Courthouse Steps Decision: McElrath v. Georgia

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Emily Manning:  Hello, everyone, and welcome to this Federalist Society Virtual Event. My name is Emily Manning, and I’m an Associate Director of Practice Groups with The Federalist Society. Today, we’re excited to host a Courthouse Steps Decision Webinar on McElrath v. Georgia.

 

We’re joined today by Zach Smith, who is a Legal Fellow and Manager for the Supreme Court and Appellate Advocacy Program at The Heritage Foundation. Zach previously served for several years as an Assistant United States Attorney in the Northern District of Florida. Prior to that, he spent two years as an associate in the Washington, D.C. office of Cleary Gottlieb Steen & Hamilton, which he joined after clerking for the Honorable Emmett R. Cox on the United States Court of Appeals for the Eleventh Circuit.

 

If you’d like to learn more about Zach, his full bio can be viewed on our website, fedsoc.org. After Zach gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can.

 

Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today. And Zach, the floor is yours.

 

Zach Smith:  Well, thank you for that introduction, Emily, and thank you for helping to host the webinar today. I’m very excited to be here and talk about this case. It’s a pretty straightforward case, but it’s an important one that adds some clarity to the distinction between where state procedural law ends and federal constitutional double jeopardy protections begin.

 

And so I thought today what we could do, I could talk a little bit about the facts and the background of this particular case, some of the important issues in this case, and then briefly, at the end, try to fit this within some of the larger trends in the Supreme Court’s criminal law jurisprudence lately.

 

And so this was a very short, 10-page opinion that was written by Justice Jackson. It was unanimous for the Court, which I think shows in some ways that the issues in this case were relatively straightforward. But unfortunately, the facts of this case, like many criminal cases, are very tragic.

 

Damian McElrath was a young man—a very troubled young man—who suffered from mental health issues for many, many years. He was bipolar. He was schizophrenic. He had been in and out of different programs and therapies, committed different relatively low level crimes—basically a very troubled individual.

 

And unfortunately, that trouble culminated on July 16, 2012, when Damian McElrath murdered his adoptive mother, Diane. In fact, he murdered her in a very brutal fashion, stabbing her over 50 times.

 

And when asked why he murdered his mother, he said he did it because he believed that she had been trying to poison him. In fact, shortly after he stabbed Diana over 50 times in the course of murdering her, he called 911, confessed to the crime, and repeated once he was in police custody that he did this again because it was his belief—according to him—that she had been trying to poison him and harm him in various ways.

 

Now, after investigating the case, the state of Georgia actually charged him with three crimes stemming from this incident. They charged him with malice murder, which is essentially the intentional killing of another. They charged him with assault, for the stabbing, and then for felony murder because that assault resulted in the death of his stepmother.

 

Now, the convoluted backstory to this case is somewhat convoluted. Initially, McElrath waived his right to a jury trial. He agreed to a bench trial. The judge there found him guilty but mentally ill on all three counts and sentenced him to life in prison. And that’s something we’ll encounter throughout the course of this case as we’re talking about it.

 

Under Georgia law, someone can be found not guilty of a crime by reason of insanity. They can be found guilty of the crime, but then they can also be found guilty but mentally ill. And all this intermediate determination means is that the jury found that someone was able to form the requisite intent to commit the crime but that it may be suffering from mental health issues so that while they’re incarcerated, the Georgia Department of Corrections could, if they found it appropriate, provide that individual with certain mental health treatment.

 

And so even though the judge and the bench trial initially found McElrath guilty but mentally ill, there were problems with that verdict, and it was ultimately set aside. And so when McElrath went to trial again, he chose to take his case -- plead his case in front of a jury. And again, it was undisputed that he had killed his mother. The only real question the jury was being asked to resolve was whether he was not guilty by reason of insanity, whether he was capable of forming the requisite intent to be held criminally liable for his actions.

 

And so, at the conclusion of that first trial, the jury found him not guilty by reason of insanity on the -- ostensibly, the most serious charge, the malice murder charge, the intentional murder charge. But they found him guilty but mentally ill on the assault and the felony murder charge.

