Is Jury Nullification Allowed in Georgia?

The History of Jury Nullification in Georgia:

Jury nullification in Georgia goes back to the 18^th Century.  In Georgia v. Brailsford 3 U.S. 1 (1794) Chief Justice John Jay stated: “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy".

What Justice Jay was saying is that citizens, not the judge or the police, have the right to say that a law is either prima facie unjust, or unjust in the application of the case at hand. 

The Georgia Constitution specifically allows for jury nullification, regardless of what our judiciary opines.  “In criminal cases, the defendant shall have a speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.  Article I, Section 1, Paragraph XI."  

Clearly, jury nullification is legal in Georgia.

Georgia Judges – Per Usual the Biggest Problem:

It should surprise no one that our judges have unlawfully prevented defendants from asking juries to nullify laws.  Most Georgia judges not only fail to understand their role in the judicial process but they also, many times, act as a second prosecutor in the room.  Judges are supposed to be referees and should not be advocates for law enforcement.  That is why it is hard to understand why they prevent defense counsel from simply telling a jury that a law is stupid and should not be enforced. 

The problem is our judges are politicians first and judges second.  Since we elect our judges, they act no different than any other politician.  They stick their judicial finger up in the air and see what is most popular.  Being tough on criminal defendants is always popular, and as a result, many conduct themselves as if their role is to ensure a conviction and punishment in every case.

The War on Freedom (the war on drugs):

In Georgia, the police are obsessed with the war on drugs.  Even in the face of the legalization of marijuana throughout the United States, we arrest and prosecute simple possession of marijuana all the time.  Drug enforcement has become the justification for searching the homes, automobiles, and personal property of people causing no harm to anyone else.

It has also been the justification used by the police when they cause actual harm to innocent people, such as when the police break into the wrong home and murder innocent people or kill their pets.   We all remember the police throwing a grenade in a Habersham County home where a baby was horribly burned, all because of the war on drugs.  Yet, many of our judges do not let attorneys tell juries about the collateral consequences of this pointless war on people harming no one.  

We need to resist by asking juries to acquit people.  We need to send a message to government to utilize their resources to prosecute cases where there is an actual victim, rather than ruin the lives of people for no reason.   

We need also to support judicial candidates who understand the role of a judge is to protect the rights of the accused.

Practice Note – Possession of Marijuana Case:

In the event defense counsel has an ethical and honest judge, tell the jury that the law is stupid and should not be followed. Use the closing argument to explain, for example, that possession of marijuana harms no one and is being legalized throughout the United States.  Argue that police resources are better utilized protecting citizens from actual harm.  Argue the collateral consequences of the war on drugs, and the harm it has caused to innocent people 

In jurisdictions where the judiciary is the tool of the prosecution, use the pattern jury instructions against them. The subtle argument is as follows:

Ladies and Gentlemen of the jury; the judge will be instructing you on the only duty you have in this case, the duty to acquit the defendant if you have reasonable doubt. 

This is the only duty you have, and remember you have sworn an oath to follow your duty.  The rest is entirely up to you.  You will be instructed that you are both the judge of the facts and the law.  Even if you have found that the state has met its burden of proof, you only have the option to convict the accused.  You will be instructed that you "may" convict.

So, if the state does not meet its burden of proof, you must acquit, but if they meet their burden you “may” convict the defendant.  

With your verdict, you have the option to send a message to the prosecutor and the Georgia General Assembly to use police and court resources somewhere else.  Use these resources against those who harm others.  

The word verdict comes from the Latin phrase meaning to speak the truth.  The truth does not mean blindly following a law that is unjust.  We in Georgia have quite a history of unjust laws, including Jim Crow.  The fact that something is illegal does not mean it should be illegal.  

The excuse of “I was following the law” did not protect German War Criminals after World War II.  Our war on drugs has created generational poverty and the destruction of entire communities.  It has also created a culture of mistrust of the police in minority communities, thereby causing victims of crime to remain silent, rather than reporting a crime to the police.

Tell the jury to speak the truth in the message they send to the government.  Jury Nullification is the most important right we citizens have against government tyranny.  Our prosecutors have incredible power to arrest and prosecute someone.  Their authority is virtually unchecked up and until the day of trial.  Our jury system is the last defense our citizens have against the unlimited power of government.  

Finally, when challenged by unethical and uninformed judges, bring your copy of the Georgia Constitution.  Read Article I, Section 1, Paragraph XI.  in open court.  It will likely be the first time they have heard it.  

At our office we will fight for you against government tyranny.  If you have been charged with possession of marijuana in Georgia, call now.