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Double Jeopardy – Establishing Final Verdict

Alex Blueford v. Arkansas, USSC No. 10-1320, 5/24/12, affirming 2011 Ark. 8

Double Jeopardy doesn’t bar retrial on greater offenses, despite jury foreperson’s report of unanimous votes against those charges, after ensuing deadlock resulted in mistrial.

Blueford’s primary submission is that he cannot be retried for capital and first-degree murder because the jury actually acquitted him of those offenses. See Green v. United States, 355 U. S. 184188 (1957) . The Arkansas Supreme Court noted—and Blueford acknowledges—that no formal judgment of acquittal was entered in his case. But none was necessary, Blueford maintains, because an acquittal is a matter of substance, not form. Quoting from our decision in Martin Linen, supra, at 571, Blueford contends that despite the absence of a formal verdict, a jury’s announcement constitutes an acquittal if it “ ‘actu- ally represents a resolution . . . of some or all of the factual elements of the offense charged.’ ” Brief for Petitioner 21. Here, according to Blueford, the foreperson’s announcement of the jury’s unanimous votes on capital and first-degree murder represented just that: a resolution of some or all of the elements of those offenses in Blueford’s favor.

We disagree. 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. …

That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184 (1957) , and Price v. Georgia, 398 U. S. 323 (1970) . In those cases, we held that the Double Jeopardy Clause is violated when a defendant, tried for a greater offense and convicted of a lesser included offense, is later retried for the greater offense. See Green, supra, at 190; Price, supra, at 329. Blueford argues that the only fact distinguishing his case from Green and Price is that his case involves a deadlock on the lesser included offense, as opposed to a conviction. In his view, that distinction only favors him, because the Double Jeopardy Clause should, if anything, afford greater protection to a defendant who is not found guilty of the lesser included offense.

Blueford’s argument assumes, however, that the votes reported by the foreperson did not change, even though the jury deliberated further after that report. That assumption is unjustified, because the reported votes were, for the reasons noted, not final. Blueford thus overlooks the real distinction between the cases: In Green and Price, the verdict of the jury was a final decision; here, the report of the foreperson was not.

As the dissent points out, “Arkansas is a classic ‘acquittal-first’ or ‘hard-transition’ jurisdiction. See generally People v. Richardson, 184 P. 3d 755, 764, n. 7 (Colo. 2008). Arkansas’ model jury instructions require a jury to complete its deliberations on a greater offense before it may consider a lesser.” (Wisconsin, likewise, see, Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir.1980) (“acquittal first” instruction violates neither due process or right to trial by jury).) That status didn’t matter to the majority; what mattered, instead, was that announcing unanimous agreement in open court didn’t amount to a final verdict. The 3-Justice dissent advocates a different approach:

I would therefore hold that the Double Jeopardy Clause requires a trial judge, in an acquittal-first jurisdiction, to honor a defendant’s request for a partial verdict before declaring a mistrial on the ground of jury deadlock. Courts in acquittal-first jurisdictions have so held. See, e.g., Tate, 256 Conn., at 285–287, 773 A. 2d, at 324–325; Whiteaker v. State, 808 P. 2d 270, 274 (Alaska App. 1991); Stone, 31 Cal. 3d, at 519, 646 P. 2d, at 820; State v. Pugliese, 120 N. H. 728, 730, 422 A. 2d 1319, 1321 (1980) (per curiam); State v. Castrillo, 90 N. M. 608, 611, 566 P. 2d 1146, 1149 (1977); see also N. Y. Crim. Proc. Law Ann. §310.70 (West 2002). Requiring a partial verdict in an acquittal-first jurisdiction ensures that the jurisdiction takes the bitter with the sweet. In general, an acquittal-first instruction increases the likelihood of conviction on a greater offense. See People v. Boettcher, 69 N. Y. 2d 174, 182, 505 N. E. 2d 594, 597 (1987). True, such an instruction may also result in deadlock on a greater, preventing a State “from obtaining a conviction on the lesser charge that would otherwise have been forthcoming and thus require the expense of a retrial.” Tsanas, 572 F. 2d, at 346. But a State willing to incur that expense loses nothing by overcharging in an acquittal-first regime. At worst, the State enjoys a second opportunity to convict, “with the possibility that the earlier ‘trial run’ will strengthen the prosecution’s case.” Crist, 437 U. S., at 52 (Powell, J., dissenting). If a State wants the benefits of requiring a jury to acquit before compromising, it should not be permitted to deprive a defendant of the corresponding benefits of having been acquitted. The Double Jeopardy Clause expressly prohibits that outcome.

And the operative rule in Wisconsin? Take a look at State v. Knight, 143 Wis.2d 408, 416-17, 421 N.W.2d 847 (1988) (with respect to “partial verdicts” on multiple counts), then you’re on your own applying it to a single count:

Generally, in a criminal case a verdict is considered accepted by the court when it is received and announced in open court. Smith v. The State, 51 Wis. 615, 619 (1881); 23A C.J.S. Sec. 1389 (1961); 4 Wharton’s Criminal Procedure sec. 583 (C. Torcia 12 ed. 1976). Jurors are free to reconsider a verdict, even though they have reached agreement with regard to a particular charge or defendant, so long as the verdict has not been accepted by the court. See 3 Wright, Federal Practice and Procedure: Criminal 2d sec. 513 (1982). Similarly, once an otherwise non-defective verdict is delivered to the court for acceptance, the court cannot refuse to accept the verdict because it does not comport with the court’s own opinion of the case. 23A C.J.S. Sec. 1389c; compare State v. Kuenzli, 208 Wis. 340, 343 (1932) (court may not refuse to accept a verdict of “not guilty”) with Westfall v. Kottke, 110 Wis. 2d 86, 328 N.W.2d 481 (1983) (when court receives a verdict which is patently inconsistent, jury should be reinstructed and directed to produce a verdict that conforms to the court’s instructions).

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