Supreme Court Allows Arkansas Second Shot At Murder Trial In Double Jeopardy Dispute

This is an interesting case. The obvious conclusion when reading the headline is that this is a terrible precedent that does away with double jeopardy, but read the article. It’s a complex and subtle situation.

Not being a lawyer, I’m not sure what to make of it.

From the linked article, it appears that the jury never actually returned a verdict. They had the option to convict of any of the offenses charged, or to acquit on all. They did neither, therefore the trial judge declared a mistrial. Both the Arkansas Supreme Court and SCOTUS ruled that the defendant may be retried without violating double jeopardy.

Agreed, though I am a little concerned that the jury was “hopelessly deadlocked” after only a “several hours” in a murder case. Calling a mistrial after “several hours” on a minor charge is ok, but I sure hope the article has its facts wrong about calling it off on a murder charge; days or even weeks of deliberation should be fine on a capital case!

Interesting point. This might open the door for judges to accept a deadlock early in order to take a second shot at getting a more compliant jury.

Seems to me how the jury would have voted is irrelevant - they either reach a verdict or they don’t, and only a delivered acquittal is not subject to review. I gather it wasn’t possible for them to deliver a partial verdict, i.e. “Not guilty on count 1, not guilty on count 2, deadlocked on count 3, etc.” or if it was, the judge was not required to accept such.

I don’t see judges being particularly inclined to try to get a more compliant jury, but I can imagine situations where the attorneys for one side or the other might be quick to move for a mistrial.

I can picture this leading to some revisions in jury instructions regarding “lesser included offenses”, but I’m not seeing the double-jeopardy angle.

Right. A couple states don’t require this, but all others do.

Should be valid under the law (again, unless I’m just faroff here). Multiple charges can be decided separately, barring situations where they must be connected

I thought double jeopardy attached as soon as the jury was empaneled, regardless of whether they reached a verdict?

You can retry after a mistrial, and the ruling appears to be that this is the case here. Since no verdict was returned, they get the option to try again.

I don’t like this ruling, I feel like it goes against the original intent and the spirit of the double jeopardy clause and the first amendment. What is to stop a judge from performing a informal poll of the jury and declaring mistrials on different technicalities if they do not like the result? This jury was, at least according to my brief reading, empanelled and presented with witnesses and evidence, and decided, clearly and unanimously, that the defendant was not guilty of capital and first degree murder. The jury judged the evidence and put the defendant in jeopardy of life and limb for these offences and found the evidence wanting… Yuck.

Bricker, do you have an opinion?

This happened before, I believe, in the Ossian Sweet trial in 1925. The jury couldn’t come up with a verdict, as they were hopelessly deadlocked, then a mistrial was declared.

It may be completely irrelevant.

From my reading of the article and from the comments posted previously, I think the issue revolves around the use of the word decided. The jury never actually rendered a decision.

I believe a mistrial wipes the slate clean and allows recharging the defendant with the original charge. I don’t see the constitutional violation here. Isn’t the defendant constitutionally entitled to a trial, and a verdict? (that was a question, not a statement). If he gets a mistrial, isn’t it as if there was never a trial? It seems that the DA would be rather foolish recharging the capital murder in this case, but I don’t see that that particular matter was adjudicated from a constitutional viewpoint.

It does, but the protection against double jeopardy prevents three things:

A subsequent trial following a guilty verdict;

A subsequent trial following an acquittal;

Multiple punishments imposed as a result of a guilty verdict.

An acquittal or a conviction definitely triggers DJ protection. A mistrial can, but doesn’t have to; the key question is the necessity of the mistrial and the cause for it.

A prosecutor cannot, for example, decide he’s losing and force a mistrial with the intention of getting a better jury in round 2. But a deadlocked jury is well-understood to be a case of necessity – the accused is neither convicted nor acquitted, and the jury cannot complete its task, so it’s necessary to retry the case.


I would say the DA is foolish* not* to retry with the capital murder included. Just because this jury found against it does not meant hat the next jury will. This also lets him know that this is the area he needs to focus harder on in the next trial to overcome the objections this jury had to the charges. Worst that happens is that the second jury also does not convict on them, but they might. Different jury, different viewpoints, different outcome.

I disagree. The jury did no such thing. The foreperson simply reported that this was how the current vote count stood.

Let’s turn it around. Imagine that the foreperson had said, “We’re unanimously against capital murder, unanimously for first degree murder, can’t decide on manslaughter, and haven’t voted on negligent homicide.”

The judge sends them back to continue deliberations, and they come out that evening, saying they have agreed to vote acquittal on all counts.

Can the state demand they be held to the foreperson’s original report of a unanimous vote for first-degree murder?

The prosecutor’s job is not necessarily to secure the most onerous possible conviction. It’s to obtain justice. If he knows that a jury unanimously agreed that the defendant was not guilty of murder in the first, he’s at least wasting the state’s scarce resources by charging it again and probably not doing justice.

How can the jury announcing a unanimous vote in open court *not *constitute delivering a verdict? :dubious:

Anyway, the state would probably be foolish to retry on those counts, given that degree of fail, so there wouldn’t be double jeopardy anyway.

Out of curiosity, on another forum one poster was moat insistant that that DJ clause prohibits a further state appeal to a higher court when the accused is ordered released on appeal after conviction And an appeals court cannot vacate a conviction and remand back as that violates the clause as well.
I was doubtful.

Kinda sorta.

There is a doctrine called “The Law of the Case,” which preserves the in limine rulings from the first trial, so it’s not a totally clean slate.