Gavel pounding a juror


Juries Nullified Over Jury Nullification


"I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution."
--Thomas Jefferson

    On August 10th the Colorado State Court of Appeals heard oral arguments in a case that many say could well mark the end of freedom from what is fast becoming a dictatorship of law--a dictatorship by the arbitrary rule of prosecutors and judges.

    In the first major incident of jury rights violation in over three hundred years, many constitutional scholars claim, a Gilpin County, Colorado court indicted and convicted a juror for contempt of court for failing to answer questions she was not asked.

    The convoluted odyssey of Laura Kriho, a 34-year-old University of Colorado research assistant, began in May of 1996 when she was summoned for jury duty involving a drug charge against a nineteen-year-old woman.

    Mrs. Kriho, a resident of Nederland, a small town about forty miles northeast of Denver, was among the last to be called during voir dire, the process of qualifying or eliminating prospective jurors. During the course of qualification, Kriho answered a series of questions from the judge and defense, and prosecution attorneys aimed, ostensibly, at determining whether a prospective juror would be fair and impartial in their evaluation of evidence--to obtain an "untainted jury".

    Kriho, the court transcripts show, answered truthfully all twenty-five questions put to her. [1] What, then, is the cause of an incident that could result in a legal tidal wave and the trial of this century regarding jury freedom and responsibilities? Simply the fact, as mentioned before, that Laura Kriho failed to answer questions that she was not asked, such as: have you ever had any drug convictions and how do you feel about drug laws?

    During jury deliberation, Mrs. Kriho joined with the other jurors in convicting the defendant on one of the three charges (that of lying about her identity to a police officer), and acquitting the young woman on a second charge--possession of drug paraphernalia. What caused the judicial fur to fly was that eleven of the jurors wanted conviction of the teenager on the methamphetamine possession charge, which could have resulted in several years in a Colorado penitentiary. Mrs. Kriho expressed that she did not believe the prosecution had proved its case beyond a reasonable doubt--sufficient to warrant prison time for the teenager.

    The "mistake" Kriho made was to mention to the other jurors not only the possible sentence, (discussion of which is forbidden during jury deliberations), but that they, the jury, had the legal right to acquit if they felt that the law and its penalty governing the case were more severe than the facts warranted. Mrs. Kriho, it seems, was unaware that judges are very "territorial" about the idea that they should have exclusive right in the interpretation of law.

    Kriho remained adamant in her position--as did the other jurors. "You could see them looking at the clock," she told The WINDS, "and it was getting on towards five o'clock and they were wondering, 'What is this girl doing holding us up when we just want to go home?'"

    According to Kriho, there was no concern whatever expressed that they might be flushing several years of a young woman's life into oblivion for having a few grams of powder in her purse. They just wanted to get home to dinner, she said.

    During the very heated debate one of the jurors anonymously slipped a note out to the judge asking him if a juror could be replaced for making improper statements--among which discussing the potential sentence the defendant might face, and that the juror had questioned the fairness of the law under which the defendant was charged.

    Angered that the juror, whose identity he did not yet know, had presumed to question the law and present to the jury their right to acquit if they felt the law was unfair, the judge, Kenneth Barnhill, declared a mistrial.

    It wasn't until Kriho shared a pamphlet on jury rights with a juror she thought was sympathetic to her position that the mushroom cloud rose over Gilpin County. That juror took the pamphlet directly to the judge informing him that its contents were the reason for the hung jury.

    This act of "rebellion" resulted in Mrs. Kriho's being tried and convicted of criminal contempt of court, a crime that could have resulted in up to six months in jail and a substantial fine. She was issued the contempt citation for failure to inform the court, without being asked, that she had been arrested as a teenager thirteen years earlier for possession of an illegal substance. She was apparently supposed to have remembered each question asked to all of the preceding jury candidates and, then, at the end of the very long voir dire process, volunteer answers to possible questions she wasn't asked.

    What is apparently revealed here is a county prosecutor and judge that failed to do their jobs as they knew them to be, and when someone else (Luara Kriho) unwittingly failed to do it for them, she was prosecuted for that failure.

