Rocky Mountain News
September 15, 1997
Commentary: Page 40A

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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 prosecution.

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:
Laura Kriho Legal Defense Fund, P.O. Box 729, Nederland, CO 80466

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