JURY NULLIFICATION
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May 1, 1999
Front Page of the 'Second A Section'
Activist Jurors Judge the Law
Movement uses jury box to work for social change
By Joan Biskupic The Washington Post
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Photo of Laura Kriho
Caption reads: "University of Colorado research assistant Laura Kriho was convicted of obstructing justice for being a renegade juror in a drug case."
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In courthouses across the country, an unprecedented level of juror activism is taking hold, ignited by a movement of people who are turning their back on the evidence they hear at trial and instead using the jury box as a bold form of civil protest.
Whether they are African Americans who believe the system is stacked against them, libertarians who abhor the overbearing hand of government or someone else altogether, these jurors are choosing to ignore a judge's instructions to punish those who break the law because they don't like what it says or how it is being applied to a particular defendant.
The phenomenon takes all forms. In upstate New York, an African American man refused to join 11 other jurors in convicting black defendants of cocaine charges, saying he was sympathetic to their struggles as blacks to make ends meet.
In rural Colorado, a woman refused to convict in a methamphetamine case and caused such disruption that she forced a mistrial and was convicted herself of obstructing justice.
In all of these cases, the jury box turned into a venue for registering dissent, more powerful than one vote at the polls and more effective at producing tangible, satisfying results.
Although they still represent a relatively small proportion of the tens of thousands of jurors who file into courtrooms every day, a striking body of evidence suggests that their numbers are increasing. Case studies and interviews with more than 100 jurors, judges, lawyers and academics reveal a significant pattern of juror defiance.
Some go so far as to say jury nullification -- the term for jurors who outright reject the law -- represents a threat to the foundation of the American court system if it is not confronted and dealt with.
"There is a real potential danger if this problem goes unchecked," said former District judge and Deputy Attorney General Eric H. Holder Jr. "I've seen what happens when ordinary citizens sit on a jury with someone who nullifies. You hear it in their comments. There is a real loss of faith.
And for those who are regularly a part of the court system, there is a real cynicism that grows out of nullification."
The most concrete sign of the trend is the sharp jump in the percentage of trials that end in hung juries.
For decades, a 5 percent hung jury rate was considered the norm, derived from a landmark study of the American jury by Harry Kalven Jr. and Hans Zeisel published 30 years ago. In recent years, however, that figure has doubled and quadrupled, depending on location.
A hung jury is simply one in which the 12 men and women around the table disagree over whether to convict or acquit. But judges, lawyers and others who study the phenomenon suspect that more and more, differences are erupting not over the evidence in these cases but over whether the law being broken is fair.
Their concerns are supported by a recent nationwide poll by Decision Quest and the National Law Journal, which found that three out of four Americans said they would act on their own beliefs of right and wrong regardless of instructions from a judge to follow the letter of the law.
Because of the secrecy surrounding jury deliberations, it is impossible to know precisely how often jurors act on those views. Nonetheless, the evidence is becoming overwhelming that the problem is real.
And its proponents are becoming well-organized, promoting their call for jury activism in every state and in every form. They've printed bumper stickers and brochures, rented billboards and subway placards, and created Web sites and informal clubs urging people to stand up to the system.
"What's different now," says Vanderbilt University law professor Nancy King, who has tracked the phenomenon, "is that there's an organized, national movement to change the power of the jury."
It hard to tell when a juror is taking the law into his own hands. The only people in the room deliberating are the 12 who have been picked to serve, so unless one of them speaks up, no one knows why a jury reaches the conclusion it does. Nor can anyone know what motivates a particular juror.
If jurors vote not to convict because they don't believe the nation's drug laws are fair, they may disguise their true feelings by simply saying the evidence wasn't there or the prosecution didn't make its case. Otherwise, they risk being ejected from the jury box.
But lawyers across the country are convinced that jurors are rejecting the law -- in drug possession cases, in trials that lead to "three strikes, you're out" or other stiff mandatory sentences, and in situations that invoke evolving social values, such as the "assisted suicide" charges lodged against Jack Kevorkian.
Prosecutors see it as vigilante justice, but defense lawyers have a complicated response. Few endorse nullification as a payback for race discrimination or other social grievances, but they also recognize that, if a juror does hold out on conviction, that's good for their client. "From my point of view," said New York defense lawyer Thomas J. O'Hern, "there are three potential verdicts, 'guilty,' 'not guilty' and 'can't decide.' 'Can't decide' is a win for me."
Some of the most sensational cases, or at least most publicized, arise when the subject of race does.
In the recent case against former agriculture secretary Mike Espy, accused of accepting illegal gratuities, independent counsel Donald C. Smaltz asked the judge to specifically instruct jurors not to consider the fact that Espy is African American.
Smaltz said he was making the request because Espy's lawyer suggested to jurors that Espy was prosecuted because he is black. Racial arguments, Smaltz said, are "an attempt to encourage the jury to acquit the defendant regardless" of his guilt.
Smaltz was turned down, but the daring strategy comes as fresh evidence that prosecutors increasingly believe they need to head off social vindication in the jury box. In December, Espy was acquitted of all charges by a jury of 11 blacks and one white.
"Jurors have an inherent right to veto unjust laws," said Larry Dodge, a Montana sociology professor turned libertarian activist who heads the group. Its activists have been arrested for obstructing justice in several cities where they have passed out leaflets to jurors arriving at courthouses.
"I don't think we've ever inspired people to just fold their arms and say, 'We're going to stick it to the system.' Rather, we give them ideas for doubt about the law," Dodge said.
Dodge urges callers to his hot line not to reveal any ideological bent if they are called to serve. "Lying is sometimes the right thing to do," he says, "because judges shouldn't be asking prying questions."
[Note from JRP: Dodge says he never told this reporter that people should lie to get on a jury. He said that he told Biskupic that "lying like any other behavior is not always wrong. For example, according to the Bible, when the Pharoah came looking for the Baby Moses, people lied to save the child. We tell people that they should exercise their conscience when they are called for jury duty."]
Few of the nation's trial judges have been willing to publicly voice concerns for fear of giving the movement legitimacy or appearing to tread on juror independence. But for Colorado circuit Judge Frederic B. Rodgers, jury nullification is a consuming interest.
"It is a recipe for anarchy . . . [when jurors] are allowed to substitute personal whims for the stable and established law," said Rodgers, who has warned other judges in articles that organized activists are "coming to a courthouse near you."