I the Jury

by Mike Rosen
Denver Post
Editorial Section
Fri., March 7, 1997
Feedback requested: letters@denverpost.com

I'm no lover of intrusive government but I'm no anarchist, either. To reasonably function, an orderly society requires laws, necessarily written and enforced by government -- in our case representative government. When we say we have a government of the people, that's not the same thing as a government of the person. As John Adams put it we are "a government of laws, not men."

Which brings us to the subject of "jury nullification," the notion that an individual juror who disapproves of a law can nullify it by ignoring the facts and the judge's instructions, and vote "not guilty." Las year, in Colorado, we had a murder trial in which one juror, who turned out to be personally opposed to the death penalty, refused to cast a "guilty" vote for first-degree murder. Apparently, this wasn't because she disputed the facts but because she disapproved of the prospective outcome. I say "apparently" because she refused to share her reasoning about
the facts with the other jurors during deliberations. She ignored them and read a book, instead. Faced with the prospect of a hung jury, the other jurors reluctantly settled for a second-degree murder verdict.

More recently, we have the case of another juror, Laura Kriho, awaiting sentencing for obstruction of justice. Kriho was the lone holdout in what her fellow jurors thought was an open-and-shut drug case in Gilpin County, that ended in a mistrial. In his ruling, Judge Henry Nieto explained that Kriho, refusing to cast a "guilty" vote, instead, urged the other jurors to "nullify" the law, which she believed was wrong. Kriho, some years earlier, had been arrested for LSD possession, and now is
an activist for the legalization of hemp (supporters of which tend to be more interested in dope than rope). She now claims that she had no hidden agenda, but merely had a reasonable doubt
about the defendant's guilty. Personally, I don't believe her. I think she's just maneuvering for an appeal. The judge says she withheld relevant information about her background and biases
during jury selection. She says she was never directly asked about it. This has narrowed the dispute to a technical question. I'm more interested in the larger principle.

A curious collection of revolutionaries, conspiracy theorist, anarchists, and populists on both the extreme right and left have a romantic attachment to this cause of jury nullification. It doesn't do much for me as a movement, although I recognize that an individual juror with free will can do
whatever he pleases as long as he keeps his real reasons to himself. The downside of jury nullification can be recalled in the cases of white racist juries in the deep south acquitting fellow crackers because they didn't think it ought to be against the law to kill "niggers."

Perhaps some of the O.J. Simpson jurors rationalized their votes as payback for this sordid history. We could call this "dueling nullification." Isn't that a wonderful legal principle. As difficult as it is to read jurors' minds, effective prosecution of "nullifiers" probably isn't very practical. I think there's a better alternative which not only remedies this problem but several others. Let's do away with the requirement that jury verdicts be unanimous. This idea is advanced by New York State Supreme Court Judge Harold Rothwax, among others. If a 10-2 vote, for instance, were sufficient to convict, one kook couldn't hold a jury hostage after a lengthy and costly investigation and trial. Some states already follow this practice. A simple majority, 7-5, might make it too easy to convict. A super majority still tips the scales in favor of a defendants, but not unreasonable so.

In the 1850's, juries resisted the Fugitive Slave Act by acquitting those in the Underground Railroad who helped slaves to escape. These were acts of collective jury nullification of a law that many people opposed. A 9-3 or 10-2 requirement for conviction would have yielded the same result. What I'd like to avoid is empowering one paranoid, who sees black U.N. helicopters behind every tree, acquitting the Oklahoma City bomber because he feels the government deserved to have a building blown up and innocent people killed as payback for Waco.

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