    In her contempt trial Gilpin County District Judge, Henry Nieto, accused Kriho of planning to slip onto the jury for the sole purpose of obstructing justice. What is little known about Nieto's action is that he wasn't given the Kriho case as a matter of standard selection or rotation--he appointed himself as presiding magistrate.

    Kriho told this reporter that she thought Nieto's accusation--that she purposely slipped onto the jury--was "quite strange. I don't know anybody who would intentionally sneak on to a jury for any reason. Everyone I know wants to get out of jury duty--including me." In fact, Kriho claims she called the court clerk on the morning she was to appear for jury duty and attempted to be excused for, among other reasons, lack of transportation. She was told that she must appear even if she had to hitchhike. Now there is an ingenious conspiracy!

    What Laura Kriho had done to call down the wrath of the judiciary upon her was to invoke a centuries-old established legal doctrine that is one of the foundation stones upon which the rights and freedoms of this nation were established--the right of a jury to judge both the law and the facts.


    The doctrine of jury nullification is the idea that the truest and best safeguard against judicial and governmental tyranny is an independent and free jury of one's peers, where that jury has the power, on a case-by-case basis, to nullify an unfair or improperly applied law. This basic idea of American jurisprudence took its current form in England over three-hundred years ago when members of a jury were thrown into prison and tortured for refusing to bring in verdict of guilty against William Penn. Penn was accused in 1670 of violating the Conventicle Act which declared the Anglican Church to be the official and only legal religion of England, thus outlawing any other form of worship.

    Penn, a Quaker, was tried for preaching subversive and unlawful religious doctrine. Judge and Lord Mayor of London, Samuel Starling, presided over the case and intended that there should be no verdict but guilty.

    "You are not to determine what the law is," Starling instructed the jury. "The law is clear. You must decide only if the defendants violated the law as I have given it to you, and finding that they have, for they have admitted to that fact, you must find them guilty whether you like the law or not. You cannot determine what the law is!"

    When he did not receive his commanded verdict, Judge Starling ordered the jurors punished with imprisonment under the most vile of conditions until they should accede to his wishes. They did not; deciding that the moral law of God superseded any man-made law, and the case of William Penn versus Judge Samuel Starling became the common law landmark upon which this nation's jury system was founded.[2]

    There have been numerous vital precedents established on the legality and desirability of jury nullification. So many that one must stand in awe at the blatancy of the Gilpin County legal machinery in what is apparently a willful and arrogant disregard of the facts.

    The first historical incident of jury nullification in America occurred in 1735 and involved John Peter Zenger, publisher of The New York Weekly Journal,  for printing unfavorable facts about New York Governor William Cosby--an Englishman.

    The jury hearing Zenger's case decided that the English libel law was not fair and acquitted. That colonialists would dare to nullify English law, caused great upset to the British who, after several such instances, began to transport the accused to England to be tried under English juries. This denial of the colonialists to a trial by jury of their peers became, arguably, the single most motivating factor behind the American Revolution.

    Probably the most notable--and noble--instances of jury nullification in this country took place in the antebellum North. In the face of the plainly written Fugitive Slave Law requiring that any runaway slaves be returned to their masters, Northern jurors refused to convict, thereby, nullifying an onerous and unjust law.

    The following are significant citations from the United States Supreme Court and Federal Appeals Courts. They are by no means exhaustive but, rather, are representative of a seemingly endless series of references found throughout this nation's legal history:

    Several states, among them Pennsylvania, Georgia, Maryland and Indiana, have written into their constitutions that it is the duty of the jury to not only judge the facts, but the law as well.

Judge flipping a coin


"In any nation in which people's rights have been subordinated to the rights of the few, in any totalitarian nation, the first institution to be dismantled is the jury. I was, I am, afraid." --Gerry Spence

    The American judiciary, many observe, has begun a concerted assault upon the constitutional freedom of juries to perform their duties as conscience dictates. With absolutely no legal foundation for their actions these judges and justices are proceeding to create law by intimidating juries with the judge's "instructions" and with threat of prosecution if they violate those instructions, according to Paul Grant, Laura Kriho's attorney. They are literally bullying juries into rendering the verdicts the judges desire and, thereby, quite effectively eliminating constitutional "trial by jury" because, by this intimidation, the judge becomes the only deciding factor in guilt or innocence. All that is apparently required of jurors is to sit like twelve slabs of meat nodding assent to the jurist's desires.

