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Georgia’s Law on Inconsistent Criminal Verdicts

A couple of months back, I tried a case involving a 13-count indictment. The end result was not a total victory, but a 92% victory. Out of the 13 counts, the jury acquitted my client on 12 of them. The one count my client was found guilty of: Possession of a Knife During Commission of Felony. From a guttural perspective, I thought “without the underlying felony, how can a verdict on this stand?”

Basically, a charge like this one (as well as Possession of a Firearm During Commission of Felony) is an “add on” charge. Anytime a felony is charged and there is a gun involved, this charge gets “added on”. It seems logical that without the underlying felony conviction, then there can be no Possession of [insert weapon] During Commission of Felony. However, the counter-intuitive result is true – These charges can stand on their own.

Over the years, the Georgia Court’s have flip flopped on this issue several times, but now it is firmly embedded in caselaw. The first definitive ruling on inconsistent verdicts at the federal level came through United States vs. Powell, 469 U.S. 57 (1984). The Court noted that a rule that could allow a defendant to challenge his or her verdict because it was inconsistent would be “imprudent and unworkable,” and that any individualized assessment “would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake.” Id.

Basically, what the Supreme Court was saying is that even though the verdict may be inconsistent, that no one can know what went on in the jury deliberations. Maybe the jury was embarking on jury nullification and the inconsistent verdict actually helped the defendant. The courts should not be retroactively trying to figure out what was going on in the minds of the jurors. It is too messy of a task. (Georgia courts fell in line with the Powell case quickly, with the 1986 Georgia case of Milam v. State, 255 Ga. 560 (1986).)

However, in 1996 Georgia readdressed the initial inconsistent verdict that my client received. In Strong v. State, 223 Ga.App. 434 (1996), the Court of Appeals differentiated cases involving Possession of [insert weapon] During Commission of a Felony and stated that “a conviction of possession of a weapon during the commission of a felony must stand or fall in conjunction with the underlying felony upon which the charge is predicated.” Id.

Bam! Case law on point! This is what I am talking about! Much to my chagrin, this is bad caselaw. Strong was quickly overruled by Kimble v. State, 236 Ga.App 391 (1999). Kimble basically stated that Strong was incorrect because it did not follow the Powell logic, so Strong was overruled

So although it is counterintuitive to common sense, it is possible for a jury to convict for only an “add on” crime, without convicting on the predicate crime. And I can see why. Many times, inconsistent verdict come back from the jury because of jury nullifications, and that is to the clients’ advantage.

Gregory Clement