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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: 5956
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 # 62.
#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.
Yeah America is lucky you aren't in charge of anything. John Jay said it is the jurors duty to judge law and fact. Since you don't know much about the constitution. I'm pretty sure you never heard of John Jay.
Mark Pull man said:
I also know that statement is pure bullshit.
I also know that statement is pure bullshit. Maybe it’s bullshit….and then maybe it’s not We must remember that the Constitution is definitely a LAW and it is considered the SUPREME LAW of the land, according to which our country will work. If jury nullification is okay and it acts like a “kangaroo court, to NULLIFY a LAW in that the jury ignores recognized standards of law or justice granted under the Constitution, while intentionally disregarding LEGITIMATE LAWS and judicial authority established by the Constitution, then the a jury can NULLIFY the first 10 amendments to the US Constitution which is of course known as the Bill of Rights. A jury can do this by acting under the guise of JURY NULLIFICATION. A jury can’t nullify the Constitution? The Constitution is a LAW and under jury nullification a jury can nullify a law….any LAW. Right? Think about it … And while you are thinking about it…reflect on the old proverb: “There is no such thing as being half pregnant”. Back to this: Can’t it?
Can’t it? Only on a case by case basis. The jury cannot set a precedent to be followed. The jury does not have a "right" to nullify a law. They have immunity from prosecution for what they do as jurors. Such nullification remains a legal wrong, but is not prosecutable. Another jury, viewing a case with identical facts, could follow the law and vote to convict.
Perhaps more of a "procedural wrong" as per standard court rules, yet not a lawful wrong as in a violation of the law, as you pointed out. Calling it a "legal wrong" casts it in an vague light, I submit.
When they are instructed by the court as to what law to apply, and they act in deliberate defiance of the court, they do something contrary to law. The D.C. Bar calls such action by the jury an abuse of its power. Whatever it is to be called, nullification is not a legal right. In U.S. v. Kleinman, 14-50585 (9th Cir., 4 Apr 2017), the Court concluded, We conclude that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” However, because there is no right to jury nullification, the error was harmless. We find that Kleinman’s remaining challenges on appeal are without merit, and AFFIRM his conviction and sentence. https://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion320.cfm D.C. Bar Jury Nullification Arguments by Criminal Defense Counsel [excerpt] The District of Columbia has no rule or statute authorizing jury nullification. Both the local courts and the federal courts have rejected assertions that juries are entitled to an instruction apprising them of their “right” to nullify the law. See United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983) (fact that juries can abuse their power and return verdicts contrary to the law does not mean that courts must give such instruction); Reale v. United States, 573 A.2d 13 (D.C. 1990) (trial court not required to instruct jurors about their power of jury nullification). Indeed, both federal and local courts in this jurisdiction have endorsed jury instructions that are designed to discourage jury nullification. See, e.g., United States v. Pierre, 974 F.2d 1355 (D.C. Cir. 1992) (approving jury instruction that jury “should” return a guilty verdict if the government has proven its case beyond a reasonable doubt); United States v. Braxton, 926 F.2d 1180 (D.C. Cir. 1991) (same); Watts v. United States, 362 A.2d 706 (D.C. 1976) (en banc) (jury instruction may discourage nullification). Moreover, the standard jury instruction given in District of Columbia courts contains this express admonition to the jury: “You may not ignore any instruction, or question the wisdom of any rule of law.” Criminal Jury Instructions for the District of Columbia, Instr. 2.01 (Bar Assn. of D.C. 4th ed. 1993). Within this jurisdiction express exhortations to ignore the law are, therefore, likely to be deemed prohibited by law and may, therefore, result in violations of the D.C. Rules of Professional Conduct by lawyers who advocate such a course. See D.C. Rule 8.4.
The D.C. Bar does not decree law. Whatever it is called, exercising it is not punishable in any way, shape or form. And anything that one may do without any possible recourse of lawful punishment is, at minimum, a de facto right, even if it is not a right created by statute, declared a natural right or otherwise positively affirmed as a right by any court. At the end of the day, juries can nullify and walk away, and there's nothing any court can do about it.
