Defense in Jury Nullification Case will Subpoena Denver DA

Two jury rights activists are facing felony counts of jury tampering after they distributed educational brochures to the public.

“This is the weakest possible case for jury tampering in American history.  I predict these counts will all be dismissed and that [Iannicelli] will have a decent lawsuit for malicious prosecution,” wrote Roger Roots, member of the Board of Advisers for the Fully Informed Jury Association (FIJA) of Helena, Montana about the arrest of jury rights activist Mark Iannicelli.  The association consists of activists and attorneys and operates nationwide to educate the public of their rights and options as jurors.  The pamphlets that FIJA produces not only outline juror rights but also juror duties, and juror veto power that they say judges in the United States are failing to inform jurors of while in the courtroom.

One publication titled:  Your Jury Rights, True or False, and another:  Fresh Air for Justice were two pamphlets that Iannicelli and his associate Eric Brandt were distributing outside of the Denver Lindsey Flanagan Courthouse earlier this month when Ianicelli was arrested and charged with seven counts of felony jury tampering.  Civil rights attorney Lonn Heymann happened to be in the immediate vicinity to witness the arrest and later agreed to represent Iannicelli.

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.

At the 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.”

Eric Brandt has displayed his F…CK THE COPS flag, banner, and sign in public on many occasions in the past few months.  Outside of the Lindsey Flanagan Courthouse, passersby were seen stopping to take his picture or forming lines to pose with Brandt for a picture.  His displays have been seen ripped from his hands and destroyed by police, most recently at the memorial march for Paul Castaway on July 14, 2015.  Castaway was fatally shot by Denver Police on July 12, 2015.

Ianicelli is free on a personal recognizance bond.  Brandt was ordered to pay a $3,500 bond to which attorney Lane objected, “Well note my objection to the utter disregard for the First Amendment and the Constitution.  It’s no different than Vladimir Putin’s Russia where political dissidents will go to jail.”

In court on Tuesday, defendant Mark Iannicelli told KGNU that District Attorney Mitch Morrissey would be subpoenaed to appear on this case because of events that took place during his arrest, “After I sat in the car for a while, the cop was talking on his cell phone, I believe to the Assistant District Attorney.”  Morrissey was the subject of a recent recall attempt by groups who objected to his failure to indict any officer for any police fatal shooting during his term.  Although the recall was short of signatures, organizers who began the recall effort acknowledged their intent to make a statement about the number of residents who wanted Morrissey out of office.  His term will expire next year.

Kirsten Tynan, Executive Director of FIJA -the producer of the jury education literature- told KGNU that their organization is monitoring the Denver case,

“In 2012 there was a case of a jury educator working at the Southern District Court of New York in Manhattan who was actually doing something very similar.  He had a ‘Jury Info’ sign and he was handing out literature to people as they passed by.  And in that case, an FBI agent came out of the courtroom posing as a juror and asking for information.  And this activist gave him the information, didn’t tell him to vote one way or the other in any case, didn’t know if he was involved in any case.  He only knew what the [FBI agent] had told him which turned out to be false.  And he was actually arrested for that and charged also with jury tampering under federal law.  But his indictment was thrown out by Judge Kimba Wood of that court.  She explained in great detail why general education outreach does not constitute jury tampering.  We’re not asking about what cases they’re involved in, or even know if they’re involved in a case, we’re not trying to sway their decision on a particular case or anything like that.

We’re just saying, ‘here are all the options you have and here’s one option that you’re not likely to be told in court.’  What they do with that information if they are a juror is up to them.  If they’re not a juror whether they use that in the future someday when they become a juror is up to them.  All we’re doing is presenting the options.”

Those options are spelled out in the literature.  The pamphlets point to how judges fail to “fully inform” jurors of their rights.  Specifically the literature describes how judges typically do not inform jurors of their right to evaluate the law or to impose a verdict representing the juror’s conscience.  According to FIJA, to the contrary what results in practice are judges who are facilitating the loading of jury pools with jurors who are not fully aware of their rights or who would otherwise question the validity of the law alleged to have been broken such as the fugitive slave laws of the 1800s:

Jury nullification is about jurors voting Not Guilty in cases where the law has technically been broken.  For example, in the 1850s, there was a series of cases known as the Shadrach Rescue Cases, regarding defendants who helped rescue an alleged fugitive named Shadrach Minkins in violation of the Fugitive Slave Act.  Although most, if not all, of these defendants were guilty, these cases resulted in hung juries and acquittals only, without a single conviction.  After being utterly humiliated in the first seven trials, the federal government abandoned prosecution of any other cases.  So none of the juries found these defendants guilty-all were either mistrials or acquittals.

A juror’s right to disregard a judge’s instructions is another point made in the literature.  FIJA cites the Nuremburg Nazi trials where existing law protected those committing human rights abuses yet were still found guilty of crimes as a result of juries voting their consciences.

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 potential juror said that he was approached but that he declined to accept the information.  Incidentally, that prospective juror was excused from jury selection.

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