Lissa Griffin

In McElrath v. Georgia,[1] decided on Feb. 21, the U.S. Supreme Court unanimously upheld the sanctity of the Fifth Amendment's double jeopardy clause[2] and the finality of acquittal.[3]

The case was unusual, involving a so-called repugnant verdict — essentially, logically incompatible verdicts on different charges. The defendant was acquitted of one count of malice murder by reason of insanity, and convicted of felony murder and aggravated assault in the same incident.

In barring retrial on the acquitted count, the court clearly restated its long-standing rule that the double jeopardy clause prevents a retrial after an acquittal,[4] regardless of the nature of, cause of or reason behind the acquittal.[5]

The defendant, Damian McElrath, was prosecuted in Georgia state court for stabbing his mother more than 50 times and killing her. To the police and at trial, he admitted he had killed her, but argued that he was suffering from schizophrenia and believed his mother was poisoning him.

He was charged in separate counts with malice murder, felony murder and aggravated assault. The jury returned a verdict finding him not guilty by reason of insanity of malice murder, and "guilty but mentally ill" on the other counts.

The defendant appealed to the Georgia Supreme Court,[6] claiming that the felony murder conviction should be vacated because it was repugnant to the jury's acquittal on the malice murder count based on a finding of insanity.[7]

The Georgia Supreme Court agreed that the verdicts were repugnant because "it is not legally possible for an individual to simultaneously be insane and not insane during a single criminal episode against a single victim, even if the episode gives rise to more than one crime."[8]

The court held, as the prosecution argued, that the repugnancy nullified both verdicts, and therefore required that both verdicts be vacated and the case remanded for a new trial.[9]

In a unanimous opinion authored by Justice Ketanji Brown Jackson, the Supreme Court reversed, reiterating its well-settled rules that an acquittal bars retrial and that a court should not examine the basis for the acquittal. An acquittal, on whatever basis, is an absolute bar to retrial. This absolute bar rule protects the innocent, of course, who may be worn down and ultimately convicted by successive prosecutions for the same offense.

Although the repugnancy of verdicts may be a new twist on the double jeopardy implications of an acquittal, the court made clear that the rule applies to protect the jury's power to acquit without being second-guessed, reflecting the importance of the jury trial in our legal system.[10]

While the court recognized the power of the states to enact their own procedural rules regarding repugnant verdicts, it held that the question of whether an acquittal violates the double jeopardy clause is a question of federal constitutional law. The repugnancy of verdicts does not deprive the acquittal of finality. As the court held, "Once rendered, a jury's verdict of acquittal is inviolate."[11]

The court's double jeopardy jurisprudence has been described as a tangled "Sargasso Sea which could not fail to challenge the most intrepid judicial navigator," as articulated by the Supreme Court in its 1981 Albernaz v. U.S. decision.[12] Justice William Rehnquist famously noted that the double jeopardy clause "is one of the least understood … provisions of the Bill of Rights."[13]

The text of the clause is extremely brief — "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb" — and has yielded some of the most complex doctrines in criminal procedure.

Indeed, on the meaning of "same offence," the court has decided cases one way and then quickly reversed itself.[14] The same is true in interpreting the meaning of "acquittal"[15] and in defining double punishment.[16]

The role of collateral estoppel in mixed verdict criminal cases — where a question of fact is finally determined by an acquittal, barring relitigation of other counts — has also been confused.[17]

But as to the sanctity of an acquittal terminating jeopardy and prohibiting retrial, the court has long and consistently held that an acquittal — any finding that the prosecution's evidence is insufficient — bars retrial, without any examination of the reason for the acquittal.[18]

Thus, for example, in Fong Foo v. U.S.,[19] the court in 1962 refused to allow a retrial after an acquittal that was erroneously entered by the trial judge on the basis of alleged prosecutorial misconduct and the weakness of the prosecution's evidence.

Other decisions follow the same pattern. Subsequent decisions barred retrial after acquittal when the acquittal was granted by a jury or a judge,[20] at trial or on appeal,[21] or even erroneously,[22] and even if, in the words of the court's 2016 decision in Bravo-Fernandez v. U.S., it was "the result of compromise, compassion, lenity, or misunderstanding of governing law."[23]

By way of contrast, the court explained in McElrath that "as far as the Fifth Amendment is concerned, '[i]nconsistency in a verdict is not a sufficient reason for setting it aside.'"[24]

Given the complicated and often contradictory interpretations of other double jeopardy doctrines, the significance of the court's brief and unanimous McElrath opinion lies in its unequivocal protection of the finality of an acquittal. After oral argument, court watchers expected a relatively quick, short and unanimous opinion, and that is what the court delivered.

Perhaps the larger significance of McElrath lies in the court's decision to grant certiorari in the first place. Granting certiorari to correct an error, as opposed to resolving circuit conflicts on important issues, is relatively unusual.

