Cross-Petition for Writ of Certiorari by Paul Grant

I. Whether a juror in a criminal trial can be held criminally liable for failing to disclose during voir dire any of the following types of information:

a. The juror’s political views concerning any constitutional and legal principles.

b. The juror’s prior contacts or experiences with any branch of the government.

c. The juror’s views as to the trustworthiness of the government.

d. The juror’s views as to the role of the jury in a criminal trial.

e. The juror’s knowledge of the historical role of the jury in protecting individual liberty against government oppression and tyranny, including knowledge of the jury’s unreviewable prerogative to acquit, in any case.

f. The juror’s membership or association with or support of any groups advocating individual liberty or any change in the laws of the land.

Does the answer to potential criminal liability for failure to disclose such information as described in a-f, above, depend on whether the juror has been asked specific questions expressly aimed at eliciting such information?

II. Whether the trial court can impose a legal duty on a prospective juror, with criminal sanctions for non-compliance, to disclose during voir dire any information the trial court determines later it would have wanted to know, even if the court failed to ask her for that information?

III. Whether a juror can be held liable for criminal contempt of court based on evidence of her actions and arguments during jury deliberations?

IV. Whether a juror can later be held liable for criminal contempt for her actions in the presence of the court during jury selection when those actions were not disruptive to court proceedings nor offensive to the dignity and authority of the court at that time?

V. Whether a court can use the voir dire process and its contempt power to ban from the jury any juror who is sufficiently independent to resist government oppression, without destroying the right to trial by jury?

VI. Whether a juror can be held liable on a charge for criminal contempt of court, for obstructing the administration of justice, when the trial court announced at trial that it did not know to what that charge referred, and when the charging documents did not specify to what that charge referred, and when the trial court only determined and announced its theory as to what that charge referred, months after the trial was completed?

VII. Whether Ms. Kriho's due process rights, protected by the United States and Colorado Constitutions, were violated by the trial courts refusal to grant a continuance to research and brief legal issues and raise money to hire expert witnesses, by that same court's refusal to allow Ms. Kriho to call the prosecutor and judge as witnesses, and by the court's refusal to appoint a special prosecutor, when it appeared the independence of the prosecutor's office may have been compromised by improper contact from a judge.

VIII. Whether a juror being tried for contempt is entitled to a trial by jury.

OPINION BELOW

A copy of the Court of Appeals Opinion reversing the conviction is attached.

JURISDICTION

Jurisdiction of this court to review the decision of the Court of Appeals and the judgment of the District Court is invoked pursuant to C.A.R. 49, C.R.S. §13-4-108(2), and to Art. VI, Sec. 2, the Colorado Constitution. The Court of Appeals issued its opinion on April 29, 1999, reversing Ms. Kriho’s conviction and ordering a new trial. The government filed a request for enlargement of time to file a petition for rehearing on May 12, 1999, and was on May 14, 1999 granted an extension until May 20, 1999. The government then filed its Petition for Rehearing on May 20, 1999. The Petition for Rehearing was denied on September 2, 1999.

Ms. Kriho filed for an extension of time in which to File this Petition for Writ of Certiorari on September 30, 1999, requesting until October 12, 1999. That request was granted on October 8. Ms. Kriho subsequently filed two additional requests, the first on October 12, requesting until October 18 (this was granted on October 15), and the final request on October 18, requesting until November 3, 1999 (this was granted on October 22, 1999). Ms. Kriho’s Petition is due on November 3, 1999, and is timely filed on this date.

STATEMENT OF THE CASE

Ms. Kriho was the lone juror holding out for acquittal on one count in a drug case (which involved three counts: possession of methamphetamine, possession of drug paraphernalia, and criminal impersonation) (People v. Michelle Brannon, Case No. 95CR74, "the Brannon case") in Gilpin District Court in 1995. During deliberations, another juror sent an anonymous note to the trial judge, asking for a new juror to replace a juror making "improper" arguments in the jury room. The trial court erupted in anger, chastised the jury without inquiry as to whether they could reach a verdict, or as to how many, if any, of the jurors were aware of the "improper" discussion, or were affected by it. The trial court then declared a mistrial and asked the district attorney for an investigation into the jury to determine what had happened.

