# Supreme Court Allows Arkansas Second Shot At Murder Trial In Double Jeopardy Dispute **URL:** \ **Category:** Great Debates\ **Created:** [May 24, 2012, 9:21pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007 "2012-05-24T21:21:55Z")\ **Posts on this page:** 16\ **Page:** 2
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [May 25, 2012, 4:06pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/21 "2012-05-25T16:06:17Z")
> [@ElvisL1ves](#): > > How can the jury announcing a unanimous vote in open court \*not \*constitute delivering a verdict? :dubious: It was NOT in open court, only delivered to the Judge; From the Syllabus: Held: The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder. Pp. 5−10. (a) The jury did not acquit Blueford of capital or first-degree murder. Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor. But the 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. The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued. The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses. That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323. In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not. Pp. 5−8. > [@](#): > > 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. I have never seen/read where a person was charged more than 4 times in a retrial, that would seriously trigger Due Process. After 4 and a hung jury, the govt. is basically estopped from another trial. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 25, 2012, 4:09pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/22 "2012-05-25T16:09:45Z")
> [@AK84](#): > > 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. As well you should be. There’s only two categories of appellate decisions that would mandate this result, both rare, and one amazingly rare. In the majority of cases, the appeals court, if they remand for a new trial, are doing so because some kind of error in the trial court’s proceedings affected the rights of the accused. He was found guilty, yes, but because his rights were violated, we don’tr trust the verdict, so he’s back to being retried. The DJ clause does not prevent this. However, there is one error that can produce this result: an appeal for insufficiency of the evidence. That is, the defendant says, “Look at the record. Here’s every single piece of evidence the jury heard. No reasonable jury could find me guilty on that evidence. They did anyway, yes, but they must have relied on some impermissible evidence or feeling.” The appeals court does not re-weigh the evidence, does not decide for themselves if they think it shows guilt. But they do ask if any reasonable finder of fact could have pointed to specific pieces of evidence that, if believed, establish guilt on each element beyond a reasonable doubt. If they find that no reasonable jury could, then not only is the defendant off the hook, but jeopardy remains an issue, since the state had a chance to prove its case and did not. In effect, the appeals court is saying that as a matter of law, the jury should have acquitted. The second, extremely rare, event is a nebulous “in the interests of justice” exception, where the appeals court says, “It’s just blatantly obvious this is a wrong thing, here.” ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [May 25, 2012, 4:16pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/23 "2012-05-25T16:16:04Z")
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**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 25, 2012, 4:30pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/24 "2012-05-25T16:30:29Z")
> [@lawbuff](#): > > I have never seen/read where a person was charged more than 4 times in a retrial, that would seriously trigger Due Process. After 4 and a hung jury, the govt. is basically estopped from another trial. Not true. As the Supreme Court explained in Wade v. Hunter, there is no “rigid rule” for the determination. Each case must be examined under its own merits. > [@](#): > > There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. I can’t find any federal or Arkansas (or Virginia) case law limiting retrials to four. Can you? ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [May 25, 2012, 4:36pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/25 "2012-05-25T16:36:45Z")
> [@Bricker](#): > > Not true. As the Supreme Court explained in Wade v. Hunter, there is no “rigid rule” for the determination. Each case must be examined under its own merits. That case concerned DJ and retrials. I was speaking of the DP clause of the 14th AM. > [@](#): > > I can’t find any federal or Arkansas (or Virginia) case law limiting retrials to four. Can you? Not without research, but from past research on REtrials, I did come across a case where a person was tried 3 times, and the court forbade a 4th trial on DP grounds, not DJ. But, no, I have never seen a FIXED # in print. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 25, 2012, 4:45pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/26 "2012-05-25T16:45:06Z")
So, if the judge directed the jury to cease deliberating when they were deadlocked only on certain charges, is _that_ not reversible error? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 25, 2012, 5:07pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/27 "2012-05-25T17:07:00Z")
