COURT REVISES DISSENTING-JUROR RULES

Relying On One's Conscience Can Get A Juror Ousted,
But Not A Refusal To Convict Despite Key Evidence

SAN FRANCISCO - The California Supreme Court on Monday adopted what
amounts to a "don't ask, don't tell" policy on jury nullification,
ruling that jurors can be disqualified for openly refusing to apply
the law but not for simply refusing to convict despite strong evidence.

As the U.S. Supreme Court prepares to release a decision that could
spur a dramatic increase in medical marijuana prosecutions in
California, the state's highest court laid down the ground rules
for judges in dealing with jurors who balk at laws they consider unjust.

The upshot, said legal experts, is that silent disobedience has been
placed outside the control of the courts.

If a holdout juror "can come up with any rationalization other than
nullification, that's off-limits," in a zone where the judge may
not probe, said Santa Clara University law professor Gerald Uelmen,
who argued the medical pot case in the U.S. Supreme Court. A decision
in that case is expected by early summer.

"If I were a prosecutor, I'd be worried about it," said Clark Kelso,
an authority on juries at McGeorge School of Law.

Nullification "is an issue that's going to be very much in the minds
of California jurors," said Kelso, who noted that a majority of
Californians "have clearly spoken as to what they want the law to be"
by passing that state's medical marijuana initiative.

As an indication of the issue's importance, the Supreme Court released
a pair of unanimous opinions, both written by Chief Justice Ronald
George. Neither case involved medical marijuana, but trial judges now
must apply the same principles in criminal cases of any kind.

In the lead case the court said a juror was properly removed from a
Santa Clara County jury after telling the judge, "I simply cannot
see staining a man, a young man, for the rest of his life for what I
believe to be a wrong reason"- statutory rape by the 19-year-old
defendant of his 16-year-old girlfriend.

In upholding the conviction of Arasheik Williams after an alternate
juror replaced the holdout, the Supreme Court declared its
opposition to nullification in no uncertain terms.

"A nullifying jury is essentially a lawless jury," as likely to be
motivated by whim or bigotry as by lofty ideals, George wrote.

But in the companion case from Los Angeles County, the court put
strict limits on situations in which a juror may be challenged.
Trial judges must avoid intruding on "the sanctity of the jury's
deliberations," wrote George. Therefore, they may ascertain only
whether jurors are refusing to deliberate or follow the courts'
instructions.

A juror may not be removed for deliberating badly or for disagreeing
with the majority of jurors about the evidence or about the manner
in which deliberations should be conducted, the Supreme Court said.

The court said removing the dissenting juror was improper in the Los
Angeles County case and, therefore, the conviction handed down
without him was invalid.

The issue of renegade jurors has been debated for centuries, ebbing
and flowing with the tide of history. Many jurors balked at
applying fugitive slave laws before the Civil War. In the next century
other jurors refused to convict men who violated draft laws during
the war in Vietnam.

In the past decade the issue again became prominent because of strict
criminal laws on drugs, "three strikes" offenses and other
controversial matters.

"As we cut back on defendants' rights and increase punishments for
crimes, jurors often feel they need to take justice into their own
hands," said Laurie Levenson, an authority on nullification and a
professor at Loyola Law School. "The harsher we make the laws or their
application, the more likely you're going to see jury
nullification."

Nullification cases also became easier to identify because of a 1998
change in the state's standard jury instructions. A new instruction
encourages juries to report nullifiers to the trial judge during
deliberations. Once a verdict of acquittal is reached, no court can do
anything to change it.

More than 20 cases raising nullification issues are before the state
Supreme Court. Most now are likely to sent back to the lower courts
for application of the guidelines laid down in Monday's opinions.

Among them is a Sacramento County case involving sexual assault of a
minor. The trial judge, Superior Court Judge Patricia Esgro,
replaced a juror who made up his mind that defendant Reginald Bowers
wasn't guilty and then refused to discuss points raised by fellow
jurors during deliberations.

The 3rd District Court of Appeal in Sacramento reversed Bowers'
conviction, ruling that Esgro's removal of the dissenting juror was
improper. The prosecution has petitioned the state Supreme Court to
review the ruling.