All charges have been dropped for two men charged with jury tampering after they handed out pamphlets in front of the Lindsey-Flanigan Court in Denver.
Mark Iannicelli and Eric Brandt were arrested and charged with seven counts of jury tampering in July 2015.
Upon their arrest, the two took matters into their own hands and launched a federal lawsuit against the city of Denver for violating their First Amendment right to freedom of speech.
In the civil federal lawsuit, U.S. District Judge William Martinez ruled in their favor, citing passing out pamphlets on public property is considered freedom of speech.
Iannicelli and Brandt were passing out jury nullification pamphlets to potential jurors. They were arrested because Colorado law bans a person from communicating with a juror to influence their vote.
Jury nullification is the right of a jury to acquit a defendant despite the belief the defendant is guilty of the charge. It usually is effective in victimless crimes like marijuana possession.
Under jury nullification law, which was established in 1670, a defendant may be acquitted under the grounds the jury feels like the law in which the defendant is charged is unfair, immoral, biased or incorrectly applied.
The pamphlets were handed to potential jurors who were not yet active jurors, so the Colorado law would not apply to Iannicelli and Brandt’s case, according to the Denver Post.
Denver District Court Judge Kenneth Plotz ordered the criminal charges against the two men be dropped. Judge Plotz harnessed the fact that Iannicelli and Brandt broke no laws, and all of their pamphlet distribution activity was protected by the First Amendment.
Even Denver City Attorney Scott Martinez agreed that pamphlet distribution on public property is within the free speech realm of the First Amendment. Martinez even went as far to tell Denver police and sheriff deputies to stop arresting people for First Amendment protected activity on public property.
During the federal lawsuit launched by Iannicelli and Brandt, their attorney David Lane referred to the Denver Police Department saying:
“The Defendants are using the Jury Tampering statute as an excuse for squelching free speech, The Defendants are fearful that the message of jury nullification may take root in the minds of sitting jurors who would then ignore the instructions of a court and acquit criminal defendants despite their having been proven guilty at trial beyond a reasonable doubt.”
Lane also accused the city of Denver of “de facto prior restraint”, which censors speakers based on the views they express.
The district attorney’s office is considering appealing the dropped criminal charges, but that is a threat that does not surprise Brandt.
“One, the D.A. is embarrassed and does not want to look like a loser, but of course, he is a loser,” he told PINAC News.
“Two, he knows that if he loses a case, he is at risk of a civil lawsuit and I expect to sue him. He can delay civil action by appealing and if we can ultimately win, he can avoid it. He must appeal to save face.”