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Supreme Court says double jeopardy does not protect against murder retrial
Washington Post ^ | Thursday, May 24 2012, 5:49 PM | Robert Barnes

Posted on 05/24/2012 8:08:26 PM PDT by Olog-hai

Arkansas may retry a man for murder even though jurors in his first trial were unanimous that he was not guilty, the Supreme Court ruled Thursday.

Alex Blueford, who is accused of killing his girlfriend’s 1-year-old son, is not protected by the Constitution’s Double Jeopardy Clause, the court ruled in a 6 to 3 decision.

Because the judge dismissed the jury when it was unable to reach agreement on lesser charges, Blueford was not officially cleared of any of the charges, the majority said, and thus may be retried.

“The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either,” Chief Justice John G. Roberts Jr. wrote.

The decision brought a sharp dissent from Justice Sonia Sotomayor, who was joined by Justices Ruth Bader Ginsburg and Elena Kagan.

“Blueford’s jury had the option to convict him of capital and first-degree murder, but expressly declined to do so,” Sotomayor wrote. “That ought to be the end of the matter.”

The Double Jeopardy Clause is found in the Constitution’s Fifth Amendment and commands that no person shall be “twice put in jeopardy of life or limb” for the same offense. …

(Excerpt) Read more at washingtonpost.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; News/Current Events
KEYWORDS: constitution; court; doublejeopardy; hung; hungjury; jury; murder; scotus
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To: Olog-hai

I don’t like this, but them’s the rules.


51 posted on 05/24/2012 10:16:45 PM PDT by Jeff Chandler (The best diplomat I know is a fully-activated phaser bank. - Montgomery Scott)
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To: MacMattico
I originally thought I disagreed with this decision, but after reading the whole article and thinking about it, the jury was dismissed and no verdict, not guilty or guilty on any charge was returned. Yes, the jurors said on an informal vote they didn't think the defendant was guilty of murder, but when the judge told them to go back and deliberate more, minds could have been changed.

Oh. I thought they formally voted and returned an official verdict on that one count and the judge then threw it out because they deadlocked on other counts.

52 posted on 05/24/2012 10:17:54 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: MacMattico; SeaHawkFan; xzins
The judge sent the jury back to deliberate further, they never delivered a verdict after that.

The forewoman reported in open court that the jury did, in fact reach a verdict of not guilty on both murder charges but they were deadlocked on the lesser charges.

From the dissenting opinion:

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.

53 posted on 05/24/2012 10:18:30 PM PDT by P-Marlowe (Virgil Goode! Because everyone else is Bad!)
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To: P-Marlowe
I have jury duty next week and if some judge asks me whether or not I am going to follow his jury instructions I'm going to tell him that I probably won't.

If you're forthcoming about having a brain and being willing to use it, you're just allowing them to fill the jury box with compliant sheeple.

54 posted on 05/24/2012 10:24:44 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Olog-hai

the 3 old hags of Endore...


55 posted on 05/24/2012 10:24:59 PM PDT by goat granny
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To: null and void

Me too. The plain language is “tried,” not “acquitted.” He was tried.

Wow, my head just exploded...


56 posted on 05/24/2012 10:37:49 PM PDT by piytar (The predator-class is furious that their prey are shooting back.)
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To: null and void

Sorry, I meant “jeopardy,” which means “tried.”


57 posted on 05/24/2012 10:39:23 PM PDT by piytar (The predator-class is furious that their prey are shooting back.)
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To: P-Marlowe

But they still went back and were in further deliberation, having never made an official acquittal, as was the MAJORITY opinion. They were then dismissed.

All of the jurors were never questioned as to guilty or not guilty and never signed off on any verdict.

Do you think if any jury foreman states in any open court not guilty that should just be the end of it, regardless of any other circumstances?


58 posted on 05/24/2012 10:41:45 PM PDT by MacMattico
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To: SeaHawkFan; MacMattico; xzins
People should read the dissenting opinion. It is very well-reasoned and explains why the technical lack of a “verdict” is a bogus argument.

I read both the Roberts opinion and the Sotomayor opinion. Roberts seemed to just blow off the whole notion that there is a double jeopardy clause in the Constitution. To Roberts procedure was more important than substance and he never addressed the original intent of the clause and just seemed to rely on pure technicalities and even blew off the FACT that the jury had already reached a decision that the defendant was not guilty of murder.

