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OPENING BRIEF of Amicus Curiae,
by David Lane,
attorney representing the Colorado ACLU,
filed with the Colorado Court of Appeals
Sept. 15, 1997
COURT OF APPEALS, STATE OF COLORADO
Case Number 97 CA 700
Appeal from the District Court, County of Gilpin, Colorado
Honorable Judge Kenneth Barnhill
Case Number 96CR91
OPENING BRIEF OF AMICUS CURIAE
THE PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellee, vs. LAURA J. KRIHO,
Defendant-Appellant.
PLEASE TAKE NOTICE THAT AMICUS COUNSEL FOR THE DEFENDANT-APPELLANT, LAURA J. KRIHO, by and
through counsel Miller, Lane & Killmer, LLP, by David A. Lane, volunteer counsel for
the American Civil Liberties Union of Colorado, hereby files the following OPENING BRIEF
OF AMICUS CURIAE:
STATEMENT OF THE ISSUE PRESENTED:
WHAT IS THE APPROPRIATE METHOD OF INQUIRY A COURT MUST EMPLOY WHEN INVESTIGATING
ALLEGATIONS OF JUROR IMPROPRIETY DURING THE
DELIBERATIVE PROCESS?
STATEMENT OF THE CASE
PROCEDURAL POSTURE
Defendant-Appellant Laura Kriho was a juror in a criminal case captioned People v.
Michelle Brannon, Gilpin County District Court case number 95 CR 74, tried before the
Honorable Judge Barnhill. Her jury service was in May of 1996. Ms. Brannon was charged
with various crimes relating to her possession of methamphetamine, including possession of
drug paraphernalia and criminal impersonation. She was ultimately tried and convicted on
charges of criminal impersonation, acquitted on the paraphernalia charge and the jury
split 11-1 for conviction on the possession of methamphetamine charge. Laura Kriho was the
lone holdout for acquittal on the methamphetamine charge.
Subsequent to her service as a juror, the prosecutors in the Brannon case filed contempt
charges against Laura Kriho, alleging inter alia that she had failed to reveal in voir
dire that she had previously been arrested and took a deferred judgment on a felony charge
of possession of a controlled substance (LSD); that during voir dire she failed to reveal
that she was opposed to the enforcement of drug laws; and that she failed to disclose in
voir dire that she did not intend to follow the court’s instructions on the law.
Ms. Kriho was brought to trial before the Honorable judge Nieto on October 1 and 2, 1996
on the contempt charges. On February 10, 1997, the court adjudicated Ms. Kriho in contempt
of court. Ultimately a fine of $1,200 was imposed upon Ms. Kriho. The trial court
specifically found as follows:
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 any juror had strong feelings concerning the enforcement
of drug laws or any experience that would affect their 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...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.
(Order of Court, pps. 8-9, 2/10/97).
Ms. Kriho filed a timely notice of appeal and is currently represented by counsel before
this Court. Amicus have requested leave to file this brief in support of
Defendant-Appellant, Laura Kriho because of the significant interest both the ACLU of
Colorado have in insuring the integrity of our American jury system. (See motion to file
as Amicus Curiae on behalf of the ACLU of Colorado.)
STATEMENT OF FACTS
Laura Kriho reported for jury duty on May 13, 1996, at Gilpin County District Courthouse
in the case of People v. Michelle Brannon, [cite]. (Kriho Tr. (Day 2) p. 3). Judge Kenneth
Barnhill presided over the Brannon which generally involved allegations concerning the
possession of methamphetamines. At the outset, the court informed the potential jurors of
the charges against Ms. Brannon, which were: possession of a Schedule II controlled
substance (methamphetamine); assuming a false and fictitious identity; and possession of
drug paraphernalia. (Brannon Tr. p. 4).
Voir Dire commenced with the random selection of thirteen potential jurors. Ms. Kriho was
not called among the initial thirteen potential jurors interviewed by the judge and
attorneys, but remained seated in the back of the courtroom. (Brannon Tr. at 6; Kriho Tr.
at 4). Judge Barnhill
explained the reasons that a juror could be excused for cause, and informed the potential
jurors that they should come forward on their own initiative if they knew of anything that
would disqualify them from serving. (Brannon Tr. at 7-8). Upon the completion of a limited
court voir dire, the prosecution began questioning prospective jurors. After both of the
attorneys and Judge Barnhill asked over 350 questions of the thirteen original prospective
jurors and four replacements over approximately three and a half hours, Ms. Kriho was
called to the jury box. (Brannon Tr. at 89).
Of critical importance to this case is the fact that at no time did the court, the
prosecutor or the defense attorney ever ask Ms. Kriho whether she had any prior
involvement with the criminal justice system. Based on her reasonable belief that it would
not interfere with her ability to serve on a jury, she did not volunteer information of
her former deferred judgment (which is not a conviction and was subsequently dismissed) of
possession of a controlled substance. (Kriho Tr. (Day 2) at 16-17). When asked about her
familiarity with methamphetamine, Ms. Kriho truthfully replied that she knew that it was a
stimulant. (Brannon Tr. at 92). Ms. Kriho was never personally asked
about her views on drug possession laws, but she reasonably believed that, in accordance
with the judge's instructions, she could put aside her beliefs that marijuana should be
decriminalized and strictly weigh the evidence that was presented to the jury regarding
this methamphetamine case in a fair and impartial manner. (Kriho Tr. (Day 2) at 88;
Brannon Tr. at 93). Ms. Kriho was passed for cause by both attorneys. (Brannon Tr. at 92,
93).
The testimony at the Kriho contempt trial is breathtaking in its intrusiveness into the
deliberative process in the Brannon case. During jury deliberations in Michelle Brannon's
case, the first straw votes for all three charges were split, with Ms. Kriho siding with
the majority on two of the charges. (majority of the jurors and Kriho voted not guilty on
the possession of drug paraphernalia, (Kriho Tr. (Day 1) at 169) (Test. of Juror Ramsey);
(Kriho Tr. (Day 2) at 25); majority and Kriho voting not guilty on the possession of
methamphetamine, Id.; majority voting guilty on the charge of criminal impersonation, Ms.