    "The judges instruct the jury that they have to take the law as the judge gives it to them--even if they disagree with it," Grant told The WINDS. "And that's a lie--and the judges know it's a lie. They do this because they know that if a jury brings back a verdict of not guilty--no matter what their reasons--there is nothing anybody on earth can do about it. They know that the jury has the lawful power to ignore the judge's instructions on the law," Grant continued, "and yet they stand right there and they lie to jurors. And they've been doing it for the last century-and-a-half or more."

    During Kriho's initial contempt trial, Grant said, he many times tried to get the judge and prosecution to realize that what the court was opposing were "the same beliefs that Thomas Jefferson and John Adams shared, and these were our second and third presidents!" By the attitude of that Colorado court, Grant asserted, "Jefferson and Adams would be ineligible for jury service today in America. And if they inadvertently found their way onto a jury, they could be prosecuted just like Laura Kriho for not having disclosed these seditious ideas."


    Recently a case was heard by the 2 nd U.S. Circuit Court of Appeals (U.S. v. Thomas) involving a single black New York juror who hung a jury by refusing to convict a black man accused of drug possession. The juror had been dismissed by the presiding judge during the criminal trial because, he declared, her only reasons for hanging the jury were personal and racial issues (that the man was a disadvantaged black and should be able to sell drugs) and not a contention over law or facts.

    The judge dismissed the juror and allowed the remaining eleven to convict the man. (It might well serve such present-day judges to note how Alfred the Great of Saxony, King of England handled judges who tampered with juries. In the year 889 he hanged forty-four judges because they were interfering with jury trials by removing and replacing jurors in order to gain convictions).

    That U.S. Circuit Court of Appeals overturned the man's conviction noting that even though the juror's motives were obviously racially motivated, her decision to acquit was legal. The court ordered a new trial--the same result that would have been obtained had the juror never been dismissed in the first place.

    This appeals court decision sounds admirable on the surface, but within the court's decision lies its venom against jury freedom. Judge Jose A. Cabranes, writing the unanimous opinion of the three-judge panel, stated, "We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent."[3]

    By this wording, it is apparent that the three federal justices deplore the right of a juror to vote his conscience but, regrettably to them, can do nothing about it--though it appears that they wish they could.

    Also contained within the federal appeals court decision was a sobering and chilling vision of the direction in which this nation's legal system is heading. The federal court made the determination in their ruling that even the acts of nullification that permitted fugitive slaves to go free should not have been permitted.[4] That federal court virtually proclaimed that if slavery were legal today, jurors would have no right to disregard and nullify such a monstrously depraved law and would be required to uphold, with their verdict, the institution of slavery.

    While admittedly some failures of justice do occur under sovereign juries, it is impossible in a free society to prevent, by force of law, all miscarriages of justice, just as it is, by force of medicine, to prevent all miscarriages of unborn children. There is, however, a vast difference between miscarriage and abortion. One happens randomly while the other is purposed. When a self-important and self-empowered judiciary willfully attempts to thwart the constitutional duties of juries, this is not a miscarriage of justice but an abortion.

    One of the most heinous crimes in the eyes of a judge that can be committed against a court of law is jury tampering. Do not these judges' attempts to interfere with the duties of a free jury constitute the most pernicious form of jury tampering?

    Judges seem to have lost sight of the fact (or just ignore it) that law cannot be rigidly applied to every case without consideration of the merits of that law. This is why it is humans and not highly evolved computers that determine whether or not a law is fair and just.


    "There was literally a conspiracy," Paul Grant told The WINDS, "to use the Kriho case for the purpose of sending a message to other jurors."

    (Yes, he actually used the 'C' word).

