Jacob Sullum of Reason continues his detailed reporting on the ongoing situation in Denver. I want to highlight in this article some information that, so far as I can tell, only Sullum has reported on. Following the injunction issued by a federal judge on Tuesday that indicates that sharing jury nullification information is free speech protected under the First Amendment, Sullum asked the spokesperson for the Denver DA about future prospects for the cases against Mark Iannicelli and Eric Brandt, who were arrested in recent weeks for exactly such protected speech.

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

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.”

That’s right. The DA’s office is digging its heels in to continue what at this point appears to be nothing more than a malicious prosecution against Iannicelli and Brandt, continued in the hopes that one of the defendants or both can be broken and coerced into taking a plea deal. (The other alternative I can think of also unflattering: perhaps the DA’s office is simply unfamiliar with the laws they are getting paid to enforce.)

Kimbrough’s refusal to comment on anything that was done to try and influence the outcome of any case in progress speaks volumes. After the Denver DA has issued two press releases regarding these arrests and prosecutions, and despite police statements of probable cause being public record discussing the reasons for these arrests, suddenly the DA’s office can’t discuss the accusation they are making a pending criminal case? Mmmhmm… Or perhaps they don’t wish to discuss the details because transparency will make it clear to everyone that no law was broken?

The basis on which the DA’s office has chosen to continue this case is specious. Communication with a juror does not constitute a violation of Colorado’s anti-jury tampering statute. Rather, C.R.S. 18-8-609 (2014) reads:

18-8-609. Jury-tampering

(1) A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.

(1.5) A person commits jury-tampering if he knowingly participates in the fraudulent processing or selection of jurors or prospective jurors.

(2) Jury-tampering is a class 5 felony; except that jury-tampering in any class 1 felony trial is a class 4 felony.

FIJA guidelines and training for courthouse juror rights education advise against asking people whether or not they are a juror. This is because (a) anyone could be a juror sometime down the road even if they are not serving as a juror on the particular day in question, and (b) not asking provides a little bit of extra safety margin between outreach and ridiculous charges such as those leveled against Mr. Iannicelli and Mr. Brandt.

Nonetheless, asking if someone is a juror and then informing them about their right of conscientious acquittal by jury nullification does NOT constitute jury tampering under Colorado state law. The only way communication with a juror constitutes jury tampering under this statute is if the communicator intends to influence a juror’s vote, opinion, decision, or other action in a case. And there is notably ZERO evidence that either Mr. Iannicelli or Mr. Brandt communicated with such intent. All we have seen, of course, is the Denver DA office’s refusal to present any such evidence anywhere that I have seen.

Moreover, the DA charged each with seven counts because the information was received by at least seven, and perhaps up to fourteen, different jurors (it’s not clear if it is the same seven jurors in both cases since names are redacted from the publicly available charging documents). Per my communication with Ms. Kimbrough in past weeks since this started, she did not know if all of the jurors were serving on the same jury or not. Most likely they were random jurors who were assigned to different cases, if they even all served on juries which is not yet clear. So is the DA arguing that two juror rights educators somehow were trying to influence the outcome of multiple cases in the courthouse on the same day? That’s one heck of a conspiracy theory.

I have no doubt that should this make it to jury trial, the DA’s office will simply be wasting a lot of taxpayer dollars in the process of embarrassing themselves.

photo credit: Janet Matzen