On Wednesday, February 22, the Supreme Court is scheduled to hear oral argument in Blueford v. Arkansas, an important case concerning the meaning of the Double Jeopardy Clause, likely to have nationwide implications for the rights of criminal defendants and the role of the jury in our constitutional system.  The issue in Blueford goes to the heart of the Double Jeopardy Clause’s guarantee against abuse of power by the government: may the government subject a criminal defendant to a second trial on charges that the jury unanimously rejected simply because the jury deadlocked on other, lesser charges?  The Constitution’s text and history make clear that the answer is no.  The original meaning of the Constitution’s prohibition against double jeopardy prohibits the government, following an acquittal by the jury, from subjecting a defendant to a second trial for the same crime.      

The facts of Blueford are undeniably tragic.  On the morning of November 28, 2007, Alex Blueford was caring for Matthew McFadden, the 20-month old son of Blueford’s girlfriend, as he often did.   During that time, McFadden stopped breathing and eventually died.  At trial, Blueford called McFadden’s death a tragic accident and accepted responsibility for not being as attentive as he should have been, essentially admitting his negligence.  The State, however, argued that Blueford intentionally caused McFadden’s death by slamming the child into a mattress and that the jury should convict Blueford of capital murder, the most serious of the four charges against him.  At trial, the State’s case badly faltered.  The State’s main evidence against Blueford was supplied by the medical examiner who conducted McFadden’s autopsy, but, on cross-examination, the medical examiner admitted that he failed to follow certain protocols in performing the autopsy and had failed to look at McFadden’s entire medical file, including x-rays taken before his death.  The defense emphasized these failings, pointing out that because of the botched autopsy, it was impossible to pinpoint with any degree of reliability the cause of McFadden’s death.    

The jury largely agreed.  During their deliberations, the jury voted to acquit Blueford of charges of capital and first-degree murder, but deadlocked on the lesser-included offense of manslaughter.   As the foreman of the jury explained in open court, the jury was “unanimous against” the charges of capital and first-degree murder, but could not unanimously resolve the manslaughter charge.  Under Arkansas law, the jury cannot proceed to a lesser-included offense unless and until it has voted to acquit the defendant of the more serious charges.  Because of the deadlock on the manslaughter charge, the jury did not consider the least serious of the charges against Blueford, negligent homicide.  The state courts, however, refused to give effect to the jury’s acquittal of Blueford, permitting the state to retry Blueford a second time on the charges the jury had unanimously rejected.   The state courts concluded that, because the jury’s deadlock necessitated a mistrial, Blueford could be tried again on all charges.

Blueford comes to the Supreme Court in the wake of a string of recent cases, most recently this Term’s decision in United States v. Jones, the GPS tracking case, in which the Court has relied on the Constitution’s text and history to give a broad reading to provisions of the Bill of Rights designed to prevent abuse of power by the government.  In cases involving the Fourth Amendment’s guarantee against unreasonable search and seizures, the Fifth Amendment’s Confrontation Clause, and the Sixth Amendment’s guarantee of trial by jury, conservative Justices, most prominently Justice Antonin Scalia and Clarence Thomas, have voted with some or all of the Court’s liberal Justices to vindicate the text and history of the Fourth, Fifth, and Sixth Amendments.  If the Justices follow this approach in Blueford, they should reverse the decision below.

As CAC’s amicus brief in Blueford shows, the Framers wrote the Double Jeopardy Clause to be both a critical guarantee against government overreaching and a structural protection of the right to trial by jury.   The fundamental rule at the core of the Clause was that a jury’s acquittal was final, prohibiting the government from subjecting the defendant to a second trial for the same offense.  Both in England, where William Blackstone celebrated “the universal maxim of the common law of England” that “no man is to be brought in jeopardy of his life more than once,” and at the Founding, it was settled that “[i]f the person was acquitted on the first trial, he ought not to be tried a second time.”  Under these principles, the jury’s acquittal of Blueford prohibits the State from trying him again for the same offense.  Having had its case demolished in Blueford’s first trial, the Double Jeopardy Clause prohibits a second trial.  The government may not have a second bite at the apple to overcome the flaws in its case exposed during the first trial.

Twenty-three States and one territory have joined the State of Arkansas in arguing that Arkansas may try Blueford again for the same offense since, in their view, there was no formal verdict reached.  This argument exalts form over substance and ignores that the Framers included the Double Jeopardy Clause in the Bill of Rights to give the jury the final say over a defendant’s guilt or innocence.  Judges might be predisposed to favor the government, but the Double Jeopardy Clause gives the jury the final, unreviewable power to pronounce the defendant not guilty of the charges, as the jury in Blueford’s case plainly did.   Under core double jeopardy principles, Blueford may not be forced to run the gauntlet a second time for offenses that the jury unanimously, and quite properly, rejected in light of the flaws in the prosecution’s case. 

Had the capital murder and first-degree murder offenses been the only charges sent to the jury at Blueford’s trial, there could be no serious question that, after the jury’s announcement in open court that they had voted unanimously to acquit Blueford on those two charges, the Double Jeopardy Clause would bar the state from retrying him on those offenses.  The result should not be any different simply because, after the jurors told the trial court that they had voted unanimously to acquit Blueford of the more serious charges against him, they had deadlocked on the lesser-included offense of manslaughter.  While the State of Arkansas, of course, may retry Blueford on the charges that the jury did not resolve, the Double Jeopardy Clause protects Blueford from being “subject for the same offence to be twice put in jeopardy,” and forbids a second trial on the more serious charges against him that were unanimously and explicitly rejected by the jury.  

Even by his own account, Mr. Blueford was not a model caretaker for Matthew McFadden the day Matthew died.  But, on his account, credited by a jury of his peers, what happened that day was a tragic accident and prosecutors were overreaching wildly by charging him as if he was a cold-blooded killer.  He should not be put through that again, and he will not be if the Supreme Court honors the text and history of the Constitution’s Double Jeopardy Clause.

Please check back after Wednesday’s argument for our reaction and analysis.