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:

(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:

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:

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

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.

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.

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:

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:

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:

(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) .

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.

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.

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.

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.

MILLER, LANE, KILLMER & GREISEN, LLP

By:________________________

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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