Jury Nullification

Judge Dismisses Denver D.A.'s Unconstitutional Jury Tampering Charges

Mitch Morrissey tried to imprison activists for passing out jury nullification pamphlets.


Office of Mitch Morrissey

Last August, Denver District Attorney Mitch Morrissey charged two local activists, Mark Iannicelli and Eric Brandt, with seven felonies each for passing out jury nullification pamphlets at the Lindsey-Flanigan Courthouse. Morrissey continued to pursue those charges even after conceding that such activity is protected by the First Amendment. When I asked Lynn Kimbrough, Morrissey's public information officer, what Iannicelli and Brandt had done that crossed the line from constitutionally protected speech to felonious jury tampering, she refused to say. That's probably because Morrissey had no case, as confirmed yesterday when Denver District Court Judge Kenneth Plotz dismissed the charges against both men, which he concluded violated their First Amendment rights.

"The district attorney strongly supports the First Amendment and the right to free speech," Kimbrough told The Denver Post. "He is also obligated to uphold the laws of Colorado, which prohibit a person from communicating with a juror with the intent to influence a juror's vote. The charges that he filed in these two cases alleged that specific conduct."

Not true. The charges allege only that Iannicelli and Brandt handed pamphlets to people after asking if they had been called for jury duty. The seven counts, each of which carries a penalty of one to three years in prison, are based on pamphlets received by seven "jury pool members," none of whom had been chosen for any particular trial. Contrary to what Kimbrough claims, there was never any evidence that Iannicelli or Brandt was trying to influence the outcome of any specific case.

What happened here is pretty clear: Morrissey abused his office to punish people for speech that offended him. He persisted in that effort even after it became abundantly clear that the charges were unconstitutional, as when a federal judge in Denver ruled that activists have a First Amendment right to do exactly what Iannicelli and Brandt were arrested for doing: passing out literature arguing that jurors have the authority to judge the law as well as the facts. As David Lane, Iannicelli and Brandt's attorney, told the Post, "It would be perceived as a losing battle [by] a first-year law student."

Yet Morrissey is not alone in seeking to imprison people for defending principles he abhors. Last month Michigan activist Keith Wood was arrested for handing out jury nullification literature outside the Mecosta County courthouse. Wood was charged with jury tampering, a misdemeanor punishable by a $1,000 fine and up to a year in jail, and obstruction of justice, a felony punishable by a $10,000 fine and up to five years in prison. "We look forward to adding yet another such victory in the case of Keith Wood," says Kirsten Tynan, executive director of the Fully Informed Jury Association (FIJA), which publishes the pamphlets involved in both of these cases.

FIJA plans to start distributing literature for free "to juror rights educators conducting outreach at any courthouse where juror rights educators have been victorious over arrests and threats of arrests for handing out FIJA literature." The idea is to teach bullies like Morrissey that trying to stamp out FIJA's message will only help promote it. Tynan argues that "all incentive for government officials to harass juror rights educators in an attempt to quash our message would immediately disappear if such efforts were guaranteed to do the exact opposite and spread the message much further."

NEXT: Renewed Riders Bar Medical Marijuana Meddling, Block Full Legalization in D.C.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Nice. When the morning starts with good news like this, it makes me want to put on a titanium cup.

  2. I’m actually surprised at this, being that most judges detest the concept of jury nullification.

    1. This. The judge followed the law, when there was nothing in it for him? That’s surprising.

    2. I’m not too surprised. The first amendment probably gets the most respect of the amendments (though obviously it’s not perfect) and this case was so clearly a violation of his free expression.

  3. A judge who properly applies the law? Unpossible!

    1. The judge failed to then call the bailiff and have the DA arrested. I give him a B+.

      1. That’s still a higher grade than most. That’s one judge that may be spared the woodchipper.

  4. When I asked Lynn Kimbrough, Morrissey’s public information officer, what Iannicelli and Brandt had done that crossed the line from constitutionally protected speech to felonious jury tampering, she refused to say.

    “WHAT DID THEY DO?!” *** snap! ***

    /Jack Bauer

  5. The idea is to teach bullies like Morrissey that trying to stamp out FIJA’s message will only help promote it.

    There really needs to be official ramifications for deliberately violating constitutional rights. What’s to stop this guy (who looks suspiciously like that cop pedo from the sexting case) from arresting FIJA practitioners again and again? If the law of the land doesn’t have any teeth it’s pretty fucking useless.

    1. If the law of the land doesn’t have any teeth it’s pretty fucking useless.

      That’s why it’s called the *gum it*, DUH!

    2. What’s to stop this guy (who looks suspiciously like that cop pedo from the sexting case) from arresting FIJA practitioners again and again?

      Nothing. Prosecutors enjoy complete immunity from the law.

      1. yes but cops have only qualified immunity. Sue the cops that arrested you. (still going to fail but what the hell).

    3. The law of the land does have teeth, it just doesn’t bite the people holding the leash.

      1. The First Amendment wasn’t put in place to stop you or me from certain acts.

        1. Professional courtesy is a helluva drug.

    4. Are tar and feathers official enough?

      I keep saying, we’d only need to do it to a handful of these assholes every year to see a marked improvement in the behavior of the rest of them.


