* 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 
(juror found to be in contempt when juror failed to reveal prior
criminal record during jury selection process).
     The _Clark_ case, cited above, decided by the United States
Supreme Court in 1933, with an opinion written by Justice
Cardozo, affirmed a finding of contempt against a juror for
knowingly giving misleading and false responses to questions
effecting her qualifications as a juror with the intent to
obstruct justice.  Justice Cardozo stated that "(c)oncealment or
misstatement by a juror upon a voir dire examination is
punishable as contempt if its tendency and design are to obstruct
the processes of justice." _Clark_ 289 U.S. at 10.  The opinion
clearly points out that a juror found to be in contempt is not
punished for the act of concealment or the act of false swearing,
but is punished for using the false swearing or concealment of
obstruct the course of justice.  The case goes on to hold that
testimony concerning the conduct of a juror during deliberations
does not violate the rule that jurors may not be questioned
concerning their processes of deliberations, if evidence other
than the jury deliberation provides a prima facie case sufficient
to satisfy the judge that the juror has willfully concealed or
withheld information with the intent to obstruct justice.  In
Kriho's case the Court finds such a prima facie case exists based
on the following evidence: (1) the question the jurors sent to
the judge indicated that a particular juror did not think drug
cases belonged in the courts and had introduced information
concerning punishment; (2) Ms. Kriho produced a jury
nullification brochure immediately following the declaration of
mistrial and gave it to a fellow juror; 3) this fellow juror
presented the brochure to Judge Barnhill and stated that this
brochure explained the reason for the mistrial.  Under these
circumstances, the evidence concerning Ms. Kriho's conduct during
jury deliberations was merely confirmation of the prima facie
case established by other evidence.
     After reviewing all the evidence and the law, and applying
the standard of proof beyond a reasonable doubt, the Court
reaches the following conclusions.  During the jury selection
process Ms. Kriho was aware that the trial court and the lawyers
felt it was a juror's duty to follow the law as given by the
trial court, and they wanted to know if any juror disagreed with
this proposition.  Ms. Kriho was also aware that the trial court
and the parties wanted to know if the jurors could follow the
rule that punishment was not to enter into their deliberations. 
Ms. Kriho was also aware that the trial court and the parties
wanted to know if the jurors could follow the rule that
punishment was not to enter into their deliberations.  Ms. Kriho
was also aware that the trial court and the parties wanted to
know if any juror had strong feelings concerning the enforcement
of drug laws or any experience that would affect their attitude
about drug laws.  While being aware of the importance of these
issues and having been given the opportunity to comment on these
issues, Ms. Kriho deliberately withheld her opinions on these
topics from the trial court and the parties during the jury
selection process.  Based on all the evidence, this Court
concludes that it was Ms. Kriho's intent to withhold this
information from the trial court and the parties so that she
could be selected to serve on the jury and obstruct the judicial
process.  By deliberately withholding this information, she
obstructed the process of selecting a fair and impartial jury. 
The selection of jurors who have open minds and who have not
preconceived the verdict is essential for a fair trial.  Ms.
Kriho's lack of candor about her experiences and attitudes led to
the selection of a jury doomed to mistrial from the start.  This
Court finds this conduct constitutes obstruction of justice and
this conduct was offensive to the authority and dignity of the
trial court.
     On the issue of disobedience to an order of the trial court,
this Court finds in favor of Ms. Kriho and against the People. 
Instructions on the law given to a jury at the conclusion of a
trial are not orders of the court which, if violated by a juror,
can result in a finding of contempt.  No evidence of the trial
court's orders to the jury was introduced by the People.  Orders
given to jury concerning their conduct during the course of a
trial are court orders and might support a finding of contempt if
there was evidence that such an order was given and it was
deliberately violated.  Such directions are ordinarily given to a
jury during trial.  They include an admonition that jurors are
not to attempt to gather any information concerning the case
outside of the courtroom.  This direction relating to juror
conduct is usually given after the jury is sworn and before
opening statements are made.  The transcript of that portion of
the trial was not introduced into evidence in this contempt
hearing and therefore this Court must conclude that the People
have not proven beyond a reasonable doubt that Ms. Kriho violated
an order of the trial court.
     On the issue of Ms. Kriho committing perjury, this Court
finds in favor of Ms. Kriho and against the People.  The case of
_Murer v. Rogowski_, 480 P.2d 853 (Colo. App. 1971) sets forth
specific conditions under which perjury can constitute contempt
of court.  The evidence in this case does not meet those
conditions.  The absence of those conditions did not deprive the
District Attorney of all remedies.  The District Attorney could
have filed a criminal charge against Ms. Kriho for perjury if he
had chosen to do so.
     THEREFORE IT IS ORDERED that, based upon this Court's
finding that Ms. Kriho deliberately and willfully withheld and
concealed information which was relevant and important to
selecting a fair and impartial jury, and that Ms. Kriho did so
with the intent of serving on the jury for the purpose of
obstructing justice, the Court finds Ms. Kriho in Contempt of
Court.
     IT IS FURTHER ORDERED that the Deputy District Attorney and
counsel for Defendant shall immediately contact the Division
Clerk to clear a date for a hearing at which time the Court shall
consider the issue of imposition of sanctions.
     Done in Chambers this 10th day of February, 1997
                         BY THE COURT:
                         Henry E. Nieto
                         District Judge
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Gilpin County District Court can be reached at: (303) 582-5522.
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     Background info.:  http://www.execpc.com/~doreen/kriho.html
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