By Colin Ridgell
While recent headlines have been dominated by the Supreme Court’s issued and pending opinions in cases of perceived political moment,[1] the Court has continued deciding questions that will ultimately have a direct impact on the lives and liberty of far more people than Section Three of the 14th Amendment[2] or Chevron[3] ever will. While drawing less attention than it merits, the Court’s criminal docket has proven to be the source of widespread—and often unanimous—agreement. The Court’s recent decision in McElrath v. Georgia[4] provides a useful example of this trend.
Factual Background
The facts of McElrath case could hardly be more tragic. On July 12, 2012, then 18-year old Damian McElrath killed his adoptive mother by stabbing her over 50 times.[5] McElrath had struggled with behavioral and disciplinary issues throughout his childhood.[6] Only a week before his mother’s death, McElrath had been admitted to a mental health treatment facility and diagnosed with schizophrenia, based, among other things, on his recurrent and long-running delusion that his mother was poisoning his food and drinks.[7] After killing his mother, McElrath called 911, explained that he had killed his mother because she was poisoning him, and “asked the dispatcher if he was wrong to do that.”[8]
McElrath was charged with malice murder, felony murder, and aggravated assault.[9] In December 2017, the jury returned a verdict of not guilty by reason of insanity on the malice murder charge but found McElrath guilty but mentally ill of felony murder and aggravated assault.[10] These verdicts presented a seemingly obvious contradiction:
[T]he jury must have determined that McElrath was legally insane at the time that he stabbed Diane in order to support the finding that he was not guilty of malice murder by reason of insanity. Nonetheless, the jury went on to find McElrath guilty but mentally ill of felony murder based on the same stabbing—a logical and legal impossibility.[11]Deemed “repugnant verdicts” under Georgia law,[12] the legal and logical impossibility of the jury’s verdicts opened the door for an incredibly skilled piece of lawyering by McElrath’s attorneys.
The Georgia Decisions
McElrath would make two trips to the Supreme Court of Georgia. He first challenged his felony murder conviction on the basis of the inconsistent verdicts.[13] The court agreed, but vacated both the guilty but mentally ill verdict for felony murder and the not guilty by reason of insanity verdict for malice murder.[14] This was the first step in McElrath’s efforts to have both murder charges done away with based on the jury’s verdicts.
When the case returned to the trial court on remand, McElrath unsuccessfully moved to have his case dismissed on double jeopardy grounds.[15] The Supreme Court of Georgia affirmed the denial of this motion, explaining that, although not guilty verdicts are all but sacrosanct in double jeopardy jurisprudence, when “[v]iewed in context alongside the verdict of guilty but mentally ill . . . the purported acquittal [lost] considerable steam.”[16] In essence, the court held that vacatur of the repugnant verdicts had left McElrath with a blank slate as far as double jeopardy was concerned.[17]
The Supreme Court’s Decision
The Supreme Court of the United States was resoundingly unconvinced that the mark of acquittal could be so easily wiped away. In Justice Jackson’s unanimous opinion, the Court reaffirmed that, “[o]nce rendered, a jury’s verdict of acquittal is inviolate.”[18] The Court rejected Georgia’s argument that state law controlled whether a verdict was an acquittal for double jeopardy purposes,[19] explaining that the dispositive question is whether “there has been ‘any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.’”[20] The reasons for a jury’s verdict of acquittal are final and unquestionable, regardless of the permissibility of that verdict.[21] Because the jury’s acquittal was accepted by the trial judge, the Supreme Court of Georgia was powerless to vacate it, and therefore the subsequent prosecution of McElrath for felony murder was barred by the Double Jeopardy Clause.[22]
The Court left for another day, however, the issue of what double jeopardy effect would result from a trial judge’s rejection of inconsistent or repugnant verdicts.[23] And Justice Alito reiterated the open nature of this question in his brief concurrence.[24]
McElrath was never likely to be a high-profile case. Although the average American is far more likely to come into contact with the criminal justice system than to have their life permanently altered by the application of the major questions doctrine,[25] the latter cases attract a far greater level of popular attention.[26] It is perhaps unsurprising that so many are convinced that the “high profile” cases at the Court are decided 6-3,[27] when a “high profile” case has been tautologically defined as a case decided on ideological grounds.[28] Hopefully, close observers of the Court’s docket will remember that unanimous and nearly unanimous decisions are the norm rather than the exception.[29] As important as McElrath is for reinforcing the constitutional limits on double jeopardy, it is equally important as a reminder that things at the Court are working as intended.
[1] See, e.g., Andrew Chung & John Kruzel, Trump wins Colorado ballot disqualification case at US Supreme Court, Reuters (March 4, 2024), https://www.reuters.com/legal/trump-wins-colorado-ballot-disqualification-case-us-supreme-court-2024-03-04/; Adam Liptak, Conservative Justices Appear Skeptical of Agencies’ Regulatory Power, The New York Times (Jan. 17, 2024), https://www.nytimes.com/2024/01/17/us/supreme-court-chevron-case.html.
[2] U.S. Const. amend XIV, § 3.
[3] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
[4] 144 S. Ct. 651 (2024).
[5] McElrath v. State, 839 S.E.2d 573, 574–75 (Ga. 2020).
[6] Id. at 575.
[7] Id.
[8] Id.
[9] Id. at 574.
[10] Id.
[11] Id. at 580.
[12] Id. at 579 (“This case falls into the category of repugnant verdicts, as the guilty and not guilty verdicts reflect affirmative findings by the jury that are not legally and logically possible of existing simultaneously.”).
[13] Id. at 575.
[14] Id. at 582.
[15] McElrath v. State, 880 S.E.2d 518, 519 (Ga. 2022).
[16] Id. at 521.
[17] See id. at 521–22.
[18] McElrath v. Georgia, 144 S. Ct. 641, 658 (2024).
[19] Id. at 559.
[20] Id. at 660 (quoting Evans v. Michigan, 568 U.S. 313, 318 (2013)).
[21] Id. at 659.
[22] Id. at 660.
[23] See id. at n.4.
[24] Id. at 661 (Alito, J., concurring) (“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.”).
[25] Compare Susannah N. Tapp & Elizabeth J. Davis, Contacts Between Police and the Public, 2020, 1 (U.S. Department of Justice, Bureau of Justice Statistics) (2022), with Dr. Adam Feldman, Elites at Cert, Empirical SCOTUS (December 15,2021), https://empiricalscotus.com/2021/12/15/elites-at-cert/#:~:text=While%20attorneys%20working%20on%20cases,cert%20grant%20is%20around%201%25.
[26] See, e.g., Adam Liptak, The Curious Rise of a Supreme Court Doctrine that Threatens Biden’s Agenda, The New York Times (March 6, 2023), https://www.nytimes.com/2023/03/06/us/politics/supreme-court-major-questions-doctrine.html.
[27] See, e.g., Vincent M. Bonventre, 6 to 3: The Impact of the Supreme Court’s Super-Majority, New York State Bar Association (October 31, 2023), https://nysba.org/6-to-3-the-impact-of-the-supreme-courts-conservative-super-majority/.
[28] E.g., Lawrence Hurley & JoElla Carman, Tracking major Supreme Court cases, NBC News (updated June 30, 2023), https://www.nbcnews.com/politics/supreme-court/tracking-major-supreme-court-cases-rcna69594.
[29] Dr. Adam Feldman, Another One Bites the Dust: End of 2022/2023 Supreme Court Term Statistics, Empirical SCOTUS (June 30,2023), https://empiricalscotus.com/2023/06/30/another-one-bites-2022/.
