By Saundra Torry, Washington Post
Staff Writer
Monday, April 7 1997
In Colorado, a juror recently was prosecuted and slapped with a fine for criminal contempt after she told fellow jurors they had the power to nullify -- in essence, to acquit even if they believed the defendant violated the law.
In the District, Paul Butler, a George Washington
University law professor and former federal prosecutor, is calling on black
jurors to "selectively nullify" when they think the law is unfair
or unfairly applied on a racial basis, particularly in "nonviolent"
drug cases.
And in a provocative article in the New
Yorker last month, George Washington law professor Jeffrey Rosen wrote
of a related phenomenon, particularly in D.C. courts, in which "a
lone holdout
-- often an African-American woman" refuses to convict "over
the furious objections of 11 black and white fellow jurors." He based
his reporting on eight D.C. criminal cases that ended in hung
juries, and on interviews with court officials.
These recent examples illustrate how jury nullification, a powerful but long obscure legal concept, has become a subject of furious debate. Nullification is the refusal of a jury to convict no matter how compelling the government's case.
O.J. Simpson's acquittal on double-murder
charges last year was a classic nullification, some observers insist, saying
the largely black jury simply struck the "blow against racism"
that defense
attorney Johnnie L. Cochran Jr. had urged. Others point to the 1990 drug
and perjury trial of D.C. Mayor Marion Barry, in which Barry was found
guilty on one count of cocaine possession, acquitted on another and the
jury was unable to reach a verdict on 12 other counts. The trial strategy
of Barry's attorney depended, in part, on a subliminal appeal to nullify,
as he intimated that the government had targeted and entrapped Barry.
D.C. judges and prosecutors say mistrials
based on a lone holdout are a serious concern. For example, Rosen in his
New Yorker article said the proportion of hung juries in federal criminal
trials in the District increased from 5 percent in 1991 to an average of
13 percent from 1992 to 1996. Classic cases of acquittal by nullification,
while still rare, also are cropping up more frequently in D.C. courts,
court officials said.
Defenders of nullification say it provides
a check on unfair laws or draconian sentences, allowing jurors to simply
do what's right. "When you have unfair application of the law, then
nullification is one traditional remedy," Butler said. The drug laws
are "selectively enforced" against African
Americans, he contends, and sentences for possessing small amounts of crack
cocaine, a form of the drug found predominantly in the black community,
are disproportionately harsh.
"When convicting a guilty black person
means that a murderer, rapist or thief will be off the streets," black
jurors should do so, Butler wrote in a 1995 Boston Globe commentary. But
"when, as
in the case of most drug offenders, punishment serves only the purpose
of expressing the white majority's condemnation of certain conduct, the
black juror ought to use her power to emancipate the brother, even if he
is absolutely, 100 percent guilty."
Opponents of nullification, however, assert
that it allows jurors to ignore the law and undermine the criminal justice
system. Jurors, they say, are supposed to decide the facts in a case but
heed the judge's admonition to follow the law as the judge instructs them.
They worry that this could lead to a haphazard, ever-changing application
of the law in criminal cases.
U.S. Attorney Eric H. Holder Jr. said he believes that nullification can be "dangerous," and that Butler's argument about its use in "nonviolent" drug cases misses the larger point. While an isolated drug sale might be viewed as nonviolent, Holder said, the crack cocaine trade as a whole "has had a devastating impact on the city, largely because of the violence associated with it."
Lawyers argue not only over whether nullifying is right, but even over whether it has occurred.
Witness the Simpson case. Some contend the Simpson jury nullified. Others, including Butler, argue that it was a case of reasonable doubt, in which jurors doubted the integrity of sloppily handled evidence and a prosecution that embraced Mark Fuhrman, a racist detective.
Nullification is often "easier to define
than to identify," Duke University law professor James E. Coleman
Jr. said at an American Bar Association panel discussion last week at Georgetown
University Law Center.
The issue, however, has created such passion
that occasionally there is a backlash. In Gilpin County, Colo., last year,
a judge focused his anger over a mistrial at juror Laura Kriho, a
University of Colorado research assistant, after she talked with fellow
jurors about nullification in a felony drug case.
After declaring the mistrial, the judge ordered an investigation of Kriho's actions in the jury room -- a highly unusual measure. Kriho was charged with perjury and contempt of court for obstructing justice. At Kriho's trial last October, other jurors testified that in the jury room, Kriho said she opposed the drug laws and they did not have to follow the law if they disagreed with it.
The judge threw out the perjury charge but
found her guilty of contempt, fining her $1,200. In a written opinion,
he asserted that she was being punished not for her comments in the jury
room
but for concealing her beliefs during questioning of prospective jurors.
Kriho's attorney, Paul Grant of Parker,
Colo., who plans to appeal, views the conviction as intimidation -- a step
toward purging prospective jurors "for their beliefs and values."
Kriho,
he argued, cannot be punished for nullifying -- a right jurors have had
for more than 300 years.
In 1670, an English judge held that jurors could not be second-guessed or punished for nullifying. The ruling freed four jurors who had been imprisoned for refusing to convict Quaker leaders William Penn and William Mead for disturbing the peace by holding an unlawful assembly.
U.S. courts have continued to uphold that right. But in a curious twist, courts have decreed that no one may inform a jury of this power. Defense attorneys can only hint at this hidden power.
In Barry's 1990 drug trial, that's precisely
what D.C. defense lawyer R. Kenneth Mundy did, even before the trial began.
In interviews with the news media, Mundy spoke openly of nullifying.
"People can intercede between what the law dictates and what conscience
requires," he told one reporter.
Recently, though, nullification has become
more controversial. Butler, for instance, has been swamped with speaking
requests -- and a few threats -- since his call for nullification in the
Yale
Law Journal in 1995. In his recent article, Rosen suggested a way to stem
the "lone holdout" problem: Allow criminal convictions by a 10-2
jury vote. Only two states, Louisiana and Oregon, have switched to that
system -- a radical departure from the American tradition of unanimous
verdicts.
At last week's ABA discussion, American University law professor Angela Jordan Davis asked: "Why are we focusing on jury nullification now? Jury nullification has been around since colonial days."
Davis, former head of the D.C. Public Defender
Service, suggested that it's because juries have become more racially diverse,
and it is sometimes a black juror who forces acquittal or a hung
jury.
In 12 years of practice at D.C. Superior Court, she said, she saw only a few juries nullify and then, generally, it was in minor drug cases, where they'd ask her after the trial, "Why did I have to sit here for three days for this?" Nullification, Davis insisted, is "a power . . . not a great crisis."
Browse more of the JRP site
You Can Help!
Contact Us:
Jury Rights Project