BLUEFORD v. ARKANSAS

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1320

_________________

ALEX BLUEFORD, PETITIONER v. ARKANSAS

on writ of certiorari to the supreme court of arkansas

[May 24, 2012]

Chief Justice Roberts delivered the opinion of the Court.

The Double Jeopardy Clause protects against being tried twice for the same offense. The Clause does not, however, bar a second trial if the first ended in a mistrial. Before the jury concluded deliberations in this case, it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. All agree that the defendant may be retried on charges of manslaughter and negligent homicide. The question is whether he may also be retried on charges of capital and first-degree murder.

I

One-year-old Matthew McFadden, Jr., suffered a severe head injury on November 28, 2007, while home with his mother’s boyfriend, Alex Blueford. Despite treatment at a hospital, McFadden died a few days later.

The State of Arkansas charged Blueford with capital murder, but waived the death penalty. The State’s theory at trial was that Blueford had injured McFadden intentionally, causing the boy’s death “[u]nder circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. §5–10–101(a)(9)(A) (Supp. 2011). The defense, in contrast, portrayed the death as the result of Blueford accidentally knocking McFadden onto the ground.

The trial court instructed the jury that the charge of capital murder included three lesser offenses: first-degree murder, manslaughter, and negligent homicide. In addition to describing these offenses, the court addressed the order in which the jury was to consider them: “If you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will consider the charge of murder in the first degree. . . . If you have a reasonable doubt of the defendant’s guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter. . . . If you have a reasonable doubt of the defendant’s guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.” App. 51–52.

The prosecution commented on these instructions in its closing argument. It told the jury, for example, that “before you can consider a lesser included of capital murder, you must first, all 12, vote that this man is not guilty of capital murder.” Id., at 55. The prosecution explained that this was “not a situation where you just lay everything out here and say, well, we have four choices. Which one does it fit the most?” Id., at 59. Rather, the prosecution emphasized, “unless all 12 of you agree that this man’s actions were not consistent with capital murder, then and only then would you go down to murder in the first degree.” Ibid.

After the parties concluded their arguments, the court presented the jury with a set of five verdict forms, each representing a possible verdict. There were four separate forms allowing the jury to convict on each of the charged offenses: capital murder, first-degree murder, manslaughter, and negligent homicide. A fifth form allowed the jury to return a verdict of acquittal, if the jury found Blueford not guilty of any offense. There was no form allowing the jury to acquit on some offenses but not others. As stated in the court’s instructions, the jury could either “find the defendant guilty of one of these offenses” or “acquit him outright.” Id., at 51. Any verdict—whether to convict on one or to acquit on all—had to be unanimous.

A few hours after beginning its deliberations, the jury sent the court a note asking “what happens if we cannot agree on a charge at all.” Id., at 62. The court called the jury back into the courtroom and issued a so-called “Allen instruction,” emphasizing the importance of reaching a verdict. See Allen v. United States, 164 U. S. 492 –502 (1896). The jury then deliberated for a half hour more before sending out a second note, stating that it “cannot agree on any one charge in this case.” App. 64. 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:

“THE COURT: All right. If you have your numbers together, and I don’t want names, but if you have your numbers I would like to know what your count was on capital murder.

“JUROR NUMBER ONE: That was unanimous against that. No.

“THE COURT: Okay, on murder in the first degree?

“JUROR NUMBER ONE: That was unanimous against that.

“THE COURT: Okay. Manslaughter?

“JUROR NUMBER ONE: Nine for, three against.

“THE COURT: Okay. And negligent homicide?

“JUROR NUMBER ONE: We did not vote on that, sir.

“THE COURT: Did not vote on that.

“JUROR NUMBER ONE: No, sir. We couldn’t get past the manslaughter. Were we supposed to go past that? I thought we were supposed to go one at a time.” Id., at 64–65.

Following this exchange, the court gave another Allen instruction and sent the jurors back to the jury room. After deliberations resumed, Blueford’s counsel asked the court to submit new verdict forms to the jurors, to be completed “for those counts that they have reached a verdict on.” Id., at 67. The prosecution objected on the grounds that the jury was “still deliberating” and that a verdict of acquittal had to be “all or nothing.” Id., at 68. The court denied Blueford’s request. To allow for a partial verdict, the court explained, would be “like changing horses in the middle of the stream,” given that the jury had already received instructions and verdict forms. Ibid. The court informed counsel that it would declare a mistrial “if the jury doesn’t make a decision.” Id., at 69.

When the jury returned a half hour later, the foreperson stated that they had not reached a verdict. The court declared a mistrial and discharged the jury.

The State subsequently sought to retry Blueford. He moved to dismiss the capital and first-degree murder charges on double jeopardy grounds, citing the foreperson’s report that the jurors had voted unanimously against guilt on those offenses. The trial court denied the motion, and the Supreme Court of Arkansas affirmed on interlocutory appeal. According to the State Supreme Court, the foreperson’s report had no effect on the State’s ability to retry Blueford, because the foreperson “was not making a formal announcement of acquittal” when she disclosed the jury’s votes. 2011 Ark. 8, p. 9, ___ S. W. 3d ___, ___. This was not a case, the court observed, “where a formal verdict was announced or entered of record.” Ibid. The court added that the trial court did not err in denying Blueford’s request for new verdict forms that would have allowed the jury to render a partial verdict on the charges of capital and first-degree murder.

Blueford sought review in this Court, and we granted certiorari. 565 U. S. ___ (2011).

II

The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Amdt. 5. The Clause “guarantees that the State shall not be permitted to make repeated attempts to convict the accused, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” United States v. Martin Linen Supply Co., 430 U. S. 564, 569 (1977) (internal quotation marks omitted).

Blueford contends that the foreperson’s report means that he cannot be tried again on charges of capital and first-degree murder. According to Blueford, the Double Jeopardy Clause prohibits a second trial on those charges, for two reasons.

A

Blueford’s primary submission is that he cannot be retried for capital and first-degree murder because the jury actually acquitted him of those offenses. See Green v. United States, 355 U. S. 184, 188 (1957) . The Arkansas Supreme Court noted—and Blueford acknowledges—that no formal judgment of acquittal was entered in his case. But none was necessary, Blueford maintains, because an acquittal is a matter of substance, not form. Quoting from our decision in Martin Linen, supra, at 571, Blueford contends that despite the absence of a formal verdict, a jury’s announcement constitutes an acquittal if it “ ‘actually represents a resolution . . . of some or all of the factual elements of the offense charged.’ ” Brief for Petitioner 21. Here, according to Blueford, the foreperson’s announcement of the jury’s unanimous votes on capital and first-degree murder represented just that: a resolution of some or all of the elements of those offenses in Blueford’s favor.

We disagree. The foreperson’s 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, even after the foreperson had delivered her report. When they emerged a half hour later, the foreperson stated only that they were unable to reach a verdict. She gave no indication whether it was still the case that all 12 jurors believed Blueford was not guilty of capital or first-degree murder, that 9 of them believed he was guilty of manslaughter, or that a vote had not been taken on negligent homicide. The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses.

Blueford maintains, however, that any possibility that the jurors revisited the murder offenses was foreclosed by the instructions given to the jury. Those instructions, he contends, not only required the jury to consider the offenses in order, from greater to lesser, but also prevented it from transitioning from one offense to the next without unanimously—and definitively—resolving the greater offense in his favor. “A jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U. S. 225, 234 (2000) . So, Blueford says, the foreperson’s report that the jury was deadlocked on manslaughter necessarily establishes that the jury had acquitted Blueford of the greater offenses of capital and first-degree murder.

But even if we assume that the instructions required a unanimous vote before the jury could consider a lesser offense—as the State assumes for purposes of this case, see Brief for Respondent 25, n. 3—nothing in the instructions prohibited the jury from reconsidering such a vote. The instructions said simply, “If you have a reasonable doubt of the defendant’s guilt on the charge of [the greater offense], you will [then] consider the charge of [the lesser offense].” App. 51–52. The jurors were never told that once they had a reasonable doubt, they could not rethink the issue. The jury was free to reconsider a greater offense, even after considering a lesser one. 1

A simple example illustrates the point. A jury enters the jury room, having just been given these instructions. The foreperson decides that it would make sense to determine the extent of the jurors’ agreement before discussions begin. Accordingly, she conducts a vote on capital murder, and everyone votes against guilt. She does the same for first-degree murder, and again, everyone votes against guilt. She then calls for a vote on manslaughter, and there is disagreement. Only then do the jurors engage in a discussion about the circumstances of the crime. While considering the arguments of the other jurors on how the death was caused, one of the jurors starts rethinking his own stance on a greater offense. After reflecting on the evidence, he comes to believe that the defendant did knowingly cause the death—satisfying the definition of first-degree murder. At that point, nothing in the instructions prohibits the jury from doing what juries often do: revisit a prior vote. “The very object of the jury system,” after all, “is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Allen, 164 U. S., at 501. A single juror’s change of mind is all it takes to require the jury to reconsider a greater offense.

It was therefore possible for Blueford’s jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes. And because of that possibility, the foreperson’s report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses, quite apart from any requirement that a formal verdict be returned or judgment entered.

That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184 (1957) , and Price v. Georgia, 398 U. S. 323 (1970) . In those cases, we held that the Double Jeopardy Clause is violated when a defendant, tried for a greater offense and convicted of a lesser included offense, is later retried for the greater offense. See Green, supra, at 190; Price, supra, at 329. Blueford argues that the only fact distinguishing his case from Green and Price is that his case involves a deadlock on the lesser included offense, as opposed to a conviction. In his view, that distinction only favors him, because the Double Jeopardy Clause should, if anything, afford greater protection to a defendant who is not found guilty of the lesser included offense.

Blueford’s argument assumes, however, that the votes reported by the foreperson did not change, even though the jury deliberated further after that report. That assumption is unjustified, because the reported votes were, for the reasons noted, not final. Blueford thus overlooks the real distinction between the cases: In Green and Price, the verdict of the jury was a final decision; here, the report of the foreperson was not.

B

Blueford maintains that even if the jury did not acquit him of capital and first-degree murder, a second trial on those offenses would nonetheless violate the Double Jeopardy Clause, because the trial court’s declaration of a mistrial was improper. Blueford acknowledges that a trial can be discontinued without barring a subsequent one for the same offense when “particular circumstances manifest a necessity” to declare a mistrial. Wade v. Hunter, 336 U. S. 684, 690 (1949) ; see also United States v. Perez, 9 Wheat. 579, 580 (1824). He also acknowledges that the trial court’s reason for declaring a mistrial here—that the jury was unable to reach a verdict—has long been considered the “classic basis” establishing such a necessity. Arizona v. Washington, 434 U. S. 497, 509 (1978) . Blueford therefore accepts that a second trial on manslaughter and negligent homicide would pose no double jeopardy problem. He contends, however, that there was no necessity for a mistrial on capital and first-degree murder, given the foreperson’s report that the jury had voted unanimously against guilt on those charges. According to Blueford, the court at that time should have taken “some action,” whether through partial verdict forms or other means, to allow the jury to give effect to those votes, and then considered a mistrial only as to the remaining charges. Reply Brief for Petitioner 11, n. 8.

