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Title: Georgia man grows pot. Admits it. Jury sends him home
Source:
WSB-TV Atlanta 2
URL Source: https://www.wsbtv.com/news/local/ge ... -jury-sends-him-home/799784904
Published: Jul 27, 2018
Author: Bill Torpy for the AJC
Post Date: 2018-07-27 16:13:24 by Hondo68
Keywords: Jury Nulification, respect for the law, this was about fairness
Views: 6049
Comments: 64
DUBLIN, Georgia - This article was written by Bill Torpy for our investigative partners at The Atlanta Journal-Constitution and AJC.com. Javonnie McCoy was growing marijuana when the cops came to his middle Georgia home. He was caught red-handed with it. Almost a pound of it, in fact. He admitted it to police, and later he looked jurors in the eye and said, "Yep, it was mine. I used it as medicine." The jurors let him go. He was minding his own business and wasn’t hurting anybody, they reasoned. He just doesn’t belong in prison. The jury’s decision earlier this month in Dublin, Georgia, may have been due to a muddled prosecution of a muddy case. Or it may have been jury nullification, another case of citizens saying prosecutions for pot are not worth law enforcement agencies' time and effort -- or the impact on otherwise law-abiding people’s lives. It was the second such win in the Laurens County circuit for Atlanta attorney Catherine Bernard, a conservative Republican who’s also a staunch civil libertarian. Late last year, another client of hers fessed up to a jury that he had sold a couple of nickel bags to an insistent undercover drug cop. That client was cut loose after just 18 minutes of deliberation. And this is no liberal soft-on-crime region. Donald Trump won the county 2-1. Bernard also helped get North Georgia authorities to drop charges against the parents of a 15-year-old whose parents allowed him to smoke pot to help combat severe seizures. Ultimately, what may have kept McCoy out of an orange jumpsuit was that his lawyer urged the jury to empower themselves. She told them they are not potted plants or an unthinking arm of government. They, in fact, are the government. She read to the jury a section from the Georgia Constitution that says, “The jury shall be the judges of the law and the facts.” Bernard said the judge chided her for bringing that up, but it seems the words sank in. The case started when police were called to McCoy’s mobile home four years ago. McCoy’s half-brother had allegedly attacked him with a stick and McCoy grabbed his .22-caliber rifle, the one he uses to hunt squirrels, and shot his sibling in the shoulder. Police found several potted plants in McCoy’s bedroom and tagged him with several charges including aggravated assault and manufacturing marijuana, a felony that can bring 10 years. The case stalled in the system and McCoy decided to go to trial. Right before the trial, the state dropped the assault accusation but kept the pot felony charge. (Prosecutors did not respond to my messages.) McCoy was offered eight years’ probation, Bernard says, but chose to fight the case. During trial, McCoy decided to testify. He had little choice. He was caught red-handed. He said his attorney told him, “Talk to them. They will connect with you.” He gulped and sat in the witness box, telling jurors that 15 years ago he was mugged and beaten into a coma. He has suffered migraines and depression and ended up self-medicating with pot “because Zoloft turned me into a zombie.” Prosecutors “tried to make it look so bad, that I was selling it. But I had nothing to hide,” McCoy told me, explaining his decision to testify. “The jurors had their eyes on me. I had my eyes on them.” “Marijuana makes you eat,” McCoy told the jury. “It made me feel calm. It made me relax. It helps with my pain.” He is a country guy who lives by “hustling” -- painting, landscaping, selling fish, driving people to the store. Ultimately, he said, “We had a jury you could relate to. Truck drivers, mechanics, construction. People who worked. They saw I wasn’t bothering nobody. That’s what I believe they felt.” Bernard said she doesn’t coach defendants before testifying because juries pick up on that. “I think they appreciated his honesty.” People in Dublin have respect for the law, Bernard said. But this was about fairness, about properly using law enforcement resources. “In America we leave someone alone if they are not bothering somebody,” Bernard said. “A world where he needs to be dragged away by armed men and put in a cage is not a world where people want to live.” She doesn’t like the term jury nullification. “It brings up a negative image. It’s simply part of being a jury. The jury judges the law and the facts.” Denise de La Rue, a jury consultant not involved in this case, said, “Jurors are really interested in justice. There are often cases of no loss, no foul. There’s no real victim here.” That’s pretty much what the jurors said. A couple said the case presented to them by prosecutors was a mess because the lawyers had to avoid talking about the shooting. In fact, the jurors I spoke with never even knew the missing charge involved a shooting. Two of them said “second chances” also played heavily into their verdict. Lizzie Mae Davis said, “He was believable. He wasn’t trying to make money. He had it to ease his health.” Davis said she really has no problem with people using pot — “as long as they’re not around me.” Juror Brian Loyd said of the verdict, “Sometimes good things happen to good people.” Kenneth Thompson, who works in construction, said jurors liked that McCoy was “forthright.” Ultimately, they decided, the man didn’t deserve to get tossed into the slammer. “If he’s disrupting the peace and dignity of the state, well, a lot of us said he wasn’t bothering anybody,” Thompson said.
