PAST JUROR GRANTED RETRIAL

Concepts of 'jury nullification,' invasion of privacy assessed in appeals
court

A former Gilpin County juror, who caused a mistrial in a 1996 drug case and
later was charged with contempt of court, won a round this week in the
Colorado Court of Appeals.

The court ruled Thursday that Gilpin County Judge Henry Nieto wrongly
considered jury-room transcripts in finding Laura Kriho guilty of the
contempt charge in 1997. The decision, however, does allow for Kriho to be
prosecuted again without the transcript evidence.

The Kriho case is significant because it also centers on the concept of
"jury nullification," the concept of a juror's right to vote on conscious
regardless of law. Under the idea of nullification, a juror may vote to
acquit a defendant, not based on the evidence presented but upon the juror's
moral conviction that the law under which the case is prosecuted is wrong.
Most court rulings have failed to acknowledge the right of jury
nullification.

While investigating the mistrial, the District Attorney's Office for Gilpin
County learned Kriho had been arrested in 1985 for possession of LSD and had
supported the legalization of hemp. Kriho received a deferred sentence for
those charges but was never officially convicted.

When Kriho later served as a juror on a methamphetamine possession case, she
was the sole juror to vote for acquittal and the case ended in the mistrial.
The District Attorney's office said she should have disclosed her own drug
record before the trial, but Kriho said she was never asked about a past
drug record.

Prosecutors argued the case against Kriho was not about nullification, but
about her failure to disclose her drug-related background and her disregard
of the judge's instructions to the jury on the law and jury conduct. Kriho's
case quickly became a cause for civil rights advocates and libertarians, who
argued that the government did not have the right to interfere with the jury
deliberation process.

Kriho said Saturday she was happy with the Court of Appeals decision but
that it did not go far enough in protecting jurors' rights.

"I think the prosecution of jurors should be off limits, except in the most
egregious incidents of misconduct," she said.

In the appeals court's ruling, Judge Sandra Rothenberg, who wrote the
majority opinion, stated that the invasion of the jury process is dangerous
because it tends to "chill the willingness of our citizens to serve on
juries."

Rothenberg specifically cited a 1997 Circuit Court of Appeals Case, United
States vs. Thomas.

The Thomas case states: "The need to preserve the secrecy of jury
deliberations requires an investigation of juror misconduct to cease once
'any possibility' arises that the juror is acting during deliberations based
on his or her view of the sufficiency of the evidence."

Rothenberg further wrote that "extensive evidence" shows Kriho "was one of
the most diligent jurors."

A decision on whether District Attorney Dave Thomas will retry the Kriho
case is unlikely until the state has exhausted its appeals.

Ken Lane, a spokesman for the state Attorney General's Office, declined to
comment on the case.