  6. Super punchable face. Recommend Brass Knuckles.

    1. He’d sue you for ruining 100k in plastic surgery.

  7. As David Lane, Iannicelli and Brandt’s attorney, told the Post, “It would be perceived as a losing battle [by] a first-year law student.”

    I suppose a naive, first-year law student can’t be expected to know that a prosecutor can assure that the process itself is the punishment. The prosecutor can thus torment with victims with little accountability and taxpayers’ money. His victims’ defense meanwhile is by no means certain — the prosecution may face losing battle if it were to go to trial, but it’s not necessarily unwinnable if the victims are unable to pay for a vigorous and unremitting defense — and they are certain to be anxious when the prosecutor heaps charges upon charges. And, of course, the victims are out of pocket for the cost of their defense and lost earnings.

    I doubt that the Mitch Morrissey feels like he has lost in this transaction. Even more so, I doubt that Iannicelli and Brandt feel like they are better off than they were before Mitch Morrissey set sights on them.

    1. Probably right. That’s why we need deep-pocketed people with lots of leisure time to dedicate themselves to fighting for our rights. God knows there are lots of deep-pocketed people (Bloomberg!) out there dedicating their time and money to fighting against our rights.

      1. There’s a reason this shit doesn’t happen to deep-pocketed people with lots of leisure time.

  8. These guys need to sue the city for wrongful arrest and violation of their civil rights. And they need to take the case to conclusion, not agree to a settlement that says the city and its officials “admit to no wrongdoing”. Only then will these types of situations result in serious ramifications for violators of basic rights.

    I have the same gripe when people settle police abuse cases and the settlement says the city admits to no wrongdoing. When that happens, the next time is the first time, in the eyes of the court. And that results in less accountability.

    1. Thing is, the city can drag the case out until the complainants’ grandchildren are dead of old age. It’s take the settlement or nothing.

      1. You have to not care about the payout.

        1. Then you’ve got to have bottomless pockets to cover the legal bills.

          No lawyer is going to take a case on contingency that won’t be resolved in their lifetime.

          1. Meh, civil rights groups could cover the legal costs if they really wanted to until the case’s conclusion.

            The issue is that the victims of police violence are usually poor and actually lost income needed to eat due to the violence (or otherwise have problems making ends meet). They need the settlement money to live.

  9. The original write-up had a third activist, Janet Matzen. Do you know what happened with her, Sullum?

  10. It sounds like Mitch Morrissey would like to put the 1st Amendment into a figurative woodchipper.

    1. Know who else wanted to put things in woodchoppers?

      1. reasonoids?

  11. It’s great that Lannicelli and Brandt are in the clear, but the public deserves to see that goddamned shyster Morrisey bounced off the taxpayers’ teat, disbarred, and starving to death on the streets as a pariah.


  12. When we write the Constitution for the Second American Republic, we are going to change the way the courts work. Prosecuting attorneys will be barred from running for any political office for 10 years after they leave their office. You can see that justice is done, not use it as a springboard for higher office. As it is, you end up with authoritarian shits like Christy, Spitzer, Ayotte, etc moving up to senator or governor. Morrisey is of the same cloth. He doesn’t care about justice, he wants scalps. And no immunity either, obviously.

    1. Prosecuting attorneys and public defenders should come from same pool. Luck of draw whether you are prosecuting or defending in any particular case.

      1. (smacks forehead)..that would work even better

      2. That’s been my proposal in the past, as well. It would do much to break up the crony infrastructure of the cop-industrial complex.

  13. I’d love to be the one to start a recall petition for a certain constitutionally-challenged District Attorney.

  14. I received a jury summons recently. I’m looking at the FIJA materials. I’m guessing I should play dumb so that I might have an opportunity to tell the slavers to fuck off? Never done this before.

    1. Advice from a random guy on the internet:

      Yep. If you wanna get on the jury act dumb. And try to answer all the questions the way you think the person asking them wants them to be answered (that usually pretty obvious). That’s a standing order even if you’ve never heard of FIJA.

      If you don’t have time to be on a jury, then ask many questions, and every time either attorney asks a big broad question that should have pretty obvious answer, figure out a way to give a stupid answer through some kind of pedantic interpretation of the questions and/or addition of extremely unlikely hypotheticals to the situation.

      If you make it to actual deliberation, try to not mention any FIJA stuff at all if you don’t have to. And before talking about straight up nullification try this tact : “I don’t think this should be a crime in the first place. So, given that, I think reasonable doubt is 100% certainty, not 99.5%”. If the best case scenario is that you are just going to hang the jury, don’t bother using the word “nullification”. There just isn’t any upside.

  15. And when will the DA be charged with corruption / intimidation, or any other consequence of using his power as violence against others?

  16. Mitch Morrissey persued a case he knew was not supported by the evidence. This is prosecutor misconduct and he should be sanctioned and disbarred. Anyone out there presenting a complaint to the Colorado bar association? In any sane society a prosecutor would go to jail for pulling this sort of crap.

Please to post comments

Comments are closed.