We reject that suggestion. We have never required a trial court, before declaring a mistrial because of a hung jury, to consider any particular means of breaking the impasse—let alone to consider giving the jury new options for a verdict. See Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 8). 2 As permitted under Arkansas law, the jury’s options in this case were limited to two: either convict on one of the offenses, or acquit on all. The instructions explained those options in plain terms, and the verdict forms likewise contemplated no other outcome. There were separate forms to convict on each of the possible offenses, but there was only one form to acquit, and it was to acquit on all of them. When the foreperson disclosed the jury’s votes on capital and first-degree murder, the trial court did not abuse its discretion by refusing to add another option—that of acquitting on some offenses but not others. That, however, is precisely the relief Blueford seeks—relief the Double Jeopardy Clause does not afford him.

*  *  *

The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either. When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the Double Jeopardy Clause does not stand in the way of a second trial on the same offenses.

The judgment of the Supreme Court of Arkansas is

Affirmed.

__________________________________

1  In reaching a contrary conclusion, post, at 6 (opinion of Sotomayor, J.), the dissent construes the jury instructions to “require a jury to complete its deliberations on a greater offense before it may consider a lesser,” post, at 3 (emphasis added). But no such requirement can be found in the text of the instructions themselves. And the dissent’s attempt to glean such a requirement from the Arkansas Supreme Court’s decision in Hughes v. State, 347 Ark. 696, 66 S. W. 3d 645 (2002), is unavailing, for that decision nowhere addresses the issue here—whether a jury can reconsider a greater offense after considering a lesser one.

2  Finding our reliance on Renico “perplexing,” the dissent reads that decision to have “little to say about a trial judge’s responsibilities, or this Court’s, on direct review.” Post, at 10–11, n. 4. But Renico’s discussion of the applicable legal principles concerns just that, and the dissent in any event does not dispute that we have never required a trial court to consider any particular means of breaking a jury impasse.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1320

_________________

ALEX BLUEFORD, PETITIONER v. ARKANSAS

on writ of certiorari to the supreme court of arkansas

[May 24, 2012]

Justice Sotomayor, with whom Justice Ginsburg and Justice Kagan join, dissenting.

The Double Jeopardy Clause “unequivocally prohibits a second trial following an acquittal.” Arizona v. Washington, 434 U. S. 497, 503 (1978) . To implement this rule, our cases have articulated two principles. First, an acquittal occurs if a jury’s decision, “whatever its label, actually rep-resents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977) . Sec-ond, a trial judge may not defeat a defendant’s entitlement to “the verdict of a tribunal he might believe to be favorably disposed to his fate” by declaring a mistrial before deliberations end, absent a defendant’s consent or a “ ‘manifest necessity’ ” to do so. United States v. Jorn, 400 U. S. 470, 486, 481 (1971) (plurality opinion) (quoting United States v. Perez, 9 Wheat. 579, 580 (1824)).

Today’s decision misapplies these longstanding prin-ciples. The Court holds that petitioner Alex Blueford was not acquitted of capital or first-degree murder, even though the forewoman of the Arkansas jury empaneled to try him announced in open court that the jury was “unanimous against” convicting Blueford of those crimes. Nor, the Court concludes, did the Double Jeopardy Clause oblige the trial judge to take any action to give effect to the jury’s unambiguous decision before declaring a mistrial as to those offenses. The Court thus grants the State what the Constitution withholds: “the proverbial ‘second bite at the apple.’ ” Burks v. United States, 437 U. S. 1, 17 (1978) .

I respectfully dissent.

I A

The bar on retrials following acquittals is “the most fundamental rule in the history of double jeopardy jurisprudence.” Martin Linen, 430 U. S., at 571; see, e.g., United States v. Ball, 163 U. S. 662, 671 (1896) ; 4 W. Blackstone, Commentaries on the Laws of England 329 (1769). This prohibition stops the State, “with all its resources and power,” from mounting abusive, harassing reprosecutions, Green v. United States, 355 U. S. 184, 187 (1957) , which subject a defendant to “embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent,” United States v. DiFrancesco, 449 U. S. 117, 136 (1980) .

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) . Ju-risdictions have different procedures respecting the announcement of verdicts and the entry of judgments, but that diversity has no constitutional significance. Jeopardy terminates upon a determination, however characterized, that the “evidence is insufficient” to prove a defendant’s “factual guilt.” Smalis v. Pennsylvania, 476 U. S. 140, 144 (1986) . Thus, we have treated as acquittals a trial judge’s directed verdict of not guilty, Smith, 543 U. S., at 468; an appellate reversal of a conviction for insufficiency of the evidence, Burks, 437 U. S., at 10; and, most pertinent here, a jury’s announcement of a not guilty verdict that was “not followed by any judgment,” Ball, 163 U. S., at 671.

A straightforward application of that principle suffices to decide this case. Arkansas is a classic “acquittal-first” or “hard-transition” jurisdiction. See generally People v. Richardson, 184 P. 3d 755, 764, n. 7 (Colo. 2008). Arkansas’ model jury instructions require a jury to complete its deliberations on a greater offense before it may consider a lesser. 1 Ark. Model Jury Instr., Crim., No. 302 (2d ed. 1994). As a matter of Arkansas law, “[b]efore it may consider any lesser-included offense, the jury must first determine that the proof is insufficient to convict on the greater offense. Thus, the jury must, in essence, acquit the defendant of the greater offense before considering his or her guilt on the lesser-included offense.” Hughes v. State, 347 Ark. 696, 706–707, 66 S. W. 3d 645, 651 (2002). 1

Here, the trial judge instructed Blueford’s jury to consider the offenses in order, from the charged offense of capital murder to the lesser included offenses of first-degree murder, manslaughter, and negligent homicide. The judge told the jury to proceed past capital murder only upon a unanimous finding of a “reasonable doubt” as to that offense—that is, upon an acquittal. See In re Winship, 397 U. S. 358, 363 (1970) . The State’s closing arguments repeated this directive: “[B]efore you can consider a lesser included of capital murder, you must first, all 12, vote that this man is not guilty of capital murder.” App. 55. And the forewoman’s colloquy with the judge leaves no doubt that the jury understood the instructions to mandate unanimous acquittal on a greater offense as a prerequisite to consideration of a lesser: The forewoman reported that the jury had not voted on negligent homicide because the jurors “couldn’t get past the manslaughter” count on which they were deadlocked. Id., at 65.

In this context, the forewoman’s announcement in open court that the jury was “unanimous against” conviction on capital and first-degree murder, id., at 64–65, was an acquittal for double jeopardy purposes. 2 Per Arkansas law, the jury’s determination of reasonable doubt as to those offenses was an acquittal “in essence.” Hughes, 347 Ark., at 707, 66 S. W. 3d, at 651. By deciding that the State “had failed to come forward with sufficient proof,” the jury resolved the charges of capital and first-degree murder adversely to the State. Burks, 437 U. S., at 10. That acquittal cannot be reconsidered without putting Blueford twice in jeopardy.

Green and Price v. Georgia, 398 U. S. 323 (1970) , bolster that conclusion. In Green, the jury convicted the defendant on the lesser included offense of second-degree murder without returning a verdict on the charged offense of first-degree murder. This Court concluded that this result was an “implicit acquittal” on the greater offense of first-degree murder, barring retrial. 355 U. S., at 190. The defendant “was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter.” Ibid.; see also Price, 398 U. S., at 329 (“[T]his Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge” (footnote omitted)). Notably, Green acknowledged that its finding of an “implicit acquittal” was an “assumption,” because the jury had made no express statement with respect to the greater offense. 355 U. S., at 190–191.

Blueford’s position is even stronger because his jury was not silent on the murder counts, but announced that it was “unanimous against” conviction. And the trial judge specifically instructed the jury to consider manslaughter only after acquitting Blueford of the murder counts. Courts in several acquittal-first jurisdictions have held that a jury’s deadlock on a lesser included offense justifies the assumption that the jury acquitted on any greater offenses. See State v. Tate, 256 Conn. 262, 283–285, 773 A. 2d. 308, 323–324 (2001); Stone v. Superior Ct. of San Diego Cty., 31 Cal. 3d 503, 511–512, n. 5, 646 P. 2d 809, 815, n. 5 (1982). That assumption is not even necessary here because the jury unmistakably announced acquittal.

B

The majority holds that the forewoman’s announcement was not an acquittal because it “was not a final resolution of anything.” Ante, at 6. In the majority’s view, the jury might have revisited its decisions on the murder counts during the 31 minutes of deliberations that followed the forewoman’s announcement. We cannot know whether the jury did so, the majority reasons, because the jury was discharged without confirming that it remained “unanimous against” convicting Blueford of capital and first-degree murder. Ante, at 6–8. 3

Putting to one side the lack of record evidence to support this speculation—by far the more plausible inference is that the jurors spent those 31 minutes attempting to resolve their deadlock on manslaughter—I do not agree that the jury was free to reconsider its decisions when its deliberations resumed. “A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final.” Bullington v. Missouri, 451 U. S. 430, 445 (1981) . The jury heard instructions and argument that it was required unanimously to acquit on capital and first-degree murder before it could reach manslaughter. And as the forewoman’s colloquy makes plain, the jury followed those instructions scrupulously. There is no reason to believe that the jury’s vote was anything other than a verdict in substance—that is, a “final collective decision . . . reached after full deliberation, consideration, and compromise among the individual jurors.” Harrison v. Gillespie, 640 F. 3d 888, 906 (CA9 2011) (en banc). And when that decision was announced in open court, it became entitled to full double jeopardy protection. See, e.g., Commonwealth v. Roth, 437 Mass. 777, 796, 776 N. E. 2d 437, 450–451 (2002) (declining to give effect to “ ‘ “the verdict received from the lips of the foreman in open court” ’ ” would “elevate form over substance”); Stone, 31 Cal. 3d, at 511, 646 P. 2d, at 814–815 (“[I]n determining what verdict, if any, a jury intended to return, the oral declaration of the jurors endorsing the result is the true return of the verdict” (internal quotation marks omitted)); see also, e.g., Dixon v. State, 29 Ark. 165, 171 (1874) (technical defect in verdict “is of no consequence whatever, for the verdict need not be in writing, but may be announced by the foreman of the jury orally”); State v. Mills, 19 Ark. 476 (1858) (“The verdict was of no validity until delivered, by the jury, in Court”).

