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Colorado: Demonstrators Clash with Police over Seizure of Jury Nullification Pamphlets

Occupy Denver and other local activists have been engaged in a long-term campaign of jury nullification education outside Denver’s Second Judicial District courthouse. The activists’ attempts to exercise their First Amendment rights have resulted in repeated clashes with police and prosecutors, and more than 20 arrests.

In August 2015, Denver police seized 1,000 pamphlets advocating jury nullification from a group of demonstrators outside the Lindsey-Flanigan Courthouse, where Denver’s first death penalty case in almost 15 years was being argued.

The pamphlets informed potential jurors of their centuries-old right to nullify unjust or immoral laws by finding criminal defendants not guilty even if they had, in fact, broken the law. [See: PLN, June 2009, p.14].

David Lane, a Denver civil rights attorney, filed a motion in federal court on behalf of the demonstrators, calling police “jack booted thugs” and asking for the city and Denver Police Chief Robert White to be held in contempt for violating a court order affirming the protestor’s First Amendment rights.

According to Lane, police seized demonstrators’ property and the pamphlets not due to concerns about violence, but because of the message contained in the literature.

“Whether [demonstrators] are polite or not polite, whether these guys are annoying or not annoying doesn’t matter,” Lane told the Denver Post. “The First Amendment lives in a rough neighborhood.”

A day before the clash between police and demonstrators, a Denver judge barred protests outside the courthouse, saying he feared violence if the jury decided to sentence Dexter Lewis to death. Lewis had been convicted of fatally stabbing five people at a Denver bar in 2012.

Less than 24 hours after the order prohibiting the protest, U.S. District Court Judge William Martinez issued a preliminary injunction allowing the demonstrators to exercise their right to free speech and assembly – which included distributing jury nullification pamphlets.

Just a month prior, police had arrested Mark Iannicelli, 56, for passing out pamphlets advocating jury nullification. Prosecutors ultimately charged Iannicelli with seven counts of jury tampering; several weeks later, police arrested Eric Brandt, 47, on similar charges.

Lane, who represented Iannicelli and Brandt in both their criminal cases and the federal lawsuit challenging the prohibition on distributing jury nullification pamphlets, said Martinez’s preliminary injunction should have been enough to get the criminal charges dropped.

Meanwhile, Denver police and prosecutors, through their heavy-handed actions, only managed to inform the public of their rights as jurors, said Kirsten Tynan, executive director of the Montana-based Fully Informed Jury Association (FIJA).

“The DA is basically doing our job,” Tynan said. “The DA’s efforts to quash our message have made it go much further.”

The fears of violence in response to a death penalty verdict in the Dexter Lewis case were for naught, as Lewis was sentenced to life in prison on August 27, 2015.

In April 2016, the criminal charges against Iannicelli and Brandt were dropped. At the time, Lane told the Denver Post that he was weighing whether to file a civil rights suit against prosecutors for the men’s arrest and detention. For their part, prosecutors filed an appeal, seeking to have the charges reinstated.

Nevertheless, while the legality of the arrests and harassment of demonstrators is subject to dispute, Denver police and prosecutors have maintained their battle against the activists.

In March 2016, Iannicelli and Brandt were again arrested – again while distributing jury nullification pamphlets outside the Lindsey-Flanigan Courthouse. Brandt was not charged with any offense, but Iannicelli received a criminal citation charging him with disturbing the peace and an unspecified violation of a court order.

Judge Martinez’s preliminary injunction was affirmed by the Tenth Circuit on April 8, 2016, and that case remains pending. See: Verlo v. City and County of Denver, Colorado, U.S.D.C. (D. Colo.), Case No. 1:15-cv-01775-WJM-MJW. 



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Related legal case

Verlo v. City and County of Denver, Colorado