Denver DA’s prosecution of jury nullification pamphleteer runs afoul of First Amendment

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Last week Denver District Attorney Mitch Morrissey charged a local political activist, Mark Iannicelli, with seven counts of jury tampering, a felony punishable by one to three years in prison, for handing out pamphlets in front of the Lindsay-Flanigan Courthouse. Morrissey’s office says “Iannicelli set up a small booth with a sign that said ‘Juror Info’ in front of the courthouse and provided jury nullification flyers to jury pool members.” According to the Fully Informed Jury Association (FIJA), Iannicelli distributed a FIJA brochure explaining that jurors have a “right to judge the law itself and vote on the verdict according to conscience,” along with “a flyer from another organization.”

icon_blog_noteYou may wonder how threatening someone with prison for passing out political literature can possibly be consistent with the First Amendment. The short answer is that it’s not. The longer answer is that local and federal officials periodically harass activists like Iannicelli under the pretense of preventing unlawful interference with jury deliberations. The statute cited by Morrissey makes it a Class 5 felony to “communicate with a juror” outside of judicial proceedings with the intent to influence the juror’s “vote, opinion, decision, or other action in a case.” But Iannicelli was not trying to affect the outcome of any specific trial at the courthouse. He was merely passing out pamphlets with general information about the rights of jurors.

A few years ago, as FIJA points out, U.S. District Judge Kimba Wood ruled that such activity does not qualify as jury tampering under federal law. The case involved Julian Heicklen, a retired chemistry professor who distributed FIJA pamphlets near the entrace to the federal courthouse in Manhattan while holding a sign that said “Juror Info.” Heicklen was accused of violating Title 18, Section 1504 of the U.S. Code, which authorizes a jail sentence of up to six months for anyone who “attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter.” Kimba concluded that Heicklen’s general advocacy of a jury’s right to judge the law as well as the facts of the case before it, a.k.a. jury nullification, did not violate this statute, which “criminalizes efforts to influence the outcome of a case, but exempts the broad categories of journalistic, academic, political, and other writings that discuss the roles and responsibilities of jurors in general.”

Wood added that “a broad reading of 18 U.S.C. § 1504 could raise First Amendment problems because of its potential to chill speech about judicial proceedings.” She observed that “the relevant cases establish that the First Amendment squarely protects speech concerning judicial proceedings and public debate regarding the functioning of the judicial system, so long as that speech does not interfere with the fair and impartial administration of justice.” Wood said First Amendment concerns reinforced her conclusion, based on “the plain meaning of the text” and the history of its interpretation, that “a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of written communication made in relation to a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.”

Wood’s First Amendment concerns were not at all fanciful, as illustrated not only by Heicklen’s prosecution but by the astonishingly broad view of jury tampering advocated by Preet Bharara, the U.S. attorney for the Southern District of New York. In a brief supporting their case against Heicklen, Bharara’s underlings claimed that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” As George Washington University law professor Paul Butler pointed out in a 2011 New York Times op-ed piece, that position makes a criminal out of him and anyone else who dares to write favorably about jury nullification.

It’s safe to say that respect for freedom of speech is not a high priority at Bharara’s office. But Morrissey, who claims to be enforcing a Colorado law with specific intent language similar to the federal statute’s, may want to reconsider his prosecution of Mark Iannicelli for doing essentially the same thing that Julian Heicklen did, which was clearly protected by the First Amendment. Lawyers reportedly were eager to represent Iannicelli, presumably because his constitutional claim is so strong. And if Iannicelli’s case ever goes to trial, FIJA’s Kirsten Tynan notes, prosecutors will face an additional challenge in making their case. “If it did go before a jury,” she writes, “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.”

Jacob Sullum is a senior editor at Reason magazine, where this piece originally appeared

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