Dublin, Laurens County, Georgia 10/31/2017
Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.
Today I watched a trial jury do the right thing, despite the fact that, by the strict letter of the law, the defendant was guilty. It was an uplifting experience. I want to share it with marijuana law reform advocates and anyone else that cares to read it.
I'm relating this story from the perspective of my observations as a retired cop who has sat through and participated in hundreds of Superior Court proceedings. I'm elated about it from the perspective of an old cop turned marijuana legalization advocate.
During late 2012 and early 2013 the Area Criminal Enforcement (ACE) team of the Dublin, Georgia Police Department (DPD) conducted a series of operations targeting street-level drug dealers. A drug enforcement agent out of South Carolina had been hired by DPD and ACE put him to work in an undercover capacity. This agent was a "Hispanic looking" individual who created an "cover" character called "Luis", an electrical worker. DPD purchased an old "beater" vehicle and loaded it up with spools of electrical wire and tools to solidify the cover. Then they sent "Luis" out to ride through "all the neighborhoods of Dublin", throwing the "smoke signal" to folks on the streets in hopes of getting dealers to interact with them. They also equipped "Luis" with a Bluetooth Earphone Camera to record the interactions.
During this operation "Luis" made two transactions with the Defendant, Antonio Willis, who was later arrested in a "roundup" of everyone whom "Luis" had bought drugs from.
Jury selection, which began nearly 5 years to the date of the first alleged sale, started with 42 citizens. The prosecutor asked if anyone thought marijuana should be legal. Six of the jury pool said yes. The prosecutor, who only had 9 strikes, used 6 of them to strike those who answered yes.
The final jury was 6 white, 6 black and included the son of a Dublin detective and the mother of a Laurens County deputy.
The Prosecution and Evidence
The case finally came to trial after 5 years. The ADA presented 3 witnesses; Sergeant Eric Roland, who was the lead supervisor in these operations; Corporal D.J. Flores, aka "Luis", the undercover agent; Sergeant Brian Scott, who tested the marijuana. These ranks are their current ranks.
Both Sgt Roland and Cpl Flores testified that during these operations, Sgt Roland was within a half-mile or so from each other and stayed in touch with an open cell phone line. In the first alleged buy, the earphone camera/audio malfunctioned, so there is no visual or audio evidence of that transaction. The open cell phone conversations were not recorded in either of the transactions or at least they weren't introduced into evidence. Both Roland and Flores testified from field notes and incident reports in that first transaction. Their testimonies regarding the first transaction were largely consistent with each other, although later testimony would cast doubt on whether or not this was actually "Luis's" first contact with the defendant.
There were video and audio of the second transaction through the earphone equipment, in which Antonio Willis takes money from "Luis", gets on a bicycle, rides off into another part of the mobile home park and returns with a small bag of what tested to be marijuana, as was testified to by Sgt Scott regarding substances from both transactions.
There were no objections to evidence collection procedures or submission into evidence of the video.
All of the officers who testified had 15+ years of experience and testified in a professional manner.
Catherine Bernard is a Georgia Criminal Defense Attorney. She has a private practice but has also been employed as a circuit Public Defender in the Dublin Judicial District and now works as a conflict Public Defender in Middle Georgia. She was assigned Antonio Willis's case as a Public Defender.
In her opening statement, Ms. Bernard planted the idea of Entrapment in the jury's minds. During cross-examination of Roland and Flores, she pointed out that their methods were sneaky and deceitful. After the prosecution rested, the judge sent the jury to the jury room so he could take care of procedural matters. Ms. Bernard asked for a directed verdict of not guilty, contending that the State had failed to meet its burden. The motion was denied. She then asked that the jury be read the affirmative defense of Entrapment during the Court's charge to them. That motion was also denied.
The jury was called back in, and Ms. Bernard presented the only evidence she really had, the defendant, Antonio Willis. The judge advised Mr. Willis that he was not required to testify in his own defense and that he was subject to cross-examination by the prosecution. Mr. Willis still chose to take the stand.
Included in the defendant's testimony was a story that the unrecorded first transaction was not his first encounter with "Luis". Mr. Willis testified that he had met "Luis" once before at the mailboxes of the mobile home park. He said that he and "Luis" had a general kind of conversation and that he had asked "Luis" about putting a good word in for him with his boss. This somewhat corresponded with testimony from Cpl Flores in explaining his "rapport development" methods during the operation, but he said that happened during the "unrecorded" transaction. Cpl Flores had also testified that the first thing out of Mr. Willis's mouth on the third encounter was, "How much do you need?" Mister Willis contradicted that, saying the first thing he asked about was a job.
During both direct and cross-examination, Mr. Willis admitted he had obtained marijuana for "Luis", going so far as to state something to the effect of, "I'm a nice guy. I'd probably do it for anyone that needed it".
The prosecution recalled Cpl Flores as a rebuttal witness to Mr. Willis' claim that there were three, rather than two meetings with "Luis". Cpl Flores didn't specifically say he did not meet with Mr. Willis by the mailboxes. He only said, "Not that I recall".
Ms. Bernard then asked that the video of the third transaction be replayed. In that video, the first thing Mr. Willis asked when he exited his residence to meet "Luis" was "Hey, did you talk to your boss about that job", contradicting the testimony of Cpl Flores.
Ms. Bernard could not bring up the Entrapment idea in her closing remarks, but she did point out the inconsistencies in Cpl Flores' testimony. She also briefed the jury that under the Georgia Constitution, juries are triers of both the facts and the law. The prosecution objected, stating that the jury must judge the facts as applied to the law. The Judge stated that he would charge the jury as to their duties.
The prosecution pointed out in its closing arguments that there were video evidence and the defendant's own admission of guilt. The ADA also went into a rant about marijuana use leading to property crimes and the use of other drugs.
The judge then charged the jury and they retired to the Jury Room.
18 minutes later, the Bailiff notified the Court that the jury was ready, and the Jury returned a Not Guilty verdict on both counts.
64% of Americans now say marijuana use should be made legal. It's time for our lawmakers to recognize that fact.