By: Kaila Hall
Volume X – Issue I – Fall 2024
Last term, the Supreme Court, in McElrath v. Georgia, unanimously affirmed the irrefutability of a jury’s verdict and the Fifth Amendment’s protection against Double Jeopardy. This intricate case provides fascinating insight into the intersection of the insanity defense and the Fifth Amendment. Out of all 50 states, Georgia is the only one that has a “repugnancy” [1] law, meaning that a jury’s inconsistent verdict may essentially be discarded. In McElrath v. Georgia, this law is front and center in determining one man’s access to constitutional rights following the Georgia Supreme Court decision to disregard the trial jury’s verdict. In the unanimous opinion, the Supreme Court wholeheartedly defends McElrath’s Fifth Amendment rights while declaring the indisputability of a jury’s verdict.
I. BACKGROUND
At the age of 2, Damian McElrath was adopted by a single mother in Georgia. Growing up, McElrath was diagnosed with bipolar disorder and attention deficit hyperactivity disorder, and experienced difficulty in school, including low grades, a series of disciplinary issues, and suspensions. Sometimes, he refused to take his prescriptions and would get into tense arguments with his mother. As he grew older, McElrath’s mental health worsened and he became delusional. He believed that his mother was poisoning his food and that he was an FBI agent who had killed several individuals. In 2012, he was sent to a mental health facility, where he was diagnosed with schizophrenia. After two weeks, McElrath was discharged since the staff believed he no longer posed a threat to himself or others. A week after being discharged, 18-year-old McElrath stabbed his adoptive mother, killing her. Immediately, he wrote a confession note, claiming she admitted to having poisoned him. He then called the police, who took him to a police station where he confessed. The State of Georgia subsequently charged Damian McElrath with malice murder, felony murder, and aggravated assault. At trial, McElrath did not deny having killed her and proceeded to utilize the insanity defense. [2] While McElrath faced the possibility of life in prison if convicted, the question remained if he could be sent to a state mental health facility instead.
In McElrath’s case, the trial jury delivered a split verdict of “not guilty by reason of insanity” on the malice murder charge, and a verdict of “guilty but mentally ill” on the felony murder and aggravated assault charges. Subsequently, the trial court sentenced McElrath to life in prison on the felony murder conviction. Under Georgia criminal law, a jury may find a defendant “not guilty by reason of insanity” if, at the time of the crime, he “did not have mental capacity to distinguish between right and wrong” [3] or he committed the crime “because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” [4] This verdict would require the defendant to remain in a state mental health facility until a court approves his release. [5] Per Georgia Code §§17–7– 131(c)(2), (g), a jury can also deliver a verdict of “guilty but mentally ill,” which may allow the Georgia Department of Corrections to refer the defendant for temporary [6] mental health treatment “within the limits of state funds appropriated therefor.” [7] Following a notification from the Georgia Department of Behavioral Health and Developmental Disabilities that the defendant no longer needs mental health treatment, the Department of Corrections will transfer the defendant to jail. [8]
Under Georgia Law 308 Ga. 104, 112, 839 S. E. 2d 573, 579 (2020), the court can set a jury's verdict aside in a criminal case if it is “repugnant,” meaning that it holds “affirmative findings by the jury that are not legally and logically possible of existing simultaneously.” [9] This allows a court to throw out a jury’s (split) verdict that it deems inconsistent or illogical. According to the State of Georgia, “a criminal defendant cannot... be both sane and insane at the same time.” [10] In the event a case is deemed “repugnant,” a defendant may be subjected to a second trial.
Following McElrath’s trial, the Georgia Supreme Court challenged the jury’s verdict of “guilty but mentally ill” for felony murder, deeming it “repugnant.” Essentially, the court took issue with the jury finding that the defendant was both “not guilty by reason of insanity,” but also “guilty but mentally ill” at the same time. [11] As a result, the Georgia Supreme Court vacated, or voided, the verdicts and sent the case back to the courts for a retrial.
