Last edited Thu May 24, 2012, 05:37 PM - Edit history (1)
http://www.supremecourt.gov/opinions/11pdf/10-1320.pdf
Please note, ALL the Males on the Court (Including Breyer, who is noted as part of the "liberal" wing of the court voted to permit re-trial on these issues, but all the Females voted to call it Double jeopardy).
The dissent points out the case should be decided based on Arkansas is a "hard transition" jurisdiction and then points out WHAT that means:
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, “before 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).
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 firstdegree 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: “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.” 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.
Several pages later:
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 defendant’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....
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 in 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.
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