Sotomayor on the other hand wrote a very well reasoned appeal to the original intent of the Constitution and the meaning of the words and the problem that the founders wanted to ameliorate through the introduction of the double jeopardy clause. The fact that only Kagan and Ginsberg joined in the dissent is really troubling to me. My opinion of Roberts dropped considerably with his opinion here. I thought he tended towards originalism. It appears however that he tends toward pragmatism.

59 posted on 05/24/2012 10:42:09 PM PDT by P-Marlowe (Virgil Goode! Because everyone else is Bad!)
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To: MacMattico; xzins; SeaHawkFan
But they still went back and were in further deliberation, having never made an official acquittal, as was the MAJORITY opinion.

Did you even read the majority opinion? The constitution was given short shrift by Roberts and his whole decision relied on his own personal opinion of what constitutes a "verdict". Sotomayor wrote a classic argument for the original intent of the constitution. Sotomayor argued for the Constitution. Roberts argued for some form of procedural correctness and ignored the words of the constitution.

Read both opinions and then ask yourself which opinion sounded like it was written by a Justice who believes in Original intent.

60 posted on 05/24/2012 10:46:50 PM PDT by P-Marlowe (Virgil Goode! Because everyone else is Bad!)
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To: MacMattico

Yes, my non-attorney opinion reaches the same conclusion. Otherwise you’re on the slippery slope where mistrials and the like have to go as well.


61 posted on 05/24/2012 10:57:05 PM PDT by 9YearLurker
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To: P-Marlowe
The forewoman told the judge that the jurors were unanimous against capital and first-degree murder, had split 9 to 3 against manslaughter and did not vote on negligent homicide.

The judge sent the jurors back for more deliberations, but half an hour later the forewoman reported no verdict. The court declared a mistrial.

It was a mistrial. OF COURSE the scumbag can be retried.

The jury was charged with walking down a ladder of charges, beginning with the most serious charge and ending with the least serious (or, complete acquittal). The jury never concluded its work, a mistrial was declared, and it was only at this point that the judge banged his gavel. Just because this jury got stuck walking down the ladder doesn't mean they couldn't, upon further deliberation, walk back UP the ladder to the more serious charges.

Anyway, sorry, but, "the forewoman told the judge", just doesn't cut it.

62 posted on 05/24/2012 11:11:28 PM PDT by Lancey Howard
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To: P-Marlowe

Roberts wrote the opinion, 5 others agreed. Double jeopardy kicks in when it involves a legitimate acquittal, which I don’t believe ever existed. Just because a jury foreperson spoke in open court during deliberation and expressed the belief that the other jurors unanimously thought the defendant was not guilty of murder doesn’t constitute an acquittal. More deliberations followed after this statement and then the jury was dismissed. Each juror was never questioned as to their guilty or not guilty decision. Procedure must follow original intent, and I don’t see where this doesn’t.


63 posted on 05/24/2012 11:14:08 PM PDT by MacMattico
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To: P-Marlowe
Sotomayor argued for the Constitution.

That's an absurd statement on the face of it. I'll go with Scalia, Thomas, Alito, and Roberts, thank you very much. (Astonishingly, even Breyer stumbled into the correct decision this time.)

By the way, I have a theory that the three liberal Democrat women on this court voted the way they did because they see a conviction for the killing of a one-year old toddler as a threat, somehow, to partial birth abortion. I am pretty sure there's a tie-in to abortion.

But the Constitution has nothing to do with the way these three morons voted. The very idea is laughable.

64 posted on 05/24/2012 11:27:23 PM PDT by Lancey Howard
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To: P-Marlowe

It sounds like Arkansas law requires the jury return a verdict on all charges presented during trial, and until they do so, there is no verdict. The jury reported they were hung on one of the charges, manslaughter, therefor the Judge declared it a hung jury and ordered a retrial. Had they gone back and deliberated the manslaughter charge some more, a rehash of the evidence might have convinced them to change their minds on the murder charge.

The SCOTUS judgement really affirms Arkansas has the right to require its juries to render verdicts on ALL charges, or else require a retrial. This doesn’t seem unreasonable in that light. But ... whatever happened to requiring a jury to deliberate for as long as it takes ? It sounds like the judge dismissed the jury early in order to favor a retrial when they weren’t going to deliver the verdict HE wanted.


