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A Denver prosecutor committed misconduct when she got potential jurors to support her reasoning for finding the defendant guilty before they even heard any evidence, the Court of Appeals decided on Thursday.

The prosecutor "indoctrinated" the jury pool with her theory for why they should convict Jaymi L. Kraaz of theft, and obtained commitments from potential jurors to find Kraaz guilty during voir dire — the time where lawyers ask questions during juror selection. Judge Michael H. Berger blasted the prosecutor's tactics during oral arguments before the appellate court in September.

"I’m really troubled that the state of Colorado is taking the position that because this was, as you put it, a very sympathetic defendant, that allowed the representative of the state — the district attorney — to misrepresent the law, to violate established precedents regarding the proper purpose of voir dire," he said.

Even Carmen Moraleda, the senior assistant attorney general who was defending the prosecution's actions on appeal, distanced herself from the prosecutor's approach during jury selection.

"I’m not saying that this should be allowed or this should be done or this is best practice," she responded to Berger. "The prosecution and the defense should not try to commit jurors to a certain result before the evidence is submitted."

A spokesperson for Denver District Attorney Beth McCann did not immediately respond to questions about the prosecutor's identity, whether she still works for the office and whether McCann endorsed her conduct.

Kraaz used a vehicle-sharing app to rent a car between May 7-11, 2018. In the terms and conditions for the service, Kraaz agreed to not let anyone but her drive the vehicle, and acknowledged she could be prosecuted for failing to return the car on time.

After a 48-hour grace period following the end of the rental period, an account manager contacted Kraaz because the car had not come back. The account manager texted Kraaz that she would report the car stolen if she did not hear back from Kraaz. Kraaz responded that she was camping without her phone and was trying to extend the rental. She added that she would return by noon the following day.

However, on May 16, the car was still missing. Kraaz texted her apologies and promised she was "not trying to get over on you." Later that day, Kraaz texted that someone else had the car. She and the account manager kept corresponding about the car, culminating in the filing of a police report. The car was eventually recovered in Minnesota.

Kraaz's defense at trial was that someone stole the car from her, but a jury convicted her of first and second degree aggravated motor vehicle theft. Both crimes required her to knowingly possess someone else's vehicle without authorization.

A three-judge panel for the Court of Appeals found a jury could reasonably conclude there was evidence to convict Kraaz of those offenses. But what the judges deemed unreasonable was the prosecutor's interaction with jurors prior to presenting any of that evidence.

The prosecutor asked jurors to imagine a scenario where a person walks into a library to check out a book. After the due date, the librarian calls the borrower to ask for the book back. The borrower does not respond. The prosecutor asked whether jurors believed the borrower had stolen the book at that point.

"I’d like to think she hasn’t and misplaced it; but probably, technically, yes," one juror responded.

"So let’s say now," the prosecutor continued, "that she does call back, and she says I’m so sorry. My dog just died. I’ve been struggling a little bit. Can I bring it back in two days?"

The juror responded that although they "feel sorry for her," the borrower's actions constituted theft.

"So let’s just say [the borrower] was sitting over here, that she was charged with theft. That was the scenario. Could you find her guilty of theft?" pressed the prosecutor.

Yes, the juror said.

The prosecutor continued to speak with other jurors, modifying her hypothetical example to include a grace period for returning the book and other details that paralleled Kraaz's case. She spoke to a total of 21 jurors about the library book and got them to confirm that they could find someone guilty of theft under very similar circumstances to the hypothetical book borrower's. At least 10 of those jurors wound up on Kraaz's jury.

Finally, the prosecutor referred to her example during closing arguments: "At the end of the day, it was [the borrower] who checked out the book, who agreed to return it, who did not return it. That is absolutely the case here. Ms. Kraaz rented the car here, picked it up, didn’t return it."

On appeal, Kraaz's attorney argued that it was well-established that voir dire is not the place to teach the jury about either side's theory about the guilt or innocence of the defendant.

"Jurors were induced to make up their minds about what constituted theft before they had been instructed on the law," Joseph T. Goodner told the judges. "They were basically suggested that they didn’t need to take too hard of a look because they had already made up their minds."

Judge Gilbert M. Román observed that the point of voir dire is to identify potential jurors who are biased.

"How did the library hypothetical aid that cause?" he asked.

Moraleda responded that Kraaz was "a sympathetic defendant" and the prosecutor likely wanted to ensure that jurors were not biased toward "just feeling sympathy for this defendant."

The appellate panel rejected the government's justification for the prosecutor's actions. Berger, in the panel's Oct. 7 opinion, called the prosecutor's conduct "flagrant, glaring, and tremendously improper."

"She did not merely teach her theory of the case: she also obtained commitments from prospective jurors to find the library patron guilty," Berger wrote. "The prosecutor got every prospective juror with whom she spoke to agree that the library patron was guilty of theft, and, in some cases, that they would find someone guilty of theft if presented with similar facts."

On top of that, the prosecutor also misrepresented what the law required to find Kraaz guilty.

The panel reversed Kraaz's convictions and ordered a new trial.

The case is People v. Kraaz.

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