Kriho voting not guilty, (Kriho Tr. (Day 1) at 170) (Test. of Juror Davis)). Ms. Kriho was
active in the deliberations on all three charges, (Kriho Tr. (Day 1) at 210) (Test. of
Juror Ramsey), (Kriho Tr. (Day 1) at 170), and upon listening to the arguments of her
fellow jurors, changed her vote on the charge of criminal impersonation to guilty. (Kriho
Tr. (Day 2) at 210) (Test. of Juror Ramsey). When deliberations on the charges of
possession of drug paraphernalia and methamphetamine stalled, two jurors who were
unconvinced of Brannon's innocence on the charge of possession of drug paraphernalia
offered to change their votes to not guilty on the condition that Ms. Kriho would change
her vote on the possession of methamphetamine to guilty, but Ms. Kriho refused, because
she did not feel that the prosecution had met its evidentiary burden. (Kriho Tr. (Day 1),
at 114) (Test. of Juror Hammock); (Kriho Tr. (Day 2) at 25-26).
Following Judge Barnhill's instructions, Ms. Kriho analyzed the credibility of Michelle
Brannon, who testified on her own behalf. Ms. Kriho took into consideration the
possibility that Ms. Brannon would lie on the witness stand due to her possible punishment
if convicted. Like other jurors, Ms. Kriho knew that Brannon's motive to testify was to
avoid conviction and sentence. (Kriho Tr. (Day 1) at 145) (Test. of Juror Cooper). Having
some limited familiarity with penalties for drug possession through her own experiences,
and as instructed by Judge Barnhill to bring in life experiences, prior knowledge, and
common sense, (Kriho Tr. (Day 2) at 43), Ms. Kriho wanted to contribute her knowledge of
drug possession penalties. (Id. at 32). Ms. Kriho confirmed her knowledge after the first
day of deliberations through access to the Internet. (Kriho Tr. (Day 2) at 32-33).
As deliberations continued, the jury, still deadlocked on the drug possession charge,
began to exert strong pressure on Ms. Kriho to change her dissenting vote. (Kriho Tr. (Day
2) at 34, Kriho Tr. (Day 1) at 198) (Test. of Juror Ramsey) ("everybody was ganging
up on her"). Ms. Kriho remained unconvinced that the prosecution had proved its case
beyond reasonable doubt, and was being forced to take a defensive position against the
other jurors. (Kriho Tr. (Day 2) at 32). Ms. Kriho was skeptical of the testimony of the
arresting officers, and felt that the prosecution had not proved that Brannon had
"knowingly" possessed the methamphetamine. (Kriho Tr. (Day 2) at 30). Ms. Kriho
even tried to re-enact the circumstances based on the evidence. (Kriho Tr. (Day 1) at 214)
(Test. of Juror Ramsey). In tears for most of the later deliberations, and in "a
moment of frustration," Ms. Kriho informed the jury of the possible penalty for
Brannon if she were convicted. (Kriho Tr. (Day 2) at 33, 41). Finally, in a
"last-ditch" effort to convince the other jurors of Brannon's innocence on the
drug possession charge, Ms. Kriho expressed her views that drug cases would be better
handled by families or communities, not the court, and that jurors had rights to vote
their consciences. (Kriho Tr. (Day 2) at 72, 35).
As the jury remained divided on the charge of drug possession, two notes were written to
Judge Barnhill. (Kriho Tr. at 110) (Test. of Juror Hammock). The first note asked if the
jury could vote guilty on two charges and not guilty on the other, which the judge replied
was acceptable. Id. The second note, although not shown to all the jurors, (Kriho Tr. (Day
1) at 216) (Test. of Juror Ramsey), asked the hypothetical question of whether a juror
could be disqualified for "looking up the sentence on the Internet for the possession
charge," or for a juror stating that "the court criminal system is no place to
decide drug charges [sic] that they should be decided by family and community."
(Kriho Tr. at 110) (Test. of Juror Hammock; People's Ex. 2). Upon receiving this second
note, Judge Barnhill called the jury into the courtroom, and without further discussion,
declared a mistrial and admonished the jurors for not following the Court's instructions
and wasting everyone's time. (Brannon Decl. of Mistrial Tr. at 3, 6-9).
After being excused, Ms. Kriho gave to another juror a pamphlet published by the Fully
Informed Jury Association. (Kriho Tr. (Day 1) at 202) (Test. of Juror Ramsey); (Kriho Tr.
(Day 2) at 46). Ms. Kriho was in possession of and had read the pamphlet before the
inception of the Brannon trial, and reread it during the night after deliberations had
begun, believing that it would help her perform her service as juror better. (Kriho Tr.
(Day 2) at 45-46). Ms. Kriho had discussed the concept of jury nullification with another
juror during the latter part of the deliberations, and believed the juror would be
interested in reading the pamphlet. (Id. at 46). The juror receiving the pamphlet returned
to the courtroom and showed the pamphlet to Judge Barnhill. (Kriho Tr. (Day 1) at 201)
(Test. of Juror Ramsey). Ultimately, the prosecutor in the case learned about the
deliberations from his interview with other jurors, and brought charges against Ms. Kriho
for perjury and contempt of court. (Kriho Tr. (Day 1) at 20). Ms. Kriho has remained
resolute that she at no time intended to cause a mistrial, but that the prosecution failed
to prove its case beyond a reasonable doubt. (Kriho Tr. (Day 2) at 35). It is Ms. Kriho's
unwillingness to either "exchange" votes with other jurors or capitulate to the
incredible pressure by the other jurors that is now being subjected to scrutiny by the
Court. She is being charged with exercising her fundamental right to participate and vote
in deliberations as she individually perceived the evidence.
VOIR DIRE
In order to fully comprehend the extent of the overreaching of the trial court in holding
Ms. Kriho in contempt, a review of the voir dire is important. During jury selection, Ms.
Kriho was asked the following questions and gave the following responses:
THE CLERK: Juror No. 35, Laura Kriho.
THE COURT: Ms. Kriho, you’ve been able to hear all of my questions and those asked by
the lawyers?
PROSPECTIVE JUROR KRIHO: Yes, sir.
THE COURT: Is there any one of those questions that raises in your mind an answer that
might be different?
PROSPECTIVE JUROR KRIHO: I was involved in a civil court proceeding where we sued a
developer down in Boulder District Court. That is part in Nederland.
THE COURT: But that didn’t involve this court or me?
PROSPECTIVE JUROR KRIHO: No.
THE COURT: Was there anything about that experience that makes you unhappy or angry with
the judicial system?
PROSPECTIVE JUROR KRIHO: No.
