[T]rial 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).

Juror Laura Kriho should never have been charged with a criminal offense, she should never have been tried, and she should never have been convicted. Her prosecution and conviction, it will be shown, violated her rights to due process, her First Amendment rights to freedom of thought, expression, and association, her rights as a juror in a criminal trial, and other important and fundamental rights. Her prosecution and conviction are a stain on the criminal justice system and a provocation against the rights and liberties of Americans.

Laura Kriho's prosecution and conviction represent a frontal assault on the right to trial by jury in the United States, an assault practically guaranteed to have a chilling effect on both citizen willingness to participate in jury service and on the jury deliberation process itself. Laura Kriho has been prosecuted and convicted of criminal contempt of court because of her arguments in the jury room, for exercising her First Amendment-protected rights outside the courthouse after the trial in which she served as a juror, for hanging a jury, for her beliefs, associations and values, and for failure to volunteer information during voir dire, information not requested of her, but information which the court wished she had volunteered.

Laura Kriho's conviction stands as a threat to the integrity of the jury system, a system which has roots in Anglo-American legal history going back more than 1000 years, to Saxon England and beyond, so far back that "the memory of man runneth not to the contrary," to a time even before jury rights were codified in Magna Carta, in the year 1215. There have been continuing tensions between trial courts and the rights of jurors, going back surely to the very first juries. More than 1000 years ago, in Saxon England, Alfred the Great is reputed to have hanged 44 judges, for false judgments, chiefly, one form or another of encroachment upon the rights and privileges of juries. Sir John Hawles, The English-mans right: A dialogue between a barrister at law, and a jury-man, pp. 5-6, (London, 1680), a copy of which is attached in the Appendix. Hawles recites the continuing struggle over jury rights from ancient times up through the trial of William Penn in 1670, the trial which established that jurors cannot be punished for bringing back improper verdicts, or for ignoring the judge's instructions. (Bushell's Case, Vaughan, 135). The argument over the jury's right to judge the law as well as the fact, sometimes described as "jury nullification," is also well dealt with in Hawles' essay.

STATEMENT OF THE ISSUES

I. Were Ms. Kriho's First Amendment-protected rights to freedom of speech, thought, and association, violated by Colorado's prosecution?

II. Can the trial court impose a legal duty on prospective jurors, with criminal sanctions for non-compliance, to disclose during voir dire whatever information the trial court would want to hear, even if the court forgets to ask the juror for that information? Or, can a juror be held criminally liable for not answering a question she was not asked?

III. Can a juror be charged with criminal contempt of court, and convicted, for actions taking place within the jury room, actions which comprise jury deliberation?

IV. Can a juror be convicted of criminal contempt of court, for actions taken in the presence of the court, when those actions were not disruptive to the dignity and authority of the court at that time?

V. Can a court use the voir dire process and its contempt power to ban from the jury any juror who is sufficiently independent to resist government oppression?

VI. Can a juror be convicted of criminal contempt of court, for obstructing the administration of justice, when the trial court announced at trial that it did not know what that charge referred to, and when the trial court subsequently decided and announced what that meant, after the trial was completed?

VII. Were Ms. Kriho's due process rights, protected by the United States and Colorado Constitutions, violated by the trial court's 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 or at least inquire, when it appeared the independence of the prosecutor's office may have been compromised by improper contact from a judge.

STATEMENT OF THE CASE

Laura Kriho was tried to the Court in Gilpin District Court, Division G, on October 1 and 2, 1996. She was found guilty of criminal contempt of court. Ms. Kriho was sentenced on March 7, 1997, to a $1200 fine. Judgment of conviction entered on April 17, 1997, when the Court signed the Order for Judgment of Conviction.

Ms. Kriho was prosecuted for contempt of court for her actions during jury service in May 1996, in a trial in Gilpin District Court. Ms. Kriho was one of twelve chosen for jury service in the trial of Michelle Brannon (the Brannon trial), Gilpin District Court Case No. 95CR74.

