Respondent/Cross-Petitioner Laura J. Kriho, acting by and through undersigned counsel, respectfully submits her BRIEF IN OPPOSITION TO COLORADO’S PETITION FOR WRIT OF CERTIORARI.

INTRODUCTION

Colorado has submitted a Petition for Writ of Certiorari, asking this Court to reverse the Court of Appeals decision on several points. In its statement as to why the Petition should be granted, Colorado argues:

1. Colorado differs with the Court of Appeals on whether evidence of jury deliberations should have been admissible against Laura Kriho, and asks this Court to set an appropriate standard as to when evidence from jury deliberations will be admissible against a juror.

2. Colorado asks this Court to determine that, even if evidence from jury deliberations was improperly admitted, its admission against Laura Kriho was harmless.

3. Colorado also asks for this Court’s review to "clarify when an issue has been sufficiently raised in the district court to warrant review on appeal."

4. Colorado believes the Court of Appeals misapplied – not misunderstood – "well settled law regarding appellate review of the sufficiency of the evidence."

5. Colorado asks this Court to determine the appropriate scope of any remand order to the district court.

Colorado does not articulate any reasons as to why it is important for this Court to review Ms. Kriho’s case, other than to say this is an opportunity for the Court to speak on various issues and to correct alleged errors of the Court of Appeals. Colorado does say that the People [i.e., the government] are aggrieved by the published decision of the court of appeals – undoubtedly, they are mostly aggrieved because it is published. The trial court may be aggrieved, the district attorney may be aggrieved, and the attorney general may be aggrieved, that the court of appeals reversed Ms. Kriho’s conviction. Their unhappiness is not a basis for granting their Petition.

The people of Colorado, however, are not likely of the same opinion as the Attorney General. They are much more likely aggrieved that the Court of Appeals decision did not do more to protect Ms. Kriho and all jurors, and the right of jury trial. Most of the people of Colorado would probably prefer that Ms. Kriho’s case be entirely dismissed, rather than sent back for a new trial by judge. But that’s a matter of public opinion, not a question of law or right.

The Attorney General did not cite to appropriate authority for this Court to exercise jurisdiction. Nor did the Attorney General establish the timeliness of his Petition, also required for this Court to exercise its jurisdiction. The Attorney General totally failed to establish jurisdiction in his Petition, as required by C.A.R. 53.

The Attorney General (Colorado) asks this Court to adopt as a standard for judging jurors in contempt, the holding of a sixty-six-year old Supreme Court decision applying the federal statutory law of contempt, a decision which affirmed a federal court conviction for contempt of one of the early woman jurors in a federal trial, Genevieve Clark. Genevieve Clark had the temerity (at the wrong time in history) to be the lone holdout for acquittal in a federal criminal trial, in the face of 11 angry men who could not persuade her she was wrong. After hanging the jury, Mrs. Clark was investigated. Because she had failed during voir dire to reveal she had once (for two weeks) worked in the stenographer pool for the company in which the defendants served as officers, and because she allegedly discussed facts not presented in trial, and because she refused to change her mind and be persuaded by relentless pressure from 11 obviously reasonable men, she was found in contempt by a federal court and sentenced to six months in jail.

The Clark decision should provide no guidance to any Court today. It is an historical embarrassment. There are important issues involved in Ms. Kriho’s case, issues worthy of this Court’s attention. But this Court need not grant Colorado’s Petition. The important issues in Ms. Kriho’s case will be presented in her Petition.

ARGUMENT

The case of Clark v. United States, 289 U.S. 1 (1933) is a tragic, mistaken, and isolated case applying the federal statutory law of contempt. To read Clark, and the lower court opinions, and to read the arguments of counsel, is to encounter the prejudices of a bygone era.

The Attorney General believes that tragic case from a chauvinistic era establishes an appropriate precedent to follow in Colorado. The Attorney General does not note as significant the circumstances under which Mrs. Clark was prosecuted and convicted, including the prevailing attitudes towards women on juries at the time. For example, it was determined by the trial court who convicted Mrs. Clark, that she was probably not thinking for herself during her jury service: "her unyielding attitude in the jury room, indicates to our minds the probable domination of a will stronger than her own."

The Attorney General also does not note the difference between a juror (Mrs. Clark) not disclosing an alleged personal or business relationship with the defendants at trial, and the alleged political non-disclosures of Ms. Kriho – her non-disclosure of her political views and associations, and of her one-time contact with the criminal justice system. The Attorney General conveniently ignores that Mrs. Clark was supposedly asked appropriately specific questions, to which she was not forthcoming, in contrast to Laura Kriho, who was prosecuted for not disclosing what she was not asked. Mrs. Clark was also accused of not participating in deliberations. Ms. Kriho was shown to be the most active juror in deliberations in the Brannon trial.

The Supreme Court decision affirming Mrs. Clark’s conviction stands out like an ugly scarecrow, useful as a symbol as to what to avoid, rather than what to follow. Tracking decisions which rely on its logic, one finds very few courts willing to follow any part of that decision. In fact, the few cases in this country’s history which can be found since Clark showing jurors being criminally punished, bear no resemblance to the prosecution of Laura Kriho.

Mrs. Clark was found guilty of not disclosing a business relationship with the company employing the defendants, a "material" fact, and of lying when she said that her mind was free and open and that she was without bias. United States v. Clark, 1 F.Supp. 747, 752 (D.Minn. 1931). The District Court also found it significant towards guilt that Mrs. Clark had announced that since the very able U.S. Attorney had been unable to convince her of the defendants’ guilt, there was no way the other jurors could convince her. "She virtually closed her ears to the arguments of other jurors." Id., at 749-750. The trial court found that Mrs. Clark was given a full opportunity to disclose the business relationship and that she had failed to do so. Id., at 752. Ironically, the court did not find that Mrs. Clark knew any of the defendants. Id., at 751. The trial court apparently concluded that Mrs. Clark wanted to be on the jury, she knew her prior two-week employment might get her disqualified, she concealed that employment to get selected, and that constituted contempt. If such harmless "concealment" were to be applied to other jurors, most jurors could be prosecuted for contempt. As practicing attorneys can attest, jurors who want to be selected try to say the right things, and jurors who want out of jury service try hard to say the wrong things. Mrs. Clark’s "mind was not free and open when she was accepted as a juror," so her answering that she felt she was unbiased was not true. Id., at 752.

Colorado is not bound to follow Clark, not by law, not by reason and not by principles of justice. No one should follow Clark, not even the federal courts.

CONCLUSION

Colorado has offered no compelling reason for this Court to grant its Petition. It has failed to demonstrate jurisdiction in the Court. Everything that needs to be determined in Ms. Kriho’s case, can be determined by the granting of her Petition. Colorado’s Petition should be denied.

Respectfully submitted,

Paul Grant, Reg. 26073
19039 E. Plaza Drive
Parker CO 80134
(303) 841-9649
Attorney for Respondent/Cross-Petitioner

CERTIFICATE OF SERVICE

I hereby certify that I have this 1^st day of November, 1999, placed a true and correct copy of the forgoing document in the mail, postage prepaid, addressed to the following:

Roger Billotte
Colorado Attorney General’s Office
1525 Sherman Street, 5^th Floor
Denver CO 80203

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