Watching The Cops
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Title: Colorado Supreme Court Rules in Favor of Eric "F*ck Cops" Brandt [jury nullification win]
Source:
Westword
URL Source: https://www.westword.com/news/jury- ... olorado-supreme-court-11491504
Published: Sep 24, 2019
Author: Michael Roberts
Post Date: 2019-09-24 14:02:49 by Tooconservative
Keywords: None
Views: 3228
Comments: 37
Eric Brandt has been a thorn in the paw of the justice system and metro-area authority figures for years. His protests are highlighted by homemade signs reading "Fuck Cops" and more; he was once given a ninety-day jail stint for chalking a sidewalk with controversial messages. But on September 23, the Colorado Supreme Court handed a victory to Brandt and fellow demonstrator Mark Iannicelli, determining that their 2015 arrest for passing out jury nullification literature was entirely unjustified. "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." The timing of the message that Brandt and Iannicelli delivered made police nervous, since their efforts took place as a jury in the courthouse was determining if 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.
(3 images) 
Eric Brandt with one of his "Fuck Cops" displays. Courtesy of Eric Brandt
The jury-nullification demonstrators shortly before the August 2015 arrest of Mark Iannicelli. Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
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Begin Trace Mode for Comment # 34.
#1. To: All, nolu chan, Deckard (#0)
Posted this one for Deckard and nolu.
This Brandt character is a constant news source for the little Lefty newspapers in Colorado, it seems. He travels the state. He seems to have some pro bono Lefty lawyers and a little band of followers along with the adoring support of local free press people who seem to feature his antics very regularly. He is, in short, a real character.
CopBlock had articles about him too so Deckard may already know his body of work. Hell, Deckard might be him for all I know. However, I tried to link CopBlock articles but found their server refuses to respond. Maybe they're defunct? I thought they were getting pretty established.
#12. To: Tooconservative, misterwhite, jeremiad (#1)
[misterwhite #2] Yep. They have that right.
[jeremiad #3] Of course a jury has the right to judge the law and its application. I have a problem with disallowing those who believe this to be excluded from juries. It is the very foundation of trial by a jury of your peers.
[Tooconservative #6 responding to #3] Well, bless you for understanding the nullification issue.
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The legal issue before the court in Brandt was free speech, not jury nullification. No act of jury nullification was involved; only advocacy.
Of course, there is no such "right" to jury nullification. Should any juror admit that he or she believes in jury nullification, the judge has a duty to excuse or remove them for cause. With some restrictions pertaining to where and when, the right to free speech protects the distribution of legal bullshit. The alleged "right" of jury nullification is legal bullshit.
A juror has the power (not the right) to violate his or her oath and not face liability.
http://law.justia.com/cases/federal/appellate-courts/F3/116/606/611938/
U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997)Before: LUMBARD, Mc LAUGHLIN and CABRANES, Circuit Judges.
JOSE A. CABRANES, Circuit Judge.
We consider here the propriety of the district court's dismissal of a juror allegedly engaged in "nullification"—the intentional disregard of the law as stated by the presiding judge—during the course of deliberations. We address, in turn, (1) whether such alleged misconduct constitutes "just cause" for dismissal of a deliberating juror under Rule 23(b) of the Federal Rules of Criminal Procedure ("Rule 23(b)"),1 so that a jury of only eleven persons may continue to deliberate and return a verdict, and (2) what evidentiary standard must be met to support a dismissal on this ground.
The appellants are two sets of defendants convicted of violations of federal narcotics laws after two separate trials in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge ). We have decided the appeals of defendants convicted at the first of these trials in a summary order of this date. We write here to consider only the appeals of Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas, all of whom were convicted in the second trial. On appeal, they argue, chiefly, that the district court abused its discretion when it ordered the dismissal of one of the jurors pursuant to Rule 23(b) during the course of jury deliberations. The court based its decision to remove the juror, in large part, on a finding that the juror was purposefully disregarding the court's instructions on the law—in effect, that the juror intended to acquit the defendants regardless of the evidence of their guilt.
We consider below whether a juror's intent to convict or acquit regardless of the evidence constitutes a basis for the juror's removal during the course of deliberations under Rule 23(b). We also consider what constitutes sufficient evidence of that intent in light of the limitations on a presiding judge's authority to investigate allegations of nullification required by the need to safeguard the secrecy of jury deliberations. We conclude, inter alia, that—as an obvious violation of a juror's oath and duty—a refusal to apply the law as set forth by the court constitutes grounds for dismissal under Rule 23(b). We also conclude that the importance of safeguarding the secrecy of the jury deliberation room, coupled with the need to protect against the dismissal of a juror based on his doubts about the guilt of a criminal defendant, require that a juror be dismissed for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution's case. We hold that the district court erred in dismissing a juror, based largely on its finding that the juror was purposefully disregarding the court's instructions on the law, where the record evidence raised the possibility that the juror's view on the merits of the case was motivated by doubts about the defendants' guilt, rather than by an intent to nullify the law. Accordingly, we vacate the judgments of the district court and remand for a new trial.
