Pubdate:  Mon, 15 Sep 1997
Source:   Rocky Mountain News
Commentary: Page 40A
Feedback encouraged: SPEAKOUT
Passing on wellhidden 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 wellknown 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 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 nationwide 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
nonviolent defense against a tyrannical and oppressive government.  I
would like to see that vital role preserved.