* This message forwarded from private area of Rich Woods
  * Original message dated 11 Feb 97  00:42:45, from Jury Rights Project 
 
 Apparently-to: rich.woods@245.genesplicer.org
Date: Tue, 11 Feb 1997 01:42:45 -0700 (MST)
From: Jury Rights Project 
asked repeatedly to all replacement jurors, this Court finds that
Ms. Kriho was aware of the prior questioning and she was given an
opportunity to comment on the topics discussed.
     Several consistent topics were discussed with many jurors,
including discussions of the jurors' obligation to follow the law
as given by the trial court, discussions of drug usage and drug
laws and how such experiences might affect the jurors' ability to
serve fairly and impartially.  To a lesser extent, the fact that
punishment was not within the province of the jury was also
discussed.  Discussion of a juror's duty to follow the law as
given by the trial court, and any issues relating to enforcement
of the drug laws, was repeated so many times during voir dire,
that this Court must conclude that all jurors, including Ms.
Kriho, were aware that these were important issues and that
prospective jurors should have revealed any opinions or strong
feelings on these topics.
     The following quotations from the transcript of the jury
voir dire illustrate how clearly Judge Barnhill explained the
issue of jurors following the trial court's instructions on the
law.
(Questions by Judge Barnhill.)
     Would all of you agree to follow my instructions on the law
     even if you don't agree with them or you don't think that
     they are what the law is or should be?  People sometimes
     have a little different attitude about what the law should
     be than what it really is.  What I need from you is a
     commitment that you will follow my instructions even if you
     don't agree with them.  And you all agree to do that? 
     Follow the instructions on the law?  My job is to tell you
     what the law is, and will you all agree to follow my
     instructions?  Will you all agree?  Anyone saying no? (pages
     17 and 18)
(Question by Judge Barnhill.)
     What I need to have from you is a commitment that you will
     follow my instructions on the law in this case and not try
     to remember any of the instructions that you received in the
     earlier case.  Will you all agree to that? (page 24)
     The testimony of several jurors indicated that at various
times during jury deliberations they brought to Ms. Kriho's
attention the trial court's instruction that they were to follow
the law even if they disagreed with it.  From that testimony,
this Court concludes that the voir dire made a distinct
impression on the jurors of their duty to follow the law.  Ms.
Kriho knew this was an important consideration for the judge and
the lawyers and yet she chose not to reveal her strong feelings
about this.
     The following quotation from the jury voir dire transcript
reveal the obvious emphasis during voir dire concerning any
strong feelings about drug laws.
     (Question by Mr. Stanley)
     Let me ask about -- does anyone have any particular strong
     feelings, either pro or con, about the laws we have
     including the law that will apply here that you will get
     from His Honor, Judge Barnhill, about the control of
     dangerous drugs or controlled substances?  In other words,
     it is against the law to possess methamphetamine and that
     is why we're here.  Does anybody have any particular views
     about these laws including specifically this one? (Pages 41
     and 42).
     Several different times during voir dire the judge, the
District Attorney and Ms. Brannon's attorney, discussed issues
relating to drugs with several different jurors.  This Court
finds that Ms. Kriho was aware that any experiences, or strong
opinions she had concerning the drug laws were important issues
in selecting the jury.  The evidence shows that on April 29,
1985, in Boulder County District Court, Ms. Kriho had pled guilty
to the felony crime of Possession of a Schedule I Controlled
Substance and was granted a deferred judgment and sentence.  The
evidence further shows that Ms. Kriho holds strong opinions about
the propriety of certain drug laws.  She is a founder and
activist in an organization called the Boulder Hemp Initiative
Project, which has the goal of legalizing marijuana in Colorado. 
She failed to reveal any of this highly relevant information
during the jury selection process.
     On the issue of punishment, the trial court gave the
following instruction to the jury in the final written jury
instructions.
     If you decide that the prosecution has proved beyond a
     reasonable doubt that the defendant has committed the crimes
     as charged, it will be my job to decide what the punishment
     will be.  You should not try to guess what the punishment
     might be.  It would not enter into you consideration at any
     time.
