Denver judge dismisses charges against jury nullification activists

A Denver District Court judge dismissed Wednesday all charges against two men charged with jury tampering after handing out pamphlets in front of the courthouse.

Mark Iannicelli and Eric Brandt were each charged with seven counts of jury tampering. The men, who are regular fixtures in Denver’s protest community, in July were distributing jury nullification literature to people entering the courthouse.

Denver District Court Judge Kenneth Plotz ordered the charges to be dropped after a motions hearing.

Their arrests led to a federal civil rights lawsuit where U.S. District Judge William Martinez ruled the pamphlets were protected speech and the men had the right to hand them out on courthouse grounds.

David Lane, the attorney who represented Iannicelli and Brandt in both cases, said the federal judge’s ruling helped boost his arguments for having the criminal charges dismissed.

He accused prosecutors in District Attorney Mitch Morrissey’s office of overreaching and abusing their power. People have a constitutional right to protest and distribute literature in public places, Lane said.

“It would be perceived as a losing battle for a first-year law student,” Lane said of the charges.

Now, Lane said he is considering whether he will file a federal lawsuit against the prosecutors for arresting and jailing his clients.

Lynn Kimbrough, a spokeswoman in the district attorney’s office, said prosecutors are exploring their options for appealing the judge’s decision.

“The District Attorney strongly supports the First Amendment and the right to free speech,” Kimbrough said. “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.”

The case over the jury nullification pamphlets captured people’s attention on many fronts.

In the federal lawsuit, the Denver city attorney sided with the protestors even though the lawsuit named Denver’s police chief. The city attorney said the grounds outside the Lindsey-Flanigan courthouse on Colfax Avenue always have been a public, free speech zone.

Lane has been a longtime foe of City Hall, winning millions of dollars in legal settlements over the years.

The case also led to a dispute between the city and state court officials, who sought to ban all public demonstrations outside the building.

Around the same time the lawsuit was filed, Denver District Court’s chief judge issued a sweeping ban on all sorts of public demonstrations outside the courthouse in the name of security.

Lane challenged that order, too.

The back-and-forth energized protestors, who returned to the Denver courthouse in full force after the federal judge’s order. They set up tents, flew banners and banged on buckets to draw attention to their cause.

Throughout it all, the Montana-based Fully Informed Jury Association said the arrests brought more attention to their cause than they had ever expected.

Jury nullification is based on an obscure legal act from the 1600s that allows jurors to acquit defendants because they believe a law is immoral or unjust.

Noelle Phillips: 303-954-1661, nphillips@denverpost.com or @Noelle_Phillips