By Burt Rose
The U.S. Supreme Court has granted a Petition for a Writ of Certiorari in the case of ALEX BLUEFORD, Petitioner v STATE OF ARKANSAS, Respondent, #10-1320, 2011 WL 1595979, 79 USLW 3636, 80 USLW 3016. Blueford sought to prevent his retrial on a pending capital-murder charge because of double-jeopardy protections, asserting that jeopardy attached and prevented his retrial because the jury determined during his trial that he was not guilty of capital murder and its lesser-included offense of first-degree murder. The Arkansas Supreme Court had ruled against the Petitioner: 2011 Ark. 8, 2011 WL 285805. The question presented is whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.
I am not sure that I really understand this case, but I send it out as a meager autumn present to anyone who likes double jeopardy law.
Professor James Strazzella comments:
The rub in the Blueford case is not, it seems, a question of the effect of an express acquittal of a greater offense verdict when the jury is expressly hung on a lesser offense. That answer appears clear under prior Supreme Court case law: Double Jeopardy bars retrial of the greater offense for which there has been an acquittal. See Shellenberger and Strazzella, The Lesser Included Offence and the Constitution, 79 Marq. L. Rev 1, 164-71 (1995). The real problem in Blueford is whether what happened will be constitutionally treated as an “acquittal”: Putting aside a few more procedural twists and turns, the jury (through the foreperson) said it couldn’t reach a verdict; the trial judge orally quizzed the foreperson; the trial judge got the oral answer that the jurors were unanimous in a not-guilty on the greater offense(s) (capital murder and first degree) but hung on the lessers. The judge didn’t enter any formal judgment on that or take a more formal verdict; instead, the trial judge eventually declared an un-objected-to mistrial. The Arkansas Supreme Court concluded, essentially, that the oral statement was not an acquittal under Arkansas law.
I imagine the Supreme Court will decide whether that oral statement to the trial judge by the foreperson — that the jury was unanimously in favor of not guilty on capital murder and first degree murder — was or was not an “acquittal” for purposes of federal Double Jeopardy law. If so, retrial on those crimes will, I think, be barred under earlier S. Ct of the U. S. decisions.
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