Afterward, McElrath appealed the Georgia Supreme Court’s decision on the grounds that it violated the Double Jeopardy Clause in the Fifth Amendment of the U.S. Constitution. This clause states, “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...,” [12] meaning it prohibits an individual from being retried for the same offense. In McElrath’s appeal, McElrath’s attorney argued this constituted Double Jeopardy since the jury had already returned a verdict of “not guilty by reason of insanity” on the malice murder charge. This meant that McElrath had already been acquitted and that an attempt to retry him would be placing him in jeopardy a second time. If retried, McElrath would be subjected to another life in prison sentence.
Following the Georgia Supreme Court’s rejection of his Double Jeopardy argument, McElrath petitioned the U.S. Supreme Court for a writ of certiorari, which it granted. On November 28, 2023, the Court heard oral arguments in the matter of McElrath v. Georgia. [13] In this case, the main legal question was whether Georgia’s repugnancy law violated the Fifth Amendment’s Double Jeopardy Clause. This led the Court to consider whether or not the State of Georgia’s repugnancy ruling regarding the jury’s split verdict was unconstitutional.
II. ORAL ARGUMENTS
i. Richard A. Simpson’s Oral Arguments
Upon arguing their cases, McElrath’s Counsel, Richard A. Simpson, and Georgia Solicitor General, Stephen J. Petrany faced specific questions regarding the definition of an acquittal and when an acquittal becomes a matter of state law or federal law. On the matter of acquittals, Simpson asserted14 that in Smalis v. Pennsylvania (1986), [15] the U.S. Supreme Court characterized the granting of a demurrer, or a request that asserts the truth of a particular claim but requests further evidence for it, [16] as an acquittal. Additionally, in Evans v. Michigan (2013), [17] the Court held that “Evans’ trial ended in an acquittal when the trial court ruled the State had failed to produce sufficient evidence of his guilt.” [18] Accordingly, the Double Jeopardy Clause of the Fifth Amendment prevents the State of Georgia from appealing the trial jury’s verdict in order to retry McElrath on the same offense. Lastly, Simpson cited the definition of “acquittal” provided in Smith v. United States (2023), [19] which states that an acquittal is “a determination, a resolution of criminal culpability.” [20] Here, Simpson argues that McElrath was granted an acquittal based on SCOTUS precedent, so the State’s attempts to retry him would violate Fifth Amendment.
Because Georgia’s “repugnancy” law allows the State Court to compare the content of two different verdicts and refuse to honor a jury's final decision, Simpson asserts that this law violates the Double Jeopardy Clause. Simpson argued that once the jury renders a verdict, the State Court cannot in any way try to determine why the jury ruled a specific way and question its legitimacy because an “acquittal is final and conclusive.” [21] Simpson proceeded to cite Ball v. United States (1896), [22] in which the U.S. Supreme Court held that the “return of the verdict terminated jeopardy, notwithstanding that the indictment was invalid ultimately.” This signifies that once a jury delivers a verdict, a defendant’s period of “jeopardy” or risk of criminal liability [23] has ended. Next, Simpson argues that since the jury has already returned its verdicts, the State Court cannot compare both verdicts on two different offenses in order to vacate one of the verdicts and have a retrial. [24] Furthermore, during trial, the State of Georgia and McElrath had previously confirmed they had no initial objections to the split verdict, so the court entered judgment. [25] Ultimately, McElrath v. Georgia revolved around the question of whether a State Court can “deprive the defendant of his right, her right, to have a decision by the particular jury that was empaneled.” [26] [was this the case question or a part of what he was arguing?]