The majority’s example of a jury that takes a preliminary vote on greater offenses, advances to the consideration of a lesser, and then returns to a greater, is inapposite. See ante, at 7. In the majority’s example, the jury has not announced its vote in open court. Moreover, the instructions in this case did not contemplate that the jury’s deliberations could take the course that the majority imagines. Arkansas’ model instruction requires acquittal as a prerequisite to consideration of a lesser offense, and the Double Jeopardy Clause entitles an acquittal to final-ity. Indeed, the purpose of an acquittal-first instruction is to ensure careful and conclusive deliberation on a greater offense. See United States v. Tsanas, 572 F. 2d 340, 346 (CA2 1978) (Friendly, J.) (acquittal-first instruction avoids “the danger that the jury will not adequately discharge its duties with respect to the greater offense, and instead will move too quickly to the lesser”). True, Arkansas’ instruction does not expressly forbid reconsideration, but it does not expressly permit reconsideration either. In any event, nothing indicates that the jury’s announced decisions were tentative, compromises, or mere steps en route to a final verdict, and the Double Jeopardy Clause demands that ambiguity be resolved in favor of the defendant. See Downum v. United States, 372 U. S. 734, 738 (1963) .

The fact that the jury was not given the express option of acquitting on individual offenses is irrelevant. See ante, at 3, 9. Arkansas law ascribes no significance to the presence of such options on a verdict form. See Rowland v. State, 263 Ark. 77, 85, 562 S. W. 2d 590, 594 (1978) (“The jury may prepare and present its own form of verdict”). The lack of a state procedural vehicle for the entry of a judgment of acquittal does not prevent the recognition of an acquittal for constitutional purposes. See Hudson v. Louisiana, 450 U. S. 40, 41, n. 1 (1981) .

Finally, the majority’s distinction of Green and Price is unavailing. The majority observes that Green and Price, unlike this case, involved final decisions. Ante, at 8. As I have explained, I view the forewoman’s announcements of acquittal in this case as similarly final. In any event, Green clarified that the defendant’s “claim of former jeopardy” was “not based on his previous conviction for second degree murder but instead on the original jury’s refusal to convict him of first degree murder.” 355 U. S., at 190, n. 11; accord, id., at 194, n. 14. That is, the jury’s silence on the greater offense spoke with sufficient clarity to justify the assumption of acquittal and to invoke the Double Jeopardy Clause. Id., at 191; see also Price, 398 U. S., at 329. In light of the forewoman’s announcement, this is an a fortiori case.

In short, the Double Jeopardy Clause demands an inquiry into the substance of the jury’s actions. Blueford’s jury had the option to convict him of capital and first-degree murder, but expressly declined to do so. That ought to be the end of the matter.

II A

Even if the majority were correct that the jury might have reconsidered an acquitted count—a doubtful assumption for the reasons just explained—that would not defeat Blueford’s double jeopardy claim. It “has been long established as an integral part of double jeopardy jurisprudence” that “a defendant could be put in jeopardy even in a prosecution that did not culminate in a conviction or an acquittal.” Crist v. Bretz, 437 U. S. 28, 34 (1978) . This rule evolved in response to the “abhorrent” practice under the Stuart monarchs of terminating prosecutions, and thereby evading the bar on retrials, when it appeared that the Crown’s proof might be insufficient. Washington, 434 U. S., at 507; see, e.g., Ireland’s Case, 7 How. St. Tr. 79, 120 (1678). Accordingly, retrial is barred if a jury is discharged before returning a verdict unless the defendant consents or there is a “manifest necessity” for the discharge. Perez, 9 Wheat., at 580; see also King v. Perkins, 90 Eng. Rep. 1122 (K. B. 1698).

In Perez, this Court explained that “manifest necessity” is a high bar: “[T]he power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” 9 Wheat., at 580. Since Perez, this Court has not relaxed the showing required. See, e.g., Washington, 434 U. S., at 506 (requiring a “ ‘high degree’ ” of necessity); Downum, 372 U. S., at 736 (“imperious necessity”); see also, e.g., United States v. Coolidge, 25 F. Cas. 622, 623 (No. 14,858) (CC Mass. 1815) (Story, J.) (“extraordinary and striking circumstances”). Before de-claring a mistrial, therefore, a trial judge must weigh heavily a “defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U. S. 684, 689 (1949) . And in light of the historical abuses against which the Double Jeopardy Clause guards, a trial judge must tread with special care where a mistrial would “help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused.” Gori v. United States, 367 U. S. 364, 369 (1961) ; see Green, 355 U. S., at 188.

A jury’s genuine inability to reach a verdict constitutes manifest necessity. But in an acquittal-first jurisdiction, a jury that advances to the consideration of a lesser included offense has not demonstrated an inability to decide a de-fendant’s guilt or innocence on a greater—it has acquitted on the greater. Under Green, that is unquestionably true if the jury convicts on the lesser. See id., at 189. It would be anomalous if the Double Jeopardy Clause offered less protection to a defendant whose jury has deadlocked on the lesser and thus convicted of nothing at all. See Stone, 31 Cal. 3d, at 511–512, n. 5, 646 P. 2d, at 815, n. 5.

I would therefore hold that the Double Jeopardy Clause requires a trial judge, in an acquittal-first jurisdiction, to honor a defendant’s request for a partial verdict before declaring a mistrial on the ground of jury deadlock. Courts in acquittal-first jurisdictions have so held. See, e.g., Tate, 256 Conn., at 285–287, 773 A. 2d, at 324–325; Whiteaker v. State, 808 P. 2d 270, 274 (Alaska App. 1991); Stone, 31 Cal. 3d, at 519, 646 P. 2d, at 820; State v. Pugliese, 120 N. H. 728, 730, 422 A. 2d 1319, 1321 (1980) (per curiam); State v. Castrillo, 90 N. M. 608, 611, 566 P. 2d 1146, 1149 (1977); see also N. Y. Crim. Proc. Law Ann. §310.70 (West 2002). Requiring a partial verdict in an acquittal-first jurisdiction ensures that the jurisdiction takes the bitter with the sweet. In general, an acquittal-first instruction increases the likelihood of conviction on a greater offense. See People v. Boettcher, 69 N. Y. 2d 174, 182, 505 N. E. 2d 594, 597 (1987). True, such an instruction may also result in deadlock on a greater, preventing a State “from obtaining a conviction on the lesser charge that would otherwise have been forthcoming and thus require the expense of a retrial.” Tsanas, 572 F. 2d, at 346. But a State willing to incur that expense loses nothing by overcharging in an acquittal-first regime. At worst, the State enjoys a second opportunity to convict, “with the possibility that the earlier ‘trial run’ will strengthen the prosecution’s case.” Crist, 437 U. S., at 52 (Powell, J., dissenting). If a State wants the benefits of requiring a jury to acquit before compromising, it should not be permitted to deprive a defendant of the corresponding benefits of having been acquitted. The Double Jeopardy Clause expressly prohibits that outcome.

The majority observes that we “have never required a trial court, before declaring a mistrial because of a hung jury, to consider any particular means of breaking the impasse—let alone to consider giving the jury new options for a verdict.” Ante, at 10 (citing Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 8)). That hands-off approach dilutes Perez beyond recognition. This Court has never excused a trial judge from exercising “scrupulous” care before discharging a jury. Jorn, 400 U. S., at 485 (plural-ity opinion). Rather, we have insisted that a trial judge may not act “irrationally,” “irresponsibly,” or “precipi-tately.” Washington, 434 U. S., at 514–515. Nor have we retreated from the rule that “reviewing courts have an obligation to ensure themselves that . . . the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Id., at 514 (quoting Perez, 9 Wheat., at 580). 4

B

Even if the Double Jeopardy Clause did not compel that broader rule, the facts of this case confirm that there was no necessity, let alone manifest necessity, for a mistrial. There was no reason for the judge not to have asked the jury, prior to discharge, whether it remained “unanimous against” conviction on capital and first-degree murder. There would have been no intrusion on the jury’s deliberative process. The judge was not required to issue new instructions or verdict forms, allow new arguments, direct further deliberations, or take any other action that might have threatened to coerce the jury. Merely repeating his earlier question would have sufficed. Because the judge failed to take even this modest step—or indeed, to explore any alternatives to a mistrial, or even to make an on-the-record finding of manifest necessity—I conclude that there was an abuse of discretion. See, e.g., id., at 486; see also Washington, 434 U. S., at 525 (Marshall, J., dissenting) (manifest necessity requires showing “that there were no meaningful and practical alternatives to a mistrial, or that the trial court scrupulously considered available alter-natives and found all wanting but a termination of the proceedings”).

Indeed, the only reason I can divine for the judge’s failure to take this modest step is his misperception of Arkansas law with respect to the transitional instruction. After the colloquy with the forewoman, the judge commented at sidebar that the jurors “haven’t even taken a vote on [negligent homicide]. . . . I don’t think they’ve completed their deliberation. . . . I mean, under any reasonable circumstances, they would at least take a vote on negligent homicide.” App. 65–66. And after the jury retired for the last half-hour of deliberations, the judge said, “I don’t think they have an understanding of really that they don’t have to get past every charge unanimously before they can move to the next charge.” Id., at 69. That misstated Arkansas law as well as the judge’s own instructions. The jury was required to reach a unanimous decision on a greater offense before considering a lesser. See supra, at 2–3. In discharging the jury, the judge said, “Madam Foreman, there seems to be a lot of confusion on the part . . . of the jury about some of the instructions. And because of the confusion and because of the timeliness and the amount of hours that has gone by without being able to reach a verdict, the Court is going to declare a mistrial.” App. 69–70.

If, as these comments suggest, the judge wrongly believed that the jury was not required to reach unanimity on a greater offense before considering a lesser, then he accorded insufficient finality and weight to the forewoman’s earlier announcement of acquittal on capital and first-degree murder. That mistake of law negates the deference due the judge’s decision to declare a mistrial. The judge explained that the jury was being discharged in part based on its “confusion” with respect to the instructions, when in fact, the confusion was the judge’s. Ibid.; see, e.g., Washington, 434 U. S., at 510, n. 28 (“If the record reveals that the trial judge has failed to exercise the ‘sound discretion’ entrusted to him, the reason for . . . deference by an appellate court disappears”); Illinois v. Somerville, 410 U. S. 458, 469 (1973) (critiquing “erratic” mistrial inquiry); Gori, 367 U. S., at 371, n. 3 (Douglas, J., dissenting) (noting that “[i]n state cases, a second prosecution has been barred where the jury was discharged through the trial judge’s misconstruction of the law,” and collecting cases). And a trial court “by definition abuses its discretion when it makes an error of law.” Koon v. United States, 518 U. S. 81, 100 (1996) .

*  *  *

At its core, the Double Jeopardy Clause reflects the wisdom of the founding generation, familiar to “ ‘every person acquainted with the history of governments,’ ” that “ ‘state trials have been employed as a formidable engine in the hands of a dominant administration. . . . To prevent this mischief the ancient common law . . . provided that one acquittal or conviction should satisfy the law.’ ” Ex parte Lange, 18 Wall. 163, 171 (1874) (quoting Commonwealth v. Olds, 15 Ky. 137, 139 (1824)). The Double Jeopardy Clause was enacted “ ‘[t]o perpetuate this wise rule, so favorable and necessary to the liberty of the citizen in a government like ours.’ ” 18 Wall., at 171. This case demonstrates that the threat to individual freedom from reprosecutions that favor States and unfairly rescue them from weak cases has not waned with time. Only this Court’s vigilance has.

I respectfully dissent.

