Time: Mon Apr 07 13:34:42 1997
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Date: Mon, 07 Apr 1997 13:33:39 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Wash. Post: When Jurors Choose to Ignore Law (4/7/97)

>Date: Mon, 7 Apr 1997 10:19:16 -0600 (MDT)
>From: Jury Rights Project <jrights@darkstar.cygnus.com>
>Subject: Wash. Post: When Jurors Choose to Ignore Law (4/7/97)
>To: jrights@darkstar.cygnus.com
>Washington Post (4/7/97)
>When Jurors Choose to Ignore the Law
>By Saundra Torry
>Washington Post Staff Writer
>Monday, April  7 1997; Page F07
>The Washington Post
>In Colorado, a juror recently was prosecuted and slapped with a
>fine for criminal contempt after she told fellow jurors they had
>the power to nullify -- in essence, to acquit even if they
>believed the defendant violated the law.
>In the District, Paul Butler, a George Washington University law
>professor and former federal prosecutor, is calling on black
>jurors to "selectively nullify" when they think the law is unfair
>or unfairly applied on a racial basis, particularly in
>"nonviolent" drug cases.
>And in a provocative article in the New Yorker last month, George
>Washington law professor Jeffrey Rosen wrote of a related
>phenomenon, particularly in D.C. courts, in which "a lone holdout
>-- often an African-American woman" refuses to convict "over the
>furious objections of 11 black and white fellow jurors." He based
>his reporting on eight D.C. criminal cases that ended in hung
>juries, and on interviews with court officials.
>These recent examples illustrate how jury nullification, a
>powerful but long obscure legal concept, has become a subject of
>furious debate. Nullification is the refusal of a jury to convict
>no matter how compelling the government's case.
>O.J. Simpson's acquittal on double-murder charges last year was a
>classic nullification, some observers insist, saying the largely
>black jury simply struck the "blow against racism" that defense
>attorney Johnnie L. Cochran Jr. had urged. Others point to the
>1990 drug and perjury trial of D.C. Mayor Marion Barry, in which
>Barry was found guilty on one count of cocaine possession,
>acquitted on another and the jury was unable to reach a verdict
>on 12 other counts. The trial strategy of Barry's attorney
>depended, in part, on a subliminal appeal to nullify, as he
>intimated that the government had targeted and entrapped Barry.
>D.C. judges and prosecutors say mistrials based on a lone holdout
>are a serious concern. For example, Rosen in his New Yorker
>article said the proportion of hung juries in federal criminal
>trials in the District increased from 5 percent in 1991 to an
>average of 13 percent from 1992 to 1996. Classic cases of
>acquittal by nullification, while still rare, also are cropping
>up more frequently in D.C. courts, court officials said.
>Defenders of nullification say it provides a check on unfair laws
>or draconian sentences, allowing jurors to simply do what's
>right. "When you have unfair application of the law, then
>nullification is one traditional remedy," Butler said.
>The drug laws are "selectively enforced" against African
>Americans, he contends, and sentences for possessing small
>amounts of crack cocaine, a form of the drug found predominantly
>in the black community, are disproportionately harsh.
>"When convicting a guilty black person means that a murderer,
>rapist or thief will be off the streets," black jurors should do
>so, Butler wrote in a 1995 Boston Globe commentary. But "when, as
>in the case of most drug offenders, punishment serves only the
>purpose of expressing the white majority's condemnation of
>certain conduct, the black juror ought to use her power to
>emancipate the brother, even if he is absolutely, 100 percent
>Opponents of nullification, however, assert that it allows jurors
>to ignore the law and undermine the criminal justice system.
>Jurors, they say, are supposed to decide the facts in a case but
>heed the judge's admonition to follow the law as the judge
>instructs them. They worry that this could lead to a haphazard,
>ever-changing application of the law in criminal cases.
>U.S. Attorney Eric H. Holder Jr. said he believes that
>nullification can be "dangerous," and that Butler's argument
>about its use in "nonviolent" drug cases misses the larger point.
>While an isolated drug sale might be viewed as nonviolent, Holder
>said, the crack cocaine trade as a whole "has had a devastating
>impact on the city, largely because of the violence associated
>with it."
>Lawyers argue not only over whether nullifying is right, but even
>over whether it has occurred.
