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!
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.
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