    "A Gilpin County Court judge named Fred Rodgers," Grant said, "was the editor of the County Judges Magazine in Colorado. In January of '96 he wrote an article warning Colorado judges to be on the lookout for jury nullifiers coming to their court houses. He told them to watch out for people who had Fully Informed Jury backgrounds or brochures or attitudes -- to weed them out during jury selection. And if they slipped onto your jury," Grant continued, "then prosecute them for violating their oath to be impartial--because they're really intending to nullify and they are violating their juror's oath to follow the law."

    There is, as previously mentioned, no legal basis whatever for the administration of a judge's instructions to the jury as it is now practiced. That is precisely the same situation for the requirement of jurors to take an oath administered by the judge. Judge Rodgers' position effectually makes him an advocate of prosecuting and punishing jurors under a law that does not exist.

    "Then Laura Kriho comes along and they find a 'jury nullifier' who slipped onto the jury," Grant said. "And as they're investigating this possible contempt citation--this possible misconduct by a juror--Judge Rodgers contacts the investigators for the district attorney saying, 'I understand you're investigating a case about a juror who might have been involved in nullifying. Here, read my article. It will explain to you what this is all about.'

    "So Rodgers contacted the DA's office, even before Laura Kriho is ever charged, with clear intent to influence the charging decision--which is not supposed to be influenced by judges."

    At this time, "because he has some juicy facts," Grant said, Judge Rodgers believes his article is good enough to submit to a publication by the American Bar Association called The Judges' Journal.

    So, according to Grant, they conspired to illegally charge and convict Mrs. Kriho, at Judge Rodgers' behest, so that Rodgers' article would have more of a factual kick to it. Because judges are supposed to receive their information about a trial during that trial and only from evidence and information presented by the contending attorneys during the trial--and not before--this constitutes a conspiracy to convict, so says attorney Grant.

    "That's the conspiracy. It was deliberate. It was planned. It was an ambush. They were just waiting for somebody like Laura Kriho. She just happened to come along in this same courthouse where this judge submitted the article. She was just unfortunate enough to be in their cross hairs, so to speak.

    "This tells jurors that you had better be careful what you say in the jury room--a place that is supposed to be private and confidential. If you start criticizing the government or the law they can turn around and prosecute you,"--thus making jury nullification a political crime.

    "The requirement of unanimous juries," Grant warned, "is being undone by judges. They are actually pulling jurors off the jury during deliberations because they're refusing to deliberate further. Certain individuals come to a conclusion that a not guilty verdict is warranted, and judges are saying, 'that is not proper deliberation. I'm taking you off the jury.' Then they put somebody else on or go with eleven and get a conviction.

    "This is being done gradually. You have to take away rights gradually--you can't do it overnight."

    Some justices, however, still appear to desire justice. Laura Kriho told The WINDS that during the oral arguments presented at the court of appeals, it appeared as if the justices were heavily leaning in her favor. When a particular justice questioned Colorado's assistant attorney general as to exactly when in the jury selection process Mrs. Kriho should have revealed her involvement with the hemp legalization movement, the attorney general responded, "When she was asked about her hobbies." [5]


    This is strange, indeed, considering that the kind of hemp, as advocated by the organization with which Kriho is working, is not a drug. It is for textile use and would be like smoking a cabbage were one inclined to do so. It, in fact, contains virtually none whatever of the psychotropic alkaloid of its relative marijuana plants.

    Laura Kriho's conviction resulted only in a fine of $1,200. "They didn't have the nerve to sentence her to jail," Kriho's attorney told The WINDS. "We went out and raised the money at a dinner for Laura the same day she was sentenced."


    What lies at the eye of this legal hurricane is the aforementioned article published in the ABA's The Judges' Journal by Gilpin County Judge Frederick B. Rodgers. In that article entitled, "The Jury in Revolt? A 'Heads Up' on the Fully Informed Jury Association Coming Soon to a Courthouse in Your Area" Judge Rodgers attacks the Fully Informed Jury Association (FIJA) as a radical, anarchist organization with militia and racist roots. [6]

    FIJA claims to be merely an organization whose aims are stated to be just what their name implies. They attempt, through literature, conventions and legal activism, to spread the gospel of the power an informed jury has over the legal system--as intended in the Constitution.

