Fully Informed Jury Association

Are you fully informed about jury nullification?

Jury Nullification | 31 Aug 2015

-Is Juror Rights Outreach Legal?

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Is juror rights outreach legal? In short, yes. This handy infographic documents recent legal events that back this up.

Is Juror Rights Education Legal- Abbreviated

In all of these cases, a key element of “jury tampering” was missing—an attempt to influence the outcome of a particular case. FIJA outreach is simply about making sure that every juror knows all of the options available to them, including the option to vote Not Guilty when a just verdict requires it, even if they believe beyond a reasonable doubt that the law was technically broken. What they do with that information—whether they use it or not—is up to them.

Whether government agents are truly ignorant of this not terribly subtle distinction, or whether they simply ignore it because it is inconvenient in their misguided attempts to chill juror educators’ freedom of expression, they will very occasionally break the law and falsely arrest and charge people for this non-offense.

On the rare occasion when juror rights educators are arrested, that usually makes a big splash in the news. But when they are exonerated of wrongdoing for sharing FIJA information or discussing jury nullification, the media is much less interested. This can leave potential educators, as well as the general public, with the mistaken impression that our work is in some way illegal.

This is NOT the case! FIJA outreach has repeatedly been held in different courts around the country to be perfectly legal. Please feel free to download this infographic and share it on social media, etc. to help correct this mistaken impression.

Information on Safe and Effective FIJA Outreach:
Courthouse Outreach Volunteer Training—an approximately half hour, on-demand, video training on YouTube
Distributing FIJA Literature in Front of Courthouses—a downloadable .pdf flyer discussing the dos and don’ts of juror rights education near courthouses

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FIJA in the News & Jury Nullification | 27 Aug 2015

-Malicious Prosecutions Continued by Denver DA’s Office

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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

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FIJA in the News & Jury Nullification | 27 Aug 2015

-Denver PD Shows Contempt for Federal Court Order

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Wednesday afternoon, civil rights attorney David Lane of Killmer, Lane, & Newman, LLP filed on behalf of FIJA and co-plaintiffs Eric Verlo and Janet Matzen a Motion for Order to Show Cause Why Defendant Robert C. White Should Not Be Held in Contempt of Court for apparent retaliation by the Denver Police Department. Just hours after a motion for injunction was granted prohibiting further arrests for sharing jury nullification information at the Lindsey-Flanigan Courthouse, Denver conducted a mid-morning raid on juror rights educators at the courthouse.

Per the motion:

At approximately 10:00 a.m., a cadre of Denver police officers swarmed into the group of pamphleteers and began seizing items from them. The items seized included but are not limited to the following: 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.

Additionally:

While on-scene, the police attempted to take personal property such as purses, computers, backpacks and other items. The pamphleteers resisted the attempts by the police to steal their personal property.

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But the amended plaza order prohibits tents, tables, chairs… NO! It does not!
Many people have mistakenly been commenting that the presence of the shade canopy, table, and chairs are a violation of what remained in force of the amended plaza order issued by Judge Michael Martinez, after the injunction from Judge William Martinez is applied. As co-plaintiff Eric Verlo has pointed out, this is incorrect. The amended plaza order (the relevant portions of which are contained within the order for injunction) applies such prohibitions ONLY to the area marked with yellow shading on the picture of the plaza shown on page 8 of the injunction. All of the items stolen by police were located OUTSIDE of this zone where the plaza order’s prohibitions on such items remain in force.

So on what basis did Denver police take these malicious actions?

Wendy Shea, counsel for Denver and Denver police chief Robert White, cited Denver Municipal Code sections 49-246, 49-247, and 49-248 as the reasons for the raid. As Mr. Lane points out in the motion, all of these pertain to “encumbrances”. Lane explained in the motion that:

The police are engaged in retaliatory action for the exercise of protected speech. There is no statute in Denver defining the word “encumbrance” thus the police have decided that anything and everything in the possession of the Plaintiffs and their associates is an “encumbrance” and may be removed. They have taken this action to punish the Plaintiffs and their associates for the exercise of free speech as defined by this Court one day previously.

Juror Rights Educators at Lindsey-Flanigan Courthouse Before Police RaidMoreover, citing dictionary definitions of an encumbrance as something that burdens, impedes, causes problems or difficulties, etc., Lane points out that the small area in which juror rights educators were set up in cannot reasonably be considered an encumbrance. The photos to the right, submitted as an exhibit with the motion, clearly illustrates how contrived is this thinly-veiled excuse for theft conducted under color of law.

It is entirely clear from the photo at right that no pathway into or out of the courthouse was encumbered, nor was there any other problem created by the presence and peaceful activity of the juror rights educators or by their property.