During jury deliberations, Ms. Kriho allegedly criticized the drug laws, discussed sentencing consequences for the defendant, refused to vote guilty on a drug possession charge, and argued the jury's right to judge the law as well as the facts. One of the other jurors sent an anonymous note to the trial judge, the Honorable Kenneth Barnhill, asking if a troublesome juror making improper arguments could be replaced with an alternate. Judge Barnhill, without verifying the information or questioning any of the jurors, declared a mistrial, and asked the District Attorney to investigate what had happened.

Ms. Kriho was subsequently ordered to show cause why she should not be held in contempt of court for disobedience to a court order, for perjury during voir dire, and for obstructing the administration of justice.

She was tried to the Court (Honorable Henry Nieto presiding), no jury being allowed, and subsequently found not guilty of disobedience to a court order (jury instructions being found not to constitute court orders), not guilty of perjury during jury selection, but guilty of obstructing justice, hence guilty of contempt of court.

The trial court refused defense requests for a jury trial, refused a continuance for pretrial briefing of the legal issues, and refused a continuance to allow Ms. Kriho time to raise money to hire experts on the jury selection process. The trial court refused to allow Ms. Kriho to call as witnesses the prosecutor from the trial in which she served as a juror, despite evidence the prosecutor had off-the-record conversations with jurors and the trial judge after the mistrial had been declared. The trial court also refused to allow Ms. Kriho to call Judge Barnhill as a witness, despite evidence the judge had conversations with Ms. Kriho after the mistrial, concerning what went on during deliberations, and despite evidence Judge Barnhill had a conversation with at least one of the other jurors after the mistrial, and despite evidence Judge Barnhill had discussions with the prosecutor after the mistrial.

The trial court also refused the defense request for appointment of a special prosecutor, despite the appearance of a conflict for the same prosecutor to prosecute Ms. Kriho, as had prosecuted the original case, and despite the fact he was a witness, arguing to the Court what he saw in the previous trial.

The trail court also refused a defense request for continuance to allow the defense to inquire into apparent inappropriate contact between a trial judge of Gilpin County and the prosecutor's office. Evidence was presented that the prosecution's novel theory for prosecuting a juror, implemented in this case, had been outlined in detail before Ms. Kriho was even charged, in two articles written by a Gilpin County judge - one of which contained inaccurate details of Ms. Kriho's case.

After a two day bench trial, the trial court requested briefs from the state and from the defendant, on the applicable law. These briefs were provided on October 9, 1996. On February 10, 1997, the Court issued its Order, finding Ms. Kriho guilty of deliberately and willfully withholding and concealing information with the intent of serving on a jury for the purpose of obstructing justice. Based on this factual finding, the Court found Ms. Kriho guilty of contempt of court, and subsequently, on March 7, 1997, sentenced Ms. Kriho to a fine of $1200.00, which fine is to be paid within one year of sentencing. Ms. Kriho has since posted a $1200 bond.

SUMMARY OF THE ARGUMENT

I. Ms. Kriho's First Amendment-protected rights to freedom of speech, thought, and association were violated by Colorado's prosecution. The contempt citation against her cites her arguments in the jury room, in favor of jury rights, as a basis for the contempt charge. 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. At Ms. Kriho's trial, a copy of a letter to the editor she wrote before the trial, was used against her, to show her beliefs and associations. Laura Kriho refused to rubber stamp a conviction she didn't support, and for that she has been called to account. For her thoughts, her beliefs, her associations, and her deliberations, she has been placed on trial and convicted of criminal contempt. The First and Sixth Amendments of the United States Constitution do not allow such treatment. All of her activity is protected political activity, where First Amendment protections are at their zenith.

