May 27, 2012 Only Obama’s and Clinton’s Supreme Court picks get it right in recent mistrial opinion
Obama, in my opinion, is not better overall than Bill Clinton was as president, and I did not see Clinton as any big prize. I voted for them both seeing them as the lesser of evils compared to their Republican opponents, and not ready to have an insufficient impact by voting for a third-party candidate, particularly when I was not any more enamored of any third-party candidates.
When it comes to presidential picks for the Supreme Court and the other federal courts, Obama and Clinton overall have chosen federal judges much more friendly to civil liberties than Bushes I and II. Please keep that in mind when you go to the voting booth in November 2012.
On May 24, 2012, for instance, only Obama and Clinton appointees (Ginsburg, Sotomayor and Kagan, J.J.) reached the right result, in Justice Sotomayor’s dissenting opinion in a capital murder case involving a critical mistrial-double jeopardy issue, concluding as follows:
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. See, e.g., Tate, 256 Conn., at 285“287, 773 A. 2d, at 324“325; Whiteaker v. State, 808 P. 2d 270, 274 (Alaska App. 1991); Stone, 31 Cal. 3d, at 519, 646 P. 2d, at 820; State v. Pugliese, 120 N. H. 728, 730, 422 A. 2d 1319, 1321 (1980) (per curiam); State v. Castrillo, 90 N. M. 608, 611, 566 P. 2d 1146, 1149 (1977); see also N. Y. Crim. Proc. Law Ann. §310.70 (West 2002). 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 on 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.
Blueford v. Arkansas, ___ U.S. ___ (May 24, 2012) (Sotomayor, dissenting).
Unfortunately, the Blueford majority allowed the prosecution to have its cake and eat it, too, by allowing te trial judge intentionally to draw information that the jury was unanimous to acquit Blueford of murder but was stuck on the manslaughter count and to declare a mistrial, and then to allow a retrial on all counts, including the murder counts that the jury had unanimously voted against.
Chief Justice Roberts, who penned Blueford, might be an affable man who knows how to build consensus, Unfortunately, his presence on te Supreme Court — along with that of Justices Scalia, Thomas, and Alito — will continue severely to damage civil liberties overall for decades to come in the case of the relatively youthful justices Roberts, Thomas and Alito.