Freedom of Speech

Denver's Unconstitutional Harassment of Jury Nullification Activists

The city treats handing out pamphlets near a courthouse as a crime.

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This Saturday is Jury Rights Day, which commemorates the 1670 acquittal of Quaker leader William Penn by English jurors who refused to convict him even though he had clearly violated a ban on dissenting religious assemblies. Denver is celebrating the occasion by harassing activists who seek to inform the public about the principle embodied in Penn's acquittal: the right of jurors to reject the enforcement of unjust laws, a.k.a. jury nullification.

After two local activists, Mark Iannicelli and Eric Brandt, distributed jury nullification pamphlets outside the Lindsey-Flanigan Courthouse in Denver on July 27, Denver District Attorney Mitch Morrissey charged each of them with seven counts of jury tampering, a felony punishable by one to three years in prison. The seven counts were based on pamphlets received by seven jury pool members.

The statute cited by Morrissey makes it a crime to "communicate with a juror" outside of a judicial proceeding "with intent to influence [the] juror's vote, opinion, decision, or other action in a case." But neither Iannicelli nor Brandt is accused of trying to affect the outcome of any particular case. They were merely distributing general information about jury rights.

Denver conceded such activity is constitutionally protected after David Lane, the attorney who represents Iannicelli and Brandt, filed a First Amendment lawsuit on behalf of two other activists and the Fully Informed Jury Association (FIJA). The city stipulated that "Plaintiffs who wish to engage in peacefully passing out jury nullification literature to passersby on the [courthouse] Plaza are entitled to do so."

Denver promised it "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." The city 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."

Does that mean 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, says Kimbrough, they were arrested on suspicion of jury tampering. When I ask her to explain the difference between what Denver deems a crime and what it recognizes as constitutionally protected activity, she says she can't comment on the details of a pending criminal case. It seems activists who don't want to get arrested will just have to guess where the line is.

The speech-chilling uncertainty was compounded by an incident that happened last week, the day after U.S. District Judge William J. Martinez issued an injunction protecting FIJA pamphleteers. Police descended upon Eric Verlo and Janet Matzen, the two activists who had sought the injunction, as they and several associates were passing out FIJA literature at the courthouse.

According to a motion filed by Lane, who asked Martinez to hold Denver Police Chief Robert C. White in contempt of court, the cops seized "all literature regarding jury nullification including about 1,000 pamphlets, a small shade shelter, a table, four chairs, buckets, a cooler, signs and other items." He adds that the officers even "attempted to take personal property such as purses, computers, backpacks and other items" from the activists, but "the pamphleteers resisted the attempts by the police to steal their personal property."

The city says the seized items constituted illegal "encumbrances of the right-of-way" under Denver's municipal code. Although the code does not define that term, a photo Lane submitted along with his motion shows Verlo et al. were not obstructing traffic into or out of the courthouse.

"The only plausible explanation for this is that the police were acting in retaliation for the exercise of the free speech rights of the pamphleteers," Lane writes. It seems Denver is willing to tolerate jury nullification activists in theory but not in practice.

© Copyright 2015 by Creators Syndicate Inc.

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21 responses to “Denver's Unconstitutional Harassment of Jury Nullification Activists

  1. This is utterly Orwellian, and shows in stark terms that good people must stand and risk their freedom to keep freedom alive.

    Ironically, the Denver fascists have spread the word about jury nullification far more broadly than the activists would have on their own. May their cups runneth over.

    1. As I indicated below, the insidious “literature” being passed out to innocent wayfarers on the streets of Denver is, in certain respects, comparable to another sort of “pamphleteering” that New York authorities were recently obliged to suppress with the appropriate legal action. See the documentation of America’s leading criminal satire case at:

      http://raphaelgolbtrial.wordpress.com/

      1. Criminal misappropriation of identity, YES.
        Satire, NO.
        Give it up.

        1. This is an excellent observation that hadn’t occurred to me! When someone sends out a “confession” of plagiarism in the “name” of a popular academic, declaring:

          “this is simply the politics of Dead Sea Scrolls studies. If I had given credit to this man I would have been banned from conferences around the world,”

          that is obviously a criminal act that has nothing to do with satire! All the more reason to suppress this sort of inappropriately deadpan effort to “twist words and stir up controversy,” at least, as the judges of the Court of Appeals in Albany explained, when it is engaged in with the intent of harming a reputation rather than causing “momentary embarrassment and discomfort,” a crucial distinction that any jury can immediately understand and evaluate beyond a reasonable doubt.

