When 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:
- The actual language in the Georgia constitution, describing juries as judges of the law and the facts.
- 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.
- 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.