__________________________________

1  The State has taken the same position. See Brief for Appellee in Boyd v. State, No. CR 06–973 (Ark.), p. 13 (“[U]nanimity is the essence of a jury verdict as it pertains to acquitting a defendant of the charged offense and the subsequent consideration of lesser-included offenses”).

2  The jury’s acquittals on the murder counts were unsurprising in light of the deficiencies in the State’s case. For example, Dr. Adam Craig—the medical examiner who autopsied the victim, Matthew McFadden, Jr., and whose testimony was essential to the State’s theory of the crime—was not board certified in anatomical pathology, hav-ing failed the certification examination five times. Dr. Craig took only 2 slides of Matthew’s brain, not the 10 to 20 called for by prevail-ing professional standards. He dismissed Blueford’s explanation for Matthew’s death—that Blueford accidentally knocked Matthew to the floor—on the basis of an outdated paper on child head injuries, acknowledging that he was only “vaguely aware” of a more recent, seminal paper that supported Blueford’s account. Record 390; see Goldsmith & Plunkett, A Biomechanical Analysis of the Causes of Traumatic Brain Injury in Infants and Children, 25 Am. J. Forensic Med. & Pathology 89 (2004). Blueford’s expert pathologist, Dr. Robert Bux, testified that Dr. Craig’s autopsy was inadequate to establish whether Matthew’s death was accidental or intentional. And Blue-ford’s expert pediatrician, Dr. John Galaznik, testified that the State’s theory—that Blueford slammed Matthew into a mattress on the floor—was “not a likely cause” of the boy’s injuries when assessed in view of current medical literature. Record 766. Even the trial judge observed that the State’s proof was “circumstantial at best,” and that this was “probably . . . a lesser included offense case.” Id., at 610.

3  This Court granted certiorari to decide “[w]hether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.” Pet. for Cert. i. The major-ity resolves the question presented by determining that the forewoman’s announcements were not final, such that Blueford’s jury did not necessarily deadlock on the lesser included offense of manslaughter. See ante, at 8–9, n. 2. In light of that determination, I do not read today’s opinion to express any view with respect to the requirements of the Double Jeopardy Clause where a jury does deadlock on a lesser in-cluded offense. Cf., e.g., State v. Tate, 256 Conn. 262, 284–285, 773 A. 2d 308, 324–325 (2001); Whiteaker v. State, 808 P. 2d 270, 274 (Alaska App. 1991).

4  The majority’s reliance on Renico, a habeas corpus case decided under the deferential standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), is perplexing. As Renico made clear, the question there was “not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was ‘an unreasonable application of . . . clearly established Federal law.’ ” 559 U. S., at ___ (slip op., at 5) (quoting 28 U. S. C. §2254(d)(1)); accord, 559 U. S., at ___, n. 3 (slip op., at 11, n. 3). Renico thus has little to say about a trial judge’s responsibilities, or this Court’s, on direct review. Cf. Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 30–31).

Print this transcript Transcript: 

ORAL ARGUMENT OF CLIFFORD M. SLOAN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next in Case 10-1320, Blueford v. Arkansas.

Mr. Sloan.

Mr. Sloan: Mr. Chief Justice, and may it please the Court:

The question in this case is whether the jury foreperson's announcement that the jury had voted unanimously that Petitioner was not guilty of capital murder and first degree murder has double jeopardy consequences.

We respectfully submit that it does, for two reasons:

First, the foreperson's announcement on this record establishes an acquittal; and, second, even if it is not viewed as an acquittal, under this Court's well established standard, there was not manifest necessity for a second trial on the same murder charges.

Now, with regard to the acquittal, the reasons why the foreperson's announcement was an acquittal are twofold.

First, the foreperson's announcement was clear and explicit that the jury had voted unanimously against guilt; and, second--

Justice Ruth Bader Ginsburg: Is that -- is that altogether clear, because she first said -- didn't she first say that the jury cannot agree on any one charge?

Mr. Sloan: --Yes, Your Honor.

And then the court specifically asked, what is the count on capital murder?

And she said, unanimous against that.

What is the count on first degree murder?

Unanimous against that.

And both the Arkansas trial court and the Arkansas Supreme Court here observed that the foreperson has been explicit that the jury had voted unanimously against guilt.

Justice Antonin Scalia: Well, that's the count.

A jury takes lots of votes.

Was it utterly clear that the jury could not go back and reconsider that?

Unless that was absolutely clear, it seems to me a verdict had not been announced.

She just said how we voted the last time.

Mr. Sloan: With -- with regard to finality, Your Honor, I think that -- that the jury could have changed its mind, but I want to emphasize the reason I say that, because I think it highlights something very important that is conspicuously absent here; and three brief points on that, Your Honor.

First, when the foreperson announced that the jury had voted unanimously against guilt on the murder charges, she was announcing a jury decision.

There was nothing equivocal or qualified about that.

Second, Your Honor--

Justice Antonin Scalia: Excuse me.

Excuse me.

When you say she was announcing a decision, then you mean they can't go back on it?

Mr. Sloan: --No, that was -- well, that's my second--

Justice Antonin Scalia: She was announcing a vote.

Mr. Sloan: --Yes.

She was announcing the decision that they had made at that point.

But the reason -- my second point, Your Honor, the reason why I say that they could have gone back is the historic traditional principle that a jury can correct or revise a verdict while it continues to be sitting.

Now, in -- in this Court's opinion, in Smith v. Massachusetts, this Court talked about that traditional and historic principle, cited an English case from 1824, the Parkin case, where the jury had done that, had gone back after announcing a verdict.

And how that would play out here, if the jury came back and they said, you know, we were unanimous before, but now one juror says that he doesn't really agree with that, then, of course, a court could take that into account.

Justice Samuel Alito: I think you've conceded away your case when you say that.

The one characteristic of a verdict that seems perfectly clear to me is that it is final.

The jury can't render a verdict and be discharged and then come back the next day and say, you know what, some of us -- one of us has changed his mind or her mind.

It's the final vote.

And so why isn't the critical question here whether what the -- what the foreperson said was, this is our final vote, we're not going to go back, this is it; or this is the way we voted, now and it's -- one or more of us may have wanted to -- wanted to retain the right, reserve the right to go back and -- and vote again.

Mr. Sloan: Because the -- the reason why I think the announcement was an acquittal here is twofold.

First, there was the explicit statement of -- of what the vote was at that time; but, second, there is nothing on the record in this case that contradicts that statement.

At the time the jury was discharged and at the time the trial ended, the jury had said nothing that contradicted that earlier statement.

Justice Anthony Kennedy: Suppose -- suppose the court said, after this colloquy, I want you to go back and think about this whole case again.

Could the jurors then have revisited the first count--

Mr. Sloan: Well--

Justice Anthony Kennedy: --the capital murder count?

Mr. Sloan: --Your Honor, if -- if the jurors had come back and said--

Justice Anthony Kennedy: No.

The colloquy is what we've got.

Mr. Sloan: --Yes.

Justice Anthony Kennedy: And the judge said I want you to deliberate more about this entire case.

A, was he permitted to do that under Arkansas law, I guess is one of my real questions.

Mr. Sloan: Oh.

Well, in terms -- in terms of Arkansas law and the particular transition instructions here, no, we don't think the transition instructions operate that way, Your Honor.

There is nothing in the instructions that say that--

Justice Anthony Kennedy: Nothing -- nothing -- Arkansas law doesn't permit the jury to -- before it's delivered its final formal verdict, to think about the case again and vote on it again?

Mr. Sloan: --No.

It -- it does, Your Honor, and that's why I'm trying to draw a distinction between how the transition instructions here operate, the sort of acquittal first instructions, and the general principle that A jury can correct or revise its verdict.

I mean, in a sense, one way to think about--

Justice Anthony Kennedy: Well, but I -- I think this may be what Justice Alito asked.

I don't think it gave a verdict here.

I don't think it's revising its verdict.

Mr. Sloan: --Well--

Justice Anthony Kennedy: It's mid-deliberation, as Justice -- as Justice Scalia said at the outset.

Mr. Sloan: --There -- there is nothing in the jury statement at all that suggested that it was tentative.

It said, we have unanimously voted against guilt on the murder charges.

Justice Sonia Sotomayor: Counsel, one--

Justice Ruth Bader Ginsburg: But then they went out again.

Mr. Sloan: Pardon me?

Justice Ruth Bader Ginsburg: And that's the problem.

They -- the jury -- the judge gave them an Allen charge, and they went out again.

And I think you have recognized that the jury could have then said: We'll go back to square one, we'll consider capital murder, first degree murder.

So they -- I think you recognize that after the judge gives them a charge of this kind, they can begin all over again.

And here, when they came in and said, we -- we can't agree, defense counsel didn't ask to have the jury polled.

Mr. Sloan: The -- the defense counsel asked for verdict forms to be sent into the jury room that would allow them to record their verdicts on the murder charges.

And that's a very important point here, Your Honor, because it was the State that prevented any additional elucidation about what the jury thought on the murder charges.

Justice Antonin Scalia: But that -- so long as it's still tentative thoughts, it doesn't matter.

The jury could have -- suppose the jury went back after this announcement, yes, you know, we've decided on the greater charge or we voted on the greater charge for the defendant, suppose they go back and one of the people who wants to convict on the lesser charge, as to which they are deadlocked, finally says, well, look it, if you won't come along to convict him on the lesser charge, by God, I'm not -- I'm not going to acquit on the greater charge.

Isn't that the kind of stuff that goes on in jury rooms all the time?

Mr. Sloan: Yes, it does, Your Honor.

Justice Antonin Scalia: So there is no certainty whatever that -- that what was the vote at that time would be the vote when they finally got done.

Mr. Sloan: Well, but, Your Honor, on the record as the case comes to this Court, what you have is this very clear and explicit statement against guilt on the murder charges, and then nothing in what the jury says when it comes back that contradicts that.

Justice Elena Kagan: Well, at this point--

Justice Sonia Sotomayor: --Counsel, I thought that part of your argument was that, given the instructions in this case, which the jury appears to have followed to the T, they can't get to a lesser count unless they have acquitted on the preceding count.

Mr. Sloan: Yes.

Justice Sonia Sotomayor: When the judge asks them, did you reach criminal negligence, they say: We were told not to.

Now, the judge, whether he was right or wrong under Hughes as to whether they followed the instructions or he misunderstood them, I don't know.

But it's very clear in context from the government's arguments to the jury, to the defense argument to the jury, you don't reach the split count or even talk about it unless you've been acquitted.

So, given that the jury responds at the end, we haven't reached a verdict; and the jury said earlier that they hadn't reached a verdict on the one issue, isn't the -- the only assumption is that they didn't go back?

Mr. Sloan: Yes, I think that's exactly right, Your Honor, because the jury instructions very explicitly said that you don't go to a lesser offense unless you have a reasonable doubt on the greater offense.

The State over and over--

Chief Justice John G. Roberts: I'm sorry.

Go ahead.

Mr. Sloan: --I was just going to say, the State over and over again in its closing argument said to the jury: You cannot reach a lesser offense unless you unanimously find the defendant not guilty on the greater offense.

