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On November 28, 2007, Alex Blueford and a friend of his were left in charge of the 20-month-old son of Blueford’s live-in girlfriend. Approximately one hour after being left with the child, Blueford’s friend called emergency services because the child was having difficulty breathing. The child died two days after being rushed to the hospital. A medical examiner concluded that the cause of death was a closed head injury, and the State of Arkansas subsequently brought several charges against Blueford for the death of the child.

The state charged Blueford with capital murder, first-degree murder, manslaughter, and negligent homicide. At the conclusion of the trial, the court instructed the jury to consider each charge one at a time, to consider the greater offenses before lesser offenses. After some deliberation, the jury returned. The forewoman stated that the jury was hopelessly deadlocked. The Judge asked the forewoman about each charge, and she stated that the jury was unanimously against the capital murder charge, unanimously against the first-degree murder charge, and deadlocked on the manslaughter charge. The jury returned for further deliberation but remained deadlocked. The judge released the jury, and the court declared a mistrial.

The state sought to retry Blueford on all charges. Blueford filed a motion to dismiss the capital murder and first-degree murder charges on Double Jeopardy grounds, arguing that the jury had made a decision on those two counts. The trial court denied the motion on the basis that the juror’s communication to the judge was a casual communication and not an acquittal. Blueford made an interlocutory appeal to the Arkansas Supreme Court, which affirmed the trial court’s denial of the motion. After the Arkansas Supreme Court denied Blueford’s petition for rehearing, Blueford appealed the Arkansas Supreme Court decision.

If a jury deadlocks on a lesser-included offense and expresses unanimous agreement against guilt on a greater offense, does the Double Jeopardy Clause bar re-prosecution of the greater offense?