Ms. Kriho was determined by the prosecutor to be the juror who made improper arguments. She was also determined to have had a prior contact with law enforcement, a contact which she had not disclosed during voir dire.²Ms. Kriho was charged with contempt of court, with the citation drawn up by the same prosecutor who had handled the original trial, and the citation was then issued by the trial judge from the original trial. The chief judge of the First Judicial District selected himself to preside over Ms. Kriho’s contempt trial. The chief judge denied Ms. Kriho’s demand for a jury trial. He also denied Ms. Kriho’s motion for continuance so that her counsel could present motions regarding the secrecy of jury deliberations, the First Amendment protection of her comments and argument, the inappropriateness of such a prosecution of a juror, and more. The prosecutor and the judge said this was a simple contempt case where no important issues needed briefing or determination before trial. The chief judge also ruled that Ms. Kriho could not call either the original trial judge or the original prosecutor as a witness at her trial.

The contempt citation against Ms. Kriho cites her arguments in the jury room in favor of jury rights as a basis for the contempt charge. (V.1, p.3). The citation also cites her handing a jury rights brochure to another juror, after the trial and outside the courthouse, as further proof of her contempt. (V.1, p. 4). At Ms. Kriho's trial, a copy of a letter to the editor she wrote before the trial, about industrial hemp, and a quote from a newspaper interview, were used against her to show her beliefs and associations. (V. 5, pp. 79-82).

The trial court found Laura Kriho to "have some relationship with the organization that published the brochure [V. 7, Exh. 3, True or False Brochure, whose cover states: 'TRUE OR FALSE? When you sit on a jury, you have the right to vote your conscience.'] and determined that she knew this was important to the selection of a fair and impartial jury and she should have revealed it during jury selection." (V. 1, p. 170). The brochure referred to above quotes John Adams and Thomas Jefferson and asks why jurors are not informed that they can vote their consciences. (V. 7, Exh 3).

Laura Kriho refused to support a conviction (on the drug possession count) for which she had not found sufficient evidence (Testimony of L.K., V. 5, pp. 30-31; testimony of Lucia Strouse, V. 6, p. 20; testimony of Rose Hosmer, V. 6, pp. 38-42). Ms. Kriho explained in the jury room what evidence she would need to find sufficient proof. (V. 6, p. 38; V. 5, pp. 30-31). She was not convinced, based on the evidence. (V. 4, p. 113, l. 11-21). The facts are also that Laura Kriho willingly voted guilty on the charge of criminal impersonation, and that she helped persuade other jurors that proof was inadequate to find guilt on a drug paraphernalia possession charge. (V. 4, p. 208, testimony of R. Ramsey, ll. 4-8; V. 4, p. 169-170, testimony of James Davis).

Jurors in the gallery, but not in the jury box, did not answer questions during voir dire in the Brannon case. (V. 4, p. 181, p. 181). Laura Kriho was not called into the box until after a full morning of voir dire. (V. 1, Motion for Contempt Citation, p. 2 at para. 14). [This corresponded to page 89 of the voir dire transcript. (V. 8, Exh. 1, p. 89)]. The trial court’s Order, finding Ms. Kriho guilty of contempt, failed to point out any question to which Laura Kriho answered falsely or where she should have answered differently. The Order does mention questions asked of other jurors when Ms. Kriho was not present in the jury box.

The defendant did not know to what action of hers the Motion for Contempt Citation phrase "obstructing the administration of justice"(see V. 1, p. 4) referred. (V. 4, p. 221-222). The defendant, through counsel, asked the court:

MR GRANT: Well, perhaps you can clarify for us what obstruction of [the administration of] justice relates to?

THE COURT: I don't know what it relates to, counsel . . . I don't know what the prosecution is going to argue is the evidence in support of the allegation . . . (V 4, p. 222).