III. A juror cannot be charged with criminal contempt of court, and convicted, for actions taking place within the jury room, actions which comprise jury deliberation. Laura Kriho was put on trial in large part for "improper deliberations" in the jury room. The contempt citation drips with contemptuous and outraged criticism of Ms. Kriho's jury room arguments. Jury deliberations must be free from judicial or prosecutorial intimidation or interference. Ms. Kriho's prosecution violates the secrecy of jury deliberations, sending a chilling message that "improper" jury room arguments will subject a juror to investigation and prosecution.

V. A court cannot use the voir dire process and its contempt power to ban from the jury any juror who is sufficiently independent to resist government oppression. The purpose of Laura Kriho's prosecution and conviction, is to send a message to jurors that they must confess any independent thoughts during voir dire, any tendencies to question the wisdom of the law, so that they can be disqualified from jury service, under threat of criminal prosecution if they don't.

VII. Ms. Kriho's due process rights, protected by the United States and Colorado Constitutions, were violated by the trial court's 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 or at least inquire, when it appeared the independence of the prosecutor's office may have been compromised by improper contact from a judge.

ARGUMENT

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 marijuana, and a quote from a newspaper interview, was used against her, to show her beliefs and associations. (v. 5, pp. 79-82).

The prosecutor put Laura Kriho's political beliefs on trial, and the State's prosecution and conviction made her answer for them. The prosecutor also brought out her political associations, as evidence against her. 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 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). Thus, the trial court - never pointing out when during voir dire Laura Kriho should have confessed her beliefs and political associations - reveals that associating with a group advocating that jurors have a right to vote their conscience, disqualifies a person from serving as a juror in Colorado. Apparently the trial court differs with John Adams, second president of the United States, who stated in 1771: The general rules of law and common regulations of society, under which ordinary transactions arrange themselves, are well enough known to ordinary jurors. . . The great principles of the [unwritten English] constitution are intimately known. . . Now, should the melancholy case arise that the judges should give their opinions against one of these fundamental principles, is a juror obliged to give his verdict generally, according to this direction . . . Every man, of any feeling or conscience, will answer, No. It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court. The English law obliges no man to decide a cause upon oath against his own judgment. 2 John Adams's Works, 253-255, quoted in Sparf and Hansen v. United States, 156 U.S. 51, 143-144, 39 L.Ed. 343, 375, 15 S.Ct., 273, 309 (1895), (J. Gray, dissenting). The brochure referred to, quotes John Adams and Thomas Jefferson, and asks why jurors are not informed that they can vote their consciences. (v. 7, Exh 3). Knowledge of the ideas expressed in this "subversive" literature is apparently viewed by the trial court as grounds to disqualify a juror for cause. Nowhere is authority cited for such a proposition.

Laura Kriho has been convicted of failure to confess her political beliefs during voir dire, a newly minted crime in Colorado, prosecuted under the rubric "contempt of court." Laura Kriho refused to rubber stamp a conviction 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), and for that she has been called to account. For her thoughts, her beliefs, her associations, and her deliberations, she has been placed on trial and convicted of criminal contempt.

The First Amendment of the United States Constitution does not allow such treatment. There can be no doubt that jurors perform a vital political function in our criminal justice system: A right to jury trial is granted to criminal defendants in order to prevent oppression by the government. . . 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. . . Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power - a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).

In Duncan, Justice White described the jury's origins as going back to Magna Carta. Hawles' The English-mans Right, traces it back much further. They both agree as to the jury's purpose, resisting oppression. Sir John Hawles (Solicitor-General of England) in 1680 explained where that purpose leads: For the end of Juries is to preserve Men from oppression, which may happen as well by imposing or ruining them for that as a Crime, which indeed is none, or at least not so great as pretended, as by charging them with the Commission of that which in truth was not committed. And how do you well and truly Try, and true Deliverance make, when indeed you do but deliver him up to others to be Condemned, for that which yourselves do not believe to be any Crime? Hawles, The English-mans Right, p. 14., Appendix.