65 posted on 05/25/2012 12:00:06 AM PDT by Kellis91789 (The ultimate result of shielding men from the effects of folly is to fill the world with fools.)
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To: P-Marlowe

I you are acquited of murder, and they can’t agree on manslaughter and negligent homicide, then how can they retry you on that same event?

In my opinion, there’s something wrong with the prosecutor being able to list different kinds of charges for the same offense just to see which one sticks.

Sounds like the prosecutor is the problem, and that a system is the problem when it enables the prosecutor to get more than one bite at the apple to begin with.

If the guy thought it was murder then he should have charged murder, period. Or manslaughter. Or negligent homicide.

That appears to me to be the problem with the system. Prosecutors should have to decide on one trial. It sounds like he over-charged just as a gamble, and now he’s being rewarded for piling on.

The double jeopardy freedom should also preclude multiple charges for the same offense....to include the “violating civil rights” catch-all.


66 posted on 05/25/2012 4:57:03 AM PDT by xzins (Retired Army Chaplain and Proud of It! True Supporters of Our Troops Pray they Win every Fight!)
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To: null and void
IIRC, I seem remember when OJ was on trial and there was talk of a hung jury, if the jury could not come to an unanimous decision, because of a hold-out on the jury, either way it went. If that had happened, the talk was the government was prepared to bring murder charges again, with a new top-notch prosecutor, instead of the terrible one they had in the first trial. Why is this case any different?
67 posted on 05/25/2012 5:35:07 AM PDT by rawhide
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To: All

The Constitution says you can’t be tried twice for the same offense. The Courts have abrogated that part of the Constitution with technicalities. Its not that unusual for a person to be put on trial four or five times for the same offense. I know specifically a case where a woman was tried three times for the same alleged murder before she was finally acquitted.


68 posted on 05/25/2012 5:39:52 AM PDT by Valentine Michael Smith (You won't find justice in a Courtroom)
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To: xzins; MacMattico; SeaHawkFan; Lancey Howard
The problem in this case is the nature of the jury instructions and the nature of Arkansas law. The jury was instructed to consider the charges in order and if they determined the defendant was NOT GUILTY of the most serious charge, then they were to make a decision on the next most serious charge and if he was not guilty of that then consider the next most serious charge and then go down the line. Arkansas law does not allow for a jury to render a verdict in this kind of situation unless there is a conviction on one of the charges but no decision on the rest.

Based on the nature of the jury instructions, the defendant was subject to double jeopardy because he was literally acquitted of the two murder charges but there was a hung jury on the non-murder charges. To try him again on the murder charges is clearly unconstitutional.

These are all the same incident, but different crimes. In many cases the prosecution will gamble and not bring a lesser included offense and only charge murder. In that case the jury would have to either convict, aquit or be hung. That is what happened in the Casey Anderson case. There was no option for a lesser included offense and the jury acquitted her. In this case the prosecutor opted to bring 3 lesser included offenses but there was no down side to the prosecutor to overcharge because if the jury were to do what they did and vote to acquit on the murder charges, but not be able to decide on the third, then the prosecutor would get a new bite at the apple on all charges.

The jury instructions prohibited the jury from even considering the negligent homicide charge unless they voted to acquit the defendant of the charge of voluntary manslaughter.

Based on the instructions given to the jury, they clearly rendered a verdict of not guilty of murder but because of the jury instructions they were not allowed to consider the crime of negligent homicide, which he was most likely clearly guilty of at the least.

Sotomayor's opinion is spot on and it is a pretty good example of a Supreme Court opinion that relies heavily on the intent of the founders in putting this clause in the constitution.

This case is a pretty scary precedent if you believe in the Constitution. To think that only Sotomayor, Kagan and Ginsberg were on board with the Founding Fathers on this case is pretty scary and is a good reason why I can never make a promise to a judge that if called as a juror that I will follow his instructions.

69 posted on 05/25/2012 6:01:19 AM PDT by P-Marlowe (Virgil Goode! Because everyone else is Bad!)
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To: P-Marlowe

As you stated, this decision is one of the most blatant examples of style over substance.


70 posted on 05/25/2012 6:29:57 AM PDT by SeaHawkFan
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To: TennesseeProfessor

You got that a little wrong. When the jury notified the judge that they were hung on the third charge, this was not a verdict; nor was the statement that they were unanimous on the first and second charges. And since they were hung on the third charge, in effect they rendered *no* verdict at all. Not guilty, not guilty, or innocent. Nothing.