THE COURT: Do you know any of the parties in this case? The witnesses? The lawyers? The
defendant?
PROSPECTIVE JUROR KRIHO: No, I don’t.
THE COURT: Is there anyone on the jury that you could not work with?
PROSPECTIVE JUROR KRIHO: No.
THE COURT: You feel comfortable sitting with everybody?
PROSPECTIVE JUROR KRIHO: I don’t know any of them.
THE COURT: Did I ask if you’ve been on a jury before?
PROSPECTIVE JUROR KRIHO: Never been on a jury.
THE COURT: Is there anything, whether I asked it or not, that you can think of that would
interfere with your sitting as a fair and impartial juror?
PROSPECTIVE JUROR KRIHO: No, sir.
THE COURT: Mr. Stanley -- excuse me, run through the biographical sketch.
PROSPECTIVE JUROR KRIHO: My name is Laura Kriho, 257 Tower 214, Gilpin County; research
assistant in the psychology department at C.U. I have a college degree. I’m married.
No children. My husband is a repair technician. I do not have any relatives or friends in
law enforcement. I’ve lived in Gilpin County for two years and Colorado 13 years. I
like hiking and fishing and camping. And I like to read science fiction. I don’t
listen to the radio. And I like to watch the news on TV.
THE COURT: Thank you. Mr. Stanley?
MR. STANLEY: Ms. Kriho, I was trying to write some of that down, but you went through it
so fast. What is your degree in?
PROSPECTIVE JUROR KRIHO: Psychology.
MR. STANLEY: And when did you get that?
PROSPECTIVE JUROR KRIHO: 1988, I think.
MR. STANLEY: And you’ve been with the -- how long have you been working for -- did
you say the psychology department?
PROSPECTIVE JUROR KRIHO: For eight years for the University.
MR. STANLEY: Are you familiar with this drug, methamphetamine?
PROSPECTIVE JUROR KRIHO: Just that it is a stimulant.
MR. STANLEY: In your studies with psychology, did you happen to do any studies dealing
with the effects of this drug or a similar drug?
PROSPECTIVE JUROR KRIHO: No.
MR. STANLEY: You listened to all our topics; would you have answered anything differently?
PROSPECTIVE JUROR KRIHO: No.
MR. STANLEY: Thanks, pass for cause.
THE COURT: Mr. Manter?
MR. MANTER: Ms. Kriho, I won’t belabor it any further; you heard all of the questions
I asked of the other jurors?
PROSPECTIVE JUROR KRIHO: Yes.
MR. MANTER: And you are prepared to give us your promise you will be fair and impartial to
Michelle in this matter?
PROSPECTIVE JUROR KRIHO: Yes.
MR. MANTER: And would you expect and demand that we produce evidence knowing that the
burden of proof is on the prosecution to prove his accusations beyond a reasonable doubt?
PROSPECTIVE JUROR KRIHO: No, I would expect that.
MR. MANTER: Pass Ms. Kriho for cause.
Significantly, in voir dire Ms. Kriho was generally asked if she would have given any
different answers to the approximately 350 prior questions asked of other jurors who were
previously questioned. She generally responded that the only different answer would have
involved a statement about her civil case in Boulder District Court. The People alleged in
the court below that the following statements applied generally to all potential jurors
and that Laura Kriho should have given a response to these general questions, even though
they were never asked specifically of her. In particular, the court instructed all
potential jurors that: "If all of the essential elements of the crime that is charged
are proven by the prosecution beyond a reasonable doubt, then the jury should return a
verdict of guilty as to that charge.(1) "
(Brannon Transcript, p. 11; Brannon Transcript, 89-93)
The People also alleged, and the court found, that Ms. Kriho was affirmatively obligated
to inform the parties and the court that she had received a deferred judgment on a drug
case over a decade earlier and that she should have told the parties that she believed
that marijuana should be legal, (even though the Brannon case involved methamphetamine)
allegedly as the appropriate response to the following compound question asked by the
prosecutor:
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?...Do you have any problem with the fact that possession
of this particular drug, methamphetamine, is prohibited in this state?
Brannon Transcript, p. 42.
ARGUMENT
It is the firm position of the ACLU of Colorado that this Court must rectify what must be
considered one of the greatest threats to our jury system in recent memory, certainly
within the State of Colorado, and possibly in the nation. Amicus contends that the process
employed by the trial court in holding Laura Kriho in contempt represents an unprecedented
intrusion into the sanctity of jury deliberations. The repercussions of this dramatic
breach of the cornerstone of American jurisprudence and tradition are both far-reaching
and frightening from a systemic perspective, as well as from the perspective of individual
jurors summonsed to the courthouse to perform their civic duty to the best of their
abilities. Indeed, the appearance of vindictiveness and impropriety in the actions of the
trial court alone warrant an unambiguous statement by this
Court that such actions simply cannot be tolerated if our jury system is to retain any
vitality. Since Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670), which resulted in freedom
for a member of a jury who had been arrested for voting to acquit William Penn, the common
law has sanctified and respected the right of individual jurors to vote their consciences,
consistent with the law and the facts of a case as they perceive them to be. A fair
reading of Laura Kriho's case, however, leads any objective reader to conclude that in an
effort to firmly eradicate what the court perceived to be "jury nullification"
the trial court has overstepped the boundaries of propriety and intruded into an area of
inquiry heretofore forbidden.
The issue before this Court is extremely difficult. The ramifications of this Court’s
decision are potentially enormous, thus this Amicus brief. This Court must determine how
to strike the excruciatingly delicate balance between the investigation and punishment of
actual juror misconduct with the intimidating and chilling effect on the jury system of a
misguided inquiry into the mind of a juror. It is the position of the ACLU of Colorado
that this Court must make a clear and unequivocal statement that absent a showing of the
grossest misconduct by a juror, inquiry into the deliberative process should forever be
foreclosed to the courts. To hold otherwise is to return to an era long-since discredited
where a "wrong" vote by a juror resulted in incarceration for the wayward
citizen.
In deciding this enormously important issue, this Court must obviously be guided by the
specific facts of this case. It is the contention of amicus, consistent with that of
counsel for Ms. Kriho, that simply upon the facts of the case, Laura Kriho’s
conviction cannot stand. She is quite simply not guilty of contempt of court. Ms.
