Witch Hunt

Boulder Weekly
Note: This story appears with pictures at: http://www.boulderweekly.com
by Greg Campbell
October 3, 1996

After two days of testimony in the case of ex-juror Laura Kriho, it seems that rather than defending charges of perjury and obstruction of justice, she's actually standing trial for the practice of witchcraft. Despite the modern surroundings of the Gilpin County Justice Center, the proceedings more closely resemble some twisted interpretation of Arthur Miller's The Crucible than a legitimate trial.

"This case is bizarre. Jurors haven't been prosecuted for their deliberations in the jury room for hundreds of years. These guys want to reverse that. These guys want to go back to the 17th century," says Kriho's attorney, Paul Grant, referring to the attorneys and judges of the First Judicial District. "They want to put her on trial for her political associations; they want to put her on trial for her beliefs, for her philosophy. None of that is any of the court's business and it's certainly not appropriate for the court to punish someone for what they believe in."

Kriho's beliefs got her into trouble in May when she was selected to be a juror in the case of the People of the State of Colorado v. Michelle Brannon. To listen to the other jurors describe the case, it was fairly open and shut. In fact, the jury began deliberations on the drug charges in the case only one day after being selected and it only took about two hours before all but one of them was prepared to convict Brannon on the possession charge. The one holdout was Kriho, who decided she wasn't going to vote to convict because she didn't believe in drug laws.

"I've been on juries before and this is the first time something like this has happened to me," says Betty Hammock, one of Kriho's fellow jurors. " She made me feel that we shouldn't prosecute anyone who takes drugs. With this girl here (Brannon), (Kriho) didn't want to see her get a bad punishment. ... She said you could change the laws in the (jury) room."

What Kriho was doing, whether she knew it or not, was nullifying the jury. It's a simple but hotly debated technique of deliberation where a juror votes on a verdict based on personal beliefs and
emotions rather than on the letter of the law, a method usually in complete contradiction to the instructions from the court. Nullification is a belief that the jury has the final say over whether
or not a law is valid, just or applicable. If a juror doesn't believe in a law, or believes that a certain law is too intrusive, too frivolous or just about anything else, then that juror has not only the ability to vote according to her conscience but has a moral duty to do so. Eventually, the argument goes, laws that continually result in hung juries due to nullification will either cease to be prosecuted or will be changed.

Just look at the Salem, Mass., witch trials, Kriho argued during deliberations in the Brannon case. Once the true nature of witch trials became known, brave juries refused to follow orders to convict the defendants of witchcraft and eventually the trials ended.

But Kriho may as well have been speaking to an empty room. Not only did she fail to convince any of those on the jury who were itching to convict the defendant and get their jury responsibilities
over with, the others sent a note to Judge Kenneth Barnhill in frustration over the deadlock, asking if Kriho could be replaced.

No such luck, Barnhill replied -- alternate jurors had already been dismissed. Kriho's stubbornness resulted in a hung jury, and Barnhill was forced to declare a mistrial. Juror Hammock even apologized to prosecuting attorney Jim Stanley for the outcome of the case. "Is there anything that can be done about that?" she asked him, referring to Kriho's refusal to cooperate with the others on the guilty verdict.

Apparently, the court is determined to set a standard that something certainly can be done. Now, nearly six months after the mistrial, Stanley, most of the members of the jury and Kriho are all
back in the same courtroom in the cinder-block Justice Center halfway between Rollinsville and Black Hawk but on far different terms: This time Kriho's in the defendant's seat being prosecuted for contempt of court for nullifying the Brannon jury.

"I think they want to paint her more or less as a person who is guilty of all kinds of bad attitudes and that's underlying her conduct in the jury room," says Grant.

In other words, it's a witch hunt.

Invitation to anarchy

Depending on who you talk to, jury nullification is either the last great check and balance of the judicial system, or an invitation to "anarchy," as Stanley, the prosecuting attorney, puts it. Few will
deny that jurors have the power to decide any way they like regardless of facts or reasonable doubt, but there has never been a definitive ruling on whether or not jurors have the right to do so; moral, legal or otherwise. As it is, jury nullification has remained a loophole in the judicial system by which a jury can check a power-hungry judge by voting on principle rather than the fine points of the law.

As Grant puts it: "No court can show any authority to order a person to violate their conscience. ... That's the purpose of a jury; it's an independent check on the power of a judge and of the
prosecutor. That's been its historic role. You've got to have independence of the jury in order to protect defendants against overzealous prosecution." Northern juries, for instance, regularly
refused to convict slaves of running away from their masters during the Civil War days.

