Jury Nullification

Denver Concedes Distributing Jury Nullification Pamphlets Near a Courthouse Is Constitutionally Protected

But it still won't drop charges against activists arrested for distributing jury nullification pamphlets near a courthouse.

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Denver District Attorney's Office

Yesterday a federal judge in Denver issued a preliminary injunction protecting the First Amendment rights of activists who want to distribute jury nullification pamphlets outside the Lindsey-Flanigan Courthouse. Two activists, Mark Iannicelli and Eric Brandt, did just that last month and as a result were each charged with seven counts of jury tampering, a felony punishable by one to three years in prison. Last week their lawyer, David Lane, filed a federal lawsuit on behalf of two other activists and the Fully Informed Jury Association (FIJA), asking for an order barring such unconstitutional harassment. The injunction issued by U.S. District Judge William J. Martinez applies not only to arrests by the city but to enforcement of a judicial order restricting expressive activity near the courthouse.

Denver District Attorney's Office

That bizarre order, issued by Michael A. Martinez, chief judge of Colorado's Second Judicial District (which covers the city and county of Denver) on August 14, originally banned essentially all expressive activity—including "demonstrating," "picketing," "protesting," "marching," "parading," "holding vigils or religious services," "proselytizing or preaching," and "distributing literature or other materials"—anywhere near the courthouse. Martinez, the state judge, subsequently revised the order to cover a smaller part of the courthouse grounds, but it still struck Lane as blatantly unconstitutional, so he added it to his motion for a preliminary injunction.

Although FIJA suspected that the speech-suppressing order was aimed at jury nullification activists, Steven Steadman, security administrator for Colorado's courts, testified that the restrictions were motivated by concerns about possible unrest following the sentencing of Dexter Lewis, who was recently convicted at the Lindsey-Flanigan Courthouse of stabbing five people to death at a Denver bar in 2012. Steadman said the fear was that there would be a violent reaction if Lewis, who is black, was sentenced to death while Aurora movie theater shooter James Holmes, who is white, received a life sentence. But Steadman conceded that the security issue could have been addressed with a much narrower approach.

In prohibiting enforcement of the speech restrictions, Martinez, the federal judge, noted that the city and county of Denver, which owns the courthouse, had conceded that the plaza outside of it, which has frequently been the site of protests and demonstrations, qualifies as a "public forum." Denver officials also said they did not plan to enforce the state judge's limits on expressive activity. Furthermore, Denver stipulated that "Plaintiffs who wish to engage in peacefully passing out jury nullification literature to passersby on the Plaza are entitled to do so and that Denver, through its police or sheriff department, will not arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver's Revised Municipal Code when they are handing out their literature." The city and county added that "Plaintiffs' proposed intent of peacefully handing out jury nullification literature to or discussing jury nullification with passersby at the Plaza, without more, does not violate Colorado law."

Denver District Attorney's Office

So does that mean Denver District Attorney Mitch Morrissey plans to drop the jury tampering charges against Iannicelli and Brandt? Not according to Lynn Kimbrough, Morrissey's public information officer. "Their charges still stand," she says. "They weren't arrested for passing out literature. They certainly have a free speech right to do that." Rather, Kimbrough says, quoting Colorado's jury tampering statute, they were arrested for seeking to "communicate with a juror" outside of a judicial proceeding in an attempt to influence the juror's "vote, opinion, decision, or other action in a case." But neither the affidavits supporting the arrests nor the charges from Morrissey's office allege that Iannicelli or Brandt tried to affect the outcome of any particular case. The affidavits mention the Dexter Lewis trial, but Lane says his clients did not even know it was happening.

The affidavits also say Iannicelli and Brandt handed people pamphlets after asking if they had been called for jury duty. The pamphlets received by seven jury pool members were the basis for the seven charges against each defendant. Is asking what brings someone to the courthouse the crucial difference between what Denver deems a crime and what it recognizes as constitutionally protected activity? Kimbrough won't say. When I press her to explain exactly how Iannicelli and Brandt crossed the line, she says she can't get into specifics about a pending criminal case. But she does say "there isn't anything in the federal judge's ruling that directly affects the allegations against these defendants."