Kriho’s counsel, however, is certainly able to argue that issue. Amicus will argue
that beyond merely exonerating Ms. Kriho on the facts of the case, it is incumbent upon
this Court to clearly and specifically render an unambiguous affirmation of the rights of
all of us in a free society to be tried by a jury of our peers, unencumbered by the fear
that a perceived "wrong" vote will result in sanctions to the offending juror.
It is urged that this Court set forth a rule whereby inquiries of this nature will forever
be foreclosed and the sanctity of the jury room will continue to be of paramount concern.
ARGUMENT
I. IF THE JURY SYSTEM IS TO RETAIN ANY VITALITY, THE DELIBERATIVE PROCESS MUST BE IMMUNE
FROM JUDICIAL SCRUTINY ABSENT COMPELLING EVIDENCE OF SOME EXTRINSIC INFLUENCE BROUGHT INTO
DELIBERATIONS.
A SYSTEM OF JUSTICE MUST APPEAR JUST
Of equal importance to the concept that our judicial system dispenses justice is that our
system appears to be engaged in that process. Public confidence in our judicial system is
vitally important if our democratic ideals are to survive. If the public has confidence in
the fundamental cornerstones of our democracy, our nation’s long-term health is
secure. It is when confidence in the institutional fabric of our society is eroded that
our republic is in jeopardy.
The record reveals that Laura Kriho was mistreated and abused by the system she was
attempting to give her best efforts to serve. Putting the egregious nature of her trial
aside, the appearance of gross unfairness in this case is manifest. To the public at
large, it appears that Ms. Kriho was held in contempt because she refused to vote for a
conviction in the Brannon case. It appears that she was held in contempt for not answering
questions never asked of her(2) . At the very least, the appearance of these things is
inimical to the system of justice in this country as "[t]he guiding consideration is
that the administration of justice should reasonably appear to be disinterested as well as
be so in fact." Liljeberg v. Health Services Acquisition Corp. 486 U.S. 847, 869-70
(1988). The appearance of fairness, as well as fairness in fact, is a cornerstone of our
criminal justice system. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104
S.Ct. 819, 178 L.Ed.2d 629 (1984). The courts of Colorado have long been concerned that
any appearance of impropriety is virtually as serious as an actual impropriety. See e.g.
People v. Arledge, 938 P.2d 160 (Colo. 1997); People ex re. Sandstrom v. District Court,
884 P.2d 707 (Colo. 1994); People v. Rhodus 870 P.2d 470 (Colo. 1994); People v. Martinez,
869 P.2d 519 (Colo. 1994); Murphy v. People, 863 P.2d 301 (Colo. 1993); People v. Tippett,
733 P.2d 1183 (Colo. 1987). Indeed, the Canons of Judicial Conduct, Canon 2 states:
"A judge should avoid impropriety and the appearance of impropriety in all his
activities."
It is highly likely that the public’s confidence in our criminal justice system
suffered as a result of the ruling below. This case received well-deserved concern and
attention from the media nationally and sparked a great deal of public debate over the
appropriate role of the court in scrutinizing jury deliberations. Given the ruling below,
it is not unreasonable to assume that prospective jurors would, indeed should, have some
trepidation regarding their possible service. Indeed, if one can be held in contempt for
not answering questions not asked, predicting what may provoke a prosecutor and a court
into so holding should in fact become an issue of genuine concern on the part of a
prospective juror. The ruling of this Court must attempt to restore public confidence in
the criminal justice system.
II. INVESTIGATION OF JUROR CONTEMPT MUST BE STRICTLY LIMITED TO INQUIRY REGARDING
EXTRINSIC INFLUENCES ON THE DELIBERATIVE PROCESS.
A. CURRENT STANDARDS FOR ADJUDICATING JUROR CONTEMPT
There are surely instances when a juror can be held in contempt of court. Blatantly lying
during voir dire may indeed be one of those rare instances where contempt is justified.
Not showing up at the trial may be another example. While there is fortunately a paucity
of caselaw regarding juror contempt, one of the few cases to address the issue is from the
United States Supreme Court. In Clark v. United States, 289 U.S. 1, 77 L. Ed. 993, 53 S.
Ct. 465 (1933), a prospective juror denied knowing the defendants in a criminal case. It
turned out that not only did the juror know the defendants, the juror had worked for the
defendants for a period of time. Once sworn as a juror, her personal agenda was to see
that her friends were acquitted. It was apparent that the juror had objectively and
clearly lied about her knowledge of facts important to a fair resolution of the case. The
nature of her falsehood was readily apparent to all. There was no room for any ambiguity
regarding whether she did or did not lie. She was not asked about her attitudes regarding
certain subject matter. She was not asked to render an opinion on anything. She was asked,
point-blank, if she knew the defendants and she stated she did not.
In affirming the finding of contempt, the Supreme Court outlined the test necessary for
such a determination. The Court held that there are three essential elements which the
government must prove in order for a juror to be convicted of contempt: (1) that the juror
must knowingly and willfully give untruthful answers in response to voir dire questions;
(2) that such knowing and willful false answers were utilized by the juror to gain
acceptance upon the jury; and (3) that the juror's acts obstructed the administration of
justice. The standard in Clark was adopted more recently in Bays v. Petan Co. of Nevada,
94 F.R.D. 587, 590 (D.C. Nev. 1982), where the court defined the burden of proof for a
conviction for criminal contempt as being that each element of the offense must be proved
beyond a reasonable doubt. See In re Kirk, 641 F.2d 684, 687 (9th Cir. 1981); Kelly v.
United States, 250 F. 947, 949 (9th Cir. 1918).
Amicus believes that the test set forth in Clark may indeed be a valid test when a juror
is caught objectively and affirmatively lying to the court. The test in Clark however,
cannot be employed in a situation in which subjective opinions are solicited from jurors
during the voir dire process(3). Laura Kriho is in contempt, in part, because she
allegedly lied when she said she would follow the law as given by the court. The alleged
proof of this lie is that she mentioned to a fellow juror during deliberations that jurors
had a right to vote their consciences. The court below concluded that given these
statements coupled with her not-guilty vote, she was engaged in the allegedly pernicious
practice of jury nullification. Unlike the juror in Clark, who had objectively lied to the
court, where there was no need to get into the deliberations of the jury to obtain this
information, Laura Kriho is in contempt for her alleged failure to adequately disclose her
beliefs to the court. The implications of this are frightening. Ambiguous questions met
with unclear answers, all dealing with feelings and ideas are simply not subject to the
same hard scrutiny that objectively quantifiable data is subject to. While two plus two
can readily be seen to equal four, one’s beliefs in the proper role of an individual
juror in a criminal case are not so easily ascertained and quantified. The Clark criteria
may be suitable for the objective inquiry, but when dealing with the "soft"
issues in this case, the Clark method proves unworkable.
