[Vision2020] A Failure of Vigilance

[Art Deco]

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May 27, 2012
A Failure of Vigilance

In the trial of Alex Blueford, an Arkansas jury
voted<http://www.bloomberglaw.com/public/document/Blueford_v_State_2011_Ark_8_Court_Opinion>him
not guilty on charges of capital and first-degree murder, but
deadlocked on lesser charges. By a 6-to-3 vote
<http://www.nytimes.com/2012/05/25/us/justices-uphold-retrials-even-after-juries-reject-charges.html?_r=1&hp>last
week, the Supreme Court misguidedly
ruled <http://www.supremecourt.gov/opinions/11pdf/10-1320.pdf> 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.




-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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