[...]
The district court dismissed Juror No. 5 pursuant to FED.R.CRIM.P. 23(b), which provides, in pertinent part, that where "the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors." We review the district court's exercise of this authority for abuse of discretion. See, e.g., United States v. Reese, 33 F.3d 166, 173 (2d Cir.1994), cert. denied, 513 U.S. 1092, 115 S.Ct. 756, 130 L.Ed.2d 655 (1995); United States v. Casamento, 887 F.2d 1141, 1187 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). 24
To determine whether the court erred in dismissing Juror No. 5, we must first decide whether the district court's primary basis for the dismissal—the juror's intention to disregard the applicable criminal laws—constitutes "just cause" for his removal under Rule 23(b). In holding that a presiding judge has a duty to dismiss a juror who purposefully disregards the court's instructions on the law, we briefly review the factors that courts have traditionally considered to be "just cause" for dismissal pursuant to Rule 23(b), and discuss the dangers inherent in so-called "nullification." Having concluded that a deliberating juror's intent to nullify constitutes "just cause" for dismissal, we next consider whether the district court in this case had a sufficient evidentiary basis for concluding that Juror No. 5 was purposefully disregarding the court's instructions on the law.
[...]
Essentially, the judge found that Juror No. 5 intended to engage in a form of "nullification," a practice whereby a juror votes in purposeful disregard of the evidence, defying the court's instructions on the law.
We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court—in the words of the standard oath administered to jurors in the federal courts, to "render a true verdict according to the law and the evidence." FEDERAL JUDICIAL CENTER, BENCHBOOK FOR U.S. DISTRICT COURT JUDGES 225 (4th ed. 1996) (emphasis supplied).8 We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.
We are mindful that the term "nullification" can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws. We recognize, too, that nullification may at times manifest itself as a form of civil disobedience that some may regard as tolerable. The case of John Peter Zenger, the publisher of the New York Weekly Journal acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws, are perhaps our country's most renowned examples of "benevolent" nullification. See United States v. Dougherty, 473 F.2d 1113, 1130 (D.C.Cir.1972) (Leventhal, J.); see also SHANNON C, STIMSON, THE AMERICAN REVOLUTION IN THE LAW: ANGLO-AMERICAN JURISPRUDENCE BEFORE JOHN MARSHALL 52-55 (1990) (describing Zenger trial). We are also aware of the long and complicated history of juries acting as judges of the law as well as the evidence, see, e.g., John D. Gordan III, Juries as Judges of the Law: The American Experience, 108 LAW Q. REV. 272 (1992); Mark De Wolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L. REV. 582 (1939), and of the theoretical underpinnings of this practice in the United States, in which legal decisions by juries were sometimes regarded as an expression of faithfulness to the law (regardless of the authority of institutions or officeholders), rather than defiance of the law or "nullification."More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, "introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions." U.S. ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). This is so because, as Judge Hand explained, "[t]he individual can forfeit his liberty—to say nothing of his life—only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came.... [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove...." Id. at 775-76.
As courts have long recognized, several features of our jury trial system act to protect the jury's power to acquit, regardless of the evidence, when the prosecution's case meets with the jury's "moral[ ] disapprov[al]." Since the emergence of the general verdict in criminal cases and the famous opinion in Bushell's Case, 124 Eng.Rep. 1006 (C.P.1670), freeing a member of the jury arrested for voting to acquit William Penn against the weight of the evidence, nullifying jurors have been protected from being called to account for their verdicts. Moreover, and in addition to the courts' duty to safeguard the secrecy of the jury deliberation room (discussed in greater detail below), the several rules protecting the unassailability of jury verdicts of acquittal—even where these verdicts are inconsistent with other verdicts rendered by the same jury in the same case, United States v. Carbone, 378 F.2d 420, 423 (2d Cir.) (Friendly, J.) (recognizing link between upholding inconsistent verdicts and protecting juries' power of lenity), cert. denied, 389 U.S. 914, 88 S.Ct. 242, 19 L.Ed.2d 262 (1967)—serve to "permit[ ] juries to acquit out of compassion or compromise or because of their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Standefer v. United States, 447 U.S. 10, 22, 100 S.Ct. 1999, 2007, 64 L.Ed.2d 689 (1980) (internal quotation marks omitted).
But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that—a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.