  2. According to a motion filed by Lane, who asked Martinez to hold Denver Police Chief Robert C. White in contempt of court…

    If the injunction truly prohibited them from erecting a structure like a table and shade tent, White will skate on the contempt charge.

    1. Cops and Prosecutors can harass people this way, lose, and keep doing it, because they get their fine salaries regardless. Just like those cops that arrest people taking video of arrests and detentions from across a street, and are arrested quite often for specious charges of interference or some other invented substitute for “I was, as a cop, bothered by this civilian taking video of me. So I knew it was legal, and that’s why I invented this here charge that will get dismissed-after the guy/gal gets manhandled-possible very harshly, verbally abused, pushed around being booked, and may spend the night in a cell, or if lucky, just several hours that day or evening.” I like and value cops in general, but this is another reason why we need video on all cops, uploaded to the city or state cloud, accessible to one and all, and only restricted if it is shown to be in the interest of a defendant to do so.

  3. I haven’t really paid much attention to local issues since moving back to Denver. I was wondering if the police force was still a bunch of statist assholes. What a stupid thing to wonder.
    Also, you know who else passed out pamphlets?

    1. The police are just doing there job. You can’t blame them for taking orders. In the vast majority of cases the judges are good honest people. I am sure they had a good reason to do what they did.

      Anyone who casts the first stone at the good public servants is essentially engaging in conspiracy theories…and anyone who is stupid enough to do that should remember the words of one of our greatest leaders.

      https://www.youtube.com/watch?v=6K5M0xtxQVQ

      1. While the Nuremberg Defense is valid in some cases, the reputation it holds does not make your argument any easier. Seizing the moral low ground rarely works in swaying public opinion, after all.

      2. You are right. Please forgive my cynicism. All hail our Cosmotarian Overlords.

  4. that group should really consider renting a billboard…safer and you get to reach the old folks who don’t access social media.

  5. With all limited respect to whomever may be reading this in an official capacity, in short – we can do this the easy way or the hard way. If the powers that be insist on adding laws (at all levels) faster than even the executive or legislative branches can assimilate or comprehend them, much less us mundanes, we need to have a preempt built in SOMEWHERE. If that is jury nullification, then so be it. And to come down with a jack boot on those merely trying to communicate such a release valve in the “justice” process, then you are truly asking for it. There is only so much taxation, regulation, harassment, and intimidation that is going to be accepted. You tip enough people into the “too little left to lose” category, that’s when you get it good and hard. And when you eventually tip enough of the middle class, those who are the connection between rulers and the ruled, into the “little left to lose”, that’s when effective (if inefficient) change occurs.

    1. I am pretty sure the above “toolkien” post can be interpretted as illegal threats and dreams of seeing judges put in woodchippers. The proper authorities have been notified and your IP address has been cross linked with the FEMA camp database.

    2. Yes, yes!
      Let’s force them to comply with the “preempt of the mundanes” clause of the Constitution.
      I know it’s in there,somewhere.

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  7. The criminal “literature” being passed out in the streets of Denver is, in certain respects, comparable to another sort of “pamphleteering” that obliged New York legal authorities to take action. See the documentation of America’s leading criminal satire case at:

    http://raphaelgolbtrial.wordpress.com/

  8. Greetings. If you found this article in searching for “How to avoid jury duty” fear not. You’ve come to the right place.

    All you have to do is tell the court, “I will judge the law.” These magic words will release you from jury servitude. If you have any doubts, you can add such statements as: “I believe in Jury Nullification. I will hang the jury if necessary. No Victim, No Crime.” This fool-proof method works every time and doesn’t require a doctor’s or supervisor’s note.

    You can also google websites and news stories supportive of ‘Jury Nullification’ and share as many as you can on social media. This will ensure that you will be promptly deemed unfit to serve on any jury the moment the prosecution sees your Facebook page as part of the official juror selection process.

    Thank you and have a nice, jury-free day!

    1. Ordered society thanks you.

    2. You can also get away by saying that a cop’s testimony is no more valid than anyone else’s. 🙂

      Worked for me.

  9. Out of one side of your face these anarchists are passing out “jury nullification pamphlets” and then only few lines later these paper incitements to defy the law become “general information about jury rights.”
    If these ass hats want to be in a position to determine which laws are “just” and which ones aren’t, then they should run for office and make their arguments in the chambers of the various bodies constituted to pass legislation.
    Jury nullification is akin to treason, in that it grants to unaccountable individuals veto power over what society has determined is the process for enacting laws.
    Hanging would be too good for them.

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