Transcripts For CSPAN3 KCC 20240705

Jeopar l going back hundreds of years is the adoption the constitution is the jury with jurisdiction returns a verdict of acquittal buthat verdict is final and it may not be subjected to a second prosecution ever. No questns in the discussion. This case is the paradigm in which that example applies for that principle applies. He went to trial before a jury and george. The jury found him not guilty of malice murder by reason of insanity. No one h questioned that jury deliberated in aordance with the georgia ocess and returned a verdict in the georgia processes the state and t defendant affirmatively indicated they had no objection to the forum of the verdict in the court accepted it and entered judgment. That is the end of it as far as its concerned that the state contends that mr. Mcelrath can subjected to a second trial because the acquittal is a conviction on sepate in this court analysis. He was found guilty mentally ill as to felony murder and guiltily of aggravated assau. Is verdict exception to the double jeopardy principle does not stand and cannot withstand analysis. The state makes two arguments the first is at the discourse inconsistent verdict does not apply because theres a difference between a version and annconsistent version in a particular the verdict theres no uertainty as to what mr. Elrath did. The uncertainty is the same but more importantly it does not matter becse an acquittal is final regardless and it does not matter why the jury reached that conclusion, the acquittal is final and conclusive. This is how no, i mean georgia. Georgia before this case and the georgia Supreme Courts the leading example. The quittal will stand and the convicon would be vacated. In this case the georg Supreme Court for the first time hd both the acquittal and the convti should be vacated. If i understand the opinion below correctlyhe georgia Supreme Court says correctly cause of the repugnae he there was no verdict. That is what i am trying to understand. With respect to your motion earlier, was the argument that the verdict was void because it was repugnant or simply that i should be vacated because it was repugnant. The conviction should be vacated. The conviction should be vacated because they wer repugnant. Neither of them raisedny question. We argue to the judge supreme cot. The acquittal was in question. As a general matter, you agree that it is a matter of state law when jeopardy rminates . That is a basic qstion whether the defendant is being putn jeopardy more than once. You have to have it terminated before you can get to the question. As general matter, is that a estion of state law . It is subject to this court making the ultimate termination as to what constitutes an acquittal. It is hd that jeffrey terminates when there isn acquittal. Within broad ranges the state has discretion, due process, spdyrial and et cetera t t procedures. One of the procedures is the verdictorm has to be signed by the jury foreman. Th jy reaches a vdict 12 zero that the defendant is t guilty. The jury fem, you know, as he is presenting the verdict or whatever he did, you know, i have second thoughts, i am not going to sign it. It is a matr of state law. Does that terminate the first jeopardy or not . The signing of the verdicts a proceduralequirement in the state is freeo enforce that requirement. The difference here and the georgia supremeou acknowledged the spirit there was not one verdict, tre were verdts no one questioned there were verdicts. To determine that verdi was vo, the acquittal, the georgia Supreme Court lookedt the acquittal, compared that to afterthefact and therefore declared them to be void. You would say the question before us is whether georgia as matter of state law can say that the jeopardy has not terminated until, for example, they determine that theerdicts are not repugnant. They dw extinction on what we already have establish law. What if they have a sysm where oncehe jury has reached a verdic i is not effective for a week to give the jurors a chce to ponder it a little bit mo. Four whatever reason. When would jeopay terminate in that case. It would focus on due process by which the verdict needed to be returned. What the state did, is that something they cano . The jury has determined not guilty. Under state law, that is not effective. Well, no. Wants the verdictas been returned this has been included going back 1896. Ce a verdict has been returned lets say georgia says that is n t verdict. That is a preliminary dermination. Our preliminar dermination is unanou not guilty. Under georgia law that is a preliminary determination. It becomes a verdict after one week. The due process question as to whether that procedure a muster for the procedural aspects the state has broad discreon what they cannot do is based on the content. Is not a matter of federal law. The matter of the chief justices rst question. A matter of state law or federal law. Looking