Lane argues in the brief that there is only one conclusion to be drawn from such brazen abuse of the law:

The Denver police, acting as jack-booted thugs in blatant violation of this Court’s Order, came into the plaza and began seizing all property not being carried by a pamphleteer. 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.

We have reports from locals who were present at the time of the property thefts by government officials that Denver PD has been ordered to return all of the property. As of Wednesday evening, however, it had not been returned. When one of the juror rights educators went to the police department to inquire what was the reason for the delay in returning the stolen property, he was told that property owners must identify their property to retrieve it.

Related Documentation
Complaint
Exhibit 1 to the Complaint
Exhibit 2 to the Complaint
Exhibit 3 to the Complaint
Motion for Preliminary Injunction
Amended Motion for Preliminary Injunction
Order Granting Motion for Preliminary Injunction
Motion for Order to Show Cause Why Defendant Robert C. White Should Not Be Held in Contempt of Court
Exhibit 1 to the Motion to Show Cause
Exhibit 2 to the Motion to Show Cause

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History of Jury Nullification & Jury Nullification & Jury Rights Day & Media Releases | 25 Aug 2015

-Judge Halts Unconstitutional Ban on Juror Rights Education

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Judge Halts Unconstitutional Ban on Juror Rights Education

FOR IMMEDIATE RELEASE
FIJA Logo with URL
CONTACT:

Kirsten Tynan
(406) 442-7800
aji@fija.org

Helena, MT—A federal court today issued an Order Granting Motion for Preliminary Injunction, effectively gutting paragraph 1 of a recently issued administrative order against juror rights educators sharing information at the Lindsey-Flanigan Courthouse Plaza in Denver, Colorado. Paragraph 1 still applies to the landscaping and gravel area of the plaza, but juror rights educators should be able to share FIJA brochures and verbal jury nullification information for general educational purposes with people in other areas of the plaza without fear of arrest.

FIJA joined with co-plaintiffs Eric Verlo and Janet Matzen of Occupy Denver in filing a motion for preliminary injunction to prevent further arrests for general juror rights educational outreach after juror rights educators Mark Iannicelli and Eric Brandt were arrested and charged with seven felony counts each of jury tampering for sharing jury nullification information outside the Lindsey-Flanigan Courthouse in July.

Shortly thereafter, Judge Michael Martinez issued a heavy-handed order prohibiting a broad array of expressive activities in areas outside the Courthouse that constitute a traditional public forum for free speech, and the plaintiffs amended their motion to challenge this sweeping violation of the First Amendment as well.

“We are thrilled with this timely victory for both free speech and juror rights education,” says FIJA Executive Director Kirsten Tynan. “Jury Rights Day commemorates the notable jury nullification case of William Penn, who was arrested for just the sort of peaceful, expressive activity that Judge Michael Martinez attempted to ban outside of Lindsey-Flanigan Courthouse. His acquittal by conscientious jurors—who would not obey even when a judge who ordered them to find Penn guilty proceeded to imprison them without food and water—was foundational to our legal ability to conduct juror rights outreach at this Courthouse still today. We look forward to celebrating Jury Rights Day at the Lindsey-Flanigan Courthouse in Denver next week.”

FIJA will join with Occupy Denver in celebrating Jury Rights Day on Friday, September 4 on the plaza outside the Lindsey-Flanigan Courthouse in Denver. Each year since 1991, FIJA has rallied juror rights educators nationwide for educational outreach at courthouses and other appropriate locations on and around September 5, known as Jury Rights Day. Jury Rights Day commemorates the famous jury nullification case of the trial of William Penn and William Mead in 1670, which anchored in English common law and U.S. jurisprudence the right of the jury to deliver verdicts from conscience without being punished, as well as our rights to freedom of speech, association, and religion.

On this day of celebration and commemoration, juror educators will create many fully informed jurors who understand and are prepared to act on the knowledge that:
● Jurors cannot be punished for their verdicts.
● Jurors have the right to deliver a general verdict and are not required to explain the reason for their verdict.
● Jurors have the legal authority and the ethical duty to consult their consciences and to render a just verdict, even if it requires setting aside the law and voting Not Guilty when strictly enforcing the law would be unjust.

About the Fully Informed Jury Association
The Fully Informed Jury Association (FIJA) is a 501(c)(3), non-profit, nonpartisan, educational organization headquartered in Helena, Montana. Focusing on issues involving the role of the jury in our justice system, FIJA seeks to preserve the full function of the jury as the final arbiter in our courts of law by informing everyone about their rights, powers and responsibilities in delivering just verdicts when serving as jurors. The organization does not advocate for or against any case in progress, but rather seeks to fully inform everyone of all their options when serving on juries. This includes the option to conscientiously acquit when a just verdict requires it by voting Not Guilty, even if they believe the law has technically been broken, without fear of punishment for their verdict.