At that point, when the judge declared a mistrial, it was as if the trial never happened, so the prosecution and defense were back to square 1.


71 posted on 05/25/2012 7:03:56 AM PDT by yefragetuwrabrumuy
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To: null and void

The jury did not acquit. There is only one verdict for a trial that has been done when the jury has finished its deliberations. No such thing as an intermediate verdict. And since the jury hung on the third count, the trial was effectively over with a mistrial.

The only decision after that was the prosecutors, if he wanted to retry the case from the beginning with a new jury.


72 posted on 05/25/2012 7:08:33 AM PDT by yefragetuwrabrumuy
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To: P-Marlowe

“How can you defend this decision? “

I will defend it.

Until the following happens in the courtroom:
“Ladies and gentlemen of the jury, have you reached a verdict?”
“Yes, we have...”

.... occurs, there is no “verdict”.
There is no “conviction”.
There is no “acquittal”.

A formality, yes — but in this case, it never happened. The trial never reached that point.

It is often heard said right here in this forum that “words mean things”.
In a court of law, so too do such things as “following procedure” have meaning and effect.

Double-jeopardy is a concept that protects an individual AFTER a verdict has been reached. In this case, the “procedure” never reached the point where a “verdict” was achieved.

Again, words (and procedures) mean things.

Right here on Free Republic we stress the importance of appointing judges to our courts who will not “bend” the rules of law to their liking, who will interpret the laws “strictly” as they have been written. This case is an illustration that with the Roberts Court, we are seeing those principles in action.


73 posted on 05/25/2012 7:48:49 AM PDT by Road Glide
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To: Olog-hai

No legal verdict, no double jeopardy.

I can say I’m going to vote for candidate x all I want, but if I don’t actually go to the polling place and cast a legal ballot, it doesn’t count.

The same applies to juries. A poll of jurors in the course of deliberations without reaching a lawful verdict is just opinion. Procedures matter. Or would you like to have someone convicted on an informal straw poll instead of following the proper procedure?

The law in question may or may not be a good, or even a just law, but that is not the question. The question is does the law in question violate the right against double jeopardy? The answer is no, it may be a procedural technicality but it is a real distinction.


74 posted on 05/25/2012 8:02:09 AM PDT by GreenLanternCorps ("Barack Obama" is Swahili for "Jimmy Carter".)
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To: Road Glide; xzins; MacMattico; SeaHawkFan; Lancey Howard
Double-jeopardy is a concept that protects an individual AFTER a verdict has been reached.

The defendant was charged with 4 crimes. The court was advised that the jury had, in fact, reached unanimous verdicts of NOT GUILTY on the two murder charges.

In a court of law, so too do such things as “following procedure” have meaning and effect.

And in the Constitution the rule against being twice put in jeopardy for the same crime has an effect. In this case the jury had reached a verdict, but because of non-constitutionally mandated procedures (which are clearly not constitutional BTW) the defendant will have to face jeopardy again on charges which the jury had unanimously determined him to be not guilty of.

One thing I have noticed about so-called conservative justices. They are conservative on economic issues and they argue for original intent, but in criminal cases, they tend to ignore the original intent of the framers and tend to support procedures which favor prosecutors. In other words in criminal cases they rely more on Stare Decisis than the words of the constitution and in economic or civil issues they tend to be originalists, relying more on the actual words and meanings of the constitution and its founders.

In this case Roberts gave short shrift to the original intent and instead relied heavily on a definition of "Verdict" that was entirely procedural and not substantive at all. In substance the defendant was undoubtedly acquitted of the crime of Murder whereas procedurally the judge in the case gave instructions which prohibited the jury from actually entering that verdict into the record.

Trying the defendant a second time on the murder charges is clearly a violation of the intent of the founders in drafting the double jeopardy clause. Of that I do not believe there is a legitimate argument to the contrary and Roberts never addressed that issue in his opinion. Instead he relied solely on the procedural aspect of the case in which the jury did not "officially" find the defendant not guilty and he ignored the FACT that the jury had indeed reached a verdict of not guilty on that charge.

Can you argue your position using the actual words of the Constitution and the statements of the founders in drafting that clause? Or are you just going to argue that since the jury's unanimous not guilty verdict was not entered into the record that there is no such thing as double jeopardy in this case.

