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The Supreme Court has stated that the 鈥渕ost fundamental rule in the history of double jeopardy jurisprudence鈥� is that acquittals are in-violate, no matter the reason behind them. As a result, no judge can overturn an acquittal, even if the acquittal is based on bias or mistake. And no prosecutor can re-try a defendant on the acquitted charge.

But in this case, the Georgia Supreme Court vacated an acquittal, as well as two convictions arising from the same trial, on the ground that the verdicts were inconsistent, or in its words, 鈥渞epugnant.鈥� It therefore treated them as 鈥渧alueless,鈥� and vacated them all. As a result, Mr. McElrath faces re-trial on a charge for which he was acquitted.

The ACLU, the ACLU of Georgia, and the National Association of Criminal Defense Lawyers filed an amicus brief in support of Mr. McElrath. We argue that the bright-line rule barring judges from reviewing and reversing acquittals exists to protect the jury鈥檚 structural role in the criminal system as a critical safeguard for defendants. The jury stands between the accused and the State, preventing judges or prosecutors from wielding the criminal sanction unless a jury of the accused鈥檚 peers agrees. The jury checks judges and prosecutors through its acquittal power, and out of respect for the jury鈥檚 sovereignty and the individual鈥檚 right to a jury trial, juries have 鈥渦nreviewable power鈥� to acquit, 鈥渆ven for impermissible reasons.鈥� We argue that creating an exception for verdicts that a reviewing court deems 鈥渋nconsistent鈥� or 鈥渞epugnant鈥� would contravene the structural role assigned to the jury in our legal system, and invite judges to reverse acquittals with which they disagree.