When Jurors Choose to Ignore the Law

By Saundra Torry
Washington Post Staff Writer
Monday, April 7 1997; Page F07
The Washington Post

In Colorado, a juror recently was prosecuted and slapped with a fine for
criminal contempt after she told fellow jurors they had the power to
nullify in essence, to acquit even if they believed the defendant
violated the law.

In the District, Paul Butler, a George Washington University law
professor and former federal prosecutor, is calling on black jurors to
"selectively nullify" when they think the law is unfair or unfairly
applied on a racial basis, particularly in "nonviolent" drug cases.

And in a provocative article in the New Yorker last month, George
Washington law professor Jeffrey Rosen wrote of a related phenomenon,
particularly in D.C. courts, in which "a lone holdout often an
AfricanAmerican woman" refuses to convict "over the furious objections
of 11 black and white fellow jurors." He based his reporting on eight
D.C. criminal cases that ended in hung juries, and on interviews with
court officials.

These recent examples illustrate how jury nullification, a powerful but
long obscure legal concept, has become a subject of furious debate.
Nullification is the refusal of a jury to convict no matter how
compelling the government's case.

O.J. Simpson's acquittal on doublemurder charges last year was a
classic nullification, some observers insist, saying the largely black
jury simply struck the "blow against racism" that defense attorney
Johnnie L. Cochran Jr. had urged. Others point to the 1990 drug and
perjury trial of D.C. Mayor Marion Barry, in which Barry was found
guilty on one count of cocaine possession, acquitted on another and the
jury was unable to reach a verdict on 12 other counts. The trial
strategy of Barry's attorney depended, in part, on a subliminal appeal
to nullify, as he intimated that the government had targeted and
entrapped Barry.

D.C. judges and prosecutors say mistrials based on a lone holdout are a
serious concern. For example, Rosen in his New Yorker article said the
proportion of hung juries in federal criminal trials in the District
increased from 5 percent in 1991 to an average of 13 percent from 1992
to 1996. Classic cases of acquittal by nullification, while still rare,
also are cropping up more frequently in D.C. courts, court officials
said.

Defenders of nullification say it provides a check on unfair laws or
draconian sentences, allowing jurors to simply do what's right. "When
you have unfair application of the law, then nullification is one
traditional remedy," Butler said.

The drug laws are "selectively enforced" against African Americans, he
contends, and sentences for possessing small amounts of crack cocaine, a
form of the drug found predominantly in the black community, are
disproportionately harsh.

"When convicting a guilty black person means that a murderer, rapist or
thief will be off the streets," black jurors should do so, Butler wrote
in a 1995 Boston Globe commentary. But "when, as in the case of most
drug offenders, punishment serves only the purpose of expressing the
white majority's condemnation of certain conduct, the black juror ought
to use her power to emancipate the brother, even if he is absolutely,
100 percent guilty."

Opponents of nullification, however, assert that it allows jurors to
ignore the law and undermine the criminal justice system. Jurors, they
say, are supposed to decide the facts in a case but heed the judge's
admonition to follow the law as the judge instructs them. They worry
that this could lead to a haphazard, everchanging application of the
law in criminal cases.

U.S. Attorney Eric H. Holder Jr. said he believes that nullification can
be "dangerous," and that Butler's argument about its use in "nonviolent"
drug cases misses the larger point. While an isolated drug sale might be
viewed as nonviolent, Holder said, the crack cocaine trade as a whole
"has had a devastating impact on the city, largely because of the
violence associated with it."

Lawyers argue not only over whether nullifying is right, but even over
whether it has occurred.

Witness the Simpson case. Some contend the Simpson jury nullified.
Others, including Butler, argue that it was a case of reasonable doubt,
in which jurors doubted the integrity of sloppily handled evidence and a
prosecution that embraced Mark Fuhrman, a racist detective.

