DISTRICT COURT, COUNTY OF GILPIN, STATE OF COLORADO
Case No. 96 CR 91 Division 1

Filed in Combined Court
Feb. 10., 1997


ORDER

THE PEOPLE OF THE STATE OF COLORADO

          Plaintiff,

v.
Laura J. Kriho,

          Defendant

     THIS MATTER came before this Court on October 1 and 2, 1996,
for trial to the Court on issues raised in the District
Attorney\\\'s Motion of Contempt Citation.  The People were
represented by Deputy District Attorney James Stanley, and Ms.
Kriho was represented by Paul Grant.  This Court, having heard
the evidence and arguments of counsel and having reviewed the
legal briefs of counsel filed on October 9, 1996, and being
advised in the premises, enters the following findings and order.
     This action arose out of jury selection during the trial of
_People v. Michelle Brannon_, Gilpin County District Court case
number 95 CR 74, which occurred on May 13, 1996.  A juror serving
on the _Brannon_ case, Laura J. Kriho, was cited with contempt of
court for her conduct during the jury selection process.  After
the contempt citation was issued, the trial judge in the
_Brannon_ case, Judge Kenneth Barnhill, disqualified himself from
further participation and Ms. Kriho\\\'s contempt case was assigned
to this judge for trial.
     The District Attorney asserts that Ms. Kriho is in contempt
of court for disobeying an order of the trial court, obstruction
the administration of justice, and committing perjury.  The
District Attorney alleges that Laura Kriho, while serving as a
juror:
1)   failed to reveal that she had previously been arrested,
     charged with, and pled guilty to a felony charge of
     Possession of a Scheduled I Controlled Substance and was
     thereafter granted a deferred judgment and sentence;

2)   failed to reveal that she was opposed to the enforcement of
     drug laws through the courts and that she was actively
     involved in an organization which had as its purpose the
     modification of certain Colorado drug laws; and

3)   failed to reveal that she did not intend to follow the
     judge\\\'s instructions on the law.

The District Attorney argues that Ms. Kriho did these things with
the intent to obstruct justice.

     Ms. Kriho, through her counsel, has mischaracterized the
issues in this case.  This case is not now and has never been
about how Ms. Kriho voted during jury deliberations.  This case
is about whether Ms. Kriho misled the trial court and the trial
attorneys about important matters during the jury selection
process with the intent to remain on the jury and obstruct the
legal process.  The Court admitted evidence of Ms. Kriho\\\'s
conduct during deliberations only as it was relevant to the issue
of Ms. Kriho\\\'s conduct during the jury selection process.  This
mischaracterization of the case has made it more difficult to
focus upon the real issue: Ms. Kriho\\\'s conduct during jury
_selection_, not jury _deliberation_.

JURY NULLIFICATION
     No juror can be punished for their vote in deciding a case. 
Even if the juror\\\'s vote amounts to jury nullification and flies
in the face of the evidence and the law, they cannot be punished
in any way.  However, if a juror deliberately misleads the court
and the attorneys during jury selection with the intent to
obstruct the legal process, it is a totally different situation. 
Here, the District Attorney seeks a finding of contempt for Ms.
Kriho\\\'s alleged failure to reveal important information during
voir dire.  The District Attorney is not seeking to punish Ms.
Kriho for her refusal to vote in favor of a conviction during
jury deliberations.
     This case presents a delicate and sensitive issue because it
can easily be misinterpreted.  The laws of this state do not
permit lawyers and judges to criticize jurors for their decisions
in a case, much less punish them.  Ms. Kriho has attempted to
focus the case on a juror\\\'s \\\"right\\\" to vote without regard for
the instructions of law give by trial court and has forcefully
argued in favor of a \\\"right\\\" to jury nullification.  The term
\\\"jury nullification\\\" refers to the power of a juror to decide a
case in a way that is contrary to the evidence and the law.  The
United States Supreme Court, in _Sparf v. United States_, 156
U.S. 51 (1895), held that it is the duty of the judge to instruct
the jury on the law.  In that case the court stated:
     Public and private safety alike would be in peril if the
     principle be established that juries in criminal cases may,
     of right, disregard the law as expounded to them by the
     court, and become a law unto themselves.  Under such a
     system, the principle function of the judge would be to
     preside and keep order while jurymen, untrained in the law,
     would determine questions affecting life, liberty or
     property according to such legal principles as, in their
     judgment, were applicable to the particular case being
     tried...  We must hold firmly to the doctrine that in the
     courts of the United States it is the duty of jurors in
     criminal cases to take the law from the court and apply that
     law to the facts as they find them to be from the evidence.
_Sparf_, 156 U.S. 51 at 101-102.
     There is no question that jurors possess the power referred
to as jury nullification, but juries should not be encouraged to
use such power indiscriminately.  In _United States v. Moylan_,
417 F.2d 1002, 1006 (4th Cir. 1969), _cert. denied_, 397 U.S. 910
(1970), the United States Court of Appeals stated:

