Jury Nullification

Denver D.A. Charges Another Activist for Promoting Subversive Ideas

Mitch Morrissey warns that Eric Brandt is still at large and may be armed with jury nullification flyers.


Denver District Attorney's Office

Last week I noted that Denver District Attorney Mitch Morrissey had charged a local activist, Mark Iannicelli, with seven felonies for the constitutionally protected activity of distributing pamphlets on jury nullification outside a courthouse. This week Morrissey announced the same jury tampering charges against Eric Brandt, Iannicelli's accomplice in this dastardly exercise of First Amendment rights. On July 27, Morrissey says, Brandt joined Iannicelli in "staffing a small booth with a sign that said 'Juror Info' in front of the courthouse and provided jury nullification flyers to jury pool members." The flyers reportedly included "All You Need to Know About Jury Nullification," produced by Jury Box, and "Your Jury Rights," produced by the Fully Informed Jury Association (FIJA). Morrissey warns that Brandt "remains at large," adding that "anyone with information about Brandt is encouraged to contact local law enforcement." Stop him before he informs again!

Denver District Attorney's Office

The statute under which Iannicelli and Brandt are charged makes it a Class 5 felony, punishable by one to three years in prison, 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 judging from Morrissey's allegations, Iannicelli and Brandt did not do that. The statement of probable cause against Iannicelli, which FIJA obtained and posted along with other documents related to the case, says "several jurors were contacted by Denver Police Intelligence Unit and found to be in possession of fliers handed out by the defendant." The criminal complaint lists seven charges of jury tampering, each tied to a specific "jury pool member" who received a flyer. (The names are blacked out.) Although the probable cause statement mentions that "a death penalty case [this one] was underway" at the Lindsey-Flanigan Courthouse when Iannicelli and Brandt were handing out flyers, there is no allegation that they were trying to sway jurors one way or another in any particular case. They were merely distributing general information about the rights and responsibilities of jurors. If Colorado's jury tampering law sweeps as broadly as Morrissey claims, it is plainly unconstitutional.

In 2012, as I mentioned last week, a federal judge in New York threw out a jury tampering indictment against Julian Heicklen, an activist who did almost exactly the same thing that Iannicelli and Brandt are accused of doing. U.S. District Judge Kimba Wood noted that a broad reading of the federal statute, which includes intent language similar to Colorado's law, would raise serious First Amendment problems "because of its potential to chill speech about judicial proceedings." She said "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." This principle, she concluded, requires a distinction between "efforts to influence the outcome of a case" and "the broad categories of journalistic, academic, political, and other writings that discuss the roles and responsibilities of jurors in general"—precisely the distinction that Morrissey is ignoring by prosecuting Iannicelli and Brandt.


While posing as a guardian of fair and impartial justice, Morrissey is seeking to imprison a couple of local gadflies because their message offends him. It's no mystery why prosecutors do not like the idea of jury nullification, which invites jurors to acquit lawbreakers if they believe the law or its application is unjust. Morrissey may sincerely believe that venerable doctrine is bad for the criminal justice system, but that does not give him the right to lock up people who advocate it.

If Morrissey thought prosecuting people for promoting subversive ideas would win him praise, he may be mistaken, judging from the reader comments below The Denver Post's story about the charges against Brandt. While one reader calls Brandt "another fine upstanding example of the lunatic fringe," the rest are unanimous in condemning Morrissey's blatant assault on First Amendment rights:

"This is a free speech issue about a fundamental element of the judicial system…"

"We have gone way too far when there are criminal charges for merely passing out literature!"

"The district attorneys who have caused charges to be filed and a man to be arrested for engaging in protected political speech—that is, educating people about [what he believes are] the rights of jurors—are engaging in a criminal conspiracy to deprive the speakers of their civil rights. 

"So this guy handing out pamphlets represents a 'clear and present danger'?…[Morrissey's] willingness to suspend 1st amendment principles to pursue a vendetta against a man whose only power is his voice is sickening." 

After Judge Wood dismissed U.S. Attorney Preet Bharara's charges against Julian Heicklen, NYU law professor Rachel Barkow told The New York Times, "I don't think sensible prosecutors should have even brought this case." Morrissey seems determined to follow Bharara's foolish, unconstitutional example.

