Jury Nullification

Jury Nullification Activists Sue Denver Over Unconstitutional Arrests

FIJA says banning its pamphlets near courthouses violates the First Amendment.



In recent weeks, as I've noted here, Denver police have arrested two local activists, Mark Iannicelli and Eric Brandt, for exercising their First Amendment rights by passing out pamphlets about jury nullification in front of the Lindsey-Flanigan Courthouse. Yesterday two other activists, joined by the Fully Informed Jury Association (FIJA), asked a federal court to issue an injunction against this unconstitutional harassment, which they say has had a chilling effect on their plans to distribute the same literature in the same place. "It is hard to conceive of a bigger deterrent to free speech than the threat of immediate arrest, prosecution and incarceration," says Denver attorney David Lane, who also represents Iannicelli and Brandt, in his motion for a preliminary injunction, which names Denver Police Chief Robert White and the city and county of Denver as defendants. "The Defendants presently before this Court are attempting to do what oppressive governments have sought to do from time immemorial: suppress ideas they find unpalatable."

Denver District Attorney Mitch Morrissey charged both Iannicelli and Brandt with seven counts of jury tampering, a felony punishable by one to three years in prison. That offense consists of attempting 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." Yet neither Iannicelli nor Brandt is accused of trying to influence the outcome of any specific case. All they did was distribute general information about the rights of jurors, especially the right to judge the law as well as the facts of a case. The seven counts of jury tampering are based on nothing more than pamphlets received by seven jury pool members.

"The Defendants are using the Jury Tampering statute as an excuse for squelching free speech," Lane writes. "The Defendants are fearful that the message of jury nullification may take root in the minds of sitting jurors who would then ignore the instructions of a court and acquit criminal defendants despite their having been proven guilty at trial beyond a reasonable doubt."

The arrest affidavits for Iannicelli and Brandt both mention that a death penalty case was under way at the courthouse on the day they passed out FIJA pamphlets: Dexter Lewis was on trial for stabbing five people to death at a Denver bar in 2012. But there is no evidence that either man knew about the trial, let alone that they were trying to affect the outcome. "They weren't talking about any particular case, and they didn't even know the Dexter Lewis case was in the building," Lane told Westword. "They'd never heard of the Dexter Lewis case. They were giving this literature to anyone who was walking by, educating people about various rights and powers they have. And that's all they were doing."

In his motion, Lane notes that the one federal ruling to address the propriety of punishing people for such activity warned that a broad definition of jury tampering "could raise First Amendment problems because of its potential to chill speech about judicial proceedings." In that case, U.S. District Judge Kimba Wood threw out a jury tampering indictment against Julian Heicklen, a New York City activist who did almost exactly the same thing that Iannicelli and Brandt are accused of doing. Wood said First Amendment concerns require 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."

The chilling effect that Wood foresaw is happening right now in Colorado. The two activists seeking the injunction, Eric Verlo and Janet Matzen, would like to pass out FIJA pamphlets at the Denver courthouse but are understandably worried that they will be arrested if they do. According to the complaint filed by Lane, "FIJA intends to hold an educational campaign in Denver on September 5, 2015, where its members wish to pass out the same brochures on the Lindsey-Flannigan plaza as Eric Brandt and Mark Iannicelli were passing out, which caused them to be arrested."

Lane notes that the plaza outside  the courthouse "is commonly used for other peaceful protests and demonstrations." By singling out jury nullification activists for proscription and punishment, he says, the city and county are engaging in "de facto prior restraint" that censors speakers based on the views they express. "It is plain that Plaintiffs have a fundamental First Amendment right to express and explain their views in a public forum, and that citizens and passersby have a constitutionally protected right to peaceably assemble to hear those views, and to express their views in agreement or dissent," says the motion. "The First Amendment requires that the Defendants must allow the public forum to be used by Plaintiffs, notwithstanding the likelihood that Denver officials will disagree with the message being stated, notwithstanding the possibility that some who hear his speech may be made uncomfortable by it, and even assuming that some listeners may respond inappropriately or disruptively."

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  1. So the punishment for unconstitutional arrest is to be told to stop? Nice work if you can get it.