at double jeopardy and prior cases, i thinking about bluford versus arkansas,e evaluate i as a matter of federal law. This court deterne what constitutes an acquittal. Bluford is an example of a case in which the juryailed to reach a verdict. No matter what lel the state puts o it, the state can have all kds of procedures and they can s, well,e will say that this particular result i not ancqttal. We held a functional analysis and that as a matter of federal law we look athat happened and determine what count exactly, justice jackson. This supreme crt had characterized the granting as not an acquial. Similarly in evans, michigan had held that the ruling by the cot in a case in which the judg mtakenly lost it was not in acquittal the definition of acquittal just last termn the smith case, this court defined what in acquittal is and that is a determination, a resolution of criminal culpability. Im sorry. To pick up on that, mr. Simpson, it is my understanding that there are jurisdictions in which eule is that if a jury returns an inconsistent verdict or some subcategory of inconsistent verdict, the proper procedure for the trial judge is to instruct the jury you cannot do that. Your verdicts are irreconcilable is tt your understanding, too . I am not aware of atate that does that. You dont need to reach that here. I stand ready to be corrected if i am wrong, that is the re in missouri, kansas, azona. Lets just assume thatha does not violate double jeopardy. Our decision here would have implicationseyd georgia. This if that is the rule, then woul i be a violation of double jeopardy . For this tocc. The judge violates, t trial judge violates state law. And accepts the conviction on on cnt, acquittal on the other count. One of the bodies knows you violate state appeal. We tried both counts. What is the verdict . Would you draw a distinction between the two cases . Missou does follow that process. The difference would be once the verdict has beenccepted then going up on appeal it could not be cllged for much the same reason in the evidence case. The judge quitexplicitly based his decision on an element of the crime that did not exist. This court nonetheless held that finding once that was rejected. Ready and significant. If we come out of this case and it turns out that when the jury foreman is given to the judge, the judge can look at it and say , no, i dont think so. That looks inconsistent. Whatever word you want to put on it. Go back and try again. In the next case the judge will just go and do that. This will be a one case only sort of ruling. Justice, that is not our position. Our position that once the jury returns the verdict, the double jeopardy protection isriggered i wanted to make the point that there is a distinction. At is not what happened here. Once the jury has returned the verdict and there is an acquittal, that is the end of it the judge may not send it back. At does not have to be decided in this case. You argue that the state cannot take what is really in acquittal and put som other label on it. Lori from federal court saying that ata cannot have the procedure for missouri. Im not aware of the case on that issue. That is my otheroi of concern about this case. You seem to agree that at least yo dont contest the proposition that if the jur returns inconsistent verdicts of a repugnant verdict on the same count, the double jeopardy clau ds not prohit the judge from saying, no you cannot do that, go back a deliberate tomorro. Is that correct its not violation of double jeopardy . In your hypothetical inconsistent verdicts one cannot ascertain whether there has been an acquittal or a convection. It is been going back tohe earlier queio going back to 1896. This cou did hold that the return of the verdict terminad jeopardy notwithstanding that the indictment was invalid ultimately. I think that is close. What principles distinguishes , one more question , what principle distinguishes on one count from the situation where the are logically irreconcilable jury wreck and say elation. Maybe there is a principle that explains that. The difrence is that double jeopardy is aays a defense by defense basi. Was there a verdict on the particular offense once the jury returns, does not show that tre is been a verdict. You cannot tell what missouri determines. Its inappropriate. What the court cannot do is look at theontent of the burden and say we will compare the jurys findings with its findings on the separate offense. Based on an alysis of the content. Is there a logical principle that explains that . In terms of Justice Kavanaugh . One count. Yes. It was brought in this effort. This court held that we have a multi count indictment. It is different crime. Each town is a different crime. I had one of those cases on th 10th circuit. Guilty. Not guilty. Yes. Iont know what to do. You have not returned a verdict to acquittal. You have also returned a verdict of glt. Go back and figure this out. That