In response to the defendant's efforts to introduce evidence that the mistrial in the Brannon case resulted from precipitous action from that court and was not caused by Ms. Kriho, the trial court said that Ms. Kriho was not being held accountable for the mistrial. (V. 1, pp. 221-222; trial transcript, Day 1, v. 4, p. 3, ll. 8-12). There was no disruption of court proceedings cited by the trial court in its Order finding Ms. Kriho guilty. The prosecutor never defined the charge "obstructing the administration of justice" and the trial court did not explain what that charge meant until, four months after her trial, it put forth its Order finding Laura Kriho guilty of contempt for obstructing the administration of justice.

The prosecutor, in a pretrial hearing, explained the charge against Ms. Kriho as simple:

[T]his is not - this is not a complicated proceeding. This is a contemspt citation. . . The allegations are that Ms. Kriho disobeyed a Court Order and that she lied or misrepresented things to the Judge and to counsel. And the trial consists of submitting the transcript and having possibly all 11 other jurors testify. Her statements directly support the allegations and the complaint is that she chose to disregard the Court's order and that she lied. . . All the things that she was specifically asked that were asked during voir dire that she did not surface. That's the allegations. It's as simple as that, Judge.

Counsel would like to inject into what is a simple contempt case proceeding all these other issues . . .

(V. 2, p. 12).

The trial court responded to the defendant's request for a pre-trial continuance, to allow briefing of the legal issues, after hearing the prosecutor's arguments: "Counsel argues to the court that this is a complex case. This is a simple proposition. The State has made . . . some allegations concerning the conduct of a juror. That's a factual dispute that the Court will hear and that factual dispute will be determined by the tryer [sic] of fact. . . I don't see it as a complex case." (V. 2, p. 18).

Yet the trial court did ask for post-trial briefs on the law, due one week after the trial. And the trial court did then take four months to deliberate and produce its ruling, a 9 page, single-spaced ruling that did not treat the case as a "simple case." The Court's ruling, the February 10, 1997, Order, does find that Laura Kriho obstructed the process of selecting a fair and impartial jury, and that her "lack of candor" led to a jury "doomed to mistrial from the start." (V. 1, p. 171). The trial court found that Laura Kriho obstructed justice and then finally defined what that meant. (V.1, p. 171). This occurred after four months of trial court deliberation (the trial was held October 1 and 2, 1996).

In responding at a pretrial hearing on the defendant's Motion to Dismiss, on the basis that Ms. Kriho was being prosecuted for her beliefs, associations, and her speech as a juror, the prosecutor assured the trial court that was not so:

. . . I find it interesting [that Mr. Grant] makes the comment that somehow he takes the leap from reading the specific language of this contempt motion to a statement that are [sic] extrapolation, we are attempting to punish or bring to light Ms. Kriho's views or punishing her for her views. But, Judge, as the Court already noted and asked counsel during his argument in no place, nowhere in this contempt citation do we allege or are we accusing her of, or does this have anything to do with her speech or her argument or her conduct. The allegation is that she responded to the judge she could follow the law as ordered and she did not follow his instructions.

(V. 3, p. 21).

The contempt citation fairly drips with contemptuous and indignant criticism of Ms. Kriho's jury room arguments. (V. 1, p. 3). Apparently, the prosecutor forgot about paragraphs 21 - 26 of the contempt citation, which do criticize her speech and argument and conduct. Ms. Kriho was acquitted of disobeying an order of the court, and the trial court ruled that jury instructions are not court orders. (V. 1, p. 172).

The trial court refused to allow Ms. Kriho to call as her witness the original trial judge, the Honorable Kenneth Barnhill, despite an offer of proof that the defendant wanted to call the judge to testify as to off-the-record conversations he had with Ms. Kriho in the courtrrom after the mistrial was declared. These conversations would have shown Ms. Kriho's state of mind at the time - distressed and not at all pleased at the outcome - refuting the willfulness the trial court found in its ruling finding Ms. Kriho guilty of contempt. (Offer of Proof, V. 1, p. 102, para. 11 and 12; hearing transcript, 9/27/96, V. 3, pp. 23-24; trial transcript, 10/1/96, Day 1, V. 4, p. 3.). Ms. Kriho did testify that she was upset and did not think the trial should have ended in a mistrial, and that she had tried to explain what had happened in the jury room. (V. 5, pp. 47-49). The trial court indicated Ms. Kriho could testify on these matters (Hearing 9/27/96, V. 3, p. 24), yet denied her the benefit of calling Judge Barnhill as a witness to the same facts, to show her actions were not contemptuous.

