This case began on May 13, 1996, when Laura Kriho of Rollinsville, Colorado, a Colorado University researcher, was selected to sit on a jury to hear the criminal trial of 19-year-old Michelle Brannon in the district court of tiny Gilpin County. Brannon was accused of felony possession of methamphetamine, a schedule II controlled substance, criminal impersonation, and unlawful possession of drug paraphernalia. Kriho was the twelfth juror seated. Jurors seated earlier were subjected to extensive voir dire questioning. However, it was late in the day. When asked by Judge Kenneth Barnhill the sole question, "Is there anything, whether I asked it or not, that you can think of that would interfere with your sitting as a fair and impartial juror," she replied, "No." She truthfully could not think of a reason why she could not serve the interests of justice in the case.
What went unasked and unanswered was that twelve years earlier Ms. Kriho had received a deferred sentence on a minor possession drug charge (see Appendix A). Upon the successful completion of two-year probation and 40 hours of community service the charges against her were supposedly dismissed. But, as in all such cases, the charges were still in official records (see COcourts.com) and Appendix A.
The trial lasted two days, after which the jury began its deliberations. Apparently the jury quickly reached a verdict on the criminal impersonation and drug paraphernalia charges but after a mere four hours they could not agree on the possession charge. It seems Laura Kriho was the lone holdout.
The mood in the jury room changed, and other jurors became abusive and irritated with Kriho, urging her to convict. She held to her faith that the arresting officer had lied, believing a juror has the right to vote their conscience. In the course of deliberations, Kriho allegedly mentioned the sentence the defendant faced and supposedly looked it up on the Internet. [EJF note: In May of 1996 the Internet was still in its infancy and this claim may be spurious.]
Outraged at not being allowed to end the deliberations and go home, another juror sent a secret note to the trial judge asking him to disqualify Kriho for looking up the sentence.
Upon receipt of the note, without polling the entire jury, nor attempting to accept a verdict based on the two of the three counts which the jury had reached unanimity, Kenneth Barnhill declared a mistrial.
Only after he had declared a mistrial did Barnhill call the jury into the courtroom and admonish and then dismiss them. At no time did he question the jurors or investigate the circumstances behind the note.
After being dismissed Kriho apparently went up to Barnhill and told him that the note came from just one juror and that some of the information it contained was untrue. Testimony suggests he was surprised to learn the note was not from the entire jury. She then asked if she was supposed to use her prior knowledge to judge the case? Barnhill agreed she was. Kriho then asked if an understanding of the sentence was part of that knowledge? This black-robed pomposity then left the bench without answering.
In what was probably an unwise move, Kriho left the courthouse and found the one juror she thought was sympathetic to her position and gave him a pamphlet from the Fully Informed Jury Association (FIJA) that she had retrieved from her car after leaving the courthouse. Apparently the other juror wasn't in agreement with Kriho and took the pamphlet to Barnhill and told him: "This is why we had a hung jury. (This) seemed to be a program set up [sic]. We had a hung jury before the jury was ever selected."
Barnhill then gave the pamphlet to the prosecutor, Jim Stanley, and asked him to look into it. Stanley investigated Laura Kriho's background and turned up a 1984 drug conviction for LSD possession when she was 19 that she had been told would be purged from her record under a deferred sentence after two years probation and community service. She had signed a negotiated plea, received a deferred sentence, satisfied conditions of probation, and had the deferred sentence terminated, but the criminal record still exists (see Appendix A).
She was obviously lied to, as are all defendants who are pressured to take a plea bargain with the assurance their records will be "sealed" when the sentence is completed. Stanley also found Kriho was active in political campaigns to legalize hemp.
Two months after the trial, and acting on behalf of First Judicial District Attorney Dave Thomas and Judge Barnhill, on July 3, 1996, Jim Stanley charged Kriho, case number 96 CR 91, with three (3) criminal counts of contempt of court under Colorado Rules of Civil Procedure (CRCP) Rules 107 and 407:
1. For disobedience to an order of the court,
2. Obstructing the administration of justice, and
3. Perjury, a class 4 felony, for lying under oath in open court to the judge and the attorneys regarding her views about drug laws, her willingness to follow the law (as given to the jury by the judge), and her prior experience in the justice system.
Astoundingly, the perjury charge was brought against her not for lying under oath but for her failure to volunteer facts about her political opposition to the drug war and a youthful drug offense during voir dire. The transcript of her voir dire clearly shows she was never asked:
• About having a drug conviction,
• About her views on the drug laws, or
• About whether or not she was willing to follow the law as dictated to her by the judge.
