L. Neil Smith's

Number 14, September 15, 1996.

A Juror On Trial

By Vin Suprynowicz

Special to The Libertarian Enterprise

         Laura Kriho, of Gilpin County, Colo., was summoned for jury duty May 13. She was the twelfth juror seated in the case of a 19-year-old female charged with felony possession of the diet pill methamphetamine.
         According to Ms. Kriho's attorney, Paul Grant, the jurors seated earlier has been subjected to extensive "voir dire" questioning, the process by which the defense and especially the prosecution attempt to exclude jurors they believe might be prejudiced against their case.
         (A few decades ago, such questioning was limited to asking if one was a blood relative of a principal. These days, jurors can be asked to fill out questionnaires containing hundreds of questions, from what church they belong to, to what model car they drive.)
         But it was late in the day, and everyone was tired. They simply asked Ms. Kriho whether she could think of any reason she should not be seated.
         Laura Kriho has been active in the past in political campaigns to legalize hemp -- the marijuana plant -- in Colorado. Twelve years ago, she had once received a deferred sentence on a minor drug charge, herself, but had been assured it would be expunged from her record if she remained on her good behavior for two years, which she did.
         Laura Kriho said she could not think of any reason why she could not do justice by the 19-year-old defendant. She believes, to this day, that she was a fair and impartial juror, that she took seriously her duty to weigh the facts of the case, as assessed through the honest filter of her conscience. She was seated.
         In the jury room, 11 jurors -- carefully pre-screened to guarantee they were in favor of the War on Drugs -- wanted to convict. Laura Kriho disagreed. In the course of their discussions, she allegedly mentioned the likely sentence.
         The judge had specifically instructed the jury not to consider the possible sentence while deliberating. Outraged at not being allowed to end this and go home, a fellow juror "snitched" on Laura Kriho by passing a note to the judge. Outraged himself, District Court Judge Kenneth Barnhill called the jury in, declared a mistrial, and charged juror Kriho with contempt of court, obstructing justice, and perjury, the last for failing to volunteer facts about her political opposition to the drug war, and her own youthful drug offense ... even though she was never specifically asked about them.
         The trial of juror Laura Kriho has been set for Sept. 30, somewhere near Denver. She could face a jail term exceeding six months, and an unlimited fine. It has been estimated that even a modest defense will cost $10,000.

         # # #

         Colorado attorney Paul Grant: "I think what happened in this case is, the prosecutor thought he had a slam dunk, and they just got outraged. ... This judge is very enthusiastic about getting convictions in drugs cases. He sees himself and the prosecution on the same side; they're both enforcing the law.
         "No one's ever seen this done before in Colorado. The glare of publicity ought to be shined on this case and send them scurrying away in the darkness.
         "Voir dire was supposed to guarantee the defendant a fair and neutral jury, but instead they're using it to 'clean up' the juries (and get rid of) those opposed to the court's policies. They don't want an independent jury. They believe it's their jury.
         "The standard is supposed to be 'a reasonable doubt.' But the way they're using voir dire now, starts jurors thinking: 'Is there anything that would make me hesitate to convict?' That instruction violates the presumption of innocence. I think it's a very dangerous instruction.
         "Juror misconduct, which is what they're charging, generally involves bringing in outside influences. On appeal, they generally won't accept an affidavit from a juror who says he misunderstood the instructions and regrets voting guilty. So you can't bring in questions about how the jury deliberated when it weighs on the other side, when it might help the defendant.
         "The judge was miffed that Laura didn't follow his instructions. Well, how can he instruct the jury how to deliberate? He told them not to think about the sentence, he told them not to question the wisdom of the law. Why have a jury, if they can't think? If this is successful, we're going to need a law in Colorado that a judge has to warn jurors of their rights, that they can be imprisoned if they deliberate the wrong way.
         "If this goes to trial the other jurors will be called as witnesses against a fellow juror. How can Laura get a fair trial when the jurors are being instructed that jurors can be thrown in jail for not deliberating according to the judges' instructions? They're going to want to read the judge's mind and give him what he wants and not cross him.
         "And that's what he wants, to do away with the independence of the jurors. So why have a jury at all? I don't see how this case can go forward at all; it essentially destroys the jury system."
         Attorney Grant is correct. The purpose of the guarantee of a trial by jury before the government can kill us, imprison us, or take our property -- a guarantee repeated in no less than three of the first 10 amendments to the Constitution -- is that the citizenry should have a direct, personal veto power over the enactments of the Legislature, as well as the executive power to arrest and punish.
         A thousand years of common law dictate that a unanimous decision of 12 jurors -- meeting in private, with no state officer to listen or interfere -- is required; never a simple majority. Nor does the state have any recourse if they acquit.

         # # #

         Should we thus be concerned that juries will decline to convict and punish murderers, robbers, rapists? Of course not. Well over 98 percent of the populace agree such violent felons need punishment -- probably rougher handling than they're getting now.
         But one juror in 12 will tend to represent 8.3 percent of the people. Thus, enactments which are not supported by at least 92 percent of the populace cannot withstand the test of the unanimous, randomly-selected jury.
         Do 92 percent of the populace agree that we should jail or otherwise punish drug users, purveyors of pornographic videotapes, people who chop down trees or build sheds on their own land, or otherwise-law-abiding citizens who want to own an M-16 rifle, with or without the stock cut off?
         They do not. Thus, if we had the randomly-selected juries we were guaranteed -- rather than juries purposely stacked by the state -- most prosecutions in such cases would fail. Prosecutors would stop bringing such cases, just as they gave up prosecuting those who harbored fugitive slaves in the 1850s.
         That would be enormously to the good. The courts and jails would be cleared of the backlog of "victimless" crimes which now clog them, preventing them from locking away truly violent predators -- all without requiring our cowardly lawmakers to take the politically courageous step of repealing half the nonsense they've enacted in the past 60 years.
         Those who devoutly believe alcohol and tobacco should be legal, while marijuana and amphetamine users should be jailed, do not respond rationally to any scientific evidence about the relative harmfulness of these substances. Their convictions are as unshakable by scientific evidence as those of any other religious zealots.
         If any jurors are to be excluded in drug cases due to their beliefs about the Drug War, it is those who believe in endlessly prosecuting this Drug War -- despite all evidence that it does more harm than good -- who should be excused, for their obvious prior religious prejudice against the defendant.
         Given their prima face complicity in jury-stacking, Colorado District Court Judge Kenneth Barnhill and Deputy District Attorney Jim Stanley of Golden, Colo. should themselves be on trial, on charges of violating their oaths to uphold the Constitutions of Colorado and the United States.
         Until that happy day, contributions are seriously needed for the Laura Kriho Legal Defense Fund, c/o Paul Grant, P.O. Box 1272, Parker, Colo. 80134.
         Contributions are not tax deductible.

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. Readers may contact him via e-mail at vin@lvrj.com. The web site for the Suprynowicz column is at http://www.nguworld.com/vindex/. The column is syndicated in the United States and Canada via Mountain Media Syndications, P.O. Box 4422, Las Vegas Nev. 89127.

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