No, but they can reduce the prevailing law to a short story rather than a book. This is just wrong and misguided. If you are unable to sue a law enforcement officer for some violation against you because he enjoys immunity from suit, it does not give him the right to abuse you. If an active duty military member cannot sue for medical malpractice at a military hospital (see the Feres Doctrine), it does not create a military right to commit medical malpractice. Immunity from suit or prosecution does not change an unlawful act into a lawful act. It acts as a restraint against suit or prosecution. As very clearly stated in U.S. v. Kleinman, 14-50585 (9th Cir., 4 Apr 2017), quoted at my #53, "there is no right to jury nullification." There is no de facto or de jure or other right to jury nullification. Simply arguing for jury nullification is prohibited misconduct in the overwhelming number of states. True, not because of any de facto right to nullification, but due to the law's recognition of the superior competing interest of the sanctity of the jury.
Does this mean I didn't have a right to use my bathroom earlier today? Because it's never been adjudicated in a court of law? Your examples are extreme and ultimately come down to semantics. Your definition of a right is a specific act that has been positively affirmed by law and the courts. My definition of a right is anything the state is legally powerless to prohibit. We've had this discussion before and there's no point in rehashing. You can have last word.
If your jurisdiction does not recognize at will bowel movements, I would move to a different jurisdiction. San Francisco might be good for freedom of choice. I cited no example that comes down to semantics. The Feres Doctrine is very real. If an active duty military member goes into a military hospital for a circumcision, and through medical malpractice they cut his penis off, he cannot sue for damages. There is an absolute to such a lawsuit based on the logic(?) that they will provide him free health care. There is nothing semantical about it. The military member cannot sue for military medical malpractice, regardless of how egregious it may have been. The military doctors and the military enjoy absolute immunity from such a lawsuit. It does not mean they had a right to do what they did, contradicting your stated legal position. Indeed, as you state that "Perhaps more of a 'procedural wrong' as per standard court rules, yet not a lawful wrong as in a violation of the law...." Whatver do you believe immunity protects you from? Immunity presupposes something for which you might get sued or prosecuted. I am unsure if your intent is to limit this to the 50 states, or to include the Federal government as "the state." I choose to include the Federal government. While your chosen personal definition of a right is rather quirky, I would point out the obvious. The government may impose a curfew and prohibit you from going outdoors. The government may imprison you for an extended period without charge or trial. The government may execute you. They may vaporize you with a missle strike, based on a star chamber secret determination that you are an unlawful combatant. The government may take away your property. The government may prohibit you from possessing marijuana, alcohol, machine guns, switchblade knives, plastic straws, or whatever else they may decree. The government has the power to enact unwise laws and enforce them. The government has the power to enforce martial law. Martial law implements the arbitrary will of the military commander. The Liberty Post gloom and doomers have declared that the government has already exerted its power to take away the Bill of Rights. What is it that you believe the government is legally powerless to do? And what higher law do you base that upon? What is the origin of jury immunity? One of the most famous trials in history is R. v. Penn and Mead, 6 St. Tr. 951 (1670), and the Case of Edward Bushell, Vaugh. 135; 124 E.R. 1006 (1670), which followed it. Penn was the William Penn of later Pennsylvania fame. Young Penn was arrested in London for objectionable preaching to Quakers in the street. At the Old Bailey, the judge all but directed to jury to return a verdict of guilty. After three days, and much pressuring, the jury returned a verdict of not guilty. The judge issued a fine against the jury for returning a verdict against the full and manifest evidence and against the direction of the court in the matter of the law. One of the jurors, Bushell, obtained a writ of habeas corpus, and the Case of Edward Bushell led to the judge made common law of juror freedom from any threats from the court. Lord Chief Justice John Vaughan in the Case of Edward Bushell, Vaugh. 135; 124 E.R. 1006. This is similar to judge made law called Miranda rights. A judge made it up and lo and behold, Miranda rights existed in the form of a required Miranda warning. The judge and the courts are part of the government. What the government giveth, the government can taketh away. The plaque is at the Old Bailey.
