Amicus Curiae Brief — Damian McElrath, Petitioner v. Georgia

No. 22-721

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DAMIAN MCELRATH,

Petitioner,

v.

THE STATE OF GEORGIA,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

Supreme Court Of Georgia

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE DISTRICT

ATTORNEYS’ ASSOCIATION OF GEORGIA

IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------ROBERT W. SMITH, JR.

General Counsel

PROSECUTING ATTORNEYS’ COUNCIL OF GEORGIA

1590 Adamson Parkway, 4th Floor,

Morrow, Georgia 30260

(770) 282-6300

rwsmith@pacga.org

Counsel for Amicus Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

IDENTITY & INTEREST OF AMICUS CURIAE.....

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

7

I.

REPUGNANT VERDICTS UNDER GEORGIA LAW ....................................................

7

A. Burden of Proof for a Defendant’s Special Plea of Insanity .............................

7

B. Special Instructions to the Jury: Form

of the Verdict ....................................... 11

C. Special Instructions to the Jury: Punishment ................................................ 13

D. “Both Verdicts Must be Vacated and a

New Trial Ordered” ............................. 16

E. McElrath’s Second Bite at the Apple .... 17

F. McElrath’s Third Bite at the Apple....... 19

II.

DOUBLE JEOPARDY DOES NOT APPLY

HERE, WHERE THE JURY NEVER

REACHED A VERDICT ............................ 20

III.

INCONSISTENT VERDICTS ARE ALMOST

ALWAYS A WIN FOR THE STATE ........... 23

CONCLUSION..................................................... 25

ii

TABLE OF AUTHORITIES

Page

CASES

Booth v. State, 311 Ga. 374, 858 S.E.2d 39

(2021) .......................................................................17

Boswell v. State, 275 Ga. 689, 572 S.E.2d 565,

(2002) .......................................................................11

Bravo-Fernandez v. United States, 580 U.S. 5

(2016) .......................................................................20

Buford v. State, 300 Ga. 121, 793 S.E.2d 91

(2016) .........................................................................8

Bullington v. Missouri, 451 U.S. 430 (1981) ...............14

Burks v. United States, 437 U.S. 1 (1978) ........ 9, 21, 22

Collins v. State, 312 Ga. 727, 864 S.E.2d 85

(2021) .......................................................................13

Dumas v. State, 266 Ga. 797, 471 S.E.2d 508,

(1996) .......................................................................17

Durrence v. State, 287 Ga. 213, 695 S.E.2d 227

(2010) .........................................................................9

Evans v. Michigan, 568 U.S. 313 (2013) ............... 20, 23

Foster v. State, 306 Ga. 587, 832 S.E.2d 346

(2019) .......................................................................15

Grace v. Hopper, 566 F.2d 507 (5th Cir. 1978) .............8

Green v. United States, 355 U.S. 184 (1957) ...............21

Gude v. State, 313 Ga. 859, 874 S.E.2d 84,

(2022) ...................................................................10

Jackson v. Virginia, 443 U.S. 307 (1979) ....................10

iii

TABLE OF AUTHORITIES – Continued

Page

Keener v. State, 254 Ga. 699, 334 S.E.2d 175

(1985) ............................................................. 8, 10, 12

Leland v. Oregon, 343 U.S. 790 (1952) .........................8

McElrath v. State, 308 Ga. 104, 839 S.E.2d 573

(2020) (McElrath I) ............................ 8, 10-12, 16, 17

McElrath v. State, 315 Ga. 126, 880 S.E.2d 518

(2022) (McElrath II) .......................................... 18, 19

Middleton v. State, 846 S.E.2d 73 (2020) ...................17

Milam v. State, 255 Ga. 560, 341 S.E.2d 216

(1986) ................................................................. 13, 16

Patterson v. New York, 432 U.S. 197 (1977) ..................8

Rivera v. Delaware, 429 U.S. 877 (1976) ......................8

Spivey v. State, 253 Ga. 187, 319 S.E.2d 420

(1984) .........................................................................9

Stevens v. State, 256 Ga. 440, 350 S.E.2d 21,

(1986) .......................................................................10

United States v. DiFrancesco, 449 U.S. 117

(1980) .......................................................................25

United States v. Perez, 22 U.S. (9 Wheat.) 579

(1824) .......................................................................24

United States v. Tateo, 377 U.S. 463 (1964) ................21

Wilson v. State, 233 Ga. 479, 211 S.E.2d 757

(1975) .......................................................................13

iv

TABLE OF AUTHORITIES – Continued

Page

STATUTES

1970 Ga. Laws 938........................................................1

O.C.G.A. § 15-18-6.........................................................1

O.C.G.A. § 16-2-3...........................................................8

O.C.G.A. § 16-3-3.........................................................10

O.C.G.A. § 16-5-1...........................................................8

O.C.G.A. § 16-5-21.........................................................8

O.C.G.A. § 17-10-31.....................................................14

O.C.G.A. § 17-7-131.................................. 8, 9-12, 14, 15

O.C.G.A. § 24-14-21.......................................................8

O.C.G.A. § 45-15-9.........................................................1

O.C.G.A. § 9-11-60................................................. 18, 19

CONSTITUTIONAL PROVISIONS

Ga. Const. Art. I, § I, Para. XVIII ...............................21

Ga. Const. Art. VI, Sec. VIII, Para. I.............................1

U.S. Const. Amend. V ..................................................20

1

IDENTITY & INTEREST OF AMICUS CURIAE1

The District Attorneys’ Association of Georgia

(“the Association”) is comprised of all district attorneys

of the fifty judicial circuits of the State of Georgia.

