Rocky Mountain News
September 15, 1997
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Passing on well-hidden information
By Laura Kriho
Thankfully, contempt citations against jurors are quite rare. I've been
told mine is the first like it in over 300 years. In Februrary, 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. I was
fined $1,200, 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 drug 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.
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.
It is with some trepidation that I write this. My last letter to the
News (May 5, 1996, "Feds to blame for defeat of hemp bill") was
used as evidence against me at my trial. But since the government seems so
determined to prevent citizens from knowing about their full powers as
jurors, it must be important for me to share what I have learned.
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 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 nation-wide
movement among judges to actively mislead jurors about their power to use
their discretion. To my surprise, I discovered that one of the leaders of
this movement Gilpin 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 published before I was even charged.
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 courts, 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
To serve on a jury is a great responsibility. It is the only direct
voice that citizens have in government and the laws that are often imposed
upon them without their consent. The jury has been called the last line of
non-violent defense against a tyrannical and oppressive government. I
would like to see that vital role preserved.
Laura Kriho is a resident of unincorporated Gilpin County.
Rocky Mountain News 400 W. Colfax
Denver, CO 80204 Phone: (303)
892-5000 Fax: (303) 892-5499
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Donations to support Laura's appeal can be made to:
Legal Defense Fund, P.O. Box 729, Nederland, CO 80466
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