75 posted on 05/25/2012 8:27:31 AM PDT by P-Marlowe (Virgil Goode! Because everyone else is Bad!)
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To: P-Marlowe

The irony is that if the prosecution had charged the defendant solely on a count of murder and the jury acquitted him, the prosecution could certainly NOT then come back and say, “Okay, that didn’t work - - let’s try manslaughter and see if that works”. Because THAT would be double jeopardy. In other words, had the judge declared “Not guilty!” on a charge of murder, banged his gavel, and dismissed the jury, the case would be over and the defendant would never be vulnerable to charges - - any charges - - for that same crime again.

The Supreme Court was apparently reluctant to parse its ruling down to a matter of semantics, ie., the names and words used for the charges. The jury must conclude its work or it is a mistrial. If the jury does not conclude its work and there is a mistrial, then how could it be considered reasonable to bind the hands of the next jury that will have to deliberate on the same case?


76 posted on 05/25/2012 9:03:50 AM PDT by Lancey Howard
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To: Lancey Howard; Road Glide; xzins; MacMattico; SeaHawkFan
If the jury does not conclude its work and there is a mistrial, then how could it be considered reasonable to bind the hands of the next jury that will have to deliberate on the same case?

They would not be binding the hands of the next jury, they would be binding the hands of the prosecutor in the next trial by prohibiting the prosecutor from charging the crime of murder.

The stipulated facts in this case were that the jury clearly and unequivocally voted unanimously to acquit the defendant of murder. The mistrial was called because they could not reach a decision on whether he was guilty of voluntary manslaughter. They never even were allowed to take a vote on the charge of negligent homicide.

Here the prosecution gets a second bite at the apple when the first jury voted to acquit. I don't understand how anyone can't see that this is double jeopardy.

For the first time in her career Sotomayor has written an opinion with which I am in total agreement. Roberts has issued an opinion strong on procedure and short on constitutional analysis.

77 posted on 05/25/2012 9:22:48 AM PDT by P-Marlowe (Virgil Goode! Because everyone else is Bad!)
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To: GreenLanternCorps
I can say I’m going to vote for candidate x all I want, but if I don’t actually go to the polling place and cast a legal ballot, it doesn’t count.

Precisely. As stated in an earlier post, "the forewoman told the judge...", doesn't cut it.

78 posted on 05/25/2012 9:39:19 AM PDT by Lancey Howard
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To: GreenLanternCorps; Olog-hai; Road Glide; xzins; MacMattico; SeaHawkFan; Lancey Howard
I can say I’m going to vote for candidate x all I want, but if I don’t actually go to the polling place and cast a legal ballot, it doesn’t count.

Actually a more apropos analogy would be that you went to the polling place and you did cast your vote for president, but the Secretary of State refused to count your vote because you didn't vote for a school board candidate and your ballot was invalid because you left part of your ballot blank.

Here the jury did cast their vote on the murder charges. The voted to acquit. They left the ballot blank on the manslaughter charges.

79 posted on 05/25/2012 9:53:06 AM PDT by P-Marlowe (Virgil Goode! Because everyone else is Bad!)
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To: piytar
Me too. The plain language is “tried,” not “acquitted.” He was tried.

You know, that's an interesting point. I hadn't thought about that. It would require a major shift in current legal procedure though, because there could no longer be a mistrial, ever, unless it was declared on the first day.

80 posted on 05/25/2012 10:16:49 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: xzins

Agreed. I think shotgun charging (in the absence of a non-contradictory theory of the crime that explains each charge independently) needs to go, and that something needs to be done to rein in overcharging as a tactic. If I’m on a jury and I think the prosecutor overcharged as a tactic, the guy walks, for instance. Somewhere between eliminating the incentive and creating a disincentive it’s gonna stop.


81 posted on 05/25/2012 10:24:09 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Still Thinking

Actually, I goofed. The key word is “jeopardy.” You aren’t really in jeopardy until the issue is submitted to the jury. That’s where I’d draw the line. It’s the plain meaning.

And you are correct, it would be a major shift - back to the Founders’ intent!


82 posted on 05/25/2012 11:02:08 AM PDT by piytar (The predator-class is furious that their prey are shooting back.)
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To: P-Marlowe; All
I don't agree with you P-Marlowe. The whole problem, in this hypothetical, is that no ballot was ever cast, even though the jury forewomen was saying to the judge that she and the other jury's supported candidate x, they never cast their ballot.

