Does the Double Jeopardy Clause allow the retrial of an acquittal where the jury’s inconsistent verdicts on related offenses are deemed invalid under state law?
This case asks the Supreme Court to decide whether the Double Jeopardy Clause prevents a defendant from being retried on a count where he was acquitted by a jury’s verdict. Petitioner McElrath argues that the Double Jeopardy Clause prohibits defendants from being retried once they are acquitted. Petitioner also contends that the Georgia Supreme Court’s “repugnancy rule,” a rule that voids a jury’s verdicts if its findings on the record are extremely inconsistent, conflicts with the purpose and history of the Double Jeopardy Clause. In response, Respondent Georgia contends that state law, not the Double Jeopardy Clause, defines when a verdict is valid. It further asserts that Georgia’s “repugnancy rule” is consistent with the Constitution because repugnant verdicts and inconsistent verdicts are different, and the Supreme Court has never ruled on contradictory jury findings. The outcome of this case will affect the balance between judicial and jury power, as well as how far a federal court’s power can go in reversing a state court’s decision.
Questions as Framed for the Court by the Parties
Whether the double jeopardy clause of the Fifth Amendment prohibits a second prosecution for a crime of which a defendant was previously acquitted.
On July 16, 2012, 18-year-old Damian McElrath stabbed his adoptive mother, Diane, more than 50 times in a single attack. McElrath v. State (“McElrath I”) at 575. The attack started in the upstairs bedroom of their shared house and eventually ended at the front door, where Diane died. Id. McElrath then cleaned himself and wrote a note claiming that Diane told him that she was poisoning him. Id. McElrath continued by writing that he felt that his actions were justified, and he subsequently called 911 to report the incident. Id. McElrath told the dispatcher that he killed Diane because she poisoned him and inquired whether he was justified in the killing. Id. When later interrogated, McElrath said that the only reason he killed his mom was because she poisoned him and affirmed that he felt his decision was the correct one. Id.
On October 4, 2012, McElrath was formally charged with malice murder, felony murder with the underlying felony as aggravated assault, and aggravated assault in connection with the fatal stabbing of Diane. Id. at 574 n.1. In 2016, McElrath was convicted by a judge but filed a motion for retrial in front of a jury. Id. The motion was granted, and during the trial, prosecutors introduced evidence that McElrath suffered from schizophrenia or a related disorder which produced a history of disciplinary problems. Id. at 574 n.1, 575. According to this evidence, about three years before the stabbing, McElrath began having delusions that Diane was contaminating his food and beverages with ammonia and insect poison. Id. at 575, 575 n.4. In 2017, the jury found him not guilty by reason of insanity for malice murder and guilty but mentally ill for felony murder and aggravated assault. Id. at 574 n.1. McElrath was sentenced to life imprisonment and committed to a mental health facility. Id.
McElrath then appealed to the Supreme Court of Georgia in 2020, arguing that his felony murder conviction should be overturned or vacated because the jury’s verdicts were repugnant. Id. at 575. In its ruling, the Supreme Court of Georgia first distinguished between “inconsistent verdicts” and “repugnant verdicts.” Id. at 577. The Supreme Court of Georgia explained that inconsistent verdicts are when a verdict of guilty on one charge and not guilty on another are seemingly contradictory. Id. However, the Supreme Court of Georgia explained that these verdicts do not require reversal because courts cannot speculate about jury deliberations. Id. at 577–578. Conversely, the Supreme Court of Georgia explained that repugnant verdicts, like inconsistent verdicts, require a verdict of guilty on one charge and not guilty on another, but the jury makes their reasoning transparent by making affirmative findings on the record that are contradictory. Id. at 579. The Supreme Court of Georgia found that, since they involve no speculation about the jury’s reasoning, repugnant verdicts must be vacated, and a new trial should be ordered. Id. The Supreme Court of Georgia ultimately ruled that McElrath’s convictions were repugnant and vacated the verdicts for a new trial. Id. at 575, 579.
McElrath then argued to a trial court that the Double Jeopardy Clause prevented a retrial on all of the verdicts, but the trial court denied his motion. McElrath v. State (“McElrath II”) at 519. In 2022, McElrath appealed that decision to the Supreme Court of Georgia. Id. The Supreme Court of Georgia ruled that the Double Jeopardy Clause does not prevent McElrath’s retrial. Id. at 522. The United States Supreme Court granted McElrath certiorari on June 30, 2023. Brief for Petitioner, Damian McElrath at 1.