Perhaps the court believed that the Georgia court's ruling was a serious departure from settled doctrine that it thought it had long made clear. Perhaps the court sought to clarify what procedures and issues belong to the states, and which belong to the federal courts.

Grants of certiorari are not explained, but the court certainly made clear to the states that it will review and unanimously reverse cases that it deems to be contrary to well-established constitutional doctrines.

If that is the message, it should be welcomed by those seeking consistency in constitutional law. For criminal defendants, it would certainly be a welcome message.

---

Lissa Griffin is a professor of law at Pace University's Elisabeth Haub School of Law.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] McElrath v. Georgia , No. 22-721, 601 US____ (Feb. 21, 2024).

[2] The Double Jeopardy clause of the Fifth Amendment provides that "[n]o person shall…be subject for the same offence to be twice put in jeopardy of life or limb." US Const . Amend. V.

[3] A repugnant verdict is a verdict that is logically and factually impossible. Here the state claimed that the acquittal of malice murder on the grounds of insanity and the verdicts of guilt of felony murder and aggravated assault were repugnant. The Georgia Supreme Court agreed. The US Supreme Court accepted that the verdicts could be viewed under state law as repugnant. The issue was whether the verdict of not guilty by reason of insanity constituted an acquittal for double jeopardy purposes.

[4] The Court has defined an "acquittal" as "any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense." Evans v. Michigan , 568 US 313, 318 (2013).

[5] Justice Alito concurred, making clear that the Court's opinion did not address the double jeopardy implications of state rules allowing a trial court to send a jury back to deliberate upon finding that the verdicts are inconsistent. 601 US ____, concurring opinion at 1.

[6] The defendant appealed directly to the state Supreme Court, "which has appellate jurisdiction over all murder cases. Slip op at 4, n. 2, citing Ga. Const. Art VI § 6 ¶ 3 and Neal v. State , 290 Ga. 563, 567 (2021) (Hunstein, C.J. concurring).

[7] See 308 Ga. At 112. Under Georgia law, a court may set aside a verdict as repugnant where a jury's findings "are not legally and logically possible of existing simultaneously."

[8] Id. At 113. The court contrasted a repugnant verdict with an inconsistent verdict, one that is not logically and factually impossible but that involves an acquittal and conviction that are "seemingly incompatible." Id at 108. Inconsistent verdicts do not require reversal. Dunn v. United States , 284 US 390 (1932).

[9] 308 Ga. At 112.

[10] This power is also protected by the well-established prohibition against scrutinizing the jury's deliberations in the absence of outside influence or racial bias leading to a conviction. See Federal Rules of Evidence, Rule 606(b); Pena-Rodriguez v. Colorado , 580 US ____, 137 S. Ct. 855 (2017).

[11] 601 US ____, slip op. 6.

[12] Albernaz v. United States , 450 US 333, 343 (1981). "Sargasso" is defined as "a mass of floating vegetation." Webster's New Collegiate Dictionary 1043 (11th ed. 2003). See generally, Lissa Griffin, Two Sides of a "Sargasso Sea": Successive Prosecution for the "Same Offence" in the United State and the United Kingdom, 37 U. Rich. L. Rev. 471 (2003).

[13] Whalen v. United States , 445 US 684, 699 (1980) (Rehnquist, dissenting). 

[14] See, Grady v. Corbin , 495 US 508 (1990), overruled by United States v. Dixon , 509 US 93 (1993).

[15] See United States v, Jenkins , 420 US 358 (1975), overruled by United States v. Scott , 437 US 82 (1978).

[16] See United States v. Halper , 490 US 435 (1989), overruled by Hudson v. Unied States , 522 US 93 (1997).

[17] See Yeager v. United States , 557 US 110 (2009), Justice Scalia, joined by Justices Alito and Thomas dissented; Justice Alito separately dissented. See generally, Lissa Griffin, Untangling Double Jeopardy in Mixed Verdict Cases, 63 SMU L. Rev. 1033 (2010).

[18] See, e.g., Dunn v. United States , 284 US 390 (1932); Green v. United States , 355 US 184, 188 (1957); United States v. Martin Linen Supply Co. , 430 US 564 (1977); United States v. Powell , 469 US 57 (1984); Bravo-Fernandez v. United States , 580 US 5 (2016).

[19] Fong Foo v. United States , 369 US 141, 143 (1962).

[20] United States v. Martin Linen Supply Co. , 430 US 564, 573 (1977).

[21] Burks v United Sates , 437 US 1 18 (1978).

[22] Sanabria v. United States , 437 US 54, 69 (1978).

[23] Slip op at 6, quoting Bravo-Fernandez v. United States , 580 US 5, 10 (2016). 

[24] Slip op at 9, quoting Harris v. Rivera , 454 US 339, 345 (1981) (per curiam).