Jury nullification is the doctrine, rich in jurisprudential and American history, that declares that juries have the power and the right to reject what they believe are either unjust criminal laws or unjust prosecutions, and acquit defendants who may have been proven guilty on the evidence, essentially nullifying the law by refusing to enforce it . They definitely have that power: once a citizen is declared not guilty, that citizen cannot be tried again. The dilemma is that neither judges nor lawyers are permitted to let juries know about nullification, since nullification defies the law. A defense lawyer mentioning it in a closing argument risks a mistrial, and bar sanctions. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is written whether they agree with the law or not. In only a few states are jurors expressly permitted to judge both the facts and the law of the case. In 2012, New Hampshire passed a unique law explicitly allowing defense attorneys to inform juries about jury nullification.
In Denver this week, Mark Iannicelli, 56, set up a small booth with a sign that said “Juror Info” in front of the city’s courthouse. The Denver District Attorney’s Office has charged him with eight counts of jury tampering, because Iannicelli used that booth to hand out flyers about jurors’ rights to practice jury nullification to jury pool members. Yes, he has been charged with tampering with juries that aren’t even juries yet.
I haven’t seen the flyer, but I would hope that it tells the inspiring story of printer John Peter Zenger, charged in 1735 with printing seditious libels against the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger undeniably printed the criticism (the only issue the court said the jury was free to decide, as the court deemed the truth or falsity of the statements to be irrelevant), the jury nonetheless returned a verdict of “Not Guilty,” striking blow for freedom of the press in the New World as well as jury independence.
More historically significant examples of nullification were to come. In the early 1800s, juries nullified cases brought under the unconstitutional Alien and Sedition Act. In the decade before the Civil War, Northern juries practiced nullification in prosecutions brought under the Fugitive Slave Laws. Many juries practiced nullification in prosecutions brought against individuals accused of violating Prohibition. Clarence Darrow is generally regarded by the legal profession as America’s greatest trial lawyer, and many of his closing arguments were veiled, or not so veiled, pleas for the juries to ignore the law in the interests of “justice.”
Telling jurors about a power that they have and that cannot be denied to them isn’t “jury tampering.” It is called communication. It is constitutionally protected speech, and as legitimate as informing someone about their Constitutional rights. In fact, someone needs to inform the Denver District Attorney, Mitchell Morrissey, about Constitutional rights. I don’t know how, but somehow he was absent from those classes in high school. And college. And law school.
It is unlikely that Iannicelli’s case will ever get to court, as this kind of jack-boot tactic by law enforcement has been struck down before, though such efforts inhibit free speech even when they are unsuccessful.
Fortunately, if Iannicelli is tried, the jury can refuse to convict him.
[Note: this is only tangentially related, but here is the video promotion for my production of “Twelve Angry Men..”]