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A Strategy for Jury Nullification Victories in Georgia

Catherine Bernard doesn’t ask jurors to “nullify” the laws. She just urges them to perform the full range of their powerful jobs.

Javonnie Mondrea McCoy and Catherine BernardPhoto Courtesy of Catherine BernardWhen it comes to jury nullification—refusal by juries to convict defendants under laws they consider unjust or wrongly applied—Catherine Bernard may be the winningest attorney in the United States. Perhaps oddly, though, she may be chalking up those wins by not making a big deal about her chosen legal strategy.

On July 12, a jury in Laurens County, Georgia, found Bernard's client, Javonnie Mondrea McCoy, "not guilty" of the manufacture of marijuana and of possession of drug-related objects, despite his open admission that he had, in fact, grown the much-demonized plant. That follows on a similar victory last year in the case of Antonio Willis, who was lured into selling the equivalent of a few joints by an undercover cop. In both cases, Bernard emphasized the humanity of the defendants, of their roles as fallible, but decent people who didn't deserve to be ground up by the wheels of the penal system.

"It's very important to focus on the individual circumstances," Bernard told me, "to emphasize the defendant's role in the community." Then she turns it over to jurors to decide how they want to treat these people, who she has portrayed as sympathetically as possible.

"Hey, what's going on here?" she wants jurors to ask themselves. "Does it reflect my values?"

What Bernard doesn't do is explicitly ask jurors to "nullify" the laws under which her clients are charged.

"I don't really care for the term 'nullification,'" she says. "It has a lot of historical baggage."

Instead, she emphasizes the role of the juror, which she describes as a "powerful and awesome position." She insists that the very idea of jurors implicitly contains the idea of nullification, and she tries to help them realize how empowered they are.

And Georgia jurors arguably are more empowered than in some other states. Article 1, Section 1, Paragraph XI of the state constitution (PDF) says that "the jury shall be the judges of the law and the facts."

When Bernard (who is the Georgia contact for the Fully Informed Jury Association) read aloud this passage from the constitution in the courtroom, the judge cut her off, saying it was "not a correct statement of the law." She was still fuming a bit about the incident when I spoke with her, although she has a sense of humor about her passion for "the constitution and its grand concepts." She also didn't let it slow her down.

"He told me I couldn't say it, so of course I continued to say it," she told me of her references to the state constitution and the power of the jury.

In this, she may have been helped by the small-town setting of Dublin, Georgia, where she was a public defender at the beginning of her career. She had worked before with the judge even before he presided over courtrooms. In Dublin, the county seat with a population of 16,000, the conduct of the court was perhaps less daunting and more flexible than it might be in an urban setting.

"This is a lot harder in big cities than it is in a town like Dublin," she says of her wins in the McCoy and Willis cases. In cities, she told me, jurors are led through the corridors of intimidating buildings by anonymous government officials. That doesn't necessarily create a welcoming environment for assertive juries.

Small-town setting aside, Bernard thought she had three advantages when she defended Mr. McCoy:

  1. The actual language in the Georgia constitution, describing juries as judges of the law and the facts.
  1. The requirement that indictments specify that the alleged crime was "against the good order, peace, and dignity" of the state of Georgia—and that jurors don't necessarily see all illegal acts as anything of the sort.
  1. Georgia jury instructions specifying that, if jurors have no doubt as to guilt, they are "authorized" to convict, but if doubt exists, jurors have a "duty to acquit."

That's not to say McCoy and Bernard faced no challenges. While McCoy uses marijuana to treat chronic pain resulting from a brutal attack he survived 15 years ago, police weren't looking for his supply when they arrived at his home. They arrested him on charges including aggravated assault, possession of a firearm in relation to the same, and cocaine possession after he shot his rampaging half-brother in self-defense.

Ultimately, prosecutors pursued only the marijuana charges, but that potentially left the jurors to puzzle out for themselves the implications of police presence at McCoy's home. Meanwhile the state would have to actually prove only what McCoy had admitted: that he grew and used marijuana.

Photo Credit: Photo Courtesy of Catherine Bernard

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  • Fist of Etiquette||

    I have been given the runaround by all the scum attorneys here in the comments section of various Reason articles on the subject. No one will tell me definitively if jury nullification is legal or not. And I've been very nice to these jerkward lawyer-commenters and have built up quite an ample retainer in the form of years of entertaining commenting for their pleasure.

  • DaveSs||

    IANAL

    Its totally legal

    Just don't ever expect to hear a sitting judge, or prosecutor say so, or to ever allow such talk in a courtroom.

  • The Heresiarch||

    Lawyer-scum commenter here. It is "legal" in the sense that a juror can decide to vote non-guilty and, if his fellow jurors ask, fabricate some pretense for why he is voting that way (though the actual reason is he disagrees with the law). It is not "legal" in the sense that in most states, if an attorney raises it as a defense, a judge will admonish that attorney. And if you keep doing it, the judge can declare a mistrial or send the attorney to jail for contempt.