Lane, not surprisingly, disagrees. He predicts the charges "will eventually be dropped." Either way, Morrissey has some explaining to do. If "peacefully handing out jury nullification literature to or discussing jury nullification with passersby at the Plaza, without more, does not violate Colorado law," what was the justification for arresting and charging Iannicelli and Brandt? What "more" did they supposedly do that transformed them from citizens exercising their First Amendment rights into criminal suspects?

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  1. The 2 activists look like they just got out of San Quentin. No really, I mean they should seek a career of playing the sleazy bad guys in some cop movies.

    1. I mean they should seek a career of playing the sleazy bad guys in some cop movies.

      Nah. They couldn’t play the cops.

      1. They look like flunky bad guy followers in a western or action movie. The ones who get beat up of shot early on – long before the hero has the climatic confrontation with the chief baddy.

    2. I was about to comment on how they have really unflattering pictures while the DA looks like he walked out of the Brooks Brothers catalog.

      1. FYI, a talk show host here refers to the DA as Mitch “Blow Drier” Morrisey.
        That gag never gets old.

      2. they have really unflattering pictures

        Isn’t that the point of mugshots? To make the accused appear as unkempt and unappealing as possible so as to ensure their conviction? At least that’s the excuse I use whenever I think back on my own mugshot photo.

    3. I was going to say the same thing.

      Its like, “Look at the Mugshot… and NAME THAT CRIME!!”

      The first thing that comes to mind is that they were partners in some kind of pedophilia operation.

      The next thing that comes to mind is that Iannicelli was involved in defrauding the city as part of a waste management scam

      and Eric Brandt fucked a chicken.

    4. They’re doing God’s work, but those pictures are basically their mug shots.

      We need to ask their friends and family for better photos.

    5. The second guy in particular looks like some locales level mob enforcer/ muscle type. It could be he’s a perfectly nice guy, but if so he’s got a bad case of “resting jerk face.”

      1. *low level mob enforcer*

        Christ, how badly did I pull a John there that auto correct thought I meant locales?

  2. Things are going to be awkward at the next Martinez family reunion, I can tell you that much.

    1. Like!

  3. When I press her to explain exactly how Iannicelli and Brandt crossed the line, she says she can’t get into specifics about a pending criminal case.

    “You’ll know what you’re doing is against the law when you’re arrested for doing it, and not before.”

    1. Bonus for “can’t get into the specifics of a pending criminal case”…. after having previously gotten into the specifics of a pending criminal case. The difference in this instance is the likelihood that those specifics don’t make the defendant look bad in the public eye.

    2. Just a variation on FYTW

  4. When I press her to explain exactly how Iannicelli and Brandt crossed the line, she says she can’t get into specifics about a pending criminal case.

    Bullshit!!!!!!!

    She has to share that stuff with the defense anyway. She has no business keeping it secret.

    I’m thinking we need to not limit ourselves to DEA agents when I rise to power and put my loyal minions to work putting the dregs of society in the boats.

    1. Banana papaya?

    2. Jesus, I just read about the boats and damn…

  5. The prosecution team really is on the horns of a dilemma, and if they have any foresight at all, I doubt it’s a bull they want to ride in the ring. Absent some truly brilliant juristic acrobatics, there would be no way for them to prevent the pamphlets from being admitted as evidence, which will expose the jurors to precisely the message the defendants want them to hear. No matter how the prosecutors begged, pleaded, and cajoled in their closing statement, I can’t imagine any jury not literally in a catatonic state could bring itself to return a verdict of guilty after reviewing the pamphlets that comprise the only evidence against the defendants.

    1. Just means they get to charge the defendants *again* for ‘jury tampering’.

    2. I can’t imagine any jury not literally in a catatonic state could bring itself to return a verdict of guilty

      Have you seen the kinds of mouth breathers who end up on juries?

      1. Imagine a judge who works in this courthouse allowing the jury to hear any testimony about the content of those leaflets. Or about the subsequent ruling by the appeals court. Or about the agreement from the City and County that they are not allowed to prohibit this activity. Go ahead… just try to imagine a judge in that courthouse allowing any of that testimony to be heard.

  6. Denver DA Mitch Morrissey’s picture reminds me of a Mitch Hedberg joke: I was gonna have my teeth whitened, but then I said fuck that, I’ll just get a tan instead.