And as you point out, the Arkansas Supreme Court in the Hughes case has said that the law in Arkansas is that you don't get to a lesser offense unless the -- the jury doesn't get to a lesser offense unless it in essence acquits on the greater offense.

Chief Justice John G. Roberts: Right, but that's the final say.

You don't know what the jury did as a preliminary matter.

I would think in a case like this perfectly reasonable for the jury to say: Let's take a preliminary vote; we'll go down; and if we all agree on something right away, that's what we'll do.

Does everybody agree on capital murder?

No, some don't.

Does everybody agree on murder?

No.

Does everybody agree on manslaughter?

Yes.

Okay, we all know that manslaughter, he's at least guilty.

Now let's go back and talk about the more serious offense, and some of us will try to persuade the holdouts.

And yet you would say as soon as they reached the point of saying yes, he's guilty on manslaughter, they can't go back.

Mr. Sloan: Well, the instructions don't provide for them -- for them to go back.

The State, which had never made that argument until this Court in its litigation, that they can go back, doesn't point to any case that--

Justice Anthony Kennedy: Well, but then I'm not sure it's just a matter of State law then.

We're -- he's talking about the constitutional minimum, and I -- I -- Justice Scalia gave a hypothetical, you can have a more -- even a more principled juror than that.

He says: You know, now that we're thinking about manslaughter, it is true that thus and so happened, maybe we were wrong on the first -- first degree count.

I mean, that's perfectly plausible.

Mr. Sloan: --Well, let me say, whatever one thinks about finality, and do I think there was sufficient finality here for the reasons we have been discussing, but whatever one thinks about finality, let's consider this in the context of manifest necessity.

Because whatever one thinks of finality, I submit that it is clear that when a jury foreperson stands up in front of the jury, in front of the defendant, lawyers for both sides, and says: We have voted unanimously that he is not guilty of these murder charges, that is something at the very core of the Double Jeopardy Clause, at the heartland of it.

Justice Samuel Alito: Are you saying that there was no manifest necessity to declare a mistrial as to any count, in which case there could be no retrial whatsoever, or no manifest necessity to declare a mistrial on capital murder.

And if you're saying the latter, then what would you have us do with the decision by the Arkansas Supreme Court that Arkansas law does not allow a partial verdict?

Mr. Sloan: Okay.

Your Honor, so first I'm saying only that there was no manifest necessity as to capital murder and first degree murder, which were the two charges on which they were unanimous.

We agree he can be retried on manslaughter and negligent homicide.

Now, as to the Arkansas Supreme Court decision on that, and that brings up a very important point, because the State's position essentially is it could never be final enough, as Your Honor suggests, because it simply is impermissible under Arkansas law to have an acquittal on a greater offense as long as you're deadlocked on the lesser offense.

And as to that, this Court's opinions are clear that if you have a State law that prevents giving effect to what is in substance an acquittal, it must yield to the Federal constitutional command of the Double Jeopardy Clause.

And Hudson v. Louisiana is very instructive on this point, because in Hudson Louisiana had a law that after a conviction a judge could not enter an acquittal order; He could only enter a new trial order.

And after the conviction on murder in Hudson, the judge entered a new trial order and explained that it was because of insufficient evidence.

And this Court unanimously said that that substantively was an acquittal; it has full double jeopardy consequences, notwithstanding the fact that Louisiana law does not allow a judge to enter an acquittal order--

Justice Stephen G. Breyer: What's bothering me is I can't figure this out very well.

We have an imaginary State, and what the State says to the jury: Jury, you have three choices.

Choice one is you acquit this person of everything.

Choice two is you convict him of something.

Choice three is you say you're hung.

Okay?

I don't see anything in the Constitution that prevents a State from doing that.

So if that -- if no -- what is it?

And, of course, if you follow that, there was no acquittal on those early charges.

That wasn't a permissible verdict.

And now you structure your argument in any way you want, but that the State has, I would think, within the limits of due process, it can structure the jury's arguments as it wishes.

But -- so what's wrong with that?

And if that -- if there is nothing wrong with that, then how do you win?

Mr. Sloan: --Okay, Your Honor.

Two points: One that focuses on the jury foreperson's announcement here--

Justice Stephen G. Breyer: Well, you could say, well, could say -- well, that's one route.

What you say is, nothing wrong with that.

But if the judge is foolish enough to get the jury -- to get the foreperson to say what the state of the deliberation is in detail, then the Double Jeopardy Clause kicks in.

Well, that's an argument.

Mr. Sloan: --Well, Your Honor--

Justice Stephen G. Breyer: So they make a mistake and now suddenly there's jeopardy, where it wasn't before, or -- this seems like a minor matter compared to the issues of jeopardy, whether the jury honestly said what was going on in the room, particularly if it's changeable.

Mr. Sloan: --With respect, Your Honor, I disagree that it's a minor matter when a foreperson stands up, with the jury present, and says we have voted not guilty.

And as to that, with an announcement -- for example, the Massachusetts Supreme Judicial Court decision in the Roth case, which is in the brief, is instructive because in that case the Massachusetts court said very emphatically, you should not ask a jury that kind of question.

Justice Stephen G. Breyer: Okay, so let's -- go ahead.

Mr. Sloan: But -- may I just finish the sentence, Your Honor?

But in that case, the trial court had asked the jury, and the foreperson had said that they had voted against guilt on the greater offenses.

And so the Massachusetts court said, if the -- essentially, these are my words -- but if the Double Jeopardy Clause means anything, it means that when you have an announcement like that, it has to matter.

And the other point, Your Honor, is that this Court's opinions such as Fong Foo and Sanabria say that it doesn't matter if an acquittal is on an erroneous basis.

Once it happens, we give full double jeopardy consequence to it.

So even if one thinks that the judge shouldn't have asked the question and it would have been permissible not to ask the question, once he did and once that's on the record, that is of considerable constitutional--

Justice Antonin Scalia: Only if -- only if, and I think this is the premise of your argument, only if there is a constitutional necessity to, to sever the various charges, there is a constitutional necessity to let the jury come in on one charge without coming in on the other.

It seems to me that's the premise of your argument.

And I don't know where that constitutional necessity comes from.

Mr. Sloan: --Well, Your Honor, first, on the manifest necessity point, when there is an announcement like this, because--

Justice Antonin Scalia: Your manifest necessity depends upon the necessity of severing, yes, if you sever then there is no manifest necessity of resubmitting the greater charge.

But it assumes -- it assumes a severing, and I don't know where the severing comes from.

Mr. Sloan: --The -- the manifest necessity argument is that when there is an announcement like this that goes right to the core of double jeopardy -- and, you know, we know that with greater and lesser included offenses, if there is a basis for an acquittal, then that has to be given effect on the separate charges.

That's Green and Price.

Justice Anthony Kennedy: But that's -- but that's after a verdict.

Why is it that the purposes of the Double Jeopardy Clause are implicated when a jury, before it delivers a final verdict, says where -- where it is mid -- mid-deliberations?

The defendant of course is terribly disappointed if they go back and then find him guilty, so I guess there is a personal disappointment interest for the few hours that it takes for the jury to come to a different verdict.

But he doesn't have to prepare the defense again; he doesn't have to go to trial again.

It's all one trial.

I don't see why there is a double jeopardy interest in the Massachusetts case that you point out.

I don't see where the double jeopardy interest was in saying that you can't go back.

Mr. Sloan: Well, because--

Justice Anthony Kennedy: What -- what purpose of the Double Jeopardy Clause is implicated by the rule that says you can't go back?

Mr. Sloan: --Well, Your Honor, on the manifest necessity point, I'm not saying you can't get back.

What I am saying is that when you have an announcement of such constitutional moment at the heartland of the Double Jeopardy Clause, a judge can do many things--

Justice Anthony Kennedy: I'm asking why it's the heartland of the Double Jeopardy Clause.

Mr. Sloan: --Because this Court--

Justice Anthony Kennedy: I question that.

Mr. Sloan: --Yes, Your Honor.

Because this Court, again and again, has talked about the special role of an acquittal where a jury finds the defendant not guilty.

Now, even if one views that as not final, it surely is significant at the heartland of the Double Jeopardy--

Justice Stephen G. Breyer: Why "surely"?

Mr. Sloan: --Pardon?

Justice Stephen G. Breyer: I mean, why?

Look, the thing ends.

To go back to my example, the case is over, the jury comes in and says, judge, we're hung.

Okay?

Everybody is going to go home.

But the defense lawyer says, judge, I'd like to know which of the five charges they are on.

Does the defense lawyer or the prosecutor have a constitutional right to find out?

Mr. Sloan: Okay.

Well, Your Honor.

If one assumes the foreperson's announcement is not -- or it's of no consequence--

Justice Stephen G. Breyer: No, I'm not assuming anything.

I gave you the example.

Mr. Sloan: --What -- no, no -- it's just what I'm saying.

So there's just the question, does the defendant have a right to inquire?

Justice Stephen G. Breyer: Yes.

Mr. Sloan: And here--

Justice Stephen G. Breyer: What is the answer?

Mr. Sloan: --there's -- I would say definitely, yes, in a hard transition State.

This is where you get into--

Justice Stephen G. Breyer: In the State I imagine is -- remember, there were three possible verdicts -- acquit of everything, convict of something, or say you're hung.

That's what we're imagining.

Okay?

And you can imagine the set of instructions go to A, B, C; that's fair enough.

Those four things.

Mr. Sloan: --Right.

Justice Stephen G. Breyer: Okay?

Now, case over, acquitted -- no, hung, Your Honor.

Defense attorney: I want to find out which of the five they are on.

Does he have a constitutional right to get the answer?

Mr. Sloan: He does, if--

Justice Stephen G. Breyer: He does?

Mr. Sloan: --Yes, if it is a hard transition State.

And -- or especially if it's a hard transition State.

Justice Stephen G. Breyer: I don't know what -- I'm sorry.

Mr. Sloan: Okay.

What a hard transition or sometimes it's called an acquittal first State, which may put it in relief more, which is where, as in this case, the jury is told, you may go to--

Justice Stephen G. Breyer: Okay.

Okay.

I see, okay, fine.

In other words, here I--

Mr. Sloan: --And every State court, except for Arkansas here, that has addressed the issue in the context of a hard transition, has said that the defendant does have a right to inquire--

Justice Stephen G. Breyer: --Okay, okay.

Mr. Sloan: --That's very different if you don't have that kind of hard transition.

Justice Stephen G. Breyer: I'm only midway, because I'm trying to follow this through.

I still don't know why the Constitution does that, but I'll take your word for it.

I would assume it was State law that does that, but -- but fine.

But now he says, yes, you have the right, either of you has the right.

We're on number three.

Your Honor, I would like a poll of the jury as to the acquittal as to one and two.

Does both -- do both sides have the right to get that?

Mr. Sloan: So after -- after they have announced an acquittal?

Justice Stephen G. Breyer: No.

Here's what happened:

"Judge, I want to know what number they were on when they couldn't reach. "

Mr. Sloan: Right.

