JUROR'S STAND OF CONSCIENCE LEADS TO STATE HIGH COURT CASE

SACRAMENTO - The girl was 16, legally still a minor, yet her boyfriend,
only three years older, was an adult. Under California law, Arashiek
Williams committed the crime of statutory rape by having sex with her.

But juror 10, retired electronic technician James Kelly, didn't see it that
way. The law was wrong, Kelly told the other jurors.

Informed by the jury foreman that Kelly had dug in his heels, Santa Clara
County Superior Court Judge Paul Teilh called in the determined juror to
find out what was going on. Kelly explained: "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."

Reminded by Teilh that statutory rape is a misdemeanor, Kelly replied: "I
think that is wrong. I'm sorry, judge."

"So you're not willing to follow your oath?" asked Teilh.

"That is correct," Kelly said.

Hearing those magic words, Teilh removed Kelly from the jury and sent in an
alternate, who made the guilty verdict unanimous.

The case is now before the California Supreme Court, where Williams is
challenging his conviction. Kelly's removal, he argues, deprived him of his
constitutional right to a trial by an impartial jury.

In reviewing the case, California's highest court will address a phenomenon
known as "nullification" - a juror's refusal to apply what he or she sees
as an unjust law or unfairly apply a just one.

Nullification happens all the time. Marijuana laws, the draft during the
Vietnam War, the fugitive slave laws before the Civil War, the "three
strikes law" when it's applied to minor crimes - all have pro- voked
nullifiers to acquit violators or to hang juries.

They don't always identify themselves as plainly as Kelly did when he
admitted that he wouldn't follow his oath to apply the law. But there may
be a subtler tip-off.

"Is the defendant part of the three strikes and you're out?" the jury asked
in a note to the judge during deliberations in a Contra Costa case in which
the charge was driving a stolen car. Inferring that nullification was the
motive, the judge refused to answer.

Some courts have seen nullification as the invitation to chaos. Others see
it as a safety valve that allows jurors to bring the community's conscience
to bear.

Whatever their views, most recognize that it can't be controlled entirely
in a criminal justice system that relies on the integrity of the jury. To
protect juries from corruption, their deliberations are cloaked in secrecy,
their acquittals are final and they cannot be punished for their verdicts.

But jurors also are sworn to evaluate the evidence according to the law as
it's explained by the judge. Keeping all those factors in balance can lead
to seemingly hair-splitting decisions like those by the lower courts in the
Williams case. When Teilh removed Kelly, he acknowledged that "a jury may
return a verdict contrary to the law" but said that Kelly went wrong "in
refusing to deliberate with other jurors on the case."

There are a number of precedents holding that jurors may be removed during
deliberations if they refuse to discuss the case with other jurors in an
open-minded way. The state Court of Appeal in San Jose cast the issue
somewhat differently when it denied Williams' appeal.

It, too, acknowledged that Kelly could have voted to acquit. But it said
the problem was that he announced his intention to nullify beforehand, and
that was tantamount to asking Teilh to instruct the jury that nullification
would be OK. Courts generally have agreed that trial judges should not
advise juries of nullification.

The Supreme Court could adopt the views of the lower courts or go off in
another direction.

What's facing the California court is trying to come up with a rule
governing the circumstances in which allegations of nullification may or
must be investigated, procedures for investigating them and proof required
to remove a nullifier from a jury, says Nancy King, the author of a major
article on nullification in a recent issue of the Michigan Law Review.

Her own view is that Teilh was right to remove Kelly - "once a juror says,
'I'm not going to follow my oath,' off he goes." But she adds, "There are
plenty of people out there who disagree with me."