It is the further contention of amicus that regardless of whether an objectively
recognizable falsehood has been told, if inquiry into the deliberative process is
necessary to ferret out this falsehood, the court must be precluded from the
investigation. While indeed, this may result in a few contumacious jurors going
unpunished, the cost to the system of allowing the type of inquiry seen in this case is
far to great to tolerate.
B. THIS COURT MUST PRESERVE THE SANCTITY OF THE DELIBERATIVE PROCESS.
It is beyond cavil that in this country, if any legal principle endures timelessly, the
principle that the sanctity of jury deliberations is inviolate is that principle. Indeed,
invading the privacy of the jury room is as anathema to our system as invading the privacy
of the voting booth would be. Remmer v. United States, 350 U.S. 377, 381, 100 L.Ed. 435,
76 S. Ct. 425, 428 (1956) discussed the paramount concern courts must have "for
protecting and preserving the integrity of our jury system." In Mahoney v.
Vondergritt, 938 F.2d 1490, 1491 (1st Cir. 1991) the court discussed the well-established
principle that courts must "protect jurors and their verdicts from unwarranted
intrusions," (citing Commonwealth v. Fidler, 377 Mass. 192, 196, 385 N.E.2d 513, 516
(1979)). The court cited to Tanner v. United States, 483 U.S. 107, 127, 97 L. Ed. 2d 90,
107 S. Ct. 2739 (1987) which held that "long-recognized and very substantial concerns
support the protection of jury deliberations from intrusive inquiry." The Mahoney
court then cited Neron v. Tierney, 841 F.2d 1197, 1205 (1st Cir. 1988) for the proposition
that "courts generally 'should be hesitant to haul jurors in after they have reached
a verdict . . . to probe for potential instances of bias, misconduct, or extraneous
influences." Similarly United States v. Calbas, 821 F.2d 887, 896 (2d Cir. 1987) held
that
"open-ended inquiry into the questions considered by the jury and into the
deliberations of the jury will, if not kept under very close check, undermine the entire
nature and integrity of our jury system." The court in Calbas went on to hold:
There is no right of access to the deliberations through which a jury passed in reaching a
determination, and open-ended inquiry into the questions considered by the jury and into
the deliberations of that jury will, if not kept on under very close check, undermine the
entire nature and integrity of our jury system. Any jury which has been out for a number
of days or perhaps even a number of hours debating whether the government has established
guilt beyond a reasonable doubt is going to be a jury within which strong differences have
developed, and it is not for us, the judge or the lawyers, to inquire into chapter and
verse of those differences, absent very compelling reasons.
The court in Mahoney ultimately concluded that "inquiry into the motives of
individual jurors and conduct during deliberations is never permissible; any investigation
must focus solely on whether the jury was exposed to external influences and, from an
objective perspective, whether such influence was likely to have affected the jury's
verdict." "Freedom of debate," as Justice Cardozo wrote, "might be
stifled and independence of thought checked if jurors were made to feel that their
arguments and ballots were to be freely published to the world." Clark v. United
States, 289 U.S. 1, 13, 77 L. Ed. 993, 53 S. Ct. 465 (1933); see also United States v.
Antar, 38 F.3d 1348, 1367 (3d Cir. 1994) (Rosenn, J., concurring) ("We must bear in
mind that the confidentiality of the thought processes of jurors, their privileged
exchange of views, and the freedom to be candid in their deliberations are the soul of the
jury system."); In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir. 1990) ("It
is undisputed that the secrecy of jury deliberations fosters free, open and candid debate
in reaching a decision."); Abraham S. Goldstein, Jury Secrecy and the Media: The
Problem of Postverdict Interviews, 1993 U. ILL. L. REV. 295, 295 ("Jurors must
deliberate in secret so that they may communicate freely with one another, secure in the
knowledge that what they say will
not be passed along to others."); Benjamin S. DuVal, Jr., The Occasions of Secrecy,
47 U. PITT. L. REV. 579, 646 (1986) ("The secrecy of the jury room, like that of the
Supreme Court conference, is designed to promote the free and candid interchange of
views."). Id. at 40.
In a very extensive evaluation of juror misconduct and the appropriate way for a court to
address it, the Second Circuit recently had occasion in United States v. Thomas, 116 F.3d
606 (2nd Cir. 1997) to confront the issue of an alleged nullifying juror being removed by
the trial court during deliberations. The basic lesson in Thomas is that the court has no
ability to penetrate the veil of secrecy over jury deliberations, even at the cost of
letting a juror escape justice for intentionally subverting the process through
nullification. Thomas has reaffirmed the basic protection afforded the deliberations of
jurors. In Thomas, the court held:
As a general rule, no one--including the judge presiding at a trial--has a "right to
know" how a jury, or any individual juror, has deliberated or how a decision was
reached by a jury or juror. The secrecy of deliberations is the cornerstone of the modern
Anglo-American jury system. While jury secrecy, like rules insulating jury verdicts of
acquittal from prosecutorial challenge, necessarily serves to permit nullification to
occur, see supra p. 615, its primary contemporary purpose lies elsewhere. Courts and
commentators alike recognize that the secrecy of deliberations is essential to the proper
functioning of juries. It is well understood, for example, that disclosure of the
substance of jury deliberations may undermine public confidence in the jury system, see
Note, Public Disclosures of Jury Deliberations, 96 HARV. L. REV. 886, 889 (1983)
("Public Disclosures"), and poses a threat to adjudicatory finality. Especially
troublesome is the danger that such disclosure presents to the operation of the
deliberative process itself. As one commentator has observed:
Juror privacy is a prerequisite of free debate, without which the decision making process
would be crippled. The precise value of throwing together in a jury room a representative
cross-section of the community is that a just consensus is reached through a thoroughgoing
exchange of ideas and impressions. For the process to work according to theory, the
participants must feel completely free to dissect the credibility, motivations, and just
deserts of other people. Sensitive jurors will not engage in such a dialogue without some
assurance that it will never reach a larger audience.