In his remarks, Deputy DA Jim Stanley also accused Kriho of obstructing justice with "widespread deception" about her agenda, revolving around her "firm belief that the drug laws in this country are wrong, and a jury has the right to change them." Stanley called Kriho's behavior "a threat to the foundation of the judicial system that cannot be tolerated."
As a result Laura Kriho was forced to defend herself in a criminal trial, costing a minimum of $10,000, and post a $1,200 cash bond. While the incredibly stupid charge of perjury was eventually dismissed, she was convicted on the other two counts and, in effect, fined the cost of her defense.
In truth, all of the above occurred because Kenneth Barnhill was angry that Laura Kriho did not follow his jury instructions. He, as do most such poorly-educated judges, thought the jury should "only consider the facts of the case," not allowing jurors to vote their conscience, opinion of the law, or motives of the defendant to affect their decision.
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Colorado Rules of Evidence, Article VI: Rule 606 (b). Competency of Juror as Witness Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. (See annotations in Appendix B) |
Jury instructions from a judge guide and inform the jury and can be lawfully disobeyed by knowledgeable jurors with a conscience.But Kenneth Barnhill viewed his jury instructions as orders to be disobeyed only on peril of imprisonment of the offending juror. Barnhill asserted, without first attempting to determine the facts, that Kriho disobeyed an instruction by looking up the possible punishment for the case being tried. Barnhill did not poll the jury to determine that the juror's note was the truth, nor find a decision based on the two counts the jury agreed upon. Instead, without proper investigation, he declared a mistrial. Jury instructions, when blindly followed by jurors, give judges an enormous amount of control over the verdict in a case. Jurors can even disregard the law if they think it is wrong. |
Laura Kriho was arraigned before Chief District Judge Henry Nieto on the charges listed above on August 16, 1996, where she entered a plea of Not Guilty and demanded a jury trial, which was granted. [EJF note: Court records indicate that Kenneth Barnhill conducted this hearing but that is in error.]
In preparing their case against Laura Kriho the judges and prosecutors of the First Judicial District faced a perplexing problem. How were they going to explain to jurors at her trial their contention that jurors should be jailed if they allow themselves to be empaneled on a jury even though they have doubts about whether the law is constitutional or whether the prosecution is reasonable. They would be asking citizen jurors to confer on the government the heretofore undreamed of power to jail fellow jurors who — once in the jury room — dared to think for themselves.
As Kriho's defense attorney noted: "You have to go back to [the trial of William Penn in] 1670 to find a case in which the judge tried to punish jurors for returning a verdict he didn't like."
Given how easy the system can be manipulated by judges who are accountable to no one, and are almost always former prosecutors, these problems were easily circumvented.
First, the Chief Judge of the First Judicial District, Henry Nieto, to his everlasting shame, assigned himself to the Kriho case. Then Nieto immediately ruled that Ms. Kriho's defense attorney, Paul Grant, couldn't bring in any evidence —or expert witnesses — dealing with the traditional right of jurors to deliberate without interference or intervention by a judge.
Colorado's right to a speedy trial constitutional guarantee requires that a defendant be given a trial within six months of their arraignment and entry of a plea. Of course that is frequently ignored or circumvented at the convenience of the prosecution or court when it suits them. But, in this first-of-its-kind case, the denial of a continuance to better prepare a defense would have worked against the prosecution, so it was denied.
Then, in what appears to be an act of blatant retaliation, Henry Nieto ruled that prosecutor Jim Stanley — who lost the original drug case thanks to Laura Kriho — could now prosecute her in this case. Given that Mr. Stanley would likely be a key witness in the trial it is absolutely astounding that this black-robed idiot would allow Stanley to prosecute the Kriho case. Kriho's attorney asked the court to assign a different prosecutor at a September 27, 1996, motions hearing due to the potential, not to say absolute, conflict of interest but Henry Nieto denied the request.
The Sixth Amendment to the Constitution of the United States of America specifically and unambiguously states that:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..."
Further, Article II, Section 16 of the Colorado Constitution states:
"In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.
That section was added August 1, 1876, and has not been amended since. No statute is superior to, or can override or modify a constitutional declaration.
Those constitutional provisions made it awkward for the judge and prosecutor. Kriho's attorney, Paul Grant, also pointed out that:
"Voir dire is supposed to guarantee the defendant a fair and neutral jury, but instead [judges and prosecutors] are using it to 'clean up' the juries [and get rid of] those opposed the the court's policies. They don't want an independent jury. They believe it's their jury."