 

And so because of that, McElrath appealed that decision up to the Georgia Supreme Court because it was a murder case and went directly to the Georgia Supreme Court and said that these verdicts were inconsistent, that because they were inconsistent, that, essentially, the Georgia Supreme Court should let the acquittal stand but vacate the convictions for the assault and for the felony murder charges.

 

Now, what’s interesting about this is that McElrath argued -- and one of the key issues in this case throughout the litigation has been the fact that Georgia has a unique form of verdict inconsistency. Many states allow for inconsistent verdicts to stand if they’re entered by a jury—meaning they may be logically, in some way irreconcilable. For instance, maybe someone is convicted of conspiracy to possess drugs but not of the underlying drug possession itself. Those verdicts are inconsistent in some ways, and states can deal with those differently. They can let the inconsistent verdict stand. They can vacate the conviction on inconsistent verdicts. But most states have a mechanism for dealing with that type of problem.

 

Georgia is unique in that they deal with inconsistent verdicts, but then they also have something that they call “repugnant verdicts.” And they say this is different in some ways than merely inconsistent verdicts. Repugnant verdicts are ones that cannot factually, logically, or legally, according to Georgia law, be reconciled with each other.

 

And so in this particular case, the Georgia Supreme Court found that McElrath’s acquittal by reason of insanity and guilty but mentally ill verdicts were repugnant under Georgia law because someone cannot be insane and sane legally at the same time for committing the same acts.

 

And so because of that, the Georgia Supreme Court said that they were going to vacate both the acquittal and the conviction and remand it back to the trial court for trial. And so when they did this, McElrath raised a double jeopardy claim, saying that because he had been previously acquitted of the malice murder charge, the state could not now move forward and once again try him on that claim.

 

And the trial court rejected that claim. It went back up to the Georgia Supreme Court, and the Georgia Supreme Court clarified what, in their view, “repugnancy” meant under Georgia law. And they said repugnancy was different than a merely inconsistent verdict and that the effect of a -- of repugnant verdicts being entered was essentially the same as if a mistrial had occurred or if a hung jury had occurred, that there was never a verdict that was validly entered. Those verdicts were void from the get go.

 

And because there was never a valid verdict that was entered, essentially, McElrath’s jeopardy never terminated so that he could still be tried once again for those same underlying offenses on those same underlying charges.

 

Now, this was a unanimous decision by the Georgia Supreme Court that found there wasn’t a double jeopardy problem with doing this. But what’s interesting is that one of the justices on the Georgia Supreme Court, Judge -- Justice Pinson, who is a former clerk to Justice Clarence Thomas, had a long and distinguished career practicing appellate law in Georgia, he concurred in the -- that judgment. But he did so dubitante. And for those who aren’t familiar, that’s just a fancy Latin way of saying he concurred, but he did so doubtfully.

 

And the reason he did that is he raised concerns that many of the concerns that McElrath was raising on appeal saying essentially that he found it hard to reconcile the Georgia Supreme Court’s decision, that inconsistent verdicts were in some way different informed, that Georgia’s repugnant verdicts were in some way different informed than merely inconsistent ones, and that he found this hard to reconcile with the U.S. Supreme Court’s case law in this area. But he said while he had these doubts, they weren’t significant enough to essentially dissent and go against an otherwise unanimous decision from his colleagues.

 

And so, of course, McElrath petitioned the U.S. Supreme Court for certiorari. They agreed to hear the case. They heard oral arguments back in November, and they issued their opinion in this case just last week.

 

Now, some of the issues in this case -- obviously, the overarching issue was whether or not McElrath could be tried again on the malice murder charge or whether that would violate double jeopardy. But some of the other issues that the Court confronted in this case dealt with things such as, “What is an acquittal? What qualifies as an acquittal? Is there some magic incantation that has to be made, some specific form that has to be followed for an acquittal to be entered? Or are you basically looking at the substance of what the jury did?”

