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Dags’s Bricks

Jarvis Taylor was on trial for committing an armed robbery with an air gun. Because his prior criminal history included theft by receiving stolen property, possession of a tool for the commission of a crime, and aggravated assault for his actions during a jail riot, a conviction for the armed robbery would have meant a mandatory sentence of life without the possibility of parole.

Atlanta Judge Wendy Shoob instructed the jury (pdf) that a conviction for the offense would bring a mandatory life sentence without the possibility of parole. The jury ultimately convicted of the lesser included offense of robbery by intimidation. But not before the Fulton County District Attorney moved to recuse the judge from the case and not before the judge refused to grant the State a certificate of immediate review.

When I first read this story in the Fulton Daily Report, my reaction was that the judge made a gutsy and principled move but one with little basis in the law. I held this view until I read the Order.  I walked away from the order with the belief that the order is on a firm legal footing. Allow me to provide a brief overview:

• Under the Georgia Constitution, “in criminal cases, the defendant shall have a public and speedy trial by jury; and the jury shall be the judges of the law and the facts.” Here, the State objected to an instruction to the jury about sentencing, arguing that the jury is responsible for guilt and innocence and the judge is responsible for sentencing. But, not so fast, said Judge Shoob. With mandatory minimum sentencing, the judge has no real power over the sentence. The sentence and the verdict are inextricably linked to one another. Hence, the jury ought to know the consequence of the verdict.
• There is a historical basis for the power of the jury as a check against an overreaching government. Here, Judge Shoob actually cites The Federalist Papers to support a position that the jury has a tradition function to maintain free government. That function includes the right to nullify.
• Recent United States Supreme Court decisions have stressed the importance of returning the jury “to appropriate constitutional powers and essential role within the Constitution’s system of checks and balances. Here she goes into recent Sentencing Guidelines Cases that have returned to the jury certain powers with respect to sentencing.
• Finally, she reasons that the jury has the right to know about mandatory sentencing. First, “where the Court is bound by the statutory term of imprisonment, the jury essentially determines both the verdict and the sentence.” This last point sound a good bit like her first point. But, here, she references cases from around the country and she weaves two previous point together. “When the prosecution does not use its power carefully and equitably, and the judge is removed form sentencing decisions, the only thing that stands between the individual and the awesome power of the State is the jury system.”

A couple of points. I do not think I’ve ever received an order from a Georgia State or Superior Court judge that quotes The Federalist Papers. Also, the point that under a mandatory minimum regime, the verdict determines the sentence is a powerful and innovative one.

I will leave for another post the idea of prosecutors who use recusal motions when a judge does something that they do not like. It is trend I have noticed around the State lately.

Pro tip: weave Judge Shoob’s Order into motion or request to charge in your next case with a mandatory minimum.