Aug. 20, 2000

JURORS CAN JUDGE THE LAW

Juries don't know their own power, says Paul Grant, and judges take very good care indeed that they never find out.

Historically, the Parker, Colo., attorney explains, the jury's responsibility was to weigh not only whether the defendant had broken the law, but also whether the law was just and appropriately applied.

He quotes Supreme Court Justice Byron White, who once said that the historical purpose of the jury is to resist the oppression of the government.

But most jurors don't know that. Judges won't tell them, and attorneys aren't allowed to. And if potential jurors do know, and say so during voir dire, they are likely to be disqualified.

"Serving on a jury is a basic right of citizenship, like voting," Grant said during a recent talk in Denver. "We don't ask voters for their political views before they vote, why do we ask jurors?" The way jurors are screened is with instructions like these, from a trial transcript:

"Would all of you agree to follow my instructions on the law even if you don't agree with them or you don't think that they are what the law is or should be?" a judge asked. "What I need from you is a commitment that you will follow my instructions even if you don't agree with them." And a judge who thinks a juror didn't make that commitment can throw the book at her. That's what happened to one of Grant's clients, Laura Kriho.

Kriho was a juror in a 1996 Gilpin County, Colo., methamphetamine case. She believed the prosecution had failed to prove its case "beyond a reasonable doubt," the legal standard.

But she also believed the jury had a right to judge the merits of the law as well as the facts in a case -- commonly called "jury nullification."

During jury deliberations she discussed that question with the other jurors.

She also discussed the punishment for the charges, though the presiding judge in his written instructions said that should not enter into the jury's considerations. When that came to light, the defendant asked for a mistrial, and the request was granted.

Then the district attorney cited Kriho for disobeying an order of the trial court, obstructing the administration of justice and committing perjury.

In 1997, then-District Judge Henry Nieto, who is now on the Colorado Court of Appeals, found Kriho guilty of obstruction of justice and fined her $1,200.

Kriho says she wasn't asked about her views during jury selection; Nieto ruled she should have known anyway that "this was an important consideration for the judge and the lawyers" because of the questions posed to other jurors.

(The trial instructions I quoted above were from this drug case.) Grant says the judge created a brand-new crime, "obstruction of justice for failing to reveal what she should have known they'd want to know."

In his ruling, Nieto wrote, "No juror can be punished for their vote in deciding a case. Even if the juror's vote amounts to jury nullification and flies in the face of the evidence and the law, they cannot be punished in any way."

He considered evidence of Kriho's conduct during jury deliberations, Nieto said, only because it was relevant to her conduct during jury selection.

Also, he said, prior opinions "hold that while jurors have a duty to follow the court's statement of the law, they still have the ability, although not the right, to disregard the law in reaching their decision."

This convoluted reasoning was too much for the appeals court, which overturned Kriho's conviction in April last year. She could have been tried again on the contempt charge, but this month prosecutors decided to drop the charges because the matter had dragged on so long.

"I hope that by fighting and winning this persecution that I have helped protect other jurors from going through what I did," Kriho said.

Grant said, "They picked the wrong lady."

And I'd add, the lady picked the right lawyer.

Current court procedures are designed less to establish justice than to legitimize the outcome and to make people feel good about it.

"I don't feel good about it," Grant said. "I fight it every day."

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