I offered you last word but since you asked me a few questions, I consider the offer declined. In light of the examples you gave, apparently nothing, except perhaps defy gravity, and I wouldn't put it past Congress to legislate that power into existence as well. After all, since it's government that passes laws about what it can legally do, then there is ultimately nothing the government cannot grant itself legal power to do. The logical conclusion: We have no rights whatsever. Everything, including as you gracefully pointed out, bowel movement, is a mere privilege granted by people in legislative power. Then again, those people are only a revolution away from meeting an ugly demise at a guillotine or more modern counterpart, so who's to say that even legislators have true power to legislate anything they want? Are not they also privileged? In the dog eat dog world that we ultimately live under, even those legislators can be said to hold their positions at the pleasure of the people who don't put their heads on a pike or string them up from the nearest lamppost. I mean, when you ask about what gov is powerless to do, are we talking here about what they can get away with doing? If so, then what good is all your exhaustive research on case law? Why care about the difference between statutory and constitutional law? natural vs statutory rights, and whatever other classes of rights legal theory may suggest exists. It's all just fleeting ideas in the wind. Maybe they are ideas that will last decades or centuries, but nonetheless, they are fleeting. I have come to take a pragmatic view of law in the last decade. Where I live, I have bribed cops a couple of times so I wouldn't get a ticket. Did I break the law? Well, I wasn't prosecuted for it ..... it seems the gov here was legally powerless to do so, and therefore, bribing the cops was, in the end, legal. Would you disagree? There's nothing quite like living in a foreign country, especially one that at least offers the common people access to the corrupt mechanism of government. That in contrast to the "developed" USA where such access to corruption is reserved only for the elite inside the DC beltway, which is being put on display by the DOJ and FBI for all the world to see!! I imagine most every other alphabet soup agency is just as corrupt, only it hasn't been exposed as yet. Do you have such a pragmatic view of government when you do the meticulous and undeniably highly detailed legal research you do? Personally, I can't imagine it. Nothing like taking in one view of endless shelves of "case law" in a law library to depress me about what the legal world has become. Law has taken on all the attributes of a religion, quite frankly, and lawyers are its priests, with judges being the high priests. I wonder if you piled up all theological books on Christianity next to a pile of case law history books, which one would pile higher. Seriously. Back to the point you ask: Nothing, nolu. In the context of the entire universe, there's absolutely NOTHING they cannot do. I stand corrected. They can do anything the people permit. Period. In the end, in the big picture, it can ultimately be said that we live in nothing less than anarchy. We, the human race, do whatever the hell we want to with each other. In this fleeting moment, it's the lack of any law that says they can be prosecuted.
#63. To: Pinguinite (#62)
If you think that's the logical conclusion, you have the right to your opinion. I made no statement that your bowel movements are a privilege. What I did say was, "If your jurisdiction does not recognize at will bowel movements, I would move to a different jurisdiction. San Francisco might be good for freedom of choice." I am sorry to hear you are having difficulty getting your bowel movements approved in Ecuador. San Fran is a drop trou jurisdiction. Not getting caught is not a synonym for obeying the law. I have the remarkably pragmatic view that if someone is trying to nail me with something, and I don't know the law well enough to defend myself, I am helpless. I prefer not to be wilfully helpless. YMMV. I was citing examples of what they can do within the law, legally. For example, the government has the power to keep you imprisoned indefinitely without charge or trial. It is called suspending the privilege of the writ of habeas corpus, see Article I, Sec. 9, Cl. 2. No, anarchy is where the government can't do anything or does not exist, or finds a libertarian excuse to do nothing. As for jury immunity, as the sign by the Old Bailey says, "Chief Justice Vaughan delivered the opinion of the Court which established The Right of Juries to give their Verdict according to their Convictions." Gotta love that old court made, judge made common law.