Yes, I can see how the wise Latina would take that as a binding vote./s

83 posted on 05/25/2012 12:55:21 PM PDT by MacMattico
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To: P-Marlowe

It would tie the hands of the next jury because they would not feel free to ask the judge certain questions during deliberations, lest it be taken as a verdict. The verdict is rendered after all deliberations are completed, minds can be changed, that point was never reached here.


84 posted on 05/25/2012 1:03:20 PM PDT by MacMattico
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To: MacMattico; xzins; SeaHawkFan
I don't agree with you P-Marlowe.

It appears to me that you are a Proceduralist when it comes to Bill of Rights questions rather than an Originalist.

That is fine. That is where we disagree. I take the Constitutional prohibition against double jeopardy a little more literally and more in keeping with the original intent of the framers than you. Apparently you are in the majority.

Up to this point you have not bothered to even address the original intent of the framers in drafting the double jeopardy clause or the historical reasons why the framers felt it was necessary, but then neither did Justice Roberts.

85 posted on 05/25/2012 1:38:46 PM PDT by P-Marlowe (Virgil Goode! Because everyone else is Bad!)
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To: Road Glide; P-Marlowe; SeaHawkFan; MacMattico; xzins; 9YearLurker; Lancey Howard
Double-jeopardy is a concept that protects an individual AFTER a verdict has been reached.

Actually, it has been held in some cases to attach as soon as the prosecutor makes his opening statements. If it didn't, a prosecutor whose witness got caught in a lie could (with a friendly judge) have a "mistrial" declared, giving his witness another chance to get his story straight.

I don't know exactly what arguments were made by the petitioner and respondent in this case, and I recognize that it is bad for the Supreme Court to make binding decisions based upon arguments not presented before the Court. I do wish that the Supreme Court would be willing to dismiss cases without prejudice in cases where the losing side failed to make the best possible arguments and/or explicitly state in its decisions that it is not deciding the merits of potentially-better arguments. In a case like Lawrence v. Texas, for example, the proper ultimate outcome IMHO would most likely have been for the case to be remanded to trial court, with jury instructions requiring the state to prove things that it probably couldn't. A non-activist court could not issue such a remedy, however, without it being presented by a party before it. Given that restriction, the Court should have offered the defendants a chance to seek such a remedy, and given the state a chance to argue why they should not receive it. Had the defendants declined the Court's invitation to present such an argument, the Court should have found against the defendants, explicitly stating that its decision should in no way be construed to imply that it had made a determination on the argument the defendants could have--but refused to--raise.

Returning to the case at hand, the proper argument IMHO should have been that once the prosecutor has begun presenting his case, a defendant may only be retried after a mistrial if either:

  1. The mistrial occurs as a result of something clearly outside the state's control (e.g. many members of the jury get the flu and need hospitalization), or
  2. The mistrial is caused by the actions of the defense, or
  3. The state can establish that the jury would not unanimously agree to acquit the defendant, even if allowed to do so
In cases where there is genuinely a hung jury for any particular charge, the state should have no problem finding at least one juror to go on record as stating that at least one juror was holding out for conviction on that charge. Conceptually, all twelve jurors should be willing to go on record as saying the holdout exists, but even if some are not, the fact that any would claim that a holdout exists would constitute proof that one does.

The fact that courts have not previously required any jurors to state on record that at least one juror was holding out for conviction does not mean all previous retrials after hung juries were invalid. Such retrials should be presumed valid in cases where the state can reasonably claim that it's likely some jurors would have refused to acquit on the charges for which the defendant is being retried. On the other hand, if jurors have stated in open court that they agreed that the defendant was not guilty of certain charges, such a statement would serve to rebut the state's claim that at least one juror would likely have held out for conviction.

86 posted on 05/25/2012 3:53:37 PM PDT by supercat (Renounce Covetousness.)
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To: MacMattico
It would tie the hands of the next jury because they would not feel free to ask the judge certain questions during deliberations, lest it be taken as a verdict.

In what way would future juries' hands be tied if there were a requirement that if the state wants to retry a defendant on a particular charge following a hung jury, it must be able to plausibly claim that the jury would have been unlikely to unanimously acquit the defendant for that charge if allowed to do so? The state could easily meed such a burden going forward by having at least one juror to go on record as saying that. Note that the juror(s) going on record would not have to identify themselves (nor anyone in particular) as being the reason that the jury wouldn't acquit. If any juror is holding out for conviction, and if all twelve jurors are honest, the jurors should unanimously agree that there was at least one holding out for conviction. Even if some jurors might dishonestly claim that they were all willing to convict, even a single claim of non-consensus would be inherently self-validating.

