"This is a victory for free speech," Brandt said in a typically eccentric video he posted after learning about the judgment; for most of the five-minute clip, which is shared below, he battles technical problems. "One way or another, I knew I'd make case law this year."
"This is one of the few cases in the country defining whether or not passing around jury nullification literature is jury tampering," notes David Lane, the Killmer, Lane & Newman LLP attorney who represented Brandt and Iannicelli in the matter. "Every case that's been decided on that issue, of which there are very few, came down the same way the Colorado Supreme Court did."
The incident at the heart of the ruling took place in July 2015, when Brandt, Iannicelli and a number of other activists set up outside Denver's Lindsey-Flanigan Courthouse and began distributing fliers emblazoned with phrases such as "Your Jury Rights: True or False? What rights do you have as a juror that THE JUDGE WON'T TELL YOU" and "All You Need to Know About Jury Nullification (but were prevented from hearing)."
What is jury nullification? According to Lane, it's "the process by which jurors have the power to acquit anyone they want to, whether or not the district attorney has proven their guilt beyond a reasonable doubt. We saw this frequently during the Vietnam era, when draft-card burners would admit to burning their draft cards, but they were acquitted by jurors who were basically sympathetic to their protest. Marijuana users were being acquitted, too, despite proof that they were guilty. It's deemed a power that jurors have to act as a bulwark against a tyrannical government."
Dexter Lewis would receive the death penalty for killing five people at Fero's Bar & Grill in 2012. (Lewis was ultimately sentenced to life in prison without the possibility of parole.) But, Lane stresses, "There's not one shred of evidence that Brandt or Iannicelli had targeted that case or any other case."
This fact proved key to Colorado Supreme Court Justice Richard Gabriel, who wrote an opinion that affirmed previous lower-court actions. "Iannicelli and Brandt never asked individuals entering the courthouse whether they were serving on a specific jury," he noted. "They only asked generally whether those entering the building were reporting for jury duty (e.g., they apparently asked, 'Are you here for jury duty?' or 'Are you a juror?')."
If anyone answered affirmatively, Gabriel continued, "Iannicelli and Brandt would give them one or more pamphlets discussing the concept of jury nullification. At no time did Iannicelli or Brandt attempt to discuss a particular case with any of the jurors they met, nor did their literature address any specific, identifiable case. Indeed, Iannicelli and Brandt do not appear to have been concerned with any particular case. Rather, their sole motive appears to have been to provide information about jury nullification generally."
As you can see, Gabriel made no mention of free speech in this passage, and that wasn't an oversight. Lane contends that the jurists "completely ducked the First Amendment issues involved here, saying, 'We'll worry about that some other time.' So this is all based on Colorado law, which says you have to target a specific case, and they weren't."
Brandt's interpretation is different, as seen in his latest video:
The ruling wasn't unanimous. On the short end of the 5-2 decision was Justice Carlos Samour, who oversaw the trial of the Aurora theater shooter. "Justice Samour wrote a terrible dissent that [Chief Justice Nathan] Coats joined in," Lane allows. "Basically, it says these guys were attacking the jury system and they should be prosecuted. So it completely ignored the fact that you have the right to address the public issue of jury nullification if you want to, because we have free-speech rights in this country."
The way Brandt exercises the latter can raise hackles. Earlier this month, CBS4 reported that security for Denver judges was recently increased after he "live-streamed a rant urging 'the random shooting of judges.... execute them, and don’t forget to shoot the police.'" This was Brandt's reaction to having been ejected from the downtown courthouse on August 9 because he wasn't wearing any shoes, the station said.
Thus far, Brandt hasn't been cited by law enforcement for those words, and Lane believes that's proper. "Eric Brandt has a First Amendment right to say pretty much anything he wants," Lane points out. "The U.S. Supreme Court has said that you have a right to call for even violent action or illegal action unless there is a clear and present danger that it's about to occur."
In contrast, Lane concedes, "The U.S. Supreme Court has never recognized that jury nullification is a legitimate exercise of the power of the people. But they clearly do have that power, and Eric Brandt and Mark Iannicelli were simply informing prospective jurors that they do."
Now their efforts have been deemed legal by the state's highest tribunal. Click to read the Colorado Supreme Court's opinion in People v. Iannicelli and People v. Brandt.