ACTIVIST JURORS JUDGE THE LAW

Movement Uses Jury Box To Work For Social Change

In courthouses across the country, an unprecedented level of juror
activism is taking hold, ignited by a movement of people who are
turning their back on the evidence they hear at trial and instead
using the jury box as a bold form of civil protest.

Whether they are African Americans who believe the system is stacked
against them, libertarians who abhor the overbearing hand of
government or someone else altogether, these jurors are choosing to
ignore a judge's instructions to punish those who break the law
because they don't like what it says or how it is being applied to a
particular defendant.

The phenomenon takes all forms. In upstate New York, an African
American man refused to join 11 other jurors in convicting black
defendants of cocaine charges, saying he was sympathetic to their
struggles as blacks to make ends meet.

In rural Colorado, a woman refused to convict in a methamphetamine
case and caused such disruption that she forced a mistrial and was
convicted herself of obstructing justice.

In all of these cases, the jury box turned into a venue for
registering dissent, more powerful than one vote at the polls and more
effective at producing tangible, satisfying results.

Although they still represent a relatively small proportion of the
tens of thousands of jurors who file into courtrooms every day, a
striking body of evidence suggests that their numbers are increasing.

Case studies and interviews with more than 100 jurors, judges, lawyers
and academics reveal a significant pattern of juror defiance.

Some go so far as to say jury nullification -- the term for jurors who
outright reject the law -- represents a threat to the foundation of
the American court system if it is not confronted and dealt with.

"There is a real potential danger if this problem goes unchecked,"
said former District judge and Deputy Attorney General Eric H. Holder
Jr. "I've seen what happens when ordinary citizens sit on a jury with
someone who nullifies. You hear it in their comments. There is a real
loss of faith. And for those who are regularly a part of the court
system, there is a real cynicism that grows out of
nullification."

The most concrete sign of the trend is the sharp jump in the
percentage of trials that end in hung juries.

For decades, a 5 percent hung jury rate was considered the norm,
derived from a landmark study of the American jury by Harry Kalven Jr.
and Hans Zeisel published 30 years ago. In recent years, however, that
figure has doubled and quadrupled, depending on location.

A hung jury is simply one in which the 12 men and women around the
table disagree over whether to convict or acquit. But judges, lawyers
and others who study the phenomenon suspect that more and more,
differences are erupting not over the evidence in these cases but over
whether the law being broken is fair.

Their concerns are supported by a recent nationwide poll by Decision
Quest and the National Law Journal, which found that three out of four
Americans said they would act on their own beliefs of right and wrong
regardless of instructions from a judge to follow the letter of the
law.

Because of the secrecy surrounding jury deliberations, it is
impossible to know precisely how often jurors act on those views.
Nonetheless, the evidence is becoming overwhelming that the problem is
real.

And its proponents are becoming well-organized, promoting their call
for jury activism in every state and in every form. They've printed
bumper stickers and brochures, rented billboards and subway placards,
and created Web sites and informal clubs urging people to stand up to
the system.

"What's different now," says Vanderbilt University law professor Nancy
King, who has tracked the phenomenon, "is that there's an organized,
national movement to change the power of the jury."

It hard to tell when a juror is taking the law into his own hands. The
only people in the room deliberating are the 12 who have been picked
to serve, so unless one of them speaks up, no one knows why a jury
reaches the conclusion it does. Nor can anyone know what motivates a
particular juror. If jurors vote not to convict because they don't
believe the nation's drug laws are fair, they may disguise their true
feelings by simply saying the evidence wasn't there or the prosecution
didn't make its case. Otherwise, they risk being ejected from the jury
box.

But lawyers across the country are convinced that jurors are rejecting
the law -- in drug possession cases, in trials that lead to "three
strikes, you're out" or other stiff mandatory sentences, and in
situations that invoke evolving social values, such as the "assisted
suicide" charges lodged against Jack Kevorkian.

Prosecutors see it as vigilante justice, but defense lawyers have a
complicated response. Few endorse nullification as a payback for race
discrimination or other social grievances, but they also recognize
that, if a juror does hold out on conviction, that's good for their
client. "From my point of view," said New York defense lawyer Thomas
J. O'Hern, "there are three potential verdicts, 'guilty,' 'not guilty'
and 'can't decide.' 'Can't decide' is a win for me."

Some of the most sensational cases, or at least most publicized, arise
when the subject of race does.

In the recent case against former agriculture secretary Mike Espy,
accused of accepting illegal gratuities, independent counsel Donald C.
Smaltz asked the judge to specifically instruct jurors not to consider
the fact that Espy is African American.

Smaltz said he was making the request because Espy's lawyer suggested
to jurors that Espy was prosecuted because he is black. Racial
arguments, Smaltz said, are "an attempt to encourage the jury to
acquit the defendant regardless" of his guilt.

Smaltz was turned down, but the daring strategy comes as fresh
evidence that prosecutors increasingly believe they need to head off
social vindication in the jury box. In December, Espy was acquitted of
all charges by a jury of 11 blacks and one white.

"Jurors have an inherent right to veto unjust laws," said Larry Dodge,
a Montana sociology professor turned libertarian activist who heads
the group. Its activists have been arrested for obstructing justice in
several cities where they have passed out leaflets to jurors arriving
at courthouses.

"I don't think we've ever inspired people to just fold their arms and
say, 'We're going to stick it to the system.' Rather, we give them
ideas for doubt about the law," Dodge said.

Dodge urges callers to his hot line not to reveal any ideological bent
if they are called to serve. "Lying is sometimes the right thing to
do," he says, "because judges shouldn't be asking prying questions."