     No less an authority than Dean Pound has expressed the
     opinion that \\\'Jury lawlessness is the great corrective of
     law in its actual administration.\\\'  However, this is not to
     say that the jury should be encouraged in their
     \\\'lawlessness\\\', and by clearly stating to the jury that they
     may disregard the law, telling them that they may decide
     according to their prejudices or conscience (for there is no
     check to insure that the judgment is based upon conscience
     rather than prejudice), we would indeed be negating the rule
     of law in favor of the rule of lawlessness.  This should not
     be allowed.

     These opinions hold that while jurors have a duty to follow
the court\\\'s statement of the law, they still have the ability,
although not the right, to disregard the law in reaching their
decision.
     Defendant takes a strong position in favor jury
nullification arguing that such a right is necessary for juries
to oppose a tyrannical government.  Defendant refers to historic
cases in which jury nullification has had an important impact on
civil liberties.  While this is unquestionably true, it is also
unquestionably true that jury nullification can lead to the
tyrannical application of the law.  If the jury can, as a matter
of right, acquit in the face of contrary evidence and law, could
they not also convict flying in the face of evidence and law?  A
system which allows jurors, as a matter of right, to pick and
choose among the rules of law which they will apply, has
extremely dangerous implications, particularly to those who may
espouse unpopular causes or who, for other reasons, are not
looked upon favorably by the majority in the community.  It is
one thing to laude the efforts of a jury fairly picked and
honestly chosen to decide a case in conformity with their
conscience.  It is quite another thing for a juror to
deliberately mislead the court in an effort to obstruct the
administration of justice.

FINDINGS OF FACT
     From the evidence in the case this Court makes the following
factual findings.  Ms. Kriho was summoned to jury duty in the
case of _People v. Brannon_, Gilpin County District Court case
number 95 CR 74.  Ms. Kriho reported for jury duty on May 13,
1996.  She and all jurors were given an oath by the trial court
to truthfully answer questions concerning their ability to serve
as fair and impartial jurors.  The charges in the case were read
to the jurors so all jurors were aware that it was a criminal
trial involving alleged violations of drug laws.  The trial court
advised all of the jury panel, including those in the gallery,
that it was important for everyone to listen to the questions of
the trial court and the lawyers because it was possible that
jurors in the gallery would be called forward to replace jurors
in the box.  From the testimony of the jurors who served with Ms.
Kriho on the _Brannon_ case and from the testimony of Ms. Kriho
herself, it is clear that all potential jurors, including those
in the box and those in the gallery, understood the need to
listen closely to the questioning of all jurors.  Every
replacement juror called was asked if they had heard the prior
questions and they were given an opportunity to comment on any of
the topics discussed.  Ms. Kriho testified that she was able to
hear all of the court proceedings from her place in the
courtroom.  Because it was stated clearly by the judge during his
voir dire, and the other jurors who testified clearly understood
the need to volunteer information, and because the question was
asked repeatedly to all replacement jurors, this Court finds that
Ms. Kriho was aware of the prior questioning and she was given an
opportunity to comment on the topics discussed.
     Several consistent topics were discussed with many jurors,
including discussions of the jurors\\\' obligation to follow the law
as given by the trial court, discussions of drug usage and drug
laws and how such experiences might affect the jurors\\\' ability to
serve fairly and impartially.  To a lesser extent, the fact that
punishment was not within the province of the jury was also
discussed.  Discussion of a juror\\\'s duty to follow the law as
given by the trial court, and any issues relating to enforcement
of the drug laws, was repeated so many times during voir dire,
that this Court must conclude that all jurors, including Ms.
Kriho, were aware that these were important issues and that
prospective jurors should have revealed any opinions or strong
feelings on these topics.
     The following quotations from the transcript of the jury
voir dire illustrate how clearly Judge Barnhill explained the
issue of jurors following the trial court\\\'s instructions on the
law.