    1. And there’s the Rodney Dangerfield version: When I told my dentist my teeth were getting yellow, he told me to wear a brown tie.

  7. It’s been said here before, but the process is the punishment. The message has been sent and this will have a chilling effect on First Amendment rights. Which is exactly what they want.

    1. Yup. Because the legal cost to the DA’s office is diffused over the many trials and other procedures they are in charge of. But the legal cost to the defendants is huge as a percentage of their overall cost of living. And it seems that except in very public cases where the DA is guilty of actually suborning perjury, or seriously tampering with evidence (e.g. Nifong in the Duke lacrosse case), there is no political cost to pursuing convictions on whatever they can.

      1. Just as I support a ‘loser pays’ justice system, I’d like to see that same standard applied to the DA and their minions. If you’re acquitted, then you’re entitled to have all your court expenses reimbursed (taken from the budget of that particular DAs office). Sure, that would mean OJ would have had his legal expenses paid by taxpayers, but far more regular, innocent people would benefit from such a system. And it might make these prosecutors think twice about charging people with frivolous ‘crimes.’

        1. I think you’d just see even more plea bargains than you see now.

          1. Good point…. disorderly conduct gets charged as attempted kidnapping, child endangerment and sexual assault – adding up to 187 years in prison. Offer a plea deal of no contest to disorderly conduct and boom… no legal costs.

  8. There is no way the DA is going to trial. But, he can drag it out running up legal bills for the defense.

    The Process is the Punishment!

  9. Happy to see I called this one wrong… so far.

    Someone still doesn’t recognize the FYTW clause in the secret articles of the Constitution that the Supremes keep using.

  10. . . . according to Lynn Kimbrough, Morrissey’s public information officer. “Their charges still stand,”

    Of course they do. To do otherwise would be to admit, very publicly, that your office has made a mistake.

    Give it a couple of weeks, after the press has turned to some new story, and then the case will be quietly plea bargained to misdemeanor disorderly in public if not dropped completely.

  11. What “more” did they supposedly do that transformed them from citizens exercising their First Amendment rights into criminal suspects?

    Citizens exercising their rights = criminal suspects. Because FYTW.

    1. More woodchipper.

  12. When I press her to explain exactly how Iannicelli and Brandt crossed the line, she says she can’t get into specifics about a pending criminal case.

    Translation: “I and my minions haven’t yet been able to transmogrify some arcane case law into a ‘reason’.”

  13. I’m trying to figure out who left a jury nullification pamphlet out at work. I thought I was the only crazy anarcho-nutjob here.
    Here in NH, bringing up jury nullification as part of a defense is specifically allowed by law, which is nice.

  14. It puzzles me that people still assume sexual deviants and violent criminals “look creepy.” Statistically speaking, burnouts are probably the least likely to cause anyone harm. After all, no one lets them get close enough to have a chance. (And, let’s face it: they’re often ill equipped mentally or physically to pose a threat even if they wanted to.)

    Regardless of how gifted a predator is, success is ultimately dependent on avoiding detection. A predator must either a) stalk or lie in wait for suitable prey, relying upon the energetically expensive and frequently unrewarding tactic of ambush; or b) present a harmless, inoffensive front to arouse the curiosity and trust of its mark before luring it into a trap.

    That’s why successful predators tend to be instantly likeable, masterfully manipulative, attuned to subtle nuances, and adept at blending in to their surroundings. No one ever suspects them of being capable of committing such horrific atrocities. They’re dangerous precisely because they seem so normal.

    It’s the person with the irresistible charisma and dashing good looks who should give us the creeps. That guy on the corner with the wild eyes and scraggly beard? Harmless.

    1. That’s why successful predators tend to be instantly likeable, masterfully manipulative, attuned to subtle nuances, and adept at blending in to their surroundings.

      IOW, politicians.

    2. That’s why successful predators tend to be instantly likeable, masterfully manipulative, attuned to subtle nuances, and adept at blending in to their surroundings.

      IOW, politicians.

      1. And squirrels.

  15. It isn’t what they did. It was how they are charged. Duh.

  16. The people of Colorado deserve to see Morrissey disbarred, and rendered destitute from paying damages to Lannicelli and Brandt for violating their civil rights.

    -jcr

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