McElrath v. Georgia:  Double Jeopardy bars retrial after acquittal even if verdict is inconsistent with other verdicts

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

Double jeopardy bars retrial after a verdict of not guilty by reason of insanity even if that verdict is inconsistent with other verdicts in the case, the U.S. Supreme Court held February 21, in McElrath v. Georgia.

            Damian McElrath, who suffered from schizophrenia, killed his mother.

            He was charged with one count of malice-murder and one count of felony murder, both pertaining to the same event.

            A jury found him “not guilty by reason of insanity” for malice-murder, but “guilty but mentally ill” for felony murder.   Under Georgia law, a not guilty by reason of insanity verdict results in commitment to a state mental health facility, but a not guilty but mentally ill verdict results in commitment to the Department of Corrections, with only discretionary referral to mental health treatment. 

            McElrath appealed.  He argued the felony murder verdict should be vacated because it was “repugnant” to the jury’s not guilty by reason of insanity verdict for malice-murder.

            Georgia law allows a verdict to be set aside if it is “repugnant” to other verdicts, which are not “legally and logically possible of existing simultaneously”.

            The Georgia Supreme Court agreed the verdicts were “repugnant”.  But instead of granting McElrath’s requested relief of vacating the felony-murder conviction, it vacated both the malice-murder verdict and the felony-murder verdict, and remanded the case for a new trial on both.

            On remand, McElrath argued that the Fifth Amendment’s Double Jeopardy Clause barred retrial for malice-murder because of the prior not guilty by reason of insanity verdict.

            The Georgia courts rejected this contention.

            The Supreme Court granted cert.

Holding

            Double Jeopardy bars retrial for the malice-murder count, the Court held in a unanimous opinion.

            It has “long been settled under the Fifth Amendment that a verdict of acquittal is final”, the Court said.  An acquittal is “any ruling that the prosecution’s case is insufficient to establish criminal liability for an offense”.

            “Labels” do not control analysis of whether a verdict is an acquittal, the Court said.  Instead, courts look to a ruling’s “substance” as to the “ultimate question of guilt or innocence”.

            “Once rendered, a jury’s verdict of acquittal is inviolate”, the Court said. 

            “Whatever the basis, the Double Jeopardy Clause prohibits second-guessing the reason for a jury’s acquittal”, the Court said.  A jury can return a verdict of not guilty even for “impermissible reasons”.

            “For double jeopardy purposes, a jury’s determination that a defendant is not guilty by reason of insanity is a conclusion that criminal liability has not been established, just as much as any other form of acquittal”, the Court said.

            “That McElrath’s ‘not guilty by reason of insanity’ verdict was accompanied by other verdicts that appeared to rest on inconsistent findings is of no moment”, the Court said.  “An acquittal is an acquittal, even when a jury returns inconsistent verdicts, convicting on one count and acquitting on another, where both counts turn on the very same issue of ultimate facts”.

            “As far as the Fifth Amendment is concerned, inconsistency in a verdict is not a sufficient reason for setting it aside”, the Court said.

            Double Jeopardy bars retrial on the malice-murder charge, the Court held.

            The Court concluded by noting that, on remand, Georgia courts can determine the status of McElrath’s felony-murder charge as a matter of state law.

Concurring Opinion

            In a concurring opinion, Justice Alito wrote that the Court’s holding did not extend to inconsistent verdicts generally.

            Alito noted the opinion “does not address” some states’ practice, which allows a trial judge to refuse to accept inconsistent verdicts. 

            He also noted that federal law does not prevent the acceptance of inconsistent verdicts.

            “Nothing that we say today should be understood to express any view about 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”, he said.