The substantive law under which the accused are prosecuted can vary from state to state.1 But no matter the jurisdiction, there are procedural backstops against successive prosecutions.2 States, such as Georgia, have created their own guardrails for criminal proceedings by passing laws and amending their own constitutions.3 The federal backstop, contained in the Fifth Amendment’s Double Jeopardy Clause, is that “[n]o person” is to be prosecuted multiple times “for the same offence.”4 In McElrath v. Georgia,5 the Supreme Court rightly vindicated this federal constitutional protection and reiterated the definition of acquittals for double jeopardy purposes.6 In turn, the Georgia General Assembly should surpass the federal baseline, as it has before,7 by codifying a statutory definition of an acquittal for double jeopardy purposes. This modification would help preserve the finality of the state adjudicative process, protect the legally innocent, and maintain the issues raised in McElrath within the province of Georgia juries, rather than reviewing courts.
The traditional bar against double jeopardy is not a panacea for the accused. For instance, some in popular discourse believe a potential mistrial in the case involving gang-related charges against acclaimed rapper Young Thug8 would automatically trigger double jeopardy protections.9 But unless a mistrial results from prosecutorial or judicial conduct “intended to ‘goad’” the defense to move for a mistrial,10 neither the Double Jeopardy Clause nor Georgia law bar a retrial.11 Protections under the federal clause are modest at best.12 Thus, the scope of state procedural protections has palpable stakes.13
Like the majority of people admitted to Georgia prisons, Damian McElrath was neither a household name nor even fully employed.14 Leading up to the incident that led to his arrest, McElrath was overcome by delusions that his mother, Diane McElrath, was poisoning his food and drink with pesticides.15 After his premature discharge from a mental health hospital,16 McElrath killed his mother in a single bout.17 He was subsequently indicted on three counts: malice murder, felony murder, and aggravated assault.18 A jury rendered verdicts finding McElrath not guilty by reason of insanity for malice murder and guilty but mentally ill for felony murder and aggravated assault.19 The court accepted the jury’s verdicts.20 Consequently, McElrath filed a motion to vacate only the guilty verdicts under the state’s “repugnant verdicts” rule.21 Under this Georgia rule, a verdict can be set aside if it involves “affirmative findings by the jury that are not legally and logically possible of existing simultaneously.”22 The trial judge denied the motion and sentenced McElrath to life imprisonment for felony murder.23
When McElrath appealed his conviction on repugnancy grounds, Georgia’s highest court agreed with him but vacated both the conviction and the acquittal.24 The court took issue with the jury making affirmative findings that suggested McElrath, someone the jury found to be insane, was at the same time guilty of a crime that only sane people can commit.25 The jury’s irreconcilable findings prompted the court to vacate both the guilty and not guilty verdicts as “repugnant.”26 On remand, the judge denied McElrath’s motion to halt the prosecution on double jeopardy grounds.27
On appeal from this denial, the Supreme Court of Georgia affirmed.28 The court cited the Georgia Constitution’s double jeopardy provision, but it did not apply it or any other related state enactment.29 After rejecting a challenge to its previous decision to vacate the verdicts,30 it bypassed the Double Jeopardy Clause analysis in two ways. First, the court insisted that McElrath’s acquittal and conviction were not just repugnant but always void, analogizing the outcome to a mistrial or hung jury.31 Second, it held that the doctrine of collateral estoppel was inapplicable since the verdicts were void.32 The court adhered to its own taxonomy of contradictory verdicts,33 avoiding the question of whether federal law might still define one of the verdicts as an acquittal.