Nullification is often "easier to define than to identify," Duke
University law professor James E. Coleman Jr. said at an American Bar
Association panel discussion last week at Georgetown University Law
Center.

The issue, however, has created such passion that occasionally there is
a backlash. In Gilpin County, Colo., last year, a judge focused his
anger over a mistrial at juror Laura Kriho, a University of Colorado
research assistant, after she talked with fellow jurors about
nullification in a felony drug case.

After declaring the mistrial, the judge ordered an investigation of
Kriho's actions in the jury room a highly unusual measure. Kriho was
charged with perjury and contempt of court for obstructing justice. At
Kriho's trial last October, other jurors testified that in the jury
room, Kriho said she opposed the drug laws and they did not have to
follow the law if they disagreed with it.

The judge threw out the perjury charge but found her guilty of contempt,
fining her $1,200. In a written opinion, he asserted that she was being
punished not for her comments in the jury room but for concealing her
beliefs during questioning of prospective jurors.

Kriho's attorney, Paul Grant of Parker, Colo., who plans to appeal,
views the conviction as intimidation a step toward purging
prospective jurors "for their beliefs and values." Kriho, he argued,
cannot be punished for nullifying a right jurors have had for more
than 300 years.

In 1670, an English judge held that jurors could not be secondguessed
or punished for nullifying. The ruling freed four jurors who had been
imprisoned for refusing to convict Quaker leaders William Penn and
William Mead for disturbing the peace by holding an unlawful assembly.

U.S. courts have continued to uphold that right. But in a curious twist,
courts have decreed that no one may inform a jury of this power. Defense
attorneys can only hint at this hidden power.

In Barry's 1990 drug trial, that's precisely what D.C. defense lawyer R.
Kenneth Mundy did, even before the trial began. In interviews with the
news media, Mundy spoke openly of nullifying. "People can intercede
between what the law dictates and what conscience requires," he told one
reporter.

Recently, though, nullification has become more controversial. Butler,
for instance, has been swamped with speaking requests and a few
threats since his call for nullification in the Yale Law Journal in
1995. In his recent article, Rosen suggested a way to stem the "lone
holdout" problem: Allow criminal convictions by a 102 jury vote. Only
two states, Louisiana and Oregon, have switched to that system a
radical departure from the American tradition of unanimous verdicts.

At last week's ABA discussion, American University law professor Angela
Jordan Davis asked: "Why are we focusing on jury nullification now? Jury
nullification has been around since colonial days."

Davis, former head of the D.C. Public Defender Service, suggested that
it's because juries have become more racially diverse, and it is
sometimes a black juror who forces acquittal or a hung jury.

In 12 years of practice at D.C. Superior Court, she said, she saw only a
few juries nullify and then, generally, it was in minor drug cases,
where they'd ask her after the trial, "Why did I have to sit here for
three days for this?"

Nullification, Davis insisted, is "a power . . . not a great crisis."

Fire and Ice Online

Counsel Connect, an online service for lawyers, was busy moving 40,000
customers and four years of data from its old software to the World Wide
Web last week when it ran into a few nondigital problems: fire, power
failures and two feet of snow in Boston.

"Moving everybody all at once, particularly when everybody is a lawyer,
is difficult, to say the least," Mark Obbie, Counsel Connect's
president, said of the Easter weekend move.

But on Monday, as he arrived at his Manhattan office, the lights went
out and he smelled smoke.

The building was briefly evacuated, and "we had no computer network,
phones or electricity for 24 hours," Obbie said. Jammed customer service
lines had to be switched elsewhere. Everybody was sent home to work.

Then the snowstorm struck Boston, socking in executives and engineers at
the company developing Counsel Connect's Web site. In an email message,
Obbie assured that despite fire, snow and data problems, they'd launch
on Tuesday.

"Now," he wrote, "all we need is a plague of locusts."

CAPTION: Paul Butler

CAPTION: Eric H. Holder, Jr.

Copyright 1997 The Washington Post Company