seems to be a world away from a verdict on a count. This individual is not guilty in the eyes of its peers. Exactly. Th opinion he wrote in the shipley case did not reachhe double jeopardy. I took care not to come close this. [laughter] you did s it a few times. How can a defendant be both sane and insane . It cannot be. It is the principle that we have juries that their decisionmakg in other words, the jury can nullify a particular decision. Dt go back to try to figure out rescto inconsistent across different counts. Sort of a time and memorial principle with the respected jury deliberations. S. That is exactlyhy we propose this looking at the content. What the state cannot do a what it is seeking to do here is look at the contents of the jury s findings on two different crimes and say we will compare thefterthefact and throw them out. How is it diffent from the question to say the defendants both guilty and not guilty then in the next case the jury says the defendant is both sane and not saying. The difference is the rdicts in the second example are on separateffenses. It is noifferent than one of the cases this court has dealt with. They come back a say guilty and not guilty. You dont kw what the jury did you seem to have accepted something that i am doubtfu about. You cannot b insane on one count and notnsane on night another. Murder has dferent mens rea than assault. Rrect . And, so, you can be not guilty by reason of insanity with respect to a malice murder which youd have to have mental capacity enough t form that intent. That is different than the assault intent. That only requires you to injure is man could have hadha he was dusional about the reasons h was causing pain, but he knewe was causing pain. The elements of the chaes are different. Under georgia procedure the stead to prove the elements of each o those crimes. They are not nesrily. On these facts, weelve that there are in fact inconsistent repugnant verdicts. Insanity is an affirmative defense in georgia. They have to prove it by preponderance of the evidence. Here there was one single episode. On different factsnd in fact the georgia Supreme Court talkg about a different case in which they could be saying and saying it at dferent times i believe that was shooting one person and then going down the hall for another person. Because the issue is the affirmative defense, it is exactly the same as to the three charges. The point is the jury can nullify. We dont know why they did what they did. The justice uncertainty is the same. We dont know why they found insane on one count and not insane on the other. Just like we don know why they convicted with possession o intent to sell. Justice jackson, your points exactly right. You cannot go back and question that. Once the jury comes back and says not guilty, that is the end of it. What are the limits on that. The state can setome procedural parameters. I wish there was a rule that says if deliberations have gone on for more than two days, automatically it is a mistrial. At the very beginning, or lete make it hours so it works better and then atix hours and 10 minutes the jury returns the verdict of acquittal. Does that count as a mistrial . What tourt has held is in the mistrial context dash no, understand the role about mistrial. The rule says, six hrs. The jury does ce back and return a verdict of acquittal. It is just that it violates ts procedural requirement. What side of the line does that turn on . Itoes not count if it is liberative for more than six hours. The defendant would like to have a decision by the jury that is impaneled. Is a six hour. Triggering a mistrial so unreasonable vlang double jeopardy. I would tnkhat it would. At would be the issue. N a state a privatehe defendant of his right, her gh to have a decision by the paicar jury that was impaneled. Wha kd of procedural requirements can a state impose. Subject to due pcess. Identiary, if you look at the amicus brief year, we dont question these rules. Esll of the jurors sign the fo or just the foreperson. Do you hold the jury . Alof those procedural points. The test that we can think captures it is looking at the content. That is aedne that the state crossed year. The georgia supreme cou acknowledged it had to verdicts in front of it. Question. Its a fiction. We have to verdicts. We will look at the content. Compe them. Based on that comparison refused to honor a jury verdict. We think its a cle violation of double jeopardy. Thank you. Justice thomas. Justice alito. Thank you, counsel. Thank you. General. Mr. Chief justice, ai please the court. Assuming again and againhat there was a verdict in this case that is absolutely not true according to state law termined by the highest court. The narrow sensible repugnant the role, the jury cant issue specialffirmative findings that contradict each other. It is incoherent contradictory statements do not conitute a verdict in the first place. They dont involve factual