A Victory for Jury Rights
Conviction of Juror in Nullification Case Overturned
by Marc Brandl
Colorado juror Laura Kriho, convicted in 1997 of contempt of court for failing to inform attorneys during jury selection on a drug case of her opposition to the drug laws, has won her appeal.In 1994, Laura Kriho was the lone holdout against conviction in a Gilpin County, Colorado drug possession case. During deliberations, Kriho told her fellow jurors about the penalty the defendant faced if convicted, and she told them that she was opposed to the current drug laws, and that drug problems should be handled by families, not the courts. She also shared with them her understanding of legal doctrine known as jury nullification, which holds that jurors may judge a law on its merits and to refuse to convict when doing so would violate their consciences.
When the judge found out what she said, and that she had not informed the prosecution during jury selection of her views on the drug war, he charged her with contempt of court. She was convicted in 1997, and fined $1,200. In his ruling, judge Henry Nieto wrote that Kriho "deliberately and willfully withheld and concealed information which was relevant and important to selecting a fair and impartial jury, and that Ms. Kriho did so with the intent of serving on the jury for the purpose of obstructing justice." Last month (4/29), a Colorado court of appeals disagreed, and Nieto's ruling was overturned.
Legal experts and nullification activists have kept a close watch on the case. "What happened to Laura Kriho was bizarre and completely unfair," said Clay Conrad, a Texas attorney and author of Jury Nullification: The Evolution of a Doctrine. "It is obvious from the context of the entire case they prosecuted her for her verdict. If they can punish jurors for their verdicts, the jury system is just a living fossil brought out to harm people. There is nothing left if jurors can't be independent and vote their own consciences."
The 62-page appellate ruling was based not on whether nullification had been used, but whether allowing jurors to testify about conversations that took place during jury deliberations violates the sanctity of those deliberations. "You can't use evidence of juror deliberations in a court proceeding," explained Eugene Volokh, a constitutional law professor at the University of California at Los Angeles. "Certainly, this is something that encourages jurors to be as candid as possible during the proceeding."
Volokh said he was concerned that the recent popularity of jury nullification could make the practice too commonplace. "I think it's right that we can't throw a juror in jail for nullifying. At the same time, we should also not encourage jurors to nullify. If jurors would only nullify bad laws and never nullify good laws, that would be great. The downside of jury nullification is you are more likely to get decisions based on racial considerations, or just whether the person seems appealing or not. These judgments will be used to invalidate and nullify laws that are actually good laws."
What effect, if any, jury nullification can have on drug laws remains a point of contention. While many judges discourage the practice, Conrad said some may welcome nullification as a way to counter the effects of mandatory minimums. "A great many trial judges are opposed to the sentencing guidelines. A lot of them don't like being drafted into becoming soldiers of the war on drugs. These trial judges might just start allowing nullification arguments in their courtroom," he said. "This allows the defense some out once they realize they have the prerogative of allowing such arguments to be made."
Nullification activist Larry Dodge said, "What you're looking at here is a chance for the people to remark on the laws which govern them, to bring them back in alignment with the will of the people. Isn't that what democracy is all about? Here the government is trying to clean up the juries so the verdict will be pro-government. We shouldn't be cleaning up juries so the drug war is prolonged."
But Volokh said the disconnect between jurors and the drug laws is often overestimated. "It is not as if it is the good, virtuous jurors against the bad, evil legislator," he said. "Jurors are also voters and as voters they support legislators that support the war on drugs. You shouldn't expect too much from jury nullification."
As for Kriho, she could be retried, but the appeals court ruled that the opinions she revealed during jury deliberations, which were used as evidence to convict her, will not be admissible in any future case against her. "I'm happy that it was overturned," she said of her conviction. "I wish it had gone further to protect jurors from being prosecuted."
For more information on jury nullification, visit the Fully Informed Jury Association online at http://www.fija.org
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This news item comes from our hard-working friends at the Drug Reform Coordination Network, 2000 P St., NW, Suite 615, Washington, DC 20036, (202) 293-8340 (voice), (202) 293-8344 (fax), e-mail drcnet@drcnet.org.
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