Id. at 618.
This respect for the deliberative process is seen Colorado Rule of Evidence 606(b). The
Court in Harper v. People, 817 P.2d 77 (Colo. 1991) held that:
CRE 606(b) permits juror testimony about whether extraneous prejudicial information was
improperly brought to the juror's attention. CRE 606(b) applies after the verdict is
entered but allows an aggrieved defendant an opportunity to move for a new trial based on
juror misconduct. C.R.C.P. 59(d)(2). While it is improper to inquire into a juror's actual
mental processes, CRE 606(b) does allow a party an opportunity to provide the court with
evidence of extraneous influence in an effort to overcome the Holmes presumption.
(emphasis added.) This basic principle was also set forth in Ravin v. Gambrell By and
Through Eddy, 788 P.2d 817, 820 (Colo. 1990). The Court cited this Court with approval in
holding that CRE 606(b) prohibits inquiry into the deliberative processes of jurors.
People v. Garcia, 752 P.2d 570 (Colo. 1988); People v. Collins, 730 P.2d 293 (Colo. 1986);
Santilli v. Pueblo, 184 Colo. 432, 521 P.2d 170 (1974).
The traditional reluctance to intrude into the deliberative process is well founded. If
jurors fear that they will be not only subjected to public scrutiny as a result of their
statements in deliberation but possible criminal prosecution, the chilling effect on the
honest exchanges between jurors during deliberations could not be greater. This is
precisely what this Court is confronted with. There could be no greater intrusion into the
secrecy of deliberations than that witnessed in the case of Laura Kriho.
The entire trial of Laura Kriho involved nothing but an excursion into areas long
considered sacrosanct. The spectacle of seeing her fellow jurors testifying pursuant to
prosecutorial subpoena that her thought process during deliberation undermined the group
effort to convict was chilling. Prosecutors questioning jurors on how their fellow juror
thought is simply not permitted in America(4) .
C. ALLEGATIONS OF JURY NULLIFICATION SHOULD NOT RESULT IN THE CLOAK OF JURY SECRECY BEING
LIFTED.
The procedural and factual posture of this case is unusual. On the one hand, the court
below took great pains to state that Laura Kriho was not being adjudicated in contempt
based upon how she voted in the Brannon case. (Order, p.2). On the other hand, she was
found in contempt because she allegedly should have told the parties and the court that
she believed in the
concept of jury nullification and that she had no intention of following the instructions
of the court. The evidence in support of her alleged omissions in voir dire, however, came
from statements she made during the deliberations on the merits of the Brannon case. It is
disingenuous for the court below to hold that it is merely the failure to communicate a
philosophy of nullification during voir dire and not the actual act of nullification which
is being punished. Indeed, had she believed firmly in nullification, voiced these beliefs,
yet voted to convict, there would have undoubtedly been no contempt proceedings. It is the
alleged belief coupled with the vote which has provoked this charge. Presumably, every
juror who has ever nullified a verdict
began the process by swearing to follow the law. Under the court’s rationale, any
juror who nullifies could be prosecuted for failing to disclose beliefs consistent with
nullification during voir dire. The analysis employed below is extremely dangerous from
several perspectives.
It is the contention of amicus that Laura Kriho, simply on the facts of this case cannot
be said to have nullified the verdict. Indeed, abundant testimony from both Ms. Kriho and
fellow jurors indicated that Ms. Kriho carefully considered the merits of the
People’s case and rejected their arguments that Ms. Brannon had been proven guilty
beyond a reasonable doubt. During the course of deliberations, an embattled Laura Kriho
opined that drug cases are probably better handled through family intervention than court
intervention, however, her decision to acquit was strictly based upon the lack of merit in
the People’s case. This, then, is not jury nullification. An individual juror can
firmly believe that nullification is permissible from a philosophical perspective, yet
vote to acquit, or as in the case of Laura Kriho, vote to convict on some charges and
acquit on others based solely on the merits of the case, applying the legal standards
mandated by the court.
Amicus will address the issue of nullification in this brief, however, because the court
below, while loudly protesting that Ms. Kriho was not punished for her vote to acquit,
indeed is punishing her for her perceived nullification in the face of legal instructions
to the contrary. It is the position of amicus that to punish a juror for acts of
nullification, or to punish jurors for alleged failures to volunteer information that they
are philosophically in favor of nullification, are in essence one and the same thing. When
the sole focus of the contempt proceeding involved an inquiry into why Ms. Kriho hung the
Brannon jury with her vote for not-guilty, it is crystal clear that the contempt citation
was premised upon the trial court’s misperception that Ms. Kriho voted for an
acquittal as an act of nullification. It is the unequivocal position of amicus that no
court should have the
power to punish a juror who based upon matters of conscience refuses to convict a criminal
defendant. It is the further contention of amicus that no court may inquire into the
deliberative process to determine why any given juror has voted in any particular way,
other than to determine whether extrinsic influences have tainted the deliberative
process. People v. Garcia,
752 P.2d 570 (Colo. 1988); Wiser v. People, 732 P.2d 1139 (Colo.1987); People v. Harrison,
746 P.2d 66 (Colo. App. 1987). Even in those circumstances, the inquiry must be strictly
limited to whether there was extrinsic evidence before the jury, and whether it impacted
upon the deliberations. At no time may a court inquire into the thought processes of any
juror.
HISTORY OF NULLIFICATION
In a very well-written opinion, the Second Circuit recently had occasion to deal with the
very difficult issue of whether a juror who is perceived by the trial court to be a
"nullifier" could be removed from the jury during deliberations. In United
States v. Thomas, 116 F.3d 606, 614 (2nd Cir. 1997) the court very clearly discussed many
of the same issues currently before this Court.
In Thomas, the court defined nullification as, per se, "a violation of a juror's oath
to apply the law as instructed by the court--in the words of the standard oath
administered to jurors in the federal courts, to "render a true verdict according to
the law and the evidence." Federal Judicial Center, Benchbook for U.S. District Court
Judges 225 (4th ed. 1996) (emphasis supplied)."