FIJA’s national office conducts its campaign solely through educational outreach programs and materials. A variety of brochures and other materials are available for free download by anyone from the online Library or can be purchased through the online Media Catalog. Many juror rights educators use these brochures for general educational outreach at courthouses, at fairs and festivals, at public speaking engagements, and so on.

Related Documentation
Complaint
Exhibit 1
Exhibit 2
Exhibit 3
Motion for Preliminary Injunction
Amended Motion for Preliminary Injunction
Order Granting Motion for Preliminary Injunction

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FIJA in the News & Jury Nullification & Media Releases | 20 Aug 2015

-Chief Judge Creates First Amendment-Free Zone in Denver

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Chief Judge Creates First Amendment-Free Zone in Denver

FOR IMMEDIATE RELEASE
FIJA Logo with URL
CONTACT:

Kirsten Tynan
(406) 442-7800
aji@fija.org

Helena, MT—Chief Judge Michael A. Martinez has issued an order trampling on the First Amendment and effectively suffocating freedom of speech in traditional public forums surrounding the Lindsey-Flanigan Courthouse in Denver, Colorado. Dated August 14, 2015, the order has only come to the attention of the Fully Informed Jury Association after receiving pictures showing it posted on the courthouse doors.

IMG_1580

Judge Martinez’ draconian order imposes sweeping and apparently arbitrary restrictions against First Amendment activity in and around the courthouse, encompassing traditional public forums such as the plaza, walkways, and roadways outside the courthouse. Per the language of the order, the newly-created First Amendment-free zone includes “the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits.” It specifically includes “the Courthouse entrance plaza areas on the east and west sides of the Courthouse” as an area in which the First Amendment will be summarily nullified by judicial edict.

Moreover, the order applies to a long list of peaceful, expressive activities that have taken place for many years at this location, including “Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances” among others.

“It is well-established that the First Amendment prohibits content-based restrictions on the free exercise of speech, which is exactly what Denver engaged in by arresting juror rights educators Mr. Iannicelli and Mr. Brandt in recent weeks. This Constitutionally deficient order cannot disguise the blatant viewpoint discrimination that Denver employed in these arrests,” said FIJA Executive Director Kirsten Tynan.

Legal precedent in this matter is clear. It is legally impermissible for government restrictions on free speech in a public forum to be content-based. Additionally, time, place, and manner restrictions, if imposed, must be reasonable, narrowly-tailored, and there must be a compelling reason for imposing them, such as safety. Free speech restrictions implemented under the rubric of time, place, and manner restrictions may not be imposed simply to stamp out dissent or to provide legal cover for viewpoint discrimination by government.

A hearing regarding this issue along with a motion for injunction against further arrests of juror rights educators for sharing jury nullification information outside the Lindsey-Flanigan Courthouse in Denver is scheduled for tomorrow, Friday, August 21 at 2:00 pm in the Alfred A. Arraj U.S. Courthouse on the corner of 19th and Champa in Judge William Martinez’ courtroom. Photo ID is required for entry.

About the Fully Informed Jury Association
The Fully Informed Jury Association (FIJA) is a 501(c)(3), non-profit, nonpartisan, educational organization headquartered in Helena, Montana. Focusing on issues involving the role of the jury in our justice system, FIJA seeks to preserve the full function of the jury as the final arbiter in our courts of law by informing everyone about their rights, powers and responsibilities in delivering just verdicts when serving as jurors. The organization does not advocate for or against any case in progress, but rather seeks to fully inform everyone of all their options when serving on juries. This includes the option to conscientiously acquit when a just verdict requires it by voting Not Guilty, even if they believe the law has technically been broken, without fear of punishment for their verdict.

FIJA’s national office conducts its campaign solely through educational outreach programs and materials. A variety of brochures and other materials are available for free download by anyone from the online Library or can be purchased through the online Media Catalog. Many juror rights educators use these brochures for general educational outreach at courthouses, at fairs and festivals, at public speaking engagements, and so on.

Related Documentation
Chief Judge Order Regarding Expressive Activities at Lindsey-Flanigan Courthouse, CJO 15-01
Photo of order being posted
Photo of page 1 of the order on the courthouse doors
Photo of page 2 of the order on the courthouse doors
Photo of page 3 of the order on the courthouse doors
Photo of entire order posted on the courthouse doors

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FIJA in the News & Function of Juries & Jury Nullification | 19 Aug 2015

-Denver DA Creates Countless Fully Informed Jurors

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Denver District Attorney Mitch Morrissey, with his erroneous charges and prosecution of juror rights educators Mark Iannicelli and Eric Brandt, is creating countless fully informed jurors. In just the last 24 hours, I have received Google alerts showing what a great job Morrissey is doing of getting the information we teach—previously only shared very locally at the courthouse—out to the wider Denver community.