Even if states haven't gone through the trouble in previous cases of putting jurors on record as saying that at least one was unwilling to acquit, it's reasonable to presume that--absent evidence to the contrary--hung juries were a result of at least one juror's unwillingness to acquit. In the case at hand, though, there exists evidence to rebut that presumption.

87 posted on 05/25/2012 4:13:49 PM PDT by supercat (Renounce Covetousness.)
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To: Still Thinking
Agreed. I think shotgun charging (in the absence of a non-contradictory theory of the crime that explains each charge independently) needs to go, and that something needs to be done to rein in overcharging as a tactic.

Charging someone with multiple inclusive offenses is entirely reasonable and proper in cases where the criminality of certain actions may be affected by other actions or demonstrable intentions. If someone commits homicide with malice aforethought, that person commits Murder in the First Degree. If someone commits homicide deliberately and without anything resembling a belief that the action was legitimate, but does it without malice aforethought, that person commits Murder in the Second Degree. If the person has a sincere but unreasonable belief that the action was necessary for self-defense, the person commits Manslaughter.

If the state can prove that an accused killer cannot have had any objectively-reasonable basis for believing that his action would be justifiable, and has witnesses that would indicate that defendant had pre-arranged a sham self-defense defense before killing the decedent, the state should be able to charge the defendant with First Degree Murder without having to give up the charge of manslaughter. Among other things, if the state had to give up on a manslaughter charge in order to bring a murder charge, a defendant who was guilty of manslaughter could bait the state into bringing a murder charge with a "witness" who would support the murder charge until brought to the stand but then reveal himself to be absolutely non-credible.

The real problem isn't with "shotgun charging" in cases where the extent of the defendant's criminality may be unclear, but rather outright over-charging by prosecutors seeking a plea-bargain.

88 posted on 05/25/2012 4:31:13 PM PDT by supercat (Renounce Covetousness.)
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To: null and void

*blink*

I guess that’s the it, the fifth doesn’t protect against being put in jeprody of life and limb multiple times OR ensure that eminent domain is a) for public use, and b) paid a fair value.

Question: are such decisions criminal felonies under 18 USC 242 & 241? {Remember, the Supremem Court is *NOT* allowed to modify/alter/amend the Constitution, which is in effect what this & Kelo are.}


89 posted on 05/25/2012 8:39:58 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: MacMattico
I don’t think it ever got to that point. No verdict was officially rendered before the jury was dismissed.

It might be that the jury, and the man, has a case against the judge for the felony 18 USC 242 -- Deprivation of rights under color of law.

90 posted on 05/25/2012 8:48:26 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Secret Agent Man
This destroys the entire concept of double jeopardy. Just have a judge dismiss a jury before verdicts because you don’t think it’s going the way you want, and you can retry a person again. Not good.

Bingo.

I think there's a case against the judge via 18 USC 242, but that's my opinion.
And the USSC with 18 USC 241 -- The supreme court *does NOT* have the authority to alter/amend the constitution; this decision is the court destroying what remained of the 5th Amendment.

91 posted on 05/25/2012 8:51:23 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: P-Marlowe
I have jury duty next week and if some judge asks me whether or not I am going to follow his jury instructions I'm going to tell him that I probably won't.

Don't do that!
Instead read up on 18 USC 241 & 242; and remember that it is your right as a juror to try not only the facts but the law as well.

Plus, if you can get instructions which are contrary to the Constitution (read the bill of rights, and your state's equivalent in its constitution) you can file charges against him. I would *SO* love to bring charges against the courts.

92 posted on 05/25/2012 8:57:56 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Lancey Howard
But the Constitution has nothing to do with the way these three morons voted. The very idea is laughable.

Then explain:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Obviously the phrase "to be twice put in jeopardy of life or limb" means to be tried twice.
Obviously the phrase "be subject for the same offence" modifies that by restricting the multiple-trials to the same matter.

Given those two phrases, I think the whole concept of 'mistrial' (in capital cases. at least) is contrary to the Constitution.
Give your reasoning on why I am wrong.

93 posted on 05/25/2012 9:16:54 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark
Give your reasoning on why I am wrong.

I'm no lawyer - - I only play one on Free Republic.
That being the case I will defer to the judgment of Scalia, Thomas, Roberts, and Alito. Those guys are really, really good lawyers.

