Does Justice Gorsuch’s praise for juries suggest he would be a vote against acquitted conduct sentencing?

The question in the title of this post flows from the notable comments made by Justice Gorsuch in today’s Supreme Court oral argument in McElrath v. Georgia.  The full argument can be found herethis Washington Post piece provides the essentials and starts this way:

Under delusions that she was poisoning him, a teenage Damian McElrath stabbed his mother, Diane, to death in 2012. He washed up, called 911 and told the dispatcher what he had done and why he was right to have done it. A few years later, when the state of Georgia prosecuted him, a jury found that McElrath was insane at the time — and also, not insane.

The jury found him “not guilty by reason of insanity” on the charge of “malice murder,” meaning that he lacked the capacity to distinguish right from wrong or that his delusions meant he lacked criminal intent. But on charges of felony murder and aggravated assault, the jury found him “guilty but mentally ill.”

When the Georgia Supreme Court reviewed the case, it said the conflicting verdicts were so illogical as to be “repugnant” and told prosecutors they could try McElrath again on all three charges. That decision created an exception to the U.S. Constitution’s double jeopardy clause, which says that once acquitted, a defendant cannot be retried on the same charge.

At a hearing Tuesday before the U.S. Supreme Court, the justices appeared ready to tell their Georgia counterparts that it is their turn for a do-over. Justices across the ideological spectrum seemed to believe that once a person has been acquitted of a charge — for whatever reason the jury chooses — the matter is closed.

As Justice Neil M. Gorsuch put it, for “230 years in this country’s history, we have respected acquittals without looking into their substance and without looking into how they fit with other counts and said a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”

Regular readers likely know I wholeheartedly agrees with Justice Gorsuch’s vision that “a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system….” But, of course, if prosecutors can pursue, and a judge can impose, a sentence based on acquitted conduct, then a jury does not serve as much of a check on judges or prosecutors or overreach, and we do not respect the democratic design of our Constitution.  If the Justices ever get around to taking up the issues of acquitted conduct, which they should at some point feel duty bound to do, I certainly hope Justice Gorsuch gives meaning to his words in that context.