ARGUMENT ANALYSIS

Justices skeptical that double jeopardy clause allows retrial based on inconsistent verdict of acquittal

The double jeopardy clause of the Fifth Amendment generally says that the government gets only one chance to convict a defendant of a crime: If a jury finds a defendant not guilty, then the government has lost its chance to convict that defendant of that offense. McElrath v. Georgia, in which the justices heard argument on Tuesday, presents an unusual twist on that rule. The jury in this case faced a defendant, Damian McElrath, with a substantial background of mental health issues who committed a horrific crime (stabbing and killing his mother). Faced with a variety of charges, the jury found on the one hand that McElrath was not guilty by reason of insanity on the most serious charge (“malice murder” under Georgia law) but at the same time guilty on the lesser charge of felony murder (causing death in the commission of a felony).

Ordinarily, the acquittal on the most serious charge, malice murder, would mean that Georgia never could try McElrath again on that offense. In this case, though, the Georgia Supreme Court said that the two verdicts were so inconsistent that it could throw them both out and let the state have a second try at prosecuting McElrath. Tuesday’s argument suggests that few if any of the justices are going to accept the state’s argument.

The dominant feature of the argument was Justice Neil Gorsuch’s fervent and repetitive insistence that Georgia’s approach could not be reconciled with the Constitution and centuries of American tradition. Among other things, he explained that for“230 years in this country’s history, we have respected acquittals without looking into their substance and without looking into how they fit with other counts and said a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”

For Gorsuch, the impropriety of second-guessing acquittals is foundational: “They may be products of compromise. They may be inconsistent with verdicts on other counts. We don’t question them.”

To be sure, Gorsuch was far from alone in his assessment. Justice Sonia Sotomayor, for example, told Georgia Solicitor General Stephen Petrany bluntly: “I don’t know how this doesn’t fit [our] definition of what an acquittal is,” reasoning that she could not countenance invalidating anything that rose to the level of an acquittal.

For Justice Elena Kagan, the central point was the jury’s basic right to compromise or offer leniency. At one point, she commented to Petrany that “[o]ne possibility is that the jury made a humdinger of a mistake. And another possibility is that the jury made no mistake at all but instead decided to compromise something out or decided to show leniency of a kind that it is within the right of a jury to show. …. It’s the exact same thing that you’re asking us to look into, which we always said we will not look into.”

 When Justice Kavanaugh suggested a general agreement with that perspective, Gorsuch swept in again, commenting that he agreed with Kavanaugh that“Justice Kagan has put her finger on it. The minute you admit it could be a product of leniency or compromise, we’re done, aren’t we?…. Because then we have to respect that verdict regardless of whether we think it’s rational or what we would do. It’s supposed to be a check on us judges and you prosecutors.”

That’s not to say it is absolutely clear that every justice will agree that the case is this simple. Justice Samuel Alito, for example, asked a lot of questions about a Missouri procedure (apparently common in several Midwest states) in which a trial judge responds to an apparently inconsistent verdict by sending the jury back for more deliberations. That of course did not happen in McElrath’s case, in which the jurors were thanked for their service, dismissed, and sent on their way with every reason to think that the trial had concluded.

My pretty strong expectation is a relatively short and unanimous opinion reversing the Georgia decision, casting no doubt on the constitutionality of the “Missouri” procedure or the various other hypotheticals the justices raised at the argument. With no obvious support for what Georgia did in this particular case, it would seem an easy task to craft an opinion narrow and simple enough to dispose of the case without protracted debate.