Is That Your Final Answer? Double Jeopardy and Partial Verdicts

The United States Supreme Court released its decision in Blueford v. Arkansas last week.  The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

CCA Affirms Disjunctive Conviction

In May of 2010, I blogged about Young v. State, a case out of the 3rd District Court of Appeals (Austin), wherein the court upheld a conviction for failure to fulfill sex offender reporting requirements even though the jury was not required to return a unanimous verdict regarding the means of the failure.

Last week, the CCA affirmed the case, holding that:

It has long been held that juror unanimity is required in felony cases by the Texas Constitution and in all criminal trial by state statutes.  Put simply, the jury must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed...  Jurors must unanimously agree only that a sex offender failed to fulfill his reporting duty; they are not required to agree as to how he failed that duty.

See the CCA opinion HERE.

See my previous post with amplified details HERE.

Texas Pick 'Em; No Jury Unanimity In Continuing Child Sexual Abuse Cases

The issue of jury unanimity in Texas felony cases is a complicated area of the law.  TDCAA published a good article on the subject a couple of years ago.  Simply speaking, Texas criminal law generally requires a unanimous jury verdict wherein the all members of the jury agree on the elements of the offense.  A bit of a wrench is thrown into this system when we consider the offense of "continuous sexual abuse of a young child or children" under section 21.02 of the Texas Penal Code.

Under section 21.02, a jury is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.  Specifically, subsection (d) of 21.01 provides:

If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

Arguably, allowing jurors to simply pick and choose which instances (2 or more) of abuse they believe the State proved beyond a reasonable doubt without requiring that they all agree on the specific instances "undermines the weight or effect of [Texas's] rules for the mere purposes of returning a verdict."  This was the argument of Richard Michael Reckart in his appeal of his conviction to the 13th District Court of Appeals.

With a wave of the hand, the 13th Court dismissed Reckart's claim, holding:

Reckart, however, does not cite any cases that support his claim that the right to an impartial jury under the Federal or State Constitution includes the right to a unanimous jury, and we have found none. See Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (plurality agreeing that in state criminal prosecution, less than unanimous verdict did not violate Sixth Amendment right to impartial jury); see also State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *3 (Tex. App.–Dallas June 30, 2010, pet. filed) (not designated for publication).

I guess I should know as well as anyone that there is no Constitutional right to a unanimous jury verdict, because we in the military justice system do not require such in any case except those involving the death penalty case (sentencing phase).  It just seems to me that if we, as a State, are going to require a unanimous jury verdict, that the requirement should be consistent as applied the the underlying offenses in a continuous abuse case.  If the jurors cannot agree on which acts were committed, isn't that called "reasonable doubt?"

Two Means of Committing a Single Offense

Robert Alan Young was charged with failing to comply with Texas's Sex Offender Registration requirements (see chap. 62 of Tex. Code Crim. Proc.) by failing to report his change of address either 7 days before his intended move or 7 days after his move was completed.  By so charging, the State was able to gain a conviction so long as the jury could agree that either of the 2 theories was established beyond a reasonable doubt.  After his conviction, Young argued on appeal that by charging the offense in the disjunctive, the State violated his right to a unanimous jury verdict. (I tend to agree.)

Think about.  What if half of the jurors believed that Young violated with the registration requirements by failing to report his change of address 7 days prior to his move, while the other half disagreed and believed that, rather, he failed to report his move within 7 days after it was effected?  It seems we would not have a uniamous verdict under either theory.  Oh, but that is not how it works (says the 3rd District Court of Appeals - Austin).

In Young v. State, the Court explained:

The single offense described by both article 62.055 and by the jury charge is the offense of failing to report a change of address.  This offense can be violated by failing to report the change in advance, aftewards, or both.  Those variations are evidentiary, not separate and dstinct elements of an offense.  Here, the statutory verb defining the criminal act is "report."  Thus, in this case, it is the act of reporting - or the failure to do so - upon which all jurors must agree.