But it seemed highly unlikely that any sane jury would convict Kriho, no matter how artfully the judge and prosecution practiced voir dire. Paul Grant again stated the obvious:
"If this goes to trial the other jurors [in the original case] will be called as witnesses against a fellow juror. How can Laura get a fair trial when the jurors [weighing the evidence against her] are being instructed that they too can be thrown in jail for not deliberating according to the judge's instructions? They're going to want to read the judge's mind and give him what he wants and not cross him." (also see Appendix B)
But today's courtesan courts have ruled that the Sixth Amendment and the Colorado Constitution don't really mean all criminal prosecutions. According to these black-robed monsters, many of whom today (2005) support star chambers, torture, and indefinite imprisonment without a hearing or a chance to make bail, what the Sixth Amendment and Colorado Constitution really mean is that a jury trial is a "privilege" that need only be honored if the defendant faces a sentence of more than six months of imprisonment. After all, the judiciary regards constitutions as "living documents" that should be interpreted according to jurisprudence du jour.
Imagine what six months in prison would do to your life and career? And a trial to a judge (bench trial) is widely, and rightly regarded as simply a long, slow way of pleading guilty.
To circumvent, and ignore Laura Kriho's civil rights yet again, what Judge Nieto did was ignore the federal and state constitutions and obtained a promise from the prosecutor, Jim Stanley, that in the event Ms. Kriho was convicted he would seek jail time of less than six months. Remember, the charges against her included a Class 4 felony that carries a minimum two-year sentence.
Therefore, by this tortured reasoning, Laura Kriho was not entitled to a jury trial despite the Class 4 felony charge against her. As Vin Suprynowicz put it in his book Send In The Waco Killers (p. 95):
"The little brotherhood known as the Judges of Gilpin County [the First Judicial District also includes Jefferson County], determined to asphyxiate our traditional jury rights and replace our citizen juries with government lackeys, sworn in advance (under penalty of imprisonment) to convict as instructed, decided they would simply judge and sentence poor Laura Kriho themselves, without allowing any pesky 'panel of her peers' to get in the way.
(Another of the handful of Gilpin County judges, Frederic Rodgers, wrote an article for the Summer 1996 1 issue [Vol. 35, No. 3, p. 10] of the local Judge's Journal, explaining to his fellow Philistines how to prosecute 'obstructionist' jurors.)
Kriho's Sixth Amendment rights under the United States Constitution and Article II, Section 16 rights under the Colorado Constitution were further violated by denying her right to confront her accuser and subpoena witnesses. Citing People v. Drake, 841 P.2d 364 (Colo. App. 1992) that found a strong public policy prohibits judges from being called as witnesses to state the grounds upon which they decided former cases, Judge Nieto ruled Judge Barnhill could not be compelled to testify regarding his part in the allegations against Kriho. Nieto ever-tortured reasoning was that Barnhill was not the accuser, the state was (certainly the state was paying Barnhill) and, besides, everything involving Barnhill was a matter of record and the record would be admissible.
Laura Kriho's parents, Ralph and Virginia Kriho, wrote, "No one will ever get a fair trial again if each juror has to worry about being prosecuted himself. It is difficult enough to get jurors to serve now, just because of the inconvenience and loss of wages" (Ralph and Virginia Kriho, "Our daughter is being punished," Colorado Daily (Boulder), September16, 1996).
A week before the bench trial Ms. Kriho noted that: "To deny me a jury trial leaves little doubt about the outcome of the trial."
After carefully and systematically stacking the deck against Laura Kriho, Henry E. Nieto conducted a two-day bench trial beginning October 1, 1996. Observers stated that Judge Nieto demonstrated only the barest suggestion of fairness toward Kriho. The trial appeared to be vindictive and an abuse of prosecutorial and judicial power with Nieto's bias against Kriho seeming obvious to those in the courtroom.
Many of the jurors who had served with Kriho on the original Brannon case were subpoenaed to testify in the trial against their fellow juror. Former juror Dan Cooper testified at Kriho's trial that he overheard Judge Barnhill tell prosecutor Jim Stanley to "look into this" after Kriho went to her car and returned with a pamphlet advocating jury nullification to give to another juror. Thus, privileged jury communications were openly breached by their use as evidence as to the jury's deliberations to prove the charges made against Kriho (see Appendix B and annotations therein).
During the trial Henry Nieto kept insisting that Laura Kriho was not being tried for her vote as a juror or for her beliefs. Ms. Kriho provided a simple, hones answer to that hypocrisy in her testimony: "If I had voted guilty I would not be sitting here now."
Nieto had claimed that everything Judge Barnhill had done was a matter of record and therefore he could not be called upon to testify despite the "Confrontation Clause" of the Sixth Amendment. However, testimony at trial revealed that an important exchange took place outside the courtroom, and off the record, between Barnhill, Stanley, and Brannon's defense attorney. Apparently another important exchange also took place after a mistrial was declared in the Brannon case and the jury dismissed, again involving Barnhill and Stanley. Of course Jim Stanley was the prosecutor in Brannon's case as well as Kriho's so he couldn't be called to the stand either.
