What’s Wrong with Having a 13th Juror? Anything?

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Recently, there have been a couple of criminal cases heard by the Georgia Supreme Court which have involved the trial judge’s inherent duty to be the final arbiter of fairness and justice in the courtroom. Sometime this is referred to as the “13th Juror,” because the trial judge sometimes must base her or his ultimate decision on the facts, testimony and documentary evidence presented at trial…things an appellate court would not be in a position to know.  A recent  discussion about the notion of the trial judge as 13th juror came in an appeal of a criminal case, State v. Hamilton, 832 S.E.2d 836  (Ga. Sup. Ct. September 3, 2019) in which the Georgia Supreme Court heard oral argument on the issue of whether the trial judge was authorized to  toss out three counts of assault when that the jury had convicted the defendant on, in the judge’s opinion, there was no way factually or legally for those three counts to be proven beyond a reasonable doubt.  The Court affirmed the trial court’s granting of a new trial.  “Having reviewed the entire record, and considering that the trial court was authorized, as the thirteenth juror, to discount Taylor’s and Hewatt’s testimony and to credit Hamilton’s story, and bearing in mind the standard of review set forth in OCGA § 5-5-50, we cannot say that the trial court’s conclusion was an abuse of its substantial discretion to grant Hamilton a new trial. See Hamilton, 299 Ga. at 670-671, 791 S.E.2d 51 (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).”

In another case recently argued before the Georgia Supreme Court, the Court told the Fulton County D.A., who was appealing a trial judge’s granting of a new trial, that the D.A. was “wasting the Court’s time” with such an appeal when the trial judge clearly has the power, right and, arguably, the duty, to grant a new trial. In that case, State v. Beard, NO. S19A0535 (Ga. Sup. Ct. October 31, 2019) quoted below, the Supreme Court’s opinion called the D.A.’s position “bizarre.”  “Contrary to the State’s bizarre argument, the jury’s verdict was not demanded by the “great physical laws of the universe.” (“An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.”).’
State v. Beard, S19A0535, 2019 WL 5656338, at 4 (Ga. Oct. 31, 2019). Since then, the Fulton County D.A.  dismissed its appeal and has vowed to take his argument to the Georgia Legislature in an attempt to get legislation passed that will eliminate this inherent duty and power of the trial judge.

Georgia Law has long recognized the inherent power and duty of a trial judge to ensure a trial has been conducted with fairness and justice. A trial judge has the power to grant a new trial in the event a jury’s verdict does not comport with that sense of justice and fairness. Under O.C.G.A. § 5-5-20, Verdict contrary to evidence and principles of justice and equity, “In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.”  In interpreting that law, the Georgia appellate courts have insisted  that trial judges cut a wide swath of discretion in ruling on a Motion for New Trial and that ruling will not be disturbed on appeal except when there has been a “manifest abuse of discretion.”  “It is well established that even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to … the principles of justice and equity,” OCGA § 5520, or if the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5–5–21. When properly raised in a timely motion, these grounds for a new trial—commonly known as the “general grounds”—require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’ ” In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless—it is, after all, a discretion that “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict”—it nevertheless is, generally speaking, a substantial discretion.”  State v. Beard, S19A0535, 2019 WL 5656338, at 4 (Ga. Oct. 31, 2019).  “Manifest abuse of discretion” essentially means the trial court’s decision will be affirmed by the appellate court…99.9% of the time.

The Georgia Supreme Court recently held in State v. Hamilton, “Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to … the principles of justice and equity,” OCGA § 5–5–20, or if the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5–5–21. When properly raised in a timely motion, these grounds for a new trial—commonly known as the “general grounds”—require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’ ” In exercising that discretion, the trial judge must consider some of the things that [he] cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless—it is, after all, a discretion that “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict”—it nevertheless is, generally speaking, a substantial discretion.”  State v. Hamilton, 832 S.E.2d 836, 841 (Ga. 2019).

In fact, Georgia historically recognizes that inherent judicial authority so much that it permits a trial judge to grant an “extraordinary” motion for new trial when such a motion is filed even years after the trial in the event new evidence is exposed.  For example, in Ford Motor Co. v. Conley,  294 Ga. 530 (2014), a case I was privileged to argue before the Georgia Supreme Court, the trial judge granted an extraordinary motion for new trial when it came to light two years after the trial that Ford Motor Co. that Ford Motor had numerous insurance policies on which the jury should have been qualified as to for the jury panel to be legitimate.

A trial judge’s rulings within the trial and afterward, with respect to motions for a new trial, is given extreme deference by appellate courts. The Georgia Supreme Court has emphasized this in Conley:   “Unlike this Court or the Court of Appeals, the trial court directly supervised the ebb and flow of the discovery and trial process in this case and had the opportunity to observe and assess the conduct, demeanor, and credibility of the parties and their counsel throughout the proceedings, as well as the witnesses presented on this specific issue at the motion for new trial hearing.”  (“ ‘[T]rial judges, through their direct involvement with the case, the parties, and the attorneys, and their familiarity with the actions of the parties in the conduct of discovery in similar cases that are properly brought to their attention, are in the best position to evaluate the parties’ conduct and to determine the appropriate level of [discovery] sanctions.’ ” (citation omitted)); Santora v. American Combustion, Inc., 225 Ga.App. 771, 772, 485 S.E.2d 34 (1997) (“In determining whether a party has abused discovery, the trial court sits as trier of fact, and this Court will uphold a finding of wilful discovery abuse if there is any evidence to support it.”).

I realize that I blogged just last year about the role of a trial judge, so it is, obviously, important to me. There is nothing at all unusual about a judge acting in her role as the 13th juror. It has been part of our jurisprudence for as long as we have been a nation.  And don’t you want the judge to be able to inject fairness and justice into the system when the judge can see for herself that something has gone off the rails?  A sense of justice is one quality in a person running for the bench that we look for in deciding who to vote for for judge, since we elect our trial court judges here in Georgia. If a trial court judge can’t intercede when there has obviously been a miscarriage of justice, then the trial judge is nothing more than a mere potted plant.  Without the inherent power and duty to insure justice has been done, you might just well as have a referee. And that the Fulton County District Attorney wants to undo that hallmark of American Jurisprudence is telling.

 

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.

 

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