Two men who handed out brochures on jury nullification at the courthouse did not violate Colorado’s jury tampering statute, a divided Colorado high court ruled. The majority reasoned in People v. Iannicelli that the men did not violate the law because their brochures did not reference a particular case.
Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flannigan Courthouse in Denver and handed out brochures that discussed jury nullification. The concept of jury nullification is the process by which a jury does not apply the law and acquits a defendant despite a belief that the defendant is guilty because jurors believe a law to be immoral or should not have been applied to the person at trial.
Authorities charged the two with violating Colorado’s jury-tampering statute, which provides that “a person commits jury tampering if, with intent to influence a juror’s vote, opinion, decision or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of a case.”
The law also defines a juror as “any person who is a member of any jury or grand jury impaneled by any court of this state [and] includes any person who has been drawn or summoned to attend as a prospective juror.”
Iannicelli and Brandt filed a motion to dismiss, contending that the law violated the First Amendment both on its face and as applied to them. A trial court determined the law was unconstitutional as applied to the two men. The Colorado Court of Appeals affirmed but for a different reason. The intermediate appellate court determined that the charges should be dismissed because the statute only prohibits attempts to influence persons sitting on an actual jury or in the jury pool for a specific case.
On further appeal, the Colorado Supreme Court also affirmed the dismissal, albeit on slightly different grounds. The Colorado high court reasoned the statute was unconstitutional as applied to the two defendants because defendants’ efforts “to influence a juror must be directed to a specifically identifiable case.”
Writing for the majority, Justice Richard L. Gabriel emphasized that the case involves a balance between the First Amendment right to free speech and the state’s interest in the orderly administration of justice. He quoted U.S. Supreme Court case law for the principle that “handing out leaflets in the advocacy of a politically controversial viewpoint … is the essence of First Amendment expression.”
He determined that under the law, “juror” means any person called to jury duty, not just someone sitting on a particular petit or trial jury. Thus, a defendant could violate the law by approaching a person reporting for jury duty and telling the prospective juror that if he/she is selected to sit for a specific case, he/she should vote not guilty.
However, he also determined that the jury-tampering law use of the word “case” means “the specific case to which the actor’s efforts to influence a juror are directed.” He concluded that the law’s “prohibition against jury tampering is limited to attempts to influence a person’s vote, opinion, decision or other action in a specifically identifiable case.”
Applied to the defendants’ case, Gabriel noted that the two men handed out their brochures to prospective jurors without ever mentioning specific cases. “Indeed, Iannicelli and Brandt do not appear to have been concerned with any particular case,” he wrote.
Justice Carlos A. Samour Jr. dissented, noting that “[t]rial by jury is a bedrock of our justice system and, by extension, of our democracy.” He wrote that advocating for jury nullification “threatens the integrity of judicial proceedings and undermines the public’s trust in the justice system.”
Unlike the majority, Samour reasoned that the term “case” in the law refers to any case and could refer to multiple cases. He warned that the majority’s interpretation “improperly shrinks the scope of the jury tampering statute nearly to the point of extinction.”
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).