  • Fist of Etiquette||

    Well that sounds even more illegal for a juror! But, I lie all the time consequence-free, so I will take your word for it.

  • DaveSs||

    Take John Jay's word for it

    For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

    Incidentally its astounding that one could read these words that the first Chief Justice gave to a jury as part of their instructions, and somehow find themselves in contempt.

  • sparkstable||

    Is it within the law for a juror to vote based on the idea that the law itself is unjust or wrongly applied in the particular case? If so, then how is it legal for a judge to obstruct such relevant information being given to a jury? And how can it be legal for the system to tell a defendant how he can and can not defend himself? How is that a justice system at all?

    I claim it isn't one. It's a LEGAL system in most respects (but obviously not all) and not a justice system.

  • Brandybuck||

    You can vote any way you want to vote if you're on a jury. Vote guilty or not guilty. Done.

    Just don't expect everyone else on the jury to do the same, and don't expect the law to get magically erased from the books. But nothing is stopping you from vote not guilty.

  • Vernon Depner||

    Everyone else doesn't have to do the same. One intransigent not guilty vote hangs the jury. In many cases the prosecutor won't bother with another trial, or will reduce the charges to settle the matter. Neither is as big a win as a not guilty verdict, but they're at least partial victories.

  • Rossami||

    re: "No one will tell me definitively if jury nullification is legal or not."

    If you're a juror, this question is easy. Jury nullification is legal. It always has been. It always will be. You can vote 'guilty' or 'innocent' for any reason or none and, whether you're right or wrong, there are no legal consequences at all to you for making that vote.

    However, if you vote contrary to what the evidence obviously appears to say, there is a question that the judge (or maybe the appeals court) has to answer - did you vote that way because of pre-existing bias. For the sake of argument, assume that you actually are biased. You, the juror, still can't be held accountable for that bias but it would represent justice denied to one of the parties in the case. That's bad and could warrant a) throwing you off the jury or b) holding a new trial.

    If you're a lawyer, the question is a lot more muddy. As a lawyer, not only do you have to obey the law but you're bound to a lot of other rules - including some rather arbitrary ones written by the courts. Those rules can include speech restrictions that would, in other circumstances, amount to prior restraint and be a violation of the First Amendment. In context, however, they are allowed. So depending on the jurisdiction and the local court rules, what a lawyer can and can not say about jury nullification is complicated but usually leans more to the 'can not say' end of the spectrum.

  • Modus Pwnens||

    Aren't jury questionnaires and voir dire conducted under oath? So if it comes out that you lied on either of them you could be prosecuted for perjury? (for example, if you stated on your questionnaire that you intended to follow the judge's instructions, but then did not do so during the actual deliberations)

  • Rossami||

    Yes but not relevant. If you lied about your age (and hence, your eligibility to serve on a jury), you could be prosecuted for perjury. If you lied about biases (such as "I can judge the case of a black defendant fairly" despite being a raging bigot), that would also technically be perjury but to the best of my knowledge, there has never been a successful prosecution on that basis.

    However, a statement under oath that you will obey what turns out to be an illegal instruction is not perjury. The precedent goes all the way back to Bushel's Case in 1670. The most recent case I know of affirming this principle was Laura Kriho (Colorado, 1994). There are circumstances where you could be jailed for improper conduct as a juror but it must go beyond just returning a nullification verdict.

  • loveconstitution1789||

    A juror cannot convict without sufficient evidence that the defendant is guilty beyond a reasonable doubt. A juror can find defendants not guilty for millions of reasons and one reason is that the laws are unconstitutional and/or unjust.

  • Nicholas Sarwark||

    It's an absolute power of the jury, as well as prohibited by the Judge's instructions.

    Legal.

  • SRoach||

    While I see its value, I disagree with Jury Nullification as a Good thing in jurisprudence.
    Allow me to lay out for you a probably-not-all-that-hypothetical defense, from a place not-all-that-far, in time and space, from where this story takes place.

    "Members of the Jury. While my client, this honest, well-bred white man here, did in fact kill the victim, who you all know was a person of poor reputation owing to his race, and who lived down to that reputation by demanding to be treated as an equal by his betters, he did so while justifiably enraged that the victim would have the temerity to think himself equal enough to the defendant as to ask the defendants own sister out on a date, an act which, as we all know is counter to both the laws of God and of man."

    In short. Jury Nullification risks unequal implementation of law based on what the jury feels about the defendant, rather than the law.

  • The Heresiarch||

    That's true, there is that risk. The question then becomes, "What do you find more distasteful, overzealous legislation and prosecution by the state, or periodically letting guilty people go because of the prejudices of the jury?" Frankly, I find overzealous litigation and prosecution by the state to be a far, far bigger threat to liberty than the occasional racist jury.

