Double Jeopardy and the Mulligan Exception

The black letter rule seems simple enough. From Roberts’ majority opinion in Blueford v. Arkansas :


The Double Jeopardy Clause protects against being tried twice for the same offense.

Except that’s not what it means. From Sotomayor’s dissent in Blueford:


The Double Jeopardy Clause “unequivocally prohibits a second trial following an acquittal.”

The difference is that in Chief Justice Robert’s formulation, once tried precludes retrial. It sounds good, and that’s pretty much what the clause says, but as Justice Sotomayor correctly notes, that’s not the law.  While the clause might be interpreted to mean that no one can be tried again upon failure to convict, instead it only comes into play following an acquittal.

There is a pretty good argument to be made that this interpretation fails to comport with the constitutional mandate:


nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .

It would seem that most faithful interpretation is that the government gets to try a defendant and seek a conviction.  If they do not obtain a conviction, then it’s over.  That the jury is unable to reach a unanimous verdict of conviction isn’t a rationale for a mulligan, unless there is a subsidiary duty on the part of the defendant to obtain an acquittal.  Nowhere in the Constitution is the defendant obliged to prove his innocence.  Nor is he obliged to persuade “twelve good men and true” of his not guiltiness.  The burden is on the government to convince those twelve of guilt.  Anything less is not guilt. Anything less is not a conviction. And another try after not obtaining a conviction puts a defendant twice in jeopardy.

But the Supreme Court, rather than closing the gap between reason and black letter law, went 6-3 against in Blueford.


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….

And they answered that the defendant could, indeed, be tried on every charge for which he was originally put in jeopardy. Even the charges for which the jury, concededly unanimously, found him not guilty.
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.


But wait, you say. Didn’t CJ Roberts already state that the jury “was unanimous against guilt on charges of capital murder and first-degree murder”?  Isn’t that kinda like, oh, an acquittal? Not any more. Sotomayor explains:


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.


Sure the forewoman said so. Sure, that was what the jury found. Sure, the words rang out in the courtroom. But no, they don’t count.  You see the judge did not repeat the words on the record, as if some magical mantra uttered from a man in robes transforms the jury’s finding into legal reality. 

Instead of proclaiming, in a somber voice, that the defendant was hereby acquitted, or some other suitably officious words, and instead of putting quill pen to parchment to write in the Great Book of Acquittals the product of the jury’s deliberations, or having the jurors do so themselves, the judge skipped over that part and declared a mistrial.  According to the Supreme Court’s decision in Blueford, the judge’s failure to perform the ministerial acts of his office (as in, Oops, I forgot. Sorry guys) gives the state a full do-over, including another try at capital and first degree murder.

It’s as if the unanimous jury finding that the defendant was not guilty never happened. 

As Jeff Gamso notes, the argument is that it’s possible the jurors, after unanimously acquitting Blueford of the top counts, could have changed their minds later and decided instead to fry him.  The dissent responded that once the jury announces its unanimous acquittal, it’s game over, and the jury could not have gone back and decided to push the plunger.  The rest is just form over substance, which is ironically the argument usually leveled at the defense for expecting the words of the Constitution to be given meaning.

TV  Judge Andrew Napolitano call this “the most radical and dangerous departure from traditional criminal jurisprudence in the post-Warren Court era.”  How one rates this case on the most radical and dangerous scale isn’t clear, given a full field and such disparate impacts.  But what this case does reflect is a rule that so
clearly ignores the language, history and purpose of a constitutional amendment as to make one nervously chuckle whenever he hears the court pontificate about judicial modesty or faithful adherence to the intentions of our founding fathers.

Except the guy being retried after acquittal for capital murder. He’s not chuckling at all about the prosecution getting a mulligan.

6 comments on “Double Jeopardy and the Mulligan Exception

  1. CRC

    The Constitution means nothing unless:

    a) you have people in power who are willing to enforce it

    and

    b) when they don’t, the public steps in and makes them do so.

    In this case it really is just a god- damned piece of paper.

  2. SHG

    It’s much, much more than a piece of paper. It’s a hurdle. A small, low hurdle, over which they must leap to arrive at a conclusion that suits the need to make sure that no guilty man escapes “justice.”

  3. LTMC

    What blows me away is how the Majority in this case essentially did what Sanabria v. United States forbids: exalting “form over substance.” The only colorable argument that the Majority makes which isn’t in direct contravention of Sanabria’s militation against procedural reasoning is on pages 6-7, where Roberts discusses the jury instructions, and the fact that the jury might have “reconsidered” its unanimous verdict. In other words, the Supreme Court just removed an entire class of criminal defendants from the protection of the Double Jeopardy Clause based on what the jurors in Blueford’s case ‘might’ have been thinking.

    And people wonder why Criminal Defense Attorneys are freaking out. 27 years of Supreme Court rulings adverse to Criminal defendants since United States v. Leon shat all over the Exclusionary Rule aren’t making the job any easier, that’s for sure.

  4. SHG

    The “rationale,” that the jury might have reconsidered the charges it had already unanimously rejected, is one of the most laughable positions imaginable. They didn’t even try hard to make this decision appear justified.

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