#20. To: nolu chan (#12)
But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that—a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.
I think Judge Hand was merely stating the obvious: there's nothing the judges can do to stop a jury that is quietly intent on nullifying a law. Like a unanimous vote to exonerate, especially if they start getting multiple cases of such juries. Of course, this is quite the rarity because the ruling class considers they've really failed if their judicial system can't persuade jurors to follow the law, not to judge the law itself privately.
Juries are and have always been the most powerful and therefore the most dangerous political entities in the American system. That makes the elites and the ruling class a little nervous when the topic arises.
#22. To: Tooconservative (#20)
there's nothing the judges can do to stop a jury that is quietly intent on nullifying a law.
When the jury is 11-1 to convict, you can bet the 11 are asking the 1 why they refuse.
#26. To: misterwhite (#22)
When the jury is 11-1 to convict, you can bet the 11 are asking the 1 why they refuse.
They can ask all they want. You don't have to answer to other jurors. Nothing in the judicial system empowers jurors to interrogate other jurors. Nothing.
And the "jury foreman" is a joke. He has no special power at all. Any juror can request a tattle session with the judge. The foreman has no special superpowers under our judicial system.
As long as a fully-informed juror does not say anything that another juror can run to the judge to complain about, the rest of the jury is powerless to stop him from just voting not guilty if that is what he wants to do.
#28. To: Tooconservative (#26)
You don't have to answer to other jurors.
No, but they do have to answer to the judge. The juror may be removed, even after deliberations have started, if they exhibit bias or if they refuse to follow the law.
#29. To: misterwhite (#28)
The juror may be removed, even after deliberations have started, if they exhibit bias or if they refuse to follow the law.
You're whistling in the dark.
They can't do anything unless a juror makes an admission or a damaging statement. The best they will be able to hope for if they remove a juror without cause is a mistrial or dismissal with prejudice. And it will damage the judge's reputation if he doesn't have something solid to justify the removal of a juror after the trial has concluded.
Any time a judge (or juror) starts acting like they are prosecuting a juror, the entire proceeding is fundamentally illegitimate. And the judges do know this.
#30. To: Tooconservative (#29)
They can't do anything unless a juror makes an admission or a damaging statement.
Well, yeah. I thought we were operating under that premise.
I stated in my post #19, "If it comes to light later in the jury room and I'm foreman (which I have been) it goes immediately to the judge."
If the defendant is caught with a pound of marijuana, how do you explain your "nullification" not guilty vote? Reasonable doubt? Insufficient evidence?
#31. To: misterwhite (#30)
If the defendant is caught with a pound of marijuana, how do you explain your "nullification" not guilty vote? Reasonable doubt? Insufficient evidence?
Jurors are not required to explain anything. In some states, jurors do have to cast a vote by number in capital cases so every juror's vote is public; this is to stop any juror from later changing their mind or backing away from a guilty vote. This is pretty rare though.
Jurors never have to explain themselves or their vote or be interrogated. Unless they have said something stupid or suspicious. There is no way to prevent feckless jurors. Attempting to do so would destroy the adversarial nature of the judicial system and the independence of the judiciary. Which is why the Court will never allow such laws to be enforced; they'll strike them down.
#32. To: Tooconservative (#31)
Jurors are not required to explain anything.
Correct. But no explanation in such an obvious case of guilt would lead the other 11 jurors to suspect something. It's enough to then take it to the judge.
#33. To: misterwhite (#32) (Edited)
If the fully-informed juror says nothing contrary to the law or the judge's instructions, there is nothing that the judge can do about it, Mr. Jury Tattle.
There are no states that have laws requiring jurors to explain their vote to convict or acquit. The reason for this is still the same as it was when the Magna Carta was signed, which is around the time that jury nullification became a Thing in England.
Nullification has been around for a long time. Certainly more than twice as long as our Constitution. And we do inherit the English common law tradition from the colonial era. The Founders were all Englishmen after all.
#34. To: Tooconservative (#33)
Nullification has been around for a long time. Certainly more than twice as long as our Constitution. And we do inherit the English common law tradition from the colonial era. The Founders were all Englishmen after all.
Gosh. Then the juror should loudly proclaim that as his reason.
Of course, he could then be thrown in jail for the perjury he committed at voir dire.
Replies to Comment # 34.
#35. To: misterwhite (#34) (Edited)
Gosh. Then the juror should loudly proclaim that as his reason.Of course, he could then be thrown in jail for the perjury he committed at voir dire.
Fully-informed jurors know that. So they don't do it.
What a shame that we don't arm these upstanding jury foremen with firearms so they can interrogate and execute anyone who isn't voting the way the foreman wants them to vote.
End Trace Mode for Comment # 34.
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