  • SRoach||

    But it gets worse. As our existing enforcement of drug laws already illustrates, it is all too easy to have too many laws, and enforce them strictly only on those classes of people whom the government doesn't like.

    Who is to oppose a stupid new regulation, if the only people who will be convicted of it are members of the Wrong Sort?

    Far better would be to bring Jury Nullification out of the shadows, and force, force, every case that is decided by Jury Nullification to be reviewed in a Court of Appeals, POSSIBLY with the defendant now safe from further prosecution, (but his case go on as if he was still in jeopardy, although what I learned about U.S. vs Miller makes that a dicey proposition). That is, make it a case where the jury is literally saying to the court system that this law needs to be reviewed for Constitutionality.

  • The Heresiarch||

    I'm not sure that your method fixes anything. I can't see any court (given modern jurisprudence) finding the laws you cite (drug laws) unconstitutional. If the government is enforcing the law unfairly against blacks (I assume that's what you were referring to), better to have a defendant before a jury of his (black) peers so they can nullify the law without requiring a finding of constitutionality.

  • SRoach||

    Probably not. Ideas that I write between one post and the next, at the very least, need a lot of polish, and likely lead to dead ends regardless of how much additional thought they receive.

    I will think on this, I don't think I'm capable of doing otherwise, but it's very likely this particular idea is one that can't be salvaged.

  • epsilon given||

    Currently there's nothing stopping prosecutors from using their prosecutorial discression (ie, the power to decide who gets prosecuted) in the same way.

    Thus, I don't see why this power should be removed from juries, who may be a check for a prosecutor who should have used discression, just because they may abuse their power.

    Indeed, I would go so far as to say that, if juries *didn't* have this power, there would be no point in having them in the first place!

  • Jordan||

    That's a flaw with the jury system itself, since nullification is an inherent feature of the jury system. If you have a jury system where the state can punish jurors for making the "wrong" decision, you don't have a jury system.

  • Brandybuck||

    Yes. Which is why the FIJA dudes are mostly blowing smoke. They should be able to distribute their literature, but their magic formula that magically erases bad laws from the books is pure bullshit.

    Jury nullification is about juries simply refusing to convict anyone of certain crimes, so the system simply stops prosecuting those crimes because it's pointless.

  • Vernon Depner||

    the system simply stops prosecuting those crimes because it's pointless.

    Yes, that's the goal. Not sure why you call it "pure bullshit" and then in the next sentence admit that it can work.

  • marshaul||

    but their magic formula that magically erases bad laws from the books is pure bullshit.

    Legendary straw man.

  • Bubba Jones||

    Your example requires the rather unlikely event that a white man was actually charged with killing a black man.

  • Vernon Depner||

    It's not unlikely if the white man was a police officer. Of course, in that case, it would be very unlikely to go to trial.

  • Vernon Depner||

    We have the jury selection process and the defendant's right to request a bench trial as balances against the possibility of a prejudiced jury. I'm not sure we can do better than that. As others have said here, the possibility of a jury intentionally committing an injustice is an inherent risk in a jury system.

  • Scarecrow Repair & Chippering||

    It's a theoretical risk, not a real-world risk. In what real KKK-infested world would a prosecutor even bring such charges or would a jury need some fig leaf like jury nullification?

    Just.
    Doesn't.
    Happen.

  • Agammamon||

    Members of the Jury. The defendant, this honest, well-bred white man here, did in fact provide refuge to escaped slaves, an act which, as we all know is counter to both the laws of God and of man.

    This defendant has been shown to be guilty of using marijuana in contravention of the laws of this state.

    We have provided oncontrovertible evidence that the accused engaged in sexual act prohibited by the law.

    Frankly, on the balance, given how often the law is immoral (let alone an ass), jury nullification is a net good.

  • John C. Randolph||

    the judge cut her off, saying it was "not a correct statement of the law."

    That motherfucking shyster should be facing charges for civil rights violations. Lying to a jury about the plain language of the state constitution is a deliberate attempt to obstruct justice, as well.

    -jcr

  • sparkstable||

    THIS!!! Why the holy hell doesn't pro-liberty / pro-justice lawyers bring suit against such judges? This is not the first time I've heard of judges literally telling lawyers they can't disclose applicable law, as written, to jurors. Or when judges tell lawyers they can't cite applicable parts of the Constitution. If it is the SUPREME law of the land, it, by definition, supersedes his decision to be a tyrant in his fantasy of a fiefdom. Such a judge is in contempt of the LAW. It's not HIS court or HIS court room... he's not a god, a deity, a king, or any such thing. He is literally a servant to the people and subject to the law, regardless of his role in the application of said law.