The Supreme Court granted certiorari and unanimously reversed.34 The Court first held that federal law, not state law, determines whether there has been an acquittal under the Double Jeopardy Clause.35 To have held otherwise would have allowed state law to control which acquittals deserve federal double jeopardy protections. Justice Jackson articulated that this functionalist inquiry turns on the substance of the outcome, rather than its label.36 The standard for recognizing an event as an acquittal under the Fifth Amendment is whether there has been “any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.”37 The ruling must also relate to the “ultimate question of guilt or innocence.”38 Although this holding appears self-evident, it is not tautological. At bottom, a jury acquits a person when, after considering the state’s proof, it “act[s] on its view that the prosecution ha[s] failed to prove its case.”39 While the rule does not automatically resolve every permutation, it relies on the same substance-form distinction that permits successive prosecutions after trial errors40 or prosecutions initiated in the wrong venue.41
Justice Jackson rejected Georgia’s contention that specific affirmative findings that contradict each other can overcome the rule against second-guessing acquittal verdicts.42 Georgia proposed a carveout that would have placed plainly inconsistent verdicts outside the definition of an acquittal because the jury had exposed its “mistake, compromise, or lenity,”43 such that the error is self-evident, obviating the danger of a court inquiring into a verdict.44 The Court found this distinction between acquittals in the form of general verdicts versus “special findings” untenable.45 Moreover, at oral argument, Georgia admitted that the same “special findings” by a jury considering a single count in isolation would not render the verdict void.46 Ultimately, the bright-line rule against second-guessing a jury’s reasoning remained unchanged47: “Once rendered, a jury’s verdict of acquittal is inviolate.”48 The Court barred McElrath’s retrial on the malice murder count, reversed the Supreme Court of Georgia, and remanded.49
Justice Alito concurred.50 He reasoned that the malice murder verdict qualified as an acquittal because, one, the jury returned a not guilty verdict and, two, the trial judge entered a judgment of acquittal.51 However, Justice Alito noted that federal law neither prescribes nor proscribes accepting inconsistent verdicts.52 He argued that the Court’s opinion should not be overread to say that states can never empower trial court judges to direct the jury to continue deliberating or refuse an inconsistent verdict.53
Normally, the Supreme Court cannot ensure that constitutional backstops are reliably applied in every state criminal case, like it did for McElrath. Although the Supreme Court can dispose of a considerable number of cases “summarily by unsigned order[],”54 state courts received an estimated 15.6 million incoming criminal cases in 2022,55 while the Court has only issued written opinions in fifty-two criminal cases arising from state courts in the previous ten Terms.56 By going no further than affirming the federal protections against double jeopardy, McElrath preserved the states’ ability to enforce standards beyond the constitutional baseline and placed the onus on Georgia to protect the accused. The Georgia legislature should take this opportunity to codify a statutory definition of an acquittal for double jeopardy purposes in order to preserve the finality of the adjudicative process, safeguard the legally innocent, and help maintain the issues raised in McElrath within the province of Georgia juries.
State criminal law rulings, even those that are incorrect on their own state grounds, are part of a state’s dominion over the interpretation and invocations of its laws.57 The Supreme Court, for example, did not examine the Georgia Supreme Court’s application of its “repugnant verdicts” rule in McElrath58 — and rightly so. For the Court to reach these state law grounds would violate longstanding principles of federalism59 and exceed its jurisdiction.60 Furthermore, correcting the Georgia Supreme Court’s error on federal grounds was sufficient to resolve the case.61 Insofar as McElrath encroached on the states’ domain, it went no further than previous double jeopardy jurisprudence,62 which state courts are bound to respect.63
Despite past legislative efforts in Georgia to protect the accused, the current statutory provisions would not have guided the state courts to the correct result on McElrath’s double jeopardy question. Over fifty years ago, the general assembly “expanded the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions.”64 The legislature enshrined a “statutory test[] for determining double jeopardy questions.”65 As such, Georgia law bars a subsequent prosecution where the “former prosecution” results in “either a conviction or an acquittal.”66 But the Georgia Code does not supply a definition of an acquittal for double jeopardy purposes. While the statute bars subsequent proceedings for a person who is “adjudged not guilty,”67 the state code provides no formula for courts to determine whether an acquittal actually occurred. Whether McElrath’s irreconcilable jury verdicts constituted an acquittal could not be determined in this state law vacuum, so the Georgia Supreme Court based its decision on its understanding of federal law.68
