TWISTING THE LONG ARM OF THE LAW

Activist jurors show disdain for the laws by delivering 'not guilty'
verdicts, writes Joan Biskupic

IN COURTHOUSES across the United States, 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.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 herself convicted of obstructing justice.

And just last year in Montgomery County, Maryland, jurors in two
separate trials of developer and politician Ruthann Aron objected to
her even being prosecuted on murder-for-hire charges in the first
place.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 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 . . . 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
published 30 years ago by Harry Kalven Jr. and Hans Zeisel. In recent
years, however, that figure has doubled and quadrupled, depending on
location. Some local courts in California, for example, have reported
more than 20 percent of trials ending in hung juries. Federal criminal
cases in Washington, D.C., averaged 15 percent hung juries in 1996
(the most recent year for which data were available) -- three times
the rate in 1991.A hung jury is simply one in which the 12 jurors

disagree over whether to convict or acquit.

But judges, lawyers and others who study the phenomenon suspect that
more and more, differences are erupting over not the evidence but
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. 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."

When it was first formed 10 years ago in a desolate Montana hamlet,
the Fully Informed Jury Association could conduct its business around
a kitchen table. Today, it claims 6,000 devotees nationwide who help
spread the word -- through the Internet, mass mailings and courthouse
leafletting -- that jurors should act on their own morality.

"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 from his Helmville,
Montana, office-trailer.

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 in
the first place."Few of the nation's trial judges have been willing to
publicly voice concerns for fear of giving the movement legitimacy or
appearing to tread on juror independence. But for Colorado circuit
Judge Frederic B. Rodgers, jury nullification is a consuming interest.
"It is a recipe for anarchy . . . [when jurors] are allowed to
substitute personal whims for the stable and established law," he
says.If a juror dislikes a law, Rodgers and a handful of other
outspoken judges insist, he should press for legislative change, not
behave in a random fashion that lets one criminal off scot-free but
sends another -- with a different jury -- to jail.

Houston lawyer Clay S. Conrad, author of a new book defending jury
nullification, asserts that it is not "anarchist." For the average
citizen, he says, nullification is an effective way of countering
prosecutorial abuse and limiting the power and intrusiveness of the
legislature. Unlike libertarians Dodge and Conrad, George Washington
University law professor Paul Butler has a different perspective,
developing a national reputation by telling black jurors they should
vote against conviction to stop another African-American from ending
up in prison.

"Jury nullification . . . is a tool," Butler said. "It's a tool for
some sort of fairness in the criminal justice system, where the
situation is getting worse for blacks." Butler doesn't believe
murderers or other dangerous criminals should be spared from
conviction, but that black jurors should protect their own in
"victimless" crimes such as drug possession. "The law doesn't come
from God," he says, "it comes from people like Jesse Helms and Newt
Gingrich."

The right to trial by a fair and impartial jury is fundamental and
rests on the belief that a jury may be the only shield between an

individual and an overzealous prosecutor or a biased judge. But if the
process is breaking down, if people are using it to express a personal
agenda, should the system be changed? To even address the question is
to suggest something is wrong with a central component of American
democracy.Some states have debated whether to permit non-unanimous
verdicts in criminal cases as a way to shut down rebel jurors who
create hung juries. Many judges are also spending more time
questioning potential jurors before they are selected in hopes of
weeding out those who want to protest the law. And prosecutors have
brought charges against jury "nullification" activists who pass out
leaflets at courthouses.And yet, while a growing number of prosecutors
and legal scholars believe the problem needs addressing, there is no
consensus on what actions should be taken.

"You're real hesitant, as a judge, to go beyond what ought to be a
pretty inviolable shield" protecting jury deliberations, said Holder,
a former Washington Superior Court judge. "But you do have those who
go into the jury room with an agenda: 'I don't want to convict another
black guy.'"