All of a juror's activity during jury deliberations, where jurors discuss the law and whether it has been violated, determining guilt or innocence, is protected political activity, the exercise of political power, designed to resist oppression, where First Amendment protections are at their zenith. See Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968), for the proposition that First Amendment protection for public policy discussion is at its zenith.

In prosecuting Laura Kriho, the government has invaded and invalidated the jury, an institution whose very function is to resist government oppression. Neither the First Amendment or Sixth Amendment can tolerate such an act. Colorado can offer no justification for this criminal prosecution. The burden the state must overcome to justify such a criminal prosecution is "well-nigh insurmountable." See Meyer v. Grant, 486 U.S. 414, 425 (1988).

The jury cannot continue to serve its vital role at resisting government oppression, if jurors such as Laura Kriho can be punished.

II. The trial court cannot impose a legal duty on prospective jurors, with criminal sanctions for non-compliance, to disclose during voir dire whatever information the trial court would want to hear, even if the court forgets to ask the juror for that information. It must remain the responsibility of the judge and the attorneys to ask specific questions when they seek specific information during voir dire. Contempt cannot be presumed when the question is not asked. Lay jurors cannot be held accountable for failure to read the court's mind, nor for failure to volunteer information not specifically requested. Voir dire is not a casual dialogue, it is an interrogation. Jurors not in the 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)]. Holding Laura Kriho responsible for not volunteering information not specifically requested, under the circumstances, is patently absurd.

"[I]t would not do to find a juror guilty of contempt for failing to do so [disclose any material information] where no question was asked, which would fairly call the matter to the juror's attention." United States v. Lampkin, 66 F.Supp. 821, 824 (S.D. Fla. 1946). The trial court has failed to point out any question to which Laura Kriho answered falsely or where she should have answered differently. Not only did the trial court find she had a duty to disclose what was not asked of her - sometime - now it has been left to the appellate courts to determine when that duty arises.

The trial court in its Order, cites, as an example where a juror was punished for contempt for dishonesty during voir dire. Genevieve Clark was convicted of contempt for giving false answers on voir dire. Clark failed to disclose on voir dire, when reciting her past employment, that she had been employed by the defendant, she brought her knowledge of the defendant and the facts of the case into the jury room, and told other jurors before deliberation that her mind was made up. Clark, 289 U.S. at 8-9. Any comparison with the facts of the instant case reveals the tremendous differences between the cases. Clark also failed to deliberate on the evidence. Id.

The facts here are that Laura Kriho deliberated willingly and eagerly, and attempted to persuade her fellow jurors that one element of the charge of knowing possession of a controlled substance, had not been proved beyond a reasonable doubt. She even offered what 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, l. 4-8; V. 4, p. 169-170, testimony of James Davis).

The trial court's Order insists that Laura Kriho has not been convicted on the basis of her vote or deliberations. Yet it cannot be seriously disputed that Laura Kriho would not have been prosecuted had she voted guilty on the drug possession charge, because then there would have been no mistrial. It defies credulity to suggest she would have been prosecuted if she had given up, violated her conscience, and voted guilty.

Jury deliberations must be free from judicial or prosecutorial intimidation or interference. Ms. Kriho's prosecution violates the secrecy of jury deliberations, sending a chilling message that "improper" jury room arguments will subject a juror to investigation and prosecution. The Second Circuit Court of Appeals, in the recent case United States v. Thomas,Fed.3d (2d Cir. 1997), considered whether a juror could be removed during deliberations, for engaging in nullification in the jury room and refusing to follow a court's instructions. The Court determined that a juror may not be removed unless there is proof "beyond a doubt" that the juror intends to disregard the court's instructions. Id. If there is any possibility that the juror was attempting to apply the law, but was simply unpersuaded by the evidence, that juror cannot be removed from the jury. Id. The court established this high evidentiary barrier, to protect a defendant's right to a unanimous jury, and to protect the secrecy of jury deliberations. Id.