But in recent decades, the knowledge of a jury's power to nullify has fallen by the wayside - until recently. A Montana group called the Fully Informed Jury Association has taken it upon itself to remind people that they can and should vote according to their conscience. According to an article in Judge's Journal by Gilpin County Judge Frederic Rodgers, the movement has attracted "a potent, if unusual, mix of tax protestors, advocates of marijuana legalization, abortion protestors, libertarians, militia members and enemies of big government."

And members of all these groups are watching the proceedings in Courtroom B very closely. Regardless of the outcome, the decision will set a precedent for future jury nullification cases - the first one of its kind -- and there is little doubt about which way the court is leaning. Last Friday, during a motions hearing in which Judge Henry Nieto denied a request by the defense to dismiss the case, the course for the trial seemed to have been set: In turning down the motion, Nieto declared that the "defendant has the power but not the right to disregard the law. That is not the case here in Colorado."

And since the judge himself, not a jury, will be deciding the outcome of the trial, the actual trial would seem to be nothing more than a formality in the wake of this comment.

Big implications

Prosecuting Kriho for jury nullification would be foolhardy since there isn't a precedent for it, so Stanley's strategy is to show that Kriho intentionally poisoned the jury with her protest of drug laws.
Specifically, Kriho is charged with perjury for failing to inform the court during voir dire testimony (in which prospective jurors are interviewed and screened) that she held prejudices against the drug
laws that would have made her incapable of delivering a fair verdict. She's further charged with disregarding the judge's instructions not to discuss Brannon's potential punishment if she had been found guilty. By pursuing the case in this manner, the court will be able to make a ruling on jury nullification based on other facts and alleged violations, thereby setting the course for other judges faced with similar situations.

If the prosecution is successful, says Grant, "It tells the jurors if you get selected on a jury and you're not convinced of the guilt and everybody else is, you'd better watch out. You hang that jury, they're going to turn around and investigate you and see if they can prove that you had some hidden agenda, see if you believed in something that they believe you should have told them about but didn't."

Even a cursory glance at the odds reveals that the deck is woefully stacked against Kriho. The first red flag is that the attorney who expected to win what should have been a slam-dunk possession
conviction is now prosecuting the person solely responsible for that case being declared a mistrial. But an attempt by Grant to have the court assign a special prosecutor was denied: Apparently Judge Nieto saw no potential conflict of interest in the situation.

Furthermore, Nieto denied Kriho a jury trial, presumably to avoid the same sort of nullification that Kriho advocated for the Brannon case. As it turns out, the judge's suspicion was prudent: a
Libertarian Party member in the audience during the first day of trial Tuesday muttered darkly about how things would have been different with a jury hearing the case. "They only have about 2,700 registered voters (from which to choose a jury in Gilpin County)," he said. "We could've flooded them with (nullification advocacy) fliers for about 500 bucks."

Worse, Grant is loudly alleging that there was collusion between the district attorney's office and the Gilpin County judges to bring charges against his client. Testimony by former juror Dan Cooper
seems to support this theory. After Judge Barnhill declared a mistrial in the Brannon case, Kriho apparently went to her car to retrieve a pamphlet advocating jury nullification to give to another juror. That juror promptly handed the pamphlet over to the judge who was still in the courtroom. And Cooper testified that he overheard the judge tell Stanley to "look into this."

According to Grant, this is an indication that the judge wanted Kriho prosecuted for nullifying the jury. "It was pretty apparent that the district attorney and the judge both thought that they had a conviction against the defendant in that case, and they were ticked off that it didn't turn out that way," he says. "No judge should put pressure on a prosecutor. No judge should be involved. They should not even indicate an interest in it. It's improper."

But apparently Stanley did indeed look into it -- allegedly with the help of another Gilpin County judge who has made advising other judges how to handle the threat of jury nullification something of a hobby. Judge Frederic Rodgers wrote an article about what one should do when
faced with a jury pool tainted with notions of nullification. After the Brannon mistrial, he re-wrote it to include details about Kriho (which, long before her trial began, described her as an
"obstructionist juror" rather than one who wasn't convinced beyond a reasonable doubt of the defendant's guilt) for Judge's Journal, a national judge's magazine.

Grant contends that though Rodgers is unaffiliated with Kriho's case, he provided the prosecutor's office with an earlier copy of his article.

"When a judge communicates with the district attorney who is investigating a case and shows him what the judge's opinion of the law is and what ought to be done, the judge is putting pressure on the district attorney's office to bring charges," claims Grant. "The judge is implying that he wants to see this person prosecuted. That's what the article is all about: how to snuff out the jury nullification movement. So if he's communicating with the prosecution, that is an improper involvement of the judge and the prosecutor. Those are supposed to be two separate branches of government. Prosecutors are required by law to make their own decisions about whether or not to bring charges."