Yesterday, The Denver Post Editorial Board published an opinion piece informing Denver residents that:

Jury nullification is not a crime, Denver

The district attorney’s office says the two arrested men were targeting actual jury pool members. Yet even if that were true, so what? If they were not advocating a specific course of action in a specific trial, how could they be guilty of trying “to influence a juror’s vote,” as Colorado’s law defines tampering?

Their jury nullification literature, as it happens, merely offered general statements, such as, “Juror nullification is your right to refuse to enforce bad laws and bad prosecutions.”

Four years ago, prosecutors in New York City charged a retired chemistry professor with jury tampering after he stood outside a federal courthouse handing out information on jury nullification. But Judge Kimba M. Wood of federal district court wouldn’t buy it. She ruled that prosecutors needed to show the protester meant to influence jurors in a specific case, and dismissed all charges.

Denver officials should be held to no less of a standard.

Click through for the entire editorial, which not only argues for our First Amendment right to share our literature, even with prospective jurors, but also acknowledges that jury nullification is a mainstream idea and legal to exercise as a juror—”not some crank theory concocted out of the blue”. (A couple of historical corrections needed in the article: John Peter Zenger and Andrew (not Alexander) Hamilton.)

Additionally, Mr. Morrissey has also managed to make this such a newsworthy event that it has been reported on television as well on the Denver CBS affiliate:

CBS4 in Denver, not only showed our Your Jury Rights: True or False? brochure to all its viewers, but also informed them that “Jury nullification is when a juror believes a defendant is guilty of a crime, but disagrees with the law and returns a not guilty verdict instead.”

If Mr. Morrissey’s intent was to keep jurors in the dark about their full, legal authority to conscientiously acquit via jury nullification, he is failing miserably. The simple fact is that putting this information in the media spreads it to FAR more people and MUCH faster than handing it out at courthouses.

Moreover, if Mr. Morrissey is so short-sighted as to fail to anticipate what will happen if he should push this all the way to trial by jury, it’s going to be interesting to see how a prosecutor is going to deal with what one imagines would certainly be a fully informed jury given that our literature would presumably be in evidence. What kind of rapport can an attorney establish with jurors who realize that his mission in that courtroom is not only to keep them, but ALL jurors, in the dark about their right to vote Not Guilty when they believe the law is unjust or that the prosecutor is unjustly abusing it in cases before them?

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Jury Nullification | 18 Aug 2015

-Witnesses Needed Regarding Protests at Denver Courthouse

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Yesterday FIJA and two other plaintiffs filed a complaint and a motion for preliminary injunction to bar the Denver Police Department from making additional arrests for handing out jury nullification information. After the two recent arrests of Mark Iannicelli and Eric Brandt for sharing such literature, we and other activists are chilled in our willingness and ability to do so, for fear of similarly being arrested for exercising our First Amendment-guaranteed rights. FIJA and Occupy Denver have tentative plans for a Jury Rights Day celebration on 4 September at the courthouse, assuming the injunction is successful, but WE NEED YOUR HELP to ensure that it is granted and that our rights are protected!

Our attorney, Mr. David Lane explains:

One extremely important topic we need to get witnesses for is whether or not the Lindsey-Flannigan plaza is a traditional forum for protests and leafleting. It is super important because there is bad case law saying that a public area which is not typically used for this sort of thing doesn’t have First Amendment protections like other areas traditionally used for this have. WE NEED WITNESSES WHO CAN TESTIFY ABOUT NUMEROUS PROTESTS WHICH HAVE OCCURRED AT THAT SITE… TIME IS OF THE ESSENCE as they need to be at the federal courthouse Friday afternoon.

Our hearing is scheduled for:

THIS Friday AT 2:00 pm
Arraj Federal Courthouse at 19th and Champa in Denver
Judge William Martinez’s courtroom
In order to gain entry you MUST have a photo ID with you.

As Mr. Lane emphasized to us, we have ONE shot only at winning this. Time is EXTREMELY short, and we need anyone who can testify as to the use of the Lindsey-Flanigan courthouse plaza in Denver as a traditional forum for protests and leafleting to contact Mr. Lane immediately, preferably by email at mailto:DLane@kln-law.com or by phone at (303) 571-1000.

