Tom McCain is a retired Air Force master sergeant. He is also a retired Georgia peace officer, retiring as the chief deputy of Johnson County. He is now the executive director of Peachtree NORML and fights to end the injustices caused by marijuana arrests in Georgia. He has vowed to end marijuana prohibition in Georgia.
LAURENS COUNTY, GA—Last month I watched a trial jury do the right thing and let a defendant go free—despite the fact that, by the strict letter of the law, the man was guilty. It was an uplifting experience. I want to share it with marijuana reform advocates and anyone else who cares to read it.
I’m elated about it from the perspective of an old cop turned marijuana legalization advocate.
At issue is jury nullification, which occurs when a jury returns a not-guilty verdict 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.
I’m relating this story from the perspective of my observations as a retired cop who has sat through and participated in hundreds of 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 was hired by DPD, and ACE put him to work in an undercover capacity.
The agent created a cover character called “Luis,” an electrical worker, according to court documents. 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 drive through the neighborhoods of Dublin, GA, in hopes of getting illicit drug dealers to interact with him. He was equipped with a Bluetooth earpiece with a camera to record the interactions.
During the operation, Luis made two transactions with defendant Antonio Willis, who was later arrested in a roundup of everyone from whom Luis had bought drugs.
Jury selection started with 42 Laurens County citizens. The prosecutor asked if anyone thought marijuana should be legal. Six of the potential jurors said yes. The prosecutor, who had the ability to throw out nine potential jurors, threw out all six.
The final jury was composed of six white jurors and six black jurors, and included the son of a Dublin detective and the mother of a Laurens County sheriff’s deputy.
Prosecution and Evidence
The case finally came to trial nearly five years after the first alleged sale. The prosecutor presented three witnesses; Sgt. Eric Roland, who was the lead supervisor of the operation; Cpl. D.J. Flores, aka “Luis”, the undercover agent; and Sgt. Brian Scott, who tested the marijuana.
Both Roland and Flores testified that, during the operation, Roland was within a half-mile or so from other officers and stayed in touch through an open cell phone line. In the first alleged buy, the earpiece’s camera and audio malfunctioned, leaving no visual or audio evidence of the transaction. Both Roland and Flores testified from field notes and incident reports in the first transaction, and their testimonies regarding the first transaction were largely consistent. Later testimony, however, would cast doubt on whether or not it was actually Luis’s first contact with the defendant.
In the second transaction, video and audio from the earpiece shows Antonio Willis taking money from Luis at a mobile home park, getting on a bicycle, riding off into another part of the park, and returning with a small bag of what police determined to be cannabis.
There were no objections to evidence collection procedures or submission into evidence of the video. The cell phone conversations in both of the transactions were either not recorded or at least not introduced into evidence.
All of the officers who testified had 15+ years of experience and testified in a professional manner.
Catherine Bernard, a public defender who also runs a private practice, was assigned to Willis’s case. In her opening statement, she planted the idea of entrapment in the jury’s minds. During her cross-examination of Roland and Flores, she indicated that their methods were sneaky and deceitful. She urged the judge to issue a not-guilty verdict, or at least instruct the jury on how to read the entrapment claim. The judge rejected both efforts.
Bernard was left to present the only evidence she really had: the defendant, Antonio Willis. The judge informed Willis that he was not required to testify in his own defense and that he would be subject to cross-examination by the prosecution. Willis chose to take the stand.
Multiple times during the trial, Willis admitted he had obtained cannabis for Luis.
Willis testified that he had met Luis once before the alleged transactions, at the mailboxes of the mobile home park. He and Luis, he said, had a general kind of conversation. He’d asked Luis—who he thought was, in fact, an electrical worker—about putting a good word in for him with his boss. The story corresponded somewhat with testimony from Flores about his methods for developing rapport with subjects in an operation, but Flores said that interaction with Willis happened during the first, unrecorded transaction.
Asked later about how he met Willis, Flores didn’t deny meeting him by the mailboxes prior to the transactions. He said only: “Not that I recall.”
Flores also testified that the first thing out of Willis’s mouth during the second transaction was “How much do you need?” Willis contradicted that, saying the first thing he asked about was a job.
Bernard then asked that the video of the transaction be replayed. In it, the first question Willis asks when he exits his home to meet Luis was, “Hey, did you talk to your boss about that job?” It directly contradicted the testimony of Flores.
Multiple times during the trial, Willis admitted he had obtained cannabis for Luis. At one point he said something to the effect of, “I’m a nice guy. I’d probably do it for anyone who needed it.”
While Bernard was barred from bringing up entrapment during her closing remarks, she pointed out the inconsistencies in Flores’ testimony.
The prosecution, for its part, argued that there was video evidence of the crime—and that the defendant himself admitted guilt. As part of the closing, the prosecutor ranted about the dangers of cannabis use, claiming that it leads to property crimes and the use of other drugs.
Just 18 minutes later, the jury returned a not-guilty verdict on both counts.
Disclaimer and Personal Observations
These are my recollections of the trial, and this narrative is a synopsis of those recollections. I didn’t take notes other than mental ones.
From a retired cop’s perspective, I thought Willis was cooked. I had seen some skeptical looks from some members of the jury during the testimony from the prosecution’s witnesses, but I thought Willis’s admission that he indeed provided the cannabis would be impossible to overcome.
It is my hope that prospective jury members across the country will recognize that they have the power to nullify the nation’s harsh and wrongheaded cannabis laws.
The jury’s return after only 18 minutes reinforced that belief. Guilty verdicts sometimes come quickly, but in all my time in courtrooms, I have only seen one other jury return a not-guilty verdict in such a short a period. That was a moonshine case in Johnson County.
When the court clerk read the verdict, I was shocked. The judge asked the foreman if it was a unanimous vote, and the answer was yes. It was then that I realized this was jury nullification, pure and simple.
Sure, Bernard’s aggressive defense of her client made a difference. But video evidence doesn’t lie—and Willis even admitted his guilt under oath. A jury in Middle Georgia returned a not-guilty verdict in a marijuana sale case despite nearly unimpeachable evidence. The verdict, in other words, likely came as a result of the jury’s moral disagreement with the law itself—or at least how it was applied in Willis’s case.
It is my hope that this case receives wide exposure, and that prospective jury members across the country will recognize that they have the power to nullify the nation’s harsh and wrongheaded cannabis laws, whether through a unanimous not-guilty verdict or by simply hanging a jury and causing a mistrial. It is my hope that everyone arrested, especially for simple cannabis possession, will take their case to a jury trial. And it is my hope that district attorneys in Georgia and other states will grow tired of seeing cannabis cases and decide to stop prosecuting them.
A version of this story originally appeared on the Peachtree NORML website. It has been edited and reprinted here with permission from the author.