Justice Stephen G. Breyer: Foreman: "Number five, Your Honor".

"Judge, I would like a poll of the jury, each juror, as to numbers one, two, three and four to be sure that they were unanimous on each as to the acquittal, which under the instruction allowed them to go to the next one. "

Okay?

Constitution requires it?

Mr. Sloan: Well, no; I -- look, I think there can be variations in State procedure, but I think the core--

Justice Stephen G. Breyer: No, no.

Why doesn't the Constitution require it?

You have to be sure there was an acquittal.

You have to be sure there was an acquittal.

What -- what I'm doing obviously is I'm spinning out what I see as the constitutional consequences of taking your constitutional position, and I'm going to be ending up by saying, I've never heard of this before.

Mr. Sloan: --Well--

Justice Stephen G. Breyer: But there is a lot of stuff I haven't heard of, so that doesn't prove that much.

Mr. Sloan: --Well, there are several States that have this, and the reason--

Justice Sonia Sotomayor: Counsel, what do several States have?

If I read what those States you're saying, including the Massachusetts State that you point to, it's a very simple rule, and you seem to be arguing past it or around it or -- I think what they say is, once the jury announces an acquittal, then that's the substance, the person's been acquitted, once they have made a judgment and announced it.

It -- the Constitution doesn't -- the Double Jeopardy Clause doesn't entitle someone to have it announced, doesn't entitle someone to force the jury to announce it.

But if the jury gets up at the end of the trial in a State that doesn't permit partial verdicts and said, contrary to the instructions of the judge, contrary to the law of the State, the jury says, we acquitted on counts one and two, we're hung on count three, the Constitution says jeopardy attaches because there has been an announcement of a verdict.

Isn't that your position?

Mr. Sloan: --That's exactly right.

There is another body of case law also, which I was addressing, which talks about when jeopardy attaches even if there is not that kind of announcement.

But, Your Honor--

Justice Sonia Sotomayor: Well, our case in Ball says it doesn't matter whether a judgment is entered or not.

As far back as 1896, Ball said the judgment is irrelevant.

It is the verdict of acquittal, and it basically equated that verdict with -- it doesn't matter if -- if it's entered properly, if the jury is polled, if anything happens.

It's as soon as the jury announces acquittal, that's the operative double jeopardy kicker.

Isn't that what you're saying?

Mr. Sloan: --Yes.

Yes, Your Honor.

Justice Sonia Sotomayor: And I thought I heard you arguing that here the lack of manifest necessity was that the judge had heard they reached that verdict.

Mr. Sloan: Well--

Justice Sonia Sotomayor: And he should not have discharged the jury without asking them could they reach a verdict that -- had they reached the verdict that they announced.

Mr. Sloan: --Yes.

From a manifest necessity perspective, this Court's decisions on manifest necessity from United States v. Perez in 1824 through Renico v. Lett in 2010 have emphasized the judge has to exercise sound discretion.

And to exercise sound discretion here, the judge could have done many things, but the one thing he could not do consistent with sound discretion is to do nothing and to proceed as though that announcement hadn't happened.

Chief Justice John G. Roberts: You've talked about our manifest necessity decisions.

It's true that we -- isn't it, that we said last year we have never reversed the district court's exercise of discretion under the manifest necessity standard?

Mr. Sloan: In the face of a jury deadlock, is what Your Honor is talking about.

Chief Justice John G. Roberts: Yes.

Mr. Sloan: Yes, this Court has emphasized the -- the deference due a district court.

But Renico--

Chief Justice John G. Roberts: And under that -- I'm sorry.

Go ahead.

Mr. Sloan: --Renico did not present the important threshold issue about what are the charges on which the jury is deadlocked.

And here there is an insufficient basis to conclude that the jury was deadlocked on the murder charges.

There was nothing like the foreperson's announcement at issue in Renico.

Chief Justice John G. Roberts: I don't want to -- I'm sorry for taking up your time, but your friend says you did not object when the judge announced that he was going to declare a mistrial; is that correct?

Mr. Sloan: Your Honor, there's not an -- an objection at that time, but that is not a waiver for a couple of reasons.

First, the Arkansas Supreme Court reached the merits.

It's a Federal constitutional issue.

Second, before that point defense counsel had been very explicit that it only wanted a mistrial on the -- on the remaining counts and not on the other ones.

And, third, this Court has emphasized that the distinction in manifest necessity is when the defendant affirmatively consents or moves for a mistrial, as opposed to either if the judge does it sua sponte and the defendant doesn't have to object, or the prosecutor moves for it.

Chief Justice John G. Roberts: Thank you, counsel.

General McDaniel?

ORAL ARGUMENT OF DUSTIN MCDANIEL ON BEHALF OF THE RESPONDENT

Mr. McDaniel: Mr. Chief Justice, and may it please the Court:

There are three key reasons why jeopardy has not terminated in this case.

First, the jury was free to revisit capital and first degree murder when it resumed its deliberations.

Thus--

Justice Elena Kagan: Where does it say that in the jury charge?

Mr. McDaniel: --I think that there is a critical misunderstanding by Petitioner of Arkansas's jury instructions, and there is a lot of use of -- of titles, such as "acquittal first", or "hard transition" or "soft transition".

Justice Elena Kagan: Well, as I understand what the Arkansas instructions said, what the instructions in this case said, is that the jury unanimously had to have a reasonable doubt on an offense before it could go down to the next offense.

So that's to say that the jury unanimously had to find what is -- what leads to an acquittal.

So the jury had to unanimously acquit on the greater offense before it could go down to the next.

And the instructions don't say anything about moving back up.

And this jury seems to take its responsibility under these instructions extraordinarily seriously.

This jury was instructing the judge on the instructions and about how they had to go down step by step and reach unanimity on the one before they could get to the next lowest down, so I guess I'm asking, why do you think under these instructions that the jury felt itself able to go back up?

Mr. McDaniel: Well, there are three primary reasons.

One, in States that are acquittal-first States, States that truly require a resolution of each charge before the transition to subsequent charges, they use words like "unanimous".

In fact they all use the word "unanimous" in their instruction.

Arkansas doesn't do that.

We use a rather ambiguous or unambiguous, depending on how you look at it--

Justice Elena Kagan: The chief prosecutor kept saying: You all have to agree on this.

Mr. McDaniel: --And he was accurate, and he was echoed by the defense counsel in her closing argument as well.

But there is no requirement of a resolution.

The jury verdict forms reflect that perfectly.

In fact, Justice Breyer's example of a given State is exactly what Arkansas does, as compared to a true acquittal first State, where there are multiple jury verdict forms, where you truly resolve one charge attaching final resolution and in fact attaching jeopardy or terminating jeopardy at that point.

In this case there is one verdict form.

You can decide--

Justice Sonia Sotomayor: I'm sorry.

I'm so totally confused by you ignoring Hughes.

The Arkansas charge says:

"If you have a reasonable doubt of the defendant's guilt on the charge of capital murder, you will consider the charge of murder in the first degree. "

And I thought the Arkansas cases said no one juror is going to think they can go to the next count.

They have to understand from this charge that it has to be unanimous.

And that's what the prosecutor argued, it's what the defense argued, it's what your Supreme Court has said has to happen.

I'm a little confused given your case law, your Supreme Court case law, that says you can't move on to the next one unless it's unanimous.

How you can answer Justice Kagan's question the way you have.

There is nothing in your case law--

Justice Antonin Scalia: You didn't finish your answer, did you?

I thought you were going on to some other points.

Mr. McDaniel: --I did.

And, in fact, I think that Hughes is extraordinarily important.

And, respectfully, I believe that the Petitioner has mischaracterized Hughes.

There is a line of dicta in Hughes that is particularly useful in the Petitioner's brief, but it is Justice Corbin of the Arkansas Supreme Court who authored Hughes, who was rejecting a double jeopardy claim in Hughes, and in fact invoked this line which says -- what has been quoted in the briefs -- is Justice Corbin who was presented with this exact same argument to interpret the instructions in Blueford and authored Blueford and rejected what allegedly was his position on the instructions.

Hughes was not about the instructions.

No part of Hughes was asked to interpret what our instructions are.

Justice Elena Kagan: I think if you look at what the court -- the judge said, what the prosecutor said, what the defense counsel said and then what the jury said, it's clear that they all thought that they had to unanimously agree on something before they could go to the next crime.

And, again, there is no suggestion in what anybody said that they could go back up.

Justice Antonin Scalia: Is there any suggestion that they couldn't go back up?

Mr. McDaniel: That is extraordinarily important.

Justice Antonin Scalia: Isn't it usually assumed that the jury is not finished until it's finished?

Mr. McDaniel: The state would assert that that is precisely the case here.

You have exactly the type of jury verdict form that Justice Breyer suggested in his example.

They have to decide on something.

You have one charge, capital murder and its lesser and included's.

This person, Mr. Blueford, does not deny that he is guilty of a homicide offense, that was included in their closing argument; does not deny that he's subject to retrial because there was manifest necessity on at least two of the charges.

They simply would like to say that there was not manifest necessity for the greater of the two.

And the only way that that happens is either -- to answer, I believe it was Justice Kennedy's hypothetical earlier -- are you required to go in and engage in partial verdicts even if the state does not choose to do so, even if the state is in fact a general verdict state?

Justice Elena Kagan: Even if, general, even if you're not required -- and if you are required -- but even if you're not, here the jury comes back.

The jury tells the judge, we've unanimously reached acquittal on these two counts, at that point why doesn't the judge have an obligation -- you know, the judge sends them back for a half hour.

There is no reason to think that in that half hour they moved back up the scale.

There is every reason to think they just remained stuck where they were.

But even assuming that there is some conceivable possibility that they went back up, why doesn't the judge working with the manifest necessity standard have an obligation to say, well, what about it?

Did you?

Did you reach acquittal?

Did you reach a judgment on these two counts?

Mr. McDaniel: Well, there are a couple of reasons.

One, I think it's fair to say that the state recognizes it was improper for the judge to inquire in the way that he did.

I think that it's fair to say that he recognized that it was improper, as he didn't do it on their first announcement of deadlock and he didn't do it on their final announcement of deadlock.

It's important to note that, although defense counsel at trial did ask for revised verdict forms, that was not her initial reaction.

Her initial reaction was to say, judge, I think that the jury needs to go back and keep deliberating and I would ask that you give them another Allen charge.

That's not the reaction that anyone would have if they had just heard an acquittal of their client.

This was in fact a mid deliberation report, probably wrongfully elicited by the trial judge, but it was just that, a snapshot in time with no intent by the jury to make an announcement.

So, when they returned, the real question, I think, hinges as this Court analyzed in Smith versus Massachusetts is, is it possible for there to be revision.

And it doesn't in fact, Justice Kagan, have to be the entirety of the jury completely pivoting in their decisions.

All it would have to be is one.

And we recognize that, even after they have announced unanimously, signed the verdict form, offered their assent, if they are polled in the box and one person changes their vote, then that bears the effect of changing the verdict.

