MORE USING JURY BOX FOR CIVIL PROTEST

In courthouses across the country, an unprecedented level of juror
activism is taking hold, ignited by a movement of people who are
turning their backs on the evidence they hear at trial and instead
using the jury box as a 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 herself convicted of
obstructing justice.

In 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 of Columbia judge and Deputy Attorney General
Eric Holder. "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."

Nullifications called rare

In the Seattle area, nullification situations such as the hung jury
Thursday in the quadruple-murder trial of David Anderson, accused of
masterminding the slaying of four members of a Bellevue family two
years ago, remain rare, prosecutors said.

"The reason they attract so much attention is because they are so
rare," the King County prosecutor's chief of staff, Dan Satterberg,
said yesterday. "Most people who come to sit on a jury take their jobs
very seriously."

Still, it poses a real threat to the system, he said.

"It invites jurors to be both fact finders and legislators and rewrite
laws or ignore laws written by the Legislature for us all to follow,"
Satterberg said. "It's not the orderly fashion of our

government."

But, as could be expected, local defense lawyers strongly
disagree.

"The jury is the ultimate safety valve when the prosecution is
pursuing a law in a way the community believes is not correct," said
Lenell Nussbaum, a past president of the Washington Association of
Criminal Defense Lawyers. "They are the representatives of the
community. These are the final deciders of whether to send a person
off to be punished."

More hung juries

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 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.

A hung jury is 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.

The legal leaders' 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.

Proponents well organized

And its proponents are becoming well organized, promoting their call
for jury activism in every state and in every form.

"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's hard to tell when a juror is taking the law into his own hands.
The only people in the room deliberating are the 12 chosen to serve,
so unless one speaks up, no one knows why a jury reaches the
conclusion it does. 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.

Prosecutors see jurors' rejection of laws 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 O'Hern, "there are three potential verdicts:
`guilty,' `not guilty' and `can't decide.' `Can't decide' is a win for
me."

Seattle lawyer Nussbaum agrees.

"If the prosecutors aren't capable of convincing 12 people, then maybe
they have some problems with their case," she said. "There are times
the prosecution goes too far. The jury is the proper body to tell them
they've gone too far."

And she believes blaming the jury for prosecutors' failure is a
cop-out.

"When they don't succeed in what they want to do, they used to blame
judges for letting people off," she said. "Politically, it's popular
now to blame jurors. In the past 15 years, the Legislature has taken a
great deal of power away from the judges and gave it to the
prosecutors. Now the prosecutors are trying to take power away from
the jury as well."

A California case

In an Oakland, Calif., case, fellow jurors said one member was overly
sympathetic to a defendant.

James R. Metters Jr. had ordered at a fast-food restaurant, then told
the cashier to "give him all the twenties." The cashier later
testified that she thought Metters held a gun, so she gave him the

money and he fled. The cashier found the restaurant manager, who
immediately told a police sergeant who happened to be at the
drive-through window. The sergeant caught Metters, finding his coat
and $383 in cash nearby.

During his trial, his lawyer said Metters was being pursued by drug
dealers to whom he owed money and feared for his life. During
deliberations, a woman identified as "Juror No. 4" said it was wrong
to convict him, according to court records. The drug dealers
threatened to kill him and his family, she said: "Shouldn't that matter?"

Others in the room said the man should be convicted, whatever his
motivations, and complained in a note to the judge that Juror No. 4
was "unfairly sympathetic to" Metters. They said she had worked in a
drug and alcohol rehabilitation facility, a fact that affected her
ability to view the facts and law objectively.

The judge agreed with the other jurors that she was not being
open-minded and dismissed her. An alternate juror was added, and the
jury then found Metters guilty.

Little reaction from judges

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
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," said
Rodgers, who has warned other judges in articles that organized
activists are "coming to a courthouse near you."

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.