Nullify Drug War, Empower Juries, Save Lives: All In a Day's Work for This Heroic Defense Attorney

Catherine Bernard is fighting the war on drugs one acquittal at a time.

Laurens County, Georgia, may not seem like the most obvious place to be leading the charge to end marijuana prohibition. But one local attorney’s unique approach to criminal defense is changing hearts and minds, slowly nullifying the unjust laws that have destroyed countless lives over the last several decades.

Javonnie Mondrea McCoy

When Javonnie Mondrea McCoy stood before the jury and admitted to growing marijuana in his home, the last thing the prosecution expected was a verdict of “not guilty.” Unlike states such as Colorado and California, cannabis is still very much illegal in Georgia. But it was precisely McCoy’s willingness to be so forthcoming that ultimately left the jury unwilling to sentence him to spend years behind bars.

On paper, McCoy’s situation appeared likely to be an open-and-shut case. He was a black man found in possession of marijuana in the South. Like so many cases that came before him, the odds of his trial ending with incarceration were high. But instead of condemning McCoy to rot in a cage, the jury chose to take his individual circumstances into account.

“Yep, it was mine,” McCoy told the jury, “I use it as medicine.” Years earlier, he had been the victim of a brutal attack, which left him with painful chronic injuries. Well aware of our current opiate crisis inflicting the nation, he chose to medicate with cannabis rather than seek more extensive treatment. And it was this decision to grow his own plant that led to his arrest.  

And without any substantial evidence that he was a threat to society, the jurors could not, in good conscience, convict him of wrongdoing.

The police charged McCoy with the manufacture of marijuana and with possession of drug-related objects, both felonies in the state of Georgia. But upon hearing McCoy’s testimony, it became clear to the jury that his cultivation of marijuana was not for the purpose of selling it to others. Instead, McCoy grew the plant solely for his own use. And without any substantial evidence that he was a threat to society, the jurors could not, in good conscience, convict him of wrongdoing.

Juror Lizzie Mae Davis commented, “He was believable. He wasn’t trying to make money. He had it to ease his health.” Juror Kenneth Thompson further added, “a lot of us said he wasn’t bothering anybody.” And even though the law made McCoy’s actions illegal by proxy, the jurors refused to convict him— a practice most commonly known as jury nullification.

The Power of The Juror

When McCoy’s attorney, Catherine Bernard, first addressed the jury, she reminded them of the wonderful opportunity they had before them in deciding this case. As members of the jury, they play a very important role in our legal system, one that Bernard calls a “powerful and awesome position.”

And while Bernard does not particularly care for the term “jury nullification,” she was, more or less, encouraging the jury to exercise this very right. Jury Nullification has deep roots in our American legal system and allows jurors to “nullify” a law if they believe it to be unjust. While it is protected under the United States Constitution, it is also explicitly protected under Georgia law as well. Under Article 1, Section 1, Paragraph XI of the Georgia State Constitution, it reads, "the jury shall be the judges of the law and the facts."

However, when Bernard read this aloud to the jury prior to McCoy’s trial, the judge cut her off and tried to say she was misinterpreting the law. But Bernard, who is the Georgia contact for the Fully Informed Jury Association, continued to empower the jury anyway. She told Reason, "He told me I couldn't say it, so of course I continued to say it.”

At the heart of jury nullification rests the belief that individuals and their unique circumstances should be taken into account before one is sentenced under an arbitrary or unjust law.

At the heart of jury nullification rests the belief that individuals and their unique circumstances should be taken into account before one is sentenced under an arbitrary or unjust law. And given the state of our criminal justice system, this right is absolutely important. Had McCoy been convicted, he could very well have spent the remainder of his life incarcerated all because of a plant. And if he was fortunate enough to be released eventually, he would begin the dismal journey that so many other former convicts endure when trying to reenter society.

Legally bound to mark the “are you a felon” box on job and leasing applications, it is likely that McCoy would have struggled to find employment and stable housing. For many who find themselves in this position, this means ending up back behind bars. But luckily, the jury understood how important it was to listen to his individual story.

Emphasis on the Individual

As Bernard said, "It's very important to focus on the individual circumstances, to emphasize the defendant's role in the community.” She likes to do this by asking the jurors to question the laws and ask themselves if they reflect their personal values and the values of the community.

