Posted on 05/24/2012 8:08:26 PM PDT by Olog-hai
Arkansas may retry a man for murder even though jurors in his first trial were unanimous that he was not guilty, the Supreme Court ruled Thursday.
Alex Blueford, who is accused of killing his girlfriend’s 1-year-old son, is not protected by the Constitution’s Double Jeopardy Clause, the court ruled in a 6 to 3 decision.
Because the judge dismissed the jury when it was unable to reach agreement on lesser charges, Blueford was not officially cleared of any of the charges, the majority said, and thus may be retried.
“The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either,” Chief Justice John G. Roberts Jr. wrote.
The decision brought a sharp dissent from Justice Sonia Sotomayor, who was joined by Justices Ruth Bader Ginsburg and Elena Kagan.
“Blueford’s jury had the option to convict him of capital and first-degree murder, but expressly declined to do so,” Sotomayor wrote. “That ought to be the end of the matter.”
The Double Jeopardy Clause is found in the Constitution’s Fifth Amendment and commands that no person shall be “twice put in jeopardy of life or limb” for the same offense. …
(Excerpt) Read more at washingtonpost.com ...
Agreed. I think shotgun charging (in the absence of a non-contradictory theory of the crime that explains each charge independently) needs to go, and that something needs to be done to rein in overcharging as a tactic. If I’m on a jury and I think the prosecutor overcharged as a tactic, the guy walks, for instance. Somewhere between eliminating the incentive and creating a disincentive it’s gonna stop.
Actually, I goofed. The key word is “jeopardy.” You aren’t really in jeopardy until the issue is submitted to the jury. That’s where I’d draw the line. It’s the plain meaning.
And you are correct, it would be a major shift - back to the Founders’ intent!
Yes, I can see how the wise Latina would take that as a binding vote./s
It would tie the hands of the next jury because they would not feel free to ask the judge certain questions during deliberations, lest it be taken as a verdict. The verdict is rendered after all deliberations are completed, minds can be changed, that point was never reached here.
It appears to me that you are a Proceduralist when it comes to Bill of Rights questions rather than an Originalist.
That is fine. That is where we disagree. I take the Constitutional prohibition against double jeopardy a little more literally and more in keeping with the original intent of the framers than you. Apparently you are in the majority.
Up to this point you have not bothered to even address the original intent of the framers in drafting the double jeopardy clause or the historical reasons why the framers felt it was necessary, but then neither did Justice Roberts.
Actually, it has been held in some cases to attach as soon as the prosecutor makes his opening statements. If it didn't, a prosecutor whose witness got caught in a lie could (with a friendly judge) have a "mistrial" declared, giving his witness another chance to get his story straight.
I don't know exactly what arguments were made by the petitioner and respondent in this case, and I recognize that it is bad for the Supreme Court to make binding decisions based upon arguments not presented before the Court. I do wish that the Supreme Court would be willing to dismiss cases without prejudice in cases where the losing side failed to make the best possible arguments and/or explicitly state in its decisions that it is not deciding the merits of potentially-better arguments. In a case like Lawrence v. Texas, for example, the proper ultimate outcome IMHO would most likely have been for the case to be remanded to trial court, with jury instructions requiring the state to prove things that it probably couldn't. A non-activist court could not issue such a remedy, however, without it being presented by a party before it. Given that restriction, the Court should have offered the defendants a chance to seek such a remedy, and given the state a chance to argue why they should not receive it. Had the defendants declined the Court's invitation to present such an argument, the Court should have found against the defendants, explicitly stating that its decision should in no way be construed to imply that it had made a determination on the argument the defendants could have--but refused to--raise.
Returning to the case at hand, the proper argument IMHO should have been that once the prosecutor has begun presenting his case, a defendant may only be retried after a mistrial if either:
The fact that courts have not previously required any jurors to state on record that at least one juror was holding out for conviction does not mean all previous retrials after hung juries were invalid. Such retrials should be presumed valid in cases where the state can reasonably claim that it's likely some jurors would have refused to acquit on the charges for which the defendant is being retried. On the other hand, if jurors have stated in open court that they agreed that the defendant was not guilty of certain charges, such a statement would serve to rebut the state's claim that at least one juror would likely have held out for conviction.
In what way would future juries' hands be tied if there were a requirement that if the state wants to retry a defendant on a particular charge following a hung jury, it must be able to plausibly claim that the jury would have been unlikely to unanimously acquit the defendant for that charge if allowed to do so? The state could easily meed such a burden going forward by having at least one juror to go on record as saying that. Note that the juror(s) going on record would not have to identify themselves (nor anyone in particular) as being the reason that the jury wouldn't acquit. If any juror is holding out for conviction, and if all twelve jurors are honest, the jurors should unanimously agree that there was at least one holding out for conviction. Even if some jurors might dishonestly claim that they were all willing to convict, even a single claim of non-consensus would be inherently self-validating.
Even if states haven't gone through the trouble in previous cases of putting jurors on record as saying that at least one was unwilling to acquit, it's reasonable to presume that--absent evidence to the contrary--hung juries were a result of at least one juror's unwillingness to acquit. In the case at hand, though, there exists evidence to rebut that presumption.