Jim Stanley also had contact with the other jurors in the Brannon case during his investigation of Kriho. Again, Stanley, as the prosecutor appointed by Nieto, could not be called upon for testimony. Remember that expert witnesses were also barred from testifying.
Apparently Jim Stanley didn't shine as an attorney during the trial and persisted in asking leading questions of the witnesses. When defense attorney Paul Grant repeatedly objected, Stanley directed a scathing remark to Grant. Henry Nieto was reportedly extremely reticent about admonishing Stanley to address his remarks to the bench.
Courtroom observers were openly critical of biased rulings by Nieto and prosecutor Stanley's arrogant attacks. This hurt dear little Stanley's feelings and he cried to the judge that people in the court were calling him names and rolling their eyes at him. In the face of such horrible abuse he asked Nieto to clear the courtroom. Remarkably, Nieto refused.
Stanley's closing arguments revealed the real intent behind this trial — an attempt to deny the right of jury nullification. While Stanley acknowledged that the jury is the foundation of the trial process any juror who thinks independently, as did Kriho, presents a threat in his feeble mind to the foundation of our judicial system. Judges uber alles!
At the end of the trial, after Nieto declared the court in recess until he should, at his leisure, issue his ruling, observers in the courtroom broke into a spontaneous standing ovation for Paul Grant's valiant defense of Laura Kriho and his passionate closing arguments. Prosecutor Stanley quickly left the court in a huff.
Henry Nieto took four months to craft a nine-page ruling that was released on February 10, 1997. He found Laura Kriho guilty of contempt and obstructing justice for failing to stand up during voir dire questioning and volunteering that she held views about the drug laws that probably differed from the prosecution, as do many other American citizens.
Under Colorado Revised Statutes § 18-8-501 et seq. a person commits perjury in various degrees if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law. Even Nieto couldn't stretch that to fit Kriho's actions and he found her innocent of perjury, acknowledging that she had never lied in answering a direct question about her opinion of the drug laws since no such question was ever asked.
Contempt, however, is basically anything the black robe says it is.
Obviously Nieto attempted to steer clear of any appearance that Ms. Kriho was being punished for what she said in the jury room, though clearly she was. We are left with the absurd notion that potential jurors commit a crime by failing to demand to be excused if they have any doubts at all — before hearing the evidence — that they will be able to bring in a guilty verdict. And it has come to pass that men are now considered guilty until proven innocent. As Nieto phrased it:
"By deliberately withholding this information, [Kriho] 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."
Henry Nieto clearly and unmistakably approached these issues from the viewpoint that, in Ms. Kriho's absence, a unanimous conviction of Michelle Brannon must inevitably have resulted — an attitude sickeningly common among prosecutors and judges in these times.
Clearly the goal of judges like Barnhill and Nieto is to screen out fair and impartial jurors who are randomly selected and represent an accurate cross-section of public opinion. The elegant, if horrifying solution in Colorado courts is to weed out potential jurors who may hold unwelcome knowledge or opinions by holding the threat of jail over any who fail to volunteer such opinions in advance.
In other words it is quite acceptable in Colorado courts for the prosecutor and judge to pack the jury and assume the defendant is guilty but citizens do not have that right. And should citizens nonetheless attempt to exercise their rights as informed jurors they can be prosecuted and jailed.
1. Note the time overlap of the publication of Frederic Rodgers article with the initial May trial, August indictment, and September motions hearing in Kriho's case.
The implications of Laura Kriho's conviction were far reaching and Henry Nieto's totalitarian decision was appealed.
At issue in the appeal was whether the process employed by the prosecution in proving its case, and the trial court's finding of contempt was an unprecedented intrusion into the sanctity of jury deliberations? There was, and is the further question of whether evidence of jury deliberations may properly be used as evidence in a later trial?
In US vs. Moylan, 417 F 2nd 1002, 1006 (1969) the U.S. Fourth Circuit Court of Appeals ruled that: "If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."
The District of Columbia Court of Appeals held in U.S. vs. Dougherty in 1972 that; "The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions from the judges. Most often commended are the 18th century acquittal of John Peter Zenger of seditious libel [the case that gave Americans our freedom of the press] and the 19th century acquittals in prosecutions under the fugitive slave laws."
In United States V. Thomas, 116 F.3d 606 (2d Cir. 1997) the court ruled that a juror cannot be removed during deliberations without proof "beyond doubt" that the juror intended to disregard the court's instructions. If there was any possibility that the juror was attempting to apply the law, but was simply unpersuaded by the evidence, the inquiry into deliberations must cease and the juror cannot be removed from the jury.
