Colorado Contempt Case Highlights Attack on "Jury Nullification" Power

IN THE COURTS December 1996

After hearing two days of evidence, Gilpin County District Court Judge Henry Nieto said on October 2 that he will issue a ruling at a future date about whether juror Laura Kriho, 32, is guilty of contempt of court. Judge Nieto gave both sides seven days to file briefs supporting their cases (State of Colorado v. Laura Kriho, 96-CR-91; James B. Meadow, "Judge to rule if juror was in contempt," Rocky Mountain News (Denver), October 3, 1996, p. 10A; Greg Campbell, "Witch Hunt: Court seeks revenge against juror Laura Kriho," Boulder Weekly, October 3-9, 1996, p. 12; Becky O'Guin, "Trial ends; judge holds tongue," Colorado Daily (Boulder), October 3, 1996, p. 1; Clay Evans, "Judge sends juror back into court," Daily Camera (Boulder), September 9, 1996, p. 1A).

Laura Kriho, a Colorado University researcher, was charged with contempt of court after a May trial in which she was a dissenting juror in a 11-1 vote to find 19-year-old Michelle Brannon, guilty of possession of methamphetamine (State of Colorado v. Brannon). During deliberation, Kriho, who had looked up the possible penalty for the defendant on the Internet, discussed the sentencing implications of a guilty verdict with fellow jurors, and argued that drug cases were best handled by the community and the family, not the courts. One frustrated juror wrote a note to Gilpin County District Court Judge Kenneth Barnhill informing him that a juror had made comments and asking a juror could be replaced, but Barnhill had already dismissed alternate jurors. Judge Barnhill declared a mistrial without an inquiry and dismissed the jury.

Two months after the trial, Barnhill charged Kriho with contempt of court for disregarding his instructions not to discuss Brannon's potential punishment during deliberation. Kriho was also charged with perjury for failing to inform the court during jury selection about her long-held views against drug laws and a 1984 conviction for LSD possession when Kriho was 19, which prosecutors discovered during an investigation of Kriho's background after the mistrial. Deputy District Attorney Jim Stanley accused Kriho of obstructing justice with "widespread deception" about her agenda, revolving around her "firm belief that the drug laws in this country are wrong, and a jury has the right to change them." Stanley called Kriho's behavior "a threat to the foundation of the judicial system that cannot be tolerated."

Paul Grant, Kriho's lawyer and a former official of the national Libertarian Party, said his client "was never asked during jury selection if she had any prior convictions," and that, even if she did, "that would not have disqualified her as a juror." According to Grant, the "conviction" does not exist because Kriho "signed a negotiated plea, received a deferred sentence, satisfied conditions of probation and had the deferred sentence terminated." He argued that Kriho "is on trial because she argued jury rights in the jury room, because she asked the jurors to consider the (sentencing) consequences of a guilty verdict and because she refused to vote guilty on a drug possession case, irritating 11 other jurors, a judge and a prosecutor." Grant said that at stake are the right of a juror to weigh the facts and her conscience and the right of a criminal defendant to an independent jury free from the threat of intimidation (Paul R. Grant, "Facts wrong in story of juror on trial," Denver Post, October 14, 1996).

Grant said, "You have to go back to [the trial of William Penn in] 1670 to find a case in which the judge tried to punish jurors for returning a verdict he didn't like." A conviction "would send a message to jurors that they will be prosecuted if they hold out," said Grant. In a letter to the Colorado Daily (Boulder), Laura Kriho's parents, Ralph and Virginia Kriho, wrote, "No one will ever get a fair trial again if each juror has to worry about being prosecuted himself. It is difficult enough to get jurors to serve now, just because of the inconvenience and loss of wages" (Ralph and Virginia Kriho, "Our daughter is being punished," Colorado Daily (Boulder), September 16, 1996).

Jury rights activists, such as the Fully Informed Jury Association (FIJA) and the Libertarian Party, believe that the Kriho case has national implications. The case sheds light on the hotly debated topic of jury nullification, where a juror votes his conscience rather than the fine points of the law. Supporters say that it is a check and balance of the judicial system that prevents overzealous prosecutions. Theoretically, it also encourages legislators to discontinue or change unjust, frivolous or intrusive laws that continually lead to hung juries. Supporters argue that nullification has been used in the past by jurors who objected to the "witch trials" in Salem, Massachusetts and by Northerners opposed to the fugitive slave laws before the Civil War. Opponents, such as Gilpin County Judge Frederic B. Rodgers, argue that it invites "anarchy," undermining stable laws with the personal opinions of individual jurors. He claims jury nullification allowed white jurors to refuse to convict white defendants that had technically been proven guilty of lynching blacks (Associated Press, "Gilpin County juror case spotlights issue of 'jury nullification' rights," Denver Post, September 7, 1996, p. 3; Frederic B. Rodgers, "The Jury in Revolt? A 'Heads Up' on the Fully Informed Jury Association Coming Soon to a Courthouse in Your Area," The Judges' Journal (American Bar Association), Summer 1996, Vol. 35, No. 3, p. 10).

Grant alleges that Gilpin County Judges colluded with the district attorney's office to bring charges against his client because they were unhappy with the mistrial in Brannon's case in which they thought they had a conviction. Former juror Dan Cooper testified at Kriho's hearing that he overheard Judge Barnhill tell prosecutor Stanley to "look into this" after Kriho went to her car and returned with a pamphlet advocating jury nullification to give to another juror. The juror gave the pamphlet to Judge Barnhill. Grant says Stanley did "look into it" with the help of Gilpin County Judge Frederic Rodgers who wrote an article this summer for the Judge's Journal about what a judge can do when faced with a jury pool "tainted" with notions of jury nullification.

"I feel I am being punished for coming up with the wrong verdict," said Kriho. She claims that the judge and prosecutor have been biased against her. During a motions hearing on September 27, Judge Henry Nieto denied a request by Kriho's attorney to dismiss the charges. In turning down the defense's motion, Nieto said, "the defendant has the power but not the right to disregard the law." Kriho's request for a trial by jury was denied by Judge Nieto since the maximum sentence she faces is less than six months. Kriho said she "expect[s] to be convicted" because she did not receive a jury trail. "I don't think this judge is fair or impartial." In addition, Deputy District Attorney Jim Stanley, who lost the Brannon case in which Kriho was held in contempt, is prosecuting the charges against Kriho. Grant asked the court to assign a different prosecutor due to the potential conflict of interest in the case, but Judge Nieto denied the request (Becky O'Guin, "Decision time in juror case," Colorado Daily (Boulder), October 2, 1996, p. 1).

Contributions to Laura Kriho's defense can be made to: Laura Kriho Defense Fund, c/o Paul Grant (defense attorney), P.O. Box 1272, Parker, Colorado 80134.