Legal Docket: Guilty and innocent for the same crime?

NICK EICHER, HOST: It’s The World and Everything in It for this 4th day of December, 2023. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

On Friday, retired Supreme Court Justice Sandra Day O’Connor died. We have a feature focus on Justice O’Connor in just a few minutes and I’ll share a quick personal reflection, but first it’s time for Legal Docket.

For now, two oral arguments the U.S. Supreme Court heard late last month.

EICHER: First, McElrath v Georgia, a case about double jeopardy. That’s in the Fifth Amendment to the US Constitution. It prohibits anyone from being prosecuted twice for the same crime. There’s a caveat; That protection attaches only for prosecutions by the same sovereign. So that means federal and state governments can prosecute a defendant separately for the same conduct without violating the double jeopardy rule.

REICHARD: In this case, the legal proceedings are all in Georgia, the same sovereign. The legal question? What is a final verdict for purposes of double jeopardy?

Here are the facts. Eleven years ago, 18-year-old Damian McElrath stabbed to death his adoptive mother. A jury found him not guilty by reason of insanity on the most serious murder charge, called malice murder in Georgia.

The jury also found him guilty but mentally ill on a lesser-level murder charge called felony murder.

The difference between the two has to do with the mental state of the accused. Insane on one count, mentally ill on the other. For the same crime.

EICHER: The state courts saw this as incoherent. How can a person be both guilty and not guilty of the same alleged murder? One or the other, yes. But not both.

It may be the jury wanted to convict on the lesser offense. Regardless, the lower courts called the inconsistent verdicts “repugnant” and vacated both, authorizing a retrial.

McElrath’s lawyer Richard Simpson argued this is plain old double jeopardy:

SIMPSON: The most fundamental principle of double jeopardy law, going back hundreds of years before even the adoption of the Constitution, is that if a jury in a court with jurisdiction returns a verdict of acquittal, that verdict is final. The defendant may not be subject to a second prosecution ever. No questions. End of discussion.

A long line of Supreme Court precedent upholds that idea, too. Therefore, he argued, Georgia can’t come after McElrath again for this crime.

REICHARD: On the other side arguing a retrial is proper, Georgia’s Solicitor General, Stephen Petrany.

He argued that states have the right to determine their own criminal procedures. Inconsistent verdicts aren’t really verdicts anyway. They’re just midway steps in the long trial process.

PETRANY: Petitioner Damian McElrath assumes again and again that there was a verdict in this case, but that's simply not true according to state law as determined by Georgia's highest court. Under Georgia's narrow, sensible repugnancy rule, a jury cannot issue special affirmative findings that facially contradict each other. These incoherent, contradictory statements do not constitute a verdict in the first place. They don't resolve the factual inquiry.

Going on to say it’s true other states have different rules. But Georgia’s repugnancy rule is a reasonable way to respond to a rare circumstance and make sure the fact of McElrath’s sanity or insanity is determined at trial.

That didn’t seem to carry the day, though.

Here’s Justice Elena Kagan addressing Petrany for Georgia:

JUSTICE KAGAN: I mean, when a jury comes back with inconsistent verdicts, we don’t really know what happened. I mean, one possibility of what happened is the jury made a humdinger of a mistake. Another possibility of what happened is that the jury made no mistake at all, but instead decided to compromise something out or decided to show leniency of a kind that it is within the right of a jury to show.

EICHER: Petrany pushed back. Just because you don’t know what a jury might be trying to do doesn’t mean we just assume it’s a good thing.

Justice Neil Gorsuch had a rejoinder to that:

JUSTICE GORSUCH: Well, the founders certainly thought it was important. And, you know, go back to the trial of John Zenger, he was guilty as heck and yet the jury acquitted him and that was considered one of the great moments in American history leading up to the adoption of -- of the Seventh Amendment. The minute you admit that it could be a product of leniency or compromise, we're done, aren't we?

PETRANY: Well, Your Honor–

GORSUCH: Because then -- then we have to respect that verdict regardless of whether we think it's rational or what we would do. It's supposed to be a check on -- on us judges and you prosecutors.

John Peter Zenger was a German printer and journalist in New York City in the 18th century. The royal governor of New York accused him of libel. At that time, English common law did not allow truth as a defense for libel. In that sense, Zenger was guilty. But a jury acquitted Zenger and established the principle that truthful information cannot be libelous.