Since its founding in 1934, and especially since 1951,

the Association has worked to enhance “the proficiency

of the . . . prosecuting attorneys of the state” through

continuing education programs and by providing a forum in which the District Attorneys may fulfill their

obligation to “reform and improve the administration

of criminal justice.” 1970 Ga. Laws 938.

In Georgia, District Attorneys are independently

elected Constitutional Officers in the Judicial Branch.

Ga. Const. Art. VI, Sec. VIII, Para. I. Their duties are

statutorily defined and include the prosecution of all

felony cases and handling any appeals that result.

O.C.G.A. § 15-18-6. When cases are appealed to this

Court, the Attorney General is statutorily authorized

to represent the State. O.C.G.A. § 45-15-9.

Prosecuting attorneys in the State of Georgia take

an oath to uphold the Constitution of the United States

and the Constitution of the State of Georgia. Prosecutors have an obligation to seek justice. At the heart of

the pursuit of justice, due process must be safeguarded

so both sides receive a fair trial. Seeking justice does

1

Counsel for a party did not author this brief in whole or in

part, and no such counsel or party made a monetary contribution

to fund its preparation or submission. No person or entity other

than amicus curiae or its counsel made a monetary contribution

to the preparation and submission of this brief.

2

not mean obtaining a guilty verdict by default due to

obvious juror indecision. This case presents as a question of double jeopardy, and due to the nature of a defendant’s special plea of insanity in Georgia, this case

will affect prosecutions across the State and trial

courts’ ability to require a jury to provide a defendant

with a unanimous and unequivocal decision on his special plea of insanity.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

This is not a simple question of double jeopardy. It

is an ill-advised battle, that if won by Petitioner, could

lose the war for every defendant in Georgia who pleads

“not guilty by reason of insanity.” Allowing repugnant

“verdicts” to stand in a case where a defendant has entered a special plea of insanity for a single criminal act

will be a “win” for the prosecution.

McElrath confessed to stabbing his adoptive

mother to death. Upon his special plea of insanity, the

only question for the jury’s resolution was whether he

was insane at the time of his act. The jury failed to resolve this simple question. Given four verdict options,

as the Georgia statute requires, the jury picked two:

“not guilty by reason of insanity” for malice murder

and “guilty but mentally ill” for felony murder. The jury

found McElrath both insane and not insane at the moment of the attack.

When McElrath appealed his conviction, he argued that the two “verdicts” were “repugnant.” He

3

argued he could not be both insane and sane at the

time of the homicide. The jury’s specific and express

findings of fact regarding his sanity, being diametrically opposed to each other, meant that the trial court

erred in accepting the jury’s supposed “guilty but mentally ill” convictions.

The court agreed that the supposed verdicts were

repugnant. The state supreme court held the jury

made two selections regarding McElrath’s sanity on

the verdict form, instead of one. This dual selection

failed to represent any decision by the jury on the issue

of McElrath’s mens rea. The Georgia Supreme Court

logically ruled that the two repugnant “verdicts” were

void because the jury had not actually decided the key

question, akin to a mistrial when a criminal jury fails

to reach a unanimous verdict. In other words, there

was no verdict – no acquittal and no conviction. The

Georgia Supreme Court vacated both purported verdicts and remanded the case for retrial.

A year later, dissatisfied with the opportunity a retrial on all counts represented, McElrath reversed his

position and claimed that the jury’s verdict of “not

guilty by reason of insanity” was the only valid verdict,

and retrying him on the malice murder count of the

indictment would be double jeopardy. The Georgia Supreme Court disagreed, reaffirming the repugnant and

void nature of the two opposing “verdicts.” The Association agrees with the Georgia Supreme Court’s analysis. McElrath was neither acquitted nor convicted, and

a retrial is just a continuation of his one and only “continuing jeopardy.”

4

Petitioner’s double jeopardy question to this Court

is the wrong question. The Double Jeopardy Clause of

the Fifth Amendment prohibits a second prosecution

for a crime of which a defendant was previously acquitted. The Association does not dispute this foundational

principle. But McElrath was not previously acquitted

of murdering his adoptive mother. Without such a finding, he and other similarly situated defendants in

Georgia cannot and should not be able to invoke the

protections of the Fifth Amendment to avoid trial on

the charges they face.

In isolation, the prosecution can point to the jury’s

determination that McElrath was “guilty but mentally

ill.” And, in isolation, McElrath can point to the jury’s

determination that he was “not guilty by reason of insanity.” When an outside observer considers both determinations together, all parties are confronted with

what the Georgia Supreme Court saw as obvious: these

diametrically opposed special verdicts are meaningless, as they represented no decision by the jury. There

was no valid verdict. With the jury’s failure to return a

valid verdict, jeopardy did not terminate.