    1. God I hate Denver slavers. I wish they would fuck off.

    2. The constitution really needs an enforcement mechanism.

      1. * Cartman rides up on a Big Wheel? with a nightstick and wearing mirrored sunglasses *

      2. It has one. Anything you can win a 42 USC 1983 lawsuit for is also a criminal act under 18 USC 241 & 242.

        But federal prosecutors have ‘discretion’ on whether they file charges under the enforcement mechanism, and somehow they just don’t feel like doing it 99% of the time. The government agency that is supposed to investigate constitutional violations doesn’t seem to be very interested in investigating either (FBI).

        All the laws in the world won’t help when the real problem is corrupt officials.

      3. Well, there is Rule-7.62!

    3. Actually, the punishment for unconstitutional arrest is ten years in federal prison per unconstitutional arrest (18 USC 241).

      Odd, isn’t it, how corrupt officials never seem to charge other corrupt officials with crimes?

      1. The First Amendment right to free speech is not an absolute.
        Advocating anarchy, such as individuals basing a court verdict on if a law is “just”, which is what “jury nullification” is, is not protected free speech any more than inciting to riot, sedition, or just, plain falsely yelling “fire” in a crowded theater.
        And if anyone, here, thinks any court will support your right of free speech to advocate nullification of the laws, in a trial, they are as deluded as those who think libertine-arianism will ever be a mainstream concept.

      2. Under Screws v US, you have to have specific intent to willfully suppress constitutional rights under color of law. A bar that is well nigh impossible to clear.

        Congress could grow a pair of balls and pass a bill making 18 USC 241 and 242 strict liability, but they won’t.

    4. This is why I wish Congress had the balls to negate Screws v US. Police departments should be sued only after the officers are put in prison. And these officers, and those who gave the order to arrest, belong in prison.

  2. Doesn’t matter. Even if the police and city lose in court, they’ll continue to illegally arrest people for handing out literature just as they continue to illegally arrest people for recording them. Liberty and justice is dead.

    1. Of course they will. Lets say everything goes against them here. The criminal case is thrown out, and the city settles/loses the ensuing Section 1983 lawsuit. The police/prosecutor involved still won’t face any consequences. There’s nothing that would make them *not* want to do this.

        1. Ask Chicago how that’s coming along.

          1. Chicago’s a special city corrupt to the bone entirely populated by lackwits.

            1. Maybe impeachment or recall of the DA (don’t even know if that is possible in CO).

              I should call my local rep in Denver, but don’t know how the libs feelz about this.

      1. Solution: Anything that is a civil tort under Title 42, Section 1983 is a criminal offense under Title 18, Section 242. Make citizen’s arrests.

        I’ve never found any law, anywhere, that says citizen’s arrests can only be made for state or municipal law violations. The only distinctions I’ve ever found are limits regarding misdemeanors or felonies that such an arrest can be made for — and if the government can consider a crime a felony based on a penalty of N years in prison despite the law never mentioning the word felony, why can’t the general public do the same?

        1. Something defective in my brain makes me think of Gomer Pyle shouting “Citizen’s arrest! Citizen’s arrest!” in an old Andy Griffith Show episode, every time I hear that phrase. There aren’t too many dots to connect from there to the image of Barney Fife pulling his single bullet out of his shirt pocket. If only today’s crop of jackboots could be more like Don Knotts.

        2. Unfortunately, not.

          Section 1983, civil tort is decided on a preponderance of evidence.

          Sections 241 and 242, criminal violations, require both willful and specific intent to violate civil rights (a higher standard that mens rea) as well as the standard beyond reasonable doubt.

          You can’t equate the two. That’s why suing the assholes has a better chance of success, though I agree that these pigs should be the subjects of a nightly blanket party in their cell block.

    2. Nothing is going to change until Peter Stormare starts feeding DAs through the wood chipper.

      1. ** sly reference to pop culture (i.e., movies)

        1. Is that movie reference from a comedy, because it sure doesn’t seem funny to me!

          1. Was Fargo a comedy?

    3. Please, voluntarily join them.

    4. Strict liability for civil rights violations would help. Put these cops in jail to get raped and take a knife in the back from other prisoners, and other cops will be less willing to carry the DA’s water. Put the DA in jail, and that might solve the problem completely.

      1. And if it doesn’t, chipper time.

  3. If the law is just and the evidence is good, you shouldn’t need to worry about jury nullification. After all, if you’re not guilty you’ve got nothing to hide, right?

    1. We know they’re criminals. The trial is just a formality when the plea deal falls apart. It’s more of a preliminary sentencing hearing.

  4. “Makin’ their way, the only way they know how. But that’s just a little bit more than the law will allow.”

