District Court Judge Kenneth Plotz dismissed all charges on Wednesday against jury nullification activists Eric Brandt and Mark Iannicelli, who had been charged in July with seven felony counts of jury tampering while handing out Fully Informed Jury Association flyers with general information about jury nullification outside of the Lindsey-Flanigan Courthouse in Denver.
Jury nullification is a term that describes scenarios in which a jury refuses to convict a guilty defendant under the rationale that the law itself is unjust or inappropriately applied. While jurors do have the power to nullify convictions, defense attorneys in most U.S. states are not allowed to explain that fact.
When Brandt and Iannicelli distributed their flyers from a booth outside of the courthouse, officials accused them of handing the flyers out to “actual and potential jury pool members” and noted that a death penalty case was underway.
Lynn Kimbrough, a spokesperson for District Attorney Mitch Morrissey’s office, told The Denver Post, “The District Attorney strongly supports the First Amendment and the right to free speech. 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.”
However, the two activists were handing the flyers out indiscriminately to everyone in an effort to raise general awareness of the concept of jury nullification, not to specific known jurors of a particular case in an attempt to sway them against a conviction.
“In dismissing the charges, [Judge Plotz] noted that such charges for handing out FIJA brochures amounted to an unconstitutional application of the jury tampering law and swept in speech that is protected under the First Amendment,” wrote Fully Informed Jury Association executive director Kirsten Tynan. FIJA is an activist group that educates the public about jury nullification.
She added, “Earlier this year, a federal court judge granted an injunction sought by attorney David Lane on behalf of the Fully Informed Jury Association and co-plaintiffs Eric Verlo and Janet Matzen to prevent any further such unconstitutional arrests. The court made clear at that time that such activity is protected under the First Amendment. Nonetheless, Denver District Attorney Mitch Morrissey chose to continue his vendetta, wasting even more taxpayer dollars and harassing harmless Colorado residents, as he refused to drop the charges against Iannicelli and Brandt.”
Attorney David Lane, who represented Iannicelli and Brandt, said that District Attorney Morrissey abused his power in bringing the charges against his clients. “[Morrissey’s charges] would be perceived as a losing battle for a first-year law student,” he added. Lane is weighing a federal lawsuit against Morrissey for charging his clients with felonies for exercising their First Amendment rights.
“We look forward to adding yet another such victory in the case of Keith Wood, a juror rights educator also abusively mischarged in recent weeks by disgruntled courthouse officials in Mecosta County, Michigan,” said FIJA executive director Tynan, who also claimed that the media coverage surrounding Brandt and Iannicelli’s arrests brought an unexpected and unprecedented level of attention to the concept of jury nullification.
After the charges were dropped, Eric Brandt reportedly paraphrased the Edmund Burke attributed quotation, “All that is necessary for the triumph of evil is that good men do nothing,” and added triumphantly, “I chose not to stand by [and do nothing]. The world is run by those who show up. I elected to show up.“