If you can serve as such a witness, please contact him IMMEDIATELY. Whether or not you can serve as a witness, please spread this request to your Colorado contacts as soon as possible. We need as much support on this as possible!

photo credit: Janet Matzen

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FIJA in the News & History of Jury Nullification & Jury Nullification & Media Releases | 17 Aug 2015

-FIJA Seeks Injunction Against Denver Arrests for Free Speech

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FIJA Seeks Injunction Against Denver Arrests for Free Speech

FOR IMMEDIATE RELEASE
FIJA Logo with URL
CONTACT:

Kirsten Tynan
(406) 442-7800
aji@fija.org

Helena, MT—The Fully Informed Jury Association (FIJA) has signed on as a plaintiff to a complaint seeking an injunction to bar the Denver Police Department from any further arrests at the Lindsey-Flanigan Courthouse of juror rights educators handing out FIJA brochures and other jury nullification information. The complaint was filed today on behalf of FIJA and fellow plaintiffs Eric Verlo and Janet Matzen by Denver civil rights attorney David Lane of the firm Killmer, Lane & Newman, LLP.

In light of recent arrests of and felony jury tampering charges leveled against juror rights educators Mark Iannicelli and Eric Brandt for handing out such information, FIJA is gravely concerned that the voices of juror rights educators are being chilled by threat of unjust arrest and fallacious “jury tampering” charges for general educational outreach.

“It is not surprising that government officials would fear jurors being fully informed about all the options available to them, including their right to conscientiously acquit by jury nullification. There’s clearly an incentive for a system whose lifeblood is a steady stream of convictions and mass incarceration to disempower jurors from delivering just verdicts by voting Not Guilty because the law itself or its application is unjust,” said FIJA Executive Director Kirsten Tynan.

“We fear for other juror rights educators being similarly endangered as Mr. Iannicelli and Mr. Brandt have been for exercising their First Amendment-guaranteed rights. The Supporting Affidavit for the arrest warrant in Mr. Brandt’s case is particularly worrying as it suggests that the Denver District Attorney’s office has determined that even the mere ‘language contained in the fliers’ constitutes jury tampering on its own,” said Tynan.

FIJA does not advocate for or against any case in progress, but merely seeks to fully inform everyone of all their options when serving on juries. This includes the option to conscientiously acquit when a just verdict requires it by voting Not Guilty, even if they believe the law has technically been broken, without fear of punishment for their verdict.

The FIJA national office plans to host a Jury Rights Day celebration on the plaza outside the Lindsey-Flanigan Courthouse in Denver this year, assuming it can be conducted safely without threat of arrest or charges.

Each year since 1991, FIJA has rallied juror rights educators nationwide for educational outreach at courthouses nationwide and other appropriate locations on and around September 5, known as Jury Rights Day. Jury Rights Day commemorates the famous jury nullification case of the trial of William Penn and William Mead in 1670, which helped ground in English common law the right of the jury to deliver verdicts from conscience without being punished, as well as our rights to freedom of speech, association, and religion. In 2014, FIJA listed 30 Jury Rights Day events, mostly at courthouses, which were held without any arrests reported to FIJA.

On this day of celebration and commemoration, juror educators hope to create many fully informed jurors who understand and are prepared to act on the knowledge that:
● Jurors cannot be punished for their verdicts.
● Jurors have the right to deliver a general verdict and are not required to explain the reason for their verdict.
● Jurors have the legal authority and the ethical duty to consult their consciences and to render a just verdict, even if it requires setting aside the law when strictly enforcing it would be unjust.

“While the Denver DA’s office seems intent on creating countless fully informed jurors nationwide with the publicity surrounding the erroneous arrests of and charges against Mr. Iannicelli and Mr. Brandt, we would really like everyone to be able to exercise their First Amendment rights to teach others about jury nullification without fear of being abused by police and prosecutors under color of law,” Tynan said.

About the Fully Informed Jury Association
The Fully Informed Jury Association (FIJA) is a 501(c)(3), non-profit, nonpartisan, educational organization headquartered in Helena, Montana. Focusing on issues involving the role of the jury in our justice system, FIJA seeks to preserve the full function of the jury as the final arbiter in our courts of law by informing everyone about their rights, powers and responsibilities in delivering just verdicts when serving as jurors. The organization does not advocate for or against any case in progress, but rather seeks to fully inform everyone of all their options when serving on juries. This includes the option to conscientiously acquit when a just verdict requires it by voting Not Guilty, even if they believe the law has technically been broken, without fear of punishment for their verdict.

FIJA’s national office conducts its campaign solely through educational outreach programs and materials. A variety of brochures and other materials are available for free download by anyone from the online Library or can be purchased through the online Media Catalog. Many juror rights educators use these brochures for general educational outreach at courthouses, at fairs and festivals, at public speaking engagements, and so on.

