Judge Rodgers' Article on Jury Nullification

03/19/97

The following article was published in July 1996 by Gilpin County Judge Fred Rodgers. Laura Kriho received her citation for contempt of court on July 19, 1996. The purple text marks the part in the
article where Rodgers mentions Kriho's case (but gets the facts wrong). Rodgers wrote about Kriho's prosecution before she was even charged.

Rodgers is the county court judge in Gilpin County; Judge Henry Nieto and Judge Kenneth Barnhill are both district court judges.

According to a Boulder Weekly article (10/3/96), "Rodgers denies that he pressured Stanley (Kriho's prosecutor) to bring charges or that they had any contact at all regarding Kriho's case, but he does say it's possible that the article 'might have been lying around the lunchroom' and someone from the district attorney's office may have gotten ahold of it."

This movement to deny knowledge of jury nullification from jurors is clearly a conspiracy among judges and prosecutors nationally. But, the question is, who got caught in whose trap? Did poor Laura Kriho walk into the trap of Gilpin judges, already determined to stamp out knowledge of jury nullification? Or did the Gilpin judges walk into the trap of jury rights proponents, who are using this case to further educate citizens about the powers and rights of juries? Only time will tell.

The Judges' Journal
A Quarterly of the Judicial Administration Division
Summer 1996 - Vol. 35, No. 3 - American Bar Association

By Frederic B. Rodgers

Holmes said, "The jury has the power to bring in a verdict in the teeth of both law and facts," Horning v. District of Columbia, 254 U.S. 135, 138 (1920). Mark Twain was more critical: In Roughing It (1872), he called the jury system "the most ingenious and infallible agency for defeating justice that human wisdom could contrive." With the O. J. Simpson acquittal, some television commentators described the result as "jury nullification" -- when a jury departs from the judge's
instructions on the law and acquits a defendant it believes may have been technically proved guilty. This term has, in the past, been an obscure doctrine of limited interest to judges and lawyers.

Now it seems to be growing in popularity, fed by an organization known as the Fully Informed Jury Association, which fosters the notion of a jury's right to disregard the law and a juror's oath. The concept is not restricted to criminal cases. Under the nullification approach, a jury may refuse to
enter a verdict, say, for a creditor suing to collect what the jury regards as an unjust debt, even though the law is clear on the point. The nullification efforts, however, are aimed at building a constituency that will willingly disregard the importance of following the law and a judge's instructions -- and "do justice" based on one's feelings. Because this is an organized effort, judges must now be vigilant during voir dire to ascertain this influence. If nullification is discussed by a jury
panelist during voir dire, a judge's delicacy and care are required.

WHAT FEEDS JURY NULLIFICATION?

Common law recognizes that nullification happens, while not endorsing it. Lord Mansfield stated in Rex v. Shipley, 4 Doug. 73 (1784): "It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences." In a concurring opinion, Justice Willes was more adamant about a jury's getting away with nullification when he opined, "I admit the jury have the power of finding a verdict against the law, and so they have of finding a verdict against evidence, but I deny that they have the right to do so." Who among us who regularly preside over jury trials cannot recall the jolt of being handed a verdict form that demonstrates that nullification has occurred?

Some nullification may appear to the public as a good thing. Our history books proudly describe a jury of American colonists who defied the instructions of the Crown-appointed judge and acquitted newspaper editor Peter Zenger. Other types of nullification could appear misguided. Chicago Tribune columnist Clarence Page titled his November 16, 1995, column "Verdicts a Sign of Juries in Revolt" and went on to suggest that from a "black point of view," a country with more young men in prison than in college has a problem with its government, not its citizens, and that jury nullification may be the logical popular response. In a recent edition of the Yale Law Journal, an article by Paul Butler, a former federal prosecutor and current George Washington University law professor, suggested that it is often appropriate for black jurors to take race into account to keep some nonviolent defendants such as drug offenders out of prison. Is this a revolt against overly harsh sentences? Is there a difference between this approach and the refusal by Northern
juries before the Civil War to convict slaves of running away? How is this different from white Southern juries that, in the post-Reconstruction anti-Civil Rights era period, would refuse to
convict white defendants who had been technically proved guilty of killing blacks?

I believe that there is a distinction to be made between Dred Scott-type cases and what the juror nullification movement proposes. Dred Scott-type cases are rare, they are the exception to probably the world's best experiment in dispute resolution, our legal system. The juror nullification movement, in contrast, has as its basic theme that all laws and government, including
courts, are illegal -- and that we should all make decisions based on whatever feels right to us, which unfortunately in their thinking also includes a large measure of permitted bigotry. There are few Dred Scotts to save but much harm to be done when whim becomes our governing modality.