Colorado chose not to remove Laura Kriho, which was requested in an anonymous note from a juror, and which the Second Circuit would find insupportable because she was deliberating on the evidence, but to declare a mistrial and criminally prosecute her. The evidence clearly shows that Laura Kriho was the most diligent juror in the jury room in actively participating in deliberations.

As shameful as the trial of Laura Kriho was, with 9 out of 12 jurors from the Brannon trial testifying about their jury deliberations, the trial did make clear that Laura Kriho diligently and energetically participated in jury deliberations, voting guilty on one charge, and not guilty on two.

The evidence showed she conscientiously evaluated the evidence presented and attempted to persuade others of the reasonableness of her position. She also criticized the drug laws and spoke of the jury's right to question the law. Under those circumstances, a juror cannot be removed from the panel, let alone criminally punished, simply because they also criticize the law or argue a jury's right to question the law.

How else can one reconcile:

"The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge." U.S. v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972).

"Jury lawlessness [i.e., nullification] is the greatest corrective of law in its actual administration. . . [T]he law is often too mechanical at a point requiring nicety of adjustment." Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12, 18 (1910).

"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence." U.S. v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969).

Oliver Wendell Holmes, Jr.: "The jury has the power to bring in a verdict in the teeth of both law and fact." Horning v. District of Columbia, 254 U.S. 135, 138 (1920).

IV. A juror cannot be convicted of criminal contempt of court, for actions taken in the presence of the court, when those actions were not disruptive to the dignity and authority of the court at that time. The trial court found Laura Kriho not guilty of perjury as contempt, because the trial court could not find any of Ms. Kriho's actions disruptive in the court. Instead, it found her guilty of withholding her opinions - without pointing out where she should have injected them into the proceedings - and therefore found she obstructed the process of selecting a fair and impartial jury. That is a never-before-conceived criminal act. The trial court ignores centuries of case law precedent on common law contempt. The reason that perjury is not contempt, unless it obstructs justice, i.e., it is disruptive, is two-fold: first, perjury is commonly expected in trials, where anyone under oath may or may not be lying; second, perjury as contempt is reserved for those instances where the perjurer disrupts the judicial process with their perjury. See Murer v. Rogowski, 29 Colo.App. 235, 238, 480 P.2d 853, 855 (1971). A witness or juror who simply lies, or conceals, does not necessarily disrupt the process. It is up to the attorneys, judges, and triers of fact, to determine credibility. The question of whether Ms. Kriho's actions, assuming they are as described, "substantially obstructed or halted the judicial process" (see Murer, 480 P.2d at 855), has not been addressed by the trial court.

The defendant did not know what the Motion for Contempt Citation phrase "obstructing the administration of justice" (see V. 1, p. 4), referred to. (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). The defendant is still in the dark as to how her conduct disrupted the proceeding.

The principles of contempt are well established. Any act which disrupts - physically - the court process, may be found to be contempt of court, an affront to the dignity and authority of the court which disrupts the proceedings and threatens the orderly processes in the court: "There is no exact rule to define these contempts; but any disorderly conduct calculated to interrupt the proceedings; any disrespect or insolent behavior towards the judges presiding; any breach of order, decency, decorum . . . is punishable." Mr. Bishop, Criminal Law, 2 Vol. Sec. 252, quoted in Hughes vs. People, 5 Colo. 436 (1880).

An act occurring in the presence of the court, like a juror's responses during voir dire, is not contemptuous if it is not an affront to the dignity and authority of the court, and thus, disruptive. That, logically, is the reason that perjury in the presence of the court may not be contemptuous. There is no hint of evidence that Ms. Kriho's conduct during voir dire was in any way disruptive at that time. 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 cited by the trial court in its Order finding Ms. Kriho guilty. Without a disruption, there can be no contempt.

