Man charged with jury tampering — for handing out fliers about jury nullification

August 4, 2015 in News by RBN Staff

A Colorado man faces multiple charges of jury tampering for standing outside a Denver courthouse and distributing information about jury nullification.

Source: Personal Liberty
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mark iannicelliMark Iannicelli was charged with seven counts of jury tampering for allegedly setting up shop in front of the Lindsey-Flanigan Courthouse in Denver and handing out fliers that explain to potential jurors that they have the power to disagree with any law that, if applied, would lead them to a guilty verdict against a person whose actions do not merit true punishment.

According to The Denver Post, “… Iannicelli, 56, set up a small booth with a sign that said ‘Juror Info’ in front of the city’s Lindsey-Flanigan Courthouse, prosecutors say.

“The Denver District Attorney’s Office says Iannicelli provided jury nullification flyers to jury pool members.”

Private citizens’ telling potential jurors that they should follow their conscience, instead of the law, shouldn’t be a crime, Eugene Volokh wrote in 2011.

“It seems to me that such speech is constitutionally protected, and that the indictment therefore violates the First Amendment,” he wrote. “One can debate whether jury nullification is good or bad for the legal system, but it’s clear that it’s not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict.”

Here’s Volokh’s hypothetical scenario to test the constitutionality of holding nullification advocates criminally accountable:

Here’s a concrete hypothetical for looking at this: Say that [another man accused of tampering,] Mr. [Julian P.] Heicklen’s brother stands on a street corner and hands out leaflets to passersby praising the propriety of jihad, of bombing abortion clinics, or of a range of other crimes. That speech is protected by the First Amendment, despite the possibility that it might persuade some recipients to commit very serious crime. See Brandenburg v. Ohio. And if the government argues that restricting such speech is narrowly tailored to a compelling government interest in preventing murder or other crimes, the courts will reject that, again citing Brandenburg.

Now the other brother, Mr. Heicklen himself, stands a block over, handing out to jurors leaflets praising jury nullification. The government argues that restricting such speech is narrowly tailored to an interest in having jurors decide based on the instructions that the court gives them — an interest that, even if seen as very important, is less important than the interest in preventing murder. How can it be that one brother’s leaflets urging non-criminal but, in the view of some, socially harmful behavior (even such behavior by jurors) are constitutionally unprotected while the other brother’s leaflets urging criminal, indeed murderous, behavior are constitutionally protected?

For more about Heicklen’s ordeal with the law over his handing out of nullification pamphlets, see this 2011 article from The New York Times.