The Mountain-Ear
Letter to the Editor
Printed: October 17, 1996
feedback encouraged: mtn-ear@indra.com
Not quite ready for jury nullification
Recent letters to The Mountain-Ear reflect a great deal of misinformation about the Laura Kriho case and the American jury system in general. Having served as both a prosecutor and a criminal defense attorney, I'd like to offer the following comments.
First, Ms. Kriho is not being punished for "voting her conscience." This is not a case in which a lone juror held out because she believed the prosecution had failed to meet its burden of proof; this is a case in which a juror who disapproved of certain drug laws lied about her past and her willingness to follow the law in order to serve on a jury and then disobeyed the judge by urging other jurors to disregard the law.
Second, nobody is denying Ms. Kriho a jury
trial because of what she did. Though I personally disagree, the Supreme
Court has held that a person facing six months or less in jail has no
constitutional right to a trial by jury. Ms. Kriho is not being treated
any differently than anyone else cited for such an offense.
Third, contrary to what one reader suggested, Gilpin County Judge Fred Rodgers did not publish an article on how to prosecute obstructionist jurors. Judge Rodgers' article in the summer issue of The Judges' Journal was submitted to that magazine as a result of the acquittal of O.J. Simpson and long before the Kriho incident arose. The article, which I found to be both scholarly and balanced, alerted judges across the nation to the First Amendment issues which may arise when groups such as the so-called Fully Informed Jury Association appear at courthouses and attempt to make contact with jurors who have sworn to follow the law.
I have mixed feelings about jury nullification.
When representing criminal defendants, there were times when I hoped jurors
would disregard laws I considered to be draconian or archaic. On the other
hand, followed to its logical conclusion, giving jurors the right to disregard
the law ultimately does away with the rule of law altogether. Readers considering
this issue should remember that jury nullification can work both ways.
Consider the case of Oklahoma City bombing suspects Timothy McVeigh and
Terry Nichols. Suppose several closet supporters of the militia movement
wormed their way onto the jury by lying about their beliefs and their willingness
to follow the law. Even if the evidence of guilt was overwhelming, the
doctrine of jury nullification would allow
those jurors to acquit merely because they didn't like the way some federal
agencies handled the situation at Waco. After all, they would just be "voting
their conscience."
Though I disagree with some of our laws,
I'm not quite ready to accept jury nullification.
Mark S. Cohen
Nederland
Letter to the Editor
Submitted: October 20, 1996
To: The Editor, the Mountain-Ear
via email: mtn-ear@indra.com
From: Paul Grant
Re: Laura Kriho Case
In response to Mark Cohen's letter (10/17/96), I must offer some corrections
to his attempts to straighten out some facts about Laura Kriho's case.
As Laura's attorney, I am closer to the facts, and I wonder where Mr. Cohen
got his supposed facts.
1. Mr. Cohen is entitled to his opinion as to why Laura Kriho has been
prosecuted. The facts are, however, that what she did in the jury room
was thoroughly evaluate the prosecutor's evidence - and she found it insufficient
to convict on one two counts, sufficient for conviction on a third count.
She also informed the other jurors that jurors have rights. After the trial,
outside the courthouse, she even provided a brochure dealing with jury
rights to another juror.
That's what provoked the judge to ask for an investigation and prosecution
of Laura Kriho: her discussion of juror rights - if the evidence presented
at trial, by other jurors - is to be believed.
Mr. Cohen says Laura lied during jury selection. That is not true, it's
just a libelous statement he repeats. There was no evidence offered at
trial that any statement made by Laura was false. Those accusations against
her were not supported by any evidence.
2. Concerning the fact Laura was not allowed a jury trial: at first she
was given one, then the prosecutor, realizing he couldn't win with a jury,
decided to limit the punishment he would seek to "no more than 6 months"
so he could eliminate the jury. Legal? Yes. Ethical - No.
3. Mr. Cohen didn't read the Judge Rodgers' article (The Judge's Journal,
Summer 1996) very well, if he thinks it was written long before Laura Kriho's
case. His article includes facts about Laura's case - incorrect facts,
by the way - and does recommend prosecuting "obstructionist jurors."
Why Mr. Cohen denies what is written in black and white, I won't presume
to guess.
What is peculiar about Judge Rodgers' article -- and perhaps the Judge
will explain this publicly -- is, how could the judge submit this article
before Laura Kriho was even charged, as he apparently did, yet include
facts about her case??? Where did he get his information??? And why was
he writing about a pending case???
Mr. Cohen describes Judge Rodgers' article
as scholarly and balanced. That's strange, since anyone who knows the subject
matter addressed in the article -- jury nullification and the Fully Informed
Jury Association (FIJA) -- would have to find Judge Rodgers' article full
of misinformation, hostility and open bias.
