By Alan Prendergast
By Michael Roberts
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Members of the legal community were surprised and angry three months ago, when Gilpin County District Judge Kenneth Barnhill and prosecutor Jim Stanley had the temerity to try a juror for criminal contempt of court after she declined to convict a defendant in a drug case. The action, considered by some attorneys to be an attack on the jury system itself, was debated in local papers and in national law journals.
Now Stanley and Barnhill are focusing on another target. Last fall Stanley filed, and Barnhill signed, a second set of criminal contempt charges--this time against a defense attorney who is a former state prosecutor. Charged in the case is former Clear Creek County Deputy District Attorney Titus Peterson, who got on Stanley's bad side during a case tried before Barnhill last summer. If found guilty, Peterson could end up spending six months in jail and lose his license to practice law.
It's a highly unusual case, say observers, not only because criminal contempt filings are rare, but also because the district attorney's office, not the judge, apparently initiated the action. Stanley and fellow prosecutor Bradley Burback have accused Peterson of, among other things, being rude to Barnhill--a transgression normally dealt with by judges themselves, not by the prosecutors who practice in their courtrooms.
The entire episode has unnerved local defense attorneys. If this type of prosecution catches on, cautions Parker attorney Paul Grant, who defended juror Laura Kriho in the earlier contempt case, "it will be hard to be aggressive or assertive in the courtroom. When the judge or the district attorney starts to get irritated, the defense will recognize it as a situation where they could be prosecuted. It poses a very dangerous threat to the right to counsel.
"If this goes to trial," adds Grant, "there are going to be a lot of attorneys in the audience." The gallery could include prominent Denver defense attorneys Larry Pozner and Craig Truman, who say they're concerned about the precedent that could be set if Peterson is convicted.
Criminal contempt filings and felony charges against lawyers surged during the Reagan-Bush years, notes Truman, but that was mostly in eastern states like Virginia and Florida, where accusations ranging from perjury to witness tampering surfaced, often in drug cases. "We don't see much of it here," Truman says of the charge, "which is why it stands out."
Barnhill, who retired last week after nearly a decade on the bench, and Stanley, who's spent most of his fourteen-year legal career as a prosecutor for the judicial district that includes Jefferson and Gilpin counties, were the subject of unflattering headlines last year when they went after Kriho.
Kriho, of Nederland, was a member of a jury impaneled in the case of a nineteen-year-old defendant charged with possession of methamphetamine. When Kriho retired to deliberate in the May 1996 case, she went armed with the knowledge (gleaned from the Internet) that the defendant could face a four- to twelve-year prison term if convicted. That in itself was a violation of rules that declare that jurors should remain blissfully ignorant of the consequences of their findings.
Kriho also entered into deliberations while holding to the belief that drug cases were best handled by families and communities, not the courts, a position that may have been reinforced after her own arrest on drug charges twelve years earlier.
Kriho was the only juror to vote for acquittal, a fact that angered the others on the panel. They complained to Barnhill, who declared a mistrial. The judge and Stanley, who had prosecuted the case, reportedly were furious.
Barnhill's anger didn't come as a huge surprise to some courthouse regulars, who say that in the months preceding his retirement, the judge had become increasingly "irascible" and had taken to haranguing potential jurors. He'd also begun handing down eccentric sentences. In the 1995 case of a man who opened fire on employees of a Jefferson County pawnshop, killing two and seriously injuring a third, Barnhill ordered that the defendant live in a cell with the victims' photos and a videotape of the crime and that he be forced to listen to replays of the 911 call for help made by one of the wounded men. That sentence was overturned earlier this month by the Colorado Court of Appeals, which ruled that Barnhill had exceeded his authority in imposing the unusual punisments.
After declaring the mistrial in the Kriho case, says defense attorney Grant, Barnhill asked Stanley to conduct a probe of possible juror misconduct. That led to the filing of the contempt citation.
Under Colorado statute, there are two types of contempt--direct and indirect. Direct contempt occurs in the presence of the judge and can be dealt with immediately, often by the judge issuing a warning or a fine. "If you say, 'Excuse me, your honor, but screw you,' that's direct contempt," explains Truman. Indirect contempt results from matters occurring outside the courtroom. Failing to comply with a court order, for example, could constitute indirect contempt.
In his July brief asking that Kriho be charged with criminal contempt, Stanley accused the juror of misleading the court about her beliefs concerning drug laws and about her own 1984 prosecution for possession of LSD. "If we let something like this go," Stanley told a reporter for the National Law Journal, "the whole process would be in danger."