(Questions by Judge Barnhill.)
     Would all of you agree to follow my instructions on the law
     even if you don\\\'t agree with them or you don\\\'t think that
     they are what the law is or should be?  People sometimes
     have a little different attitude about what the law should
     be than what it really is.  What I need from you is a
     commitment that you will follow my instructions even if you
     don\\\'t agree with them.  And you all agree to do that? 
     Follow the instructions on the law?  My job is to tell you
     what the law is, and will you all agree to follow my
     instructions?  Will you all agree?  Anyone saying no? (pages
     17 and 18)

(Question by Judge Barnhill.)
     What I need to have from you is a commitment that you will
     follow my instructions on the law in this case and not try
     to remember any of the instructions that you received in the
     earlier case.  Will you all agree to that? (page 24)

     The testimony of several jurors indicated that at various
times during jury deliberations they brought to Ms. Kriho\\\'s
attention the trial court\\\'s instruction that they were to follow
the law even if they disagreed with it.  From that testimony,
this Court concludes that the voir dire made a distinct
impression on the jurors of their duty to follow the law.  Ms.
Kriho knew this was an important consideration for the judge and
the lawyers and yet she chose not to reveal her strong feelings
about this.

     The following quotation from the jury voir dire transcript
reveal the obvious emphasis during voir dire concerning any
strong feelings about drug laws.

     (Question by Mr. Stanley)

     Let me ask about -- does anyone have any particular strong
     feelings, either pro or con, about the laws we have
     including the law that will apply here that you will get
     from His Honor, Judge Barnhill, about the control of
     dangerous drugs or controlled substances?  In other words,
     it is against the law to possess methamphetamine and that
     is why we\\\'re here.  Does anybody have any particular views
     about these laws including specifically this one? (Pages 41
     and 42).

     Several different times during voir dire the judge, the
District Attorney and Ms. Brannon\\\'s attorney, discussed issues
relating to drugs with several different jurors.  This Court
finds that Ms. Kriho was aware that any experiences, or strong
opinions she had concerning the drug laws were important issues
in selecting the jury.  The evidence shows that on April 29,
1985, in Boulder County District Court, Ms. Kriho had pled guilty
to the felony crime of Possession of a Schedule I Controlled
Substance and was granted a deferred judgment and sentence.  The
evidence further shows that Ms. Kriho holds strong opinions about
the propriety of certain drug laws.  She is a founder and
activist in an organization called the Boulder Hemp Initiative
Project, which has the goal of legalizing marijuana in Colorado. 
She failed to reveal any of this highly relevant information
during the jury selection process.

     On the issue of punishment, the trial court gave the
following instruction to the jury in the final written jury
instructions.

     If you decide that the prosecution has proved beyond a
     reasonable doubt that the defendant has committed the crimes
     as charged, it will be my job to decide what the punishment
     will be.  You should not try to guess what the punishment
     might be.  It would not enter into you consideration at any
     time.