FIJA'S ORIGINS

Hailing from rural Montana, the Fully Informed Jury Association is led by its national coordinator, Don Doig, of Helmville, population 26. Its antecedents are in the radical anti-Semitic right and the writings of militia activist M. J. "Red" Beckman. FIJA supports the de facto power of juries to
refuse to convict, even when the government proves its case beyond a reasonable doubt. It sees the jury as the nation's bulwark of liberty against the tyranny of government and tells jurors that they should follow their consciences rather than the letter of the law. FIJA produces pattern jury instructions to be tendered to the court (when they are offered, most judges mark them "refused" without encountering any appellate reversal as a consequence). It also advocates a wide range of criminal-procedure reforms to make jurors "fully informed and fully empowered." FIJA members, who hide their affinity for it during voir dire, have great potential for causing mischief. They are arguably committing perjury when during voir dire they fail truthfully to answer the judge's questions that address their willingness to follow the rules of law contained in the jury
instructions. The first hint of trouble will usually come in the form of notes from the jury deliberation room that ask questions about how to deal with an "obstructionist" juror. In my own recent experience, an obstructionist juror brought FIJA pamphlets with her but neither mentioned her affiliation nor distributed the literature until deliberations had begun. The judge's only alternative under such circumstances is to declare a mistrial, and report the event to prosecuting authorities.

TAMPERING OR EXERCISING RIGHTS?

The case of U.S. v. Regas, 95 CR 5-ECR (D. Nev.) offered some promise for addressing certain jury nullification issues that a trial judge is likely to confront when an organized effort is mounted to subvert a trial. But for better or worse, the case was settled by a plea disposition requiring the defendant to perform useful public service and not repeat her conduct. There was no definite resolution of critical First Amendment implications of FIJA activities. A review of the facts in Regas
may be helpful in alerting a trial judge about what to expect if FIJA becomes involved in a case.

In 1993, Yvonne Regas's son Troy was charged with drug trafficking and the following year, the government threatened to confiscate her house in Sparks, Nevada as a "drug lab" under the
authority of federal asset forfeiture laws. Yvonne Regas described the experience as "devastating, the most horrible thing I've ever been through. All I've ever done my whole life is sell flowers, raise my children, and go to church." She heard about FIJA, and with the group's assistance during Troy's trial, she put FIJA pamphlets on cars in the Reno federal courthouse parking lot. This led to her arrest in June 1994 on federal jury tampering, conspiracy, and obstruction of justice charges, which carried penalties of up to 21 months in prison and a S30,000 fine.

Troy Regas was convicted on his drug charge and sentenced to five years in prison despite the pamphlet's admonition to jurors to follow their "jurors' rights," such as: "When it's your turn to serve, remember: You may -- and should -- vote your conscience; you cannot be forced to obey a 'juror's oath'; it is your responsibility to 'hang' the jury with your vote if you disagree with the other jurors!" No pamphlets mentioned Troy Regas's trial, nor did Yvonne Regas contact any jurors directly.

Yvonne Regas's lawyers asserted First Amendment rights recognized in U.S. v. Grace, 461 U.S. 171 (1983), which declared unconstitutional a statute forbidding political advocacy at the United States Supreme Court building. Her lawyer argued that a courthouse is not off-limits for freely expressing ideas or even for political activity such as passing out leaflets. The government cited two federal appellate cases in countering that it is a crime to instruct jurors to disregard the law. In U.S. v. Ogle, 613 F.2d 233 (CA10 1978), the court upheld the obstruction conviction of a tax protester who attempted to give a juror a book, titled "A Handbook for Jurors," which advocated juror nullification. In U.S. v. Powell, 955 F.2d 1206 (CA9 1992), the trial court's decision not to give the jury a "jury nullification" instruction was upheld. That court cited U.S. v. Dougherty, 473 F.2d 1113 (1972), which recognized that jury nullification was a fact of judicial life, but observed that
anarchy would result if the jury were instructed that it may ignore the law.

Sensing that discretion is the better part of valor, the U.S. Attorney determined not to prosecute this pamphleteering parent. Mrs. Regas has successfully completed her 100 hours of public service work, has agreed not to repeat her FIJA activities and the indictment against her has now been dismissed.

KNOW YOUR ADVERSARY

FIJA's message has attracted a potent, if unusual mix of tax protesters, advocates of marijuana legalization, abortion protesters, libertarians, militia members, and enemies of big government. Changing laws through the jury box is their goal. A well-intentioned judge is unlikely to persuade FIJA advocates of the illegality rife in their approach, and could, with a "show down" approach, tacitly encourage a state effort for a constitutional amendment permitting jury nullification. In the Iowa legislature this spring a jury nullification bill did not survive committee consideration, but a FIJA questionnaire is presently circulating among Iowa judges standing for retention in
November, seeking to make espousal of nullification a litmus test for ballot success. It seems sensible for the judge, who is faced with a FIJA presence, to focus not on the FIJA group but on the jurors who may be subject to contact. (You should also read "Courting Trouble" in the November 1995 ABA Journal (81 ABA J. 33) for a good discussion of some of the extremist groups along with FIJA from which the courts are presently under attack.)