Related Documentation
Complaint
Exhibit 1
Exhibit 2
Exhibit 3
Motion for Preliminary Injunction

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Jury Nullification | 14 Aug 2015

-Are Your Jury Nullification Outreach Efforts Being Chilled in Denver?

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photo credit: Janet Matzen

photo credit: Janet Matzen

Call to All Colorado Juror Rights Educators

If you have been considering doing juror rights outreach in Denver, Colorado but your willingness to exercise your First Amendment-protected right to do so has been chilled due to the threat of arrest, especially in light of the recent arrests of Mark Iannicelli and Eric Brandt, we would like to hear from you ASAP (aji@fija.org or 406-442-7800)!

An injunction is being filed on Monday barring the Denver Police Department from arresting people for passing out jury nullification literature in the plaza area of the Lindsey-Flanigan Courthouse, and there is a short window during which such people can sign on as plaintiffs to the injunction. This would not cost them anything. We just want plaintiffs who actually want to pass out literature in front of the courthouse.

As Jury Rights Day is coming up on September 5, this would be a great time to plan a Jury Rights Day event, and get one of FIJA’s free event kits for it! We celebrate Jury Rights Day on September 5 each year in commemoration of the famous jury nullification case of William Penn in 1670, which not only firmly established the right of jurors to vote Not Guilty for any reason without punishment, but also helped ground freedom of speech in English common law and in United States jurisprudence.

While the Denver DA’s office seems intent on creating countless fully informed jurors nationwide with the publicity surrounding the erroneous arrests of and charges against Mr. Iannicelli and Mr. Brandt, we would really like everyone to be able to exercise their First Amendment rights to teach others about jury nullification without fear of being abused by police and prosecutors under color of law.

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FIJA in the News & Function of Juries & History of Jury Nullification & Jury Nullification | 14 Aug 2015

-Jury Nullification Case is First Amendment Issue

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photo credit: Janet Matzen

photo credit: Janet Matzen

We understand that the Denver District Attorney will be subpoenaed in connection with the recent arrests of two juror rights educators in Denver, Colorado. Mark Iannicelli and Eric Brandt have been charged with seven counts each of alleged jury tampering, simply for distributing information on jury nullification. Iannicelli and Brandt are being harassed by the Colorado district attorney’s office for exercising their freedom of speech, which is supposedly guaranteed under the First Amendment to the United States Constitution.

Defense in Jury Nullification Case will Subpoena Denver DA

As this is seen as yet another case that is described as an ongoing law enforcement challenge to the First Amendment of the Constitution against area activists, Iannicelli was in court on Tuesday, and Brandt appeared on Wednesday to express that they intend to move their cases forward. The cases are expected to be combined with both Heymann and civil rights attorney David Lane as defense counsel.

In an initial appearance by Brandt on Wednesday, Lane opened with a statement to Denver County Court Magistrate Judge Kate Boland:

“Your honor this is classic First Amendment protected speech. [Iannicelli and Brandt] were not targeting any specific person. They were not targeting any specific case. They were not targeting any specific ideology. People going into the building were being given pamphlets by Mr. Iannicelli and Mr. Brandt. That is the definition of First Amendment protected free speech.”

Lane later told KGNU why he decided to take the case,
“[Brandt] is a political prisoner. He is being incarcerated for his sign saying, ‘F…CK THE COPS,’ he has now been incarcerated for passing out literature in front of the Denver courthouse. That is the quintessential idea of free speech. But Mitch Morrissey’s District Attorney thugs and their police officers that enforce these unconstitutional commands of his, are turning this into a police state. Vladimir Putin would be proud.”

KGNU’s report provides some insight as to why the District Attorney’s office might be particularly fearful at this time of the prospect of having to prove cases before fully informed jurors, aware of their right to conscientiously acquit via jury nullification:

Recent local cases could be used as examples of dumbing down the jury pool as well. During jury selection for a July 29, 2015 trespassing trial involving human rights activist Caryn Sodaro, Judge Nicole M. Rodarte added an atypical question of the potential jurors, the wording of which was carefully constructed prior to jury selection, “Were you approached by anyone who handed you information on your way to jury duty?” Prosecutors at that trial had complained to the judge about the FIJA pamphlets and wanted any potential juror who had received one to be removed from the selection process. During questioning about juror exposure to the literature, only one juror said that he was approached but that he declined to accept the information. Incidentally, that juror was excused from jury selection.

Previous coverage of this case:
Denver DA Doubles Down on Jury Nullification Arrests
Updates on Mark Iannicelli Arrest for Jury Nullification Education
Man Sharing Jury Nullification Information Arrested in Denver

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Jury Nullification | 12 Aug 2015

-Denver DA Doubles Down on Jury Nullification Arrests

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photo credit: Janet Matzen

A second juror rights educator has been arrested this past weekend in Denver. According to another press release from the Denver DA’s office, Eric Brandt is also charged with seven counts of alleged jury tampering.

