The substantive law under which defendants are prosecuted can vary from state to state.1 But regardless of jurisdiction, there are procedural barriers against successive prosecutions.2 States like Georgia have created their own barriers to criminal proceedings by passing laws and amending their own constitutions.3 The federal barrier, contained in the Double Jeopardy Clause of the Fifth Amendment, is that “[n]o person” shall be prosecuted multiple times “for the same offense.”4 In McElrath v. Georgia,5 the Supreme Court correctly vindicated this federal constitutional protection and reiterated the definition of acquittals for purposes of double jeopardy.6 In turn, the Georgia General Assembly should go beyond the federal baseline, as it has done before,7 by codifying a statutory definition of an acquittal for purposes of double jeopardy. This amendment would help preserve the soundness of the state’s judicial process, protect the innocent, and keep the issues raised in McElrath within Georgia’s juries, rather than through the review courts.

The traditional prohibition on double jeopardy is not a panacea for defendants. For example, some in popular discourse believe that 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 is the result of prosecutorial or judicial conduct “intended to ‘incite’” the defense to request a mistrial,10 neither the Double Jeopardy Clause nor Georgia law prohibits a new trial.11 Protections under the federal clause are modest at best.12 Thus, the scope of state procedural protections has palpable risks.13

Like most people admitted to Georgia prisons, Damian McElrath was neither a household name nor even employed full-time.14 Before the incident that led to his arrest, McElrath was gripped by delusions that his mother, Diane McElrath, was poisoning his food and drink with pesticides.15 After his discharge, McElrath was convicted of a crime and was convicted of a crime that included a drug abuser.16 16 McElrath killed his mother in a single fight. 17 He was subsequently charged with three felony counts: malice murder, felony murder, and aggravated assault. 18 A jury returned 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 verdicts. 20 Accordingly, McElrath filed a motion to vacate only the guilty verdicts under the state’s “repugnant verdict” rule. 21 Under this Georgia rule, a verdict may be vacated if it involves “affirmative jury findings that are not legally and logically possible to exist simultaneously.” 22 The trial judge denied the motion and sentenced McElrath to life in prison for felony murder. 23

When McElrath appealed his conviction on repugnance grounds, Georgia’s highest court agreed. with him, but vacated both the conviction and the acquittal.24 The court objected to the jury making affirmative findings that suggested McElrath was someone the trial judge had judged to be a “criminal.” The jury found that McElrath was simultaneously insane and guilty of a crime that only sane people could commit. 25 The jury’s irreconcilable findings led the court to vacate both the guilty and not guilty verdicts as “repugnant.” 26 On remand, the judge denied McElrath’s motion to stop prosecution on double jeopardy grounds. 27

On appeal of this denial, the Georgia Supreme Court affirmed. 28 The court cited the double jeopardy provision of the Georgia Constitution but did not apply it or any related state law. 29 After rejecting a challenge to its earlier 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 only repugnant but always void, likening the outcome to a mistrial or a 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 conflicting verdicts,33 avoiding the question of whether federal law could still define one of the verdicts as an acquittal.

The Supreme Court granted certiorari and unanimously reversed the judgment.34 The Court first held that federal law, not state law, determines whether there has been an acquittal under the double jeopardy clause.35 Had it held otherwise, it would have allowed state law to control which acquittals merit federal double jeopardy protections. Justice Jackson articulated that this functionalist inquiry focuses 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 “some finding that the prosecution’s evidence is insufficient to establish criminal liability for a crime.”37 The finding must also relate to the “ultimate question of guilt or innocence.”38 Although this decision seems self-evident, it is not tautological. At its core, a jury acquits a person when, after considering the state’s evidence, it “acts on its opinion that the prosecution has failed to prove its case.” 39 While the rule does not automatically resolve every permutation, it relies on the same distinction between substance and form that allows for successive prosecutions after errors in judgment40 or prosecutions brought in the wrong place. 41

