Cobb County murder suspect heading to U.S. Supreme Court over questioned verdict

A Cobb County man is taking his case to the U.S. Supreme Court after a jury acquitted him of one crime and convicted him of another, even though both stem from the same facts and evidence.

According to the SCOTUS docket, the conviction of Damian McElrath for the murder of his mother was held as “repugnant” by the Georgia Supreme Court, stating the divergent verdicts could not be logically reconciled.

Now, McElrath’s case is heading to the nation’s highest court to resolve questions of a potential double jeopardy violation.

Double jeopardy is a legal mechanism, created by the U.S. Constitution’s 5th Amendment, that prevents a second prosecution for a crime you’ve been found innocent of during a trial.

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In 2012, McElrath reportedly called 911 after claiming to have stabbed his mother Diane at their home on Ashley Drive in Cobb County.

When police arrived, they found McElrath outside and arrested him immediately. Officers found his mother’s body inside the house.

McElrath was found guilty of felony murder but “mentally ill” in 2017, while simultaneously being found not guilty of malice murder by reason of insanity.


The verdicts were accepted but appealed by McElrath’s attorneys. During the appeal, the state Supreme Court said the verdicts were repugnant, vacated them and sent it back to a lower court for retrial.

McElrath filed for what’s called a plea in bar, according to the Georgia Supreme Court, arguing retrial could not be possible on the grounds of double jeopardy.

The state’s justices rejected the plea and affirmed the need for retrial.

However, McElrath appealed the case higher and is now on its way to the U.S. Supreme Court for consideration.

Georgia Attorney General Chris Carr and other state prosecutors have submitted a petition to SCOTUS asking them to deny McElrath’s request for consideration.

The case was put up for argument Tuesday. An opinion from the court is still pending.

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