inquiries. In practicehey cannot declare a man both saying at the exact time wh respect to the exact same ask that the jury reported to do here. That is why the georgia Supreme Court held their verdict. No acquittal and no convictions. They did not challenge that underlying support Supreme Court decision which of course benefited him. He does not explain why we should ignore it now. Even though state law tells them that there was not. To the contraryou have to look to the underlying state law to determine whether there was judicial order to terminate jeopardy in the first place. Here, because there is no verdict, the double jeopard clause was supied. Other states can have different rules about this. But i think that jordan does repugnant the rule if anything is a most sensible way responding to a very rare set of circumstances. A proto dendant rule that shows the pties obtain an actual determination of the facts. The facts was not determine tier. Therefore he can be retried. I welcome the courts questns if he onl had one charge here, would there bn a verdict i suppose it depends onha the jury comes back with. In that case you would have a verdict. This constitutes a verdict if er was only one. Why does it not constitute a verdict . Georgia does not apply to the legal timing different tax. You have a verdict. You say if there is only malice murder that we are concerned about thaou would have a verdict tier. If that was all in the case, if that washe only thing going on every free thing in the case is ect the same there is ly one charge with this constitute a verdict. That would be a verdict. Yes. The proem is, up to that point, and until you avoid the verdict you have what constitutes a verdict. It is not procedurally defective you have a verdict that is subsequently voidedecse it is inconsistent with the separate charge. I do not kw how you get around the notion. That requires y to look at the substance. I dont know how you get around the notion that before you can do that there is actually a verdict. To be clear, there was never a verdict. The jury issd something multaneously. It said at the same time. Speaking outside of both of his mouth. We explained in our brief between a jury coming back and facing the general verdict of not guilty which the juryas the authority to do tt for any reason or no reason at all. Plead not guilty on bot counts . Bically it does not go into any special findings. Henly special finding here had to deal with whether it w excusable because of Mental Illness oecause of insanity. Correct . A special finding with respect to the one charged that changes any o t facts of the acquitl. Well, no. Th special finding was that he was insane. He would have been guilty. That was not the question that w posed to the jury. I understand ifhe jury was asked is this person insane in their answer was simply yes in on situation in respect to anhe account. But the jury was asked about the elements of a particular crime. Their verdict was not guilty by reason of insanity. Right . Well, yes, your hor. Not guilty by definition means you did commit the cri and the only reason that weav said you are not guilty is bause you are in fact insane. Ha do we do what the not guil pt of it . A special verdictorm just as ur form. The judge did in ft instruct them that they could s not guilty. Its not like george as how to force the jury into giving off its general power not guilty f any reason. Part of the reasonha we think this case is different, the seemingly facially inconsistent verdict cases in this case the jury doesnt do that ty made special determination. Just looking through the brief spirit i did notee another state that allows an acquittal to be rendered invalid based on its repugnant see with other guilty verdicts. Is that correct . As far as im aware there is no state that is address thi particular issue. It is not ordinary for jury to issue special findings. As far as i know. No issue atll. Should that tell us something . The ultimate in this countrys history. When you hav respected qutals, without looking into their substance, without looking into how they fit with other counts, they said a jury is a check on judges. A cck on prosecutors. A check on overreach. We do n ever talk about whether they make sense to us. Y be products of compromise. They may be inconsistent with verdicts on other counts. Do not question them. This is the first time this issue has arisen here. Should that tell us something . I dont tnk so, youron. It is not clear that the rule is different. Just that other state suld have addressed this issue. In aot of states you may not have had the same sort of defenses or states o mind that would so easily come into conflict. I think that this is a rare circumstance. To get to your point, absolutely a general verdict of acquittal is one of the most sacrosanct things in the constitution of law. We are not trying to undermine that it all. I think its impornt to point out that that is