Charging someone with multiple inclusive offenses is entirely reasonable and proper in cases where the criminality of certain actions may be affected by other actions or demonstrable intentions. If someone commits homicide with malice aforethought, that person commits Murder in the First Degree. If someone commits homicide deliberately and without anything resembling a belief that the action was legitimate, but does it without malice aforethought, that person commits Murder in the Second Degree. If the person has a sincere but unreasonable belief that the action was necessary for self-defense, the person commits Manslaughter.
If the state can prove that an accused killer cannot have had any objectively-reasonable basis for believing that his action would be justifiable, and has witnesses that would indicate that defendant had pre-arranged a sham self-defense defense before killing the decedent, the state should be able to charge the defendant with First Degree Murder without having to give up the charge of manslaughter. Among other things, if the state had to give up on a manslaughter charge in order to bring a murder charge, a defendant who was guilty of manslaughter could bait the state into bringing a murder charge with a "witness" who would support the murder charge until brought to the stand but then reveal himself to be absolutely non-credible.
The real problem isn't with "shotgun charging" in cases where the extent of the defendant's criminality may be unclear, but rather outright over-charging by prosecutors seeking a plea-bargain.
*blink*
I guess that’s the it, the fifth doesn’t protect against being put in jeprody of life and limb multiple times OR ensure that eminent domain is a) for public use, and b) paid a fair value.
Question: are such decisions criminal felonies under 18 USC 242 & 241? {Remember, the Supremem Court is *NOT* allowed to modify/alter/amend the Constitution, which is in effect what this & Kelo are.}
It might be that the jury, and the man, has a case against the judge for the felony 18 USC 242 -- Deprivation of rights under color of law.
Bingo.
I think there's a case against the judge via 18 USC 242, but that's my opinion.
And the USSC with 18 USC 241 -- The supreme court *does NOT* have the authority to alter/amend the constitution; this decision is the court destroying what remained of the 5th Amendment.
Don't do that!
Instead read up on 18 USC 241 & 242; and remember that it is your right as a juror to try not only the facts but the law as well.
Plus, if you can get instructions which are contrary to the Constitution (read the bill of rights, and your state's equivalent in its constitution) you can file charges against him. I would *SO* love to bring charges against the courts.
Then explain:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.Obviously the phrase "to be twice put in jeopardy of life or limb" means to be tried twice.
Given those two phrases, I think the whole concept of 'mistrial' (in capital cases. at least) is contrary to the Constitution.
Give your reasoning on why I am wrong.
I'm no lawyer - - I only play one on Free Republic.
That being the case I will defer to the judgment of Scalia, Thomas, Roberts, and Alito. Those guys are really, really good lawyers.
Having not seen the case presented by the accused defendant, I can't say whether the Supreme Court could have reached any other decision without evaluating arguments that were not put before it. Unfortunately, if someone who appears before the Supreme Court fails to make what would have been a winning argument, their loss at the court ends up being effectively binding upon people who were not parties to the case, and who could have presented better arguments.
For the Double Jeopardy rule to have any effective meaning, a retrial after a mistrial should only be allowed when (1) it's likely that the first jury would not have acquitted, even if it had been allowed to do so, or (2) the mistrial was caused by the defense's actions, or (3) the mistrial resulted from unforeseeable circumstances which would not have been prejudiced against the defendant. If the failure of a jury to render an official verdict would be sufficient to declare a mistrial, a hostile judge could declare "mistrial" on any case he thought he would lose.
I generally agree with your reasoned posts on this thread, but that word "likely" is problematic.
FRegards,
LH
The Constitution assumed a legal system modeled after English Common Law; it would have to be much, much, longer if it spelled out in detail all the details thereof, rather than assuming them. If a legal system requires a unanimous "guity" vote to convict and requires more than one "not guilty" for an outright acquittal, there will be an unavoidable possibility of some outcome other than conviction or acquittal. I don't know much about 18th Century Common Law practices, but I believe judges were more insistent than today that jurors deliberate until they reach a unanimous verdict. That having been said, for the Double Jeopardy provisions to really mean anything, the state's ability to declare a mistrial which would permit a retrial must be severely limited. Indeed, I would suggest that--since issues of "reasonableness" aften reset on factual matters, and since defendants have the right to have factual matters determined by jury, a defendant should have the right to have the jury at the retrial be informed of the circumstances surrounding the mistrial, and instructed that they may only convict the defendant on charges where it would appear the previous jury would not have acquitted him. In many cases, the defense would not benefit from such instruction (a jury may not look kindly on a defendant who seems to be fishing for a technicality), but in cases where such presentation and instruction would tip the jury in its favor, it should be allowed to raise it.
What ever happened to the old - think Perry Mason - way of taking verdicts one count at a time?
I.E. On the first count of .... how do you find?
On the second count of .... how do you find?
etc.......
Indeed, such terms can be problematic, and defendants should retain the right to have them evaluated by a jury (see post #97). As applied to the case at hand, however, would seem unlikely that the first jury would have done anything other than acquit on the more serious charges, had they been permitted to do so. Whether or not the first jury had "officially" indicated anything with regard to the more serious charges, I believe both sides in this case have agreed that the jury had clearly indicated that it would have acquitted on those charges if allowed to do so. One cannot reasonably claim that the jury would have been "likely" to do otherwise.
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