However, the Georgia legislature can, in fact, delineate the scope of the state bar against successive prosecutions by first incorporating the acquittal analysis in the Supreme Court’s majority opinion into the existing statutory tests.69 To be on par with the federal understanding of an acquittal for double jeopardy purposes, the test must functionally recognize any judicial ruling or act on the part of a jury on its view that the prosecution has failed to establish liability for an offense as an acquittal.70 From there, Georgia can prevent other successive prosecutions by expanding the statutory definition of an acquittal to include “final order[s] or judgment[s] . . . that required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution”71 or precluding prosecutions that contain charges that the prosecutor was required to include in a previous prosecution.72 Georgia need not take Justice Alito’s commentary73 as a requirement to include the court’s entry of an acquittal judgment into the definition of an acquittal for double jeopardy purposes. Rather, the state can shore up protections for the accused in its state courts by deeming any jury verdict of acquittal as sufficient for purposes of barring subsequent prosecutions. Doing so would further Georgia’s previous effort to “expand[]” the constitutional proscription on double jeopardy.74
A comprehensive statutory definition of an acquittal that encompasses or exceeds the federal standard75 could have resolved McElrath’s double jeopardy issue before it reached the reviewing courts and would help keep any acquittals within the domain of Georgia juries. Under Georgia law, state courts are “not privileged to invade the province of the jury.”76 Likewise under federal law, juries are understood to wield “unreviewable power . . . to return a verdict of not guilty” for permissible as well as “impermissible reasons,” including “compromise, compassion, lenity, or misunderstanding of the governing law.”77 However, without a state law definition of an acquittal, the outermost reaches of what constitutes an acquittal for double jeopardy purposes will be defined by court precedent. Without a statutory definition of an acquittal for state courts to follow, Georgia courts may have to depend solely on judicial discretion in these edge cases,78 which is how error arose in McElrath’s case.79
The lack of a statutory test for an acquittal comes at the expense of criminal defendants of all stripes, especially those found legally innocent in the first instance. The specter of incarceration disproportionately haunts Black communities in Georgia,80 but it can reach any community and directly affect a community’s children, parents, or political and cultural leaders. At the start of 2011, one in seventy adults in Georgia was behind bars.81 The accused may also face “a seemingly endless string of separate prosecutions.”82 Relying on the “[l]ax double jeopardy doctrine”83 and the federal definition of an acquittal allows prosecutors to attempt to convict an individual multiple times, “enhancing the possibility that even though innocent he may be found guilty.”84 In the face of overcriminalization, robust statutory protections are essential to safeguard those facing the “whole power of the state arrayed against” them.85
The state judiciary further failed to protect the accused in two significant ways, highlighting the importance of legislative intervention. First, if the Georgia Supreme Court had applied the “repugnant verdicts” rule it claimed to apply, McElrath’s acquittal would have remained intact. After United States v. Powell86 held that inconsistent verdicts are odious but permissible,87 the Georgia high court did away with its previous rule88 that had banned inconsistent verdicts entirely.89 From there, Georgia courts abrogated the remnants of the “repugnant verdicts” rule90 up until the Georgia Supreme Court changed course sua sponte in its first McElrath decision.91 The court claimed to apply precedent that had revived the rule.92 However, in the cited authority the court had reversed the entry of only the guilty verdicts, not the acquittal.93 And even prior to Powell, Georgia courts applied the “repugnant verdicts” rule only to convictions, not acquittals.94 Moreover, if McElrath’s verdicts had truly been void, as the Georgia Supreme Court suggested,95 it would have been unnecessary to vacate the judgments96 under Georgia law, since they would already be mere nullities.97
Second, the state courts in McElrath mistakenly overlooked Georgia statutory law that should have been the starting point for the double jeopardy question. The Georgia Supreme Court has held that “questions of double jeopardy in Georgia must now be determined under the expanded statutory proscriptions.”98 Defendants lose their statutory double jeopardy protections when they are “expressly abandoned.”99 The courts’ omissions signal a disregard for state statutory protections that the General Assembly must rectify before more defendants are affected.
With concerns about prosecutorial misconduct in Georgia criminal cases ranging from President Donald Trump’s to that of sixty-one Stop Cop City activists,100 it is incumbent on the legislature to enact a more protective standard barring successive prosecutions — alongside other reforms. Federal backstops need not be the only guardrails. Many states have elevated their protections above the federal baseline, including by articulating a double jeopardy bar that applies “where the prosecutorial misconduct is so egregious that . . . it clearly denied a defendant his or her right to a fair trial,” regardless of intent.101 The legislature could also prevent defendants from surrendering the double jeopardy protections carved into Georgia law by preventing state courts from discounting them at hearings.102 Finally, Georgia could “effectively eliminate threats of serial prosecution” by precluding any future charges that the prosecutor should have known about when she filed the initial case.103 Substantively, the legislature should resume its project of restructuring the felony threshold for certain crimes,104 expanding parole eligibility,105 and reforming misdemeanor bail practices,106 which previously coincided with a nearly thirteen percent decline in the Georgia prison population.107 At minimum, a statutory definition of an acquittal and additional procedural protections could have been at the crux of the correct outcome in McElrath’s state court proceedings, and could precipitate “[re]thinking . . . how to coordinate penalties,” prosecutions, and protections for the accused in Georgia.108