not simply what happen tier. That raises the qstion about missouris brief, for example. Their concern seems t be within a single count that se states do that. The case that i had where you just could not game what the jurys verdict was on account and send the jury back to figure it out. None of that is at stake here. Right . I think the principle of the maer arguably extends their. You have to extend it. I think that the logics the same. No, the logic is not theame i just have to rejectha the logic for 230 years is a verdict on account sacrosanct. Dealing wit not tooous, one cot and we cannot tell what the jur did. The judge doesot know what to do. He does not have h instructions from the jy. I want to be clear abouthe 230 years. Every time the court is talked about this, ery time theyve made rulings about this they are always talking about a general rule of acquittal. Not a circumstance or special findings that did not have the sa start of status. W ds that make a difference . Now you are telling usn acquittal is not an acquittal it is a special verdictorm . It is not an acquittal if t jury did not in fact resolvehe actual question that supposedly underlines out acquittal and in this particular case, we know because they said to cnc ntdictory things. They stood by this verdict. We know that there were no objections by georgia prosecutors. I think that we also kno that the attorney genal said that that in acquittal is an acquittal. Well, what the brief below said, it was a footnote is that where there is an acquittal, double jeopardy applies. We are not contein that it all. I thought the attorney general says this rry on the murder count would, of crse, violate double jeopardy. On the basis there was an acquittal. That brief did not really get in tt issue. The pmary issue in the case did not reject that particular provision. I also say going backo did georgia have a problem a the time, well, no, georgia wanted everything to stay how it was. From the prosecutions perspective,tot what it wanted. Right. Ere was, in fact, to the extent that youccept these as verdicts, you dont accept georges repugnant see rule, and prison for lif. ,he only one who had an incentive to challenges was him and he did. The defendant to challenge the guilty verdicts are you saying, maybe you could get rid of the repugnance you rule lowing him to say that the guiltyul are repugnant. I do not see how wks the other way around. S theory was that georgia ruled that ashe georgia Supreme Court, the highest arbiter says there is no verct at all. That ishe theory behind this rule. Before our inconsistency cases, there may be a lawyer standing where you are sing that our state has decided when a jury comes back with two inconsistent verdicts, we will say thathere is no verdict at all. Because, after all how can there be a verdict i there is an inconsistency. We rejected that out of hand and in numerous cases. You are saying there is a difference between that and this repugnant see situation. Gss i just do not understand what i is. Can you explain it to me a little bit more . All of those inconsistent verdictas assumes that there are verdicts to begin with. But, again a lawyer could have come up here and set as a matter of state law, we wl just say that there is not a verdict en they suppose it verdict isncsistent with anher one. So, the state cld have made the same exact argument surely, we decided again that argument. When we decided those cases. My point was simply that no one was making that argument. Somebody had been making that argument. I think the rso that you would have and ihi that the court has said this in smith last year and said elsewhere that there is Something Special about a general verct of not guilty. It sdhis in powell. It goes back hundreds of years. A ry authority to say not guilty even if we believe that hes in fact guilty as something that goes prioro the foundingnd beyond. The exact same thing, really. When a jury comes back with coistent verdicts, we dont rely know what happed. One possibility is the jury me a humdinger of a mistake. Anotrossibility is that jerry made no mistake at all but instead try to compromise Something Else or decided to sh liency of a kind within the right o a jury to show. And so to hear, the jy may have made a humding of a mistake in the way you are suggesting, but in addition, the jury mayave decided to compromise things out or show lenicy in that sense, we would be intruding into the jurys deliberations as much in your case as in the inconsistency ses if we adopted your role. Threason i do not think that that is true is when they sue a general verdict of not guilty, you dt know what the jury did and you cannot look into why. They toldou what they did. They said we found them both saying a insane. We are not hunting forom sort of internal thoughts of theury or Something Like that. We have in front of us two different thing tt the jury said about the same question. We found that