APPLICATION OF THE DOUBLE JEOPARDY CLAUSE
Damian McElrath argues that the Double Jeopardy Clause does not allow a retrial of his malice murder charge because he was acquitted by a jury. Brief for Petitioner, Damian McElrath at 13. McElrath first explains that the Supreme Court has drawn a distinction between retrying an acquittal and a conviction. Id. at 14. McElrath contends that when a charge is overturned on appeal, the Double Jeopardy Clause allows a conviction to be retried, but not an acquittal. Id. This prohibition, McElrath contends, applies even if the acquittal was mistaken or inconsistent. Id. at 15. McElrath also notes that the Supreme Court held that the prohibition on retrying acquittals applies even when the defendant appeals convictions within the same verdict. Id. at 16. According to McElrath, the Supreme Court held that the law should not subject a defendant to the dilemma of potentially giving up an acquittal to appeal a conviction. Id. at 27.
McElrath further explains that the Georgia Supreme Court treats a decision of not guilty by reason of insanity as an acquittal. Id. at 17. As a result, McElrath argues, these holdings prevent Georgia from retrying him on his malice murder charge because he was properly acquitted. Id. McElrath also contends that Georgia creates a distinction between repugnant and inconsistent verdicts, even though repugnant verdicts are just a specific type of inconsistent verdicts. Id. at 18–19. According to McElrath, both types of verdicts are based on contradictions that cannot exist at the same time, where the only difference is that the findings are affirmative in a repugnant verdict. Id. at 19. Therefore, McElrath asserts that the Double Jeopardy Clause still prevents a retrial of an acquittal because these small differences do not change the fundamental nature of an acquittal. Id. at 19.
McElrath also contends that, while states possess broad power to determine procedure and jurisdiction in their courts, states cannot circumvent constitutional protections with state law interpretations. Id. at 20–21. McElrath exemplifies this principle by citing to cases, such as Moore v. Harper, in which the Supreme Court invalidated a state’s attempt to recharacterize property rights to circumvent protections for private property. Id. at 21. McElrath first explains that if a court hears a case without authority, the decision is treated as “void” because a court without authority cannot issue a valid judgment. Id. at 20. McElrath then explains that Georgia treats repugnant verdicts as void decisions even though the lower court has authority to hear the case. Id. at 20. Thus, McElrath claims, Georgia attempts to work around constitutional protections even though the Supreme Court has held that the Double Jeopardy Clause applies to all acquittals, whether they are erroneous or inconsistent. Id. McElrath asserts that, regardless of how a verdict is labeled, what matters is the substance of the decision. Id. at 21–22. In the case of repugnant verdicts, McElrath argues that a jury already decided that a defendant does not bear responsibility for a crime, so the proceedings for that crime must end. Id. at 22.
In contrast, the State of Georgia (“Georgia”) argues that the Double Jeopardy Clause does not apply at all to retrials of repugnant verdicts because the initial “jeopardy” does not end before the retrial. Brief for Respondent, the State of Georgia at 20. Georgia first explains that the Double Jeopardy Clause prevents retrial only when an acquittal concludes the initial jeopardy. Id. at 22. Georgia contends that when a defendant’s conviction is reversed, there is no bar on retrial because the criminal proceedings have not been completed. Id. Likewise, in the case of a mistrial, Georgia argues that the Supreme Court has held that the initial jeopardy does not end if a jury fails to reach a verdict. Id. at 23. According to Georgia, even if a jury seems to pass a valid verdict, a decision can be voided because jeopardy would not start if the court did not have jurisdiction, the authority to hear the case. Id. On the other hand, Georgia asserts that a valid verdict resolves some factual elements, even if it is not correct. Id. at 24. Georgia contends that jeopardy properly ends only when a valid final verdict is issued. Id.
