By Tony Mauro

The U.S. Supreme Court took a narrow view of the Constitution’s double jeopardy clause on Thursday, allowing the retrial of an Arkansas man on murder charges even though the jury in his first trial voted unanimously that he was not guilty. 

Chief Justice John Roberts Jr. wrote the decision in the case of Blueford v. Arkansas, prompting a strongly worded dissent from Justice Sonia Sotomayor, who was joined by Justices Ruth Bader Ginsburg and Elena Kagan. 

“This case demonstrates that the threat to individual freedom from re-prosecutions that favor states and unfairly rescue them from weak cases has not waned with time,” wrote Sotomayor. “Only this Court’s vigilance has.” 

The case was based on a fairly unusual sequence of events. Alex Blueford was tried in 2009 on charges of capital murder, first-degree murder, manslaughter and other lesser charges in the death of his girlfriend’s one-year-old son. When the jury reported that it was deadlocked, the judge questioned the forewoman about each charge. She reported verbally that the jury had voted unanimously against the most serious murder charges, but was split 9-3 on the next most serious charge, manslaughter. The jury, heeding instructions to vote in order of “greater to lesser” charges, had not yet voted on a negligent homicide charge. 

The judge sent the jury back for further deliberations, and then denied a defense request that the jury formally record its acquittal on the major charges. A half hour later, the jury said it could not reach a verdict, and the judge declared a mistrial. 

When the state sought to try Blueford again, his lawyers asserted that double jeopardy barred his retrial on capital murder and first-degree murder, because his first jury had effectively acquitted him on those charges. But Arkansas courts ruled that the forewoman’s report did not amount to a formal verdict. Other states have split on the issue. 

The Roberts majority agreed with the Arkansas Supreme Court’s analysis. “The foreperson’s report was not a final resolution of anything,” Roberts said, adding that when the judge sent the jury back for more discussion, it could have revisited the most severe charges and changed its mind. “The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses.” 

Roberts concluded, “The jury did not convict Blueford of any offense, but it did not acquit him of any either … The Double Jeopardy Clause does not stand in the way of a second trial on the same offenses.” 

Sotomayor argued that the different procedures followed by different states in recording verdicts are of “no constitutional significance” and should not obscure the fact that Blueford’s jury acquitted him on the murder charges. The forewoman’s announcement was “an acquittal for double jeopardy purposes.” 

A friend-of-the-court brief filed in the case in support of Arkansas by 23 states argued that differing state verdict procedures deserve deference, and no single federal rule should be imposed. 

Clifford Sloan, a partner at Skadden, Arps, Slate, Meagher & Flom in D.C., who argued the case pro bono for Blueford, declined to comment on the ruling. Elizabeth Wydra, chief counsel of the Constitutional Accountability Center which filed a brief supporting Blueford, praised Sotomayor’s dissent. “As the only former trial court judge on the Supreme Court bench, Justice Sotomayor knows well the threat to individual freedom from giving the prosecution two bites at the apple.”

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