Justice Jackson rejected Georgia’s claim that specific affirmative findings that contradict each other can invalidate the rule against reconsideration of acquittal verdicts. 42 Georgia proposed an exception that would have placed clearly inconsistent verdicts outside the definition of an acquittal because the jury had exposed its “error, compromise, or indulgence,”43 so that the error is self-evident, obviating the danger of a court’s inquiry 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 conceded that 46 Ultimately, the clear rule against doubting a jury’s reasoning remained unchanged:47 “Once returned, a jury’s verdict of acquittal is inviolable.”48 The Court enjoined McElrath’s retrial on the malice murder charge, reversed the Georgia Supreme Court’s decision, and remanded the case. 49

Justice Alito agreed. 50 He reasoned that the malice murder verdict qualified as an acquittal because, one, the jury returned a verdict of not guilty and, two, the trial judge entered a judgment of acquittal. 51 However, Justice Alito noted that federal law neither prescribes nor prohibits accepting inconsistent verdicts. 52 He argued that the Court’s opinion should not be construed far to say that states may never empower trial court judges to order juries to continue deliberating or to reject an inconsistent verdict. 53

The Supreme Court typically cannot ensure that constitutional protections are reliably applied in all state criminal cases, as it did in McElrath. Although the Supreme Court can resolve a substantial number of cases “summarily by unsigned order[],”54 state courts received approximately 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 merely affirming federal protections against double jeopardy, McElrath preserved the ability of states to enforce standards beyond constitutional grounds and placed the onus on Georgia to protect defendants. The Georgia legislature should take this opportunity to codify a statutory definition of acquittal for purposes of double jeopardy in order to preserve the finality of the adjudicative process, safeguard the legally innocent, and help keep the issues raised in McElrath within the jurisdiction of Georgia juries.

State criminal law decisions, even those that are incorrect on their own state grounds, are part of a state’s domain over the interpretation and invocation 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. If the Court were to reach these state law grounds, it would violate longstanding principles of federalism59 and exceed its jurisdiction.60 Moreover, correcting the Georgia Supreme Court’s error on federal grounds was sufficient to resolve the case.61 To the extent McElrath encroached on the domain of the states, it did not go beyond prior double jeopardy jurisprudence,62 which state courts are bound to respect.63

Despite prior legislative efforts in Georgia to protect defendants, current statutory provisions would not have guided state courts to the correct result on the McElrath double jeopardy issue. More than fifty years ago, the General Assembly “expanded the prohibition on double jeopardy beyond that provided for in the United States and Georgia Constitutions.”64 The legislature enshrined a “statutory test for determining double jeopardy issues.” 65 As such, Georgia law prohibits a subsequent prosecution when the “prior prosecution” results in “either a conviction or an acquittal.”66 But the Georgia Code provides no definition of acquittal for purposes of double jeopardy. While the statute prohibits subsequent proceedings for a person who is “declared not guilty,”67 the state code provides no formula for courts to determine whether an acquittal has actually occurred. In this state loophole, it was not possible to determine whether the McElrath jury’s irreconcilable verdicts constituted an acquittal, so the Georgia Supreme Court based its decision on its interpretation of federal law.68

However, the Georgia legislature can, in fact, delineate the scope of the state’s prohibition against successive prosecutions by first incorporating the acquittal analysis in the Supreme Court’s majority opinion into existing statutory tests.69 To be on par with the federal interpretation of an acquittal for purposes of double jeopardy, the test must functionally recognize any judicial decision or act by a jury on its view that the prosecution has failed to establish liability for a crime as an acquittal.70 From there, Georgia can prevent further successive prosecutions by expanding the statutory definition of an acquittal to include “final order[s] or judgment[s] . . . that required a finding inconsistent with any fact or legal proposition necessary to a conviction in the subsequent proceeding”71 or to bar proceedings containing charges that the prosecutor was required to include in an earlier proceeding.72 Georgia need not take Justice Alito’s comment73 as a requirement to include the court’s entry of a judgment of acquittal in the definition of an acquittal for purposes of double jeopardy. Rather, the state can strengthen protections for the accused in its state courts by considering any jury verdict of acquittal as sufficient for purposes of barring subsequent prosecutions. Doing so would further Georgia’s prior effort to “expand[]” the constitutional proscription of double jeopardy.74