Was the Georgia Supreme Court wrong? Appellee

and his amicus contend it was. He now reverses his

original position and claims that the jury’s two opposing verdicts represented a valid, if inconsistent, verdict. The hope is to persuade this Court to accept the

notion that subjecting him to retrial on malice murder

is a violation of the Double Jeopardy Clause. What

this position fails to reckon with is that the corollary

conclusion must also be true. The repugnant verdict

5

should not have been vacated and the verdict of “guilty

but mentally ill” was also a valid verdict. The question

posited by McElrath is the wrong question.

The Association suggests the right question before

this Court is, were the jury’s “verdicts” a verdict at all,

making retrial appropriate, or were they valid inconsistent verdicts that should not have been vacated?

Under one set of circumstances, jeopardy did not terminate, and retrial may proceed; under the other set,

jeopardy terminated, and McElrath should be remanded to prison for life.

McElrath now seeks to have both resolutions – an

acquittal without a conviction. But even if McElrath

obtained that “Goldilocks” outcome for himself, it would

not be so for other criminal defendants in Georgia. This

binary question has implications for every defendant in

Georgia who enters a special plea of insanity.

If Georgia’s courts are not authorized to reject repugnant “mix-n-match” verdicts on the sole “either-or”

question of a defendant’s sanity, then every repugnant

verdict on insanity is an automatic “loss” for the defendant and a “win” for the prosecution. The guilty verdict will stand.

Re-categorizing a repugnant verdict from nonexistent to inconsistent, as Petitioner now urges this

Court to do, means the finding of “not guilty by reason

of insanity” constitutes an acquittal even where the

jury has clearly also found to the contrary. Adopting

this approach means a merely inconsistent acquittal

coupled with a conviction precludes a Georgia

6

defendant from arguing that he deserves to be solely

remanded to the Department of Behavioral Health and

Developmental Disabilities (DBHDD) for a determination of civil commitment. With inconsistent “mix-nmatch” insanity verdicts, the concurrent conviction,

finding a defendant “guilty but mentally ill,” remands

him to the custody of the Georgia Department of Corrections (DOC). If it is a murder case, he will be sent

there for life.

Overriding Georgia’s repugnancy rule undermines

Georgia’s insanity defense at its core. In these cases,

where it is not a question of whether the defendant

committed the criminal act, a defendant deserves a definitive and unequivocal answer from his jury on the

issue of whether he should be held criminally responsible for the act. How does the prosecution “winning”

every repugnant insanity verdict serve Georgia defendants seeking an unequivocal decision about their

criminal responsibility? Diametrically opposed special

“verdicts” cancel each other out. This is what makes

them repugnant and non-existent.

The Association urges this Court to affirm and uphold the Georgia Supreme Court’s decision that the

Double Jeopardy Clause does not prevent the State of

Georgia from retrying McElrath on all the charges in

his indictment, including malice murder. The Georgia

Supreme Court saw that the diametrically opposed

“verdicts” failed to represent a unanimous resolution

by the jury. Thus, the jury did not return a valid verdict

that terminated McElrath’s jeopardy. It returned no

verdict at all.

7

This is not a simple question of double jeopardy. It

is a question of justice for all Georgia defendants who

enter a special plea of insanity and seek an acquittal

through a jury’s unequivocal determination of their

sanity and criminal responsibility at the time of the

crime. “Mix-n-match” insanity verdicts ordinarily benefit the prosecution. The Double Jeopardy Clause does

not demand that outcome.

---------------------------------♦---------------------------------

ARGUMENT

I.

REPUGNANT VERDICTS UNDER GEORGIA LAW

Is the Georgia Supreme Court’s repugnancy determination, allowing retrial on all charges, the kind

of government oppression that the Double Jeopardy

Clause was designed to prevent, especially when

McElrath, not the State, insisted that the “verdict” was

repugnant? Before delving any further into the issue

of double jeopardy, a deeper examination of the specific

nuances of Georgia law and McElrath’s case are necessary to fully explore why Georgia’s repugnancy rule is

a suitable solution to a jury purporting to issue diametrically opposed special verdicts.

A. Burden of Proof for a Defendant’s Special Plea of Insanity

McElrath confessed, in both his 911 call and his

statement to police, that he killed his adoptive mother

8

by stabbing her to death. McElrath v. State, 308 Ga.

104, 104-105, 839 S.E.2d 573, 575 (2020) (McElrath I).

It was not in dispute at trial that McElrath had suffered mental illness for approximately three years

prior to the homicide and had been diagnosed with

schizophrenia or a related schizoaffective disorder. Id.

He was indicted for three felony crimes all arising

out of the single act of the homicide: malice murder

(O.C.G.A. § 16-5-1(a) and (b)), felony murder (O.C.G.A.

§ 16-5-1(c)), and aggravated assault (O.C.G.A. § 16-521). McElrath entered a special plea of “not guilty by

reason of insanity.” O.C.G.A. § 17-7-131.

Upon his special plea of insanity, McElrath bore

the burden of proving to the jury, by a preponderance

of the evidence, that he was insane at the time of the

attack. Buford v. State, 300 Ga. 121, 121-122, 793

S.E.2d 91, 92 (2016); see Keener v. State, 254 Ga. 699,

701-702, 334 S.E.2d 175, 178 (1985) (this burden on the

defendant is Constitutional); accord, Leland v. Oregon,

343 U.S. 790 (1952); Rivera v. Delaware, 429 U.S. 877

(1976); Patterson v. New York, 432 U.S. 197 (1977);

Grace v. Hopper, 566 F.2d 507 (5th Cir. 1978).

