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  * Original message dated 11 Feb 97  00:42:45, from Jury Rights Project 
 
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Date: Tue, 11 Feb 1997 01:42:45 -0700 (MST)
From: Jury Rights Project 
DISTRICT COURT, COUNTY OF GILPIN, STATE OF COLORADO
Case No. 96 CR 91 Division 1
Filed in Combined Court
Feb. 10., 1997
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ORDER
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THE PEOPLE OF THE STATE OF COLORADO
          Plaintiff,
v.
Laura J. Kriho,
          Defendant
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     THIS MATTER came before this Court on October 1 and 2, 1996,
for trial to the Court on issues raised in the District
Attorney's Motion of Contempt Citation.  The People were
represented by Deputy District Attorney James Stanley, and Ms.
Kriho was represented by Paul Grant.  This Court, having heard
the evidence and arguments of counsel and having reviewed the
legal briefs of counsel filed on October 9, 1996, and being
advised in the premises, enters the following findings and order.
     This action arose out of jury selection during the trial of
_People v. Michelle Brannon_, Gilpin County District Court case
number 95 CR 74, which occurred on May 13, 1996.  A juror serving
on the _Brannon_ case, Laura J. Kriho, was cited with contempt of
court for her conduct during the jury selection process.  After
the contempt citation was issued, the trial judge in the
_Brannon_ case, Judge Kenneth Barnhill, disqualified himself from
further participation and Ms. Kriho's contempt case was assigned
to this judge for trial.
     The District Attorney asserts that Ms. Kriho is in contempt
of court for disobeying an order of the trial court, obstruction
the administration of justice, and committing perjury.  The
District Attorney alleges that Laura Kriho, while serving as a
juror:
1)   failed to reveal that she had previously been arrested,
     charged with, and pled guilty to a felony charge of
     Possession of a Scheduled I Controlled Substance and was
     thereafter granted a deferred judgment and sentence;
2)   failed to reveal that she was opposed to the enforcement of
     drug laws through the courts and that she was actively
     involved in an organization which had as its purpose the
     modification of certain Colorado drug laws; and
3)   failed to reveal that she did not intend to follow the
     judge's instructions on the law.
The District Attorney argues that Ms. Kriho did these things with
the intent to obstruct justice.
     Ms. Kriho, through her counsel, has mischaracterized the
issues in this case.  This case is not now and has never been
about how Ms. Kriho voted during jury deliberations.  This case
is about whether Ms. Kriho misled the trial court and the trial
attorneys about important matters during the jury selection
process with the intent to remain on the jury and obstruct the
legal process.  The Court admitted evidence of Ms. Kriho's
conduct during deliberations only as it was relevant to the issue
of Ms. Kriho's conduct during the jury selection process.  This
mischaracterization of the case has made it more difficult to
focus upon the real issue: Ms. Kriho's conduct during jury
_selection_, not jury _deliberation_.
JURY NULLIFICATION
     No juror can be punished for their vote in deciding a case. 
Even if the juror's vote amounts to jury nullification and flies
in the face of the evidence and the law, they cannot be punished
in any way.  However, if a juror deliberately misleads the court
and the attorneys during jury selection with the intent to
obstruct the legal process, it is a totally different situation. 
Here, the District Attorney seeks a finding of contempt for Ms.
Kriho's alleged failure to reveal important information during
voir dire.  The District Attorney is not seeking to punish Ms.
Kriho for her refusal to vote in favor of a conviction during
jury deliberations.