    Rodgers' assault on FIJA is primarily against the nullification doctrine espoused by the paralegal organization. In that assault the Judge uses misquoted sources, gross distortions and outright lies, according to Clay Conrad a Houston attorney whose rebuttal to Rodgers' article was also published in The Judges' Journal.[7]

    One such "gross distortion" is Rodgers' out-of-context quote of Rex v. Shipley, 4 Doug. 73 (1784), in which he quotes Lord Mansfield as saying, "'It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.'" [6]

    Judge Rodgers, quoting that English common law opinion, apparently failed to notice that Mansfield's own words "nullify" Rodgers' own ideas when he said it "is a matter entirely between God and their own consciences."

    What Rodgers also ignored, attorney Conrad told The WINDS, is "the fact that Lord Mansfield endorsed jury nullification and actually encouraged juries to nullify. Rodgers just left out those minor details." Rodgers also quoted an apparently fictitious concurring opinion by Justice Willes that Conrad discovered simply does not exist.

    "Now we can know," Conrad concluded from his observation of these cases, "what sort of intellectual honesty to expect from judges."

    What Mr. Conrad claims Judge Rodgers did was to cite cases that are so old they do not exist on CD-ROM or other data bases and would require the resources of an extensive law library to check out. But Conrad did just that, discovering that the esteemed jurist plays fast and loose with the truth.

    Rodgers claimed, for instance, that jury nullification has "been an obscure doctrine of limited interest to judges and lawyers." Then he stated just two paragraphs later, "Who among us who regularly preside over jury trials cannot recall the jolt of being handed a verdict form that demonstrates that nullification has occurred?"[6]

    Well, which is it, Judge? An "obscure doctrine of limited interest to judges and lawyers," or one that has jolted every judge that has presided over jury trials?

    If nullification is so rare and little known, "what, then," Conrad asks in his rebuttal article, "explains that a Westlaw search revealed over 400 law review articles on the subject."[7]

    To Judge Rodgers' claim that FIJA's "antecedents are in the radical anti-Semitic right" attorney Conrad responds with: "...bizarre; FIJA counts scores of Jewish liberals among its earliest and most enthusiastic supporters, and it has always condemned racial and ethnic bigotry." [ibid.] Interestingly, as indicated in the footnoted references to Conrad's article, he is himself "a Jewish member of the FIJA Board of Directors," and "was not contacted by Judge Rodgers."

    Rodgers, in his article quotes Mark Twain as saying of the jury system that it is "the most ingenious and infallible agency for defeating justice that human wisdom could contrive."

    In Judge Rodgers ongoing intellectual dishonesty he omits that Twain was referring to the jury system established by Alfred the Great who, Twain asserts, would have been horrified had he witnessed what that system has become today. A system, Twain says, that "compels us to swear in juries composed of fools and rascals," --why? "because the system [the way Judge Rodgers desires it] rigidly excludes honest men and men of brains." [8] It appears that the judge consistently uses arguments to bolster his assertions that come from men who actually oppose his position.

    Mark Twain's assessment is accurate, according to one former deputy sheriff interviewed by The WINDS. The court system, he said, desires to have only jurors who do no thinking on their own and have no political positions on anything--merely a set of twelve mindless, organic computers who will spit out whatever results the government programs in.

    An understandable question presents itself: Does Judge Rodgers represent the integrity and thinking required to become a judge in this society? --a man who literally holds the lives of citizens in his hands?

    Judge Rodgers adds to his assault on juries that a "judge must constantly monitor the jury to check for possible contamination by FIJA contact as the trial proceeds." [6]

    Considering his apparent utter contempt for the intellect of the common man, could not the following hypothetical scenario accurately summarize Judge Rodgers' standard of thinking for the American Bar Association and its member judges?

    "The American people are far too ignorant as a whole and generally too stupid to understand what justice really means. We therefore, the judicial and intellectual elite, are the only ones that can be trusted to direct the minds of the ignorant masses to an equitable conclusion. (Equitable, of course, is defined as whatever we decide fits the word)."

    Keeping in mind the fact that Judge Rodgers' article has most likely been read by nearly every sitting judge in the United States that is a member of the ABA (and virtually all of them are), his conclusions make a very telling and ominous statement.

