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The Supreme Court seemed divided Wednesday on whether to allow an Arkansas man to be retried on murder charges even though a jury forewoman said in open court that they were unanimously against finding him guilty.

Alex Blueford of Jacksonville, Ark., was charged in July 2008 in the death of 20-month-old Matthew McFadden Jr. Blueford testified at trial that he elbowed the boy in the head by accident. Authorities say the child was beaten to death.

Blueford's murder trial ended in a hung jury. The jury forewoman told the judge before he declared a mistrial that the jury voted unanimously against capital murder and first-degree murder. The jury deadlocked on a lesser charge, manslaughter, which caused the mistrial.

The Arkansas Supreme Court ruled last year that Blueford should be retried on the original charges. But Blueford's lawyers want justices to bar a second trial on capital and first-degree murder charges, saying that would violate Fifth Amendment protections preventing someone from being tried twice for the same crime.

"A foreperson's announcement on the record establishes acquittal," Blueford's lawyer Clifford Sloan said.

But Arkansas Attorney General Dustin McDaniel argued that the forewoman's statement did not equal a verdict. "It bore none of the hallmarks of a verdict," he said. "It wasn't published. It wasn't verified. It wasn't accepted by the court. It wasn't even accepted by the defendant's attorney. It wasn't a verdict."

In Arkansas, capital murder carries a sentence of execution or life in prison without possibility of parole.

But Justice Antonin Scalia seemed doubtful that a statement in the courtroom was sufficient to render a verdict, since there was nothing stopping the jury from reconvening and reconsidering those two charges. "Unless that was absolutely clear, the verdict has not been announced," Scalia said.

"I don't think it gave a verdict here," Justice Anthony Kennedy said. "It was mid-deliberation."

Arkansas law requires juries to consider the most serious charge first, and once they unanimously decide that charge doesn't fit, jurors can move to the next most serious charge, and so forth. For the jury to even consider manslaughter, they must have decided unanimously that he was not guilty of murder, Kagan said.

"What Arkansas seems to run is a system in which it forces juries to agree on the greater charges before going to the less, but won't take the consequence of that, which is that sometimes they agree that on the greater charges they're not guilty," Kagan said.

Also, the jury instructions did not make it clear that they could go back and reconsider the greater charges, Kagan said. "There is no suggestion in what anybody said that they could go back up" the scale and reconsider murder, she said.

"Is there any suggestion that they couldn't go back up?" retorted Scalia.

Blueford has been held without bond in the Pulaski County Jail since 2008 while his appeal has been ongoing.

The justices will rule later this year.

The case is 10-1320, Blueford v. Arkansas.

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