And the overwhelming response from the jurors was that McCoy was not harming anyone and therefore, it was the law that was in the wrong, not the defendant.

McCoy commented:

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.

And while McCoy was fortunate to have a jury willing to judge him on his own individual merits, this is not the first time Bernard has used this strategy to seek justice for her defendants.

Antonio Willis

In 2012, Antonio Willis was caught selling a few marijuana joints after being tricked by an undercover cop—a “crime” that would have resulted in him serving five years in jail.

Willis had been out of work and in need of a job when a cop, disguised as a construction worker driving a “beater car,” approached him. The officer had convinced Willis, who had recently been laid off from his factory job, to come along with him to a construction gig he had acquired. Excited at the prospect of work, he got in the car. In a video of the encounter, the officer tells him the job will pay $16 an hour, but in order to come along, he would need to bring a few joints.

Willis commented:

He kept saying, ‘I need a joint.’ I’m thinking, ‘It’ll help me get a job.’ I just took it as friendship.

It took five years for Willis’s case to ever reach court. Prior to his trial, the prosecution refused to allow jury members who had expressed that pot should be legal. Already, this shows a huge bias on the part of the state. This resulted in the jury where three of the jurors had family members in law enforcement. The odds did not look great for Willis. Prosecutors offered him plea deal after plea deal if he would just agree to enter a plea of “guilty,” but Willis refused at Bernard’s insistence.

Bernard commented:

If I’d pushed him to plea, he would have. But taking a plea (and going on probation) still would have impacted his life. They run your life. You’re still really in jail, they just let you walk around.

But as with McCoy’s case, Bernard believed that by demonstrating unbridled honesty, the jury would see Willis for who he really was, not who the prosecution was going to make him out to be. Instead of denying that he did, in fact, break the law, Willis was entirely truthful about what had happened in his encounter with the officer. And after 18 minutes of deliberation, the jury came back with a verdict of “not guilty.”

And by asking the jury to view her defendants as individuals rather than simply dismissing them as criminals, Bernard was able to spare two souls from having to spend time behind bars.

In both Willis’ and McCoy’s cases, Bernard asked the jury to remember that each person on trial was much like them: fallible but generally good people who are just trying to get by like everyone else. And by asking the jury to view her defendants as individuals rather than simply dismissing them as criminals, Bernard was able to spare two souls from having to spend time behind bars. But the implications of this are actually much more important than one might think.

Historical Context

Jury nullification has come to be viewed as a rather radical idea, but it is one that has deep roots in our American legal system. In 1735, John Peter Zenger was charged with “seditious libel” after he had published newspapers publicly criticizing the governor of New York at the time. While Zenger did receive a jury trial, at that time the jury was only allowed to deliberate on whether or not he had actually published the papers. It was then left to the judge to decide whether the content was considered libel.

Zenger’s defense attorney, Andrew Hamilton, sounded a lot like Bernard when he addressed the jury, saying:

Gentlemen, the danger is great, in proportion to the mischief that may happen through our too great credulity. A proper confidence in a court is commendable; but as the verdict (whatever it is) will be yours, you ought to refer no part of your duty to the direction of other persons. … It is your right to do so, and there is much depending on your resolution, as well as upon your integrity.

In response, the jury acquitted Zenger of all charges. This case was so influential, it was championed by the Founders, including Benjamin Franklin who personally commented on the matter.

Thanks to Zenger and his defense attorney, jury nullification would go on to be used in several important cases in American history.

Thanks to Zenger and his defense attorney, jury nullification would go on to be used in several important cases in American history. It was used when jurors refused to convict those charged with violating the Fugitive Slave Act and it was also responsible for bringing justice to Vietnam War protesters in the case of United States v. Moylan. Jury nullification was also largely responsible for ending alcohol prohibition.  

Prior to the adoption of the 21st Amendment, 60 percent of juries refused to convict individuals for violating the Volstead Act, which was the legal vessel for enforcing alcohol prohibition. And it was this refusal to enforce unjust laws that led to the repeal of the 18th Amendment. So Catherine Bernard is continuing a long, heroic American tradition as she reminds juries of their powerful constitutional roles and tirelessly works toward ending the wicked War on Drugs, one life-saving acquittal at a time.

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