Additionally, the American Civil Liberties Union (ACLU), [27] the ACLU of Georgia, and the National Association of Criminal Defense Lawyers filed an amicus brief [28] in support of Damian McElrath. In the amicus brief, they argue that judges may not review a jury’s verdict and reverse its acquittals, acting as a check on the State Court’s power and a safeguard for the defendant’s rights. Specifically, they argue the following:
The jury checks judges and prosecutors through its acquittal power, and out of respect for the jury’s sovereignty and the individual’s right to a jury trial, juries have “unreviewable power” to acquit, “even for impermissible rea- sons.” Smith v. United States, 143 S. Ct. 1594, 1608 (2023). [29]
But that power would mean nothing if it could be circumvented by judges dissatisfied with the verdict. The Framers therefore sought to fortify the jury through the Double Jeopardy Clause. By making acquittals final, the Clause allows the jury to bind the hands of judges and prosecutors, and to ensure that defendants cannot be retried because those officials disagree with the jury’s determinations. By virtue of the Clause, a jury can mark the end of the matter. [30]
Essentially, juries hold the “‘unreviewable power’ to acquit, ‘even for impermissible reasons.’” [31] By permitting the State Court to review “repugnant” verdicts, the ACLU believes that such a decision “would contravene the structural role assigned to the jury in our legal system, and invite judges to reverse acquittals with which they disagree.” [32] In other words, they are arguing that Georgia’s Supreme Court should not be allowed to challenge a jury’s “illogical” verdict because this would overstep the court’s power and infringe upon the inviolability of the trial jury’s verdict.
ii. Georgia Solicitor General Stephen J. Petrany’s Oral Arguments
According to General Petrany, Georgia State law denies that there was a verdict in Damian McElrath’s case, asserting that “under Georgia's narrow, sensible repugnancy rule, a jury cannot issue special affirmative findings that facially contradict each other.” [33] General Petrany contends that the jury’s split decision that McElrath is simultaneously sane and insane constitutes “incoherent, contradictory statements.” [34] This then prevents the jury’s decision from being considered a verdict. Since a verdict does not exist, he argues that there is no termination of jeopardy, so the Double Jeopardy Clause is irrelevant. Accordingly, the State Court vacated this decision, holding that a verdict, an acquittal, and convictions did not exist. As such, the State of Georgia believes McElrath can be retried.
Following Petrany’s opening statement, the Supreme Court Justices begin their questioning. Justice Clarence Thomas started by asking Petrany if there would have been a verdict if there was only one charge against McElrath. [35] Petrany answered affirmatively, but denied the existence of a verdict in McElrath’s case because there were three separate charges. Given this discrepancy, Justice Thomas took issue with the need to examine the specific “substance of the verdict” [36] if there are multiple charges. In response, General Petrany distinguishes between a “general verdict” and the“special finding.” First, he defines the “general verdict” as when McElrath was declared “not guilty by reason of insanity” [37] on the malice murder charge, so this did not require delving into any special findings. Second, he defines the “special finding” as McElrath being declared both sane and insane simultaneously on different charges. [38] Petrany then argues that “if [McElrath] had not been insane, he would have been guilty.” [39] Because of this “inconsistent” verdict, Petrany denies the existence of an acquittal and advocates for a retrial.
Subsequently, Justice Neil Gorsuch challenged Petrany’s argument about this lack of an acquittal. Instead, Justice Gorsuch explained that precedent shows that the United States has consistently respected acquittals without having to examine the substance of the verdict. In fact, he believes it acts as a check on judges and prosecutors. [40] General Petrany then clarifies his argument to say that citing precedent in this instance is not relevant because no acquittal exists due to the jury’s inability to resolve the factual question.
Next, Justice Elena Kagan entered into the discussion and questioned the State of Georgia’s motivations to “intrud[e] into the jury's deliberations.” [41] In response, Petrany explicitly denied that the State was trying to delve into the “internal thoughts” of the jurors and assess their overall decision- making process. Instead, he proposes that the State of Georgia examines the jury’s findings on one particular fact that is being decided in the case, which is McElrath’s insanity at the time of the crime.” [42] Justice Ketanji Brown Jackson then asserts that there has been a “time immemorial principle with respect to jury deliberations” [43] that whether a verdict is inconsistent or not must not matter in determining its legitimacy. Ultimately, Justice Sonia Sotomayor reiterates the holding in Smith v. United States (2023) that “an acquittal takes place when there is a merits-related ‘resolution,’ correct or not, ‘of some or all of the factual elements of the crime charged.’” [44] Overall, Justices across different legal interpretations were seemingly unconvinced by the State of Georgia’s arguments.
