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Jury Nullification | 04 Aug 2015

-Updates on Mark Iannicelli Arrest for Jury Nullification Education


photo credit: Janet Matzen

photo credit: Janet Matzen

Since the Denver DA issued a press release on the arrest last week of Mark Ianicelli for handing out jury nullification flyers, I gave the contact person listed therein a call this morning to see about getting more information on the case. She forwarded me the Complaint and Information as well as the Probable Cause Statement, which we now have available for anyone to look at on a special page we’ve set up for this case.

The seven charges listed in the Complaint and Information provide very little information. Seven separate charges are listed because, according to my telephone conversation with Lynn Kimbrough from the Denver DA’s office, jury nullification materials were found in the possession of seven different jurors (or possibly potential jurors- now that I’m writing this up I don’t think I asked that). I did ask if the seven individuals were all sitting on the same case. Ms. Kimbrough did not know the answer to that. The charges don’t discuss specifically what Mr. Iannicelli is accused of doing, but rather seem to regurgitate the language of the statute which he is accused of violating (C.R.S. 18-8-609 for all counts) and then claim that he violated it. Even the names of the people who had the jury nullification information in their possession are redacted.

The Statement of Probable Cause, however, sheds a little more light on things. It reads as follows:
The probable cause of the arrest of the above-named individual is as follows:

[The defendant, Mark Iannicelli... was identified by the Denver District Attorney Lamar Simms, as handing out literature in front of 520 W Colfax Ave, the Lindsey Flanigan Court House, to actual and potential state and city jury members. A cardboard sign with "Juror Info" was positioned at the entrance to the court housees. Several jurors were contacted by Denver Police Intelligence Unit and were found to be in possession of fliers handed out by the defendant. The defendant was identified to reporting officers by members of the Intelligence unit. Upon contact, officers explained the reason for the contact, including that the police had been informed of the defendant handing out information to potential jurors. When asked for his name and date of birth, the defendant refused to provide any information. The defendant was taken into custody for investigation of Jury Tampering, and a Colorado Driver's License was located in his wallet. The fliers were recovered as evidence and were titled, "All You Need To Know About Jury Nullification".
At the time of the offense, a death penalty case was underway at the same location, 520 W Colfax Ave.]

What is interesting about this description is that:
1. it does not accuse Mr. Iannicelli of advocating for or against any case in progress,
2. it does not accuse Mr. Iannicelli even of targeting individuals for sharing information with them based on whether or not they were a juror or were there for jury duty, and
3. a death penalty case happened to be going on in the courthouse at the time of the jury rights educational outreach.

That death penalty case, by the way, does not appear to be the Aurora theater shooting trial that is currently in the national spotlight. I looked that up and it seems to be taking place at the Arapahoe County Courthouse, also in Denver.

From my reading of C.R.S. 18-8-609, which says:

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.

I see nothing in the Statement of Probable Cause substantiating these accusations. The charges allege that Mr. Iannicelli acted “with intent to influence a juror’s vote, opinion, decision, and action in a case”, but nowhere in the Statement of Probable Cause do I see anything that indicates such.

When I give someone information on their full, legal authority as a juror, I’m not telling them to vote one way or another. I’m merely presenting them with the complete picture of all of their options, including the right of jury nullification that they will typically either not be informed about or will be explicitly misinformed about once they get into a courtroom. What they do with that information is up to them. They may choose to exercise that right in a case before them, or they may choose not to exercise it. That is up to them.

Nothing I have heard from any of the local people who saw the arrest and/or know Mr. Iannicelli indicates that he was doing anything other than fully informing people about all the options jurors have. The Statement of Probable Cause, which also does not indicate anything beyond presenting people with all of the options that jurors can exercise, is consistent with that.

This distinction in a similar case years ago with regard to a similar federal jury tampering statute was recognized by the judge in that case, and she correctly dismissed the indictment.

Previous coverage of this case:
Man Sharing Jury Nullification Information Arrested in Denver