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

By R. Christian Mittelstaedt

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.