Under Georgia law, sanity is presumed. O.C.G.A.

§ 16-2-3. Contrary to amicus GACDL’s position, at trial

O.C.G.A. § 24-14-21 has no application as “the presumption of a mental state once proved to exist” only becomes relevant when a defendant who has previously

been adjudicated insane seeks release from the Georgia Department of Behavioral Health and Developmental Disabilities and the “introduction into evidence

of the insanity order raises a counter-presumption.”

9

Durrence v. State, 287 Ga. 213, 214-216, 695 S.E.2d

227, 229-230 (2010). “Because Georgia law presumes

every person is of sound mind and discretion, criminal

trials begin with the rebuttable presumption that the

defendant is sane and this presumption is evidence.”

Id.

The State has no burden to disprove a defendant’s

insanity beyond a reasonable doubt. O.C.G.A. § 17-7131(c). In Georgia, proof of sanity is not an element of

the prosecution’s case; rather the defendant bears the

burden of persuasion to prove either insanity or mental illness. Spivey v. State, 253 Ga. 187, 187-189, 319

S.E.2d 420, 425-26 (1984). As such, the cases heavily

relied upon by McElrath, such as Burks v. United

States, 437 U.S. 1 (1978) can be distinguished. The

question in Burks was “whether a defendant may be

tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient

to sustain the verdict of the jury.” Id. at 5. The answer

was “no.” But sufficiency is not the issue here and the

burden of proof in Burks was different. Burks was tried

in a United States District Court for the crime of robbing a federally insured bank in Tennessee by use of a

dangerous weapon. The government had the burden of

disproving insanity beyond a reasonable doubt once a

prima facie defense of insanity had been raised. Id. at

2-4. That is not the standard in Georgia.

If a Georgia jury finds that a defendant failed to

meet his preponderance burden for his claim of insanity, the jury may find that he met his burden of proving,

beyond a reasonable doubt, that he was mentally ill at

10

the time of the offense. O.C.G.A. § 17-7-131(c)(2); see

Keener, 254 Ga. at 701-702, 334 S.E.2d at 178.

McElrath presented evidence of his ongoing mental illness and delusions. McElrath I, 308 Ga. at 105106, 839 S.E.2d at 576. He argued that he was insane

because he was acting under a delusional compulsion.

Id.; O.C.G.A. § 16-3-3. In Georgia, three elements comprise this defense: “(1) that the defendant was laboring

under a delusion; (2) that the criminal act was connected with the delusion under which the defendant

was laboring; and (3) that the delusion was as to a fact

which, if true, would have justified the act.” Stevens v.

State, 256 Ga. 440, 442, 350 S.E.2d 21, 22 (1986).

McElrath argued that he was under the delusion

that his mother was poisoning his food. Thus, he was

justified in stabbing her to death in the stairwell of

their home. McElrath I, 308 Ga. at 105-106, 839 S.E.2d

at 576. The Georgia Supreme Court reviewed the trial

transcript, the evidence presented at trial, and the

conflicting expert testimony to determine if the trial

evidence was sufficient to support the conflicting “verdicts” under Jackson v. Virginia, 443 U.S. 307, 319

(1979). The Georgia Supreme Court does not speculate

into the jury’s deliberations with a sufficiency analysis.

Instead, it looks to see if there was some competent evidence to support each fact necessary to make out the

State’s case. Gude v. State, 313 Ga. 859, 861-862, 874

S.E.2d 84, 89 (2022).

The Georgia Supreme Court held that at least

one expert provided sufficient testimony to support a

11

jury finding McElrath was insane by a preponderance of the evidence. McElrath I, 308 Ga. at 105-106,

839 S.E.2d at 576. The Georgia Supreme Court also

determined there was sufficient evidence for a jury to

find, beyond a reasonable doubt, that McElrath was

“guilty but mentally ill” at the time of the homicide.

McElrath I, 839 S.E.2d at 576-577.

Contrary to amicus GACDL, a Georgia jury is not

bound by the opinions of expert witnesses. Boswell v.

State, 275 Ga. 689, 691-692, 572 S.E.2d 565, 568 (2002).

A Georgia jury may determine what credibility and

weight to give an expert opinion and may assess a defendant’s conduct, demeanor, motive, words, and actions for itself. Id. Therefore, the evidence at trial

supported the jury determination of “guilty but mentally ill” simply because McElrath’s delusion that his

mother was poisoning him, if true, did not justify the

act of stabbing her fifty times, causing her death in the

stairwell.

B. Special Instructions to the Jury: Form of

the Verdict

A Georgia trial court is required to provide the

jury with the law regarding the defendant’s special

plea of insanity, including two specific instructions relating to the special plea: the form of the jury’s verdict

and the incarceration results of each verdict. O.C.G.A.

§ 17-7-131(c).

The jury is given four options for the form of its

verdict. J.A. 8a. Before considering a defendant’s special

12

plea of insanity, a jury must find beyond a reasonable

doubt that the defendant committed the acts alleged in

the indictment. J.A. 91a. The jury may return a general

verdict of “guilty” or a general verdict of “not guilty.”

The jury is also given the option to make specific and

express findings about the defendant’s insanity or

mental illness with a special verdict declaring their

findings. O.C.G.A. § 17-7-131(b) and (c).