III. OPINION OF THE COURT
On February 21, 2024, the Supreme Court released its ruling on McElrath v. Georgia. In a unanimous opinion [45] written by Justice Jackson, the Court ruled that the Double Jeopardy Clause prevented McElrath from being retried again and subsequently reversed the Georgia Supreme Court’s decision. Specifically, the Court held that the “jury’s verdict that McElrath was not guilty of malice murder by reason of insanity constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts.” [46] Per Smith, “the jury holds an unreviewable power to return a verdict of not guilty even for impermissible reasons.” In other words, this signifies that the validity of a jury’s verdict is unquestionable, regardless of the jury’s interpretation of the law. As such, the jury has the ultimate discretion. Furthermore, the Court establishes that an acquittal occurred in McElrath since the ruling “relat[es] to the ultimate question of guilt or innocence.” [47] The Court reaffirmed the precedent that the Double Jeopardy Clause prohibits any form of challenging an acquittal. Since the Court found that an acquittal has taken place, the Georgia Supreme Court is prohibited from examining the jury’s specific reasons in its decision-making process. Therefore, the Double Jeopardy Clause of the Fifth Amendment does not permit Damin McElrath’s retrial. The Court reversed and remanded the judgment of the State Supreme Court.
IV. CONCURRING OPINION
Justice Samuel Alito provides the sole concurring opinion of this case. He distinguishes between a State Supreme Court’s challenge of a verdict and a trial judge’s refusal “to accept inconsistent verdicts and thus sends the jury back to deliberate further.” [48] Since the Constitution prohibits appeals of acquittals, the Georgia Supreme Court’s decision to retry McElrath due to the split verdict is reversed. However, Alito believes legal proceedings for inconsistent verdicts differ at the initial trial level. Under his interpretation, it is acceptable for lower level judges to require juries to return to deliberations [49] in the event they provide an inconsistent verdict per United States v. Powell [50] and Dunn v. United States. [51] On the contrary, it would be inappropriate for a higher court, such as a State Supreme Court, to challenge a jury’s inconsistent verdict for the sake of doing so. Justice Alito concludes that the Court’s decision in McElrath does not weigh in on “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.” [52] Though it does not change the outcome of the case, Alito’s concurring opinion makes an important distinction for the future applicability of this holding.
V. KEY TAKEAWAYS
The Supreme Court’s unanimous decision in McElrath v. Georgia reaffirms the constitutional protection against Double Jeopardy and clarifies the legal definition of acquittal. The vagueness and uniqueness of Georgia’s “repugnancy” law provided the State prosecutors with the leeway to exploit not only the ambiguous definition of acquittal, but also the jury’s verdict. Accordingly, the law wrongfully permitted their attempts to retry McElrath. They utilized the arbitrary standards set in the “repugnancy” law to circumvent over 200 years of American legal precedent and protection for an individual’s rights not to be retried for a crime following an acquittal. Georgia’s piecemeal effort to enforce certain laws while disregarding the overarching protections and rights granted in the Constitution displays their attempts to entirely disregard the jury’s verdict. The U.S. Supreme Court’s decision to strike down these efforts constitutes a rebuke of the prosecution’s attempts to revive a case they lost by disregarding an individual’s rights.
While it may be understandable for attorneys to take issue with the inconsistencies in the jury’s verdict, we must fundamentally remember that members of the jury are not experts in the law, nor have we ever expected them to be. Why then should the McElrath jury suddenly be held to this higher standard? The ultimate purpose of having a jury is for a defendant to have a fair and impartial trial made up of everyday Americans. Historically, American jurisprudence has preserved its tradition of honoring a jury’s verdict regardless of the outcome. Despite the possibility of logical inconsistencies, Courts must ultimately respect the inviolability of a verdict overall. Consequently, this decision sets legal precedent for future cases involving split verdicts. Although this particular case involving both the insanity defense and a Double Jeopardy issue is rare, the Court’s decision nonetheless recommits itself to the protections enshrined in the Fifth Amendment and confirms the irrefutability of a jury’s verdict for future cases.