 

And Justice Jackson, in her opinion, she said that labels don’t matter, that, essentially, what the U.S. Supreme Court is looking at when determining whether an acquittal has been entered for double jeopardy purposes is looking at the substance of the decision. Did the jury make some finding that the prosecution’s proof was not beyond a reasonable doubt, that it fell short in some way, and were they making a determination as to the ultimate question of guilt or innocence? If they have reached those decisions, if they found that the proof was not sufficient, if it went to that ultimate decision of innocence or not guilty, then an acquittal for double jeopardy purposes would be found.

 

Along those same lines, one of the issues that came up in briefing and at oral argument was whether an acquittal is something that is determined by state law or federal law. And essentially, what Georgia was arguing throughout this case is that states retain broad leeway to set the rules and procedures for criminal trials.

 

And so many states have different procedures for what has to happen before an acquittal can be formally entered. Some states require a specific jury form to be entered. Some require the foreman to sign the form. Some require all jurors to sign the form. Some require the jury to be pulled before a formal verdict can be entered. Others do not.

 

And so Georgia was arguing that what is required for an acquittal is essentially a matter of state law. And because under Georgia law, they said that these verdicts were repugnant, no valid verdict was ever entered, no acquittal was entered by the jury, that double jeopardy was not attached in this case.

 

Justice Jackson pretty firmly and directly rejected that position. She said, “It’s well established that whether an acquittal has occurred for purposes of the Double Jeopardy Clause is a question of federal— not state—law. And what was interesting -- I think Justice Jackson used to support her point in some ways was a very interesting exchange that took place between the Georgia solicitor general and Justice Thomas at the oral argument.

 

Justice Thomas asked, “If the malice murder charge standing alone had been brought by the prosecution in this case, would that have been a validly entered acquittal under Georgia state law?” And the Georgia solicitor general said, “Yes, it would have.”

 

And so Justice Jackson and Justice Thomas, at oral argument, made the point, “If that acquittal standing alone would have been sufficient, would have been a valid acquittal under Georgia state law, it’s a very odd thing to say that just because there were other charges where McElrath was in fact convicted, that somehow, that would operate -- allow the Georgia appellate courts to take a second look and void the previously entered acquittal, which is something that’s virtually unknown in the history of American law.

 

Typically, once an acquittal has been entered, once a jury has found someone not to be guilty, that’s typically an inviolable decision that is really never overturned in almost any circumstances. And part of the reason that’s the case—and Justice Kagan made this point at oral argument—is even when the jury enters inconsistent verdicts, we don’t know why they did that. It’s not the role of the trial judge to necessarily dig into why the jury reached a certain decision.

 

Justice Gorsuch made this point as well that the jury has traditionally served as a check on overbearing governmental authority. Sometimes, they may reach inconsistent verdicts as a matter of compromise. Sometimes, they may do it as a matter of lenity. Sometimes, they may do it as a check on government overreach. And so to allow the judge or appellate courts to go in and second guess that acquittal would essentially undermine the historic role that the jury has always served in these situations.

 

Now, Justice Alito did write a very brief, separate concurrence. And the reason he wrote his concurrence was largely in response, I think, to a brief that was filed by the state of Missouri and several other states. And what Justice Alito was careful to point out and what Missouri and the other states pointed out in their briefs was that, again, some states have different procedures for dealing with inconsistent verdicts.

 

And Missouri, in particular, Missouri law requires if an inconsistent verdict is presented to a trial judge, the trial judge actually has to reject those verdicts and send the case back to the jury for the jury to deliberate further. And Missouri was concerned that if the Court ruled in favor of McElrath in this case, it could call into question Missouri’s procedure for handling inconsistent verdicts.

 

And so Justice Alito said -- and he said, “This situation that the Court is dealing with is very different than that type of situation.” He said, “The situation here is different from one in which a trial judge refuses to accept inconsistent verdicts and thus sends the jury back to deliberate further.” He said, “That’s acceptable.”