Judge Rodgers tries to taint jury nullification as having racist roots,
and he gave short shrift to the history of jury nullification, overlooking
that heroic juries were instrumental in establishing freedom of assembly,
freedom of religion, freedom of speech, freedom of the press, resistance
to slavery, rejection of Prohibition, and many other noble achievements.
America's Founding Fathers benefited from juries refusing to convict under
what they considered unjust British laws.
And those jurors who resisted government oppression were not prosecuted,
not after the jurors who acquitted William Penn in 1670 were fined, imprisoned,
and later freed, establishing that
jurors can't be punished for ignoring the judge's instructions or the law.
What Mr. Cohen really does not understand about juries and the law, is
that both emanate from "the people". Whatever law we have in
this country, originates with the people. The jury is
the voice of the people in the courtroom. We won't allow (in theory, but
the Supreme Court finds ways around the theory) anyone to be deprived of
life or liberty, without a fair and public trial, and a conviction, by
a jury of one's peers. If the jury considers application of the law unjust,
it is their right and their duty to acquit.
Judges don't make law, even legislatures don't make law -- they just think
they do. Legislatures propose law, judges interpret their proposals --
the people decide what is the law, by what laws they are willing to abide
by, and what laws they are willing to enforce.
Society readily accepts traditional laws against violence, and juries will
gladly convict dangerous criminals, to keep them off the streets. Many
other laws are not so universally accepted, and fair cross-sectional juries
refusing to convict will send that message back to the legislatures, so
the laws can be modified. Without the fair, cross-sectional jury, that
message never gets back to the legislatures, and injustices are perpetrated
in the courts.
Mr.Cohen is afraid of this jury power. As with any freedom, there are risks.
But his alternative is to allow judges to purge juries of anyone willing
to question the law, of anyone willing to ignore the judge if necessary
to do justice. And he supports prosecuting those jurors who do exercise
their prerogative (recognized by the U.S. Supreme Court many times) to
ignore the judge's instructions.
Mr. Cohen is not quite ready to accept jury nullification -- a right established
in 1670, and a right important in the founding of this country, and in
establishing free speech and a free press, and in ending slavery. Whether
he is ready or not, jury nullification exists, it is a right, and the more
judges and prosecutors attempt to suppress it, the more attention they
bring to it.
We have a glorious tradition of resisting
oppression in this country. Sometimes we are just a little slow to recognize
oppression, we are slow to anger. Perhaps that is why it took so long to
end slavery. Prosecuting courageous jurors like Laura Kriho may help us
wake up to the fact that our legal system has become terribly oppressive.
In the last 100 years, the legal system itself has been responsible for
taking away many of our freedoms, and hiding others. Jury nullification
is a right, and a freedom, which we are now rediscovering.
We have too many laws in this country, too little freedom. Jury power can
show us which laws are not widely accepted, so that we can weed them out.
A system of laws which is supported by the people's willingness to enforce
them, will garner a lot more respect than the special-interest favoring
legal system we have today. Jury nullification is a wonderful idea whose
time has come again.
Paul Grant
Another reader replied to the prosecutor's disinformation as well. Isn't
it curious how those administering the law have such different views of
"justice" and history than the people?
Submitted: 24 October 1996
The Mountain-Ear
PO Box 99
Nederland CO 80466
To the Editor:
I am writing in response to Mark S. Cohen's letter of October 17 regarding
jury nullification. In his letter, Mr. Cohen says, "On the other hand,
followed to its logical conclusion, giving jurors the right to disregard
the law ultimately does away with the rule of law altogether".
Historically, this simply is not so. This country tried the experimentof
banning alcohol from public consumption. The experiment did not work and
the amendment that created Prohibition was repealed. It was repealed because
the people eventually refused to put up with Prohibition,
recognizing that first of all, it simply didn't stop anyone from drinking
who wished to drink. Secondly, people came to realize that Prohibition
had two major effects: it created a criminal class who supplied the demand
for "illegal" booze and it corrupted law enforcement from the
local police on up. There is a great deal of money to be made in a black
market, and most of law enforcement and judicial system were on the take.
The "law" was Prohibition. It was not a law the people were willing
to live under. Juries began to acquit on many cases, effectively nullifying
prosecution of people who broke this law. People began to send letters
by the thousands to their officials with "Repeal Prohibition"
stamps on the outside of the envelopes.
Did the Repeal of Prohibition do away with the rule of law? No, it did
not. The law was adjusted to what the people were willing to live with,
which, in a free society, is exactly the way it should be.
Jury nullification sends a strong message to lawmakers as to which laws
are acceptable and which are not. The "rule of law" mentioned
by Mr. Cohen works only when it is acceptable to the people as a whole,
and it is strengthened, not weakened, by jury nullification.
Sincerely,
Patricia Neill
Rochester, NY
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