December 1, 2023
It is one of the rock-solid principles of our constitution. The Fifth Amendment prohibits the State from retrying a criminal defendant if he has been found not guilty.
Or does it?
Damian McElrath was prosecuted for several crimes after he stabbed his adoptive mother, Diane McElrath, to death in 2012. The case went to trial, where the jury returned a verdict that, among other things, found McElrath not guilty by reason of insanity on a charge of malice murder – the most serious murder charge in Georgia, and the rough equivalent of a first-degree murder charge in most states, requiring the intent to kill someone. At the same time, the jury found McElrath guilty but mentally ill on charges of felony murder (for felonies that result in a death, even if the defendant did not actually kill anyone) and aggravated assault. This was likely a compromise verdict; it’s possible that the jury wanted to acquit McElrath of the more serious charge but still hold him accountable for the less serious offense. But it is not possible under the Georgia law for someone to be so insane as to be immune from criminal responsibility for a specific act and, at the same time, to suffer from a sufficiently mild mental illness to be criminally responsible for the same act.
Since the two verdicts were irreconcilably inconsistent, the Georgia trial court vacated both verdicts, and authorized a second trial on all counts.
Here’s where the Double Jeopardy clause comes into play.
Once you’ve been acquitted, you can’t be retried, right?
Not according to the prosecutors in Georgia. In the State’s view, the two verdicts were so internally inconsistent that they didn’t amount to a verdict at all but were, rather, just another step in the trial process that has not yet been completed by a verdict of guilty or not guilty. Because the jury did not return a verdict, Georgia reasons, the double jeopardy rule does not apply.
Of course, I’m pretty sure the jury was asked “What is your verdict?” That suggests that there was, you know, a verdict.
The U.S. Supreme Court heard oral arguments on this case on Tuesday, (which you can listen to by pointing your browser HERE) and will likely issue a decision before its term ends in June. I have never been very good at predicting the future, but says here the Court will rule in McElrath’s favor.