both saying on one count and insane on another count. One led to a guilty verdict in the other lead to an acquittal because, lets imagine,e wanted toompromise. It is the exact same thing that you are asking us to look into which we have always said we ll not look int. I disagree because i think in the case of the general verdi of not guilty as this court has said many times over the years and even prefounding, there is Something Special about that thority. This court hasaid, a case that we cite, courts by the time of the founding could not force juries to find special findings, prisely because there was Something Special about this general verdict of not guilty. It allows the jury the space to say you are not guilty and we will not tell you why, but in this circumstance, although the jury had the authority to do that, were instructe to do that , they did not d that. They came and said we think he is sane and insane at the same time. The a fundamentally diffent issue from the jury. Deciding the same issue in two different ways. I think it is a bit legal fictitious saying they we deciding two issues. I kno at least the little bit legally fictitious because this Court Applies collateral rules to jury findings on a particular count. There is one fact that is being decided hehich is insanity at the time of the crime and the jury sd yes, and n. Just to give one emp on why i think the argument here is a tt bit formalistic, spose it is slightly different. Suppose they had an option for iland they had a different option for insity. They said guilty on all caps counts of insanity. Bu then on insanity they said yes and no. That is the same circumstance at we are in here. It is not fundamentally different. It is a jury not actually deciding whether or not they have com t a conclusion. Are you saying you can never have plainly inconsistt general verdicts . As a factual matter, yes. I actually think that that is true. You could never know. The jur may have said you are guilty of said, all the facts are there but we dont ce. You can never know what they did was factuly inconsistent. They may have said, yeah, you did it all but we will let you out on this particular count it is just a matter of logic. You can never know that two general verdicts are inconsistent with one another. That is why in our brief we briefed you with seemingly inconsistent. We could be deciding this on a nonfactual basis justice or sit point that even though w know they are inconsistent, so what. The point is that we sai a jury can issue inconsistent verdicts. Your argument seems toe, well, there is the distinction that the justice w asking you about in one situation we dont know wh is inconsistent and another situation, we do know. Okay. I mean, fine. So it isncsistent. Yoes that mean that the court gets to say y are able to do that, jury. You can retry this person or you have toet it up so he can be retried because that is n a valid thing for the jury to do. Two points, your honor. I am not speaking from nothing when iay the inconsistent verdicts cases are different because we dont know what the jury has done. We dont know whathe jury has done. The second reason is, i think the reason that a jy can issue a verdict of not guilty, a general verdictf not guilty in the state cannot say,h, that is not really a verdict because it may or may not be inconsistent with the other one becae the right to a jury trial in t fact as this court has explain on numerous occasions, a jury oy has that authority. A state cannot say you dont have theuthority to issue this general verdict of not guilty. I guess my question is why is it, and i thinkour argument is turning on this, that a state can tell the jury they have to beactually consistent. Even if i aept your distinction that you are drawing , that in this particular world we have evinc that there is a factual inconsistency with respect to the way they rendered their verdicts. Why is it okay for the state to say you cannot do that . Two points, your hon. As a matterf sensibility, a jury is supposed to find facts. If they tell you to oppite things it makes a lot of sense to say that the jury has not in fact found thi fact. It is the burden to identify why estate cannot do this. It is the strong presumption at the state has authority over its own criminal laws and procedures. Unless there isomhing in the fundamental right to a jury trial. I guess my question i, isnt this a matter of federal l as to whether or not what is happening here is an acquittal or not in auittal for the purpose ohe double jeopay clause. What estate order or finding or Something Likeha, the effects that it has for the purpose of double jeopardy is ulmaly a federal question. What the state order is or whether it exists in the first place, that is not necessarily a federal question. Smit vsus massachusetts. The court did hold that this mid trial judicialcqttal trickled the double jeopardy clause. It said if massachusetts had a rule that