"I'll Take Form Over Substance for $800, Trebek": Why Blueford Was Too Rigid and How States Can Properly Provide Double Jeopardy Protection
In August 2009, Arkansas tried Alex Blueford for the murder of a one-year-old child. Blueford was charged with capital murder, which included three lesser offenses: first-degree murder, manslaughter, and negligent homicide. After deliberation, a jury of Blueford’s peers reported to the trial judge that it unanimously opposed the charges of capital and first-degree murder, yet despite the protection offered by the Double Jeopardy Clause of the Fifth Amendment, Arkansas attempted to retry Blueford on those charges. Notwithstanding persuasive arguments from Blueford’s counsel, the Supreme Court held that Blueford was never acquitted of either charge and was therefore not protected from retrial under the Double Jeopardy Clause.
Blueford embodies two distinct yet related propositions. First, the Court held that the jury foreperson’s report that the jury was unanimous in opposing capital and first-degree murder charges did not constitute an acquittal as to those charges. Second, and more crucially, the Court determined that the trial judge was not required to allow the jury to give effect to that unanimous vote—either by issuing partial verdict forms or polling the jury—before finding that “‘circumstances manifest[ed] a necessity’ to declare a mistrial.” In “cases in which the mistrial was justified by ‘manifest necessity,’” the Double Jeopardy Clause does not bar retrial. Accordingly, the Court concluded that the Double Jeopardy Clause did not prevent the state from retrying Alex Blueford, or a similarly situated defendant, for murder.
Critics asserted that the Supreme Court’s decision to give Arkansas a “second shot” at convicting Blueford of murder directly contravened the core principles of the Fifth Amendment’s Double Jeopardy Clause: that the state should not be allowed to repeatedly attempt to convict individuals for the same alleged offense, and that the finality of judgments is of paramount importance to the smooth functioning of the judicial system. So great was the Framers’ fear of this oppressive practice that they expressly protected against it in the Bill of Rights.
Did the Court actually give states the “proverbial second bite at the apple” in violation of the Double Jeopardy Clause or is there more to this case? The discrete issue in Blueford is not so much about interpreting the Double Jeopardy Clause as it is about convoluted jury forms and instructions. Part I of this Note provides an overview of double jeopardy jurisprudence. Part II discusses the Blueford decision and analyzes its strengths and weaknesses, including the Court’s rigid application of past precedent without consideration for the policy behind the Clause or the practical implications of its decision. Part III offers solutions to the problem of the acquittal-first instructions presented in Blueford, including eliminating “convict-on-any-or-acquit-on-all” jury forms and requiring judges to provide partial verdict forms or to poll a jury before declaring a mistrial due to a hung jury.