NEXT: The Waiting Is the Hardest Part

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  1. I still wonder if the police are purposefully trying to get the most awful looking mugshots possible for these guys.

  2. This is what happens when you have no real checks on power. There are no personal repercussions to a judge or prosecutor who violate constitutional protections. There is little if any incentive for a judge or prosecutor not to overstep his authority and assault an individual’s personal liberties.

    1. But Morrissey has a much better looking picture! He must be pure, unlike riff raff like those violent pamphlet pushers! Stop attacking a fine upstanding man!

      1. I don’t think it would matter, but I would like to see these 1st Amendment nuts passing out pamphlets clean shaven and in a suit. Give them a mugshot that looks like Morrissey’s official head shot.

        1. In all seriousness though, they would probably get a more positive reaction from people if they were clean shaven and in a suit.


            Just ask Annie Lennox.

            1. Girls will go crazy for a sharp dressed man.

        2. They should look clean and presentable, but a suit might be too much. I wouldn’t want some D.A. to get the impression they are trying to look too “official.”

  3. Morrissey seems determined to follow Bharara’s foolish, unconstitutional example.

    Exactly what would be foolish about this for a prosecutor? There are no plausible repercussions, even if someone should obtain a video of him laughing and rubbing his hands like Mr. Burns while declaring “I know it is constitutionally protected speech, but buy gum I will make his life hell! That will stop these rabble-rousers and ensure that I will always win any case I choose to pursue!!!”

    The courts might even stand with him, just on team principles. If this has to proceed to federal court, they’ve already lost in the “who had worse repercussions” battle.

    1. That is exactly right, He doesn’t give two shits that this is unconstitutional and will be thrown out, because the process is the punishment, and Morrissey will face no consequences.

    2. Those guys are probably on the dope anyway.

      (sarcasm, just in case someone’s meter isn’t adjusted properly)

    3. If this has to proceed to federal court, they’ve already lost in the “who had worse repercussions” battle.

      Maybe the best answer would be a Constitutional amendment that would bar any official who brought a criminal case that was thrown out on Constitutional grounds from ever working in government again. Impose a cost on them.

      1. Maybe there should be a Constitutional amendment that protects free speech.

        1. I know. I get it.

          Thing is, what good does it do when prosecutors make the process the punishment? They can put people through hell. And by the time the accused’s rights are acknowledged, well, he’s bankrupt. And the prosecutors’ gone the next step up the ladder.

          1. The problem is having government judges judging government prosecutors. Their absolute immunity was dreamt up out of whole cloth by judges and has no basis in the constitution.

            The only solution is victim prosecution and only victim prosecution, which has the side benefit of eliminating victimless cimes; this includes hiring private judges for specific cases. Of course you have to allow guardians and power of attorney to prosecute on behalf of victims, you have to allow prosecution of judges for violating their contracts, and you have to allow juries to judge the entire incident, not just specific charges, so they can also find the plaintiffs guilty when appropriate.

          2. It does a lot of good. For the prosecutor.

      2. What is needed is not another law, but the repeal of whatever law is the basis of the “limited” immunity granted to cops and prosecutors. Remove that and swine like this will end up in jail, where they belong.

        1. Limited immunity, qualified immunity, absolute immunity.
          That is the problem. I suggest a civil bond required of all public employees with law enforcement authority.
          The cost might even be picked up by their jurisdiction. But if a civil suit is brought against them, the bond must be used for their defense, like a deductible first. Not paid for by the the public pocket. Then the bad seeds (employer) will see ever increasing bond insurance prices and the very bad will be priced out of the market.
          Wake me up when it’s over.

    4. Hey Cosmos.

      Look on the bright side.

      Preet is one of those immigrants that is enriching the American experience.

      1. What we really need is a wall to keep out wealthy and educated expats and their one-year-old progeny. That will surely make this country a better place.

