Jury Nullification: A Safety Valve for Cannabis


Laura J. Kriho sat as a juror in the case of People v. Brannon, a criminal trial in Colorado during the spring of 1996 in which the prosecution was charging Michelle Brannon with unlawful possession of a Schedule II controlled substance (methamphetamines) and with related crimes. Kriho, the recipient of a deferred judgment and sentence for possession of LSD 11 years earlier, was active in the Boulder Hemp Initiative Project, a pro-marijuana legalization organization. She did not volunteer either of these facts, her criminal record or her activism, during jury selection. Neither did she lie about either point.

Kriho appears to have argued to other jurors during deliberations that a jury possesses the right to nullify the law and to refuse to convict. She also sought to impress them with the heavy penalty that could follow for the defendant from a conviction of meth possession.

Other jurors became frustrated by Kriho’s attitude and sent a note to the judge asking, “Can a juror be disqualified for looking up the sentence on the internet for the possession charge?”

The judge declared a mistrial.


Contempt and Confidentiality

As the discharged jurors left the courthouse, Kriho handed one of her peers a pamphlet from the Fully Informed Jury Association, a pro-nullification group. The other juror, angered by the pamphlet, then returned to the courtroom where the Brannon trial had been held, and gave the material to the presiding judge.

Later, Colorado initiated contempt of court proceedings against Kriho, and she was convicted. At least on the surface, the contempt citation was not about the arguments she made in the jury room but about her refusal to volunteer critical information during the jury selection process. Still, the FIJA pamphlet was the catalyst, and testimony about the jury room deliberations in the Brannon matter occupied a good deal of the court’s attention during her trial.

The following year, the Colorado Court of Appeals considered Kriho’s appeal from this conviction. It found that “in certain narrow circumstances, a juror can be found in contempt for the failure to disclose” during jury selection “information asked for with sufficient specificity” such as an earlier arrest on a drug charge. But, fortunately for Kriho, the appeals court also found that the district court was wrong to have trespassed on the confidentiality of the jury room itself, that is, even to have considered testimony about jury deliberations in this connection was reversible error. The evidence about Kriho’s alleged contempt was “so demonstrably tied to jury deliberations” as to require reversal of the conviction. The appeals court did reverse the conviction and remanded for a new trial.

There never was a new trial. The state eventually dropped the matter.

The Kriho case made headlines almost two decades ago, but it has special salience now, because it stands as a rare example of explicit consideration of jury nullification at the appellate level and, as it happens, because this was the appeals system of one of the states now in the forefront of the movement toward legalizing recreational use of marijuana.


A Plausible Hypothesis

Nullification is getting new attention due to the continuing conflict between states and the federal government over these laws. The following is a plausible hypothesis: as using and trading in marijuana comes to seem normal, law-abiding, non-black-market behavior in many states, then juries culled from the residents of those states, regardless of whether they are culled for service in federal courts, will become more likely to disregard the federal criminal code insofar as it would punish people for engaging in same. There will be more Krihos in the jury panels over time.

Consider the Kettle Falls Five, the family recently acquitted of most of the federal charges concerning real or alleged marijuana distribution activities. The acquittals came at the hands of a federal jury in Washington state, more than two years after the passage in that state of Initiative 502, and more than half of a year after issuance of the first two-dozen retail licenses. It is natural to think of nullification as at least a part of what may have happened in that jury room. Indeed, the U.S. prosecutor was publicly worrying about nullification while the proceedings were underway.

Or consider the Teplicki case, in Florida. Marijuana has never been legalized there. There exists, though, statutory room for a “medical necessity” defense on a criminal charge. A majority of the voters of the state favored an initiative on the 2014 ballot that would have gone further and legalized medicinal use of marijuana. The initiative failed because it would have amended the state’s constitution, and that requires a 60 percent vote. It was a close-run thing, with legalization receiving 58 percent support.

By something more than serendipity, jurors in Broward County acquitted Jesse Teplicki of cannabis manufacture charges on March 2, 2015, taking an expansive view of that medical necessity defense in the process. This, too, may plausibly be regarded as nullification.

As such examples show: nullification isn’t a theory, or necessarily a reform proposal or a controversy; it is on one level simply a fact. Clay Conrad, for example, said in a recent email exchange: “Juries do this and always have; there are centuries of history.” Conrad, the author of a systematic overview of the subject published by Carolina Academic Press in 1998, also said that he thinks of this as “a safety valve” in the justice system, preventing it from implosion.


The Stand-Off Continues

Where controversy does arise is over such questions as: can lawyers argue explicitly to the jury that jurors ought to nullify the law? Related to this: should judges instruct them about the confidentiality of their jury-room deliberations (the confidentiality that proved decisive for Kriho)? If jurors ask whether a nullification power exists, how should the judge respond? On all those issues, reformers have pressed forward, trying to make the system as a whole more explicit about the existence of this safety valve.

It seems very likely that if the present federal/state stand-off in the world of cannabis continues, the pressure will increase for such structural improvements to this old safety valve. In the meantime, since there are potential future jurors everywhere, progress is served by making the point that the valve does in fact exist.

Another authority in the field, Darryl Brown, put the key point this way: Juries “can acquit even if they are convinced the facts make the defendant guilty under the law. They can’t be punished for it, the acquittal can’t be overturned, the defendant can’t be retried.” Brown, a former public defender in Georgia who is now a professor of law at the University of Virginia School of Law, is the author of a 1997 law review article in which he contended that jury nullification verdicts have as a matter of history helped give “coherence or integrity” to the body of the law, at moments when coherence was threatened by “some combination of literal statutory interpretation, inappropriate prosecution policy choices, and biased police work.”

Christopher C. Faille, a Jamesian pragmatist, was one of the first reporters taking the hedge fund industry as a full-time beat, at the turn of the millennium, with HedgeWorld. His latest book, Gambling with Borrowed Chips, treats of common misunderstandings of the crisis of 2007-08.

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