Last August, Denver District Attorney Mitch Morrissey charged two local activists, Mark Iannicelli and Eric Brandt, with seven felonies each for passing out jury nullification pamphlets at the Lindsey-Flanigan Courthouse. Morrissey continued to pursue those charges even after conceding that such activity is protected by the First Amendment. When I asked Lynn Kimbrough, Morrissey’s public information officer, what Iannicelli and Brandt had done that crossed the line from constitutionally protected speech to felonious jury tampering, she refused to say. That’s probably because Morrissey had no case, as confirmed on Wednesday when Denver District Court Judge Kenneth Plotz dismissed the charges against both men, which he concluded violated their First Amendment rights.
“The district attorney strongly supports the First Amendment and the right to free speech,” Kimbrough told The Denver Post. “He is also obligated to uphold the laws of Colorado, which prohibit a person from communicating with a juror with the intent to influence a juror’s vote. The charges that he filed in these two cases alleged that specific conduct.”
Not true. The charges allege only that Iannicelli and Brandt handed pamphlets to people after asking if they had been called for jury duty. The seven counts, each of which carries a penalty of one to three years in prison, are based on pamphlets received by seven “jury pool members,” none of whom had been chosen for any particular trial. Contrary to what Kimbrough claims, there was never any evidence that Iannicelli or Brandt was trying to influence the outcome of any specific case.
What happened here is pretty clear: Morrissey abused his office to punish people for speech that offended him. He persisted in that effort even after it became abundantly clear that the charges were unconstitutional, as when a federal judge in Denver ruled that activists have a First Amendment right to do exactly what Iannicelli and Brandt were arrested for doing: passing out literature arguing that jurors have the authority to judge the law as well as the facts. As David Lane, Iannicelli and Brandt’s attorney, told the Post, “It would be perceived as a losing battle [by] a first-year law student.”
Yet Morrissey is not alone in seeking to imprison people for defending principles he abhors. Last month Michigan activist Keith Wood was arrested for handing out jury nullification literature outside the Mecosta County courthouse. Wood was charged with jury tampering, a misdemeanor punishable by a $1,000 fine and up to a year in jail, and obstruction of justice, a felony punishable by a $10,000 fine and up to five years in prison. “We look forward to adding yet another such victory in the case of Keith Wood,” says Kirsten Tynan, executive director of the Fully Informed Jury Association (FIJA), which publishes the pamphlets involved in both of these cases.
FIJA plans to start distributing literature for free “to juror rights educators conducting outreach at any courthouse where juror rights educators have been victorious over arrests and threats of arrests for handing out FIJA literature.” The idea is to teach bullies like Morrissey that trying to stamp out FIJA’s message will only help promote it. Tynan argues that “all incentive for government officials to harass juror rights educators in an attempt to quash our message would immediately disappear if such efforts were guaranteed to do the exact opposite and spread the message much further.”
Jacob Sullum is a senior editor at Reason magazine, where this piece originally appeared.