Rules? What Rules? The Only Rule Is I Win

No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.

That's the Double Jeopardy Clause of the Fifth Amendment. And if you've paid any significant attention, you know that it doesn't come close to meaning what it says.  If there was any doubt, Justice Rehnquist made it clear back in 1984.  In Richardson v. United States, and looking back 160 years to Justice Story's one paragraph opinion for a unanimous court in United States v. Perez, Rehnquist wrote:

The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic.

I have, of course, written about this a number of times. A couple of years ago, after quoting that sentence of Rehnquist's, I added this comment.

When ordinary logic won't do, when they have to develop a new and special sort of logic, you know the rule they'll come up with makes no sense. Here's the rule: Even though the judge sent the first jury home, they then called a new jury and started over, the new trial is still the same trial.

The hard and fast rule though, the underlying rule, the rule that's supposed to be there, the one everyone says is there, is that an acquittal bars a retrial. A hung jury is one thing, but when 12 good men and true (even if there are some women and some folks who aren't all that good or true among them) agree that the government didn't prove it, that's the end.

Except, of course, when it's not.

AN INTERLUDE TO DISCUSS THE UNCERTAINTY PRINCIPLE

Not the uncertainty principle of quantum mechanics that Einstein hated and disparaged in that line about God not playing dice with the universe.  This is about a linguistic, a syntactic uncertainty principle.

When we lived in Lubbock, Texas (One-time slogan from the tourist bureau: "Visit Lubbock - For All Reasons"), we came to love the regional linguistic idiosyncrasies.  My wife was always particularly charmed by local uses of fixin' as in, most curiously to her, 

I'm fixin' to have a baby.

I was most taken by a local example of what William Safire, in his language columns for that Yankee newspaper The New York Times, referred to as "the qualified conditional."  Conditionals are those verb forms that denote uncertainty.  (E.g., could, as in "I could do that.")  A qualified conditional doubles down.  Take that conditional and add another conditional to it.  Typically, the result was might could.

The thing is, they didn't always mean it.  Oh, sometimes they did.

I might could go the south of France some day.

Really, you heard sentences like that.

Other times, though, the qualified conditional was just a verbal tic.

I might could have me another beer, please.

END OF INTERLUDE

Yesterday, the Supreme Court decided Blueford v. Arkansas. 

By a 6-3 vote, and in an opinion by Rehnquist's former clerk, now Chief Justice John Roberts, they turned the hard and fast, underlying rule, the one everyone agreed on, into a qualified conditional and recast the Double Jeopardy Clause as a doubletalk clause, a constitutional uncertainty principle.

Blueford was charged with capital murder (though the state determined it would not go after the death penalty) in the death of Matthew McFadden, Jr., one year old at the time he died.  Blueford said it was an accident. Under Arkansas law, the jurors had four choices, in descending order of seriousness.

1. Capital murder
2. Murder in the first degree
3. Manslaughter 
4. Negligent homicide

They also had what's known as an "acquittal first" instruction.  That is, they were first to decide whether Blueford was guilty of capital murder.  Only if all twelve agreed that he was not, could they go on to decide whether he was guilty of murder in the first degree.  And only if all twelve agreed that he was not, could they go on to decide whether he was guilty of manslaughter.  And so on.  They had five verdict forms.  For each of the offenses, they had one that they could sign if they all decided he was guilty of that offense.  And they had one to sign finding him not guilty of anything.

What they didn't have was a verdict form that would have allowed them to say that he was not guilty of, say, capital murder and manslaughter. Which is why . . .

So the jurors sent a note after a few hours saying they were deadlocked.  The judge called them back into court and read them what's known as an "Allen charge," and is designed to push them to a verdict.  (It's sometimes called a "dynamite" charge.) A half hour later they sent another note.

We "cannot agree on any one charge in this case"

The judge brought the jurors back again.  The foreperson said they were "hopelessly" deadlocked.  Then she answered some questions from the judge.  Roberts quotes from the transcript.

     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.

Back they went after another Allen charge.  But still they deadlocked.  So the judge declared a mistrial and sent the jurors home.  And the prosecutor determined to try Blueford again.

OK, we know that in any world where logic controls and words have actual denotations that matter this would violate the Constitution's proscription against trying him twice for the same offense. We also know that in the special-logic, Humpty-Dumpty-linguistics world of double jeopardy it's no such thing.

But we also know (yes, Grasshopper, there are many things we know), that he was found not guilty by 12 good men and true (including women and those not good and not true) of both capital murder and murder in the first degree.  So they're off the table in the retrial. Just manslaughter and negligent homicide.

Or maybe not.

It's a complete do over, said the prosecutor.

Right, you get to do it all again, said the judge.

But, but, but sputtered Blueford (or, more precisely, his lawyers).

What about the absolute rule, the underlying one, the one everyone agrees on?

• Doesn't apply said the judge.
• Doesn't apply said the Arkansas Supreme Court.
• Doesn't apply said John Roberts (who was joined in that by the rest of the men on the court - Scalia, Kennedy, Thomas, Breyer, Alito).

See, the jurors never signed a verdict form saying that they all agreed Blueford didn't commit capital murder or murder in the first degree.  So they could still have changed their mind. Oh, sure, they didn't have such a form, but what's a minor technicality like that among friends.  They'd decided.  Unanimously. And gone on to the next thing.

After all, they were stuck deciding whether he'd done something less.  It's certainly possible that one of them might have said to the others, 

You know, as we're sitting here I realize that although I'd thought it was all an accident, and while were discussing whether it was manslaughter, it dawns on me that I'm not convinced by the evidence it wasn't capital murder. So I want to go back to the top.  And how come we don't get to give him a death sentence?

Which is essentially what Roberts and the boys said could have happened.  Because they never signed those verdict forms saying they found him not guilty of capital murder and of murder in the first degree.  You know, the forms they didn't have. Hell, they could have made up a form themselves.  (Really, they could have.  There's an Arkansas case that says so.)

But what, you may be wondering, what of the women?  If the men all signed off on the opinion, what of the women?

They dissented, of course.  Wimps.  Now Justice Sonya Sotomayor (joined by Ginsburg and the former Generalissima) explained that form shouldn't trump substance, that of course the jury acquitted of capital murder and murder in the first degree even if they didn't use the a word or sign a form saying so, and that if they had gone back and revisited the greater offenses, it would have been incorrect.

Because there's this basic, underlying rule of double jeopardy, that when 12 good men and true (including women and the bad and false) agree that the state didn't prove it, it's over. As everyone agrees.

Except when it might make a difference.

Scalia didn't bother to write his own opinion.  Had he, it seems a safe bet he'd have once again explained the dangers of conscience and fairness and how the good judge or justice lacks one and knows that it's wrong to strive for the other.