Ms. Kriho was denied an opportunity to brief the legal issues involved in her case before the trial, including the issue of the secrecy of jury deliberations. (The trial court did invite post-trial briefs on the applicable law.) She was denied the time to raise money to bring in experts to explain the jury deliberation and voir dire processes i.e., how real jurors think and act. She was denied a special prosecutor even when there appeared to be improper contact between a judge who advocated punishing "jury nullifiers" and the prosecutor's investigator before charges were brought against her. (See generally, hearing transcript, 9/20/96, V. 2; hearing transcript, 9/27/96, V. 3, pp. 6-8).

Four months after her trial, the chief judge found Ms. Kriho guilty of contempt of court. She was later sentenced to a fine of $1200, with no jail time imposed. Her sentence is stayed pending appeal.

The Court of Appeals relied on a federal court decision to determine that evidence originating in the jury room during deliberations was inadmissible in Ms. Kriho’s contempt trial. Based on that determination, the Court of Appeals then determined that certain allegations against Ms. Kriho rested on information improperly obtained from deliberations and could not form the basis for conviction. The Court of Appeals reversed Ms. Kriho’s conviction and remanded the case to the District Court for a new trial which can be held, but in which evidence obtained from jury deliberations will be inadmissible. The Court of Appeals did not address how the District Court can possibly ignore the evidence it has already heard in Ms. Kriho’s first trial, or how the District Court can be impartial in a second trial, after having once previously determined Ms. Kriho’s guilt.

REASONS FOR GRANTING THE PETITION

This appears to be the first case in Colorado history, or in the nation’s history, where a juror was investigated, charged, and convicted of criminal contempt of court for her deliberations in the jury room, for expressing her political beliefs and speech in the jury room, and for not disclosing during voir dire what she was not asked for concerning her political beliefs, associations, and experiences.

This appears to be the first case in Colorado history where any person has been held in criminal contempt of court for actions occurring in the presence of the court, when those actions were neither disruptive of the judicial process nor offensive to the dignity and the authority of the court at that time.

The investigation, trial and conviction of Laura Kriho presents the possibility of a judicial and prosecutorial attack on the right to trial by jury, a vengeful judicial and prosecutorial attack on an independent-minded juror who was unwilling to support conviction when the trial court and prosecutor felt she should have. Ms. Kriho would never have been prosecuted for her actions had a guilty verdict been returned on all counts. The judiciary and prosecutor must not be allowed to use voir dire to intimidate jurors into following the government line. And the judiciary must not be allowed to criminally punish jurors for doing their job - i.e., resisting government oppression (an improper conviction). Jurors cannot be held criminally liable for failure to volunteer information during voir dire. They can only be held accountable for their answers to questions actually asked. And there are many questions which cannot be properly asked, if the fundamental right to trial by jury is to be preserved. Jurors are to be protected by the courts, not prosecuted.

A crime cannot be defined after the act and after the trial. Finding Ms. Kriho guilty of contempt for "obstructing the administration of justice" where the charge does not refer to any particular conduct or theory of obstruction until after the trial is over, and where no one has previously been prosecuted for a similar crime, is a violation of due process.

The prosecution and conviction and appeals of Laura Kriho have received national and international attention because the issues involved are of such fundamental importance, and because her prosecution and conviction provoked much outrage. The Court of Appeals’ inadequate resolution of the issues should not be allowed to stand. If this Court wants to put an end to a prosecution which should never have been brought, and to prevent such cases from being brought in the future, then this Court must grant Laura Kriho’s Petition and resolve these issues. This will send a clear message to all trial courts and prosecutors, and to all citizens, that the rights of jurors and the right to jury trial are sacrosanct in Colorado, and that the prosecution of jurors for their disagreement with the government will not be allowed. Ms. Kriho’s conviction must be reversed and the charge of contempt must be dismissed.

ARGUMENT

Trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives."

