Pubdate:  Sat, 13 Sep 1997
Source:  Boulder Daily Camera

Editorial Section
Feedback encouraged:  http://www.bouldernews.com/BoulderNews/Opinion/ReaderForum/html/X_9709130089.htm

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 reintroduction
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 reaffirmed 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 nonviolent 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) 7845632.

Laura Kriho is a resident of Gilpin County.