The Colorado Criminal Juror: a Tribute

• Publication year: 1997
• Pages: 127

26 Colo.Law. 127 Colorado Lawyer 1997.

1997, June, Pg. 127. The Colorado Criminal Juror: A Tribute

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127

Vol. 26, No. 6, Pg. 127

The Colorado Lawyer
June 1997
Vol. 26, No. 6 [Page 127]

Specialty Law Columns
Criminal Law Newsletter
The Colorado Criminal Juror: A Tribute
by Laura E. Flenniken, Robert W. Pepin

Column Ed.: Robert Pepin and Laura Flenniken of Recht &amp Pepin, P.C., Denver - (303) 573-1900

This newsletter is prepared by the CBA Criminal Law Section This month's article was written by the column editors Robert W. Pepin and Laura E. Flenniken.

The last juror to be seated raised a right hand and swore the same oath all other jurors in Justice Hunt's courtroom had just sworn. It was April 8, 1897, and the raising of that Colorado juror's hand would have, in most circumstances, meant nothing to any of us a century later. The case in and of itself was insignificant. It was a criminal case and an Italian man, Dominic Gothier, was charged with stealing ten cents worth of coal. A jury was to hear his case in Justice Court, but after both sides of the argument had exercised their challenges, the venire was exhausted. Deputy Sheriff Howard La Due, as a matter of "last resort," brought in the final juror who was sworn, became "foreman," and presided over a verdict of not guilty.

It is the "foreman" of that jury who makes the case worth remembering these hundred years later. As quietly noted in two column inches of the April 9, 1897, edition of the Rocky Mountain News, the juror, the "foreman," was one Jennie Pierson, an African-American and the first woman to sit as a juror in a criminal case in Colorado.1 That tiny news article about that little case was a harbinger of the changes to come in the next century; changes in society and changes in the law.

BACKGROUND

In many ways, the general march of Colorado and American history and the progression of social perspectives are reflected in the jury. Because the American jury is designed to offer a collective, community peer body to make fact-finding decisions about its fellow citizens, such a reflection seems appropriate. The statutory and precedential voices that designated juror competency tell us, in some measure, who we have tried to be as Coloradans and Americans, and who we were these last hundred years.

The reflective, dynamic nature of this American institution continues. It is surprising to remember that it has been only a very few years since our courts dictated that neither race nor gender may be the sole basis for exclusion of a potential juror.2 Those of us who are criminal law practitioners will see this next century bring still more changes to the jury system that has embraced and matured us.

By way of illustration, Colorado jurors no longer decide whether a person convicted of first-degree murder is to receive either the death penalty or life in prison, that decision having been controversially placed into the hands of a three-judge panel.3 In February of this year, the Colorado Supreme Court adopted in principle a series of proposals for jury reform that range from improved treatment of jurors, to juror submission of questions for witnesses, to encouraging the use of technology.4

This brief article is intended to be an anecdotal tribute to the last hundred years, while providing a glimpse into the future of the Colorado Criminal Jury.

BUT I WANT TO BE A JUROR

When Jennie Pierson unexpectedly took her seat in the jury box in 1897, the law deemed her incompetent to serve as a juror in a criminal case because she was a woman. Male inhabitants of the state, provided they were over the age of twenty-one, could sit on a jury, but not Ms. Pierson. Even non-citizen inhabitants of the state could sit on the jury provided they had declared their intention to become citizens, but not Ms. Pierson.5 Provided they were male, no inhabitants of the state could be challenged, even if they understood no English and spoke only Mexican or Spanish.

The list of those excluded from jury service included convicted felons, professional gamblers, and women. Those who could become jurors enjoyed a right of action for libel for libelous words spoken against them in the discharge of their duties, whether the words were taken against one of them individually, as a body, or their verdict.6 A woman just did not have a right to be in a position to enjoy this protection. That Ms. Pierson sat as a jury member is undoubtedly due to the lack of a challenge, although the newspaper account does not explain.

The year before, on April 21, 1896, the first woman to sit as a juror in a civil case survived the juror competency statute because no one challenged her. Unlike Jennie Pierson's case, the rather lengthy Rocky Mountain News article7 describing the jury service of Madame M. S. Warren divulged considerable detail about the courtroom reaction to her appearance in the jury box, revealing no small amount of prejudicial, presumably male, perspective on the part of the reporter.

Ms. Warren served amid the titters of merriment accompanying the address by the court of "Gentlemen of the jury - " and despite a challenge to her in a case before one Judge Allen, which required her being excused. Ms. Warren was not challenged to sit on a divorce jury before Judge Johnson, who postured that he believed the word "male" could include "female" and that the statute "virtually treated a woman upon the same basis as a man. . . ."

The jury returned for the petitioner, the ex-wife of a well-known railroad man. The degree to which the jury competency statute mirrored many prevailing social opinions on the issue of gender is exposed in the editorializing by the unnamed reporter, who theorized, "It is naturally supposed that the sympathies of Madame Warren were with Mrs Ruthven, for sentiment is often stronger than law in this world, especially with the feminine portion of humanity. . . ." The reporter also was pleased to note that Madame Warren was "not confused" while in the jury box. For her part, Ms. Warren gave notice...