Justices Take Up Double Jeopardy Challenge on Acquitted Conduct

The US Supreme Court agreed to consider the scope of the Constitution’s double jeopardy clause which prevents prosecutors from trying criminal defendants twice.

The question the justices agreed to decide Friday centers on whether the prohibition applies when the defendant has been acquitted of the charges, but an appellate court later vacates that acquittal.

A Georgia jury reached a “split verdict” in finding petitioner Damian McElrath not guilty of malice murder but guilty of aggravated assault and felony murder. A state appellate court found the logically inconsistent rulings “repugnant” and ordered retrial on all claims.

The justices will consider whether that violated McElrath’s double jeopardy rights.

At the same time, the justices declined to take up a series of separate sentencing disputes involving acquitted conduct.

For example, in McClinton v. United States, a federal jury convicted Dayonta McClinton of robbery in Indiana, but acquitted him of a murder that happened after the fact. In sentencing McClinton on the robbery, the judge relied on the murder to more than triple the sentence.

McClinton and a broad range of friends-of-the-court urged the justices to consider whether that, too, was unconstitutional. The court declined because the US Sentencing Commission is currently considering the issue, according to separate “statements” written by Justices Samuel Alito and Brett Kavanaugh explaining their reasoning for declining the case.

Justice Sonia Sotomayor also wrote a brief statement to highlight “concerns about procedural fairness and accuracy when the State gets a second bite at the apple with evidence that did not convince the jury.”

The case is McElrath v. Georgia, U.S., No. 22-721.