Jury Nullification: A Power or a Thought Crime?
By Laura Kriho

I want to thank the Boulder Weekly for the brilliant series of reports they
did on my case from October 1996 through March 1997. Thankfully, contempt
proceedings against jurors are quite rare. I've been told mine is the first
like it in over 300 years. In February, I was convicted of contempt of
court, in part, for failing to volunteer my knowledge about the doctrine of
jury nullification to the court during jury selection, even though I wasn't
asked any questions about it. In March, I was sentenced to a $1,200 fine,
though I could have received six months in jail. My conviction is under
appeal.

My prosecution arose after I served on a jury in a methamphetamine
possession case in Gilpin County in May 1996. I was the lone juror who
refused to convict the defendant. I was cited for contempt based on
evidence of "improper" arguments I made in the jury room about jury
nullification and the harsh sentence the defendant could receive.

I am a little afraid to have this editorial published. An article from the
Boulder Weekly ("The Hemp Initiative: Are the Proponents Just Blowing
Smoke?," 07/07/94) was used as evidence against me at my trial. I was
interviewed in the article about my involvement with the movement to
relegalize hemp and cannabis for medicinal, industrial, and personal use.
The prosecutor introduced the hemp article to show my intent to "obstruct
justice" in a methamphetamine case. The prosecutor even subpoenaed the
editor of the Weekly to testify to the veracity of the article at my trial.

For the record, I was not trying to "nullify" the drug laws. I had
reasonable doubts based on the lack of evidence, which I argued about
extensively during deliberations. I only mentioned my (then) vague
understanding of jury nullification as a last resort, in frustration at the
other jurors' desire to convict and get home for dinner. I know a lot more
now.

Jury "nullification" describes the historic power of juries to vote
according to their conscience, even if it is contrary to the evidence.
Juries can "nullify" laws in a particular instance, either because the
jurors believe that the law is unjust or because they believe the
application of the law in a particular instance would be unjust. A jury can
acquit for any reason.

This power is also referred to as jury "discretion." Just as police use
discretion on whether to enforce the law; and prosecutors use discretion
when charging someone with a violation of the law; and judges use
discretion in deciding whether to dismiss those charges; jurors also have
the power to use discretion in applying the law.

Jury nullification is not a new or radical concept. It is an English
doctrine that was brought over to the U.S. and was well known to the
authors of the Constitution. Many of our early revolutionaries, accused of
victimless crimes against the Crown, were set free by juries of their
peers. Jury nullification of unjust laws helped secure our rights to free
speech, free press, freedom of assembly, and freedom of religion.

This power of juries has been upheld by the U.S. Supreme Court and was even
re affirmed by Gilpin District Judge Henry Nieto in his ruling that
convicted me. However, for the past 100 years, the courts have ruled that
jurors do not have to be informed of their power to evaluate the law.

My conviction has taken this reasoning a step further. Judges typically
instruct juries that they can only judge the facts of the case, and not the
merits of the law. My conviction implies that any potential juror who
knows the true power of the jury and who fails to volunteer that knowledge
during jury selection, even if not asked, can and will be prosecuted.

On its face, my case seems like an anomaly: a rare aberration of justice.
While that is certainly true, there is more to it than that.

Through my research, I have discovered that there is a nationwide movement
among judges to actively mislead jurors about their power to use their
discretion. As reported in the Boulder Weekly (Witch Hunt: Court Seeks
Revenge Against Juror Laura Kriho, 10/3/96), one of the leaders of this
movement is another Gilpin judge, County Judge Fred Rodgers, who wrote an
article in a national legal journal about the issue. The article outlined
strategies for judges to use to keep jurors ignorant of their power to
"nullify" unjust law and for prosecuting "obstructionist" jurors who don't
volunteer their knowledge of this power to the court. Most shocking, Judge
Rodgers mentioned the supposed facts of my case in his article, although it
was apparently written before I was even charged. Judge Rodgers denied any
conspiracy but admitted to the Weekly that the article "might have been
lying around in the lunchroom and someone from the district attorney's
office may have gotten a hold of it."

I believe this movement among judges to deceive and frighten jurors is the
real reason I was prosecuted: to use me as a test case. They want to purge
juries of anyone who knows they have the power to acquit, make jurors
afraid to acquit, and prosecute jurors who do acquit

After reading this article, you too will possess forbidden knowledge that
will exclude you from serving on a jury in many courtrooms, if you choose
to reveal your thought crime to the court. Should that make you afraid to
serve on a jury? Perhaps, but that is what I least want to come out of my
prosecution.

Juries were designed to protect citizens from unjust laws and unjust
application of laws. When courts have the power to punish and imprison
jurors, the jury system can no longer stand between the citizen and the
government. The jury system has then become a rubberstamp for the
government prosecution.

The practice of prosecuting jurors has no place in our "modern" system of
justice. It is reminiscent of Medieval justice (or, worse, a Monty Python
movie). In medieval times, when a woman was accused of witchcraft,
government inquisitors would tie her up and cast her into a lake. If she
floated, she was guilty and burned at the stake. If she sunk, she was
innocent, but dead all the same.

For more information on my case, leave a message at (303) 7845632.