Boulder Daily Camera

Saturday, September 13, 1997
Editorial Section

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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 potential jurors.

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 nullification.

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 prosecuted.

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.

Daily Camera
P.O. Box 591
Boulder, CO 80306
Phone: (303) 442-1462
Fax: (303) 449-9358



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