We got word yesterday from Occupy Denver that jury rights educator Mark Iannicelli was arrested while handing out jury nullification literature at the Lindsey-Flanigan Courthouse in Denver and charged with jury tampering.
Soft-spoken activist Mark Iannicelli sits in the Denver County Detention Center tonight, wrongfully arrested for passing out fliers in front of the Lindsey-Flanigan Courthouse on Monday. Though he and an accomplice had no personal interest in any trial at the municipal courthouse, Mark was charged with JURY TAMPERING, a felony with a minimum bond of $5,000. Mark was disseminating information about JURY NULLIFICATION to conscripts showing up for jury duty.
I understand from another person who was at the courthouse at the time that two pieces of jury nullification literature were being handed out that day: FIJA’s True or False? brochure and a flyer from another organization. He reported that the arrest took place on the second day of a planned three-day outreach effort, and that jury rights educators had previously been handing out literature in Westminster, Colorado with no issues.
This person and a second individual I spoke to reported that the arrest seems to have been in response to a complaint from a juror, though nobody I spoke to knew what the specific complaint was. One of the people I spoke to reported that the arrest was for “Offense Code 026517” and “Offense Type #18-8-609”. I don’t know what the offense code means at this point, but 18-8-609 seems to come from the Colorado Revised Statutes.
C.R.S. 18-8-609 (2014) reads:
(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.
Without specifically looking it up, my assumption is that a felony of any sort would almost certainly be jury trial-eligible, in the event that this case got that far. If it did go before a jury, one would imagine that the FIJA brochure and other flyer would be evidence that would be presented to the jury, thereby fully informing every juror of their right to vote Not Guilty for any reason they believe is just.
From the description given to me by the two people I spoke with and from the article I quote from above, however, it does not sound likely that the accused’s activity even met the definition of jury tampering. FIJA encourages everyone who is doing general educational outreach at courthouses to be clear that they are not advocating for or against any case in progress, but rather are sharing this information for educational purposes only. What jurors choose to do with that information is up to them. My impression from what I have heard and read so far is that those at this courthouse were aware of this distinction.
Nonetheless, it sometimes happens that courthouse officials or law enforcement either are ignorant of the difference between general educational outreach and jury tampering or that they choose to ignore it for the sake of making a nuisance arrest that will interfere with free speech activity they find inconvenient or disagree with. It’s possible that one or the other of these is the case in Denver this week. I have shared with one of the people I spoke with the opinion and order throwing out the indictment of another activist in New York in similar circumstances in case Iannicelli or his lawyer finds it helpful (the article quoted above indicates that he does have legal representation).
Additionally, I have been told by one of the people with whom I spoke that in conjunction with the arrest, all of the jury nullification information on hand was confiscated by the government and that the red tape involved in getting it back makes it unlikely that it will be returned to the rightful owner. As soon as I get this report posted and shared around, I will also be heading down to the post office to ship out a priority package of FIJA literature so that Denver activists may continue to legally exercise their right to free speech to create more fully informed jurors.