Justices Wary Of Ga. Retrial Law: 'An Acquittal Is An Acquittal'

By Katie Buehler | November 28, 2023, 4:25 PM EST ·

The U.S. Supreme Court seemed dubious Tuesday that a Georgia law allowing for the re-prosecution of all criminal charges in certain cases with contradictory jury verdicts, including partial acquittals, passes constitutional muster, bombarding the state's solicitor general with questions on how the law fits into the nation's tradition of respecting jury verdicts.

Justice Neil Gorsuch challenged Georgia Solicitor General Stephen Petrany at one point during the hourlong arguments session to point to another state that has a law similar to Georgia's "repugnant" jury verdict rule, which allows for retrials of all charges in criminal cases where a court determines the jury's verdicts are based on irreconcilable and contradictory findings of fact. The law is being challenged for violating the Fifth Amendment's double jeopardy clause.

Petrany admitted he wasn't aware of any other states with similar laws, but argued that's because other states haven't had to address this rare issue yet. Georgia's law partially arises out of the state's use of additional, special verdicts in addition to the general "guilty" and "not guilty" options, he said.

Justice Gorsuch rebuffed that argument, suggesting the true reason is that, for more than 230 years, the nation has respected jury acquittals as "sacrosanct" no matter their circumstances.

"An acquittal is an acquittal is an acquittal since time immemorial," he said.

Chief Justice John Roberts, who focused most of his questions on the breadth of a state's authority to establish criminal procedure rules, seemed to agree. He asked Petrany how the justices should distinguish between an allowable state law and a "frivolous" one that impedes a federal rule.

The high court must consider whether the state's law is "outside the bounds" of "normal, reasonable legislation," Petrany said, while presuming the state is allowed to control court procedures as long as they don't run afoul of federal constitutional guarantees.

"Well, and I guess the argument would be, even in the context of your understanding, that it's the only state that has done this in 230 years, and maybe that's outside the normal understanding," Justice Roberts replied.

Georgia's jury verdict rule is being challenged by defendant Damian McElrath, who in 2017 was found not guilty by reason of insanity on a charge of malicious, or premeditated, murder and "guilty but mentally ill" on charges of felony murder and aggravated assault in relation to the 2012 stabbing death of his adoptive mother, Diane McElrath.

Under Georgia law, a "guilty but mentally ill" verdict means the jury found the defendant guilty beyond a reasonable doubt but believes the defendant should be placed in psychiatric care before serving their prison term.

On appeal, the Georgia Supreme Court vacated all three verdicts against McElrath after finding they were contradictory and "repugnant" under state law. The court ordered a new trial in McElrath's case, which he claims violates the Fifth Amendment's double jeopardy clause by subjecting criminal defendants who've been acquitted of certain charges to unconstitutional retrials.

Georgia defends its rule by arguing it was established to protect defendants in instances where juries find "inherently contradictory" facts and return illogical verdicts. In McElrath's case, the jury found he was both insane with respect to the malicious murder charge and sane with respect to the felony murder charge, despite the charges stemming from the same alleged act.

"These incoherent, contradictory statements do not constitute a verdict in the first place," Petrany argued Tuesday.

Since there was no original verdict in McElrath's case under Georgia law, his first period of jeopardy never concluded, Petrany explained, meaning a retrial would create no double jeopardy issue in this case.

But McElrath's attorney, Wiley Rein LLP partner Richard Simpson, countered that McElrath's first period of jeopardy ended when the verdicts were rendered by the jury. The Georgia Supreme Court can't later compare the verdicts, determine they are contradictory and refuse to honor them, he argued.

"We don't know why they found him sane on one count and insane on the other," Simpson said. "You can't go back and question that. Once the jury comes back and says 'not guilty,' that's the end of it."

Justices Elena Kagan and Ketanji Brown Jackson echoed Simpson's argument. They both told Petrany they believe juries have the right to issue inconsistent verdicts based on compromises made during deliberations or a desire to show leniency.

Courts cannot second-guess a jury's decision or attempt to intrude into a jury's deliberations, even if a judge sees the verdict as "a humdinger of a mistake," Justice Kagan said.

Petrany argued that may be true in cases that result in general verdicts, but Georgia's special verdict cases involve additional findings of fact that show the courts what the jury was thinking. A judge doesn't have to intrude into the deliberations to see the jury based its contradictory verdicts on finding McElrath was both sane and insane, he said.

However, Justice Sonia Sotomayor said she doesn't believe Georgia's use of special verdicts should play a role in the Supreme Court's analysis of its "repugnant" jury verdict rule. A defendant's sanity isn't a special finding of fact, she said.

"All we're looking at is what the jury did," she said. "And the jury said not guilty by a reason of insanity."

Justice Samuel Alito was the only member of the court who didn't express some type of doubt about Georgia's argument in support of the "repugnant" jury verdict law, and he only asked questions of McElrath's attorney.

He asked Simpson to point to any Supreme Court precedent on double jeopardy that prohibits states from issuing procedural rules that call on judges to reject inconsistent verdicts, but Simpson couldn't.

Justice Alito also asked what legal principle distinguishes instances where a jury makes inconsistent findings on one charge and is required by a judge to continue deliberating without violating the double jeopardy clause from situations like McElrath's, where the jury makes "logically irreconcilable" findings on two or more charges.

"Maybe there's a principle that explains that," Justice Alito said. "Other than a formal difference, I don't really — it doesn't jump out at me why that should be different."

Simpson said the difference is that double jeopardy has always been analyzed on an offense-by-offense basis.

"So the question is, was there a verdict on a particular offense?" he explained. "And if what the jury returns does not show that there has been a verdict ... then it's appropriate to ask them to deliberate further. What the court can't do in that circumstance is to look at the content of two verdicts and say, 'We're going to compare the jury's finding on this count with its findings on this separate offense.'"

McElrath is represented by Richard A. Simpson and Elizabeth E. Fisher of Wiley Rein LLP, H. Maddox Kilgore and Carlos J. Rodriguez of Kilgore & Rodriguez LLC and F. Andrew Hessick.

Georgia is represented by Stephen J. Petrany, Ross W. Bergethon, Justice T. Golary, James E. Barrett and Paul R. Draper of the Georgia Attorney General's Office.

The case is McElrath v. Georgia, case number 22-721, in the Supreme Court of the United States.

--Editing by Jay Jackson Jr.

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