McElrath v. Georgia

Brief of Amici Curiae National Association of Criminal Defense Lawyers, American Civil Liberties Union, and American Civil Liberties Union of Georgia in Support of Petitioner

Brief filed: 09/05/2023


McElrath v. Georgia

United States Supreme Court; Case No. 22-721


The “most fundamental rule in the history of double jeopardy jurisprudence” is that acquittals are inviolate, no matter the reason behind them. No judge can overturn an acquittal. And no prosecutor can retry a defendant on the acquitted charge. But not, apparently, in Georgia. In this case, the Georgia Supreme Court vacated an acquittal, as well as two convictions, because it viewed the jury’s verdicts as inconsistent, and therefore “valueless.” As a result, Damian McElrath faces retrial on a charge for which he was acquitted. That judgment, however, was not the Georgia Supreme Court’s to make.


David D. Cole, American Civil Liberties Union Foundation, Washington, DC; Brandon Buskey, American Civil Liberties Union Foundation, New York, NY; Evelyn Danforth-Scott, American Civil Liberties Union Foundation, San Francisco, CA; Carmen Iguina Gonz├ílez, Kaplan Hecker & Fink LLP, Washington, DC; Sean Hecker, Kaplan Hecker & Fink LLP, New York, NY; David Oscar Markus, NACDL, Miami, FL

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