Holdout Juror Accused of Criminal Contempt

It appeared to be just another felony drug possession trial in Gilpin County, Colo. The voir dire questioning of prospective jurors began on May 13; by the next afternoon, the jury already had withdrawn to deliberate the fate of a 19-year-old woman possibly too fond of methamphetamine. Then came an inquiring note from the jury room: Can a juror be disqualified for looking up the sentence for drug possession on the Internet? Can a juror be disqualified for stating “the criminal court system is no place to decide drug charges”?

Judge Kenneth Barnhill blanched as he studied this query. “I am,” he told the lawyers in his courtroom that afternoon, “just more than a little bit ticked.”

No wonder. Someone with opinions had slipped onto his jury. Someone who did not feel obliged to follow the letter of the law, or the instructions of the judge. Someone, as it happened, with a bent for libertarian philosophy, the industrial hemp movement and certain “jury nullification” themes sounded by the Fully Informed Jury Assn. Barnhill saw no course but to declare a mistrial. He didn’t stop there, however. Two months later, he issued a highly unusual criminal contempt of court citation against the holdout juror, one Laura J. Kriho of Nederland, Colo.

So began an intriguing bit of judicial theater. There Kriho sat at her Oct. 1 contempt hearing, Court TV cameras rolling, the small Gilpin County courtroom packed with her supporters, as seven fellow jurors revealed her comments during their private deliberations.

Kriho didn’t deny the statements quoted in their testimony: “I can’t send this girl to prison. . . . I’m against the drug laws and won’t vote for guilt. . . . Drug cases should be handled by family and community. . . . Jurors can vote their conscience. . . . Jurors have the right to nullify laws they don’t like.” But she did disclaim an agenda, or an inability to sit as a fair and impartial juror.

It wasn’t hard to see Kriho as being on trial for her thoughts and speech in a jury room. It also wasn’t hard to hear that notion being raised regularly by Kriho’s lawyer and supporters, who at the hearing were given to much eye-rolling behind the prosecutor’s back. Frequent parallels were drawn to the jurors who acquitted John Peter Zenger in 1735 by ignoring the court’s definition of seditious libel, to the jurors fined and imprisoned in 1670 for refusing to convict William Penn of unlawful preaching, and to the jurors who defied the Fugitive Slave Act by absolving those aiding runaway slaves in the 1850s.

“If Laura Kriho can be prosecuted for contempt,” declared her attorney, Paul Grant, “no juror who thinks for himself can safely speak in the jury room. The court is trying to intimidate anybody with an independent mind. The government cannot tell its citizens not to think critically of the law or the government. The government cannot order a juror to violate her own conscience. And the court cannot banish all jurors who have consciences.”

With wan determination, prosecutor Jim Stanley gamely tried to explain that Kriho wasn’t on trial for her beliefs, but for her “disobedience” of a court order and her “widespread deception” during the voir dire questioning. Stanley had a point. Although she wasn’t directly asked precise questions about herself, it’s true that Kriho did fail to disclose her attitudes about drug laws and jury rights, as well as her own arrest 12 years ago at age 19 for possession of LSD. It’s also true that she researched and discussed the sentence for drug possession, contrary to the judge’s instructions. But when the prosecutor labeled this conduct an “obstruction of justice . . . a threat to the foundation of the judicial system that cannot be tolerated,” it was clear there were subtexts at play.

Kriho may not have been on trial for her beliefs. But if she’d revealed them she would never have gotten on a jury, and that is the crux of the matter. Lawyers and judges use voir dire to weed out not only biased jurors but also those distinctly rich with conviction, knowledge, education and will. For the most part, lawyers on both sides want malleable blank slates, not people who read newspapers and attend meetings and sign petitions. If juries represent the voice of the community, it’s only a slice, carefully carved. Jury tampering, Kriho’s accusers call her conduct; look who’s talking, Kriho’s camp responds.

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There is in all this, of course, a good deal of inflated rhetoric from both sides: “Chaos and collapse” will follow if jurors can nullify laws; “oppression and tyranny” if they cannot. There is also ambiguity: Southern white “jury nullifiers” have acquitted more than a few racist killers over the years. But Kriho’s testimony at her hearing rang true: Whatever her beliefs, she observed from the witness stand, “if I had voted guilty, I would not be sitting here now.”

A simple case, the judge suggested back then; he’d rule shortly. That was four months ago. His decision is still pending.