    1. Oh, I knew you libertarians would be confederate-flag supporting racists!

      1. The flag kerfuffle made me recently watch episode 1 of season 1 of my favorite show as a kid. I think that is where the libertarian seed got planted. One of the most libertarian shows of all time. No way anything like that gets put on prime time network TV these days.

        “Straightenin’ the curves, flattenin’ the hills, someday the mountain might get ’em, but the law never will.”

          1. Never seen it, looks promising.

            1. Somehow I got spinal meningitis
              Injecting all that hairspray in my spine
              It’s a super cheap way to party
              If you aim to kill some brain cells and some time

              1. I gave all my best years to that woman,
                all she gave me was mouths to feed.
                It’s a miracle straight from the loins of Jesus,
                since Charlie blew off both my testes.

  5. I can see the argument that they are communicating with jurors in secret, without the state being allowed to cross examine.

    However, the solution is better juror education through a fair-balanced presentation. But that’s just how Pharma does it.

    1. Yeah, when I want to communicate with somebody in secret, I do it on the courthouse steps.

  6. OBEY

  7. Bad PR from legal fees?
    I believe common practice is to incorporate a gag order and no admission of guilt in the settlement agreement. Legal fees will be buried on the city’s budget as operating expenses.
    Somebody, somewhere, might ask, “Hey- what ever happened with those jury wackos?”
    And nothing else will happen.

  8. Social conservative wants you to know that when you see kids on their cell phones in public, they aren’t talking to their friends, they’re allowing their souls to be enervated by pornography.

    Let’s start with phones. Today’s teens aren’t just “talking” on their phones. They are looking at pornography. Or sending naked pics to each other that magically disappear within seconds on Snapchat. Or sending each other sexually explicit texts. More than half of boys age 14-17 have viewed porn on their mobile phones. One in four teenagers has sent a naked picture of themselves over a mobile device; 68 percent of teenage girls have been asked to send a naked picture over their cell phone.

    Blume wouldn’t censor porn?the way the UK just decided to with the particularly violent kind?because she thinks that porn can be “healthy” for adults. But here she demonstrates her na?vet? again.

    1. We know that pornography affects the brain in the same way as a drug like cocaine. It’s addictive and decreases male libido, for real women anyway. As Davy Rothbart, a former porn addict, put it in New York magazine, the chemical process involved in viewing porn easily leads men to “develop a neurological attachment to it. They can, in essence, date porn.” This is not something conservatives made up. Check out Joseph Gordon-Levitt’s movie Don Jon for the Hollywood take on the harmful effects of porn

      Yeah, when I see a naked, real life woman in front of me, my first thought is ‘goddamn, I wish I were watching porn instead.’

      1. Unclear why it’s a bad thing that the sort of person who’s liable to become addicted to his own perversions has a harmless outlet online. “Here is a man who’s so caught up in his sexual angst that he habitually cranks it to images online when he should be out trying to get married.”

        1. It’s like you want humanity to die off.

      2. Granted, I enjoyed the lady’s apparel section of the Sears catalog more than going to Sears in my teens.

          1. He was only a teenager, so prevert.

      3. Stupid example given, but there is more and more evidence of a real effect.

        The easy, early access to lots of porn causes problems. Its not like running across a playboy rarely like back in my day.

        Its no different than virtually anything else. A little may be good, but a lot is abuse and can cause issues.

        Pot, booze, sex, porn, food, whatever.

        1. Likely true, but who’s in a better position to deal with it, the parents or the police?

        2. I haven’t seen any compelling evidence regarding these supposed deleterious effect. I’m sure using anything to excess might be bad somehow, but that’s not an argument against porn, it’s an argument against everything.

          1. There’s a couple of oft-cited studies (here and here) that have found some correlations, but no conclusive causation, between porn use and certain changes in brain response. A minority of people seem to have a unique ability to get themselves “addicted” to any number of things, porn included. It’s probably more the case that people with such a predisposition will have a problem with whatever particular indulgence they prefer, whatever it may be.

            it’s an argument against everything.

            Feature, not a bug.

        3. I’m sure it changes how people see and deal with sex and sexuality. But I don’t see a lot of evidence that the changes are particularly negative outside of people who develop real addictive behaviors around porn.

