Pubdate: 18 Sep 1997 Source: Boulder Weekly, Speaking Out Page 6 Contact: Boulder Weekly, 690 S. Lashley Lane, Boulder, CO 80303 Phone: (303) 4945511 Fax: (303) 4942585 Email: Jury Nullification: A Power or a Thought Crime? By Laura Kriho I want to thank the Boulder Weekly for the brilliant series of reports they did on my case from October 1996 through March 1997. Thankfully, contempt proceedings against jurors are quite rare. I've been told mine is the first like it in over 300 years. In February, I was convicted of contempt of court, in part, for failing to volunteer my knowledge about the doctrine of jury nullification to the court during jury selection, even though I wasn't asked any questions about it. In March, I was sentenced to a $1,200 fine, though I could have received six months in jail. My conviction is under appeal. My prosecution arose after I served on a jury in a methamphetamine possession case in Gilpin County in May 1996. I was the lone juror who refused to convict the defendant. I was cited for contempt based on evidence of "improper" arguments I made in the jury room about jury nullification and the harsh sentence the defendant could receive. I am a little afraid to have this editorial published. An article from the Boulder Weekly ("The Hemp Initiative: Are the Proponents Just Blowing Smoke?," 07/07/94) was used as evidence against me at my trial. I was interviewed in the article about my involvement with the movement to relegalize hemp and cannabis for medicinal, industrial, and personal use. The prosecutor introduced the hemp article to show my intent to "obstruct justice" in a methamphetamine case. The prosecutor even subpoenaed the editor of the Weekly to testify to the veracity of the article at my trial. For the record, I was not trying to "nullify" the drug laws. I had reasonable doubts based on the lack of evidence, which I argued about extensively during deliberations. I only mentioned my (then) vague understanding of jury nullification as a last resort, in frustration at the other jurors' desire to convict and get home for dinner. I know a lot more now. Jury "nullification" describes the historic power of juries to vote according to their conscience, even if it is contrary to the evidence. Juries can "nullify" laws in a particular instance, either because the jurors believe that the law is unjust or because they believe the application of the law in a particular instance would be unjust. A jury can acquit for any reason. This power is also referred to as jury "discretion." Just as police use discretion on whether to enforce the law; and prosecutors use discretion when charging someone with a violation of the law; and judges use discretion in deciding whether to dismiss those charges; jurors also have the power to use discretion in applying the law. Jury nullification is not a new or radical concept. It is an English doctrine that was brought over to the U.S. and was well known to the authors of the Constitution. Many of our early revolutionaries, accused of victimless crimes against the Crown, were set free by juries of their peers. Jury nullification of unjust laws helped secure our rights to free speech, free press, freedom of assembly, and freedom of religion. This power of juries has been upheld by the U.S. Supreme Court and was even re affirmed by Gilpin District Judge Henry Nieto in his ruling that convicted me. However, for the past 100 years, the courts have ruled that jurors do not have to be informed of their power to evaluate the law. My conviction has taken this reasoning a step further. Judges typically instruct juries that they can only judge the facts of the case, and not the merits of the law. My conviction implies that any potential juror who knows the true power of the jury and who fails to volunteer that knowledge during jury selection, even if not asked, can and will be prosecuted. On its face, my case seems like an anomaly: a rare aberration of justice. While that is certainly true, there is more to it than that. Through my research, I have discovered that there is a nationwide movement among judges to actively mislead jurors about their power to use their discretion. As reported in the Boulder Weekly (Witch Hunt: Court Seeks Revenge Against Juror Laura Kriho, 10/3/96), one of the leaders of this movement is another Gilpin judge, County Judge Fred Rodgers, who wrote an article in a national legal journal about the issue. The article outlined strategies for judges to use to keep jurors ignorant of their power to "nullify" unjust law and for prosecuting "obstructionist" jurors who don't volunteer their knowledge of this power to the court. Most shocking, Judge Rodgers mentioned the supposed facts of my case in his article, although it was apparently written before I was even charged. Judge Rodgers denied any conspiracy but admitted to the Weekly that the article "might have been lying around in the lunchroom and someone from the district attorney's office may have gotten a hold of it." I believe this movement among judges to deceive and frighten jurors is the real reason I was prosecuted: to use me as a test case. They want to purge juries of anyone who knows they have the power to acquit, make jurors afraid to acquit, and prosecute jurors who do acquit After reading this article, you too will possess forbidden knowledge that will exclude you from serving on a jury in many courtrooms, if you choose to reveal your thought crime to the court. Should that make you afraid to serve on a jury? Perhaps, but that is what I least want to come out of my prosecution. Juries were designed to protect citizens from unjust laws and unjust application of laws. When courts have the power to punish and imprison jurors, the jury system can no longer stand between the citizen and the government. The jury system has then become a rubberstamp for the government prosecution. The practice of prosecuting jurors has no place in our "modern" system of justice. It is reminiscent of Medieval justice (or, worse, a Monty Python movie). In medieval times, when a woman was accused of witchcraft, government inquisitors would tie her up and cast her into a lake. If she floated, she was guilty and burned at the stake. If she sunk, she was innocent, but dead all the same. For more information on my case, leave a message at (303) 7845632.