December 6, 1996
The National Law Journal - Podium/Civil Liberties
By Harvey A. Silverglate
Apparently for the first time in American legal history, a criminal trial juror has herself been placed on trial for contempt, growing out of her telling fellow jurors, during deliberations, a truthful fact -- that American juries have the power to acquit a defendant even if they believe that he violated the law. The case, arising and tried in Gilpin County, Colorado, has pitted judges and prosecutors, who fear the spread of "jury nullification", against a growing, or at least increasingly vocal, movement of libertarians, civil libertarians, and others who seek to stem a growing tendency by courts, legislatures, and prosecutors to curtail the ancient and revered right to trial by jury.
Laura J. Kriho was sworn to serve as a trial juror in the prosecution of a 19-year-old woman charged with felony possession of amphetamines. During jury selection voir dire, Kriho did not disclose two matters that, later, the trial judge and the District Attorney said were material omissions made under oath: (1) that in 1984 she had been charged with felony possession of LSD, pleaded guilty, and received a deferred judgment and sentence, and (2) that she disagreed with the drug laws and did not believe that a juror had to follow the judge's instructions as to the law and hence could acquit even a demonstrably guilty defendant. Even though Kriho had not been asked a direct question on either of these matters during jury selection, she was charged with perjury for failing to disclose them when asked a general question as to whether she knew of any reason why she could not serve as a conscientious juror in accordance with the evidence and the law as instructed by the court.
Additionally, Deputy District Attorney James F. Stanley and Gilpin County District Court Judge Kenneth E. Barnhill charged that Kriho, once selected for the jury, had violated the court's instructions by searching the Internet to learn the penalty facing the defendant and informing her fellow jurors as to what she'd learned, and also that she tried to enlist the other jurors in disobeying the judge's instructions and acquitting the defendant because, she argued, drug problems should be handled by family and community, "not the courts."
Kriho and her attorney, Parker, Colorado defense lawyer Paul Grant prepared to defend Kriho's actions before a jury of her fellow Gilpin County citizens, fairly confident that no jury, understanding the importance of trial by independent juries, would convict. Indeed, Grant's legal research revealed that the last time an American trial judge held jurors in criminal contempt for failing to convict a defendant was in the 1670 trial of William Penn and William Mead for preaching to an unlawful religious assembly. On appeal, the Court of Common Pleas freed them in Bushell's Case, establishing the power of jurors to decide not only the facts, but the law as well. Judges still retained the authority to instruct juries as to the applicable law, but jurors were empowered to decide the case before them according to their own judgment and could not be punished for doing so.
This principle of jury independence and indeed supremacy became firmly engraved in American legal tradition when in 1735, a New York jury, contrary to the judge's instructions, acquitted John Peter Zenger, a printer, of seditious libel for criticizing the King of England, without the jury's being punished afterward. In the 1850s, Northern juries repeatedly refused to convict persons who violated the Fugitive Slave Act by sheltering, rather than returning, runaway slaves. The power of jurors to acquit in the face of overwhelming facts and law pointing to guilt -- and not to have to answer to anyone for their verdict -- has not been questioned since. Until now, in Gilpin County.
However, there is a growing controversy around whether jurors should be informed that they have this undoubted power. The libertarian "Fully Informed Jury Association" has been promoting amending federal and state constitutions to require that judges so inform jurors. Judges and others are strongly opposed, concerned that lawlessness, even anarchy, would result, returning us to the era when Southern juries refused to convict white defendants who assaulted blacks. (The O.J. Simpson verdict is the most recent argument in their arsenal. Others say, simply, that an occasional "unjust" acquittal is a small price to pay for liberty.) Kriho's contempt trial highlights the dangers in seeking to second-guess, and thereby risk intimidating, jurors.
Kriho's fellow jurors were called to the stand, where, invading the sanctity of the jury's closed deliberations, they were forced to testify as to the discussions they had with Kriho during deliberations. Kriho had been unable to persuade any of the other 11 jurors to her point of view, and ultimately the case had ended in a hung jury, with Kriho alone holding out for acquittal. (Cynical observers of Kriho's trial observed, probably accurately, that had Kriho voted for guilt, all of her transgressions during voir dire and deliberations would have been forgiven, leaving the impression that she was being prosecuted for voting to acquit.) Ironically, Kriho herself did not get to appear before a jury. The prosecutor, perhaps fearing how hard it might be to get 12 jurors unanimously to convict another juror in these circumstances, announced that the prosecution would not seek a sentence in excess of six months in jail. The U.S. Supreme Court, in a series of cases, earlier had declared that the constitutional right to trial by jury applied only in "serious" cases, defined as those carrying a sentence of more than six months. Hence, Kriho was tried before Chief Judge Henry Nieto, who appointed himself to hear the charge that was brought by his fellow jurist Barnhill. To Laura Kriho and Paul Grant, it seemed like a stacked deck. (The trial ended on October 2nd, and as of this writing Judge Nieto has not announced his verdict.)
This drama played out in Gilpin County is, however, just the tip of a nationwide iceberg, in which trial by jury is under sustained attack. Judges and legislators, claiming that the law has gotten too complex, have tried, by rule or statute, to limit the right to trial by jury in any newly- created civil cause of action. There is a movement to eliminate the requirement of juror unanimity in criminal cases. Equally serious is this year's U.S. Supreme Court decision (Lewis v. United States) depriving a defendant of a trial where he faces multiple "petty" charges, none punishable by more than six months, even where the cumulative sentence could total considerably more. As Justices Kennedy and Breyer noted, "on the Court's view...there is no limit to the length of the sentence a judge can impose on a defendant without entitling him to a jury, so long as the prosecutor carves up the charges into segments punishable by no more than six months apiece." This obvious evasion of the Court's own earlier-announced six-month limitation is cause for great concern among those who continue to believe that the right to trial by jury is, along with the First Amendment's free speech guaranty, the most effective block to official tyranny ever created by any society.
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