As a judge, when encountering overt juror nullification advocates, you'll have to resolve two issues: (1) how to handle someone who reveals partiality for the nullification theory in voir dire, and (2) how to react to pamphleteers distributing brochures and leaflets instructing disobedience of the law by means of jury nullification. FIJA adherents of the covert variety present some different challenges, as discussed above.

The first is the easier of the two problems: Remove the juror with nullification tendencies to an individualized voir dire setting. If the "cat is out of the bag," do some damage control. Politely thank the juror for his or her opinion and say something like this:

I'm glad you mentioned [jury nullification reference] because it gives me an opportunity to discuss the function and role of the court and jury. My job as judge is to decide legal issues that come up during the course of trial, such as ruling on objections the lawyers make when evidence is introduced. I'm also responsible for giving you your jury instructions on the applicable law after the evidence has been completed. Included in my jury instructions will be definitions of legal terms and words that may have special meaning in the context of this case. I think this will be helpful to you as you deliberate on your verdict and find the facts.

As jurors, you are the judges of the facts, and the court will not interfere with this important role, which is exclusively yours. The jury oath I give to jurors selected to try the case makes them promise to respect and follow the applicable law in finding the facts. The court's job, not the jury's, is to determine what laws apply.

In a difficult case, you may want to add:

If you believe that you will have difficulty following the jury oath, you should tell me now so that the lawyers may discuss this further with you during their voir dire inquiry. Violating the jury oath may subject you to prosecution for perjury.

An unrepentant nullifier should be excused for cause on counsel's or the court's own motion. If others on the panel have possibly been infected by the disclosure, they should be interviewed individually, outside the presence of other panelists.

How to address distributing leaflets in and around the courthouse presents a potential minefield. Restraint is advisable, as it is less likely to dignify or emphasize the message of the nullifiers. Some help may be found in cases cited by the government in Regas, above, although Mrs. Regas's plea
bargain prevented a definitive ruling addressing First Amendment rights vs. the court's right to an untainted jury pool. Until a precedent is set, read the Grace decision narrowly. Consider first using prophylactic instructions pointing out to your jury panels that freedom of speech in this country is so broad that it tolerates courthouse distribution of brochures full of wrong notions and beliefs about the law. Most jurors will listen to your admonitions, and those who disagree will probably be flushed out during your expanded voir dire. If your whole jury panel seems infected, consider restrictions on the nullification activists. Begin by setting limits on activists' contact with persons called to the courthouse for jury duty; violators may be punished by contempt after notice and hearing.

If this approach fails to provide fair jurors, resort to more restrictive measures such as admonishing members of the jury pool to neither accept nor read any pamphlets or other literature provided them because they are on a jury panel. If you find that this may not promote an untainted jury pool, the next higher level of restrictions may include making a jury parking lot "off-limits" to members of the public for the duration of a controversial trial. In either event, the judge must constantly monitor the jury to check for possible contamination by FIJA contact as the trial proceeds.

Point out to remaining panelists that the nullification argument holds no water, and that there are consequences in its adoption on our legal system, which is based on predictable outcomes under law. Use simple examples, like a traffic signal, or stopping for an ambulance. On a slightly more basic level, consider the example that we borrow funds to buy a house with the confidence that the law governing the transaction will remain stable so that we may one day satisfy our debt and realize ownership of our house. Without a stable law, a mortgage company could say that our debt wasn't paid off, even though it had been paid off at a certain time; without a stable law if homeowners could get away without paying their mortgages then who would loan out mortgage money any more? The lesson for juries is that when they are allowed to substitute personal whims for the stable and established law, it is a recipe for anarchy.

CONCLUSION

Under the Model Code of Judicial Conduct (1990) the trial judge has a fundamental responsibility for the fair administration of justice under law and must take affirmative steps to carry out that responsibility. Jury nullification infects the fairness of the adjudication process and requires a judicial response. My suggestion is to begin with the alternative that is least restrictive to the important First Amendment rights of nullification adherents when curbing their efforts to
undermine jury selection and deliberation, but not to hesitate to increase restrictions when lesser measures are not effective. Should this challenge arise some morning as you are about to
begin jury selection, and you find yourself faced with nervous lawyers, clerks, and jury commissioners, forewarned, you should be ready to address it with restraint. balance, and
thoughtfulness.

Frederic B. Rodgers is a judge of the Gilpin County Court, Golden, Colorado, and is the JAD's vice-chair nominee.

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