COBB COUNTY, Ga. — After two trials, a west Cobb County man's case will be argued in front of Georgia's Supreme Court 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 for double jeopardy.
Damien Cornell McElrath was found guilty of stabbing his adoptive mother Dianne McElrath to death when in 2012. Court documents cite the teen stabbed his guardian more than 50 times. He told officers he stabbed his mother because he believed she had been poisoning him for years, records show. He cleaned up the scene and was the person who called 911, police said, adding that he had been in and out of inpatient care in the months leading up to the brutal death of his mother.
His case went before prosecutors in a non-jury trial in 2014 where he was convicted of murder and aggravated assault. However, a judge later granted his legal team's motion for a new trial after concluding the then 18-year-old unknowingly waived his right to a jury trial.
McElrath's case went in front of a jury in 2017.
A Cobb County jury found McElrath guilty, but mentally ill, on charges of felony murder and aggravated assault. He was found not guilty of the malice murder of his mother by reason of insanity.
Attorneys for McElrath appealed his case to the state Supreme Court which vacated the verdicts as repugnant, finding the jury's decision on the charges inconsistent and contradictory. The high court remanded his case for a new trial.
Now McElrath's legal team is raising a double jeopardy challenge through a plea in bar, arguing he would be prosecuted again for charges in which a jury has already determined he was not criminally responsible, the appeal reads. A plea in bar cites reasons for why a trial cannot proceed.
However, the State argues that McElrath is seeking a reconsideration of the Supreme Court's 2020 decision to do a new trial. Prosecutors said that McElrath's double jeopardy challenge should instead have been presented through a motion for reconsideration filed with Georgia's Supreme Court, rather than argue that a trial cannot proceed. That will be up for the court to decide Tuesday.
