Jury Nullification

Denver Activist Arrested for Passing Out Pamphlets, Which Apparently Is a Felony in Colorado

Mark Iannicelli could go to prison for advocating jury nullification.

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Denver District Attorney's Office

Last week Denver District Attorney Mitch Morrissey charged a local political activist, Mark Iannicelli, with seven counts of jury tampering, a felony punishable by one to three years in prison, for handing out pamphlets in front of the Lindsey-Flanigan Courthouse. Morrissey's office says "Iannicelli set up a small booth with a sign that said 'Juror Info' in front of the courthouse and provided jury nullification flyers to jury pool members." According to the Fully Informed Jury Association (FIJA), Iannicelli distributed a FIJA brochure explaining that jurors have a "right to judge the law itself and vote on the verdict according to conscience," along with "a flyer from another organization."

You may wonder how threatening someone with prison for passing out political literature can possibly be consistent with the First Amendment. The short answer is that it's not. The longer answer is that local and federal officials periodically harass activists like Iannicelli under the pretense of preventing unlawful interference with jury deliberations. The statute cited by Morrissey makes it a Class 5 felony to "communicate with a juror" outside of judicial proceedings with the intent to influence the juror's "vote, opinion, decision, or other action in a case." But Iannicelli was not trying to affect the outcome of any specific trial at the courthouse. He was merely passing out pamphlets with general information about the rights of jurors.

A few years ago, as FIJA points out, U.S. District Judge Kimba Wood ruled that such activity does not qualify as jury tampering under federal law. The case involved Julian Heicklen, a retired chemistry professor who distributed FIJA pamphlets near the entrace to the federal courthouse in Manhattan while holding a sign that said "Juror Info." Heicklen was accused of violating Title 18, Section 1504 of the U.S. Code, which authorizes a jail sentence of up to six months for anyone who "attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter." Kimba concluded that Heicklen's general advocacy of a jury's right to judge the law as well as the facts of the case before it, a.k.a. jury nullification, did not violate this statute, which "criminalizes efforts to influence the outcome of a case, but exempts the broad categories of journalistic, academic, political, and other writings that discuss the roles and responsibilities of jurors in general."

Wood added that "a broad reading of 18 U.S.C. § 1504 could raise First Amendment problems because of its potential to chill speech about judicial proceedings." She observed that "the relevant cases establish that the First Amendment squarely protects speech concerning judicial proceedings and public debate regarding the functioning of the judicial system, so long as that speech does not interfere with the fair and impartial administration of justice." Wood said First Amendment concerns reinforced her conclusion, based on "the plain meaning of the text" and the history of its interpretation, that "a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror's duties by means of written communication made in relation to a specific case pending before that juror or in relation to a point in dispute between the parties before that juror."

Wood's First Amendment concerns were not at all fanciful, as illustrated not only by Heicklen's prosecution but by the astonishingly broad view of jury tampering advocated by Preet Bharara, the U.S. attorney for the Southern District of New York. In a brief supporting their case against Heicklen, Bharara's underlings claimed that "advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred." As George Washington University law professor Paul Butler pointed out in a 2011 New York Times op-ed piece, that position makes a criminal out of him and anyone else who dares to write favorably about jury nullification.

It's safe to say that respect for freedom of speech is not a high priority at Bharara's office. But Morrissey, who claims to be enforcing a Colorado law with specific intent language similar to the federal statute's, may want to reconsider his prosecution of Mark Iannicelli for doing essentially the same thing that Julian Heicklen did, which was clearly protected by the First Amendment. Lawyers reportedly were eager to represent Iannicelli, presumably because his constitutional claim is so strong. And if Iannicelli's case ever goes to trial, FIJA's Kirsten Tynan notes, prosecutors will face an additional challenge in making their case. "If it did go before a jury," she writes, "one would imagine that the FIJA brochure and other flyer would be evidence that would be presented to the jury, thereby fully informing every juror of their right to vote Not Guilty for any reason they believe is just."

[Thanks to Mark Sletten for the tip.]

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  1. Preet Bharara is the sound made when bone and flesh first enter a wood chipper.

    1. I’m starting to lean towards burning at the stake ..

      1. A wood stake, perchance?

        1. We’d better burn it, THEN chip it from orbit, just to be sure.

      2. Governor: “You may choose the manner in which you will die!”

        Larry: “Oh, that’s easy: old age! Ha, ha, ha, h…” *SLAP! (from the guard)*

        Moe: (to the guard) “Thanks!”

        Governor: “You have your choice ? you may have your heads chopped off, or you may be burned at the stake.”

        Curly: “We’ll take burning at the stake!”

        Governor: “Very well. We’ll toast them Monday at sundown.”

        Moe (angrily): “What did you pick ‘burning at the stake’ for?!”

