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Justices: GA Man Can't Be Retried For Murder In Double Jeopardy Case

The Supreme Court ruled Georgia can’t retry a man who was acquitted by reason of insanity for one charge in the murder of his adoptive mother despite conflicting verdicts on other charges. In a unanimous decision on Wednesday, the court said the jury’s verdict that Damian McElrath was not guilty of malice murder by reason of insanity constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts, reports Bloomberg Law. McElrath was found not guilty of malice murder by reason of insanity for stabbing Diane McElrath over 50 times in 2012. During oral arguments in the case last November, several U.S. Supreme Court justices appeared doubtful Tuesday that McElrath could be retried, reported the Atlanta Journal-Constitution.


The constitutional double jeopardy clause prevents a person from being convicted twice of the same offense. Though McElrath was found not guilty of malice murder by way of insanity, he was found guilty but mentally ill of felony murder and aggravated assault. McElrath was 18 when he stabbed Diane McElrath. The Georgia Supreme Court decided in 2020 that it was “repugnant” for a jury to find McElrath both not guilty and guilty in the way that it did. The state’s highest court vacated the verdicts and ordered a new trial. Arguing on behalf of the state, attorney Stephen Petrany maintained that McElrath could be retried for malice murder because the verdicts in his case didn’t make sense and therefore can’t stand. Petrany said the jury improperly found that McElrath was “both sane and insane at the same time ,,, That’s why the Georgia Supreme Court held there was no verdict, no acquittal, and no convictions.” Petrany said.

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