by Richard Resch

In a unanimous opinion, the Supreme Court of the United States held that a jury’s verdict of not guilty by reason of insanity is an “acquittal” for purposes of the Double Jeopardy Clause of the Fifth Amendment, despite the fact that the acquittal may be logically inconsistent with other verdicts on additional charges rendered by the same jury and that the verdicts thus constitute a “nullity” under state law.

Facts

In 2012, Damian McElrath killed his mother. At a young age, he was diagnosed with bipolar disorder and attention deficit hyperactivity disorder. He did not respond well to psychiatric treatment. Years before the killing, McElrath’s mental state began to deteriorate, manifesting in the belief that his mother was poisoning his food and drink. He also experienced other delusions during this period that led to him being committed to a mental-health facility where he was diagnosed with schizophrenia.

After two-weeks, he was released because staff concluded that he was no longer a threat to himself or others. One week later, he stabbed his mother to death, and immediately afterwards, he wrote a letter explaining that he killed her because she was poisoning him. He then called 911, advised that he had killed his mother, and asked if that was wrong. During interrogation at the police station, he told investigators, “I killed my Mom because she poisoned me.”

Procedural History

The State charged him with (1) malice murder, (2) felony murder, and (3) aggravated assault. At trial, he asserted an insanity defense.

Georgia law provides that a jury may find a defendant “not guilty by reason of insanity” if, when the crime occurred, he “did not have mental capacity to distinguish between right and wrong” or he committed the crime “because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” Ga. Code Ann. §§ 16-3-2, 16-3-3, 17-7-131(c)(1) (2019). This verdict results in the defendant being committed to a state mental-health facility until a court concludes that release is appropriate. § 17-7-131(d).

Even if the jury fails to find in favor of the insanity defense, the jury may still return a verdict of “guilty but mentally ill.” In which case, the Department of Corrections may, at its discretion, refer the defendant for temporary mental-health treatment. §§ 17-7-131(c)(2), (g).

In McElrath’s case, the jury returned a split verdict, finding him not guilty by reason of insanity with respect to the malice-murder charge and guilty but mentally ill with respect to the felony-murder and aggravated-assault charges. The trial court sentenced him to life imprisonment on the felony-murder conviction.

Georgia law provides that a jury’s verdict can be set aside if it is “repugnant”—that is, it contains “affirmative findings by the jury that are not legally and logically possible of existing simultaneously.” See McElrath v. State, 839 S.E.2d 573 (Ga. 2020) (explaining that, under Georgia’s so-called “repugnancy” doctrine, a state court may set aside a verdict as repugnant when there are “affirmative findings by the jury that are not legally and logically possible of existing simultaneously”).

McElrath timely appealed to the Georgia Supreme Court, arguing that his felony-murder conviction should be vacated because his guilty-but-mentally-ill verdict for that charge is “repugnant” (logically inconsistent) to the jury’s verdict of “not guilty by reason of insanity” for the malice murder charge.

The Georgia Supreme Court agreed with McElrath’s argument and explained: “the not guilty by reason of insanity verdict on malice murder and the guilty but mentally ill verdict on felony murder based on aggravated assault required affirmative findings of different mental states that could not exist at the same time during the commission of those crimes as they were indicted, proved, and charged to the jury.” Rather than vacating only the felony-murder conviction as McElrath had requested, the Court vacated both the malice-murder and felony-murder verdicts.

On remand, McElrath argued that the State was prohibited from retrying him for malice murder based on the jury’s prior “not guilty by reason of insanity” verdict. Retrying him on that charge would violate the Double Jeopardy Clause of the Fifth Amendment, according to McElrath. The trial court rejected that argument, and McElrath timely appealed once again to the Georgia Supreme Court.

The Georgia Supreme Court affirmed the trial court’s decision, explaining that a “repugnant” verdict is no different for purposes of double jeopardy analysis than “a situation in which a mistrial is declared after a jury is unable to reach a verdict.” The Court further explained that ordinarily a verdict of not guilty by reason of insanity would constitute an acquittal and preclude a retrial. However, because of the simultaneous verdict of guilty but mentally ill with the result that the verdicts were “repugnant,” both verdicts were “valueless” for double jeopardy considerations, according to the Court. McElrath timely appealed to the U.S. Supreme Court.