This morning I requested the charging document and probable cause statement from the contact person listed on the press release, but haven’t yet seen it. Therefore, I speculate that the seven charges are probably for violations of the same law that Mark Iannicelli is accused of violating.

That law, C.R.S. 18-8-609, 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.

As in Mr. Iannicelli’s case, I see nothing in the press release that meets the definition of the violation of which Mr. Brandt is accused. I have also briefly spoken with Mr. Brandt on the phone several days ago, and nothing that he described as far as the juror rights outreach activities taking place meets the definition of jury tampering either.

Yet the Denver DA seems to have doubled down for some reason, in choosing to charge Mr. Brandt in addition to Mr. Iannicelli. It is not clear why the DA’s office waited for more than a week after charging Mr. Iannicelli to charge Mr. Brandt.

Mr. Iannicelli’s first court date in this matter was yesterday. According to one report, the judge in the case would not commit to joining the two cases, which seem to be for the exact same thing from what I know at this point. However, he did reportedly allow the attorneys for the defendants in these cases to subpoena all the complainants, including the district attorney:

Denver DA Mitch Morrissey to be subpoenaed in jury tampering case of Mark Iannicelli and Eric Brandt

The target of a recent recall effort, the Denver DA won’t indict killer cops or sheriff’s deputies, but Morrissey and his cronies in the DPD will have to show up August 31 at 8:30am to account for the abridged First Amendment rights of Messrs Brandt and Ianicelli.

Previous coverage of this case:
Updates on Mark Iannicelli Arrest for Jury Nullification Education
Man Sharing Jury Nullification Information Arrested in Denver

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History of Jury Nullification & Jury Nullification | 05 Aug 2015

-John Adams’ Notes on the Right of Jury Nullification

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JohnAdamsJury

The above graphic features a famous quote from John Adams regarding the right—and duty—of jury nullification in accordance with a juror’s best judgment and conscience. But where does it come from?

At a FIJA supporter’s request, I tracked it down and now the source material has found a home on the FIJA website here:

From the Diary of John Adams on the Right of Juries, 12 February 1771

And what moved Adams to pen some notes on this subject in his diary in 1771? According to the Massachusetts Historical Society, these note have:

…every appearance of having been written for a newspaper, but no printing has been found. Samuel M. Quincy, the editor of Josiah Quincy Jr.’s Reports, plausibly suggested that at least some passages in it were originally “part of [JA's] preparation for the argument” in the case of Wright and Gill v. Mein, which had come before the Suffolk Inferior Court, Jan. 1771, and was appealed to the next sitting of the Superior Court (Quincy, Reports, Appendix II, p. 566–567).

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Jury Nullification | 04 Aug 2015

-Updates on Mark Iannicelli Arrest for Jury Nullification Education

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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

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Function of Juries & Jurors Doing Justice & Jury Nullification | 31 Jul 2015

-How Jury Nullification Played into the Carriker Acquittal

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Webster_County,_Nebraska_courthouse_courtroom_3 (1)

I had a long, post-acquittal chat yesterday with Joe Grumbine of The Human Solution International regarding the dramatic and very encouraging acquittal of Kyler Carriker in Wichita, Kansas. Joe attended much of the trial in person and shared many insights as to how jury nullification played into this case.

By way of a brief summary of the case, Kyler Carriker was charged with felony murder even though he had not killed anyone or had in any way anticipated that his peaceful actions would be tied to a violent crime. What he actually did was introduce people to a pot dealer. The people were an old high school buddy who he had recently reconnected with but wasn’t well acquainted with anymore and some of his associates who Carriker didn’t know. Unbeknownst to Carriker, the purported customer and his entourage did not intend to purchase marijuana, but rather were surreptitiously planning to take it by force. And they proceeded to do so with both the murder victim, Ronald Betts, as well as Carriker being shot in the process.

Carriker, who had no prior criminal record, was charged under Kansas’ felony murder law, not because he had any part in the murder or had any knowledge that a killing was going to take place, but rather on the basis that he was involved in a felony that was inherently dangerous or likely to result in death.

But wait! you might protest, as did a commenter on the FIJA Facebook page. The defendant was aiding in a pot transaction and had no idea that violence would ensue. This is hardly an inherently dangerous offense likely to result in death. This merely a case of overcharging and the jury delivered a regular acquittal in which the charge was not proved beyond a reasonable doubt. Surprisingly to many, though, you would be wrong.