So is it possible--

Justice Sonia Sotomayor: --For instance if they had -- if the judge had called them back in and said, are you deadlocked on the third count.

And my hypothetical to your adversary, they said, well, we have acquitted on capital murder, we've acquitted on the second count, we are still, judge, deadlocked.

If this had been announced at the very end, what would be your position today?

Mr. McDaniel: --Certainly there would be -- it would be a tougher case if everything ended at that moment.

Because at that point, counsel would have to ask the trial court, if you're declaring a mistrial at this moment on this report, what are you going to do?

Are you going to accept this or are you not going to accept it?

Will there be an opportunity for polling?

Justice Sonia Sotomayor: Doesn't sound like the judge was interested in any of the defense counsel's positions on mistrial.

He announced whether the jury told them they were deadlocked or not he was going to call them back.

So I don't know that the judge would have done what you suggested.

Because the judge -- the defense attorney did ask for partial verdicts after their first announcement.

Mr. McDaniel: And, Justice Sotomayor, they were rightly rejected.

Partial verdicts are not contemplated in Arkansas law.

It would have been error for him to engage in partial verdicts at that time.

And there is nothing in the Fifth Amendment that would require this Court to intrude upon the liberty of the states to determine whether they're general--

Justice Sonia Sotomayor: So if the state rule says we don't take partial verdicts and the judge had entered a verdict -- a judgment -- declared a mistrial or entered a judgment saying hung jury as to all counts, would jeopardy have attached.

Mr. McDaniel: --If there is a hung jury as to all counts--

Justice Sonia Sotomayor: No.

If the jury had announced what it did, but following Arkansas law, as you read it, you don't take partial verdicts, it could only be one hung jury.

Mr. McDaniel: --Correct.

Justice Sonia Sotomayor: Jeopardy has attached.

Mr. McDaniel: No.

If there's manifest necessity for a mistrial, and in this case there is one charge, one homicide offense, and as this Court has long recognized, Brown versus Ohio being a key analysis--

Justice Sonia Sotomayor: So the only issue here is whether it's reasonable to conclude that a jury that has been told acquit first comes back and says, we're only hung on this, and the jury says, listen to each other on what your hung on, that that jury reasonably -- the judge could have ignored their stated verdict and entered a trial -- a mistrial on everything else.

Mr. McDaniel: --Respectfully, Justice Sotomayor, they were not told acquit first.

That is a subtle but key distinction.

Justice Antonin Scalia: You don't agree -- I don't think you agree that it was their stated verdict, do you?

Mr. McDaniel: I absolutely do not.

It was not a verdict.

And though there's no--

Justice Stephen G. Breyer: There's no room in Arkansas law for saying you're acquitted as to one, acquitted as to two.

But Arkansas law says you come in with a verdict of guilty of something, a verdict of acquittal of everything, or the words "hung jury".

Is that right?

Mr. McDaniel: --Well, it's not up to the jury to determine--

Justice Stephen G. Breyer: No.

They say to the judge, judge, we are hung.

Judge says, hung jury.

Mr. McDaniel: --That is correct, Justice Breyer.

That is correct.

Justice Elena Kagan: I guess -- General McDaniel, one question about what Arkansas law does is -- it seems a little bit as if it's trying to get the sweet of an acquittal for a State without the bitter.

So the sweet is an acquittal-first system where you force a jury to reach agreement on one thing before it goes to the next thing, makes compromised jury verdicts harder, and that's why a State might say we want an acquittal-first system.

The bitter that most States take with that is that they say, well, if we're forcing them to agree on these things and they agree on a verdict of not guilty, we're stuck with that.

Now, what Arkansas seems to run is a system in which it forces juries to agree on the greater charges before going to the less, but won't take the consequence of that, which is that sometimes they agree that on the greater charges, they're not guilty.

Mr. McDaniel: No, Justice Kagan.

The majority of the States and circuits recognize there is a difference between a hard transition instruction and an acquittal-first instruction.

They recognize the difference between a partial verdict and a general verdict on charges that include lesser and includeds.

And what we require is one verdict on a charge: Guilty or not guilty.

And they are at liberty to consider -- they can be at the very end -- again, it's very important to know -- it's wholly speculative in this case to know where they were when they ultimately were hung, and so we are -- we are operating in the world of brightline rules, which are very important for jeopardy.

We know when jeopardy attaches.

When the jury is in the box.

We know when jury -- or when jeopardy terminates, and it's when there's some conclusion with finality.

Every case that this court has analyzed, even Price, Green and Sylvester, where the jury remained silent, there was some finality that led to a determination of jeopardy.

Justice Ruth Bader Ginsburg: General McDaniel, in this case, they deliberated for 4-1/2 hours at the point where the judge asked them, where do you stand on this count?

Where do you stand?

And so they were up to the manslaughter and they were stuck on that.

And the jury foreman said, we can't go to negligent homicide because we haven't reached agreement on the manslaughter charge.

Then they go back for just a half hour.

How realistic is it to think that they began over at that point rather than trying to resolve the manslaughter charge so they could do exactly what the judge told them, and then get to the negligent homicide charge?

Mr. McDaniel: The State wouldn't venture to speculate as to what they did, although I would respectfully say that that is probably what happened.

They went back and they tried to follow the instructions of the court.

That's certainly viewing things in the light most favorable to the Petitioner, and there's no evidence--

Justice Antonin Scalia: General McDaniel, how -- how probable is it that when the jury is polled, and having voted unanimously when they were back in the jury room, one of the members of the jury changes his mind and votes the other way?

That's not at all probable, is it?

But it happens sometimes, doesn't it?

Mr. McDaniel: --It does.

Justice Antonin Scalia: And when it happens, what's the result?

Mr. McDaniel: It -- it bears all the difference in the finality of the verdict.

And, again, as this Court noted in Smith, it's the availability; it's the incorporation within a State's procedure for that finality to be undone.

My Lord, how likely is it truly for a trial court to completely reverse his or her granting of a motion of dismissal, but this Court said, if there is a procedure in place for it to be revisited, then jeopardy doesn't terminate until the point at which there's no return.

Justice Samuel Alito: Is this a fair explanation of Arkansas law which doesn't seem to me to be perfectly clear?

What the jury is supposed to do is to vote on the greatest offense first and reach a reasonably firm vote.

And if they reach a reasonably firm vote that is unanimous not guilty, then they can move on to the next -- to the lower offenses, but that reasonably firm vote is not an absolutely final vote, and there is still the possibility for the jury to go back.

Mr. McDaniel: That's correct.

Justice Samuel Alito: Is that a correct understanding?

Mr. McDaniel: Yes, Justice Alito, that's precisely correct.

Just as Justice Scalia noted earlier, we recognize that there are compromises that are incorporated into transitions.

One may be willing to say I'm willing to move on from first degree murder; I'm the only one here that believes that we should find guilty of first degree murder, but that's not going to happen.

I'm not going to change your votes.

But I'm willing to move on and go to manslaughter.

But would that vote equate to an acquittal if asked in -- with finality?

Justice Samuel Alito: For double jeopardy purposes, is the question what Arkansas law actually says, or what the jury understood Arkansas law to be?

Mr. McDaniel: I think what Arkansas law actually says is how we should be judged, but at the same time, the evidence here was that the jury came in to answer questions about the status of their deliberation.

I think that Justice Kagan properly noted that they were in fact giving the judge some instructions on how the instructions should work.

And they were answering that question, and the foreperson -- one person was asked, well, where are you, and she announces -- and we have no reason to believe that she was not being truthful.

At the same time, we have no way to verify it.

And the defense counsel said, judge, I think they ought to be given another Allen charge, and they need to go keep deliberating.

And at that point, if they had returned -- no matter how unlikely -- if they'd come back in 10 minutes later and said, we find unanimously guilty of capital murder, no matter how unlikely, if that was possible, then jeopardy could not have terminated upon that report.

It could not have been an acquittal, because they couldn't have continued deliberating on those charges for another instant.

Justice Sonia Sotomayor: General, how do you deal with our cases, Ball, Martin Linen, and the whole line that says the State -- the form of State law judgments doesn't control?

Mr. McDaniel: I think that Ball is particularly helpful to us, and I think that the Hudson case cited by Petitioner is also important.

If -- if a State puts a procedural bar to considering a final judgment of acquittal, then that procedural bar is trumped by the Fifth Amendment of the Constitution.

Mr. Ball was--

Justice Sonia Sotomayor: I'm not sure what that means.

And that's the problem with all of this area, which is -- States vary on how they enter judgments after the jury speaks its verdict.

So where do we draw the line as to when a State law trumps -- when a Federal law, the Double Jeopardy Clause -- trumps a State system?

Mr. McDaniel: --Justice Sotomayor, I think that your answer is contained within the question.

A verdict is the true answer.

If there is a verdict, then the -- the force and impact of that verdict is what matters.

Did this jury announce a verdict?

If so, jeopardy attached.

But this was not a verdict.

It bore none of the hallmarks of a verdict.

It wasn't published.

It wasn't verified.

It wasn't accepted by the Court.

It wasn't even accepted by the defendant's attorney.

It wasn't a verdict.

In Ball, there was a clear verdict.

The jury announced acquittal.

The judge entered acquittal.

And later, the indictment was dismissed as being faulty.

And under the law of England up until that time -- even in the United States -- a faulty indictment dismisses everything and you start de novo.

So even the acquittal gets thrown out because you can't acquit of something that was void ab initio.

Justice Ruth Bader Ginsburg: Mr. Sloan told us that it was the State that prevented the elucidation, because defense counsel said, judge, we can try to do what Double Jeopardy Clause says, not try a person twice for the same offense.

So, judge, please ask the jury to rule on those two -- give them a sheet that gives them a choice of guilty or not guilty, but they went -- that originally was just a series of guilty on the four counts, and then their other choice was acquittal.

Now, defense counsel says, ask them, is it guilty or not guilty instead of asking just is it guilty.

And the judge declines to do that.

Isn't that why we don't have definitive answers?

Because defense counsel says -- said, judge, give the jury the chance to tell us whether they--

Mr. McDaniel: Some states do, in fact, give the opportunity to inquire into the jury's deliberations.

Partial verdict forms and inquiries are permitted.

But they are not required.

And in Arkansas, the State properly objected to changing the agreed upon verdict forms as the judge said midstream.

They had been agreed to, they had been submitted, and they properly reflected the law in Arkansas.

So have to change them would have either been by agreement or because they were constitutionally required.

And that's ultimately the case -- the question in front of this Court.

Are they ult -- are they constitutionally required.

And that leads into the manifest necessity analysis because anytime there is a charge with lesser and included offenses and a general verdict state, and the jury simply announces, we cannot reach a determination, is -- is the constitutional trigger truly resting on the fortuity of the announcement of a snapshot vote in open court, or is a constitutional trigger how they voted back in the jury room?

And if that is the constitutional trigger, then wouldn't verdict -- partial verdicts be required.

In fact, this Court does not require partial verdicts.

An announcement of unable to render a verdict warrants a mistrial.

This Court has said clearly in Renico that we defer to a trial court's decision that manifest necessity exists.