Frankly, if the language we use to describe the law means anything, I cannot see how we can avoid finding that double jeopardy would attach to a retrial on all charges and preclude its going forward. Jeopardy “attached” when the jury was empanelled. Unless they failed to bring in a verdict (or valid grounds were advanced to vacate their verdict), what they decide becomes the proper disposition of the case. We are told they hopelessly deadlocked on the question of guilt for manslaughter, but did agree unanimously on not guilty verdicts for the two more severe charges. Because of that deadlock, a mistrial was decreed. Now, it becomes relevant to observe the standard means whereby jury verdicts are ‘published’ – made known to the court and the outside world. And that is by the judge questioning the jury as to whether they have reached a verdict and if so what it was, and the foreman responding. There were four charges on which the defendant might be convicted, three being “lesser included offenses” of the first, most severe one. On two of those charges, a sworn, empanelled jury of his peers, through their foreman, in response to the judge’s questions, stated that they unanimously found him not guilty of those charges. The fact that they deadlocked and caused a mistrial on the manslaughter charge is irrelevant. He was in jeopardy of life and liberty on four charges and a jury carrying out its instructions properly determined his innoicence of two of those charges. If double jeopardy means anything more than “we don’t want to take up the judge’s time just because the D.A. has a bug up his ass about this case even though it’s already been ruled on,” then it means the defendant was acquitted of the two most severe charges by a jury of his peers and cannot be retried **on those charges**. The mistrial finding means he can be retried on the two charges on which the jury failed to return a verdict. Byut not on the other two. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 25, 2012, 5:14pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/28 "2012-05-25T17:14:03Z")
> [@lawbuff](#): > > That case concerned DJ and retrials. I was speaking of the DP clause of the 14th AM. > > Not without research, but from past research on REtrials, I did come across a case where a person was tried 3 times, and the court forbade a 4th trial on DP grounds, not DJ. > But, no, I have never seen a FIXED # in print. I see. Well, in _State v. Williams_, 51 N.C. App. 613 (1981) , there’s a fourth re-trial permitted. So…? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 25, 2012, 5:17pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/29 "2012-05-25T17:17:03Z")
> [@Really\_Not\_All\_That\_Bright](#): > > So, if the judge directed the jury to cease deliberating when they were deadlocked only on certain charges, is _that_ not reversible error? Well, it’s reviewed for an abuse of discretion, since the decision to declare a mistrial lies within the discretion of the court when the jury is deadlocked. And there’s no requirement he force jurors to continue past any given point… Renico v. Lett. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 25, 2012, 5:19pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/30 "2012-05-25T17:19:31Z")
> [@Polycarp](#): > > We are told they hopelessly deadlocked on the question of guilt for manslaughter, but did agree unanimously on not guilty verdicts for the two more severe charges. Because of that deadlock, a mistrial was decreed. > > Now, it becomes relevant to observe the standard means whereby jury verdicts are ‘published’ – made known to the court and the outside world. And that is by the judge questioning the jury as to whether they have reached a verdict and if so what it was, and the foreman responding. There were four charges on which the defendant might be convicted, three being “lesser included offenses” of the first, most severe one. On two of those charges, a sworn, empanelled jury of his peers, through their foreman, in response to the judge’s questions, stated that they unanimously found him not guilty of those charges. No. The judge simply asked where the decision was at that point. The foreman did not indicate that they had taken a formal vote. The prosecution was denied its right to poll the jury – that is, to ask that each member of the jury independently annoucne his opr her vote. The jury did not state anything. The foreman advised the judge where they were at that stage of deliberation. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [May 25, 2012, 5:26pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/31 "2012-05-25T17:26:10Z")