  • Half-Virtue, Half-Vice||

    I'd let her represent me, if you know what i mean.

  • ||

    Can you even see her? All I see is a blinding white light.

  • Cloudbuster||

    Do an image search for her. She's pretty hot.

  • SIV||

    Cathy Bernard is a good lookin' Paultard.

    Dublin, GA is known for Strange Drugs

  • Brandybuck||

    Jury nullification has always been possible. Just don't vote guilty. Done.

    The problem is that it's not the magical silver bullet the FIJA dudes think it is.

    Some judges get pissed if you through nullifcation in their face, so you don't do that. Vote innocent instead. Duh.

  • Vernon Depner||

    "Just don't vote guilty" doesn't allow you to use jury nullification to convince other jurors who believe the facts of the case show guilt. That's what makes it important for juries to be fully informed.

  • Cloudbuster||

    When I have been under a jury deliberation, I have never been restricted in what I can say to the other jurors. There's no stenographer, there is no court official sitting and monitoring the proceedings.

  • Vernon Depner||

    But the other jurors could be difficult to convince if you're trying to tell them to do something that the judge has just told them they can't do.

  • Eddy||

    The right of juries to judge the law used to be such a mainstream position that Congress put it in the Sedition Act of 1798, which was otherwise an oppressive piece of partisan legislation.

    From Sec. 3: "...the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases."

    Why did a partisan Congress, which was out to get dissenters and wanted them in prison, recognize the rights of defendants in this way? An undue bias for free speech, perhaps?

    Nowadays, unlike those pro-defendant extremists (/sarc) who passed the Sedition Act, we recognize that the jury has no power to judge the law.

  • PG23COLO||

    Jurors have had the responsibility for determining the law and the facts for centuries. English judges and juries once battled over whether juries had the power and responsibility to determine "the law" in the case, by which was meant "the verdict."

    Judges tried to intimidate juries into bringing back just a factual finding, like: "yes, the defendant published this material." The judge wanted to determine the verdict.

    When intimidation failed, judges would sometimes interrogate or try to punish jurors afterwards for "improper verdicts." Eventually, they gave up. Juries have been bringing back verdicts ever since.

    A verdict is a determination of law and fact. combined. Telling jurors they had the responsibility to determine the law did not mean they determined which laws applied.

    Jurors always determine the law, meaning the verdict. It is a violation of the right to jury trial to interfere with their deliberations, or to questions jurors afterwards as to how they reached their verdict, in an effort to impeach their verdict.

    Whether some jurors intended to "nullify" a law they disagreed with, can be an item for speculation, but should never be a basis for violating the confidentiality of thoughts and communications in the jury room.

    Judges still don't like verdicts they disagree with, thus most judges lie to and confuse the jurors by telling them their sole responsibility is to find the facts.

    Paul Grant

  • ||

    So basically lets find a way to not follow the laws we disagree with. Sure i am for drug legalization but what happens when republicans decide not to follow gun laws? Me? I am happy but this guy writting this? Not so much. Seems like a double edged sword.

  • DaveSs||

    Every day, tens of thousands (if not more) gun owners unwittingly violate a single, widely known, but not widely understood Federal law every single day.

    Hundreds of thousands have refused to register in prohibitionist states.

  • jdtuccille||

    Looks like you're new here.

    Welcome!

    This is a libertarian publication. We frown on all sorts of laws.

  • Sevo||

    JD, we need you around more.
    Oh, and regarding the photo? I gotta say:
    "One mint Julep, please"

  • SIV||

    Great piece 2chili. Libertarian content is getting scarce around here these days but you consistently deliver.

  • John Thomas||

    We wouldn't have to resort to such extreme measures if the the corrupt thugs who hijacked our government would stop defending the monstrously destructive, FRAUDULENTLY ENACTED marijuana prohibition.

    The people have grown sick of it. -- If the politicians can't stop licking the behinds of the wealthy long enough to do the right thing, the people have to take matters into their own hands!

    Thank goodness, for the states that have voter initiatives! - Or even more rare, enlightened legislatures, like Vermont. So far, we have NINE states and D.C. that have completely ended marijuana prohibition. 30 states approved medical marijuana.

    Polls show 68 percent of all Americans now want to end the insane witch-hunt. And the percentage keeps growing!

    It's clear we are ending the fraudulent marijuana prohibition, just as we ended the misguided alcohol prohibition. - Let's do it quickly so we can get on with other business.

  • kcuch||

    Curious why you limit the issue to marijuana. Pragmatism, incrementalism, or judgemental? All drug and alcohol prohibitions are immoral and unconstitutional, not just the ones you (would) use.

  • TheDoDahMan||

    Right on, Daddy-o!

  • Kha Tran||

    Always listening – Always understanding – Always in service

    thuê xe 7 chỗ đà nẵng

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