As it turns out, in 1998 Kansas added marijuana offenses to its list of inherently dangerous felonies and then in 2013 further amended the law to apply this to middlemen such as Carriker just three months after the death of Ronald Betts, and retroactively applied it to the Carriker case. That would make this a nullification.

That, it turns out, is not the end of the evidence for nullification. According to Grumbine, the jury was polled after the verdict was delivered and comments, including comments from the jury foreman, indicate this was charge was returned Not Guilty by way of jury nullification. That is consistent with the facts that the jury did convict Carriker of a less serious charge related to the drug deal, which would have made him also guilty of the more serious violation under strict application of the law, and that the jury deliberated for several hours over the course of two days.

Moreover, despite the prosecution going to great lengths to keep from the jury any information regarding the egregiously harsh mandatory minimum sentence Carriker faced and the jury’s right to judge the law and acquit by way of jury nullification, the state made a major slip up in court. Despite getting the judge’s approval of a motion in limine that reportedly would curtail informing the jury about its right to conscientiously acquit, Grumbine reports that the prosecution then itself brought up the topic in court. Once the prosecution brought it up, that opened the door for Carriker’s attorney Sarah Swain to respond, invoking language that informed the jury that they could bring in any verdict they saw fit and could not be punished for it.

I have so far seen none of these details being reported in the mainstream news, even though they seem like they would have been highly influential in the outcome of the case.

This is quite amazing and unusual in this type of trial. According to Grumbine, the judge even had words for the prosecutor for this screwup on the state’s part. The bottom line for juror rights educators is that this was an extremely fortunate occurrence, but it is going to be a long time before something like this should happen again.

It is critical that we all be creating fully informed jurors NOW and not waiting until a particular trial we are interested is on the horizon. Jurors in nearly all cases will be kept in the dark at best, or outright misinformed in the courtroom, about their right to conscientiously acquit and uphold justice above the law. We must give them the knowledge and the confidence to exercise jury nullification for justice BEFORE they step foot inside the courthouse.

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Function of Juries & Jurors Doing Justice & Jury Nullification | 30 Jul 2015

-Jury Nullification for Carriker in Ridiculous Felony Murder Case

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Webster_County,_Nebraska_courthouse_courtroom_3 (1)

I got news this afternoon from Joe Grumbine of The Human Solution International of a Not Guilty verdict in the case of Kyler Carriker, accused of felony murder. “This whole case was about jury nullification and bad law,” Joe reports.

Carriker was not involved with the killing, but was charged under a state law that lets the government charge certain other people with murder who are present when the murder takes place but did not actually commit the crime. In this case, Carriker was scooped up by the law and charged with murder merely for introducing the person who committed the actual murder to a pot dealer. He had no idea in doing so that this was going to be anything other than a peaceful transaction. Thankfully, a jury saw that treating his victimless action as a murder was DRASTICALLY out of bounds of justice.

Man found not guilty of murder in drug deal

“We have said from the beginning that Kyler Carriker was not a murderer,” [Carriker's attorney] Swain said. “He should not have been charged with felony murder. He was in the wrong place at the wrong time.

“He was shot by the real murderers, who are in prison. I think the jury’s verdict shows that that’s what they believed also.”

Kansas’ felony murder law allows prosecutors to bring murder charges against a person implicated in but not directly responsible for a killing that occurs during the execution of a felony crime.

Unfortunately, it appears that the jury left the door open by convicting Carriker of helping to facilitate a quarter-pound marijuana deal. This raises cause for concern in a legal environment where judges have the ability to sentence defendants for uncharged and even acquitted conduct.

Consider the case of Jones v. United States, turned down for review last year by the Supreme Court of the United States:
The jury acquits, the judge still sentences. Can that be?

The jury in the case of three Washington, D.C., men found them not guilty of a conspiracy to run an “open air” market for large quantities of illegal drugs on the streets of the nation’s capital, but it did find them guilty only of selling small quantities. If the sentencing had followed those results, the three men would have faced sentences under federal guidelines of between thirty-three and seventy-one months.

The judge, however, decided that sentencing could also take into account the conduct that had led to the more serious conspiracy charge (the so-called “acquitted conduct”) and opted to give the three men sentences ranging from 180 to 225 months. They argued unsuccessfully, in a federal appeals court, that the longer sentences violated their Sixth Amendment right to have a jury decide the issue of guilt. The judge, in essence, convicted them of the more serious offense, too, despite the jury’s contrary verdict.

This is just one of the underhanded ways courts have found to do an end run around a jury’s verdict when the outcome doesn’t suit their different interests tilted toward conviction and mass incarceration. His attorney will be seeking probation on this count, but the jury could have closed the door on this nightmare by nullifying on the other victimless count as well. Let us hope that sanity, decency, and mercy prevail when all is said and done in the sentencing phase.

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