In fact, this Court has never overturned a trial court's decision that manifest necessity existed for the -- on a hung jury.

Here a jury was hung.

They simply could not render a decision on the verdict forms they were submitted: guilty or not guilty of a homicide.

They couldn't answer the question.

And, therefore, jeopardy should continue and the retrial should be permitted.

Justice Elena Kagan: General, you mentioned Green and Price before, and those are the cases, of course, where there is a conviction on a lesser charge.

We don't know anything about the greater charge.

And then the conviction is overturned.

What the court says there is, well, we don't know anything, but we're going to make a reasonable assumption, and the reasonable -- no, I think it said a legitimate assumption.

The legitimate assumption that they acquitted on the greater charges before they went down to a lesser charge.

Now, it seems to me as though there are a hundred reasons why that might not be true.

The jury could have just gone to the lesser charge immediately as a compromise position without voting on the greater charge, but the court said, well, make a legitimate assumption.

So why isn't the same true here?

We're making a legitimate assumption.

I think, honestly, on the basis of much more than Green and Price had to work with, if you will, that the jury, in fact, acquitted of those greater offenses.

Mr. McDaniel: Well, in Green and Price there were verdicts, and in this case there's no verdict.

Justice Elena Kagan: There was a verdict that eventually got overturned.

There was no verdict on the greater offenses.

Mr. McDaniel: You have to look at Green and Price in conjunction with this Court's holding in Brown in the analysis of lesser included offenses within a general offense.

They are one for jeopardy purposes.

In this case, Mr. Blueford was facing one charge for jeopardy purposes.

The information, the indictment, only included one charge.

So he could not have been convicted of both manslaughter and murder in the first degree.

This Court's very clear about that.

So in Green and in Price, where there was a conviction on a lesser charge and silence, in other words, they didn't expressly say: Not guilty of this higher charge, and not guilty of this higher charge, and guilty of this lesser charge, it stands only to reason, and certainly to constitutional scrutiny, you can only be convicted of one of them.

And if the jury finds -- and, again, it still requires publication, verification and acceptance by a court -- of an actual verdict of one of those charges, it only stands to reason and logic that the upper charges were dismissed.

That is entirely different, respectfully, from this case.

Justice Samuel Alito: In Green and Price, the defendants were tried once on the greater offense, and jeopardy terminated without a finding of manifest necessity regarding the termination of jeopardy.

To me that is the sound basis for those decisions.

But I have to agree with what Justice Kagan said.

The Justice Black's reasoning in Green, that the jury impliedly acquitted the defendant of the greater offense by convicting the defendant of the lesser offense doesn't really make any sense because they could have simply been in disagreement about the greater offense.

Mr. McDaniel: Well, and I think that's correct, and I think that there has to be some question here as to, is it an implied acquittal or was it an express verdict?

I think the Petitioner can't really decide, or at least hasn't articulated, where the jeopardy terminating event occurred.

Was it when they made their announcement?

In which case, why did they go and subsequently deliberate even on the request of counsel?

Was it at the conclusion when there was the possibility that nothing really had changed after the report and a declaration of manifest necessity, which did not come, by the way, at the request of the State.

It was sui sponte by the court.

And then there was, in fact, a waiver, and I think a legitimate waiver, of an objection by defense counsel.

There was -- at no time at that point before releasing this jury did defense counsel renew a motion to submit partial verdict forms, to inquire into the jury, to poll where they were--

Justice Ruth Bader Ginsburg: --Well, what if she had asked, so why was it necessary for her to repeat it?

She said: Judge, please let them vote yes or no on the two most serious charges.

And the judge said, no.

She might have figured if she was going to repeat that she would just annoy the judge.

She had made the -- she had made the request.

Mr. McDaniel: --The primary difference would be in fact the possibility that polling may be different after another half hour of deliberations.

All it takes is one juror to change their mind.

And in fact it may have benefit the defendant.

What if they had already decided they'd changed their mind again and acquitted on manslaughter and then moved down to negligent homicide?

And that's what they were talking about.

Where they were at the end of the final 30 minutes of deliberation is purely speculative.

And because it's purely speculative, regardless of whether it could benefit the State or the defendant, it means that no report was a verdict.

No report could have been a verdict.

Justice Sonia Sotomayor: General, other than trenching on State rules that don't create the constitutional protection, what's wrong with a simple rule that says, once a jury announces that it is unanimous on acquittal of a count, you can't go back unless the jury says that it's not unanimous in some way?

What's wrong with that rule?

Mr. McDaniel: It would be difficult to apply in practicality, and it certainly would be--

Justice Sonia Sotomayor: Why?

The jury comes out and says, we're unanimous.

There is a poll.

One juror says, I'm really not unanimous.

They go back.

But once a jury says it's unanimous, a judge can't declare a mistrial, can't do something until it ensures itself that jeopardy has attached.

Mr. McDaniel: --The primary reason why the majority of jurisdictions have rejected that analysis, whether it's announced or not, is the coercive effect on a jury.

If you have a tired, frustrated, potentially angry jury, and they are told, we're either going to let you go or you're -- we're not going to let you go home until you decide something, you have to tell us something.

Justice Sonia Sotomayor: I'm not -- I'm not asking -- I'm not announcing or setting a rule that says you have to ask them, you have to force them to give a verdict.

I mean, I'm saying, what's wrong with the constitutional rule that simply says: Once the jury says we're unanimous, there can't be manifest injustice -- there can't be manifest necessity until you're sure that they can't reach a verdict -- that that verdict is not their verdict.

Mr. McDaniel: So we're not asking, but if -- just so I understand your hypothetical -- we're not asking them, but if for fortuitously they happen to announce, spontaneously or otherwise--

Justice Sonia Sotomayor: That's what three State courts have said.

Three State courts have said, if there is any meaning to jeopardy, it is that once a jury out loud says to a defendant, you're not guilty, the defendant is entitled to rely on that.

So what's wrong with that simple rule?

Mr. McDaniel: --First, this Court hasn't -- that court -- that rule -- could be allowed to work and, in fact, it does work in some states.

I don't see how it could benefit Mr. Blueford, and so I don't see how it follows into his relief because it didn't in fact happen.

And so it takes us -- it might be beneficial to future defendants if they ever find themselves in such a circumstance, but it doesn't apply retroactively.

Chief Justice John G. Roberts: Thank you, general.

Mr. Sloan, you have three minutes remaining.

REBUTTAL ARGUMENT OF CLIFFORD M. SLOAN ON BEHALF OF PETITIONER

Mr. Sloan: Thank you, Your Honor.

The core of the State's position is that the foreperson's explicit announcement that the jury had unanimously voted against guilt is of no constitutional moment whatsoever.

Now, there is no opinion of this Court that has ever said that a jury statement like that is entitled to no weight whatsoever.

And if this Court were to say that in an opinion, it would open the door to many of the core double jeopardy evils that this Court has repeatedly focused on.

For example, acquittal avoidance, emphasized in the Arizona v. Washington; a court doesn't want to accept the acquittal consequences, so it just says, we're not going to accept that.

And something that's a very real and practical danger here, which this Court has emphasized over and over again in opinions, is giving the State the opportunity to refine and hone its case based on what it learned at the first trial about what went badly.

And that is exactly what happened here.

It was vigorously contested.

The State's capital murder and murder -- first-degree murder case fell apart.

Their lead expert on it was destroyed.

The jury heard both sides, voted unanimously not guilty.

And as this Court said in Ashe v. Swenson, a core evil of the Double Jeopardy Clause is that we don't let the prosecutor have a dry run at a first trial, and then get to go before a second trial with a new jury and plug the holes in it.

And the State's position here, that this is of no moment at all, would raise that danger very prominently.

In conclusion, Your Honor, the jury in this case heard the evidence on both sides, unanimously voted against guilt on the murder charges, announced that in open court, and never said a word that contradicted it.

Forcing Petitioner to run the gauntlet a second time on the murder charges would run counter to what this Court has repeatedly emphasized as the core purposes, policy and language of the Double Jeopardy Clause.

If there are no further questions, Your Honor--

Chief Justice John G. Roberts: Thank you,--

Mr. Sloan, General.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: I have our opinion this morning in case 10-1320, Blueford versus Arkansas.

The Double Jeopardy Clause, as a general matter, prohibits trying someone twice for the same offense.

It has long been established, however, that a person maybe tried again if the jury could not agree on a verdict at his first trial.

If a jury cannot reach a verdict, the judge declares what is known as a mistrial and the prosecution gets to decide whether to retry the defendant.

Now, in this case the State of Arkansas charged petitioner, Alex Blueford, with capital murder for the death of one-year-old child.

That charge included the lesser offenses of first-degree murder, manslaughter, and negligent homicide.

In other words, the jury could convict Blueford of anyone of those offenses depending on its view of the evidence and whether it thought the prosecution had carried its burden of proof on the particular elements that went with each offense.

At trial, the court instructed the jury, when deliberating, to consider the offenses in order, from greater to lesser.

Thus, the jury was told to begin with capital murder then if the jury had a reasonable doubt about whether Blueford was guilty of capital murder, to go on to first-degree murder.

Next, if the jury had a reasonable doubt on first-degree murder to go on to manslaughter, and so on.

The court also presented the jury with a set of verdict forms which allowed the jury either to convict Blueford of one of the charged offenses or to acquit him of all of them.

Acquitting on some, but not others was not an option.

After deliberating for a few hours, the jury reported that it could not reach a verdict.

The court inquired about the jury's progress on each offense.

The foreperson said that the jury was unanimous against guilt on the charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide.

The Court told the jury to continue to deliberate.

The jury did so but still could not reach a verdict and the court declared a mistrial.

The State subsequently sought to retry Blueford.

Everybody agrees that he may be retried on charges of manslaughter and negligent homicide.

The question is whether he may also be retried on charges of capital and first-degree murder.

Blueford says he can't be, because the foreperson's report that the jury was unanimous against guilt on capital and first-degree murder represented an acquittal on those charges.

That report, however, 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 earlier votes as deliberations continued.

The foreperson's report prior to the end of deliberations, therefore, lacked the finality necessary to amount to an acquittal on capital and first-degree murder.

Blueford's other reason for why he can't be retried is that the trial court's declaration of a mistrial was improper.

Blueford contends that there was no necessity for a mistrial on capital and first-degree murder given that the foreperson's report that the jury had voted unanimously against guilt on those charges meant that he had been acquitted on them.

At that -- according to Blueford at that time, the court should have allowed the jury to give effect to those votes and then considered a mistrial only as to the remaining charges.

But as permitted under Arkansas law, the jury's options in this case were limited to two, either convict on one of the offenses or acquit on all.

The jury in this case was unable to do either and the trial court did not abuse its discretion by refusing to add another option, that of acquitting on some offenses but not others.

The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either.

When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury.

As a consequence, the Double Jeopardy Clause does not stand in the way of a second trial on the same offenses.

The judgment of the Supreme Court of Arkansas is affirmed.

Justice Sotomayor has filed a dissenting opinion in which Justices Ginsburg and Kagan join.