Here, the jury was instructed that it could only return a special verdict of “not guilty by reason of insanity” if the defendant proved, by a preponderance of the

evidence, that he was insane at the time of the crime.

J.A. 96a. The jury was also properly instructed that

only after rejecting a finding of insanity, could it consider whether the evidence showed, beyond a reasonable doubt, that McElrath was “guilty but mentally ill”

at the time of the crime. J.A. 97a. It has been a bright

line rule in Georgia, since 1985, that the jury may not

find a defendant both insane and not insane. Keener,

254 Ga. at 702-703, 334 S.E.2d at 179.

McElrath’s jury filled out its verdict form with the

four options and picked two. The jury did not return

any general verdicts on any of the three counts in the

indictment. McElrath I, 308 Ga. at 104-105, 839 S.E.2d

at 574-575; J.A. 8a. The jury did not find McElrath

“guilty,” nor did it find him “not guilty.” Id.

Of the remaining special verdict options, the jury

picked both. It checked off diametrically opposed specific and express findings of fact. The jury specifically

found McElrath to have intentionally stabbed his

13

mother, which resulted in her death, when it returned

“guilty but mentally ill” verdicts to the felony murder

and aggravated assault charges. In other words, the

jury found him legally sane but mentally ill, beyond a

reasonable doubt, at the time of the homicide. The disparity was created when, as to malice murder, the jury

returned a completely opposite special verdict finding

McElrath insane at the time of the homicide.

This was not a decision that represented any resolution to the only contested factual element of the offense charged: McElrath’s mens rea. It was no decision

at all and void. It was the equivalent of a mistrial.

C. Special Instructions to the Jury: Punishment

A defendant’s special plea of insanity is unique in

Georgia law. Commonly in Georgia, the jury in a criminal trial is only tasked with returning a general verdict of “guilty” or “not guilty,” and a jury is not to

concern itself with punishment. Wilson v. State, 233

Ga. 479, 481-482, 211 S.E.2d 757, 760 (1975). Therefore, inconsistent verdicts are allowed to stand and neither the defendant nor the State may appeal them.

Milam v. State, 255 Ga. 560, 562, 341 S.E.2d 216, 218

(1986); accord, Collins v. State, 312 Ga. 727, 734, 864

S.E.2d 85, 94-95 (2021) (expressly declining to overrule

Milam and rejecting as meritless the assertion that a

felony murder conviction had to be reversed because it

was inconsistent with an acquittal on the predicate offense of aggravated assault).

14

There are two exceptions to the standard general verdict form and the forbidden consideration of

punishment in Georgia: special pleas of insanity and

death penalty cases.

Unlike insanity cases, Georgia death penalty cases

have a guilt-innocence phase and a separate sentencing phase. O.C.G.A. § 17-10-31. During the sentencing

phase, the jury is incapable of both recommending a

sentence of death and recommending a sentence of life

with the possibility of parole.2 The same should be true

with a defendant’s special plea of insanity because it is

both an affirmative defense and a sentencing recommendation.

With a defendant’s special plea of insanity, the

trial court instructs the jury about the consequences of

the verdicts. O.C.G.A. § 17-7-131(b)(3). These instructions correct any misconceptions jurors may have

about the result of their verdict and allow the jury to

focus solely on the mental condition of the defendant.

The intent is for the jury to decide that issue free from

2

This is why Bullington v. Missouri, 451 U.S. 430, 445 (1981)

can be distinguished. Bullington’s jury did not return a special

verdict both imposing the death penalty and not imposing the

death penalty. The jury in Bullington made one finding. It declined to impose the death penalty. Upon successful appeal by

Bullington, this Court held that Missouri was precluded from

seeking the death penalty again, as a jury had made an unequivocal finding that the State had failed to prove the necessary facts

to support imposition of the death penalty. Id. McElrath’s jury did

not make one finding of fact. It made two, which is akin to imposing the death penalty and not imposing the death penalty at the

same time.

15

concerns about punishment. Foster v. State, 306 Ga.

587, 592, 832 S.E.2d 346, 351 (2019).

Here, the trial court instructed the jury that if

they found McElrath insane, he would be committed to

“a state mental health facility until such time, if ever,

that the court is satisfied that he or she should be

released pursuant to law.” J.A. 96a; O.C.G.A. § 17-7131(b)(3)(A). The trial court also instructed the jury

that if they found McElrath guilty but mentally ill, he

would “be placed in the custody of the Department of

Corrections which will have responsibility for the evaluation and treatment of the mental health needs of the

defendant.” J.A. 97a; O.C.G.A. § 17-7-131(b)(3)(B). The

jury’s verdict left McElrath in physical limbo.

McElrath had a good reason for advocating that

the “verdicts” were repugnant: he wanted freedom. By

the time of appeal, the Georgia Department of Behavioral Health and Developmental Disabilities determined that he did not meet the criteria for inpatient

civil commitment. However, due to the jury’s other special verdict of “guilty but mentally ill,” McElrath was

released from DBHDD to the Georgia Department of

Corrections, not to freedom. See Br. of Appellant at 43,

45-46, McElrath v. State, No. S19A1361 (Ga.) (July 15,

2019) (McElrath sought to have the trial court’s order,

remanding him to the custody of the DOC, reversed

“having failed to apply the correct statutory subsection

in removing Appellant from the physical custody of the

DBHDD . . . ”).