>Witness the Simpson case. Some contend the Simpson jury
>nullified. Others, including Butler, argue that it was a case of
>reasonable doubt, in which jurors doubted the integrity of
>sloppily handled evidence and a prosecution that embraced Mark
>Fuhrman, a racist detective.
>Nullification is often "easier to define than to identify," Duke
>University law professor James E. Coleman Jr. said at an American
>Bar Association panel discussion last week at Georgetown
>University Law Center.
>The issue, however, has created such passion that occasionally
>there is a backlash. In Gilpin County, Colo., last year, a judge
>focused his anger over a mistrial at juror Laura Kriho, a
>University of Colorado research assistant, after she talked with
>fellow jurors about nullification in a felony drug case.
>After declaring the mistrial, the judge ordered an investigation
>of Kriho's actions in the jury room -- a highly unusual measure.
>Kriho was charged with perjury and contempt of court for
>obstructing justice. At Kriho's trial last October, other jurors
>testified that in the jury room, Kriho said she opposed the drug
>laws and they did not have to follow the law if they disagreed
>with it.
>The judge threw out the perjury charge but found her guilty of
>contempt, fining her $1,200. In a written opinion, he asserted
>that she was being punished not for her comments in the jury room
>but for concealing her beliefs during questioning of prospective
>Kriho's attorney, Paul Grant of Parker, Colo., who plans to
>appeal, views the conviction as intimidation -- a step toward
>purging prospective jurors "for their beliefs and values." Kriho,
>he argued, cannot be punished for nullifying -- a right jurors
>have had for more than 300 years.
>In 1670, an English judge held that jurors could not be
>second-guessed or punished for nullifying. The ruling freed four
>jurors who had been imprisoned for refusing to convict Quaker
>leaders William Penn and William Mead for disturbing the peace by
>holding an unlawful assembly.
>U.S. courts have continued to uphold that right. But in a curious
>twist, courts have decreed that no one may inform a jury of this
>power. Defense attorneys can only hint at this hidden power.
>In Barry's 1990 drug trial, that's precisely what D.C. defense
>lawyer R. Kenneth Mundy did, even before the trial began. In
>interviews with the news media, Mundy spoke openly of nullifying.
>"People can intercede between what the law dictates and what
>conscience requires," he told one reporter.
>Recently, though, nullification has become more controversial.
>Butler, for instance, has been swamped with speaking requests --
>and a few threats -- since his call for nullification in the Yale
>Law Journal in 1995. In his recent article, Rosen suggested a way
>to stem the "lone holdout" problem: Allow criminal convictions by
>a 10-2 jury vote. Only two states, Louisiana and Oregon, have
>switched to that system -- a radical departure from the American
>tradition of unanimous verdicts.
>At last week's ABA discussion, American University law professor
>Angela Jordan Davis asked: "Why are we focusing on jury
>nullification now? Jury nullification has been around since
>colonial days."
>Davis, former head of the D.C. Public Defender Service, suggested
>that it's because juries have become more racially diverse, and
>it is sometimes a black juror who forces acquittal or a hung
>In 12 years of practice at D.C. Superior Court, she said, she saw
>only a few juries nullify and then, generally, it was in minor
>drug cases, where they'd ask her after the trial, "Why did I have
>to sit here for three days for this?"
>Nullification, Davis insisted, is "a power . . . not a great
>CAPTION:  Paul Butler
>CAPTION:  Eric H. Holder, Jr.
>Copyright 1997 The Washington Post Company
>According to their Web Page (http://www.washingtonpost.com),
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>		      Re-distributed by the:
>	    Jury Rights Project (jrights@welcomehome.org)
>       Background info.:  http://www.execpc.com/~doreen
>         To be added to or removed from the JRP mailing list,
>   send email with the word SUBSCRIBE or UNSUBSCRIBE in the title.
>      Donations to support Laura's appeals can be made to:
>	      -- Laura Kriho Legal Defense Fund --
>	       c/o Paul Grant (defense attorney)
>	          Box 1272, Parker, Colo. 80134
>                 Email: pkgrant@ix.netcom.com
>		     Phone: (303) 841-9649

Paul Andrew, Mitchell, B.A., M.S.    : Counselor at Law, federal witness
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