DENVER (CN) – The city of Denver on Tuesday fought a federal judge’s contempt order over the arrest of a man passing out juror nullification literature outside the city’s main criminal courthouse before a 10th Circuit panel.
The dispute between the Fully Informed Jury Association and Denver began in August 2015, when activists Eric Brant and Mark Iannicelli were arrested for handing out jury nullification pamphlets to a juror outside the Lindsey-Flanigan Courthouse in downtown Denver.
Brant and Iannicelli faced seven counts each of jury tampering. The 10th Circuit affirmed the dismissal of the charges in late 2017.
The Fully Informed Jury Association sued the city in 2015 on free speech grounds. U.S. District Judge William Martinez granted a preliminary injunction – also upheld by the 10th Circuit – allowing protesters to gather and hand out literature so long as they didn’t impede the flow of traffic or set up any structures.
Shortly after, Denver police arrested Iannicelli for distributing pamphlets. Martinez held the city responsible for failing to educate the police force and charged it with contempt, but declined to sanction the police chief.
In 2017, Denver and the Second Judicial District collaborated on a memorandum of understanding that declared the Lindsey-Flanigan Courthouse plaza is not a public forum.
With this new document in hand, Martinez dissolved the protesters’ protective injunction. On March 6, Martinez’s order extended inner-courthouse prohibitions on picketing and protest to the courthouse grounds.
With the protesters’ protections nullified, assistant city attorney Geoffrey Klingsporn sought to have Denver’s charge of contempt cleared by the 10th Circuit since the order it violated no longer exists.
“The district court erred when it held Denver in contempt of a preliminary injunction that the district court ultimately dissolved, contrary to the longstanding rule that civil contempt falls when the injunction is reversed,” Klingsporn wrote in his brief to the appeals court.
On behalf of Fully Informed Jury Association, Andrew McNulty of Killmer, Lane & Newman argued the city should be held responsible for disobeying the judge’s order at the time it was issued.
U.S. Circuit Judge Jerome Holmes pointed out the city did not face “any specific unavoidable consequences of finding contempt.”
In its “Primer for Prospective Jurors,” the Fully Informed Jury Association describes jury nullification as “when jurors unanimously agree that despite clear evidence showing the defendant acted as accused, conscience requires them to bring in a verdict of not guilty, or guilty only of lesser charges.
“This power to ‘do the right thing’ and bring in a conscientious verdict is the very backbone of our jury system.”
After the hearing, on the front steps of the Byron White U.S. Courthouse, the association’s executive director Kirsten Tynan reflected on case’s three-year journey,
“I’m looking forward to seeing the government hold itself accountable and if it can’t, that is disturbing.”
Oral arguments were also heard U.S. Circuit Judge Mary Briscoe and Senior Circuit Judge Stephanie Seymour.