Simon Heinrich | McElrath v. State

INTRODUCTION

The Fifth Amendment’s Double Jeopardy Clause is simple, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This clause is so essential to the Fifth Amendment that James Madison listed it first amongst the rights granted in the Amendment he proposed to Congress, writing, “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.” 1 Annals of Cong. 451-52 (Joseph Gales, ed. 1790). The clause “unequivocally prohibits a second trial following an acquittal . . . an acquitted defendant may not be retried even though ‘the acquittal was based upon an egregiously erroneous foundation.’” Arizona v Washington, 434 U.S. 497, 502 (1978) (quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962)).

The Supreme Court incorporated the Double Jeopardy Clause against the states in 1969, stating that the clause “represents a fundamental ideal in our constitutional heritage.” Benton v. Maryland, 395 U.S. 784, 794 (1969). The ideal can be traced from Greek times through English common law. By the time it was incorporated against the States, every single state had incorporated some form of the guarantee against double jeopardy. Id. at 795.

Georgia is testing that ideal, at least according to Damian McElrath. In 2017, McElrath was tried for malice murder, aggravated assault, and felony murder for attacking and killing his mother, Diane McElrath. Damien McElrath v. State of Georgia Petition for Writ of Certiorari (hereinafter Pet), at 2. At trial, McElrath was found not guilty of malice murder by reason of insanity. However, he was found “guilty but mentally ill,” of aggravated assault and felony murder. Id. at 3. McElrath appealed to the Georgia Supreme Court, which ruled that the two verdicts, one declaring legal sanity and one declaring legal insanity, were legally repugnant (more on this below). Id. The Court vacated both convictions and remanded them to the trial court, where McElrath motioned to dismiss the malice murder charge on double jeopardy grounds. Id. Despite the fact that he had been acquitted of malice murder prior to his appeal, the trial court, as well as the Georgia Supreme Court, denied his motion and held that the Double Jeopardy Clause did not “preclude retrial of the malice murder charge.” Id. at 4. McElrath then appealed to the US Supreme Court, which granted certiorari.

ISSUE PRESENTED

Does the Double Jeopardy Clause of the Fifth Amendment bar a second prosecution for a crime of which a Defendant was previously acquitted?

THE ARGUMENTS

Under Georgia law, inconsistent verdicts are upheld on appeal, while repugnant verdicts must be vacated with new trials ordered. McElrath v. State, 308 Ga. 104, 109-111 (2020). Repugnant verdicts happen when juries make affirmative findings on the record to find the defendant guilty of one count and not guilty on the other. Id. at 111. McElrath argues that the Double Jeopardy Clause precludes a second prosecution for the malice murder, even though the Court declared the verdicts repugnant and vacated the guilty and not guilty verdicts.

First, McElrath argues that allowing a trial conflicts with the Court’s precedent. After all, “the Double Jeopardy Clause ‘unequivocally prohibits a second trial following an acquittal.’” Pet at 7 (quoting Arizona, 434 U.S. at 503). Counsel repeatedly cites back to Fong Foo’s holding that even when the foundation for an acquittal is “egregiously erroneous,” the acquittal must stand. 369 U.S. at 143. A verdict of not guilty by reason of insanity is an acquittal, as counsel reminds the Court. If it is an acquittal, then the Double Jeopardy Clause precludes a second prosecution. Pet. at 9.

Next, McElrath argues that Georgia’s framework of inconsistent verdicts versus repugnant verdicts is an error because it holds that some verdicts can be so inconsistent that “retrial after an acquittal is permissible.” Id. at 10. He argues that Fong Foo and its progeny hold that all acquittals invoke Double Jeopardy. Id. at 11 (citing Burks v. United States, 437 U.S. 1, 16 (1978) (“we necessarily afford absolute finality to a jury's verdict of acquittal – no matter how erroneous its decision”)). However, the State responds that repugnant verdicts are so incoherent that they are “essentially, failed verdicts,” that fail to terminate jeopardy. App. Brief in Opposition at 3. The state further compares them to a mistrial. Id

Additionally, McElrath argues that Georgia is the only state that treats repugnant verdicts differently from inconsistent verdicts. Counsel cites cases from Alaska, New York, Utah, and Iowa, where each state holds that vacated acquittals based on inconsistent verdicts still trigger the Double Jeopardy Clause. DeSacia v. State, 469 P.2d 369 (Alaska 1970); People v. DeLee, 26 N.E.3d 210 (N.Y. 2014); Pleasant Grove City v. Terry, 478 P.3d 1026 (Utah 2020); State v. Halstead, 791 N.W.2d 805 (Iowa 2010). These cases hold no exception to the Double Jeopardy Clause’s ban on second prosecutions following acquittals, and Georgia is alone in this regard. However, the State argues that the chosen cases are poor comparisons for this case, as they all hold merely inconsistent verdicts, not repugnant verdicts because Georgia is the only state that even considers repugnant verdicts. App. Brief in Opposition at 3.

Finally, McElrath argued that the Georgia Supreme Court’s decision stripped him of fundamental constitutional rights, specifically the right to be free from double jeopardy. Pet. at 16 (citing Benton, 395 U.S. at 794). If the Georgia Supreme Court’s decision stands, then a decision that strips a fundamental constitutional right becomes binding on all courts in Georgia. Id. The State responds by arguing that finding verdicts repugnant is so rare the Georgia Supreme Court has only ever done it twice, so people will not have their rights stripped. App. Brief in Opposition at 15.

In addition to responding to McElrath’s arguments, the State argued that McElrath was procedurally barred from arguing that the Georgia Supreme Court had “erred by vacating his acquittal.” Id. at 4. The question of vacating the acquittal came up the first time he went before the Georgia Supreme Court. Id. As he did not make a motion for reconsideration, and is now in separate litigation, the state argues that he is barred from having his sentence vacated. Id. The State surely hopes to sway the votes of the three former prosecutors on the Court, while Mr. McElrath can hope to persuade Justice Jackson.

LOOKING FORWARD

While Mr. McElrath argues that there would be other defendants who face similar circumstances whose rights would be violated, the data does not quite back that up. The Supreme Court of Georgia has only ever heard questions of repugnant verdicts twice, and one of those cases is McElrath v. State. Additionally, both sides cede that Georgia is the only state where the court has the power to declare verdicts repugnant. Given those two facts, the results of this case will likely not have wide-reaching effects beyond this case itself. It will be interesting to see whether the procedural hurdle of this being separate litigation from the vacatur litigation will be a turning point or mostly brushed over. Either way, six years after the killing of his mother, after two trips up from the trial court to the Georgia Supreme Court, Mr. McElrath will get his day in the highest court in the land.