  4. Notice he piled on the charges ,looking for a plea deal I bet.This is how ‘justice’ works mow.

  5. “..After Judge Wood dismissed U.S. Attorney Preet Bharara‘s charges against Julian Heicklen”
    Preet Bharara.. Preet Bharara.. Where have I heard that name before? Hmmmm…

    1. Indicted Sheldon Silver and Dean Skelos on corruption charges. Chased reason with baseless subpoenas and an unconstitutional gag order. Looks like a troll doll who cut its hair.

    2. Indeed: Bharara has become one of those murky, insidious people that seems to pop up on the questionable side of things.

      1. I’m in a quandry because he’s also the only one making headway against the legislature in New York. While it is to feed his own ambitions, getting convictions against these corrupt legislators still has some value.

        1. Bullshit.

          Everybody hates political corruption, but the tools used in ‘fighting corruption; always work against outsiders and further entrench the establishment.

          1. How is “he’s the only one actually doing anything thereby putting me in a bind regarding the fact he’s a horrible person” bullshit or related to the rest of that statement. As far as I can tell none of these prosecutions rely on any special tools or anything beyond simple investigation. (NY Pols are brazen and arrogant in their actions, so thye do a crap job of hiding their corruption)

  6. So what if the judge doesn’t like the idea of jury nullification? It is legal, so he needs to deal with it.

    As for jury tampering, I can’t believe he does not get it that it means threatening or intimidating a juror so that some gangster either gets off or a patsy gets convicted in his place. No way the law applies here, which means this effort falls under the “misapplication of a law” portion of the jury nullification process.

    1. Tampering also probably includes handing jurors “evidence” that was not approved and presented in court.

      So if a serial killer murdered your kid and the judge excluded the other 15 bodies they found in his basement, you couldn’t show up at the courthouse with a big poster of the mutilated corpses and a sign that says “he killed all these kids too!”

      I chose that example because it is also a free speech situation that would likely not be protected under the first amendment – but only when speaking to the members of the jury.

      1. It’s still an example of judicial over reach.

      2. I would think that tampering, as in your example, means giving specific information to specific jurors regarding a specific case, as opposed to giving general information to all jurors regarding all cases.

  7. Funny how just the mention of nullification around any courtroom, judge or prosecutor, immediately has smoke coming out of their ears.

    Jury nullification has these people scared to death, for all the right reasons.

  8. I wonder if the judge/DA would be ballsy enough to refuse to admit the pamphlets into the trial for tampering.

    “Ladies and gentlemen of the jury, there is no need to see the exact evidence of what was provided. Instead just trust this humble prosecutor that it was dangerous material!”

    1. Nah. I’m sure they could weed out any potential jurors who would look at the pamphlets as anything other than blasphemy against their “The Law Is The Law” religion.

      1. As the ancient clerk deliberately folded and superscribed the note, Mr. Cruncher, after surveying him in silence until he came to the blotting-paper stage, remarked:

        “I suppose they’ll be trying Forgeries this morning?”


        “That’s quartering,” said Jerry. “Barbarous!”

        “It is the law,” remarked the ancient clerk, turning his surprised spectacles upon him. “It is the law.”

        “It’s hard in the law to spile a man, I think. It’s hard enough to kill him, but it’s wery hard to spile him, sir.”

        “Not at all,” returned the ancient clerk. “Speak well of the law. Take care of your chest and voice, my good friend, and leave the law to take care of itself. I give you that advice.”

  9. Morrissey may sincerely believe that venerable doctrine is bad for the criminal justice system, but that does not give him the right to lock up people who advocate it.

    No, what gives him the “right” to lock people up is the government claiming the exclusive authority not only to punish violations of NAP, but then inventing a new authority claiming to be the only “legitimate” force than can violate NAP with no repercussions.

    Also, as the only “check and balance” here would be the judiciary, and the judiciary gets all its power from an uninformed jury, there is metaphysical certainty that no professional court would stand up for the 1st amendment here.

    An aside, I wonder how you are supposed to plead to the charge of “contempt of court” if the court is indeed contemptible?

    1. Oh, I forgot that the other thing that gives them this “right” is guns. They have lots of guns and evil/stupid people who will use them.

  10. Morrissey remains at large …

  11. Remember to charge the Denver DA with malicious prosecution after this is struck down, guys.

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