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November 28, 2023

Does Justice Gorsuch's praise for juries suggest he would be a vote against acquitted conduct sentencing?

The question in the title of this post flows from the notable comments made by Justice Gorsuch in today's Supreme Court oral argument in McElrath v. Georgia.  The full argument can be found here; and this Washington Post piece provides the essentials and starts this way:

Under delusions that she was poisoning him, a teenage Damian McElrath stabbed his mother, Diane, to death in 2012. He washed up, called 911 and told the dispatcher what he had done and why he was right to have done it. A few years later, when the state of Georgia prosecuted him, a jury found that McElrath was insane at the time — and also, not insane.

The jury found him “not guilty by reason of insanity” on the charge of “malice murder,” meaning that he lacked the capacity to distinguish right from wrong or that his delusions meant he lacked criminal intent. But on charges of felony murder and aggravated assault, the jury found him “guilty but mentally ill.”

When the Georgia Supreme Court reviewed the case, it said the conflicting verdicts were so illogical as to be “repugnant” and told prosecutors they could try McElrath again on all three charges. That decision created an exception to the U.S. Constitution’s double jeopardy clause, which says that once acquitted, a defendant cannot be retried on the same charge.

At a hearing Tuesday before the U.S. Supreme Court, the justices appeared ready to tell their Georgia counterparts that it is their turn for a do-over. Justices across the ideological spectrum seemed to believe that once a person has been acquitted of a charge — for whatever reason the jury chooses — the matter is closed.

As Justice Neil M. Gorsuch put it, for “230 years in this country’s history, we have respected acquittals without looking into their substance and without looking into how they fit with other counts and said a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”

Regular readers likely know I wholeheartedly agrees with Justice Gorsuch's vision that "a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system...." But, of course, if prosecutors can pursue, and a judge can impose, a sentence based on acquitted conduct, then a jury does not serve as much of a check on judges or prosecutors or overreach, and we do not respect the democratic design of our Constitution.  If the Justices ever get around to taking up the issues of acquitted conduct, which they should at some point feel duty bound to do, I certainly hope Justice Gorsuch gives meaning to his words in that context.

November 28, 2023 at 09:15 PM | Permalink


A "not guilty by reason of insanity" verdict does authorize the government to deprive the defendant of his liberty. See Ga. Code § 17-7-131(b)(3)(A) (jury to be instructed that "should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law.").

Doesn't that make an insanity "acquittal" different than a normal acquittal?

Posted by: MBC | Nov 29, 2023 1:57:34 PM

An interesting point, MBC, though does that (and should that) really make a difference when the appeals court throws out the acquittal and the state seeks a new trial to secure guilt? A jury acquittal, in whatever form, is a statement by the jury that the person should not be subject to CRIMINAL punishment. And the DJ Clause seems to be a statement that the state cannot seek criminal punishment again after the jury rejected the first effort (on whatever grounds)...

Posted by: Doug B | Nov 29, 2023 2:03:34 PM

I think the bigger issue in this case (apparently raised by some of the amici) is whether trial court has authority to reject verdicts as not being in proper form if they are facially inconsistent and return the jury back to continue their deliberations.

That has been the practice here in Missouri, and apparently elsewhere, with appellate courts enforcing the collateral estoppel effect of the acquittal if the issue is not raised before the jury is discharged. It seemed from reading the transcript that counsel for McElrath -- who otherwise had a solid argument -- had some problems with the questions related to whether the trial court could take steps to have the jury resolve inconsistent verdicts or whether the courts had to simply accept those verdicts. (Of course, under the facts of this case, McElrath wants to benefit from the inconsistent verdicts -- getting to keep the one that he likes and getting to vacate the one that he does not like.) While it would require some changes in local practice, I think most prosecutors would not mind if the rule was that courts simply enforced the verdicts as entered and did not try to resolve the apparent inconsistency. But prosecutors would have a problem if the rule was that the trial court had to accept the verdict that was favorable to the defendant and reject the verdict that was favorable to the state without giving the opportunity for the jury to clarify which of the two findings they intended to make. (I would note that, in Missouri, this issue typically arises in cases in which one offense -- usually a charge that a weapon was used to commit a felony -- depends on the jury finding that the underlying offense was committed. Under that circumstance, a finding of guilt on the weapons charge requires the jury to have first found the defendant guilty of the underlying felony so a not guilty finding on the underlying felony is inconsistent with the finding of guilt on the weapons charge.)

Posted by: tmm | Nov 30, 2023 2:21:00 PM

I would say, other than confirming that a verdict is the jury's actual verdict, that the judge can't mess with it.

Posted by: federalist | Dec 1, 2023 10:13:44 AM

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