Tampering with Free Speech

There’s going to be a lot of attention this week to the wedding cake dispute from Colorado that is now before the Supreme Court, but late last week saw a little noticed legal victory for free speech that also arose in Colorado. An appeals court there rejected a bid by prosecutors to put pamphleteers behind bars. In this post, I want to briefly examine that ruling, the arguments by the parties, and the debate over the controversial doctrine known as “jury nullification.”

By way of background, jury nullification refers to the idea that in criminal cases, jurors can vote to acquit a defendant even if they have been persuaded that he violated a criminal statute because they’ve concluded that that is what justice requires. For example, under federal law, possession and use of marijuana is illegal. Even if a woman uses it for medical purposes, federal prosecutors insist that they must decide whether that person should be arrested and jailed. However, in a situation of genuine medical need, if jurors are aware of their prerogative to acquit—even though evidence of her marijuana use was abundantly clear—they would probably do so.

Prosecutors do not like it when their power is checked or diminished so they keep an eye out for possible “threats” to their power and fight back. When it comes to jury nullification, prosecutorial zeal sometimes runs afoul of some of our most basic constitutional principles, including free speech.

In early American history, one cannot find the phrase “jury nullification,” but the doctrine was widely accepted. Our second president, John Adams, once wrote “It is not only the juror’s right, but his duty to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” The law in this area has changed dramatically since the American Revolution. As we shall see, Americans who agree with John Adams can find themselves in handcuffs for merely spreading their ideas.

Mark Iannicelli and Eric Brandt are jury nullification advocates and they went to a courthouse in Denver to distribute pamphlets to passersby. The aim of these activists was pretty obvious-- to provide potential jurors with information they would not otherwise receive from the attorneys and judges inside the courthouse.

To understand their activism, one must appreciate the fact that at the conclusion of a criminal case, the judge will typically tell jurors that it is their job to decide the facts and his job to decide the law. Jurors are told they must set aside their views of the criminal law in question and apply that law to the facts as they find them. The pamphlets explain the concept of what we now call “jury nullification” and encourage jurors to vote their conscience despite what they might hear from the prosecutor or the presiding judge. For persons facing straightforward criminal charges, such as theft, battery, rape, and murder, the jury nullification concept hardly ever comes up since no conscientiousness objections arise there.

And yet, as already noted, prosecutors and judges take a very hostile view of jury nullification advocacy. What typically happens in instances of courthouse pamphleteering is that prosecutors will lodge complaints with the judges and the judges will take some steps to address the “problem” by telling jurors that he has been made aware of some pamphlets circulating around the building recently and that they contain “inaccurate information” and that anyone who can’t agree to follow his legal instructions should raise their hands so they can be excused from jury service. In some cities, however, prosecutors go much further and have jury activists arrested for “jury tampering.” That’s what happened to Iannicelli and Brandt. They were each charged with 7 counts of jury tampering.

Take a moment to consider the seriousness of that move. We’re not talking about low-visibility intimidation and threats by courthouse security personnel at the behest of a rogue prosecutor or judge that is annoyed by something he doesn’t like (as troubling as that problem is). This is a brazen bid to change the law pertaining to free speech and imprison peaceful pamphleteers for years in the penitentiary!

The activists sought to have the charges thrown out of court because their conduct was protected by the First Amendment. The district court agreed and all of the charges were dismissed. Denver prosecutors did not want that ruling to stand, so they appealed. (Under American law, prosecutors are not allowed to appeal a case when a person is acquitted by a jury, but this case had not even gone to trial yet and so prosecutors are allowed to appeal certain legal issues if they think the trial court has erred.)

The appeals court framed the case around the following question: Is the Colorado jury tampering statute limited to attempts to influence a person’s vote, opinion, decision, or other action in a specifically identifiable case? After analyzing the wording of the tampering statute, the appeals court sensibly concluded that the answer to the question was Yes, it is so limited.

The case against the activists failed for several reasons. First, there was no specific case being “tampered with.” They were handing out literature randomly without any idea of where potential jurors were going or which cases might be starting or delayed. Second, it was also a stretch to say that they were trying to influence the opinion of a juror in a particular case. A pamphlet that says jurors can vote their conscience hardly constitutes a nefarious attempt to pressure or corrupt the deliberative process.

The courts like to avoid constitutional issues if they can decide a case without having to confront such matters and that’s what happened here. The appeals court resolved the case by rejecting the government’s interpretation of the Colorado jury tampering law. Since the prosecutors had not even accused the activists of an intent to tamper with a particular case, the dismissal of the charges by the district court was affirmed.

The ruling did discuss the First Amendment implications of the prosecution’s argument, noting that “there is a real danger [that such a reading of the jury tampering] statute could encroach on a substantial amount of protected speech.” That was an understatement. What if a Denver talk-radio host were to read the jury nullification pamphlet on the air? Could he or she be prosecuted for jury tampering? What if a columnist for a Denver paper quoted and repeated the contents of the pamphlet? According to the prosecutors, such actions would appear to be criminal.

Regardless of one’s opinion about jury nullification, the question before the court concerns our right to free speech. If we have the right to complain about the president, the congress, and the Supreme Court, and we do, we also have the right to complain about the local police chief, local district attorney, and the local judge. What’s happening in our courthouses should concern people in the community as much as tax proposals pending before Congress. And the Supreme Court has noted that “no form of speech is entitled to greater constitutional protection than leafleting.” If citizens want the courts to change the way in which they’re operating, they can protest and agitate for change.

Denver prosecutors lost this battle but they may well opt to appeal this case again, this time to the Supreme Court of Colorado. Let’s hope that does not happen—the prosecutors ought to give up this fight and stop tampering with our constitutional rights.

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