16

McElrath had to find a way to resolve his practical

problem of being physically remanded to the custody

of the DOC. McElrath I, 308 Ga. at 115-116, 839 S.E.2d

at 582. McElrath could not assert that the “verdicts”

were merely inconsistent, because seemingly inconsistent general verdicts are affirmed. Milam v. State,

255 Ga. at 562, 341 S.E.2d at 218 (abolishing the inconsistent verdict rule in Georgia). Consequently, in

McElrath’s first appeal to the Georgia Supreme Court,

he advocated for repugnancy, urging the Georgia Supreme Court to vacate the jury’s special verdict of

“guilty but mentally ill.” See Br. of Appellant at 30-37,

McElrath v. State, No. S19A1361 (Ga.) (July 15, 2019).

D. “Both Verdicts Must be Vacated and a

New Trial Ordered”

In the first appeal, McElrath succeeded in convincing the Georgia Supreme Court that his verdicts

were repugnant, “as the guilty and not guilty verdicts

reflect affirmative findings by the jury that are not legally and logically possible of existing simultaneously.”

McElrath I, 308 Ga. at 110, 839 S.E.2d at 575, 579. Because this was not a case where the jury made a positive finding of fact as to one charge and failed to make

a positive finding of fact as to the other charge, the

Georgia Supreme Court rejected both the District Attorney’s and the Georgia Attorney General’s positions

that the jury’s two verdicts were merely inconsistent.

McElrath I, 308 Ga. at 110, 839 S.E.2d at 578, 580-582.

17

In line with Georgia’s rule on mutually exclusive

verdicts, the Georgia Supreme Court recognized that

“repugnant verdicts suffer from a similar infirmity as

mutually exclusive verdicts” because to have a jury

find a defendant both sane and insane, “the jury must

make affirmative findings shown on the record that

cannot logically or legally exist at the same time.”

McElrath I, 308 Ga. at 111, 839 S.E.2d at 579 (emphasis in original); see Booth v. State, 311 Ga. 374, 376377, 858 S.E.2d 39, 42 (2021); Middleton v. State, 846

S.E.2d 73, 83 (2020); Dumas v. State, 266 Ga. 797, 800

471 S.E.2d 508, 511 (1996) (a mutually exclusive verdict in Georgia is where a jury makes affirmative

findings of diametrically opposed mens rea, which

does not terminate jeopardy since the verdicts are

void).

Thus, for McElrath’s repugnant verdicts, the Georgia Supreme Court, consistent with other rules in

Georgia, stated, “both verdicts must be vacated and a

new trial ordered.” McElrath I, 308 Ga. at 111, 839

S.E.2d at 579; accord, Dumas 266 Ga. at 800, 471

S.E.2d at 510.

E. McElrath’s Second Bite at the Apple

A year later, upon proceeding to retrial, McElrath

filed a plea in bar based on double jeopardy. Despite

the entire verdict having been declared a nullity and

vacated by the Georgia Supreme Court at his urging,

McElrath now claimed that he was found not guilty.

The trial court, bound by the “law of the case” rule

18

found in O.C.G.A. § 9-11-60(h) and the Georgia Supreme Court’s determination that the malice murder

“verdict” was void, denied the motion. McElrath v.

State, 315 Ga. 126, 128, 880 S.E.2d 518, 520 (2022)

(McElrath II).

Appealing the trial court’s denial of his plea in bar,

“McElrath next argue[d] that because the jury found

him not guilty by reason of insanity on the malice murder count, he cannot be retried on any of the counts

in the indictment because of the constitutional prohibition against double jeopardy and the doctrine of

collateral estoppel.” Id. The Georgia Supreme Court

disagreed.

In McElrath II, Petitioner argued that repugnancy

did not mean the repugnant verdicts had to be vacated and remanded for retrial so a jury could make a

valid determination as to the ultimate issue of fact –

whether he was insane or not insane at the time of the

homicide. Rather, McElrath argued that the Georgia

Supreme Court should somehow apply the jury’s purported “verdict” on malice murder to his felony murder

and aggravated assault charges. See Br. of Appellant

at 23, McElrath v. State, No. S22A0605 (Ga.) (February

16, 2022) (“The controlling legal precedent should have

resulted in this Court’s reversal of Appellant’s judgment of conviction on felony murder and aggravated

assault.”).

The Georgia Supreme Court rejected McElrath’s

arguments. The two diametrically opposed findings of

mens rea, as to the one act of homicide, cancelled each

19

other out, leaving McElrath with meaningless, diametrically opposed, special “verdicts” representing no decision by the jury. At this point, the question of whether

there had been a verdict was law of the case. See

O.C.G.A. § 9-11-60(h). With the jury’s failure to return

a valid verdict, jeopardy did not terminate. Where

jeopardy has not terminated, there is no violation of

the Double Jeopardy Clause in proceeding to retrial.

McElrath II, 315 Ga. at 130, 880 S.E.2d at 522.

F. McElrath’s Third Bite at the Apple

McElrath and amici presently seek a ruling from

this Court that retrial on malice murder constitutes

double jeopardy, ignoring his prior claim that the trial

court erred in accepting the repugnant verdicts, which

brought him here. He wants his cake, and he wants to

eat it too.