Based on this instruction and the comments by the trial court and
counsel during voir dire, this Court concludes that all of the
jurors, including Ms. Kriho, were aware that punishment was not
to be considered by the jury in finding the defendant guilty or
not guilty.  The testimony of other jurors revealed that this
prohibition was called to the attention of Ms. Kriho during jury
deliberations.
     The evidence further revealed that during jury deliberations
Ms. Kriho attempted to discover what the punishment for the crime
of Possession of Methamphetamines would be.  She investigated
this in the evening between the first and second days of trial
and told her fellow jurors what she though the punishment would
be based upon information she obtained from the internet.  The
information she conveyed to the jury was inaccurate.
     Testimony of Ms. Kriho\\\'s fellow jurors revealed that she
informed these jurors that she did not believe drug laws should
be enforced through the courts and she discussed her belief that
jurors did not have to follow the law if they did not agree with
it.
     During the course of deliberations it came to the judge\\\'s
attention that a juror had researched the question of punishment
on the internet and had brought that information to the attention
of other jurors.  The defendant in the underlying trial, Michelle
Brannon, moved for a mistrial and that request was granted by the
trial court.  The jury was then discharged.  Outside the
courthouse Ms. Kriho produced a jury nullification brochure from
her purse and gave it to one of her fellow jurors.  Ms. Kriho
admitted in her testimony that she brought this brochure to the
courthouse with her.  This brochure promotes the concept that
jurors should be permitted to judge the merits of the law as well
as the facts in a case.  It further promotes the concept of
jurors disregarding the law if they do not agree with it.  These
are the same concepts Ms. Kriho was espousing in the jury room. 
On the back of this brochure the following is printed:  \\\"For more
information contact the: Boulder Hemp Initiative Project.\\\"  The
brochure then provides the address and telephone number for that
organization.
     Ms. Kriho testified that she was not a member of or an
activist for the organization that published the brochure. 
However, Ms. Kriho also testified that she was very active in the
Boulder Hemp Initiative Project which according to the brochure
will provide more information concerning the jury nullification
organization.
     The Court finds that Ms. Kriho does have some relationship
with the organization that published the brochure and she knew
this was important to the selection of a fair and impartial jury.

CONCLUSIONS OF LAW

     Thankfully, contempt citations against jurors are quite
rare.  However, they are not unprecedented.  See _Clark v. United
States_, 289 U.S. 1 (1933) (United States Supreme Court affirmed
judgment finding juror in contempt of court for giving knowingly
misleading and knowingly false answers in response to questions
concerning her qualifications as a juror during jury selection
process); _In re Mossie_, 768 F.2d 985 (8th Cir. 1985) (trial
court finding that juror was under duty to disclose prior
offenses on voir dire examination and intentional failure to
respond to court\\\'s voir dire questions constituted contempt
reversed by appellate court, which held that because juror only
pled guilty to marihuana possession and because marijuana
possession was not a crime in Missouri, juror did not falsely
answer voir dire question regarding whether or not she had been
convicted of a crime); _In the Matter of the Application to a
Judge Herbert Borgdon in Criminal Contempt_, 625 F. Supp. 422
(W.D. Ark. 1985) (evidence of juror\\\'s willful and deliberate
failure to disclose previous knowledge of case during voir dire
was sufficient to permit the privilege concerning jury
deliberations to fall and was sufficient to support conviction); 
_Bays v. Petan Company of Nevada, Inc._, 94 F.R.D. 587 (D. Nev.
1982) (failure to respond truthfully during voir dire could not
form basis for holding juror in contempt in the absence of
evidence establishing beyond a reasonable doubt that the
defendant willfully and knowingly gave false evidence during voir
dire, and the juror\\\'s failure to follow instructions during
deliberations could not constitute contempt in absence of a
showing of knowing and willful concealment or false swearing);
_United States v. Lampkin_, 66 F. Supp. 821 (S.D. Fla. 1946)
(juror found to be in contempt when juror failed to reveal prior
criminal record during jury selection process).

