Boulder Daily Camera
Saturday, September 13, 1997
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Juries are the citizen's last line of defense
By Laura Kriho
For the Camera
It is with some trepidation that I write about my case. The last letter
I wrote (Daily Camera, 4/20/96, "Scare tactics killed hemp
bill") was used as evidence against me at my trial for contempt of
court stemming from my service as a juror in Gilpin County.
It is necessary to put my apprehension aside in order to share my
experience with others in the hope of educating and protecting other
My ordeal began after I was the lone holdout for acquittal on a jury in
a methamphetamine possession case in May 1996. I was investigated and
charged with contempt of court in July 1996, based on evidence of "improper"
arguments I made in the jury room about jury nullification
and the harsh sentence the defendant could receive. I endured a trial in
Oct. 1996 where nine other jurors testified about how we deliberated.
In February 1997, I was finally convicted of contempt for failing to
volunteer information about my political beliefs and experiences during
jury selection, even though I wasn't asked about them. Specifically, the
judge ruled that I failed to volunteer the facts that I was arrested in
1985 for LSD possession (but not convicted), that I did volunteer work for
a group that advocated re-introduction of industrial hemp in Colorado, and
that I was familiar with jury rights and the doctrine of jury
The judge cleared me of the perjury aspect of the contempt charge and
admitted I had not been asked any questions about these matters during
jury selection. However, he said that I knew this information was
important and that I should have volunteered it even if I wasn't asked. I
was fined $1,200, though I could have received six months in jail.
My conviction sets a dangerous precedent by creating a new legal duty
for jurors to read the minds of judges and attorneys and volunteer
confessions of any "improper" thoughts or knowledge about which
they think the court might be interested. In effect, it requires jurors to
accuse themselves of thought crimes under threat of prosecution.
My biggest thought crime may have been my knowledge of jury
nullification. For the record, I was not trying to "nullify" the
drug laws. I had reasonable doubts based on the lack of evidence. 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 the judge who 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.
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.
My attorney and I are appealing my conviction. However, this process
will take two or three years, and the outcome is uncertain. Meanwhile,
many people who have read about my case are now even more reluctant to
serve on a jury. In addition, others have told me that they will be afraid
to deliberate freely, for fear of making an "improper" argument.
This will chill jury room deliberations. No defendant can have a fair
trial if the jury is deliberating under threat of prosecution.
The jury has been called the last line of non-violent defense against a
tyrannical and oppressive government. Juries cannot perform this vital
role if the secrecy of the jury room can be violated and jurors
To help clarify the situation, I am seeking sponsors for state
legislation that would help protect jurors and the jury system. For more
information, leave a message at (303) 784-5632.
Laura Kriho is a resident of Gilpin County.
P.O. Box 591
Boulder, CO 80306
Fax: (303) 449-9358
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