      4. As with drugs (and pretty much anything else, really), there are certain people for whom porn can become a problem. But even the most biased sources (a strange joint venture between the religious and radfems) with the scary graphs and charts about how porn “rewires” your brain seem to agree that simply abstaining for a few weeks is sufficient to “recover”. The whole “nofap” movement is (fanatically) dedicated to the concept.

        1. The whole “nofap” movement

          Wait…what? I know I have been out of it for a couple weeks…but this is a thing/movement/whatever?!

          1. I believe it’s call the Catholic Church.

            And it’s *everywhere*, man….

          2. There’s a big reddit community, like a support group. “Get a new grip on life.” The threads are pretty funny if you enjoy a bit of cringe.

            1. “Get a new grip on life.”

              There was something observed right there

            2. It’s even outgrown Reddit into its own site.

            1. I’m going to assume a lot of these people have or will eventually develop a closet edging fetish.

            2. Without the benefit of context, it would be impossible to tell if this were pro-fap or anti-fap.

          3. Everything old is new again. Kellogg’s Corn Flakes and Graham Crackers were part of a diet designed to discourage masturbation.

      5. I’ll concede that, even at the age of 30, I find it very difficult to understand the “kids these days.” This stuff existed when I was a teen, however, and the idea that ANYONE would choose a website over an actual women is complete nonsense.

        1. I find it very difficult to understand the “kids these days.”

          Give it a few more years.

          1. In my mid-40s I literally don’t understand half of what “kids these days” say. As in, a gaggle of them are talking on the train and I cannot make sense of the words coming out of their mouths.

    2. It must be exhausting to be such a prude. Just as exhausting as seeing racism or misogyny in every action.

      Kids are seeing each other’s genitals!

      1. I like the outright call for porn censorship. There’s no way that arresting people for watching full grown adults engage in sex acts could end badly.

    3. The solution, obviously, is to send them to jail

  9. Is this part of the libertarian moment NIck keeps prattling on about?

    1. You mean the part where people are advocating that jury members nullify onerous laws and then sue when they are arrested under flimsy pretenses? Seems pretty libertarian to me.

  10. I don’t see any court ever letting these guys keep exercising their 1st amendment rights. Why?

    Institutions always seek to preserve or increase their own power.
    The idea of jury nullification reduces the court’s power.
    Therefore, the court will never allow the idea of jury nullification to be spread if they can stop it.

    The only problem here is with my premise, which is to say that every now and then you get an honorable person in the court… but it’s very rare.

    BTW, any logic to explain their ruling will be secondary. The result is set first, then they try to explain it.

  11. With a weird perversion of language, “juries must follow the law” has come to mean

    -jurors must adopt a judge’s interpretation of the law, even if the judge’s interpretation is wrong

    -In the event of a conflict between the positive law and “the laws of Nature and of Nature’s God,” the positive law prevails, just as the Founders intended!

    1. (that last phrase was sarcastic)

    2. Uh well that second one seems reasonable since there are no laws of nature governing human action and there is no god.

      1. Uh well that second one seems reasonable since there are no laws of nature governing human action…

        Laws of Physics count. Laws of economics are also immutable.

        …there is no god

        You’ve proven a negative? Congrats… I guess.

        1. So laws requiring physical impossibilities are right out. Seems smart.

          I’d like to mention that it is possible to prove negative statements. What you can’t do is to scientifically demonstrate the non-existence of a thing.

          1. I’d like to mention that it is possible to prove negative statements.

            True, though he has done neither.

    3. Yeah, when I read about court cases in the news there is typically a lot of write up on how the judge instructs the jury on how they are supposed to interpret the law, etc, etc.

      If the law is that unclear it’s not even jury nullification, it’s just doing what the legal establishment has been doing for decades in perverting the law.

  12. OT: A follow-up on the Texas judge who ordered a man to marry his girlfriend and write Bible verses. Not sure if this has been posted yet, but a complaint was filed.

  13. As I have related previously, my one call for jury duty ended with me getting bounced. The questionnaire included a question I decoded as, “Do you promise to vote to convict the defendant?”
    I left it blank.
    When asked about that, I told the prosecutor, “Well, there are a lot of dumb laws on the books.” I was as good as gone, as soon as I said that.

    1. I’m dealing with jury selection now. I don’t mind serving, but I won’t miss class for it.

    2. If I’m ever called for jury duty I fully expect it to result in a contempt of court charge against me, which would be only marginally worse than serving on a jury.