Poster Comment: Libertarians are winning in Georgia. A waste of taxpayer dollars paying cops to bust people for victimless crimes. Fire them, give out tax rebates, and a tax cut too.
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Begin Trace Mode for Comment # 32.
#3. To: hondo68 (#0)
Bernard said the judge chided her for bringing that up, but it seems the words sank in. So his lawyer told them about jury nullification and got away with it. She's lucky I'm not that judge.
Jury-nullification notices should be required in jury instructions. I've been on a jury twice (I've also been a plaintiff, a defendent and a witness) and know all about FIJA; we voted guilty in one and not guilty in the other, but I was prepared to inform fellow jurors about our power and duty to judge the law as well as the facts, had that been an issue. WE judge in a jury trial; the guy in the black robe is just a referee.
So 12 random citizens should write the law based on the sob story and circumstances of one defendant. Obviously the prosecutor who brought the case didn't think an exception was warranted. Jury nullification bothers me because we're resorting to the rule of man over the rule of law -- different laws for different people depending on their ability to emotionally, not factually, sway the jury. If the law is bad or unfair, re-write the law. Sway the citizens with your arguments and have them put pressure on their legislators. But that's too hard, isn't it? And you might fail. So you prefer going in the back door on a case by case basis, letting the some of the guilty go free while incarcerating others under the exact same law. How about when all- white juries in the southern states refused to convict whites of crimes against blacks? That OK with you? How about today when black juries refuse to convict black men of crimes against whites (OJ comes to mind)? That OK with you? How about if the jury decided that the individual did not break the law as written, but the individual violated the spirit of the law and therefore voted to convict? That OK with you?
Yep, you bet. If the law is judged unjust, jurors can make that decision; we have the right to make that decision. How do you think Prohibition collapsed? WE own the country, period. WE provide the checks against judicial and legislative tyranny. As Pinguinite says below, 12 regular people in agreement outweighs a single corrupt or racist judge, every time. And I don't give a shit if you or a judge doesn't like it. I will inform jurors of their right to judge the law as well as the fact, whether I'm one of them or not. File an appeal if you don't get a verdict you like. And there are millions like me who will do the same. As I've told you before, we have in place millions of bullshit laws that bought politicians refuse to revise or eliminate because they were paid off to create them. We will, slowly but surely.
#40. To: Hank Rearden (#32)
Correct. And the U.S. Constitution gives us the way to write and change our laws. Using jury nullification to negate the laws written by the majority of the citizens is anarchy and unfair to the majority who expect their laws to be followed.
[Hank Rearden] Yep, you bet. If the law is judged unjust, jurors can make that decision; we have the right to make that decision. The jury enjoys immunity from prosecution for what they do in deliberations, even if they disregard the court on what the law is. Having immunity from prosecution does not change a legal wrong into a legal "right". The judge can overrule a guilty verdict. He cannot overrule a not guilty verdict after the fact due to jury nullification. As a separate, and distinct possibility, an acquitted defendant may be retried upon a later finding of a rigged jury. That possibility proceeds in the face of double jeopardy claims on the theory that jeopardy never attached in the trial with the rigged jury. If a juror should be found, during a trial (before a verdict) to be engaging in juror nullification (or intending to do so), said juror may be removed from the jury. Defense counsel may not argue jury nullification. Criminal Procedure, Fifth Edition, West Publishing, Thomson Reuters (2009), by Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Karr [footnotes omitted] (f) Jury Nullification. The function of the jury is commonly said to be that of ascertaining the facts and then applying the law, as stated by the judge, to those facts. Indeed, it is not at all unusual for a jury in a criminal case to be instructed that it has the “duty” to proceed in such a fashion. But it is nonetheless true that, a jury in a criminal case has the power to acquit even when its findings of fact, if literally applied to the law as stated by the judge, would have resulted in a conviction. This is because a jury verdict of not guilty is not subject to reversal or to review in any manner whatsoever. On occasion, juries will acquit defendants who appear sympathetic, who are charged with violating an unpopular law, who the jurors speculate would otherwise be sentenced too severely, or who haven’t been proven guilty under standards for proof the jurors believe are required despite the judge’s instruction otherwise. Some have argued that this practice, usually referred to as jury nullification, is part of the right to jury trial guaranteed by the Sixth Amendment. Arguably the language that the Supreme Court has used to describe that right appears to encompass the nullification process. In Duncan v. Louisiana; holding that right