Guest Post by Mark Royero – McElrath v. Georgia (2024)

Can’t Touch This: SCOTUS Unanimously Decides That Inconsistent Acquittals Bar Retrial.     

            First, thank you to David Oscar Markus and John R. Bryne for allowing me to submit this guest post. This post will cover the Supreme Court’s recent opinion in McElrath v. Georgia, the Court’s latest decision regarding the Double Jeopardy Clause and inconsistent verdicts. This issue was the subject of the 2024 Gibbons National Criminal Procedure Moot Court Competition, where my partner Kaitlin Prece and I represented the University of Miami School of Law. I would also like to thank our dedicated coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition.

(L to R) Mark Royero (2L); Adam Stolz (coach); Kaitlin Prece (2L); not pictured: Luis Reyes (coach)

The Supreme Court of the United States can agree on something: In McElrath v. Georgia, Justice Ketanji Brown Jackson authored a unanimous rebuke of the Georgia Supreme Court’s repugnant verdict doctrine. Before McElrath, Georgia law allowed a jury’s verdict in a criminal case to be set aside if it was “repugnant”— i.e., involving contradictory findings by a jury. But, the Court reasoned, because “the Double Jeopardy Clause prohibits second-guessing an acquittal for any reason,” the fact that an acquittal is “accompanied by other verdicts that appear[] to rest on inconsistent findings is of no moment.”

            McElrath is a case seeped in tragedy. The petitioner, Damian McElrath, suffered from severe mental health challenges, and, while under the delusion that his mother was poisoning him, murdered her.  Georgia charged McElrath with malice murder, felony murder, and aggravated assault. McElrath asserted an insanity defense and a jury, through a special verdict form, found him not guilty by reason of insanity of malice murder (the most serious charge), and guilty but mentally ill of felony murder and aggravated assault (the lesser charges). McElrath appealed the convictions, based on their repugnancy under Georgia law, all the way to the Georgia Supreme Court. The Georgia Supreme Court agreed with McElrath but vacated McElrath’s acquittal as well as his convictions and remanded for a new trial. On remand, McElrath argued that he could not be retried on his acquittal. The Georgia lower courts disagreed, as did the Georgia Supreme Court, finding the acquittal on the insanity defense “valueless” because it was repugnant with the verdicts of “guilty but mentally ill.” Essentially, the Georgia courts determined McElrath’s jeopardy had not yet ended because of the repugnant verdicts, thus paving the way for another trial without disturbing the Fifth Amendment.

            The U.S. Supreme Court ruled otherwise. The Court reaffirmed that “it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and . . . is a bar to subsequent prosecution for the same offence.” And an acquittal, the Court explained, is “any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense” and “[can] not be reviewed, on error or otherwise.” The Court substantiated this rule by recognizing that a bright-line protection of acquittals preserves the jury’s responsibility to stand between the accused and an abusive government—a point discussed in an amicus brief submitted in part by our very own, David Markus. The Court acknowledged the long-held understanding that a jury’s acquittal might equally reflect a determination of innocence, compromise, compassion, lenity, or misunderstanding. Despite the range of possibilities, “the Double Jeopardy Clause Prohibits second-guessing the reason for a jury’s acquittal” because “the jury holds an unreviewable power to return a verdict of not guilty even for impermissible reasons.”

            Critically, the Court clarified that no state’s characterization of an acquittal could bind the Court’s interpretations of the Double Jeopardy Clause. The Court reiterated that if an acquittal occurred depended on whether the fact finder acted “on its view that the prosecution had failed to prove its case” and concluded that “the jury’s verdict of not guilty by reason of insanity constituted such [an act].” Contrary to the state’s position, the Court determined the outcome was unchanged by whether the finding was made on a special verdict rather than a general verdict:           

Once there has been an acquittal, our cases prohibit any speculation about the reasons for a jury's verdict—even when there are specific jury findings that provide a factual basis for such speculation—because it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations.

But even though the Court was unanimous, Alito wrote a concurrence in which he clarified that the Court’s opinion did not reach the issue of some states’ practice of sending juries back to deliberate inconsistent verdicts: “[n]othing that we say today should be understood to express any view about whether a not-guilty verdict that is inconsistent with a verdict on another count and is not accepted by the trial judge constitutes an acquittal for double jeopardy purposes.”

Is Alito telling defendants to challenge the practice of “sending juries back”? Is he assuring States that there is no issue with their criminal procedural laws? The jury is still out.

The bottom line is this: When a jury returns an acquittal, we can never speculate as to why they made their determination. Confusion, impossibility, or impermissibility cannot act as the basis for retying a defendant.