      1. Last time I went I told them I thought convicting people for using cocaine was stupid and didn’t even think small trafficking was that bad. I was off soon after.

      2. Last time I went I told them I thought convicting people for using cocaine was stupid and didn’t even think small trafficking was that bad. I was off soon after.

      3. I’ll start the questioning with “I want to be Mirandized. I am here under threat of prison for the sole purpose of being a rubber stamp for the conviction already ordained by the judge and prosecutor. Non servam.”

    3. Getting off misses the point; you were replaced with someone more pliant. That did nothing to fix those dumb laws.

  14. It’s our civil and moral duty to refuse to convict people under unjust laws. One point of the jury, at least in theory, is that it symbolizes society’s consent to the proceedings; these twelve people agree that the defendant should be punished for his actions.

    I’m 100% pro-jury-nullification. Being an attorney, though, I will never be selected to serve on a jury.

    1. Who gets to decide if a law is “unjust”?
      Anarchy results if everyone gets to decide what laws are just and which ones aren’t.

      What if your wife/daughter/close relative was killed in broad daylight, witnessed by dozens of people and you got one libertine-arian, who decided the laws against murder were “unjust”.
      Would you still be 100% in favor of “nullification”? All it takes is one to let the guilty go free.

      1. Please sir, you are retired and fifty something. Have a cocktail on the porch and give it a break.
        What if?

    1. *barf*

    2. You’re terrible. What if that were someone’s daughter?

      1. Clintons reproduce by fission, like all bacteria.

          1. I thought Taylor Swift was Crusty’s stalking target?

            1. Honest question: Tay Sway for a night, or Anna Kendrick? Swift has the body and the face, unquestionably, but Kendrick sounds like loads more fun.

              1. Anna Kendrick probably wouldn’t write a self-pitying song about it, so there’s that.

              2. For some reason I think Swift would be a bore.

    3. She’s a National treasure.

      1. Good, lets bury it.

    4. You are a national treasure CJ.

  15. This Denver District Attorney is a dark one. I remember years ago as kid sitting in a pew absorbing the violent sound waves of a fundamentalist Christian preacher who was lauding the aggressive anti-crime techniques of the Muslim world. The blue-faced fuck pranced around with cum bubbling from his tiny erection praising the iron-rod rulings of Muslims who cut off the hands of people who steal bread and shit which reminded me that authoritarians the world over come in exactly the same shade- only their methods, practices, and places differ.

    Spooky fucks like Morrissey don’t surprise me with their violent reactions to freedom. This dour and iron-headed abuser of American liberty wrote an article adoring the Abu Dhabi crime lab which he calls the finest in the world while pathetically rejecting out of hand the heinous open wounds that the UAE has savaged on human rights within its borders.

    Anyone with prosecutorial power in America that gets off on how efficient the UAE is in rooting out its witches, gays, and women who don’t use the right shopping lanes at the local grocery store should be rejected and scorned as a bloodless lout.

    1. Fine, but you’ll never convince me that the sort of person who drops down to 20mph on the interchange during the morning commute doesn’t deserve to be pulled from his car, savaged, and thrown off the overpass.

      1. Rage makes for some interesting imagery. I once caustically imagined an endless stream of grand pianos smashing a car and its occupant into an infinity of smithereens as Beethoven wailed a thousand shocked screams. Shit feels good and then it’s over and the car and its offensive motherfucking occupant gets to drive home peacefully with his/her bag of burritos.

        If terrorists could only imagine and tyrannies could only dream.

    2. This dour and iron-headed abuser of American liberty


      1. Peace out, kind sir.

  16. I imagine that people that try to educate others on jury nullification typically don’t have issues with murder laws, so I seriously doubt they were trying to influence the dexter lewis case.

  17. Everyone knows that the Right to Free Speech only exists absent the immediate presence of judges – who are a Lord Unto Themselves.

  18. The idea of Jury Nullification has ;long struck me as absolutely wonderful.As to why the establishment feels threatened by the possibility thereof is, in my view, to obvious to need discussion.

  19. Reading the above article,when it turns out that “the authorities” end up with Knotted Nickers, as a result of citizens exercising Freedom of Speech, that is seemingly the case in Denver,”the authorities” are walking about on thin ice,with heated boots,one is given to observe. The authorities need to, among other things, change tactics, and the courts should, in the most forceful manner, direct the badly needed changes. They should supply the obviously needed direction RDN (Right Damned Now).

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