Discussion

The Court began its analysis by reviewing the Double Jeopardy Clause of the Fifth Amendment, which reads, in pertinent part: “[n]o person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” The Court stated that the “controlling constitutional principle” of the Double Jeopardy Clause “focuses on prohibitions against multiple trials.” United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). Additionally, it “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 offense.” Green v. United States, 355 U.S. 184 (1957). The Court characterized a jury’s verdict of acquittal as “inviolate.”

Consequently, the critical inquiry in this case is what constitutes an “acquittal.” The Court noted that its “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 (2013). The Court explained that labels are not controlling; instead, the substance controls. Id. Specifically, the Court focuses on whether the ruling’s substance “relate[s] to the ultimate question of guilt or innocence.” United States v. Scott, 437 U.S. 82 (1978). Importantly, the Court stated that the Double Jeopardy Clause does not allow for second-guessing of why the jury decided on acquittal. Consequently, “the jury holds an unreviewable power to return a verdict of not guilty even for impermissible reasons.” Smith v. United States, 599 U.S. 236 (2023). Finally, the Court stated that a jury’s determination of not guilty by reason of insanity is a conclusion that “criminal culpability had not been established” just like any other type of acquittal. Burks v. United States, 437 U.S. 1 (1978).

Turning to the present case, the Court noted that Georgia law expressly states that a defendant who successfully mounts an insanity defense “shall not be found guilty of [the] crime.” §§ 16-3-2, 16-3-3. The jury found McElrath not guilty by reason of insanity on the malice-murder charge. The Court explained that jury decision was undoubtedly a “ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” Evans; see also Burks.

The State conceded that if the not guilty by reason of insanity verdict were the only charge in the case, it would clearly constitute a valid verdict of acquittal under Georgia law. However, the State reiterated the Georgia Supreme Court’s ruling that because the not guilty verdict was “repugnant” to the jury’s other verdicts, all the verdicts were “a nullity and should not have been accepted by the trial court.” Essentially, the State argued that since there were no verdicts in the case, no acquittal occurred for double jeopardy purposes.

The Court rejected that argument. It stated that whether a verdict constitutes an acquittal for purposes of the Double Jeopardy Clause is a question of federal law, not state law. See Scott; see also Evans. Whether a verdict is substantively an acquittal does not depend on state law labels, so for purposes of double jeopardy analysis, the Court declared that state law characterizations are not binding on it. Smalis v. Pennsylvania, 476 U.S. 140 (1986); see also Smith v. Massachusetts, 543 U.S. 462 (2005).

Turning to the issue of multiple verdicts, the Court rejected that as justification for determining that an acquittal did not occur. The Court reiterated that the Double Jeopardy Clause bars second-guessing an acquittal for any reason. See Martin Linen. It explained that an acquittal is still an acquittal, even “when a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact.” Bravo-Fernandez v. United States, 580 U.S. 5 (2016). An inconsistency “in a verdict is not a sufficient reason for setting it aside.” Harris v. Rivera, 454 U.S. 339 (1981) (per curiam).

The State then argued that the constitutional prohibition on second-guessing an acquittal applies only to general verdicts because there is no way to determine the true basis of the jury’s decision. But in the present case, the jury based the verdicts on specific “affirmative findings of different mental states that could not exist at the same time.” The State further argued that under Georgia’s repugnancy doctrine, such special findings permit informed review (and potential nullification) of inconsistent jury verdicts, even including a verdict of acquittal.

The Court flatly rejected that argument, stating that upon a verdict of acquittal, its case law bars any inquiry into the reasons for the jury’s verdict—even when there are specific jury findings that could provide a factual basis for inquiry—“because it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations.” Smith. The Court declared: “We simply cannot know why the jury in McElrath’s case acted as it did, and the Double Jeopardy Clause forbids us to guess.” Thus, the Court held that the jury’s verdict of not guilty by reason of insanity on the malice-murder charge was an acquittal for purposes of the Double Jeopardy Clause, and it further held that retrial on that charge is prohibited by the Clause.

Conclusion

Accordingly, the Court reversed the judgment of the Georgia Supreme Court and remanded the case for further proceedings consistent with its opinion. See: McElrath v. Georgia, 144 S. Ct. 651 (2024).  

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