     The _Clark_ case, cited above, decided by the United States
Supreme Court in 1933, with an opinion written by Justice
Cardozo, affirmed a finding of contempt against a juror for
knowingly giving misleading and false responses to questions
effecting her qualifications as a juror with the intent to
obstruct justice.  Justice Cardozo stated that \\\"(c)oncealment or
misstatement by a juror upon a voir dire examination is
punishable as contempt if its tendency and design are to obstruct
the processes of justice.\\\" _Clark_ 289 U.S. at 10.  The opinion
clearly points out that a juror found to be in contempt is not
punished for the act of concealment or the act of false swearing,
but is punished for using the false swearing or concealment of
obstruct the course of justice.  The case goes on to hold that
testimony concerning the conduct of a juror during deliberations
does not violate the rule that jurors may not be questioned
concerning their processes of deliberations, if evidence other
than the jury deliberation provides a prima facie case sufficient
to satisfy the judge that the juror has willfully concealed or
withheld information with the intent to obstruct justice.  In
Kriho\\\'s case the Court finds such a prima facie case exists based
on the following evidence: (1) the question the jurors sent to
the judge indicated that a particular juror did not think drug
cases belonged in the courts and had introduced information
concerning punishment; (2) Ms. Kriho produced a jury
nullification brochure immediately following the declaration of
mistrial and gave it to a fellow juror; 3) this fellow juror
presented the brochure to Judge Barnhill and stated that this
brochure explained the reason for the mistrial.  Under these
circumstances, the evidence concerning Ms. Kriho\\\'s conduct during
jury deliberations was merely confirmation of the prima facie
case established by other evidence.
     After reviewing all the evidence and the law, and applying
the standard of proof beyond a reasonable doubt, the Court
reaches the following conclusions.  During the jury selection
process Ms. Kriho was aware that the trial court and the lawyers
felt it was a juror\\\'s duty to follow the law as given by the
trial court, and they wanted to know if any juror disagreed with
this proposition.  Ms. Kriho was also aware that the trial court
and the parties wanted to know if the jurors could follow the
rule that punishment was not to enter into their deliberations. 
Ms. Kriho was also aware that the trial court and the parties
wanted to know if the jurors could follow the rule that
punishment was not to enter into their deliberations.  Ms. Kriho
was also aware that the trial court and the parties wanted to
know if any juror had strong feelings concerning the enforcement
of drug laws or any experience that would affect their attitude
about drug laws.  While being aware of the importance of these
issues and having been given the opportunity to comment on these
issues, Ms. Kriho deliberately withheld her opinions on these
topics from the trial court and the parties during the jury
selection process.  Based on all the evidence, this Court
concludes that it was Ms. Kriho\\\'s intent to withhold this
information from the trial court and the parties so that she
could be selected to serve on the jury and obstruct the judicial
process.  By deliberately withholding this information, she
obstructed the process of selecting a fair and impartial jury. 
The selection of jurors who have open minds and who have not
preconceived the verdict is essential for a fair trial.  Ms.
Kriho\\\'s lack of candor about her experiences and attitudes led to
the selection of a jury doomed to mistrial from the start.  This
Court finds this conduct constitutes obstruction of justice and
this conduct was offensive to the authority and dignity of the
trial court.
     On the issue of disobedience to an order of the trial court,
this Court finds in favor of Ms. Kriho and against the People. 
Instructions on the law given to a jury at the conclusion of a
trial are not orders of the court which, if violated by a juror,
can result in a finding of contempt.  No evidence of the trial
court\\\'s orders to the jury was introduced by the People.  Orders
given to jury concerning their conduct during the course of a
trial are court orders and might support a finding of contempt if
there was evidence that such an order was given and it was
deliberately violated.  Such directions are ordinarily given to a
jury during trial.  They include an admonition that jurors are
not to attempt to gather any information concerning the case
outside of the courtroom.  This direction relating to juror
conduct is usually given after the jury is sworn and before
opening statements are made.  The transcript of that portion of
the trial was not introduced into evidence in this contempt
hearing and therefore this Court must conclude that the People
have not proven beyond a reasonable doubt that Ms. Kriho violated
an order of the trial court.

     On the issue of Ms. Kriho committing perjury, this Court
finds in favor of Ms. Kriho and against the People.  The case of
_Murer v. Rogowski_, 480 P.2d 853 (Colo. App. 1971) sets forth
specific conditions under which perjury can constitute contempt
of court.  The evidence in this case does not meet those
conditions.  The absence of those conditions did not deprive the
District Attorney of all remedies.  The District Attorney could
have filed a criminal charge against Ms. Kriho for perjury if he
had chosen to do so.

     THEREFORE IT IS ORDERED that, based upon this Court\\\'s
finding that Ms. Kriho deliberately and willfully withheld and
concealed information which was relevant and important to
selecting a fair and impartial jury, and that Ms. Kriho did so
with the intent of serving on the jury for the purpose of
obstructing justice, the Court finds Ms. Kriho in Contempt of
Court.

     IT IS FURTHER ORDERED that the Deputy District Attorney and
counsel for Defendant shall immediately contact the Division
Clerk to clear a date for a hearing at which time the Court shall
consider the issue of imposition of sanctions.

     Done in Chambers this 10th day of February, 1997

                         BY THE COURT:

                         Henry E. Nieto
                         District Judge