McElrath now asserts that the “verdicts” were

valid, he was acquitted of malice murder with the

jury’s verdict of “not guilty by reason of insanity,” and

the Double Jeopardy Clause prevents his retrial, because even if the verdicts were repugnant, they were

merely another type of inconsistency and not a wholly

void verdict.3

3

Petitioner does not argue that this is an issue of collateral

estoppel, but amicus GACDL asserts that McElrath was acquitted of malice murder with a valid final judgment and that the jury

decided the critical issue of ultimate fact regarding McElrath’s

sanity when it found him not guilty of malice murder by reason of

insanity. Br. of Ga. Assoc. of Criminal Defense Lawyers at 30-32.

20

Thus, to get to the question of double jeopardy, this

Court must decide whether the jury’s “verdicts” were

really a verdict at all, making retrial appropriate, or

were they valid inconsistent verdicts that should not

have been vacated?

II.

DOUBLE JEOPARDY DOES NOT APPLY

HERE, WHERE THE JURY NEVER REACHED

A VERDICT

Petitioner’s question is the wrong question. The

right question is, was there a verdict at all? The Double

Jeopardy Clause holds such a sacrosanct place in the

legal lexicon that it is hard to imagine that the concept

was ever up for discussion or dispute. And yet it has

been discussed and disputed endlessly due to developing changes in the law.

This Court has exhaustively explored the history

of the Double Jeopardy Clause and the meaning of the

words “nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S.

Const. Amend. V.; see Evans v. Michigan, 568 U.S. 313,

This is simply not the case. This argument blatantly ignores the

jury’s other diametrically opposed decision, on the critical issue of

ultimate fact, finding him not insane. The assertion that any

Court could then “apply” the insanity finding to the jury’s other

express and specific finding that McElrath acted with intent is

unsupported by law. See Bravo-Fernandez v. United States, 580

U.S. 5, 12 (2016) (the burden is on the defendant to demonstrate

that the issue whose re-litigation he seeks to foreclose was actually decided by a prior jury’s verdict of acquittal).

21

318-320, 323-333, 334-338 (2013); Green v. United

States, 355 U.S. 184, 187-189, 199-219 (1957).4

Formulated over time, the basic rules under the

Double Jeopardy Clause allow a defendant to be retried when his conviction is set aside due to an error in

the proceedings but not when the reversal is based

upon insufficient evidence. Burks v. United States, 437

U.S. 1, 11 (1978); United States v. Tateo, 377 U.S. 463,

465 (1964). This Court in Green also stated that jeopardy is not regarded as having come to an end such

that it bars a second trial where unforeseeable circumstances during the first trial, such as the failure of the

jury to agree on a verdict, makes its completion impossible. Green, 355 U.S. at 187-188. Here, McElrath’s jury

did not agree on the critical ultimate fact of whether

he could form the necessary intent to commit the homicide. As the two purported verdicts were void, jeopardy did not terminate. Does a retrial on all charges

under these circumstances constitute government oppression and abuse?

What government abuse were the Founders trying

to avoid with this prohibition on double jeopardy?

“[T]he State with all its resources and power should

not be allowed to make repeated attempts to convict an

individual for an alleged offense,” because it would

compel that individual to suffer an ongoing ordeal and

would enhance “the possibility that even though innocent he may be found guilty.” Id.

4

Georgia has its own version, providing the same protection

with exemptions. See Ga. Const. Art. I, § I, Para. XVIII.

22

The State is to have one fair opportunity to prove,

beyond a reasonable doubt, that a defendant is guilty

of the crimes charged. Burks, 437 U.S. at 16. Here, as

in most insanity cases, there was no issue as to

whether McElrath committed the criminal act. He entered a special plea of insanity asking his jury to decide

his criminal responsibility. It was a binary question.

In this case, upon rational examination, the jury’s

selection of two competing special verdicts only communicated that the jury had failed to make a decision

as to the one question of McElrath’s special plea of insanity. Was McElrath legally insane at the time of

homicide or was he sane? The jury’s answer was “yes,”

which was a failure to answer the question at all.

“Both” was not an option, yet the jury issued that response. Such jury indecision, equivalent to a hung jury

and mistrial, is a permissible reason for the retrial of

a defendant.

Is the Georgia Supreme Court’s repugnancy determination and remand for retrial on all counts, the kind

of government oppression that the Double Jeopardy

Clause was meant to prevent? The answer is “no.”

Diametrically opposed special verdicts make clear

that the jury simply failed to decide, but when such

“verdicts” are treated as valid, albeit inconsistent, they

favor the prosecution. This is what makes them repugnant and void.

The Association’s position is that the Georgia Supreme Court was correct in its logic. A repugnant verdict is not equivalent to, nor a subset of, an inconsistent

23

verdict – it is just not a verdict at all. Vacating the diametrically opposed special verdicts and remanding

the case for a retrial on all counts is what happens with

a repugnant verdict.

Once again, Petitioner’s question is the wrong

question. Of course, the Double Jeopardy Clause of the

Fifth Amendment prohibits a second prosecution for a

crime of which a defendant was previously acquitted.