P. Devlin, Trial by Jury 164 (1956).

The Court of Appeals erred by not ordering the charge against Ms. Kriho dismissed. It misread or misinterpreted the trial court’s Opinion to say that Ms. Kriho had lied during voir dire. Slip Op. at 42. The trial court was careful not to find that Ms. Kriho lied, and there is no evidence that she did. It appears the Court of Appeals relied on this misreading of the trial court’s Opinion to determine that a new trial should be ordered.

The Court of Appeals also contradicted itself and the trial record. In reviewing the voir dire of the jury, the Court of Appeals noted that the entire venire was instructed in introduction, followed by some jurors being called into the jury box for individual questioning. The Court rightly recognized that Ms. Kriho was not initially called into the box, and that some 350 questions were asked of other jurors before she was called up as a replacement juror. Slip Op. at 2-3. Nowhere in the record did any juror in the gallery respond to a question from court or attorneys. Slip Op. at 2. Nowhere in the record of her voir dire is there any question asked of Laura Kriho concerning whether she had ever been arrested or had any contact with law enforcement. Slip Op. at 3-4. Yet, the Court of Appeals found that Kriho should have answered questions on that topic, questions not directed to her. Slip Op. at 38.

The Court of Appeals Order for a new trial because of Ms. Kriho’s failure to disclose a prior contact with law enforcement makes no sense. Ms. Kriho was not asked any question about her prior contact with law enforcement, a 12-year old contact that had resulted in a deferred judgment. Further, the Court of Appeals rightly held that in a juror contempt prosecution, any ambiguity in the questions should inure to the benefit of the juror. Slip Op. at 35. Then the Court contradicted itself on that very point. The Court recognized that there are certain ambiguities concerning the legal effect of a deferred judgment, and that Ms. Kriho testified she did not think she would have a duty to disclose her own [long ago] deferred judgment. Slip Op. at 37, 39. Despite these admitted ambiguities, the Court of Appeals then says Ms. Kriho should not be given the benefit of the doubt relating to ambiguities concerning the effect of deferred judgments. Where even legal experts may differ on that effect, Ms. Kriho will be subject to retrial and possible conviction – by a judge who has already convicted her once.

The right to jury trial can be lost by erosion, as well as by gross denial. See Jones v. United States, 119 S.Ct. 1215, 1226 (1999). Attacks on the independence of jurors through investigations and criminal prosecutions of those who refuse to convict undermines and saps the vitality of the jury system. Spiteful or angry prosecutors or judges cannot be given a license to investigate jurors who hold out against conviction. They will always be able, with hindsight, to find something in a juror’s personal beliefs or history – something they would have liked to find out during voir dire - to lead them to believe that the juror was biased or predisposed towards acquittal. That is the teaching of the prosecution of Laura Kriho. And this is true despite the fact that the evidence showed Laura Kriho was the most conscientious and diligent juror in the jury room. It cannot be overlooked - but was by the judge who convicted her - that she did join a unanimous guilty vote on one criminal count in the Brannon trial. It is highly unlikely a jury of her peers would have determined her behavior to be contemptuous.

Trial by jury is the great protector and bulwark of liberty against oppressive and tyrannical government. The trial of jurors by judges is a threat to that bulwark. Liberty will remain secure only "so long as this palladium [trial by jury] remains sacred and inviolate, not only from all open attacks but also from all secret machinations . . ." 4 Blackstone 342-344, quoted in Jones v. United States, 119 S.Ct. at 1225.

Designing a system to allow for the prosecution of dissident jurors, is not a proper job for the Colorado Supreme Court. Upholding the right to trial by jury against insidious attacks, is.

CONCLUSION

For all the reasons state above, the Colorado Supreme Court should grant this Petition for Writ of Certiorari to deal with each of the issues raised above.

Respectfully submitted,

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

CERTIFICATE OF SERVICE IN COMPLIANCE WITH C.A.R. 25

I hereby certify that I have placed a true and correct copy of the above document in the U.S. mail, postage prepaid, this 3rd day of November, 1999, addressed to:

Roger Billotte
Colorado Attorney General
1525 Sherman Street, 5th Floor
Denver CO 80203

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