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.”
#11. To: misterwhite (#3)
#13. To: A K A Stone (#11)
Is jury nullification good or bad? The debate over jury nullification highlights the differences between libertarians, some of whom are “minarchists” uneasy with the constraints on individual autonomy inherent in the state, and classical liberals, who view civil society as indispensable to secure their liberty. Fundamentally, laws are necessary to preserve a free society, not—as libertarians suppose—inherently symbols of abject coercion. Freedom is not possible without the rule of law. Conceptually, jury nullification— selectively suspending the law—is “anarchy in a microcosm.” As a classical liberal, I view it as brazen lawlessness and a prescription for arbitrariness.
What say you?
#15. To: Gatlin (#13)
Freedom is not possible without the rule of law.
#16. To: A K A Stone (#15)
(Edited)
If the law is unconstitutional in my view not guilty 100 percent of the time.
I agree, if the law is unconstitutional. Freedom is not possible without the rule of law.
Is it now? Freedom is not possible without the rule of law.
If the jury can take away the Bill or Rights by jury nullification, and under jury nullification a jury can declare a law invalid so it can be disregarded….then without the rule of law, a jury can take away our freedom by nullifying the Bill of Rights under jury nullification
#41. To: Gatlin, A K A Stone (#16)
If the jury can take away the Bill or Rights by jury nullification, and under jury nullification a jury can declare a law invalid so it can be disregarded….then without the rule of law, a jury can take away our freedom by nullifying the Bill of Rights under jury nullification
#46. To: nolu chan (#41)
Such nullification remains a legal wrong
#53. To: Pinguinite (#46)
Calling it a "legal wrong" casts it in an vague light, I submit.
Ethics Opinion 320
Thus, at a minimum defense counsel must necessarily conform their conduct to the substantive law of the jurisdiction in which the lawyer is appearing. See D.C. Rule 8.5(a); see also Restatement of the Law Governing Lawyers § 105 (2000) (“a lawyer must comply with applicable law, including rules of procedure and evidence and specific tribunal rulings”). In this jurisdiction, such substantive law appears to preclude express advocacy of the jury nullification power.
#57. To: nolu chan (#53)
The D.C. Bar calls such action by the jury an abuse of its power.
Whatever it is to be called, nullification is not a legal right.
#59. To: Pinguinite (#57)
The D.C. Bar does not decree law.
anything that one may do without any possible recourse of lawful punishment is, at minimum, a de facto right, even if it is not a right created by statute, declared a natural right or otherwise positively affirmed as a right by any court.
At the end of the day, juries can nullify and walk away, and there's nothing any court can do about it.
#60. To: nolu chan (#59)
#61. To: Pinguinite (#60)
(Edited)
Does this mean I didn't have a right to use my bathroom earlier today?
Your examples are extreme and ultimately come down to semantics.
My definition of a right is anything the state is legally powerless to prohibit.
[Pinguinite #57] At the end of the day, juries can nullify and walk away, and there's nothing any court can do about it.
The jury must be independently and indisputably responsible for its verdict free from any threats from the court.
#62. To: nolu chan (#61)
What is it that you believe the government is legally powerless to do?
What is it that you believe the government is legally powerless to do?
And what higher law do you base that upon? What is the origin of jury immunity?
Replies to Comment # 62. The logical conclusion: We have no rights whatsever.
Everything, including as you gracefully pointed out, bowel movement, is a mere privilege granted by people in legislative power.
Where I live, I have bribed cops a couple of times so I wouldn't get a ticket. Did I break the law?
Do you have such a pragmatic view of government when you do the meticulous and undeniably highly detailed legal research you do?
I mean, when you ask about what gov is powerless to do, are we talking here about what they can get away with doing?
They can do anything the people permit. Period. In the end, in the big picture, it can ultimately be said that we live in nothing less than anarchy.
End Trace Mode for Comment # 62.
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