Rodgers denies he pressured Stanley to bring charges or that they had any contact at all regarding Kriho's case, but he does say it's possible that the article "might have been lying around the lunchroom" and someone from the district attorney's office may have gotten a hold of it.

Naturally, Stanley scoffs at the notion that Kriho's walking into a situation that is anything less than fair or that her prosecution is some form of revenge against her for causing the mistrial in May.
"Absolutely not the case," he says. "It's not uncommon for a jury to return a verdict that we do not necessarily agree with. That's not the issue. Once the jury makes a decision, it's final and we accept it and that's what our system is based on.

"The basis (for the contempt citation) is that she was deceptive and she disregarded the instructions of the judge. Furthermore ... this was brought at the request of the judge. It is the judge who the contempt is perpetrated against, not the prosecutor."

Flimsy charges

In spite of what seems to many to be an overwhelming advantage enjoyed by the prosecution, it was apparent to several of the 70 or so observers that Stanley's charges against Kriho are actually quite flimsy. As testimony wore on Tuesday, Grant's argument that the prosecution was singling out Kriho for punishment because of her strong anti-drug-law stance began to gain some weight, at least among courtroom observers. According to much of the evidence, many, if not all, of the jurors could have been brought up on the same charges as Kriho.

For instance, one of the main points of the prosecution is that Kriho committed perjury during voir dire testimony in order to sneak onto the jury with the intent of hanging it.

Two pertinent questions asked of the potential jurors were: Is there anything that would keep you from returning a verdict that is based solely on the law? And have you ever had any experiences, good or bad, with the criminal justice system?

Kriho didn't mention her aversion to drug laws, the fact that she pled guilty to possession of LSD in 1984 or the fact that she supports the legalization of hemp through her association with the Boulder Hemp Initiative Project.

But Grant says she was never asked these questions. Rather than repeat all of the 300-some questions to all potential jurors, it's common for attorneys to simply ask, "Did you hear and understand all the questions I asked the other candidates?" and "Would you answer
differently to any of them?"

"It's kind of a nonsense question, isn't it?" Grant asked ex-juror Hammock, after pointing out that some of the questions - about occupation or marital status, for example - required they be answered differently. Yet the vast majority of those responding said "no," they wouldn't answer any of the questions differently. Therefore, everyone who answered this way could technically be charged with perjury.

"They wanted her to volunteer telling them about her basic beliefs and philosophies so they could have understood her attitude," says Grant. "Most people typically don't volunteer that kind of stuff (during voir dire)."

He also argued that it is highly unlikely that the replacement jurors, who sat in the back of the courtroom for upwards of two hours in some cases, could possibly remember all 350 questions that were asked.

The second thrust of the prosecution's argument is that, contrary to the judge's instructions, Kriho researched the potential sentence for the drug charge (on the Internet) and considered it while deciding her vote. And, according to testimony by ex-juror Cooper, she encouraged the rest of the jury to do the same by repeating that she was going to hang the jury "because of the sentencing harshness."

To the prosecution, this is a clear and intentional violation of the judge's decree that no thought be given to the potential sentence of the defendant when coming to a decision. But Grant points out that the jurors were given conflicting instructions. In another set of rules, the jury is told that when weighing a witness' credibility, they must take into consideration "the manner in which each witness might be affected by the verdict." Since Brannon, the defendant in the case they were deciding, took the stand as a witness in her own defense, "the consequences must be considered," Grant argued. Additionally, juror Hammock admitted on the stand that she too
discussed possible sentencing during deliberation in terms of rehabilitation and probation rather than jail time.

Therefore, the charge of disregarding the judge's instructions, if they can be applied to Kriho, can also be applied to Hammock. But it's Kriho who's on trial.

She turned me into a newt!

In spite of all this, the conventional wisdom among the hippies, Libertarians, potheads and Hare Krishnas gathered to support Kriho is that she's going down the tubes. If any of these gallery observers were on a jury asked to rule in the case, it would probably take all of five minutes to deem her not guilty.

But the courts already took care of that possibility: as noted, there is no jury.

"The jury is the voice of the community in the enforcement of the laws," says Grant. "A cross section of the community in a jury of your peers doesn't mean that these people have sworn to be in full
agreement with every law that's on the books. Our society has a cross section of people in it. ... Some people enthusiastically support drug laws and some people think that they're the vilest things that ever occurred and a lot of people are in between. That's a cross section of the community. "It's a case with very serious consequences if Laura gets convicted."

A decision on the case is expected some time before the end of October. Kriho faces a maximum sentence of six months in jail if convicted.

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