But in order to be acquitted, a determination of “[c]ulpability (i.e. the “ultimate question of guilt or innocence”) is the touchstone” and here, no such decision

was made by McElrath’s jury. Evans, 568 U.S. at 324,

336-337. Since no jury has issued a verdict on the

charges in the indictment, retrial is appropriate, so

that a jury can make a definitive, unequivocal determination on the only question that still, to this day, requires resolution.

III. INCONSISTENT VERDICTS ARE ALMOST

ALWAYS A WIN FOR THE STATE

This is not a simple question of double jeopardy.

It is an ill-advised battle, that if won by McElrath,

could potentially lose the war for every defendant

in Georgia who pleads “not guilty by reason of insanity.” McElrath’s position is the proverbial doubleedged sword. If the State is precluded from retrying

McElrath for malice murder because the Georgia Supreme Court erred in determining his jury’s two verdicts were repugnant, then in any future case where a

defendant enters a special plea of insanity and the jury

24

finds him both insane and not insane, his repugnant

verdict will be deemed inconsistent and not subject to

appeal on that basis. The guilty part of the supposed

“verdict” will stand. The conviction finding him “guilty

but mentally ill” determines his sentence, not the purported acquittal.

Ironically, during this battle, McElrath swapped

horses midstream. He has forsaken his prior repugnancy argument – the very argument that brought

him here. He now advocates that his jury returned

valid inconsistent verdicts, as this better serves him,

and only him, in this short-sighted battle. Overriding

Georgia’s repugnancy rule, means that repugnant

verdicts will almost always be a “win” for the prosecution, which in turn undermines Georgia’s insanity defense at its core.

With a special plea of insanity in Georgia, there is

no question the defendant committed the criminal act,

and the defendant bears the burden to present the jury

with evidence, that while he suffers from mental illness, at the time of the crime he was legally insane. He

must show the jury why he was not criminally responsible for his actions, and why he should be treated differently from those who are sane and intentionally

commit felonies. A criminal defendant deserves a definitive and unequivocal answer from his jury on this

issue. If his jury cannot decide the one “either-or” issue

before it, our system allows another jury be empaneled

to see if it can decide the issue. Mistrials are not a bar

to further prosecution. United States v. Perez, 22 U.S.

25

(9 Wheat.) 579, 580 (1824); United States v. DiFrancesco, 449 U.S. 117, 130 (1980). Allowing a jury to find

a defendant both insane and not insane, undermines a

defendant’s special plea and defense, in favor of the

prosecution.

The real question to be decided here is, were the

jury’s two diametrically opposed “verdicts” void repugnant verdicts requiring retrial or a valid inconsistent

verdict that should not have been vacated?

The Association believes the Georgia Supreme

Court correctly held that under Georgia law, two diametrically opposed “verdicts” which fail to represent a

resolution by the jury of a defendant’s sole defense is

not really a verdict at all. Courts should be authorized

to reject supposed “verdicts,” where the jury has come

to two opposing answers on the sole “either-or” question of a defendant’s sanity, if for no other reason than

the windfall the position provides to prosecution appears to undermine due process.

McElrath’s jeopardy continues to this day, as no

one can say that his first trial resulted in an undisputed determination regarding his special plea of insanity and under Georgia law, no jury has issued a

valid verdict on the charges alleged in the indictment.

---------------------------------♦---------------------------------

CONCLUSION

The Association sees the wisdom of categorizing

opposing special verdicts as repugnant, so McElrath

26

and the State may secure, if they can, an unequivocal

determination on the issue of McElrath’s insanity at a

retrial. The Association asks this Court to affirm the

Georgia Supreme Court’s logical analysis that these

repugnant verdicts, void of a decision, did not terminate jeopardy. Especially since no verdict exists.

The danger in determining that McElrath’s repugnant verdicts may stand, and be called inconsistent, is that future Georgia trial courts will be

powerless to reject the jury’s indecision on the defendant’s issue of insanity. And in Georgia, the defendant would then be incapable of appealing the

blatant and obvious indecision that resulted in the

inconsistency. Should Georgia juries be authorized to

“mix-n-match” on a defendant’s specific “either-or”

plea of insanity, where “mix-n-match” only benefits

the prosecution?

Thus, this is a question of justice for all future

Georgia defendants who enter a special plea of insanity and seek an acquittal through a jury’s unequivocal

determination regarding their criminal responsibility

at the time of the crime. Under these circumstances,

re-categorizing repugnant special verdicts as inconsistent provides an automatic, and undeserved, windfall to the prosecution. How does the prosecution

“winning” whenever the jury returns diametrically opposed insanity verdicts serve Georgia defendants?

Petitioner’s dogged desire to win this battle, at

the cost of other future defendants’ rights to an unequivocal determination on their special plea of

27

insanity, is irony itself. The Association urges upholding the decision of the Georgia Supreme Court

so that under these rare circumstances, Georgia

courts may comply with Georgia law and reject specific and express jury “findings” that reflect obvious

indecision and require a genuine verdict as to the defendant’s issue of insanity.

Respectfully submitted,

ROBERT W. SMITH, JR.

General Counsel

PROSECUTING ATTORNEYS’

COUNCIL OF GEORGIA

1590 Adamson Parkway,

4th Floor

Morrow, Georgia 30260

(770) 282-6300

rwsmith@pacga.org

Counsel for Amicus Curiae

October 19, 2023