The Court of Appeals ruled that the trial court's finding that Kriho was in contempt also referred to the testimony about deliberations. Further the appeal court stated that the trial courts conclusion regarding Kriho's motive — that she deliberately withheld information about her prior experience with the court system and her views on drug laws so that she would be selected to serve on the jury — was based on the other juror's testimony regarding jury deliberations and should not have been considered under Thomas v. United States.
The exceptionally high evidentiary barrier to removal of a juror in order to protect the secrecy of the fundamental right of an accused to a unanimous jury and to protect the secrecy of the jury's deliberations. The vital interest involved is the "core principal of secrecy of jury deliberations."
The jury is supposed to reach its decisions in the mystery and security of secrecy. Objections to the secrecy of jury deliberations are nothing less than objections to the jury system itself.
In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) and Tanner v. United States, 482 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1087) the courts ruled that the trust in the jury's collective judgment, and the necessity of complete privacy for jurors during their deliberative process, have become the bedrock principles in our system of justice.
The Court on Appeal wrote: "We recognized that the juror in Thomas was not charged with contempt for his activities in the jury room. Nevertheless, because of its thorough consideration of the issue of jury secrecy, we conclude that the Thomas court's analysis offers a focused way of resolving the analogous issue before us."
Judge Sandra I. Rothenberg issued a decision on April 29, 1999, remanding the case back to the trial, Nieto's, court on one issue (due to the fact of improper evidence, of jury deliberation, was considered by the trial court affecting Kriho's substantial rights): Under what circumstances can a juror be found in contempt for failing to disclose information during voir dire? They concluded that in certain narrow circumstances, a juror can be found in contempt for the failure to disclose during voir dire information asked for with sufficient specificity, but that the presentation of evidence to prove such contempt must be carefully circumscribed.
The Court of Appeals also reaffirmed that "[T] he secrecy of jury deliberations is a 'core principle' in the American system of justice..."
Because the trial court did not determine whether Kriho's action in obtaining the sentencing information from the Internet constituted a violation of the specific instructions given by the court, or constituted extraneous prejudicial information within the meaning of CRE 606(b), the issue was not addressed by the Court of Appeals.
The Court of Appeals finding was obviously not popular with the poohbahs of the Colorado justice(?) system. As a result a Petition for Rehearing was thereafter filed by the State of Colorado Attorney General's Office on May 20, 1999, and arguing the finding of the Appellate Court was misplaced.
The Attorney Generals petition was denied.
Having been denied a rehearing of the Kriho case, the Colorado Attorney General then filed a petition for a Writ of Certiorari on October 18, 1999, asking the Supreme Court to stay, or overturn the Court of Appeals decision.
Kriho's defense attorney, Paul Grant, then filed a cross-petition for certiorari on November 3, 1999, and a brief in opposition to the Attorney Generals petition.
Acting en banc, on March 20, 2000, the Supreme Court denied the Attorney General's petition and the cross petition for certiorari.
On August 4, 2000, First Judicial District Chief Judge Thomas Woodford signed a motion filed by the District Attorney, Dave Thomas, to dismiss the contempt case on the grounds that it was not in the best interest of justice given the passage of time and evidence unavailability due to the appellate process.
For his role in this travesty of justice Henry E. Nieto was promoted to the Colorado Court of Appeals from which he retired in March 2005 after having bled the citizenry for decades of their rights and freedom. He won't be missed.
Kenneth Barnhill, after helping develop the Colorado Rules of Professional Conduct for the Colorado Bar Association (and you wondered why attorneys were so crooked?) was awarded the Don Sears award on June 15, 2002. The Don Sears Award recognizes outstanding(?) commitment to the "ethics" of the legal profession. As of November 2005 Barnhill apparently is no longer a district judge in the First Judicial District.
The following is taken from Vin Suprynowicz's book Send In The Waco Killers (p. 147):
"This is our thousand-year old tradition and institution that says government ministers may not deprive us of our life, our liberty, or our property unless they attain the unanimous consent of 12 of our fellow private citizens, free to judge the law as well as the fact, and to hear any defense we wish to offer, including arguments that the law in question is itself evil, unconstitutional, and based on faulty information and false premises.
This thousand-year tradition has safeguarded the liberties of English-speaking peoples since the time of Alfred the Great, who summarily hanged several of his own judges for the crime of removing jurors who refused to convict and replacing those obstinate honest citizens with more docile souls, amenable to rubber-stamping the prosecution's case.
(Some may wonder whether that would be an appropriate punishment for the judges of Gilpin County, today. Indeed it would be — though I would extend to them a courtesy they deny to others, offering them a trial by jury, first.)
