And for more on procedure as a means of giving effect to the substance of the law, see the failure of this concept in Blueford v Arkansas USSC No 10-1320, 24 May 2012.
A fundamental precept of the criminal law is that a jury will obey instructions from the judge. Here the jury were told the sequence required by the law of Arkansas for the deciding of verdicts on multiple and included charges. A decision on the most serious charge was required first, then the jury would proceed to the next serious, and so on until either they had reached a verdict of guilty, in which case they would stop there, or they had reached not guilty verdicts on each charge.
The jury had difficult reaching the end of this process,and the judge asked if they had decided any of the charges. The foreman said they had agreed that the defendant was not guilty on the two most serious charges. The judge told them to resume their deliberations and try to reach the end of the process. They were unsuccessful and they were discharged. On retrial the defendant was charged with all counts and pleaded previous acquittal on the two most serious ones.
The Supreme Court held by a majority that the special plea was not available. The jury had returned to the jury room and could have changed their minds on the most serious charges - they had not been asked whether they had. There were no verdicts returned at the trial.
Sotomayor J for the minority emphasised the importance of the rule against double jeopardy. She analysed the Arkansas process for deciding multiple charges of this kind and found it most unrealistic for the majority to say the jury might have changed their minds. In reality they had returned verdicts of not guilty on the two most serious charges.
True enough, the ritual incantations had not been followed in receiving the verdicts, but did that matter? What was the point of instructing the jury how to proceed, if that had no consequence because the technical question about verdicts was not asked by the judge? Had the jury decided the most serious charges? Should the prosecution have another opportunity to prove them? Did procedure serve the interests of justice here?