Based on this instruction and the comments by the trial court and
counsel during voir dire, this Court concludes that all of the
jurors, including Ms. Kriho, were aware that punishment was not
to be considered by the jury in finding the defendant guilty or
not guilty.  The testimony of other jurors revealed that this
prohibition was called to the attention of Ms. Kriho during jury
deliberations.
     The evidence further revealed that during jury deliberations
Ms. Kriho attempted to discover what the punishment for the crime
of Possession of Methamphetamines would be.  She investigated
this in the evening between the first and second days of trial
and told her fellow jurors what she though the punishment would
be based upon information she obtained from the internet.  The
information she conveyed to the jury was inaccurate.
     Testimony of Ms. Kriho's fellow jurors revealed that she
informed these jurors that she did not believe drug laws should
be enforced through the courts and she discussed her belief that
jurors did not have to follow the law if they did not agree with
it.
     During the course of deliberations it came to the judge's
attention that a juror had researched the question of punishment
on the internet and had brought that information to the attention
of other jurors.  The defendant in the underlying trial, Michelle
Brannon, moved for a mistrial and that request was granted by the
trial court.  The jury was then discharged.  Outside the
courthouse Ms. Kriho produced a jury nullification brochure from
her purse and gave it to one of her fellow jurors.  Ms. Kriho
admitted in her testimony that she brought this brochure to the
courthouse with her.  This brochure promotes the concept that
jurors should be permitted to judge the merits of the law as well
as the facts in a case.  It further promotes the concept of
jurors disregarding the law if they do not agree with it.  These
are the same concepts Ms. Kriho was espousing in the jury room. 
On the back of this brochure the following is printed:  "For more
information contact the: Boulder Hemp Initiative Project."  The
brochure then provides the address and telephone number for that
organization.
     Ms. Kriho testified that she was not a member of or an
activist for the organization that published the brochure. 
However, Ms. Kriho also testified that she was very active in the
Boulder Hemp Initiative Project which according to the brochure
will provide more information concerning the jury nullification
organization.
     The Court finds that Ms. Kriho does have some relationship
with the organization that published the brochure and she knew
this was important to the selection of a fair and impartial jury.
CONCLUSIONS OF LAW
     Thankfully, contempt citations against jurors are quite
rare.  However, they are not unprecedented.  See _Clark v. United
States_, 289 U.S. 1 (1933) (United States Supreme Court affirmed
judgment finding juror in contempt of court for giving knowingly
misleading and knowingly false answers in response to questions
concerning her qualifications as a juror during jury selection
process); _In re Mossie_, 768 F.2d 985 (8th Cir. 1985) (trial
court finding that juror was under duty to disclose prior
offenses on voir dire examination and intentional failure to
respond to court's voir dire questions constituted contempt
reversed by appellate court, which held that because juror only
pled guilty to marihuana possession and because marijuana
possession was not a crime in Missouri, juror did not falsely
answer voir dire question regarding whether or not she had been
convicted of a crime); _In the Matter of the Application to a
Judge Herbert Borgdon in Criminal Contempt_, 625 F. Supp. 422
(W.D. Ark. 1985) (evidence of juror's willful and deliberate
failure to disclose previous knowledge of case during voir dire
was sufficient to permit the privilege concerning jury
deliberations to fall and was sufficient to support conviction); 
_Bays v. Petan Company of Nevada, Inc._, 94 F.R.D. 587 (D. Nev.
1982) (failure to respond truthfully during voir dire could not
form basis for holding juror in contempt in the absence of
evidence establishing beyond a reasonable doubt that the
defendant willfully and knowingly gave false evidence during voir
dire, and the juror's failure to follow instructions during
deliberations could not constitute contempt in absence of a
showing of knowing and willful concealment or false swearing);
_United States v. Lampkin_, 66 F. Supp. 821 (S.D. Fla. 1946)
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