Trial by jury, since the 10 th century, has managed to survive Norman conquest, plague, fire, witch-burnings, famine, anarchy, regicide, the War of the Roses, Roundheads, Cavaliers, Ned Ludd, Guy Fox, Civil War, World War, the Battle of Britain, Revolution, Depression, Abraham Lincoln, and Franklin Roosevelt. Yet now we can expect to be told we must join in sweeping aside this lynchpin of our liberties, proven in the furnace of a thousand years, since otherwise the government will find itself unable to successfully prosecute a few thousand more hard-working black and Hispanic lads who choose to party with marijuana on a Saturday night."
Anonymous, Colorado contempt case highlights attack on "jury nullification" power, December 1996.
Shell, Suzanne: A juror's journey to the defendants chair, Media Bypass Magazine, p. 32-36, December 1996.
Suprynowicz, Vin: Send In The Waco Killers, Mountain Media, Las Vegas, 504 p., 1999.
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County Court, Boulder County, Div/Room: 74, Judge or Magistrate: Marsha Baer Yeager
Defendant: KRIHO, LAURA J, Birthdate: 07/23/1964
Main Charge: 018018.00105.0 Possession of a Schedule 1 controlled substance (apparently LSD)
District Court, Boulder County, Div/Room 4, Judge or Magistrate: Joseph John Bellipanni
Defendant: KRIHO, LAURA, Birthdate: 07/23/1964 (GARLIN, ALEXANDER - AAC Attorney)
Main Charge: 018018.00105.0 Possession of a Schedule 1 controlled substance (apparently LSD)
Disposition: Dismissed by court 10/23/1984
District Court, Gilpin County, Div/Room: G, Judges Kenneth E. Barnhill and Henry E. Nieto
Status: Closed (Case dismissed)
Defendant: KRIHO, LAURA, Birthdate: 07/23/1964 (GRANT PAUL - Private Attorney)
Main Charge: CRCP Rules 107 & 407 Contempt, Type: Other [EJF note: Unprecedented]
Agency: DA30 Jefferson District Attorney
Disposition: Dismissed by District Attorney, Date: 08/04/2000
Set Date: Unknown, Set Amount: $0
Post Date: 03/07/1997, Post Amount: $1200, Type: CASH
(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. No objection need be made in order to preserve the point.
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
Law reviews. For article, "Rule 606(b): Competency of Jurors as Witnesses", see 25 Colo. Law. 47 (March 1996). For article, "Admissibility of Juror Affidavits Under C.R.E. 606(b)", see 32 Colo. Law. 61 (March 2003).
Purpose of this rule is to reinforce the finality of jury verdicts, to protect the sanctity of jury deliberations, and to safeguard the privacy of jurors; however, in cases where result of jury deliberations are substantially undermined due to fundamental flaws in deliberation process, courts must weigh these policies against overriding concern that parties to judicial process be assured of fair result. Ravin v. Gambrell By and Through Eddy, 788 P.2d 817 (Colo. 1990).
Section (b) of this rule has three fundamental purposes: To promote finality of verdicts, shield verdicts from impeachment, and protect jurors from harassment and coercion. Stewart v. Rice, 47 P.3d 316 (Colo. 2002).
The common law in Colorado supports a plain meaning application of section (b) and its two stated exceptions. Stewart v. Rice, 47 P.3d 316 (Colo. 2002).
Section (b) precludes the use of jurors' post-verdict statements to the court to impeach the unanimous verdict. Granting of new trial based upon jurors statements improper even if statements made prior to the jury being disbursed. Hall v. Levine, 104 P.3d 222 (Colo. 2005).
This rule contains no exception for clerical error. Stewart v. Rice, 47 P.3d 316 (Colo. 2002).
Jury foreman's statements concerning a possible clerical mistake in filling out dollar amounts of verdict forms held not precluded by this rule. Kading v. Kading, 683 P.2d 373 (Colo. App. 1984).
Use of dictionary by a juror to obtain a definition of the crime with which the defendant was charged was improper and constituted misconduct. Wiser v. People, 732 P.2d 1139 (Colo. 1987).
Juror's use of the internet to obtain information about a drug prescribed to the defendant was improper and constituted misconduct. People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff'd on other grounds, 97 P.3d 932 (Colo. 2004).
Inquiry by juror about source of jury instructions to friend who was a legal secretary was misconduct which had potential for distorting the deliberations of the jury. Wiser v. People, 732 P.2d 1139 (Colo. 1987).
Section (b) bars a court from considering juror affidavits if they do not address matters within the two stated exceptions: Extraneous prejudicial information improperly brought to the juror's attention or improper outside influence exerted upon a juror. Stewart v. Rice, 47 P.3d 316 (Colo. 2002).