The court recognized that nullification has at times manifested itself as a form of civil
disobedience that some, although not the Second Circuit, may regard as tolerable. The case
of John Peter Zenger, the publisher of the New York Weekly Journal acquitted of criminal
libel in 1735, as well as nineteenth-century acquittals in prosecutions under the fugitive
slave laws, were referred to by the court as "perhaps our country's most renowned
examples of "benevolent" nullification." Id. At 614. Historical examples of
nullification abound. See United States v.Dougherty, 154 U.S. App. D.C. 76, 473 F.2d 1113,
1130 (D.C. Cir. 1972) (Leventhal, J.); see also Shannon C. Stimson, The American
Revolution In The Law: Anglo-American Jurisprudence Before John Marshall 52-55 (1990)
(describing Zenger trial).
Both the Colorado and United States Constitutions provide that in all criminal proceedings
the accused shall have the right to trial by an impartial jury. United States Constitution
Amendment VI; Colorado Constitution, Article II, Section 16. Implicit in this right is the
right to have a jury decide all relevant questions of fact, including the ultimate
question of guilt or innocence. United Brotherhood of Carpenters v. United States, 330
U.S. 95, 408, 67 S.Ct. 775, 782, 91 L.Ed.2d 973 (1947) (court may never instruct jury to
convict); Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 406, 90 L.Ed.2d
350 (1946); United States v. Hayward, 420 F.2d 142-43 (D.C. Cir. 1969) (verdict of guilty
is for the jury alone); Mims v. United States, 375 F.2d 135, 148 (5th Cir. 1967); Loomis
v. United States, 61 F.2d 653, 655 (9th Cir. 1932).
A vital and traditional role of the jury is to act as the "conscience of the
community". Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1096, 26 .Ed.2d 446
(1970); Duncan v. Louisiana, 391 U.S. 145, 155-56, 88 S.Ct. 1444, 1451-52, 20 L.Ed.2d 491
(1968). As community conscience, the jury has enormous power to act as a bulwark between
an accused and a tyrannical government by simply voting to acquit, regardless of the
evidence. Indeed, this power commonly known as "jury nullification" is precisely
the reason for the right to a jury. As the Supreme Court in Duncan noted:
Those who wrote our constitutions knew from history and experience that it was necessary
to protect against unfound-ed criminal charges brought to eliminate enemies and against
judges too responsive to the voice of higher authority...Providing an accused with the
right to be tried by a jury of his peers gave him an inestimable safeguard against the
corrupt or overzealous prosecutor and against the compliant, biased, or eccentric
judge...Fear of unchecked power, so typical of our State and Federal Govern-ments in other
respects, found expression in the criminal law in this insistence upon community
participation in the determination of guilt or innocence.
Id at 156.
The Court further stated that when a jury renders a verdict that is at odds with the
verdict the trial court would have rendered it is usually because the jurors are serving
the very purpose for which they were created. Id. at 157.
The power of jury nullification has also been acknowledged by the United States Supreme
Court in Woodson v. North Carolina, 428 U.S. 280, 293, 96 S.Ct. 2980, 986, 49 L.Ed.2d 944
(1976). The Court noted that mandatory death penalty statutes frequently resulted in
juries simply acquitting guilty defendants rather than imposing upon the convicted a
punishment deemed excessive by the conscience of the community. Indeed, the entire thrust
of Woodson is that mandatory imposition of the death penalty is unconstitutional.
Similarly, any instruction to a jury which makes conviction mandatory is equally
unconstitutional.
It is beyond dispute that nullification has a long history in the Anglo-American legal
system, see United States v. Dougherty, 473 F.2d 1113 at 1130-33 (D.C. Cir. 1972) and that
the federal courts have long noted the de facto power of a jury to render general verdicts
"in the teeth of both law and facts," Horning v. District of Columbia, 254 U.S.
135, 138, 65 L. Ed. 185, 41 S. Ct. 53 (1920); see, e.g., United States v. Trujillo, 714
F.2d 102, 105-06 (11th Cir. 1983). Id. at 30. That jury nullification exists is a fact of
life which is beyond dispute. United States v. Schmitz, 525 F.2d 793, 794 (9th Cir. 1975)
("The jury has the inherent power to pardon one no matter how guilty."); United
States v. Dougherty, 473 F.2d 1113, 1132 (D.C. Cir. 1972); United States v. Anderson, 716
F.2d 446, 450 (7th Cir. 1983). While it has not been held to be error to refuse to
instruct a jury on their right to nullify, United States v. Grismore, 546 F.2d 844, 849
(10th Cir. 1976); Dill v. People, 29 P.2d 1035 (Colo. 1934), "it simply does not
follow...that no compulsion results from an instruction that the jury must convict."
State v. Ragland, 519 A.2d 1361, 1378 (NJ 1986) (Handler, J., dissenting in part).
In United States v. Hayward, 420 F.2d at 144 (D.C. Dir. 1969) the court held that
instructing the jury that it must find the defendant guilty if certain facts were found
unconstitutionally impinged upon the jury's function as the exclusive finder of fact.
Similarly, in Billeci v. United States, 184 F.2d 394, at 399 (D.C. Cir. 190), the court
held that the use of the word "must" in a conviction charge was error. As
Justice Handler observed in Ragland, supra., an instruction mandating a "compulsive
conviction stands at variance with the fine discretion that a jury must exercise when
considering the myriad factors, definable and undefinable, obvious and subliminal, that
bear upon the ultimate determination of criminal guilt or innocence." Id. at 1377.
Certainly jury nullification is within the inherent power of each juror. It is also true
that no prospective juror who during voir dire indicates that they will only follow the
court’s instructions if they believe them to be correct would be permitted to sit as
a juror. Assuming that jurors answer inquiries during voir dire in good faith, each and
every juror who has ever voted to nullify must have started his or her service on the jury
with the best of intentions. It is only during the process of actually serving on a jury
that an evolution occurs in which some jurors become convinced that overriding precepts of
justice must intrude into an otherwise computer-like task. Common sense dictates that it
is almost a certainty that jurors who become nullifiers are responding to the facts of the
case before them. It is safe to assume that virtually no nullifying jurors began their
service with a sub rosa agenda of subverting the process by ignoring the law(5). It is the
position of amicus that the courts of this country must presume the good faith of jurors
in answering voir dire questions. Once the deliberations in a case have begun, absolutely
no court has the right to inquire as to the mental processes of any juror. The court in
Thomas took a very strong stand against the legitimacy of jury nullification, yet this
same court took an equally firm stand against a court making inquiries of a jury regarding
their deliberations. Amicus does not believe that this
Court need decide any issues regarding the legitimacy of nullification. This Court need
only decide how a court is to make inquiry when determining allegations of juror
misconduct.