Georgia further argues that states have broad authority to define criminal procedure requirements, including whether a verdict is valid. Id. at 21, 24. Georgia contends that the Supreme Court held that it is primarily within the state’s jurisdiction to regulate and enforce criminal procedures. Id. at 24–25. According to Georgia, the Double Jeopardy Clause itself does not mention procedural rules, but only that there cannot be a retrial when there is a valid verdict of acquittal. Id. at 27. However, Georgia notes, this clause does not contain any requirements for what constitutes a valid verdict, how the jury is formed, or how many members of the jury are required. Id. Instead, Georgia argues that state law is the primary determinant for defining how a jury can reach a valid verdict. Id. at 25. Georgia contends that the Supreme Court, in multiple cases, has deferred to state law in Double Jeopardy cases to determine whether an acquittal was valid. Id. at 29–30.
Georgia argues that since it is the state’s power to define what constitutes a valid acquittal, states can define an acquittal as resolving some of the factual elements of the charge. Id. at 25. Georgia asserts that finding a defendant sane and insane on the face of the verdict for the same act is incoherent and nonsensical and cannot be explained with leniency. Id. at 34. Thus, Georgia contends that the jury determined nothing in a repugnant verdict about the facts, and that no verdict was passed. Id. at 33. Therefore, Georgia asserts, the Double Jeopardy Clause does not apply. Id.
CIRCUMVENTING CONSTITUTIONAL PRINCIPLES
McElrath further argues that Georgia’s distinction between repugnant and inconsistent verdicts undermines the core constitutional principles of the Double Jeopardy Clause. Id. at 24. McElrath first explains that the Double Jeopardy Clause prevents a State from using its powers and resources to continually prosecute an individual. Brief for Petitioner at 24. McElrath asserts that Georgia’s repugnancy distinction is at direct odds with this tenet because Georgia can force a retrial, subjecting the defendant to anxiety, insecurity, and an increased probability of a wrongful guilty verdict if the jury is influenced by the decisions in the first verdict. Id. at 25–26. Finally, McElrath contends that Georgia’s exception is usurping the defendant’s right to a jury. Id. McElrath argues that a jury guarantees the right to be tried by a group of peers, instead of an oppressive government. Id. Instead, McElrath explains, Georgia treats a jury’s repugnant verdicts as valueless and similar to a mistrial, even though the Supreme Court has historically held that juries do not need to render consistent verdicts and that courts should not question the thought process of a jury. Id. at 29. According to McElrath, by characterizing a jury’s verdict as valueless, Georgia is overruling a jury’s will and removing their right to render a decision, including one that reflects mercy. Id. at 30.
Georgia responds by asserting that the repugnancy rule is consistent with constitutional principles. Brief for Respondent at 35. Specifically, Georgia argues that the rule is not an attempt to evade constitutional protections against a retrial. Id. Instead, Georgia contends that this rule is logical and only seeks accuracy. Id. at 35, 43. Additionally, Georgia notes that the repugnancy rule does not infringe on the jury’s power to issue a general verdict. Id. at 37. According to Georgia, juries always have the power to issue a general verdict and only encounter this issue in the rare situation of issuing contradictory special verdicts. Id. at 37–38. Additionally, Georgia argues that the repugnancy rule does not undermine the jury’s role as a buffer against governmental oppression or peer into the jury room because the rule complements the Supreme Court’s rulings in inconsistent verdict cases. Id. at 42. Georgia explains that inconsistent verdicts address valid verdicts where the court does not know how a jury arrived at the findings, whereas repugnant verdicts address invalid verdicts where the court knows exactly what the jury found. Id. Georgia claims that with repugnant verdicts, a trial court does not need to ask what happened in the jury room because the special verdicts either have a facial contradiction or do not apply to the rule. Id. Therefore, Georgia asserts, the repugnancy rule still allows juries to check governmental oppression and maintains the privacy of the jury room. Id.
McElrath then argues that Georgia’s repugnancy exception undermines public and defendant interests in having a conclusive judgment. Id. at 27. According to McElrath, by focusing on the causes of retrying an acquittal, Georgia is undermining the public’s interest in reducing litigation costs and the defendant’s right to rely on an acquittal. Id. at 28.