applicable to the states, the Court declared that in the view of the framers “[i]f the defendant preferred the commonsense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” Similarly, in emphasizing the need for juries drawn from a cross-section of the community the Court later asserted: “The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." Rather than treating nullification as an affirmative right of the accused (or the juror), however, most courts treat the jury’s nullification power as an inevitable by-product of the finality of verdicts of acquittal. As a result, pre-verdict procedures discouraging nullification abound. Members of the venire who admit that they will not follow the law may be excused for cause, for example. And in United States v. Thomas, the Second Circuit concluded that a juror’s intent to acquit regardless of the evidence constitutes a basis for the juror’s removal during the deliberations, reasoning, “Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court * * * We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.” The prevailing view is also that the Constitution does not require that a jury be told [1076] specifically that it has the power to disregard the law and acquit. This view is often attributed to Sparf and Hansen v. United States."Two sailors charged with murder asked the judge to instruct the jury on the lesser offense of manslaughter, but the judge refused on the ground that there was no evidence which would support a manslaughter verdict. Rather, he instructed: “In a proper case, a verdict for manslaughter may be rendered, * * * and even in this case you have the physical power to do so; but as one of the tribunals of the country, a jury is expected to be governed by law, and the lawr it should receive from the court.” Holding the jury had not been improperly instructed, the Supreme Court reasoned that “if a jury may rightfully disregard the direction of the court in matters of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law.” It is fair to say that Sparf did not settle the jury nullification issue, for the Court did not address the specific question whether jurors should be told they can refuse to enforce the law’s harshness when they conclude that justice so requires. But lower courts have rather consistently ruled that no such instruction should be given, that defense counsel may not make a nullification closing argument, and that “the potential for nullification is no basis for admitting otherwise irrelevant evidence.” When jurors have no responsibility for sentencing, for example, a court will typically prohibit them from learning of the sentencing consequences of their verdict through evidence or argument. This ensures that their decision to convict or acquit is based entirely on the evidence of guilt or innocence and not upon their punishment preferences for the defendant. One leading case on the propriety of limiting the information and argument provided to the jury on its power to disregard the law is United States v. Dougherty." There the court concluded that the “jury system has worked reasonably well overall” without resort to a nullification instruction, “with the jury acting as a ‘safety valve’ for exceptional cases, out being a wildcat or runaway institutution. This is because, the court explained, the jury “gets its understanding as to the arrangements in the legal system” not only from judge’s instructions but also through “the formal communication from the total culture," and the “totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says.” The court expressed fear that a nullification instruction would upset the existing balance and produce more hung juries. Finally, the court in Dougherty declared that such an instruction would deprive the individual juror of an important protection he now enjoys and to which he is entitled: that “when he takes action that he knows is right, but also knows is unpopular either in the community at large or in his own particular grouping, that he can fairly put it to friends and neighbors that he was merely following the instructions of the court.” In opposition to the Dougherty position, it has been contended that there is no reason to assume that juries will act in a different and less desirable way if informed about their nullification power, that there are political advantages to be gained by not lying to the jury, and that a nullification instruction would serve to discourage acquittals based on prejudice instead of encouraging them, by setting justice and conscience as the standards for acquittal rather than leaving the jurors to use their own biases as standards.
Top • Page Up • Full Thread • Page Down • Bottom/LatestShe read to the jury a section from the Georgia Constitution that says, “The jury shall be the judges of the law and the facts.”
#4. To: misterwhite (#3)
(Edited)
So his lawyer told them about jury nullification and got away with it. She's lucky I'm not that judge.
#25. To: Hank Rearden (#4)
(Edited)
Jury-nullification notices should be required in jury instructions.
#32. To: misterwhite (#25)
(Edited)
So 12 random citizens should write the law based on the sob story and circumstances of one defendant.
Replies to Comment # 32. WE own the country, period.
#45. To: Hank Rearden, misterwhite (#32)
[misterwhite] So 12 random citizens should write the law based on the sob story and circumstances of one defendant.
[1075]
End Trace Mode for Comment # 32.
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