By Laura Kriho
SPEAKOUT, Rocky Mountain News
September 15, 1997
Feedback encouraged: letters@denver-rmn.com
Thankfully, contempt citations against jurors are quite rare. I've been told mine is the first like it in over 300 years. In Februrary, 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. I was fined $1,200, 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 drug 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.
For the record, I was not trying to "nullify" the drug laws. I had reasonable doubts based on the lack of evidence. 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.
It is with some trepidation that I write
this. My last letter to the News (May 5, 1996, "Feds to blame for
defeat of hemp bill") was used as evidence against me at my trial.
But since the government seems so determined to prevent citizens from knowing
about their full powers as jurors, it must be
important for me to share what I have learned.
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 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. To my surprise, I discovered
that one of the leaders of this movement Gilpin 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 published before I was even charged.
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 courts, 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.
To serve on a jury is a great responsibility.
It is the only direct voice that citizens have in government and the laws
that are often imposed upon them without their consent. The jury has been
called the last line of non-violent defense against a tyrannical and oppressive
government. I
would like to see that vital role preserved.
Laura Kriho is a resident of unincorporated
Gilpin County.
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