Try as he might, Petrany’s attempt to distinguish the verdicts so that a retrial could be had, didn’t seem to be working.

For now, McElrath remains in Cobb County Jail. His lawyers say what he needs is mental health treatment, not punishment.

REICHARD: Alright, on to the second and final argument today, in a case called Wilkinson versus Garland.

Situ Wilkinson came to the U.S. from Trinidad on a tourist visa. He stayed longer than permitted, and was eventually arrested for dealing in crack cocaine. That arrest triggered deportation proceedings.

Wilkinson sought to stop that, citing hardship on his U-S born son and the threat to his own life if he returned to Trinidad.

EICHER: The immigration judge and appeals board rejected those claims. So did the US Court of Appeals for the Third Circuit, reasoning it had no authority to address a discretionary decision of the courts below.

This, even as Wilkinson met the criteria for a hardship waiver.

REICHARD: So now the U.S. Supreme Court must decide: can federal courts review an immigration judge’s decision that a noncitizen isn’t eligible for a “hardship exception?”

Typically, courts are limited in reviewing agency decisions.

But Wilkinson’s lawyer says not in his client’s situation. Here’s lawyer Jaime Santos mentioning the INA, the Immigration and Nationality Act.

SANTOS: The INA limits review of denials of discretionary relief, but it permits review of questions of law. And as this Court held in Guerrero-Lasprilla, the statutory term “questions of law" includes the application of legal standards to settled facts. Even the Board agrees that exceptional and extremely unusual hardship is a legal standard.

Justice Brett Kavanaugh pointed to court precedent:

JUSTICE KAVANAUGH: Well, this is now Groundhog Day from Guerrero because we talked about the history of St. Cyr and how the decision there recognized and the subsequent congressional history recognized that applications of law to fact would be considered questions of law.

EICHER: Justice Samuel Alito seemed more convinced by the government’s argument, as any judgment involves putting law to facts. As such, every agency decision is reviewable by a court.

JUSTICE ALITO: It swallows up the exception completely.

Justice Sonia Sotomayor took exception to that.

JUTICE SOTOMAYOR: We permit review not for the majority of cases. We permit review for the exceptions.

Justice Alito wasn’t letting it go. Suppose you asked someone who’s not a lawyer whether an alien did something within a certain period of time. Did that alien exercise due diligence?

ALITO: I mean, the ordinary person who's not a lawyer would say, I can't answer that question because it's a legal question. It has to do with legal procedures. But, if you ask an ordinary person, you set out a certain set of facts. So let's say I'm complaining about my workplace, it's cold, it's set at 63 degrees, there isn't any coffee machine, the boss is unfriendly, all my coworkers are obnoxious, and you say am I experiencing (Laughter.) No, I'm not – (Laughter.)

SANTOS: Okay. (Laughter.)

ALITO: Any resemblance to any living character is purely -- purely accidental. (Laughter.) Is that unusual or except -- am I suffering unusual and exceptional hardship? An ordinary person could answer that question and they could say, oh, come on, you know, that's work, suck it up, right? So is that a -- is -- is that a difference between these two situations?

SANTOS: Well, first, that this is still a statutory term that Congress chose, right? So this is the standard that Congress set. So I think you'd still have to determine what Congress meant when it -- when it used these specific terms. So that's still --

ALITO: It meant what the terms mean. These are ordinary terms. You can look them up in the dictionary.

SANTOS: And that is --

ALITO: People don't even need to look them up in the dictionary.

REICHARD: Still, I think Justice Elena Kagan expressed what the majority of justices were thinking. Listen to her references to precedent in these comments to Colleen Sinzdak, Assistant to the Solicitor General, for the United States.

KAGAN: We said, you know what, we don't really care if it's primarily factual. We don’t really care if it involves a lot of judgment calls. We don't really care if you have to really kind of search for the legal standard in the inquiry. As long as there is that legal standard, and as long as all the fact finding that you do and all the fact weighing that you do eventually has to satisfy that legal standard, and the question is whether it does, it's a mixed question and it's reviewable. That's how I read that decision. You're just, you know, basically saying you don't like it.

Yikes! No lawyer wants to hear that. I think a majority of justices will expand the scope of judicial review in deportation cases.

And that’s this week’s Legal Docket.

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