V. A court cannot use the voir dire process and its contempt power to ban from the jury any juror who is sufficiently independent to resist government oppression. Laura Kriho's prosecution and conviction sends a message to potential jurors that they must confess any independent thoughts during voir dire, any tendencies to question the wisdom of the law, so that they can be disqualified from jury service, under threat of criminal prosecution if they don't. A juror cannot be prosecuted for criminal contempt of court, based on her "improper deliberations," without violating the Sixth Amendment right of criminal defendants to trial by a fair and impartial jury. See U.S. v. Thomas, F.3d , (2d Cir. 1997).

Such a prosecution will destroy the integrity of the jury process. Jurors will be intimidated and defendants will be deprived of the benefit of free and open deliberations by their juries. Id. Juries dominated by and intimidated by judges and prosecutors, will be no better than rubber stamps for government convictions. The jury is the voice of the people in the criminal justice system, and that voice must be free to express its will. The government cannot invade the jury room and intervene in deliberations without destroying the right to trial by jury. Id.

The history of the jury shows that it was created to resist government oppression. A government which can cull from juries all those willing to question authority and resist oppression, is a government without restraint, in short, a tyranny. The right to trial by jury, described in the Sixth Amendment to the United States Constitution, implies a jury competent to resist government oppression. See Duncan v. Louisiana, 391 U.S. at 155 (1968); Singer v. United States, 380 U.S. 24, 31 (1965). It would be naive to expect the potential oppressor, i.e., the court, to voluntarily leave those who would resist oppression on the jury. Voir dire for the purpose of eliminating independent jurors may suit some courts, it does not suit the Sixth Amendment. What the Kriho prosecution and conviction accomplishes if it is upheld, a jury gutted of independent thinkers, is unconstitutional.

"[The second object of any tyrant would be ] to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that 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).

VI. A juror cannot be convicted of criminal contempt of court, for obstructing the administration of justice, when the trial court announced at trial that it did not know what that charge referred to, and when the trial court subsequently decided and announced what that meant, four months after the trial was completed. As described in III., above, during the trial of Laura Kriho, the defendant attempted to defend against the charge of obstructing the administration of justice, without knowing what the charge referred to. The trial court admitted then that it did not know either, but that it expected the prosecutor would make that clear in his closing. The prosecutor never defined the charge, and the trial court did not explain what that charge meant, until it put forth its Order, finding Laura Kriho guilty of contempt for obstructing the administration of justice, four months after her trial. The prosecutor, in a pretrial hearing, explained the charge against Ms. Kriho as a simple one: [T]his is not - this is not a complicated proceeding. This is a contempt 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, produced above: "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, 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."

Fundamental due process protections forbid such a post facto determination of the law. The defendant could not defend at trial against what the court found obstruction of justice to mean, four months later. The Fourth Amendment to the United States Constitution and Article, II, sec. 16, of the Colorado Constitution require that the defendant be apprised of the charges against her. Fehringer v. People, 59 Colo. 3, 11, 147 P. 361, 363 (1915); Hamling v. United States, 418 U.S. 87, 117-119, 94 S.Ct. 2887, 2907-09, 41 L.Ed. 2d 590 (1974). The sufficiency of a charging document is a jurisdictional question, and may be challenged initially on appeal. See People v. Garner, 187 Colo. 294, 530 P.2d 496 (1975); People v. Bowen, 658 P.2d 269 (Colo. 1983).

Neither the contempt citation nor the trial court provided any information to the defendant to define the term "obstructing the administration of justice." 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). It cites no previous case where such a finding has ever been made. The trial court found that Laura Kriho obstructed justice. (V.1, p. 171), but only after four months of deliberation (the trial was held October 1 and 2, 1996). How can a defendant be guilty of a criminal offense which the trial court defined four months after the trial? An offense for which there has never been a similar prosecution in Colorado? How does that comport with the due process requirements of adequate notice?

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 [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). 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). If the case were as represented above by the prosecutor, Ms. Kriho could not have been convicted.