A comprehensive legal definition of an acquittal that meets or exceeds the federal standard75 could have resolved the McElrath double jeopardy issue before it reached the reviewing courts and would help keep any acquittal within the domain of Georgia juries. Under Georgia law, state courts “are not privileged to invade the jurisdiction of the jury.”76 Likewise, under federal law, juries are understood to exercise “unreviewable powers … to return a verdict of not guilty” for both permissible and “impermissible” reasons, including “compromise, compassion, leniency, or lack of understanding of the applicable law.”77 Without a definition of an acquittal in state law, however, the outermost limits of what constitutes an acquittal for purposes of double jeopardy will be defined by judicial precedent. Without a legal definition of acquittal that state courts can follow, Georgia courts may have to rely solely on judicial discretion in these extreme cases,78 which is how the error in the McElrath case arose.79

The lack of a legal test for an acquittal comes at the expense of criminal defendants of all kinds, especially those found legally innocent in the first instance. The specter of incarceration disproportionately haunts black communities in Georgia,80 but it can reach into any community and directly affect children, parents, or political and cultural leaders in a community. By early 2011, one in seventy adults in Georgia was behind bars.81 The accused may also face “a seemingly endless chain of separate trials.”82 Relying on the “lax double jeopardy doctrine”83 and the federal definition of acquittal, prosecutors may attempt to convict an individual multiple times, “increasing the possibility that even if innocent, he or she may be found guilty.”84 In the face of overcriminalization, strong legal protections are essential to safeguard those who face “the full power of the state arrayed against” them.85

The state judiciary also failed to protect defendants in two important ways, highlighting the importance of legislative intervention. First, had the Georgia Supreme Court 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 struck down its earlier rule88 that had banned inconsistent verdicts altogether.89 From there, Georgia courts struck down the remnants of the “repugnant verdicts” rule90 until the Georgia Supreme Court reversed course on its own initiative 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 guilty verdicts, not acquittal.93 And even before Powell, Georgia courts applied the “repugnant verdicts” rule only to convictions, not acquittals.94 Moreover, if the McElrath verdicts had truly been void, as the Georgia Supreme Court suggested,95 it would have been unnecessary to vacate the convictions96 under Georgia law, since the verdicts were not valid.97 which would 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 “double jeopardy issues in Georgia must now be determined pursuant to expanded statutory proscriptions.”98 Defendants lose their statutory double jeopardy protections when they are “expressly abandoned.”99 The courts’ omissions indicate 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 to the sixty-one Stop Cop City activists,100 it is the legislature’s responsibility to enact a more protective standard preventing successive prosecutions, along with other reforms. Federal backstops need not be the only guardrails. Many states have elevated their protections above the federal baseline, even articulating a double jeopardy barrier that applies “when the prosecutorial misconduct is so egregious that… 101 The legislature could also prevent defendants from waiving the double jeopardy protections carved into Georgia law by preventing state courts from dismissing 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 he or she filed the initial case. 103 In essence, the legislature should resume its project of restructuring the felony threshold for certain crimes,104 expanding parole eligibility,105 and reforming bail practices for misdemeanors,106 which previously coincided with a nearly thirteen percent decline in Georgia’s prison population. 107 At the very least, a legal definition of an acquittal and additional procedural protections could have been the crux of the issue of the correct outcome in the McElrath state court proceedings, and could precipitate “[r]ethinking…how to coordinate sanctions,” prosecutions, and protections for defendants in Georgia. 108