case the Court decided presents a formal report by the jury that they were unanimous in acquitting on several charges but deadlocked on others. Nothing in the record raised an issue about whether the jury later changed its mind, and the trial court pretermitted any such inquiry by declaring a mistrial. It would have been a different case if the jury's final report had been that they were now deadlocked on all counts.

Zach said...

No, because this aspect of the Bill of Rights is intended as a limitation on governmental power.

This is a non sequitur. The government has equal power in both cases. If the jury chooses to convict, the accused is convicted; if the jury chooses to acquit, the accused goes free.

The real limitation on government power is that the government is not allowed to usurp the jury by inferring a verdict that the jury hasn't announced.

Here the jury is literally saying that they have not reached a verdict, and Sotomayer is insisting that they have.

traditionalguy said...

But if the "lesser included offense" is included in the greater offense for which Jury unanimously finds the defendant is not guilty, then the defendant has been put at risk and escaped guilt.

That is easy reasoning. Only if the jury never reported that conclusion, would there have been mistrial possible.

A good analogy is to hanging a man. If the rope breaks and he lives, then it is over forever.

The law still allows for some romantic belief in rescue from the jaws of death. Maybe that comes from a faith in trial by water ordeals where it was believed that God had decided the guilt or innocence of a man.

But for whatever reason, the Double Jeopardy Rule is at the heart of criminal defense, and the Wise Latino nailed it this time.

Worse one I ever saw was the DA reindicting for Perjury when the first jury believed my defendant when he testified under oath that the police eye witness had lied and that he was innocent.

The second jury also acquitted him, so no appeal went up. But we did make the local newspaper headlines since the police had in effect been found to be perjurers, twice.

But after that case my acceptance over at the police station went into a long hibernation.

Although recently one of of the DA's old staff who now sits as a City Judge told a young prosecutor in front of my young client and his parents that if Trad Guy said it, then he believes it. People do remember some things.

Revenant said...

In this case, the prosecutor charged the defendant with four different kinds of murder. It is logically and legally impossible for the defendant to be guilty of more than one of them.

So, question:

If you charge someone with four different crimes, knowing with absolute certainty that he is not guilty of at least three of them (even if you don't know WHICH three), how does that not amount to filing false charges?

The obvious answer is "because prosecutors aren't going to charge themselves with that", but what's the legal rationale for it?

Revenant said...

The real limitation on government power is that the government is not allowed to usurp the jury by inferring a verdict that the jury hasn't announced.

The government is allowed to ignore guilty verdicts reached by juries and unilaterally find people not guilty.

The various jury requirements in the Constitution exist solely to prevent people from being convicted or fined without jury trial. People may still be (and regularly are) set free without juries being consulted.

Andrew Koenig said...

The one time I served on a jury was a criminal trial of two defendants. One of them was easy: The prosecution had no case. The other one was more complicated.

The details don't matter: What matters was that the our initial vote was 8-4 to convict, but we eventually voted unanimously to acquit. Peopld do change their minds during deliberation.

Dante said...

If you want common sense, you need clear bright lines. Leave the grey stuff to the judge's discretion.

I frankly am tired of Jew trying to create perfect law, or rather, perfect debates paid for by taxpayers in a never ending franchise.

If you want citizen jurors, make it clear and simple. I'm not opposed to citizen jurors, since the alternative is tired judges in wigs.