thisas not the final order. It could be revisited. They could come back to it ler what if the state had a rule that the foremanas two signed a verdict in blue ink. He signed it in black ink. And the judge, you kno its supposed to be blue ink,o back then one of the jurors changes their mind. Is that rule of state law sufficient to constitute a determinion o when jeopardy wasernated . Yeah. You think i is . I think if they hav a procedural rule that has to b complied with and by the time i was complied with the jury is not unanimous, i think the general presumption would be, yes, it is fine. A frivolous rule that should not impede the federal law determination . As this court has said many mes in many contexts whether it be ppey or last year in the electionsecse, at some point as a state rule, it is so outside the bounds of sort of normal reasonable legislationr adjudication, then you may just say you are evading some federal rights here. In the ppey context you cannot justedine Something Likehat. The presumption would be that the ste is allowed to do this unless there is some w and debating federal constitution. In the context ofour undersndg, the only state that has done ts in 230 years and maybe that is oside the normal understanding. Ath very least, that is the kind ofrgument that should be made here. Theeason i reject that is because,ir of all, i do not accept the notion that no other state has ever had a rule anything like this. It is true no other ste has actually come across facts exactly like thi. We point to examplesn our brief. The missouri amis brief has similar situations where they do in fac have rules tt appear least similar or analogous to r rule here. We also point to cases like the morgan artle before the founding. Cases where special verdicts se to be inconsistent even with generalerdicts. You hang a lot on the special ndings being different from a general verdict. Could the inconsistent or repugnant special findings be the proct of compromise or leniency . I think that this goes back to my answer to Justice Kagan earlier. We dont look behind what t jury did to understand their motivation. Ey issued special verdicts that are completely incomprehensible. Cldhey be the product, i guess, go backo my questio. Hathe jury did, i have no idea. I was not in the room. That is kind of theoint. It is theoretically possible that the jury wanted to do Something Like be lenient or do Something Like this. Compromise. I do not te the court mention of comomise in t inconsistent verdicts cases to be sort of blessing that is sothing that is good perjury to be doing, necessari. You cannot tell. They could have done a nber of things. The founders certainly thought it was important. Go back to t trial with john zenger. He was guilty as heck and yet th jury acquitted him. That was considered one of the grea ments in American History leading up to the option of the seventh amendment. So, i guess, just as kavanaugh, the minute that you admithat it could be the product of leniency or compromise, we are done. Arent we . Then we have to respect that verdict. Regardssf whether we think it is rational or what we would do. It is supposed to be aheck on us judges and you prosecutors. Pduct founding, there was a period of time when courts would try to sor of corral jurs by forcing them to issue special verdicts. What came out of this is the way we will make sure your right to a jury trial is always check on the legislative and whoever else is byakg sure you can always get aeneral verdict of t guilty. I guess if you had answered the question, the moment that you admit that that verdict could be a product of cprise or leniency, why isn that the end of the game . I dont think theig to a jury trial includes a rht for the jury to issue complety incomprehensible special findings to gam out what they are doing. Or are you saying tt the jury does not have aight to do leniency and compromise . No, your honor. They do. To be car when they issued this, you know, reported verdict it has consequce. The idea that the jury can sn him to a Mental Health hospital until he is determined not to be dangerous anymore as some version of leniency i think is getting way outside of the ordinary general verdict of not guilty. I am interested in your view. You seemo say this is different than inconsistent verdicts which cld be explained by a juror, compromise leniency or whatever. I dont know why the same thing does not apply to repugnant verdicts. I dont know that the journey jury would be sophisticated as a counsel tayn explaining a repugnant verdict. Backandforth, it may be mpromised. We will say guilty. He is not glty by reason of insanity. This group is fine with one, that group is fine with another i dont know if they thrashed throughhe law whether they would have to be reconcilable or not. I think the general verdict is dferent because ofeniency i doot think that a state is powerless. No, youre not allowed to compromi by coming to