Oust Judge Nieto: Jury Nullification Essential for Checks and Balances
by Bruce Tiemann, October 23, 2002
A cornerstone of the system of American government is its checks and balances. Rather than placing all the government's power with a single person or body, three separate branches of government were created, each with a specific and narrowly tailored duty, and each answering to the public.
Unfortunately, one judge up for a retention vote, Henry Nieto, who now sits on the Colorado Court of Appeals, has done considerable damage to the checks and balances that ensure our liberty. Thus, voters should oust him on election day.
Before turning to specifics, it may be helpful to review the broad context of the checks and balances that keep us safe from overreaching state power.
The legislative process is purposely contentious, expressly to make lawmaking a difficult task, so only good laws with broad public support can be enacted. Theoretically, only laws conforming to Constitutional mandates should even be proposed. But whether through ignorance, evil intent, or oversight, bad laws might nevertheless be enacted.
Suppose a bad law were to pass, what then? For one thing, legislators face elections, with those proposing or supporting flawed bills potentially facing defeat. But the separation of powers produces other remedies.
The executive branch enforces laws, but it does not necessarily have to enforce all laws. For example, a sheriff can order that, as a departmental policy, arrests for a certain infraction are not to be made. Lacking that, individual officers can simply look the other way to avoid enforcing a bad law.
"Just following orders" has been determined to be an insufficient defense for officers who enforce immoral laws -- they have a duty to NOT enforce immoral or unconstitutional laws.
Additionally, sheriffs and other executives are also elected and may be removed. But the separation of powers doesn't stop there.
Even if a person is arrested, prosecutors can decide whether to bring charges, and judges can dismiss a case if it is based on an unconstitutional statute.
This brings us to the important element of the separation of powers that Judge Nieto has tried to suppress.
If a case is actually brought to trial, the case is put to a jury to decide guilt or innocence. It is well-known that the jury is tasked to determine the facts of the case. But it is less well known that the jury has an additional power, called "jury nullification," to put the law itself on trial: the jury may refuse to convict even if the person is clearly "guilty" -- because the law itself is a bad law.
This power of the jury ended the Salem witch trials. Suspected witches stopped being hanged, because many juries started nullifying the law and refusing to convict.
Similarly, slavery was dealt a blow when juries started refusing to convict those people charged with harboring escaped slaves. In both cases, eventually the unjust laws stopped being enforced or prosecuted.
But today, the power of jury nullification is not widely known: in fact it is actively suppressed. Potential jurors are queried by the judge during the jury selection process, "Will you obey my orders as given?" Such a line of questioning precludes the possibility of jury nullification, because the judge will order that the law, as it is written, is applied to the case.
Those people who answer "no" are not seated on the jury -- such selection is nothing other than an officially-sanctioned jury tampering. The jury is stacked with yes-men who will do the exact bidding of the judiciary, thereby eliminating a crucial check on power. Yet brave jurors who know their rights and find a way to sit on the jury may face retaliation.
Enter the present case. Laura Kriho has a drug conviction on her record, but was nevertheless selected to serve on a drug-trial jury. She was not asked any direct questions about her past, but was urged to "comment" on the proceedings of the jury selection process. She did not refuse to answer any direct questions to her, but she did not volunteer any information. Thus seated on the jury, she exercised her power of nullification, refused to convict, and the case resulted in mistrial.
Immediately thereafter, Kriho herself was criminally charged, ostensibly not for the act of nullification itself, but with contempt of court for not volunteering her position on drug laws, or her knowledge of jury nullification, during the jury selection process.
The judge who ruled against Kriho was one Henry Nieto, who refused to grant Kriho a jury trial. Judge Nieto clearly opposes the Constitutional power of jury nullification and employed his power as a judge to oppress those who would dare exercise it. In order to be consistent, Nieto, if transported back in time, would also have to charge jurors who released defendants accused of witchcraft or harboring escaped slaves.
In response to recent criticism of his performance, Nieto confessed his need to improve his reading skills, computer research skills, and knowledge of the law.
Those concerned about the separation of powers, the right of jury nullification, and the supreme position of citizens over elected government officials should vote "no" for the retention of Judge Nieto.
Bruce Tiemann serves on the Board of Advisors for www.FreeColorado.com.
Description of the Kriho case