    "My suggestion," he says, in referring to the isolation of potential jurors from a knowledge of their rights and responsibilities, "is to begin with the alternative that is least restrictive to the important First Amendment rights of nullification adherents when curbing their efforts to undermine jury selection and deliberation, but not to hesitate to increase restrictions when lesser measures are not effective."[ibid.]

    Translation: Try not to violate their constitutional rights, but if you find it necessary, go ahead and run 'em through a shredder. The Bill of Rights is expendable when it comes to judicial jury tampering.

    Judge Rodgers would have his readers believe that jury rights would cause widespread abuse of the system. He uses as an example the instances where white southern jurors acquitted other whites accused of lynching blacks.

    According to Clay Conrad this is simply not true. History shows few such instances compared to the likely results of tampering with the system as Rodgers would encourage. The alternative that Rodgers fails to indicate in his article would be a society tyrannized by a judicial system like that of the infamous Star Chamber.

    Rodgers goes on to claim that "the juror nullification movement...has as its basic theme that all laws and government, including courts, are illegal -- and that we should all make decisions based on whatever feels right to us, which unfortunately in their thinking also includes a large measure of permitted bigotry."[ibid.]

    After careful investigation of FIJA literature, one might well wonder if "Frederic Rogers" is not a pseudonym for "Lewis Carroll". Even Alice through her looking glass would have difficulty observing the things Judge Rodgers gleaned from FIJA publications.

    Rodgers also agreed with a federal court observation that "anarchy would result if the jury were instructed that it may ignore the law."[ibid.] Is it not strange how commonly the cry of "anarchy" arises from government whenever it observes that its citizens may actually be motivated to think rather than mindlessly accept whatever someone in authority may present as truth? This thinking seems to be first cousin to that overplayed movie drama of authorities claiming, "we can't tell the public about this. They might panic."

    Is it possible that government could be enormously surprised at how well things would function without them? rather like when doctors went on strike in New York a number of years ago and the death-rate actually declined? Who is it that confirmed in the thinking of government officials that they are the only ones who have not totally abdicated the throne of common sense and logical thinking?

Chess pieces


    There is a dark side to this crusade by jury rights advocates--a darkness that indeed spells unavoidable disaster for the rule of law by truth in this country.

    In order for a juror to be seated in almost any court in America, he must take an oath administered by the presiding judge. In that oath the juror is often sworn to accept the judge's instructions about the law as being the only points upon which the juror will judge the given case they are trying.

    If a juror actually believes that lie (and virtually all do), and if the law and punishment involved are onerous unjust, the juror cannot render a fair verdict because he believes he must follow his oath to obey the judge's instructions.

    If, however, a juror is aware of his legal rights and duties, he must then lie when promising, by oath, that he will obey the judge's orders--or he will most certainly face dismissal by the judge. In every instance encountered by this reporter, those advocating the juror's right to nullify also advocate lying to the judge when taking the aforementioned oath.

    The ugly and frightening truth that this reveals is that the American jury system is effectively dead. The judiciary in this country has virtually assured that no honest informed juror can be impaneled on a United States jury. It is a checkmate of jurisprudence that has been masterfully created to place professional judges and prosecutors in total control of this nation's legal system. And with 15,000 laws enacted every year, these men have the ability to declare, at will, any American citizen a criminal.

"And judgment is turned away backward, and justice standeth afar off:" -- why this condition? "for truth is fallen in the street, and equity cannot enter." Isaiah 59:14.



  1. Rocky Mountain News, February 12, 1997
  2. "JURY NULLIFICATION A CONSTITUTIONAL MANDATE or The Law Is What The Jury Says It Is" by Godfrey Lehman, FIJA.
  4. Associated Press, 21-May-1997, REF5273
  5. Las Vegas Review-Journal, August 23, 1998
  6. The Judges' Journal, Summer 1996 - Vol. 35, No. 3 - American Bar Association.
  7. Not Fully Informed About FIJA" The Judges' Journal, Winter 1997 No. 3 - American Bar Association.
  8. Roughing It" Mark Twain, (1872).

Written 09/07/98


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