94 posted on 05/25/2012 9:42:54 PM PDT by Lancey Howard
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To: Lancey Howard
That being the case I will defer to the judgment of Scalia, Thomas, Roberts, and Alito. Those guys are really, really good lawyers.

Having not seen the case presented by the accused defendant, I can't say whether the Supreme Court could have reached any other decision without evaluating arguments that were not put before it. Unfortunately, if someone who appears before the Supreme Court fails to make what would have been a winning argument, their loss at the court ends up being effectively binding upon people who were not parties to the case, and who could have presented better arguments.

For the Double Jeopardy rule to have any effective meaning, a retrial after a mistrial should only be allowed when (1) it's likely that the first jury would not have acquitted, even if it had been allowed to do so, or (2) the mistrial was caused by the defense's actions, or (3) the mistrial resulted from unforeseeable circumstances which would not have been prejudiced against the defendant. If the failure of a jury to render an official verdict would be sufficient to declare a mistrial, a hostile judge could declare "mistrial" on any case he thought he would lose.

95 posted on 05/27/2012 9:43:25 AM PDT by supercat (Renounce Covetousness.)
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To: supercat
For the Double Jeopardy rule to have any effective meaning, a retrial after a mistrial should only be allowed when (1) it's likely that the first jury would not have acquitted, even if it had been allowed to do so

I generally agree with your reasoned posts on this thread, but that word "likely" is problematic.

FRegards,
LH

96 posted on 05/27/2012 9:59:14 AM PDT by Lancey Howard
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To: OneWingedShark
Given those two phrases, I think the whole concept of 'mistrial' (in capital cases. at least) is contrary to the Constitution. Give your reasoning on why I am wrong.

The Constitution assumed a legal system modeled after English Common Law; it would have to be much, much, longer if it spelled out in detail all the details thereof, rather than assuming them. If a legal system requires a unanimous "guity" vote to convict and requires more than one "not guilty" for an outright acquittal, there will be an unavoidable possibility of some outcome other than conviction or acquittal. I don't know much about 18th Century Common Law practices, but I believe judges were more insistent than today that jurors deliberate until they reach a unanimous verdict. That having been said, for the Double Jeopardy provisions to really mean anything, the state's ability to declare a mistrial which would permit a retrial must be severely limited. Indeed, I would suggest that--since issues of "reasonableness" aften reset on factual matters, and since defendants have the right to have factual matters determined by jury, a defendant should have the right to have the jury at the retrial be informed of the circumstances surrounding the mistrial, and instructed that they may only convict the defendant on charges where it would appear the previous jury would not have acquitted him. In many cases, the defense would not benefit from such instruction (a jury may not look kindly on a defendant who seems to be fishing for a technicality), but in cases where such presentation and instruction would tip the jury in its favor, it should be allowed to raise it.

97 posted on 05/27/2012 9:59:57 AM PDT by supercat (Renounce Covetousness.)
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To: supercat

What ever happened to the old - think Perry Mason - way of taking verdicts one count at a time?

I.E. On the first count of .... how do you find?

On the second count of .... how do you find?

etc.......


98 posted on 05/27/2012 10:22:11 AM PDT by Willgamer (Rex Lex or Lex Rex?)
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To: Lancey Howard
I generally agree with your reasoned posts on this thread, but that word "likely" is problematic.

Indeed, such terms can be problematic, and defendants should retain the right to have them evaluated by a jury (see post #97). As applied to the case at hand, however, would seem unlikely that the first jury would have done anything other than acquit on the more serious charges, had they been permitted to do so. Whether or not the first jury had "officially" indicated anything with regard to the more serious charges, I believe both sides in this case have agreed that the jury had clearly indicated that it would have acquitted on those charges if allowed to do so. One cannot reasonably claim that the jury would have been "likely" to do otherwise.

99 posted on 05/27/2012 10:44:48 AM PDT by supercat (Renounce Covetousness.)
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To: supercat
An argument for following procedure and making things "official" can certainly be made. See posts #44 and #48, then apply the moral of that story to this case. It is why I stand by my opinion that, "the forewoman told the judge...", just doesn't cut it. The opposite of "likely" (probable) is "unlikely" (improbable = possible). Until a verdict is official and the jurors have been polled, nearly anything is possible, including a last-second change of heart.
100 posted on 05/27/2012 11:27:28 AM PDT by Lancey Howard
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