a completely incomprehensible conclusion. I do think they are prohibited from issuing a general verdict of not guilty because o the juries historic function on the executive. I think theyad the authority to do that. They had t power to do that and they cse not to do that. They issued special findings were nobody knows the motivation of the jury for tha what we know is what they actually did you keep talking about general and special vdis and having tried so many cases. I thinkf special verdicts as verdicts where you ask each element separately and then youom to the judge then decides whether that is guilty or not guilty. A general verdict is, are you guilty or not guilty, but, based the elements, based on whater special defenses is almost always you have is he guilty by reason of insanity or not . That is what they did here, right, on the male murder . Not guilty by the reason of insanity. They did not ask if h had malice. They just said,s he guilty by reason of insany or guilty but with Mental Illness, correct . They just cck off which of the elements. Yes. They h four options. Last yr we said an acquittal takes place when there is a mayor tree rated quote resolution correct or not of mer all of the factual elements of the crime charged. Here the jury was given malice murder,hat are the factual elements is the mental state. Guilty by reason of insanity or t, they said not. I dont know how this fits the definition of what he and acquittal is. You want to callt a general verdict. All they are looking at is what the jury did. And the jury sai not guilty by reason of insanity. You told Justice Thomas that jeopardy attacd. I sti do notndstand how you unattached it simply because er is a second charge with a potential inconsistency that you now admit couldave been by reason of jury compromise. Briefly, counsel. I do not think states are prohibited from trying to avoid comprehensible compromises. I think that it is just leniency that they have to leave in there as far as whether this is a special verdict or n the georgia Supreme Court understood it that way. It was the basis of his argument all the way along. The big difference, ultimately is that the jury aays has the authority to say not guilty. We dt want you to be guilty ofhis crime. I dont think theres any historical support for this. They must the authority to issue incomprehensible special findings. Thank you. Buttal . [laughter]m sorry. Excuse me. Anything further . [laughter] i do have some further. Sorry. [laughter] if you do not prevail in this case, iave two questions. One is, can georgia Going Forward solve the problem that you have identified by simply saying that the guilty verdict stands even if repugnant. If we were t lose this case, i think not only could they, but its the only logical thing for the florida Supreme Court to deal. The basis of this rule is tre are no verdicts at all. They accept the basic idea of these are seemingly inconsient , we will just accept them the way they are. We dont think these are verdicts at all. Basically, whether the next person and issues will just be stuck with the wife in prison conviction. Is that still possible in this case . Ye ihink so. The initial decision based on the idea that there was no verdict here. If this court were t vacate and remand and say there was a verdict here, then presumably the georgia Supreme Court would at least take serious of the argument. We reinstate the jgmt because United States just said there was a verdict. Thank you. Justice jackson. Thank you, counsel. Mr. Simpson, rebuttal. Juice thomas, you are exactly right. Under georgia law, each of these counts charge separaty, t verdict would be a final verdict under state law. It is only by comparing them that you get your repugnant c. It is true that he appled in is case. He had theight to do that under georgia law. Going to Justice Kavanaughs question, under powell, states may of t federal governmen does when their inconsient acquittals and conctions may allow the conviction to stand. They cnot touch theppeal. It is may, not must. Many throw out the conviction at that level. There was the grgia Supreme Court in the turner casen 2006 , i belie, dealt with repugnant verdicts and it d exactly that. It left the acquittal stand but it vacated throughout the conviction. There isothing about a decision by this court that would require georgia tohange its rule. In the context of turner, they reached exactly the result of allowing the acquittal to stand and throwin out the conviction. In terms of repugnant c, think the key point is the question has indicad, there really is not a principal differenc here. Acquitted of the mosterus charge, convicted of theesser charge. Could have been leniey, could have been compromised. We do not know why the jury reached that verdict. Finally, the reference to issue conclusion where there is a conviction and an acquittal. The issue is not mandatory. Georgia may, but is not required to unless there