By Sherry F. Colb
My column this week is about Blueford v. Arkansas, a Double Jeopardy case before the U.S. Supreme Court this term. Blueford was charged with capital murder and three lesser included offenses (first-degree murder, manslaughter, and negligent homicide). After the parties had presented all of their evidence at his trial, the judge instructed the jury to deliberate over one charge at a time, starting with the most serious, and to move onto a less serious charge only if jurors were unanimous in finding the defendant not guilty of the more serious charge. After deliberating, the foreperson reported to the judge that the jurors were deadlocked. Asked by the judge to explain what was happening, the foreperson elaborated that the jurors had voted unanimously to find the defendant not guilty of capital murder, had then voted unanimously to find the defendant not guilty of first degree murder, and had subsequently deadlocked on manslaughter (voting 9-3 guilty). The defense at that time moved for a partial verdict of acquittal on the first two charges, but the judge refused and declared a mistrial. The State went on to initiate a second prosecution for capital murder (and the lesser included offenses as well), over the Double Jeopardy objections of the defense. The case is now at the Supreme Court on an interlocutory appeal from the trial judge's refusal to dismiss the first two charges as barred by Double Jeopardy.
My column discusses the Double Jeopardy Clause and takes up the question whether Blueford is entitled to its protection against prosecution for capital and first-degree murder. One of the topics that arise in the column is one cost of having a Double Jeopardy Clause -- the inability to retry a case in which a jury finds a defendant not guilty despite overwhelming evidence of her guilt. When a jury acquits a defendant who is obviously guilty, the judge cannot issue a judgment notwithstanding the verdict, because of the defendant's right to trial by jury, and the prosecution cannot bring its case to a second, more reasonable, jury, because of the Double Jeopardy Clause. There is accordingly no remedy for the jury's error. This cost may lead some to doubt the value of the Double Jeopardy Clause, a doubt that would naturally motivate a narrow construction of the Clause to minimize its application as much as possible.
There are, of course, arguments going the other way, but I want to focus here on jury nullification, an issue that I did not discuss in my column but that I believe has a role to play in our thinking about Double Jeopardy. Jury nullification refers to what happens when a jury, after hearing the evidence as well as the judge's instructions, is factually persuaded beyond a reasonable a reasonable doubt that the defendant committed the crime with which she was charged, but the jury nonetheless issues a verdict of acquittal. Because jury acquittals are final, juries have the power to nullify the law in this way and have done so at various times in history, both for good (to refuse enforcement of the fugitive slave laws) and for ill (to refuse enforcement of the murder law against perpetrators of lynchings). The prospect of jury nullification -- because it represents a deliberate disregard of the law -- is arguably a greater threat to the integrity of the criminal justice system than the possibility that a jury will unreasonably remain unconvinced of a defendant's guilt in the face of overwhelming evidence. When people who support a criminal prosecution believe that a jury has engaged in nullification, they will predictably feel a desire to undo the damage that the jury has done, a desire that must go unfulfilled under our existing constitutional doctrine. One could therefore imagine the following exception to Double Jeopardy: when there has been nullification (a practice that is necessarily in violation of the jurors' legal duty, though sometimes nonetheless justified, like any violation of the law), a judge may declare a mistrial and allow for retrial of the case.
If an exception could be truly limited to cases of nullification, then it might represent a positive innovation. Of course, to those who believe that the criminal law should not be enforced at all, the loss of jury nullification would represent a tragedy. Assuming for the moment, however, that one does not take this position, is there still reason to avoid a nullification exception to Double Jeopardy?
I would suggest that the answer is yes. My reason is not that I like jury nullification. I have elsewhere discussed my views of nullification, and I am not a big fan of it. What worries me, however, is that judges could perceive nullification at work in acquittals that simply reflected a different view of the evidence from that of the judge. In other words, I think many of us are inclined to believe that anyone who looks at trial evidence will arrive at the same conclusions as those at which we have arrived. If I am right about this (and I must be, right?), then acquittals that we view as incorrect (because we disagree with them) will often appear to be instances of jury nullification when they are not.
One controversial example that leaps to my mind is the case of the People v. O.J. Simpson. Audiences broke down along racial, gender, and other lines in reacting to the verdict that followed a year-long parade of evidence presented against Simpson for the vicious murders of Nicole Brown Simpson and her friend Ron Goldman. Among those who believed that the evidence proved Simpson's guilt beyond any reasonable doubt, there was at least one common narrative of nullification: jurors viewed some of the police involved in investigating Simpson as having behaved reprehensibly (in a manner including expressions of racial animosity to African-Americans), and the jury decided that an acquittal would effectively punish the L.A.P.D. for perpetrating and tolerating such behavior.
Jurors, however, gave statements indicating that they honestly deliberated over the evidence that they had seen and heard and concluded that it did not measure up to the high standard of guilt beyond a reasonable doubt. One juror, for example, when asked what she would have done if the burden of proof were preponderance rather than beyond a reasonable doubt, reportedly said "Given that standard [preponderance of the evidence in a civil trial] and based on the amount of evidence that was presented, ... then yes, you would have to say that yes, he is guilty."
It is, of course, possible that jurors were lying and that they actually nullified. It seems more likely, however, that they simply viewed the evidence as inadequate to establish guilt beyond a reasonable doubt. For people who believed that the evidence was simply incompatible with a reasonable acquittal, however, it might have seemed impossible that the jurors truly considered the evidence and reached a different conclusion. If so, then a nullification exception to Double Jeopardy could easily morph into an ordinary "no reasonable juror" standard, whereby a judge who finds a jury's acquittal unreasonable would conclude that it must reflect nullification rather than simply a considered (and perhaps nonetheless unreasonable) judgment. An exception for jury defiance, in other words, would be difficult to contain.
For those hostile to Double Jeopardy, the failure to contain the nullification exception might not seem like a problem. Let us have a "no reasonable juror" standard for retrial, just as we have a mandatory acquittal when juries convict in the face of evidence that would not convince a reasonable juror of guilt beyond a reasonable doubt. In considering this possibility, however, it is worth remembering that a judicial power to order retrials (when acquittals are unreasonable) could easily become a power to refuse to accept an "incorrect" acquittal. A judge could then hear the same evidence that the jury heard and think "I believe the defendant is guilty, so the jury is unreasonable."
My tentative contention is that it is difficult for people to avoid slipping from "you and I reasonably disagree" to "you disagree with me and have arrived at an unreasonable view," and from that to "your disagreement with me reflects an ideological commitment on your part that overrides factual truth" is an easy slip as well. If we want to protect a criminal defendant's right to a jury trial, in which jurors -- and not a judge -- decide whether the evidence proves guilt beyond a reasonable doubt, it may be that a right against Double Jeopardy simply cannot tolerate a "jury nullification" exception. It may be that when it votes to acquit a defendant, the jury -- the original jury -- must have the last word if its word is to be protected at all.