A jury verdict may not be impeached by affidavit except in very limited circumstances involving external influence improperly bearing upon the jury. People v. Graham, 678 P.2d 1043 (Colo. App. 1983), cert. denied, 467 U.S. 1216, 104 S. Ct. 2660, 81 L.Ed.2d 366 (1984).
A jury verdict in a criminal case may not generally be impeached by affidavits of jurors unless there has been external influence on the jury or there has been jury misconduct. People v. Collins, 730 P.2d 293 (Colo. 1986); People v. Garcia, 752 P.2d 570 (Colo. 1988).
Defendant convicted of theft by receiving may not use affidavit of jury foreman to show that jury's finding regarding value of items involved in theft was based on speculation. People v. McCoy, 764 P.2d 1171 (Colo. 1988).
Affidavits concerning jurors' mental processes held inadmissible. Rome v. Gaffrey, 654 P.2d 333 (Colo. App. 1982); People v. Collins, 730 P.2d 293 (Colo. 1986); Ravin v. Gambrell By and Through Eddy, 788 P.2d 817 (Colo. 1990); Davis v. Lira, 817 P.2d 539 (Colo. App. 1991), rev'd on other grounds, 832 P.2d 240 (Colo. 1992).
Juror's affidavit about her physical condition and her position as holding out alone against other jurors cannot be received under this rule. Gambrell By and Through Eddy v. Ravin, 764 P.2d 362 (Colo. App. 1988), aff'd, 788 P.2d 817 (Colo. 1990).
Juror's affidavit and testimony about her physical condition and its effect on her ability to hold out against the other jurors' yelling constituted an improper inquiry into her thought processes and emotions and was, therefore, inadmissible. People v. Ferrero, 874 P.2d 468 (Colo. App. 1993).
Juror's affidavits concerning mental processes in determining the amount of the verdict, including specific statements that the damages awarded were to pay for the plaintiff's attorney fees were not admissible and could not be used to impeach the jury award. Munoz v. State Farm Mut. Auto. Ins. Co., 968 P.2d 126 (Colo. App. 1998).
Trial court properly considered affidavit alleging coercion against a juror and hearing testimony from juror who asserted the misconduct. People v. Collins, 730 P.2d 293 (Colo. 1986).
Testimony concerning jurors' mental processes held inadmissible and such testimony cannot serve as basis for denial of defendant's postconviction motion. People v. Crespin, 682 P.2d 58 (Colo. App. 1984), rev'd on other grounds, 721 P.2d 688 (Colo. 1986).
Witness' testimony as to the juror's fear was an improper inquiry into the juror's thought processes and emotions and was, therefore, inadmissible. People v. Harrison, 746 P.2d 66 (Colo. App. 1987).
Testimony at hearing as to the jurors' emotional reactions to extraneous information was excludable as improper inquiry into the jurors' thought processes and emotions during deliberations. People v. Ferrero, 874 P.2d 468 (Colo. App. 1993).
Court may only consider evidence of objective circumstances and overt coercive acts by other members of jury and may not consider the effect this conduct had on the minds of the jurors. People v. Rudnick 878 P.2d 16 (Colo. App. 1993).
A juror may not testify as to the wrong exercise of his judgment or his confusion on the law or the facts or his misunderstandings. People v. Collins, 730 P.2d 293 (Colo. 1986).
Courts are precluded by section (b) from engaging in direct post-verdict investigations into the deliberative processes of jurors. Wilson v. O'Reilly, 867 P.2d 92 (Colo. App. 1993).
But where court simply asked the juror if this in fact was her verdict and where only the juror's answers to the court's questions discussed the jury's deliberations, court's actions were consistent with section (b). People v. Barnard, 12 P.3d 290 (Colo. App. 2000).
When juror was questioned about whether the verdict in favor of defendant as reported by a written special verdict was her verdict and juror responded "no", judge should have declared a mistrial or directed the jurors to deliberate further; by engaging in extended questioning as to why the juror had said the verdict was not hers, the court and counsel improperly delved into the deliberations and mental processes of the jurors and risked unduly influencing the juror to conform to the signed verdict. Simpson v. Stjernholm, 985 P.2d 31 (Colo. App. 1998).
Trial court erred by failing to strike affidavit of juror in which he stated he dissented from the jury's award because he thought the award inadequate. Neil v. Espinoza, 747 P.2d 1257 (Colo. 1987).
Rule applicable to the impeachment of a certificate of ascertainment and assessment in eminent domain proceedings. Aldrich v. District Court, 714 P.2d 1321 (Colo. 1986).
