The U.S. Supreme Court recently considered whether an inconsistent verdict bars a retrial of a criminal defendant. The Fifth Amendment's double jeopardy clause normally protects an acquitted defendant from another trial for substantially the same crime. A jury's inconsistent verdict, however, raises the question whether the defendant was actually acquitted. In McElrath v. Georgia, the Supreme Court will decide whether the double jeopardy clause bars retrial of a defendant who was both convicted and acquitted in an inconsistent or "repugnant" verdict.

Damian McElrath killed his mother. Georgia charged him with malice murder, felony murder and aggravated assault. At trial, McElrath defended all of the charges by arguing he was not guilty by reason of insanity. The jury returned a mixed verdict, finding him not guilty by reason of insanity on the malice murder charge, and guilty but mentally ill on the felony murder and aggravated assault charges. (The verdict of guilty but mentally ill is permitted in Georgia when a jury finds the defendant was mentally ill at the time of the crime, but the defendant failed to prove his insanity by a preponderance of the evidence.) Consequently, the jury found McElrath insane in its verdict for malice murder and sane-but-mentally-ill in its verdicts for felony murder and aggravated assault.