 

And at oral argument, again, it actually came out that Justice Gorsuch had dealt with a similar type of issue when he was on the Tenth Circuit Court of Appeals in a case called United States v. Shipley. In that case, the jury actually had entered inconsistent verdicts. On the general verdict form, they had found the defendant guilty but on special interrogatories where they drilled down into what the jury had decided and why they entered that he was not guilty on certain of the underlying factual predicates that would have been necessary for them to find him guilty on the general verdict form.

 

And so in that case, that federal drug case, the trial judge there actually sent the case back to the jury, had them try to reconcile the irreconcilable verdicts, and they returned a guilty verdict on all charges. And Justice Gorsuch at the Tenth Circuit said that type of procedure was okay. And he, too, seemed very concerned at argument with making clear that this decision wouldn’t necessarily impact the ability of states or trial court judges to deal with that type of situation where the jury tentatively presents a verdict to the judge where the verdict doesn’t make sense logically or legally, and the trial judge can send it back for the jury to deliberate further.

 

And so this has been a -- it’s a very interesting case. It’s a very important one. There was some question, I think, when this court case first was presented to the Court and whether they would take it. And one of the reasons many had that question was because Georgia was the only state that had this unique repugnancy doctrine where they tried to distinguish this certain category of cases as being somehow different from being merely inconsistent verdicts.

 

And even under Georgia law, everyone readily admitted this was the only instance anyone could find where an acquittal had actually been vacated and sent back to the trial court for someone to be retried under this repugnancy theory. And so even though this was probably a one-off type of case, obviously, the justices thought it was important enough to take it up to hear the issue and to resolve it.

 

And I think, again, that this was a fairly straightforward case, especially when you look at the Supreme Court’s precedent dealing with inconsistent verdicts is shown by the fact that it was a quick 10-page opinion written by Justice Jackson, who, of course, is the most junior justice on the court.

 

Now, what is interesting about this in some ways is fitting this in with some of the Supreme Court’s other recent decisions in the criminal law area. Of course, we’ve seen several decisions dealing with white-collar type issues over the past several years—the Percoco and Ciminelli cases.

 

But we’ve also seen some cases where the Court has dealt directly with procedural issues particularly as they pertain to certain constitutional guarantees. Just last term, the Court decided the Smith v. United States case, which dealt with what’s the proper remedy when someone is tried and convicted in an improper venue? Can that person then be retried in a proper venue, or is the government barred or stopped from retrying them? And the Court there said, no, that’s not the case.

 

And then, of course, we’ve also seen the Court dealing with, again, how the Constitution interacts with certain procedural rules that states have established. We saw a few years ago in Ramos v. Louisiana, where the Supreme Court said that unanimous jury verdicts are required in state criminal proceedings, that the procedures used by Louisiana and Oregon at the time that allowed conviction with non-unanimous juries, that that was not permissible under the Constitution.

 

We saw the Court’s decision in Kahler v. Kansas in 2020 as well, where the Court said that insanity law, the standards for establishing an insanity defense, and what happens when someone is determined to be criminally insane, that that is primarily an area for states to regulate and that there can be differentiation among the states in how the states deal with that type of issue.

 

And then this is likely to be an issue that the Court is going to continue to confront as well. In fact, there’s a number of cert petitions currently pending before the Court right now asking it to review Florida’s use of six-person juries. John Elwood has flagged this in his relist column. I think each of these cases has been relisted seven or eight times at this point. So clearly, this is an area that the Court is very interested in and seems to be paying more attention to over the past few years than it has in recent memory—this interplay between state procedural laws and constitutional federal guarantees.

 

And so this was a very interesting case, a very important case, but one, I think, that reinforced the Court’s previous precedents, that once a jury enters a verdict of acquittal, there’s essentially very few, if any, circumstances where that acquittal can be vacated and the defendant retried on those same charges.

 

And with that, Emily, I’m happy to turn it back over to you and answer any questions that folks may have.

 

Emily Manning:  Well, thank you for this great overview, Zach. And on behalf of The Federalist Society, thank you for joining us. Thank you also to our audience for participating. We greatly appreciate it. Check out our website, fedsoc.org, or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in, and we are adjourned.

 

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