        Curly: “Cause a hot steak is better than a cold chop!”

    2. I lol’d.

  2. …advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.

    Is it clear to everyone that jury nullification itself is not only a right but an obligation to jurors? I have read that jurors who make it known they engaged in the practice can find themselves in trouble with the court.

    1. Nothing is more offensive to the sustem then people that know their rights.

    2. It’s settled law that jurors sit in judgement not only of the facts of the case at hand, but of the law itself. It’s really not even debatable anymore. Still, judges and prosecutors feel that interpretation of the law is their exclusive province, and that slack-jawed mundanes who presume to shoulder that responsibility for themselves must be swatted down.

      The only case that comes to mind of a juror being punished for nullifying is that of Laura Kriho. After refusing to convict a young woman for meth possession (she was the lone holdout), a fellow juror reported her to the judge for sharing with the court that she was in favor of jury nullification. As I recall, they charged her with having failed to disclose during voir dire that she had a previous drug conviction herself (even though that question had never bene asked).

      1. It’s settled law that people can record cops, yet people get arrested for it all the time.

        Too bad it’s not a crime for cops and prosecutors to illegally arrest and illegally charge people for non-crimes.

        1. And it’s settled law in some states that you have the right to resist such an unlawful arrest. Attempting to assert that right, of course, will most likely get you murdered. Which is simply proof that our rulers don’t respect the law (settled or not), but only their own power.

  3. I wonder how many mugshots they took and what they were saying to him to get a picture with such a crazy looking expression on his face.

    I also wonder if he was wearing that same stained t-shirt when he was handing out flyers or not.

    1. I came here to point out that publishing mug shot photos is akin to sucking state cock.

  4. If a juror believes that the statute under which the state tries a given defendant is oppressive, unjust, or unconstitutional, it is the sacred and unambiguous moral obligation of that juror to vote against conviction. Bharara’s insistence that slavishly adhering to the prescriptions of statutes without externally scrutinizing their validity annihilates a jury’s independence, defeats the foundational purpose of prosecuting individuals before a jury of their peers, and furnishes government with a mechanism — if juries abide by Bharara’s word — to conduct politically motivated sweeps of particular populations, considering that prosecutors can be certain of convictions when people violate tyrannical dictates.

    Preet Bharara is an oathbreaker and a criminal degenerate. His persecutory antics are worthy of the Stasi.

    1. Stasi — I have not jeard of that brand of woodchipper. Pray tell, where might one obtain repair manuals?

      1. They manufacture industrial woodchippers capable of producing turd-shaped chips, which would be a perfect visual representation of Bharara’s moral bankruptcy.

    2. *insistence that jurors slavishly adhere —

  5. Anything that the legal system hates and fears this much must be a good idea.

  6. Isn’t Mark Iannicelli a character on The Young and the Restless?

    1. No, no – I think that’s VINCE Iannicelli.

  7. And OJ’s STILL looking for the Real Killers?.

    “There is no justics. There’s…..just us….”

    SOLID

  8. Man, nothing more threatening to the populace than someone PASSING OUT LEAFLETS. When the allies didn’t want to hurt people in WWII, they bombed them with LEAFLETS.

    Tru fact: A “Leaflet” is also a young Taranah Maple Leafs fan*.

    *not a true fact

    1. Indeed. That is Israel’s true war crime: dropping leaflets to let the Palestinians know when and the bombs were coming.

  9. AND WHERE’S MY GODDAMNED TRUMP NEWS, REASON? ITS NEARLY EIGHT GODDAMNED AM EASTERN TIME, AND I WANT SOME TRUMP, AND I WANT IT YESTERDAY!!!!

    CHOP CHOP, PEOPLE!

    1. FOX made a bid for the losers debate. It was…

      (dons shades)

      …7 no Trump.

    2. It’s coming right after the gay marriage story. Patience!

  10. They know that what the guy is doing is not illegal, and they know they can’t convict.

    The process is the punishment.

    1. Yep. But for the love of all the gods, can’t we find ANYONE to push these issues who doesn’t look like a psychopath or a fucking pederast?

      1. *looks in the mirror*

        Count me out.

      2. I grant you, he does not look like someone you want to see sitting on a bench watching your kids play in the park. But, he’s doing good work out there and he’s taking a hard one for the team, which is more that can be said for most of the rest of us. My hat’s off to this guy, and I hope this whole debacle is behind him soon.

      3. Googling a little bit, I found an image of him protesting the Denver PD for the murder of a kid named Valverde. That was why he was on the cops radar. He looks pretty normal in the photo. My guess is he got a little roughed up on the way to the station. Would link, but I’m on iPhone.

        Google the guy.

