Fulton County Superior Court Judge Wendy Shoob recently took the all too uncommon but highly commendable step of informing jurors of the mandatory minimum punishment she would be forced to impose on the defendant if they convicted him of armed robbery. In this case, the defendant was facing a mandatory minimum sentence of life in prison without parole if convicted of armed robbery (with an air gun) because he had three prior felonies: one for possession of a screwdriver (yes, really), another for receiving stolen property, and a third for aggravated assault during a jail riot.
Judge Wendy Shoob said she has a right to express her opinion on mandatory sentences and had a duty to tell Fulton County Superior Court jurors that if they convicted a defendant of armed robbery, she’d have to sentence him to life.
As “the judge of the law and the facts under the Georgia Constitution,” wrote Shoob in a March 26 order denying prosecutors’ motions that she step off the case, “the jury should be informed when their verdict automatically imposes, by law, a mandatory sentence.”
Jurors in the case also considered, and ultimately convicted the defendant of, a lesser charge of robbery, for which Shoob sentenced him to 30 years, with 10 years in prison without the possibility of parole. District Attorney Paul Howard took issue with the fact that jurors had access to full knowledge of the consequences of their choice before making it and filed a motion for disqualification of the judge based on her instructions to the jury.
Michael Mears, Associate Professor at Atlanta’s John Marshall Law School, was also quoted in the same article, unfortunately spreading misinformation regarding the traditional, legal authority of the jury:
“Her rationale is very common-sense,” said Mears, who teaches criminal procedure and for years represented death row inmates. “But jurors are not supposed to be concerned with the sentence. That phrase that a jury is to judge ‘the law and the facts’ has been in our constitutions since the 1700s, but it’s never been determined to mean that jurors are supposed to decide the law. That’s jury nullification, and jurors can’t nullify a law they don’t like.”
Indeed, juries have been doing exactly what he says that can’t for hundreds of years now. In fact, it is quite possible that the jury in this case did as well, by convicting the defendant of a lesser charge. If so, what they did was perfectly legal and they cannot be punished for their verdict.
Georgia’s defendants, as Mears alludes to in his comments, enjoy an extra, explicit layer of legal protection spelled out in the Bill of Rights of Georgia’s state constitution that:
In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.
Shoob soundly denied District Attorney Howard’s request, making several strong points in support of jurors’ rights in her order including that:
—”The right of the Jury to consider mandatory sentencing is grounded in their role as the judges of the law and the facts under the Georgia Constitution,”
—”Jury power over sentencing was historically established under the Sixth Amendment as an intrinsic component of their function as a check on overreaching government,” and that
—”The jury has a right to be informed about mandatory sentencing in light of its intended role of political oversight.”
In her Order Denying Motion for Reconsideration of Order Denying Motion for Disqualification of Judge, Judge Shoob spoke volumes about the crucial role of juries who are fully informed of the punishment at stake in cases where mandatory minimum sentences are in play:
This Court holds that as the judge of the law and the facts under the Georgia Constitution, the jury should be informed when their verdict automatically imposes, by law, a mandatory sentence. The Sixth Amendment’s right to a jury trial was designed to provide the opportunity and power of the community to mediate punishment through the jury itself. Following the Supreme Court’s recent invalidation of statutory sentencing schemes eroding jury power, this Court is applying the same analysis to return to the jury the rights it was intended to have, and historically enjoyed, under the Constitution of the United States.
Criminal defense lawyer and FIJA Georgia State Contact Catherine Bernard praised Judge Shoob’s firm stance. “When jurors are deprived of basic information about the consequences of their decision, their role as the judges of the law and the facts is necessarily diminished. Judge Shoob has taken a courageous stand for justice and fairness in a system increasingly driven by prosecutorial discretion and other tools that undermine the fundamental right to trial by jury,” Bernard said.
When jurors regret their Guilty verdicts, one of the recurring themes we hear from them is that they had no idea that their vote would deliver the defendant, whose life was in their hands, up for an unjust punishment far beyond anything they had imagined. Many such cases involve mandatory minimum sentences that allow judges no discretion and essentially leave sentencing solely in the virtually unchecked control of prosecutors who are themselves fully informed about the consequences when they charge defendants.
We would NEVER hear a prosecutor in court excusing a drunk driver who had killed someone on the basis that the driver hadn’t considered the consequences of his actions when he chose to operate heavy machinery when he was unable to properly do so. Yet prosecutors regularly expect jurors to be complicit in destroying defendants’ lives by rendering a verdict without first considering the consequences of their actions. It is a poor reflection on our legal system that what is considered unacceptably irresponsible in virtually every other context is precisely the sort of behavior that prosecutors expect and even demand in court. It is, on the other hand, an encouraging glimmer of hope in such a cognitively dissonant environment to see a judge helping to readjust such expectations.