Damien McElrath challenges double jeopardy in Supreme Court

Damien Cornell McElrath was convicted in 2014 and 2017 of murdering his mother.

COBB COUNTY, Georgia — After two trials, the case of a western Cobb County man will be argued in Georgia Supreme Court on Tuesday following his conviction in the death of his mother. His legal team is appealing the court’s order to retry the case for a third time, raising concerns about double jeopardy.

Damien Cornell McElrath was found guilty of stabbing his adoptive mother Dianne McElrath to death in 2012. Court documents cite the teenager stabbed his guardian more than 50 times. He told officers he stabbed his mother because he believed she poisoned him for years, records show. He cleaned up the scene and was the one who called 911, police said, adding that he had been hospitalized and discharged in the months before his mother’s sudden death.

His case came before prosecutors in a non-jury trial in 2014, where he was found guilty of murder and aggravated assault. However, a judge later granted his legal team’s request for a new trial after finding the 18-year-old had unknowingly waived his right to a jury trial.

McElrath’s case went to a jury in 2017.

RELATED: Mental patient sentenced a second time for the stabbing death of his mother

A Cobb County jury found McElrath guilty, but mentally ill, of murder and aggravated assault. He was found not guilty of the malicious murder of his mother by reason of insanity.

McElrath’s attorneys appealed his case to the state Supreme Court which overturned the verdicts as repugnant, finding the jury’s decision on the charges inconsistent and contradictory. The High Court returned his case for a new trial.

Now, McElrath’s legal team is raising a double challenge through a guilty plea, arguing that he would be prosecuted again on charges for which a jury has already determined he was not criminally responsible, indicates the call. A guilty plea cites the reasons why a trial cannot take place.

However, the state argues that McElrath is seeking a review of the Supreme Court’s 2020 decision to hold a new trial. Prosecutors said McElrath’s challenge to dual criminality should have instead been brought through a motion for reconsideration filed with the Georgia Supreme Court, rather than arguing that a trial cannot proceed. . It will be up to the court to decide on Tuesday.

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