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SAMARITAN ALERT - SUPREME COURT DECISION DOUBLE JEOPARDY

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179

 

SUPREME COURT DECISION – DOUBLE JEOPARDY – February 22, 2024

 

McElrath v. Georgia, 2024 U.S. LEXIS 997 (S. Ct. Feb. 21, 2024)

 

Argued November 28, 2023—Decided February 21, 2024

 

CERTIORARI TO THE SUPREME COURT OF GEORGIA

 

After petitioner Damian McElrath killed his mother, the State of Georgia charged him with three crimes related to her death: malice murder, felony murder, and aggravated assault. At trial, the jury returned a split verdict against McElrath: “not guilty by reason of insanity” with respect to malice-murder, and “guilty but mentally ill” as to the other counts. On appeal, the Supreme Court of Georgia determined that the jury’s “guilty but mentally ill” verdict for felony murder was “repugnant” to the jury’s “not guilty by reason of insanity” verdict for malice murder under Georgia law, because the verdicts “required affirmative findings of different mental states that could not exist at the same time.” See 308 Ga. 104, 112, 839 S. E. 2d 573, 579. The court vacated both the malice-murder and felony-murder verdicts pursuant to Georgia’s so-called repugnancy doctrine, and authorized retrial. Ibid., 839 S. E. 2d, at 580. On remand, McElrath argued that the Double Jeopardy Clause of the Fifth Amendment prohibited Georgia from retrying him for malice murder given the jury’s prior “not guilty by reason of insanity” verdict on that charge. The Georgia courts rejected that argument.

 

HELD The jury’s verdict that McElrath was not guilty of malice murder by reason of insanity constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts. Pp. 5–10.

 

The Double Jeopardy Clause provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Amdt. 5. “[I]t has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and . . . is a bar to a subsequent prosecution for the same offence.” Green v. United States, 355 U. S. 184, 188 (internal quotation marks omitted). The Court’s “cases have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” Evans v. Michigan, 568 U. S. 313, 318. Once rendered, a jury’s verdict of acquittal is inviolate. The principle “that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise,’ ” is “[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence.” United States v. Martin Linen Supply Co., 430 U. S. 564, 571. Whatever the basis for a jury’s verdict, see Bravo-Fernandez v. United States, 580 U. S. 5, 10, the Double Jeopardy Clause prohibits second-guessing the reason for a jury’s acquittal. Pp. 5–7.

 

Georgia law specifically provides that a defendant who establishes an insanity defense “shall not be found guilty of [the] crime.” Ga. Code Ann. §§16–3–2, 16–3–3. Here, the jury concluded that McElrath was not guilty by reason of insanity with respect to the malice-murder charge. That verdict was unquestionably a “ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense,” Evans, 568 U. S., at 318, and thus an acquittal.

 

Georgia argues that there was no valid verdict pursuant to Georgia law, and thus no acquittal. But whether an acquittal has occurred for double jeopardy purposes is a question of federal law, and a State’s characterization of a ruling is not binding on the Court. Smalis v. Pennsylvania, 476 U. S. 140, 144 n. 5. While States have the power “to regulate procedures under which [their] laws are carried out,” Patterson v. New York, 432 U. S. 197, 201, the ultimate question remains whether the Double Jeopardy Clause recognizes an event as an acquittal. The jury’s verdict of not guilty by reason of insanity here constituted such a determination, and it is of no moment that the verdict was accompanied by other verdicts appearing to rest on inconsistent findings. An acquittal is an acquittal, even when a jury returns inconsistent verdicts. Bravo-Fernandez, 580 U. S., at 8. Georgia argues that the bar to second-guessing an acquittal applies only to general verdicts, but the Court’s cases prohibit any speculation about the reasons for a jury’s verdict of acquittal—even when, as here, specific jury findings provide a factual basis for such speculation. To do otherwise “would impermissibly authorize judges to usurp the jury right.” Smith v. United States, 599 U. S. 236, 252. Pp. 7–10.

 

315 Ga. 126, 880 S.E. 2d 518, reversed and remanded.

 

 DOES THE NEW UNANIMOUS McELRATH RULING MEAN ANYTHING FOR ACQUITTED CONDUCT SENTENCING?

 

The Supreme Court handed down a short opinion in McElrath v. Georgia, 2024 U.S. LEXIS 997 (S. Ct. Feb 21, 2024), that ruled in favor of an acquitted defendant in a quirky double jeopardy case.  Especially because the U.S. Sentencing Commission is currently taking comments on possible guideline amendments concerning the consideration of acquitted conduct at federal sentencing.

 

After reading the Court's opinion in McElrath opinion the Project is inclined to conclude that there is not much "there there" to directly inform debates over acquitted conduct sentencing.  Here are a few passages from the McElrath opinion that seem to discuss the import and impact of acquittals most broadly:

 

Once rendered, a jury’s verdict of acquittal is inviolate.  We have described this principle — “that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise’” — as “[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence.” Martin Linen, 430 U.S., at 571.  This bright-line rule exists to preserve the jury’s “overriding responsibility . . . to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction.” Id., at 572....

 

Once there has been an acquittal, our cases prohibit any speculation about the reasons for a jury’s verdict — even when there are specific jury findings that provide a factual basis for such speculation — “because it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations.” Smith, 599 U.S., at 252–253.  We simply cannot know why the jury in McElrath’s case acted as it did, and the Double Jeopardy Clause forbids us to guess.  “To conclude otherwise would impermissibly authorize judges to usurp the jury right.” Id., at 252.

 

Drawing on language in these passages, one could complain that acquitted conduct sentencing undermines the jury's constitutional role standing "between the accused and a potentially arbitrary or abusive Government" and serves to "impermissibly authorize judges to usurp the jury right."  However, elsewhere in the McElrath opinion, the Court stresses that the Double Jeopary Clause "focuses on prohibitions against multiple trials" and "is a bar to a subsequent prosecution for the same offence."  The consideration of acquitted conduct at sentencing on a distinct count of conviction does not itself involve multiple trials or a subsequent prosecution.

 

In other words, the short McElrath opinion has a little bit of notable dicta that does not really directly inform the acquitted conduct debate.  Critically, though, while the U.S. Sentencing Commission necessarily must be attentive to constitutional doctrines in formulating any new guideline rules, it also has broad authority and a fundamental obligation to advance sentencing rules that comprise good policy as well as being constitutionally sound.  The Court in McElrath and other constitutional cases sets forth a constitutional floor, with the USSC in developing guideline amendments can and should aim higher.

 

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