     This case presents a delicate and sensitive issue because it
can easily be misinterpreted.  The laws of this state do not
permit lawyers and judges to criticize jurors for their decisions
in a case, much less punish them.  Ms. Kriho has attempted to
focus the case on a juror's "right" to vote without regard for
the instructions of law give by trial court and has forcefully
argued in favor of a "right" to jury nullification.  The term
"jury nullification" refers to the power of a juror to decide a
case in a way that is contrary to the evidence and the law.  The
United States Supreme Court, in _Sparf v. United States_, 156
U.S. 51 (1895), held that it is the duty of the judge to instruct
the jury on the law.  In that case the court stated:
     Public and private safety alike would be in peril if the
     principle be established that juries in criminal cases may,
     of right, disregard the law as expounded to them by the
     court, and become a law unto themselves.  Under such a
     system, the principle function of the judge would be to
     preside and keep order while jurymen, untrained in the law,
     would determine questions affecting life, liberty or
     property according to such legal principles as, in their
     judgment, were applicable to the particular case being
     tried...  We must hold firmly to the doctrine that in the
     courts of the United States it is the duty of jurors in
     criminal cases to take the law from the court and apply that
     law to the facts as they find them to be from the evidence.
_Sparf_, 156 U.S. 51 at 101-102.
     There is no question that jurors possess the power referred
to as jury nullification, but juries should not be encouraged to
use such power indiscriminately.  In _United States v. Moylan_,
417 F.2d 1002, 1006 (4th Cir. 1969), _cert. denied_, 397 U.S. 910
(1970), the United States Court of Appeals stated:
     No less an authority than Dean Pound has expressed the
     opinion that 'Jury lawlessness is the great corrective of
     law in its actual administration.'  However, this is not to
     say that the jury should be encouraged in their
     'lawlessness', and by clearly stating to the jury that they
     may disregard the law, telling them that they may decide
     according to their prejudices or conscience (for there is no
     check to insure that the judgment is based upon conscience
     rather than prejudice), we would indeed be negating the rule
     of law in favor of the rule of lawlessness.  This should not
     be allowed.
     These opinions hold that while jurors have a duty to follow
the court's statement of the law, they still have the ability,
although not the right, to disregard the law in reaching their
decision.
     Defendant takes a strong position in favor jury
nullification arguing that such a right is necessary for juries
to oppose a tyrannical government.  Defendant refers to historic
cases in which jury nullification has had an important impact on
civil liberties.  While this is unquestionably true, it is also
unquestionably true that jury nullification can lead to the
tyrannical application of the law.  If the jury can, as a matter
of right, acquit in the face of contrary evidence and law, could
they not also convict flying in the face of evidence and law?  A
system which allows jurors, as a matter of right, to pick and
choose among the rules of law which they will apply, has
extremely dangerous implications, particularly to those who may
espouse unpopular causes or who, for other reasons, are not
looked upon favorably by the majority in the community.  It is
one thing to laude the efforts of a jury fairly picked and
honestly chosen to decide a case in conformity with their
conscience.  It is quite another thing for a juror to
deliberately mislead the court in an effort to obstruct the
administration of justice.
FINDINGS OF FACT
     From the evidence in the case this Court makes the following
factual findings.  Ms. Kriho was summoned to jury duty in the
case of _People v. Brannon_, Gilpin County District Court case
number 95 CR 74.  Ms. Kriho reported for jury duty on May 13,
1996.  She and all jurors were given an oath by the trial court
to truthfully answer questions concerning their ability to serve
as fair and impartial jurors.  The charges in the case were read
to the jurors so all jurors were aware that it was a criminal
trial involving alleged violations of drug laws.  The trial court
advised all of the jury panel, including those in the gallery,
that it was important for everyone to listen to the questions of
the trial court and the lawyers because it was possible that
jurors in the gallery would be called forward to replace jurors
in the box.  From the testimony of the jurors who served with Ms.
Kriho on the _Brannon_ case and from the testimony of Ms. Kriho
herself, it is clear that all potential jurors, including those
in the box and those in the gallery, understood the need to
listen closely to the questioning of all jurors.  Every
replacement juror called was asked if they had heard the prior
questions and they were given an opportunity to comment on any of
the topics discussed.  Ms. Kriho testified that she was able to
hear all of the court proceedings from her place in the
courtroom.  Because it was stated clearly by the judge during his
voir dire, and the other jurors who testified clearly understood
the need to volunteer information, and because the question was
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