      4. Most causes, just or nuttier than squirrel shit, have the disenfranchised at the spear tip. Probably because they have the free time. It makes even sensible causes difficult to sell and easily made sport of by opponents. Fortunately things are getting so bad that the middle class is starting to get mobilized (tea party, at its inception anyway). Once the well dressed and groomed mundanes make time for protestations there might be some changes in perception of the causes for freedom. This is where the apparatchiki are making mistakes – they don’t have the pulse of the middle class properly understood.

    2. “They know that what the guy is doing is not illegal, and they know they can’t convict.

      The process is the punishment.”

      Yes, and it seems that ‘ol Preet is particularly fond of this tactic. What a shitbag.

  11. Schenck v. United States during WW1 was about handing out leaflets, that was where Oliver Wendell Holmes came up with the quote “falsely shouting fire in a crowded theater”. He was pulling this quote out of his ass since nothing in the case was about anything being false, or shouting or fires or theaters crowded or not.

    But he probably could not come up with any legal justification for supporting the suppression of peaceful speech so he made things up about fires and theaters

    1. And Screws vs US is what keeps us from putting cops who do this in General Population to be beaten and raped by the other prisoners. “Specific Intent” is a very high bar. Too high, given that cops seem to think they can get away with shit.

      1. “…cops seem to think they can get away with shit.”

        They only think that because it is true.

  12. “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.”

    Oh, really?

    How does one become a US attorney? Is it like joining the Mau Mau? You have to perform human sacrifice and bestiality to prove your depraved nature?

    Woodchipper. Feet first.

  13. There is no way in hell they are going to try this guy. If they did I would bet they would try to exclude the pamphlets and the substance of his advocacy. These fuckers are that arrogant and depraved.

    “This guy is guilty of doing something. Trust us. He is guilty. Convict him, or else.”

  14. [Thanks to Mark Sletten for the tip.]

    Who is Mark Sletten? I posted this in yesterday’s PM Links:

    https://reason.com/blog/2015/08…..nt_5490370

    =(

    1. I barely understand any of that PUA stuff, but i think you’ve been “negged”?

  15. I am a big fan of jury nullification. I refuse to convict on any law that isn’t fairly adminiitered across all segments of society. That includes most drug laws, traffic laws or an 18 year old having sex with his 17 year old girl friend. I believe all laws should be thrown out unless we the citizens have a right to vote on them.

  16. The process is the punishment. Or, in cop vernacular, you can’t beat the ride.

    Denver District Attorney Mitch Morrissey… TO THE CHIPPER!

    1. Oh, you’re in deep doo-doo now!

  17. “According to the Fully Informed Jury Association (FIJA), he distributed a FIJA brochure explaining that jurors have a “right to judge the law itself and vote on the verdict according to conscience,” along with “a flyer from another organization.”

    Telling people to exercise their conscience?

    But if people start believing that what they think matters in the jury deliberation room, they might start thinking they should be free to do as they please–outside the courtroom, too.

    And we can’t have people running around doing whatever they please so long as they don’t violate someone else’s rights. That might lead to heavy petting, the end of the drug war, and the end of all that’s good and holy!

  18. So if this guy were to make it all the way to trial (I realize there isn’t much of a chance of that happening since no real crime was committed here), I would love to see what the prosecution would do when it comes time for the jury to see the pamphlets in evidence that he was passing out.

  19. “Wood’s First Amendment concerns were not at all fanciful, as illustrated not only by Heicklen’s prosecution but by the astonishingly broad view of jury tampering advocated by Preet Bharara, the U.S. attorney for the Southern District of New York. In a brief supporting their case against Heicklen, Bharara’s underlings claimed that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.”

    This guy again?!

    That’s the same guy that came after Reason, isn’t it?

    He’s a menace to society! He’s certainly a menace to the First Amendment.

    There should be some kind of congressional inquiry into Bharara’s antics. He’s waaaaaaaaaaaaay out of control.

  20. Id be interested to see if the accused gets to explain to the jury exactly what jury nullification is as part of his defense. I would assume not, but it probably depends on the judge.

  21. Also, who is shithead brahara’s boss? Can we send a complaint in? I know malice and evil are qualities of US attorneys, but we can word our complaint as incompetence. Clearly his copy of the Constitution does not contain the first amendment

    1. His current boss is Loretta Lynch. His former boss was Eric Holder. ‘Nuff said?

  22. Love that last sentence! Irony is a bitch.

  23. The government of Colorado surely would have arrested some of our founding fathers for their pamphleteering. Colorado has truly dismissed the 1st Amendment.

  24. Just another example of the ever increasing police state that America is becoming. The law does not equal justice.

    1. “Just another example of the ever increasing police state that America is becoming has become.

      Fixed.

  25. Was the prosecutor clever enough to ensure the pamphlets were seized without a warrant, thereby making them inadmissible in court? Fortunately for our defendant, they were probably out in plain sight and therefore a warrant may not have been necessary.

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