Ms. Kriho was denied any semblance of a fair trial, denied a jury, denied the right to call witnesses who complained against her, even when they had relevant evidence nowhere else obtainable. The trial court refused to allow the Ms. Kriho to call the original trial judge, the Honorable Kenneth Barnhill, as a defense witness, 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, after the mistrial was declared, in the courtroom, conversations which 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.). Her state of mind was at issue, in this contempt proceeding, and the original trial court's testimony as to his observations, based on his off-the-record conversation, surely was material and relevant. The defendant's own statements about her state of mind would not be nearly so compelling.

Observations on her state of mind at the end of the Brannon trial were provided, by the public defender from the original trial, David Manter: Mr. Manter: Ms. Kriho was visibly upset. And giving the impression that probably things shouldn't have gone the way they did. Mr. Grant: Did she act pleased? Was she pleased at the outcome? Mr. Manter: No. (V. 6, p. 57).

How much more effective would that testimony have been, had it come from Judge Barnhill? Laura Kriho also testified about her conversation with Judge Barnhill, at the end of the trial. She, too, testified that she was upset and did not think the trial should have ended in a mistrial, and that she tried to explain what had happened in the jury room. (V. 5, pp. 47-49). How much more credible that would be, if Judge Barnhill had been allowed to testify and he had corroborated it. 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. (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. 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. (See generally, hearing transcript, 9/20/96, V. 2; hearing transcript, 9/27/96, V. 3, pp. 6-8).

Further, the defendant, acting through counsel, brought to the attention of the trial court, that a county judge in Gilpin County, working in the same courthouse with the prosecutor and the District Court, had published two articles, one in a Colorado publication, and one article in a national legal publication, advocating punishing jury nullifiers, that he may have provided his article to the District Attorney's investigator during the investigation of Laura Kriho and before she was cited for contempt, and that his article in the Judge's Journal (an ABA publication) contained misstatements of fact as to the allegations in the pending prosecution of Laura Kriho.

The defendant suggested these misstatements were libelous, and that perhaps the Court should recuse itself and the other judges of that judicial district. (Hearing, 9/27/96, V. 3, pp. 6-8, pp. 26-28). [The published references to the Kriho case, including the misstatements, can be found in Exhibit A of the Defendant's Rule 21 Petition, V. 1, p. 94, first full paragraph]. No motion for recusal was filed.

CONCLUSION

The trial of Laura Kriho provoked reaction across the country, reaction which continues to reverberate to this day. The right to trial by jury is a right so ancient and fundamental that it predates the Constitution and helped establish many other of our fundamental rights, including freedom of speech, freedom of association, and freedom of religion. It is one of those rights so basic that it could not be denied, even if it were not expressly stated in the Bill of Rights. Denial of the right to trial by jury was one of the major provocations leading to the American revolution.

Laura Kriho should never have been charged, she should never have been tried, and she should never have been convicted. A right so precious, a right so fundamental, a right so long persisting, cannot be destroyed by one misconceived case. And yet, great damage will result if Laura Kriho's conviction is not reversed. And much of that damage will be in the form of lost respect for the criminal justice system.

Americans are a brave and free people, not easily cowed or intimidated. When they see their rights and liberties imperiled, they respond, they rally together. A legal system which fails to show respect for the jury system, will lose the respect of the people and provoke their reaction. Laura Kriho's conviction must be reversed and a judgment of acquittal entered.

Respectfully submitted,

Paul Grant
Attorney for Defendant-Appellant

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The Persecution of Laura Kriho

OPENING BRIEF by Paul Grant, attorney for Laura Kriho, filed with the Colorado Court of Appeals, Sept. 15, 1997

PEOPLE OF THE STATE OF COLORADO, Plaintiff-Appellee v. LAURA KRIHO, Defendant-Appellant

OPENING BRIEF
by Paul Grant, attorney for Laura Kriho,
filed with the Colorado Court of Appeals,
Sept. 15, 1997