To prevail on motion for new trial on basis of juror testimony alleging misconduct, movant must establish he was prejudiced by the misconduct. People v. Hernandez, 695 P.2d 308 (Colo. App. 1984); Wiser v. People, 732 P.2d 1139 (Colo. 1987); People v. Garcia, 752 P.2d 570 (Colo. 1988); Ravin v. Gambrell By and Through Eddy, 788 P.2d 817 (Colo. 1990); People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff'd on other grounds, 97 P.3d 932 (Colo. 2004).
Test for setting aside jury verdicts in both civil and criminal actions is not whether the impropriety actually influenced a juror, but whether it had the capacity of doing so. Ravin v. Gambrell By and Through Eddy, 778 P.2d 817 (Colo. 1990).
One seeking to set aside a verdict based on allegations of improper extraneous influence on the jury must establish the fact of such influence and also that there was a reasonable possibility of prejudice. Wilson v. O'Reilly, 867 P.2d 92 (Colo. App. 1993).
Evidentiary hearing on jury misconduct. In order to constitute grounds for setting aside a verdict because of any unauthorized or improper communication with the jury, it is incumbent upon defendant to show that he was prejudiced thereby. The determination of whether prejudice has occurred is a matter within the sound discretion of the trial court. People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev'd on other grounds, 712 P.2d 1023 (Colo. 1986); People v. Garcia, 752 P.2d 570 (Colo. 1988).
Review of whether a new trial is required because of juror misconduct is a mixed question of law and fact. The court must apply a normal deferential standard to the trial court's factual findings, but review de novo the trial court's conclusions of law. People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff'd, 97 P.3d 932 (Colo. 2004).
Defendant not entitled to a new trial as a result of influence upon two jurors by other jurors absent evidence of threats, abuse, or any coercion beyond mere argumentation. People v. Black, 725 P.2d 8 (Colo. App. 1986).
To prevail on a motion for a new trial based on exposure of jurors to extraneous information or influences, defendant must establish that he was prejudiced by the exposure. People v. Harrison, 746 P.2d 66 (Colo. App. 1987).
Prejudice is shown if the jurors' exposure to extraneous information or influences establishes a reasonable possibility that the extraneous information affected the verdict. People v. Harrison, 746 P.2d 66 (Colo. App. 1987).
However, defendant cannot claim prejudice resulting from his own conduct as a ground for setting aside the verdict. People v. Harrison, 746 P.2d 66 (Colo. App. 1987).
In determining whether a new trial is required due to juror misconduct, the court must determine whether there is a reasonable possibility that the extraneous contact or influence affected the verdict, so as to require a new trial only where there is a reasonable possibility that verdict was tainted by introduction of outside information or influences into jury deliberations. Wiser v. People, 732 P.2d 1139 (Colo. 1987); People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff'd, 97 P.3d 932 (Colo. 2004).
New trial required where there was reasonable possibility that jury verdict was affected by bailiff's remark that if a verdict could not be reached the judge might make jury deliberate for up to two weeks. Gambrell By and Through Eddy v. Ravin, 764 P.2d 362 (Colo. App. 1988), aff'd, 788 P.2d 817 (Colo. 1990).
Trial court erred by failing to consider part of a juror's affidavit discussing another juror's potential misrepresentation or concealment of prejudicial beliefs during voir dire. Black v. Waterman, 83 P.3d 1130 (Colo. App. 2003).
Trial court properly considered affidavits of three jurors in determining whether an envelope containing defendant's suppressed statement which had been accidentally taken to the jury room affected the jury's determination. People v. Smith, 856 P.2d 26 (Colo. App. 1992).
Trial court abused its discretion in denying a motion for new trial which was filed because the jury foreman obtained extraneous information that was pertinent to the issue of the credibility of the accused versus the victim. People v. Fox, 862 P.2d 1000 (Colo. App. 1993).
Trial court erred in granting a new trial based on the jury's supposed mental processes. Despite any initial appearance of confusion, once a jury has rendered a consistent final verdict it is inappropriate to set aside the verdict because of the court's speculation that the confusion may have continued. People v. Angell, 917 P.2d 312 (Colo. App. 1995).
Rule applicable to deliberations prior to a verdict. The integrity of jury deliberations and assurance that jurors will be protected from coercion are no less important in the process of attempting to reach a verdict than they are in the process of polling a jury once the verdict is reached. To hold otherwise would disserve the purpose of section (b) and expose individual jurors to potential harassment or pressure that the rule was designed to avoid. People v. Rivers, 70 P.3d 531 (Colo. App. 2002).
Applied in T.S. v. G.G., 679 P.2d 118 (Colo. App. 1984); People v. Cornett, 685 P.2d 224 (Colo. App. 1984).
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