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February 21, 2024

SCOTUS confirms that "an acquittal is an acquittal" in crazy Georgia case

The Supreme Court this morning handed down two unanimous opinions, one of which came in the criminal case of McElrath v. Georgia, No. 22-721 (S. Ct. Feb 21, 2024) (available here).  Justice Jackson authored the ten-page opinion for the Court, which starts this way:

Under Georgia law, a jury’s verdict in a criminal case can be set aside if it is “repugnant” — meaning that it involves “affirmative findings by the jury that are not legally and logically possible of existing simultaneously.” 308 Ga. 104, 111, 839 S. E. 2d 573, 579 (2020).  In this case, a jury found that petitioner Damian McElrath was “not guilty by reason of insanity” with respect to a malice-murder count, but was “guilty but mentally ill” regarding two other counts — felony murder and aggravated assault — all of which pertained to the same underlying homicide.  Invoking the repugnancy doctrine, Georgia courts nullified both the “not guilty” and “guilty” verdicts, and authorized McElrath’s retrial.

McElrath now maintains that the Fifth Amendment’s Double Jeopardy Clause prevents the State from retrying him for the crime that had resulted in the “not guilty by reason of insanity” finding.  Under the circumstances presented here, we agree.  The jury’s verdict constituted an acquittal for double jeopardy purposes, and an acquittal is an acquittal notwithstanding its apparent inconsistency with other verdicts that the jury may have rendered.  

Justice Alito added a two-paragraph concurrence, which starts this way:

I join the opinion of the Court but write to clarify my understanding of what we have held. In this case, there was indisputably an acquittal on the malice-murder charge. The jury returned a not-guilty verdict on that count, the trial judge entered a judgment of acquittal on that count, and petitioner appealed that part of the judgment. Because the Constitution does not permit appellate review of an acquittal, the State Supreme Court’s decision must be reversed. As I understand it, our holding extends no further

February 21, 2024 at 10:14 AM | Permalink


There is one piece of the opinion that is imprecise---although the DJ Clause has independent bite, states can add to its bite, meaning that if state law deems something an acquittal, it's an acquittal for DJ purposes. So in a case where the judge can act like a 13th juror and acquit, it doesn't matter that the 13th juror role is not constitutionally required.


Posted by: federalist | Feb 21, 2024 10:49:44 AM

Not sure what you are asking, federalist, nor am I a DJ expert. But I thinl guilt/innocence would need to be heart of any judge-based acquittal for that acquittal to count for DJ purposes. I also assume (jury or judge) acquittals for petty offenses may be subject to DJ, even though no jury is constitutionally required for such offenses. And so on?

Posted by: Doug B | Feb 21, 2024 11:28:58 AM

My memory is that several years back, the court found that granting a mid-trial motion for acquittal was an acquittal for the purposes of Double Jeopardy even if court later reconsidered.

I do not think that it necessarily makes a judgment notwithstanding the verdict into an acquittal for the purposes of Double Jeopardy but I would not be shocked if we now see that argument.

I am a little disappointed that they did not address whether court can decline to accept inconsistent verdicts and require the jury to resolve them.

Posted by: tmm | Feb 21, 2024 12:05:45 PM

Evans v. Michigan bars retrial after a mid-trial judge acquittal, but would not prevent a court from reversing an acquittal judgement not withstanding a guilty verdict, because no second trial would be required.

Posted by: Jacob Berlove | Feb 21, 2024 12:12:09 PM

One of the strangest cases I saw was a Federal distribution of crrack cocaine trial. The initial jury verdict form found the defendant guilty, but for the drug quantity, the jury wrote "0"! The jury explained to the jury that the two were inconsistent, so they had to go back and deliberate further. Eventually, the jury returned a new verdict form, finding the guilty and finding a drug quantity of 2 grams of crack cocaine. On appeal, the defendant attacked the initial verdict, and said that the Judge should have declared a mistrial. The appellate court sided with the prosecution and the Judge,and affirmed the second verdict.

Posted by: Jim Gormley | Feb 22, 2024 1:17:06 PM

Closest I came to a situation like this was a case in which we charged possession with intent and carrying a concealed weapon. Under our state law, there was an exception to carrying concealed for peaceable interstate travel, and the only evidence that the travel was not peaceable was the drug charge. We had a jury that thought that we needed to put on affirmative evidence that a previous drug dealer had not just forgotten his large stash of controlled substances in the rental car; so they acquitted him of possession with intent but convicted of carrying concealed. We asked the trial court to return for further deliberations to resolve the inconsistency. Unfortunately for us, the trial court declined.

Doubly unfortunate, our appellate courts have two divergent lines of cases. The first, sort of taking the same approach as McElrath, holds that we do not try to figure out what the jury was thinking and, as long as the evidence supports the conviction, we ignore the inconsistency. The second treats the finding on the "independent" felony (here the possession with intent) as collateral estoppel and, thus, a not guilty on that count shows that the jury could not have found him guilty on the dependent felony (here carrying a concealed), and our courts went with that second line of cases. The only fortunate thing for us was that defendant had failed to appear for some of his court dates and that conviction was affirmed.

Posted by: tmm | Feb 22, 2024 1:34:43 PM

n strange case came from when I practiced law in Atlanta for 13 years. A criminal defense lawyer was dating a secretary who worked for the DEA. One night, during "pillow talk", she told her boyfriend about an upcoming search that was about to happen at a drug dealer's home and office. The secretary was unaware that her boyfriend had previously represented that drug dealer and knew him well. The attorney tipped off the drug dealer that his home and office were about to be raided by the DEA. When the raid came down, the DEA found no drugs, little cash, and no weapons. They felt certain that someone had tipped off the drug dealer, so they began a "Mole Hunt", looking for the leaker. Eventually, they figured it out and indicted the DEA Secretary and her criminal defense lawyer boyfriend for conspiracy to commit obstruction of justice. At trial, it was clear to the jury that the Secretary never had any intent to obstruct anything. She just exercised poor judgment in telling her boyfriend about the impending DEA search. The jury found the attorney GUILTY, but found the secretary NOT GUILTY! The convicted defense attorney and his counsel tried to get the verdict set aside because the lawyer could not have conspired with himself, there could not be a "conspiracy of one"! The same issue was raised on appeal, after the trial Judge denied their motion for JNOV and a motion for a new trial. The trial Judge and the appellate panel both stood on the reasoning that just because the jury couldn't find the secretary guilty beyond a reasonable doubt did not mean that the lawyer was conspiring alone! His conviction stuck, he served his sentence and was disbarred.

Posted by: Jim Gormley | Feb 23, 2024 7:52:28 PM

Jim Gormley --

The secretary acted without criminal intent, so letting her off was just. The lawyer acted WITH criminal intent, so punishing him was likewise just. If the ultimate aim of the law is justice, then this case, even with its complications, came out in a way fair-minded laymen would accept.

Posted by: Bill Otis | Feb 23, 2024 9:00:50 PM

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