Double Jeopardy May Apply After State Law Invalidates Jury Acquittal
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Where Georgia law invalidated a jury’s “repugnant” acquittal on a felony murder charge, the Supreme Court recently held the Fifth Amendment’s Double Jeopardy Clause still prohibited the State from retrying a defendant for that same crime.
Under Georgia law, a “repugnant” jury verdict in a criminal case that involves “affirmative findings by the jury that are not legally and logically possible of existing simultaneously” may be set aside. In the case of Damian McElrath, Georgia charged him with malice murder, felony murder, and aggravated assault all for the same act of murdering his mother. A jury subsequently found McElrath was “not guilty by reason of insanity” with respect to the malice-murder count, but was “guilty but mentally ill” regarding the other two counts. Invoking the repugnancy doctrine, Georgia courts nullified both the “not guilty” and “guilty” verdicts and authorized McElrath’s retrial.
On McElrath’s appeal related to his conviction on retrial, the Supreme Court held the Double Jeopardy Clause prevented the State for retrying him for the crime that resulted in the jury’s “not guilty by reason of insanity” finding.
All his life, McElrath suffered from diagnosed mental health disorders. In his teen years, his mental health deteriorated substantially, eventually manifesting in the belief that his mother was poisoning his food and drink with ammonia and pesticides. In 2012, when McElrath was 18 years old, he was committed to a mental health facility where he was diagnosed with schizophrenia. One week after his release, he stabbed his mother to death. He then called 911 to report his actions and later told police, “I killed my Mom because she poisoned me.”
Georgia charged McElrath with three crimes stemming from his mother’s death: malice murder, felony murder, and aggravated assault. At trial, he did not dispute his action but asserted an insanity defense. The jury returned a split verdict against McElrath, finding him “not guilty by reason of insanity” on the malice murder charge and “guilty but mentally ill” on the other two charges. For the felony murder conviction, the trial court sentenced McElrath to life imprisonment.
McElrath appealed his felony murder conviction on “repugnancy” grounds. The Supreme Court of Georgia agreed with McElrath that the jury’s determinations were irreconcilable. But instead of vacating only the felony murder conviction, the court vacated both the malice murder and felony murder verdicts. The State subsequently retried him.
McElrath challenged the malice murder charged on Double Jeopardy grounds, and eventually appealed the issue to the Supreme Court of Georgia, which agreed with him. On the State’s petition, the U.S. Supreme Court then reviewed the matter.
A unanimous Supreme Court affirmed the Georgia high court’s judgment. Writing for the Court, Justice Ketanji Brown Jackson wrote, “[t]he 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.” She explained that the Court has “long
recognized” that a jury acquittal might reflect a determination of the defendant’s innocence, “compromise, compassion, lenity, or misunderstanding of the governing law.” Nevertheless, she wrote for the Court, “the Double Jeopardy Clause prohibits second-guessing the reason for a jury acquittal.”
Addressing the State’s argument that no verdict under State law issued in McElrath’s case because the acquittal was invalidated as “repugnant,” Justice Jackson wrote that the Double Jeopardy Clause is a matter for the federal courts, which does not turn on State law. Rather, an acquittal occurs for Double Jeopardy purposes whenever a factfinder “acted on its view that the prosecution had failed to prove its case.” Given this “focus on substance over labels,” a State’s characterization of a ruling is not binding for Double Jeopardy purposes.
Though the jury’s decisions in McElrath’s initial prosecution cannot be reconciled on their face, the Supreme Court held the jury’s determination on the malicious murder charge--that the prosecution failed to prove its case—implicated the Double Jeopardy Clause and prohibited the State from re-prosecuting McElrath for that crime.
You can read the Supreme Court’s full opinion in McElrath v. Georgia here: https://www.supremecourt.gov/opinions/23pdf/22-721_kjfl.pdf.
For over forty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.
