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FIJA in the News & Jury Nullification & Volunteer | 01 Dec 2017

-Another WIN in Denver!

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Yesterday, the Colorado Court of Appeals upheld a district court’s dismissal of false jury tampering charges against juror rights educators Mark Iannicelli and Eric Brandt.

The Court of Appeals opinions for the defendants are located in .pdf format here and here.

Mark Iannicelli and Eric Brandt were arrested on two separate days at the Lindsey-Flanigan Courthouse in Denver, Colorado. They were falsely charged with seven felony counts each of jury tampering for handing out FIJA flyers.

Colorado’s jury tampering statute, C.R.S. 18-8-609, states:
“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.”

As juror rights educators do at many courthouses nationwide, Iannicelli and Brandt had been offering FIJA literature to numerous people who had business at the courthouse that day. Government agents tracked down several people who had been called for jury duty who had received the flyers and tried to suggest that anytime one of them had received a flyer, that constituted a separate count of jury tampering.

Not so, said a district court judge, who ruled that:
“[T]hey engaged in an activity that’s certainly no different from citizens of this county, this state, this city, holding up signs in a place where they knew jurors would see them, signs such as, you know, free the Chicago Seven or Eight, don’t convict so and so, and that’s similar — that’s speech. It’s similar to what the defendants did in this case. Activities such as those are protected by the First [A]mendment, because they are speech, they are in a public place, and I think that’s all the Court needs to — that’s as far as the Court needs to go.”

But the prosecution was not content to accept an interpretation of the law that would permit juror rights educators to engage in peaceful educational activity that threatens the ability of an assembly line-style legal system to churn out the convictions that are prosecutors’ bread and butter. The ruling was appealed. As I recall, I think there was an attempt by prosecutors to leapfrog the Court of Appeals and go all the way to the Colorado Supreme Court, but that does not seem to have worked out.

Just yesterday the Colorado Court of Appeals upheld the district judge’s ruling. The opinion distinguishes between generally handing out FIJA brochures—even to people called for jury duty or those seated as jurors—from the more narrow meaning of jury tampering intended in the statute:
“In sum, we hold that section 18-8-609(1) applies only to attempts to improperly influence jurors or those selected for a venire from which a jury in a particular case will be chosen. Because the People didn’t charge defendants with attempting to influence such a person (as they concede), it follows that the district court didn’t err in dismissing the charges.”

At this point it is not clear if this victory will put a stop to the government harassment of Iannicelli and Brandt, which has been ongoing for more than two years now. It seems possible that this could potentially be appealed to the Colorado Supreme Court. Whether or not that is likely is not yet clear. However, we do know that former Denver District Attorney Mitch Morrissey, under whose leadership this vendetta was initiated, is now out of office. The newly elected district attorney, Beth McCann, reportedly has herself won a case via jury nullification. It seems possible that her attitude on the subject may be different.

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