(Note to readers: These Supreme Court reports are now appearing on the day of the hearing of the case being discussed. Information on how to listen to hearings is at the end of the report.)
The Supreme Court on Tuesday examines the ancient right not to be put on trial more than once for the same crime – a right with roots in Greek and Roman history. The Court also will hold a second hearing, on the role of the courts in enforcing immigration law.
Most of the rights promised by the U.S. Constitution are, in fact, limited in some way. But there is one that comes very close to being absolute: that is the right not to be put on trial a second time, if the jury issues a verdict of not guilty in the first prosecution. In 1978, the Supreme Court commented that “we afford absolute finality to a jury’s verdict of acquittal, no matter how erroneous its decision.”
This goes by the legal phrase “double jeopardy,” from this language in the Constitution’s Fifth Amendment: “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
Like the other clauses written into the Bill of Rights, ratified in 1791, the guarantee against double jeopardy was originally imposed only against the federal government. In a 1969 decision, in the case of Benton v. Maryland, the Supreme Court applied it to state and local trials, too.
In an opinion in that case written by Justice Thurgood Marshall, the Court commented: “The idea…is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity….”
The case involved a Maryland man, John Dalmer Benton, who was convicted in state court of burglary but found not guilty of larceny. Prosecutors charged him a second time with both crimes, and he was convicted on both counts and was then sentenced to 15 years in prison. The Supreme Court, finding double jeopardy, nullified the verdict against him for larceny.
Tuesday’s first hearing: McElrath v. Georgia.
Legal background: An unusual feature of state law in Georgia is that it allows more than one trial if a jury reaches a different verdict on two criminal counts, if those verdicts are based upon jury conclusions that are logically and legally at odds. If the findings by the jury cut both ways, guilty on one charge, not guilty on another but neither can be explained, the verdicts must be erased and a new trial ordered on both.
The state’s Supreme Court has explained that such verdicts exist when “there is no way to decipher what factual findings or determinations the verdicts represent.” As such, that court has said, those verdicts are “valueless” and “repugnant.” It treats them like a mistrial, in which a jury is unable to reach a verdict at all. Just as a mistrial in a case does not block a new trial, neither does such a “valueless” judgment by the jury, according to the Georgia court.
Facts of this case: In 2012, Damian Cornell McElrath of Marietta, GA, placed a 911 call to police, telling them he had just killed his mother. An adopted youth, he was 18 years old at the time and had had frequent mental problems. He told police that she had been poisoning his food for years, and had threatened to kill him.
When police arrived at the home, they discovered that the mother, Diane McElrath, had been stabbed more than 50 times with a kitchen knife. Her son had cleaned up the crime scene before calling police.
He was put on trial five years later, in December 2017, charged with malice murder, felony murder and aggravated assault. He pleaded not guilty by reason of insanity. The jury found Damian not guilty by reason of insanity on the malice murder count and guilty but mentally ill on the other murder charge and the assault charge.
He was ordered sent to a mental health facility and, after discharge from there, to prison. His lawyer appealed to the Georgia Supreme Court, which found that the jury’s opposing verdicts could not stand, and ordered a new trial on all counts.
Before the new trial, Damian’s lawyer claimed that a new prosecution on the malice murder charge violated his constitutional right against double jeopardy. The trial judge rejected the point, and the case was again appealed.
In its second decision, the Georgia Supreme Court rejected the double jeopardy claim, concluding that the two verdicts in the first trial were “valueless” and thus they did not amount to a proceeding that put him in jeopardy. It said that the new trial could proceed on both charges.
Damian’s appeal then went to the U.S. Supreme Court, arguing that the unusual verdict arrangement in Georgia put him twice in jeopardy. His appeal has broad support from legal defense organizations. A group of 15 states lined up against him, arguing that the states should be allowed wide discretion to devise their own methods of carrying out criminal trials.
The question before the Court: If a jury reaches verdicts that are not merely inconsistent with each other, but their difference cannot be explained logically or legally, does that mean there was no real trial and thus there is no constitutional bar to a new trial?
Significance: While the case does rest at its foundation on the rather peculiar Georgia concept of so-called “repugnant” verdicts, it does appear to offer the Justices an opportunity to further clarify the concept of “jeopardy.”
Under normal legal understandings, an accused person is understood to be put “in jeopardy” in a constitutional sense the moment a jury is assembled and the trial starts. But the Georgia courts’ two rulings suggest that there may be an exception to that when a jury comes up with verdicts that simply cannot be explained.
That could be an open invitation to states to experiment with new ways for judges to interpret verdicts that seem to go awry, legally and factually.
Tuesday’s second hearing: Wilkinson v. Attorney General Merrick Garland
Legal background: Federal immigration law generally bars non-citizens from remaining in the U.S. if they entered the country illegally or if they had a visa to enter but then over-stayed. The law, however, gives the U.S. Attorney General the authority to cancel deportation in cases of “exceptional and extremely unusual hardship” for a family member who is a U.S. citizen or is legally allowed to remain. To qualify, the non-citizen must have been in the U.S. at least ten years and to have stayed out of trouble. The Attorney General has passed that authority down to immigration judges within the Justice Department.
Decisions cancelling deportation under this provision formerly could be challenged in appeals to federal courts. However, in 1996 Congress took away the courts’ power to review those decisions. In 2005, Congress changed its mind somewhat, and allowed courts the authority to examine constitutional issues or questions of law that arise in a case.
Facts of this case: Facing deportation in this case is a non-citizen, Situ Kamu Wilkinson, who has lived in the U.S. for 20 years. A native of Trinidad and Tobago, he fled to this country in 2003 on a tourist visa, after police in his homeland had beaten and robbed him, and threatened to kill him if he complained of the abuse.
He has been living in Pennsylvania and he has provided financial support for a female partner and their son, now ten years old and afflicted with health problems. The boy and his mother are living with her mother in New Jersey.
In 2019, while Wilkinson was working on another person’s house, police arrived for reasons not now clear; they found drugs in the house, which Wilkinson insisted were not his. He was detained, and immigration officials began deportation proceedings over his violation of his visa and the drugs incident. Drug charges, however, were withdrawn.
He sought to remain under the hardship provision. Immigration officials rejected the claim, saying there was insufficient proof under the facts to meet the legal requirements on hardship. Wilkinson tried to appeal to a federal appeals court, which dismissed the case, concluding that it had no authority under the 1996 and 2005 versions of immigration law. Wilkinson then turned to the Supreme Court.
The question before the Court: When do federal courts have the power to review immigration officials’ refusal to allow a non-citizen to remain in the country to avoid a hardship to the family?
Significance: This case is a straightforward test of what Congress meant in allowing some court review of hardship exceptions to deportation of non-citizens. It appears to have no wider significance beyond that field.
The Court will hear these cases back-to-back today beginning at 10 a.m., with each case scheduled for one hour. The audio (but not the video) will be broadcast “live” on the Court’s homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