THE BALANCE BETWEEN JUDICIAL AND JURY POWER
The National Association of Criminal Defense Lawyers, et al. (“NACDL”), in support of McElrath, argues that upholding exceptions to the Double Jeopardy Clause would threaten the role of the jury in the judicial system by allowing judges to interfere with the jury’s decision-making process. See Brief of Amici Curiae The National Association of Criminal Defense Lawyers et al., in Support of Petitioners at 12–13. NACDL asserts that the Double Jeopardy Clause aims to prevent innocent defendants from being wrongfully convicted by giving the jury’s decisions finality, which can only be guaranteed by an inflexible rule. Id. at 11–12. NACDL contends that the judge should only be allowed this veto power in very limited situations where it will not compromise the jury’s role in checking the government. Id. at 12–13.
NACDL further asserts that if the executive or judicial branch undermines or arbitrarily vetoes the jury decision’s finality, it may defeat juries’ function in protecting an innocent defendant against unjust guilty verdicts. Id. at 12. McElrath echoes this by arguing that affording the government the authority to overturn a jury’s acquittal would risk undermining the core functions of the jury and endanger the protections that a jury trial offers to defendants. Brief for Petitioner at 24. Furthermore, NACDL asserts that the jury’s power to acquit can be based on compromise instead of a strict application of the law. Brief of NACDL et al. at 10. Therefore, NACDL advocates that judges should respect these decisions even when they are inconsistent with their legal framework. Id. at 10–11.
On the other hand, the District Attorney’s Association of Georgia, in support of Georgia, counters that if McElrath’s rule were adopted, Georgia trial courts would lose the ability to reject the jury’s decision, even those that are blatantly unjust. See Brief of Amicus Curiae District Attorney’s Association of Georgia, in Support of Respondent at 26. Missouri and Fourteen Other States, in support of Georgia (“Missouri et al.”), add that McElrath’s rule, which grants significant power to the jury, could lead to unjust outcomes and disrupt the legal system by granting finality to all jury verdicts, potentially even those tainted by fraud. Brief of Missouri and Fourteen Other States as Amici Curiae, in Support of Respondent at 9–10.
Furthermore, Georgia points out that ruling in favor of the state would not significantly infringe upon defendants’ rights. Brief for Respondent at 48. First, Georgia argues that Georgia’s repugnancy rule affects only a small fraction of cases with “special” jury findings. Id. at 47–48. Georgia also asserts that McElrath’s rule would treat all jury verdicts as “valid,” making it harder to reverse a conviction. Id. at 48. The District Attorney’s Association of Georgia adds that McElrath’s rule would make it impossible for future defendants whose verdicts found them both sane and insane to appeal their cases on that basis because mere inconsistency in the verdict would not be sufficient grounds for an appeal. Brief of District Attorney’s Association of Georgia at 23–24.
CONCERN FOR APPELLATE AND FEDERAL COURT’S ARBITRARINESS
The Georgia Association of Criminal Defense Lawyers (“GACDL”), in support of McElrath, argues that Georgia’s exception would potentially enable state appellate courts to arbitrarily overturn lower court acquittals because the exception lacks clear boundaries on the appellate court’s authority. Brief of GACDL, at 20. GACDL points out that the Georgia appellate courts arbitrarily expanded the scope of a past court decision, which was intended to provide additional protection for defendants, to unreasonably nullify McElrath’s acquittal. Id. at 22–23. GACDL underscores that this practice, if affirmed, could leave the exception susceptible to further arbitrary misuse by state appellate courts, jeopardizing the principles of Double Jeopardy and Due Process. Id. at 20–23.
Missouri et al., in support of Georgia, counter that McElrath’s rule lacks a clear limiting principle, potentially allowing federal courts to second-guess various state matters. Brief of Missouri and Fourteen Other States as Amici Curiae at 6. Georgia emphasizes that McElrath does not provide a framework for determining when a “verdict” occurs as a matter of state law. Brief for Respondent at 46. According to Georgia, McElrath’s argument could extend to other constitutional claims, potentially forcing states to meet additional requirements such as changes to evidentiary rules. Id. Georgia further contends that this intrusive approach would undermine state discretion in criminal procedure and the state’s role in setting such procedures. Id. at 46–47.
The authors would like to thank Professor John H. Blume for his guidance and insights into this case.
- Brandon Buskey, As a New Term Begins, Where Does the Supreme Court Stand on Criminal Justice?, ACLU (Sept. 28, 2023).
- Megan Butler, High court takes up double jeopardy case over ‘repugnant verdicts’ in Georgia, Courthouse News Service (June 30, 2023).