D. JUROR SECRECY TAKES PRIORITY OVER PUNISHING AND INVESTIGATING ALLEGATIONS OF JUROR
MISCONDUCT
Of major importance to the court in Thomas was that since the emergence of the general
verdict in criminal cases and the opinion rendered in Bushell's Case, 124 Eng. Rep. 1006
(C.P. 1670), (freeing an acquitting member of the jury arrested for voting to acquit
William Penn "against the weight of the evidence"), "nullifying jurors have
been protected from being called to account for their verdicts." Id. at 615.
("...jurors are not answerable for nullification after the verdict has been
reached..." Id. at 616).
Given the fact that secrecy is to be regarded as of supreme importance, the question of
how far a court may go to inquire into allegations of juror misconduct is readily
answered. The Thomas court provided the answer. "The need to protect the secrecy of
jury deliberations begins to limit the court's investigatory powers where the asserted
basis for a deliberating juror's possible dismissal is the juror's alleged bias or
partiality in joining or not joining the views of his colleagues." Id. At 620.
The court addressed the fact that many allegations of juror misconduct are easily
identified and can be investigated without intrusion into the deliberative process. It is
those instances in which the thought processes of a juror must be delved into which cause
extraordinary difficulty for the courts.
The Thomas court concluded that when it appears that a juror is engaged in an evidentiary
analysis on the merits of the case, all further judicial inquiry is foreclosed.
[A] court may not delve deeply into a juror's motivations because it may not intrude on
the secrecy of the jury's deliberations. Thus, unless the initial request for [a juror's]
dismissal is transparent, the court will likely prove unable to establish conclusively the
reasons underlying it. Given these circumstances, we must hold that if the record evidence
discloses any possibility that the request to discharge stems from the juror's view of the
sufficiency of the government's evidence, the court must deny the request.
Id. at 620 (quoting United States v. Brown, 823 F.2d 591, 596 (D.C.Cir. 1987), Judges
Mikva, Bork, and Douglas Ginsberg). Indeed, this principle underlies the ultimate rule set
forth in Thomas.
A presiding judge faced with anything but unambiguous evidence that a juror refuses to
apply the law as instructed need go no further in his investigation of the alleged
nullification; in such circumstances, the juror is not subject to dismissal on the basis
of his alleged refusal to follow the court's instructions. A lower evidentiary standard
would encourage the court faced with ambiguous evidence of such impropriety to investigate
further, eliciting testimony from jurors until enough evidence surfaced to affirm or
reject allegations of juror nullification. One unavoidable consequence of imposing a lower
evidentiary standard would thus be to open up the possibility that judges, in response to
demands of counsel or otherwise, would wind up taking sides in disputes between jurors on
allegations of juror nullification--in effect, to permit judicial interference with, if
not usurpation of, the fact-finding role of the jury.
Id. At 622.
The court in so holding clearly recognized the fact that this standard would result in
some jurors who are deliberately subverting the system going unpunished. The risk is one,
however, which simply must be taken, given the fact that the only alternative would be to
invade the privacy of the deliberations. "Where the duty and authority to prevent
defiant disregard of the law or
evidence comes into conflict with the principle of secret jury deliberations, we are
compelled to err in favor of the lesser of two evils protecting the secrecy of jury
deliberations at the expense of possibly allowing irresponsible juror activity." Id.
At 623.
E. THE CONTEMPT ADJUDICATION MUST BE VACATED
The lessons from the caselaw could not be any clearer. This Court must, above all else,
strive to protect the fundamental secrecy of the deliberative process. Absent secrecy in
our jury rooms, our entire system crumbles. No juror can withstand the public scrutiny of
having each and every statement made during jury deliberations parsed out and dissected.
This is precisely what happened to Laura Kriho(6). Can any juror in Gilpin County,
Colorado, feel comfortable fulfilling their civic duty, all the while worried that every
ill-conceived or half-baked utterance they make while contemplating a complex set of
facts, may be splashed across the newspapers, or, worse yet, result in a criminal
prosecution? Obviously, the court below violated the basic tenets of jury secrecy in the
grossest imaginable way in the trial of Laura Kriho. This Court must resoundingly rectify
this abuse of the system.
The court below rendered its decision in a pointed effort to send a message to would-be
nullifiers in our State. The message was that jury nullification is intolerable and is
nothing short of a direct violation of the juror’s oath. If anyone dare vote their
conscience in derogation of the facts and the law, they can expect to be punished for
their efforts through the convoluted contempt proceeding seen below. Unfortunately for the
court below, the facts of this case clearly indicate that Ms. Kriho voted as she did based
upon the law and facts of the case. Whether she does or does not believe in the philosophy
of nullification is irrelevant as we know from reviewing the law. Assuming arguendo that
she was engaged in nullification, if the only way for the court to ascertain that fact is
to inquire into the substance of the deliberations, inquiry is foreclosed. We will simply
live with the nullification for to breach the secrecy of the jury in order to search out
instances of nullification is a road down which we cannot travel.
CONCLUSION
For all of the foregoing reasons, this Court must reverse the conviction of Laura Kriho
and at the same time, send an unequivocal message to those who would sacrifice our jury
system in order to punish those whose thoughts are divergent from the mainstream. The
message must be strong and clear -- that the sanctity of the jury room will not be
violated.
Respectfully submitted,
MILLER, LANE, KILLMER & GREISEN, LLP
By:________________________
David A. Lane
730 Seventeenth Street, Suite 600
Denver, Colorado 80202
Reg. No. 16422 (303) 534-6400
Amicus Curiae counsel for ACLU of Colorado
CERTIFICATE OF SERVICE
I, David A. Lane, Amicus attorney for the Defendant-Appellant, hereby certify that on this
the 15th day of September, 1997, a true and correct copy of the foregoing papers, BRIEF OF
AMICUS CURIAE, was caused to be delivered to the following individuals by placing them in
the United States mail, postage prepaid.
Clerk of the Colorado Court of Appeals Colorado State Judicial Building 2 East 14th Avenue
Denver, Colorado 80203
Office of the Attorney General
Criminal Appeals Division
1525 Sherman Street, 5th Floor
Denver, Colorado 80202
Paul Grant, Esq.
11911 Highway 83,#205
Parker, Colorado 80134
By:_______________________ David A. Lane
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