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.