Time: Mon Apr 07 13:34:42 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id JAA13682; Mon, 7 Apr 1997 09:49:49 -0700 (MST) by usr04.primenet.com (8.8.5/8.8.5) with SMTP id JAA15764; Mon, 7 Apr 1997 09:49:31 -0700 (MST) 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 >guilty." > >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 >jurors. > >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 >jury. > >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 >crisis." > >CAPTION: Paul Butler >CAPTION: Eric H. Holder, Jr. > >Copyright 1997 The Washington Post Company >----------------------------------------------------------------- >According to their Web Page (http://www.washingtonpost.com), >letters to the editor are not accepted by email, only postal mail. > >Letters to the Editor >Washington Post >1150 15th St. NW >Washington, D.C. 20071 >-------------------------------------------------------------------------- > 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 email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this ========================================================================
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