If a jury clearly indicates that it has acquitted a defendant of certain charges while remaining deadlocked on others, judges must accept that partial acquittal verdict, a divided Colorado Supreme Court ruled on Monday.

Justice William W. Hood III, in the June 8 majority opinion, acknowledged that judges ordinarily may not ask a deadlocked jury to disclose the counts on which it cannot reach agreement. But the circumstances are different when jurors tell a judge unprompted that they have arrived at a not-guilty verdict for specific charges.

Therefore, the jury’s disclosure that it had acquitted Larimer County defendant Omar Alexander Mena of three counts meant that the Colorado Constitution prohibited the government from putting him on trial a second time.

“Other state high courts also require trial courts to accept partial verdicts that are spontaneous and unequivocal in describing the offenses to which they apply,” wrote Hood.

Justice Brian D. Boatright dissented. Although he did not dispute that retrying Mena for the acquitted counts might violate Mena’s right to be free from double jeopardy, Boatright believed the trial judge should be the one to decide that question first.

Mena stood trial last summer for three counts of sexual assault. After the evidence concluded, the prosecution asked for the jury to also be instructed that it could find Mena guilty of a lesser offense of attempted sex assault for each charge. Over the defense’s objection, District Court Judge Sarah B. Cure gave jurors the option of finding Mena guilty of either assault or of attempted assault for each count, or to find him not guilty for both.

On the second day of deliberations, the jury told Cure it had unanimously agreed on the “primary” charges but not the “secondary” ones. After Cure asked jurors to clarify what they meant and sent them home for the night, the jury indicated the next day that it reached a unanimous verdict on the assault charges, but not the attempt charges.

The defense asked Cure to provide the jurors with a modified form to enter their unanimous verdict on the assault charges. Given the jury’s instructions, an acquittal was the only logical outcome. But Cure declined, and instead declared a mistrial for all counts.

Mena then turned directly to the Supreme Court.

“I am concerned here on whether the focus was on doing justice for Mr. Mena or making sure the prosecution didn’t lose. And that’s troubling to me,” said Justice Richard L. Gabriel during oral arguments in February.

In the 2008 decision of People v. Richardson, the Supreme Court held that a trial judge does not have to accept a partial verdict from jurors when they have indicated a decision on some charges and are deadlocked on others. Then-Justice Alex J. Martinez dissented, warning that jurors would have no way to register an acquittal and the defendant would be unaware he was being placed in jeopardy a second time.

The “better procedure would provide an opportunity for the jury to render a partial verdict and thereby shield the defendant from retrial on offenses for which he was in actuality acquitted,” Martinez wrote.

Defense attorney Cassandra P. Monahan noted Mena’s case was different from Richardson, and the jury had given a more explicit description of where it stood. Because of the options on the verdict form, it was evident that jurors had not found him guilty of sexual assault, and were only conflicted about the lesser attempt charges.

“We had a verdict,” she told the justices. “The trial court’s actions here prevented that verdict from being effectuated.”

The Supreme Court’s majority agreed that, under the circumstances, trying Mena again for the sex assault charges would be a double jeopardy violation.

“Armed with the jury’s response to the clarifying question, the only logical inference from the jury’s communication is that it had unanimously acquitted Mena of the completed acts,” wrote Hood.

Boatright, writing for himself and Justice Maria E. Berkenkotter, argued that the majority’s decision would create an incentive for defense attorneys to ask that jurors be allowed to register a partial verdict whenever there appears to be a deadlock. He added that Cure did not act unreasonably by following existing precedent, and he believed she should decide the double jeopardy question if the prosecution sought to try Mena again.

Justice Susan Blanco did not participate in the case. As is the Supreme Court’s practice, there was no reason provided for her recusal.

The prosecution may now retry Mena only for the attempted sex assault offenses on which the jury could not reach a verdict.

The case is People v. Mena.