Endnotes
[1] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[2] McElrath v. Georgia, 22–721 (2024).
[3] Ga. Code Ann. §§16–3–2, 16–3–3, 17–7–131(c)(1) (2019)
[4] Ga. Code Ann. §§16–3–2, 16–3–3, 17–7–131(c)(1) (2019)
[5] McElrath v. Georgia, 601 U.S. ___ (2024)
[6] McElrath v. Georgia, 22–721 (2024).
[7] GA Code § 17-7-131 (2023)
[8] GA Code § 17-7-131 (2023)
[9] 308 Ga. 104, 112, 839 S. E. 2d 573, 579
[10] McElrath v. Georgia, No. 22-721, Petition for Writ of Certiorari (U.S. Supreme Court, Oct. 13, 2023)
[11] "McElrath v. Georgia." Oyez. https://www.oyez.org/cases/2023/22-721.
[12] Congress.gov. n.d. “U.S. Constitution - Fifth Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress.” Constitution.congress.gov. https://constitution.congress.gov/constitution/amendment-5/.
[13] McElrath v. Georgia, 22–721 (2024).
[14] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[15] Smalis v. Pennsylvania, 85-227 (1986)
[16] Cornell Law School. 2023. “Demurrer.” LII / Legal Information Institute. March 2023. https://www.law.cornell.edu/wex/demurrer.
[17] Evans v. Michigan, 568 U.S. 313 (2013)
[18] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[19] Smith v. United States, 21–1576 (2023)
[20] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[21] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[22] United States v. Ball, 163 U.S. 662 (1896).
[23] Cornell Law School. 2021. “Jeopardy.” LII / Legal Information Institute. August 2021. https://www.law.cornell.edu/wex/jeopardy.
[24] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[25] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[26] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[27] “McElrath v. Georgia.” 2023. American Civil Liberties Union. September 13, 2023. https://www.aclu.org/cases/mcelrath-v-georgia.
[28] Brief for the ACLU, ACLU of Georgia, and the National Association of Criminal Defense Lawyers as Amicus Curiae, p. 1, McElrath v. Georgia, 22–721 (2024).
[29] Brief for the ACLU, ACLU of Georgia, and the National Association of Criminal Defense Lawyers as Amicus Curiae, p. 2, McElrath v. Georgia, 22–721 (2024).
[30] Brief for the ACLU, ACLU of Georgia, and the National Association of Criminal Defense Lawyers as Amicus Curiae, p. 3, McElrath v. Georgia, 22–721 (2024).
[31] Brief for the ACLU, ACLU of Georgia, and the National Association of Criminal Defense Lawyers as Amicus Curiae, p. 3, McElrath v. Georgia, 22–721 (2024).
[32] “McElrath v. Georgia.” 2023. American Civil Liberties Union. September 13, 2023. https://www.aclu.org/cases/mcelrath-v-georgia.
[33] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[34] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[35] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[36] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[37] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[38] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[39] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[40] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[41] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[42] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[43] McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
[44] McElrath v. Georgia, 22–721 (2024).
[45] McElrath v. Georgia, 22–721 (2024).
[46] McElrath v. Georgia, 22–721 (2024).
[47] United States v. Scott, 437 U. S. 82, 98, n. 11 (1978)
[48] McElrath v. Georgia, 22–721 (2024).
[49] McElrath v. Georgia, 22–721 (2024).
[50] United States v. Powell, 469 U. S. 57, 68–69 (1984).
[51] Dunn v. United States, 284 U. S. 390, 393–394 (1932).
[52] McElrath v. Georgia, 22–721 (2024).