> [@Bricker](#): > > I see. > > Well, in _State v. Williams_, 51 N.C. App. 613 (1981) , there’s a fourth re-trial permitted. > > So…? So you found one, rare aren’t they? Yes, I said basically estopped after 3 trials, but that from my past research. “Basically” is not in concrete though. Although the case I remember was on DP grounds (??), the majority I have been reading are under DJ. In this case a 4th trial was not permitted on DJ, citing your case later for comparison. > **[Elhannon Jones, Jr., Petitioner-appellant, v. F. Byrd Hogg, Special Judge,...](https://law.justia.com/cases/federal/appellate-courts/F2/732/53/130153/)** > > Elhannon Jones, Jr., Petitioner-appellant, v. F. Byrd Hogg, Special Judge, Perry Circuit Court, Hazard,kentucky, Respondent-appellee, 732 F.2d 53 (6th Cir. 1984) case opinion from the US Court of Appeals for the Sixth Circuit ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [May 25, 2012, 5:43pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/32 "2012-05-25T17:43:06Z")
> [@lawbuff](#): > > In this case a 4th trial was not permitted on DJ, citing your case later for comparison. > > [Elhannon Jones, Jr., Petitioner-appellant, v. F. Byrd Hogg, Special Judge, Perry Circuit Court, Hazard,kentucky, Respondent-appellee, 732 F.2d 53 (6th Cir. 1984) :: Justia](http://law.justia.com/cases/federal/appellate-courts/F2/732/53/130153/) To be exact, it is an appeal of a HC petition the District Court denied, the Appeals court remanded. Whether the DC released the prisoner/defendant after 3 trials and if a 4th trial did take place, I do not know. Can you find out Bricker? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 25, 2012, 5:57pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/33 "2012-05-25T17:57:54Z")
There’s no subsequent history on Westlaw, so I’m guessing not. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [May 25, 2012, 10:10pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/34 "2012-05-25T22:10:15Z")
> [@Bricker](#): > > 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? This is a non-starter, Bricker. If they are unanimous on guilt for first degree murder, for what purpose would they go on deliberating a lesser included? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [May 25, 2012, 10:24pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/35 "2012-05-25T22:24:16Z")
I’m with the dissent on this one. Arkansas is a so-called “acquittal first” state. This means their pattern instructions tell the jury that they must be unanimous on acquittal BEFORE they deliberate a lesser included. It’s the name of the instruction scheme, for goodness sake. As the dissent noted, it is presumed that a jury has followed the court’s instructions. The dissent quoted precedent that a jury’s verdict is a matter of substance, not form. “In ascertaining whether an acquittal has occurred,“form is not to be exalted over substance.” Sanabria v. United States, 437 U. S. 54, 66 (1978). Rather, we ask whether the factfinder has made “a substantive determination that the prosecution has failed to carry its burden.” Smith v. Massachusetts, 543 U. S. 462, 468 (2005).” The substance of an acquittal was given in open court: "When the court summoned the jury again, the jury foreperson reported that the jury was “hopelessly” deadlocked. Ibid. The court asked the foreperson to disclose the jury’s votes on each offense: (exchange ommitted) “Following this exchange, the court gave another Allen instruction and sent the jurors back to the jury room.” (Blueford) The majority argues that the jury somehow should have been reconsidering what it already decided against. This appears unprecedented. The majority makes a big deal that the jury hadn’t formally finished. But under the court’s instructions, they COULDN’T continue on to consider the remaining negligent homicide charge. Since the jury, if it is following the court’s instructions as presumed, cannot consider a lesser included without first acquitting on the greater charge, and that is the substance of the matter, the majority’s opinion seems made up on the spot and ignoring prior precedent. Under this ruling, a court can stop a jury from finishing deliberations if it doesn’t like the way it’s looking the verdict will go, and have a new trial because the deliberations weren’t formally finished. This is precisely the problem the English had foisted on us that gave rise to the DJ clause in the Constitution. I would refuse to allow retrial on Capital Murder or First Degree Murder. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 25, 2012, 11:04pm UTC](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007/36 "2012-05-25T23:04:43Z")
> [@Bricker](#): > > No. The judge simply asked where the decision was at that point. The foreman did not indicate that they had taken a formal vote. The prosecution was denied its right to poll the jury – that is, to ask that each member of the jury independently annoucne his opr her vote. > > The jury did not state anything. The foreman advised the judge where they were at that stage of deliberation. Takea very good look at the asertions of post #35. Presuming them to be, in part, an accurate report of the relevant facts, it appears that according to the process you espouse here, procedure is to triumph over substance, and that justice, far from being the goal to which the law is handmaiden, becomes something coincidentally sometimes arrived at by an assiduous following of legal procedure. [Previous page](https://boards.straightdope.com/t/supreme-court-allows-arkansas-second-shot-at-murder-trial-in-double-jeopardy-dispute/623007.md?page=1)