Source: Los Angeles Times
Contact:  Tue, 07 Oct 1997

San Francisco Bay Guardian
September 24, 1997

Jury justice
The jury nullification movement is helping slow the Three Strikes justice
system.

By R. Christian Mittelstaedt

http://www.sfbg.com/news/31/52/features/jury.html
Feedback: IN THE 1957 FILM 12 Angry Men, Henry Fonda stood up to 11 cantankerous jurors
and convinced them to examine their prejudices and consider the consequences of
their deliberations in the trial of an 18yearold Latino. Forty years later, a
Colorado juror followed Fonda's example and paid the price  but set a
precedent for justice in California and across the country.

In May 1996, Laura Kriho, a 32yearold research assistant at the University of
Colorado, served on a Gilpin County jury for the trial of a woman charged with
methamphetamine possession. Kriho told the Bay Guardian she wasn't convinced
beyond a reasonable doubt that the defendant understood that drugs were in her
purse. But she went a step further: Kriho argued to the 11 other jurors that
drug possession cases should be handled by family and community, rather than by
the courts.

Her comments touched on a concept that has a long and, some say, admirable
history in American law: jury nullification, when jurors advocate acquittal
because they believe the law is wrong. Under that principle, one or more jurors
can vote to acquit or convict a defendant because of political, moral,
religious, or personal beliefs that they believe supersede the existing law.
Kriho ended up becoming the first juror ever punished in this country for voting
his or her conscience  and the case has inspired a growing movement in
California of people who want to express their political beliefs through the
jury system.

When Judge Kenneth Barnhill learned of Kriho's position, he declared a mistrial,
telling the Los Angeles Times, "I am just more than a little bit ticked."
Meanwhile, outside the courthouse, Kriho gave a pamphlet from the Montana based
Fully Informed Jury Association to a juror she thought shared her views. That
juror passed the literature on to the judge, who went one step beyond being
ticked, charging Kriho with contempt of court. In February 1997 Kriho was found
guilty of "obstructing the administration of justice" by "obstructing the
process of selecting a fair and impartial jury"  because she didn't reveal her
belief in the benefits of jury nullification during juror questioning. The court
ruled that Kriho should have volunteered the facts that she supported reform of
hemp and marijuana laws, that she was arrested (but not convicted) in 1985 for
LSD possession, and that she was familiar with the doctrine of jury
nullification. She was fined $1,200.

On Sept. 15, 1997, supported by a "friend of the court" brief from the American
Civil Liberties Union, Kriho took her case to the Colorado Court of Appeals. A
decision is pending.

Social protest

Jury nullification has a sound legal basis. A 1996 opinion written by the
California Court of Appeals "recognizes the jury's undisputed power to acquit
regardless of the evidence of guilt," though the opinion goes on to say it
"rejects suggestions that the jury be informed of that power, much less invited
to use it." In practice, jury nullification is a doubleedged sword, as
imperfect and diverse in practice as the trialbyjury system. It has been used
to acquit Vietnam protesters, invalidate needleexchange laws, and, as African
American law professor Paul Butler recently wrote in the Yale Law Journal, as a
form of social protest by African American jurors who acquit black men charged
with nonviolent drug offenses. Historically, jury nullification has also been

successfully used to acquit whites accused of racebased crimes, with white
juries freeing white people who allegedly murdered blacks.

Paul Cummins, head of the criminal division at the San Francisco District
Attorney's Office, has seen firsthand how jury activists have employed the
nullification strategy. "I had a needleexchange case where demonstrators gave
out needles right in front of the cops, and technically it was a violation of
the law," he told the Bay Guardian. "But I knew it would never sell because no
San Francisco jury is ever going to convict for something like that." Cummins
added that because San Francisco's D.A.'s Office generally avoids prosecuting
nonviolent Three Strikes and needleexchange cases, jury nullification comes up
in less than one percent of cases his office tries. "You're not going to get
nullification in a rape or murder case," he said.

But as the impact of California's strict "Three Strikes, You're Out" law begins
to be felt in courtrooms all over the state, jury nullification is gaining
popularity  even in violentcrime cases. And state courts are moving to
protect themselves from nullification.

Judges regularly tell juries not to take sentencing into account when arriving
at a verdict in a criminal trial. In the case of a Three Strikes trial, this
protects the court from jurors who might feel uneasy about convicting a
defendant who will face a minimum sentence of 25 years to life, regardless of
the felony.

To solidify the court's protection against jury nullification, the California
Court of Appeals ruled in March 1996 that jurors do not have the right to be
informed about this principle.

For death penalty cases, however, the state "death qualifies" each juror. The
law requires that all jurors who sit on deathpenalty cases know of the
potential sentence and be unopposed to capital punishment. Fully Informed Jury
Association founder Larry Dodge says California's efforts to control jury
nullification by limiting its pool of jurors solely because their opinions
violates the spirit of the law.

"Juries used to be told about [jury nullification] and that they were both
judges of the fact and law," he told the Bay Guardian.

Courts across the country have taken a "don't ask, don't tell" policy toward the
jury nullification movement. But with the decision in the case of Laura Kriho,
the official policy now seems to be a clampdown. Judge Frederick Rogers, chair
elect of the judicial division of the American Bar Association, says judges
should be on the lookout for potential nullifiers. In an article last summer for
the Judges' Journal, a quarterly magazine of the ABA, Rogers wrote that judges,
while keeping in mind a juror's First Amendment rights, "[should] not hesitate
to increase restrictions when lesser measures are not effective." Critics say
that poses a danger to the process of justice.

"How far is this gonna go?" San Francisco defense attorney Allen Hopper asked
the Bay Guardian. "What will be next, that a juror needs to consult with a
lawyer before they sit on a panel?"

For information on the Fully Informed Jury Association, call 1800TELJURY. The
Laura Kriho legal defense fund can be reached at P.O. Box 729, Nederland, CO
80466. R. Christian Mittelstaedt is working on a novel about the future of the
American jury system.