Colorado Supreme Court Interprets Jury Tampering Law

If actors aren’t attempting to influence a specific case, it’s protected speech, court says

In a case over jury tampering charges, the Colorado Supreme Court split the baby between the competing legal interpretations proposed by each side.

In one decision for two cases, People v. Iannicelli and People v. Brandt, the court upheld a Court of Appeals decision that in turn affirmed dismissal of charges against two people for jury tampering. But the Supreme Court partly disagreed with the lower appeals court’s analysis to get there. 

At issue in the case are the definitions of “juror” and “a case,” which Colorado’s jury tampering law doesn’t define boundaries for. The court’s interpretation of the law is broader than people who have been chosen as jurors or who have been selected as part of a panel from which a jury in a particular case will be chosen, but it doesn’t include just anyone summoned for jury duty and who likely won’t end up serving on any jury.

Jay Schweikert, a policy analyst with the libertarian think tank Cato Institute who authored an amicus brief for the Supreme Court, said interpreting jury tampering provisions presents important questions about the scope of protected speech.

“More generally, it’s whether we’re able to even have a robust dialogue about what the rights and duties of citizen jurors are,” he said. He said the Cato Institute views the independence of juries as an “absolutely crucial feature of our criminal justice system.”

 “This decision, even though it’s a somewhat narrow one, is basically acknowledging that there is a First Amendment right to discuss and advocate for these principles of jury independence, and it’s not something the state can shut down simply because it threatens the way the state does criminal prosecutions.”

The jury tampering law, Section 18-8-609(1) of the Colorado Revised Statutes, says a person has violated the law if “with intent to influence a juror’s vote, opinion, decision, or other action in a case,” they “directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.”

Prosecutors in Denver charged Mark Iannicelli and Eric Patrick Brandt with jury tampering for handing out fliers with information about jury nullification to people going into the main entrance of Denver’s Lindsey-Flanigan Courthouse. They asked each person whether they were there for jury duty or had already been chosen to serve on a jury. 

The charges against Iannicelli and Brandt alleged they had communicated with “named jury pool members” intending to influence them in “a case” under Colorado’s jury tampering law. The Denver District Court with the defendants that the jury tampering statute is unconstitutional as applied to their conduct, and dismissed the charges. The Court of Appeals upheld the dismissal but didn’t reach the constitutionality issue, and instead decided the law just didn’t apply to the defendants’ behavior.

The Court of Appeals upheld the district court’s decision to dismiss the charges, finding Iannicelli and Brandt’s behavior was akin to any other type of First Amendment-protected protest in a public place. The court defined “a juror” narrowly to mean either someone picked for a specific case or someone on a panel from which a specific case’s jury will be chosen.

But the Supreme Court disagreed with that narrow construction. According to the analysis, the jury tampering law doesn’t limit applicability of Colorado law’s general definition of a “juror.” Section 18-8-601(1) of the Colorado Revised statutes defines the term as “a member of any jury or grand jury impaneled by any court of this state or by any public servant authorized by law to impanel a jury. The term ‘juror’ also includes any person who has been drawn or summoned to attend as a prospective juror.”

“…We do not perceive why the jury tampering statute would not apply to a scenario in which an individual approaches a woman who has been summoned for one of a number of cases set for trial on a particular day and tells her that if she is selected for the jury in a specific case, then she had better vote to acquit the defendant or else harm would befall her or her family,” wrote Justice Richard Gabriel in the decision. He added it’s clear in the state’s criminal code that the definition of “juror” applies to the jury tampering law unless the statute specifically says otherwise or the context implies the definition is inapplicable. 

The Supreme Court’s analysis of the scope of “a case” digs into grammatical particularities of the jury tampering law, specifically its use of “a case” and then “the case.”

“The word ‘the’ is a definite article, and it particularizes the word that it precedes,” Gabriel wrote. “The words ‘a case’ introduce a particular case to which the actor’s efforts to influence a juror are directed, and the words ‘the case,’ which appear later in the same sentence, refer back to the case that had been introduced earlier.”

In a written statement, 2nd District appellate chief deputy district attorney Robert Russell said, “Although we disagreed with both conclusions, we were more concerned with the court’s interpretation of the term ‘juror.’  In our view, that interpretation would have artificially limited a prosecutor’s ability to pursue tampering charges.  We therefore were pleased that the Colorado Supreme Court agreed with us, overruling that part of the Court of Appeals’ decision.

 “We did not prevail on the second issue,” continued the statement. “We naturally would like to have won on that point also, but we knew that the question was close (as evidenced by the thoughtful dissent), and we are grateful to have received a definitive answer from Supreme Court.”

Andy McNulty, an associate at Killmer Lane & Newman who represented Iannicelli and Brandt, could not be reached for comment on the decision.

Justice Carlos Samour split with the majority on the interpretation of “a case.” In a dissent joined by Chief Justice Nathan Coats, he disagreed with how it decided what “a case” refers to when applied to a juror when it means “any person who has been drawn or summoned to appear as a prospective juror, but who has not yet been selected to be on a jury in the trial of a case or on a venire from which the jury in the trial of a case will be chosen.”

“The majority’s analysis goes awry because it fails to discern that, unlike a seated juror and a venire juror, a prospective juror is vulnerable to being influenced in any of the cases set for jury trial for which she has been summoned to appear,” Samour wrote.

He added under the majority’s analysis, he believes the charges against Iannicelli would have stuck if only one case was scheduled for trial the day they stood outside the courthouse. 

“In other words, the majority hinges jury tampering liability in the context of prospective jurors on chance — depending on whether it is later discovered that a single case or multiple cases were scheduled for trial on the date of the alleged conduct,” he wrote. “I find it difficult to believe that this is what our legislature intended.”

But Colorado ACLU staff attorney Sara Neel said she believes the majority’s analysis would still hold up even if someone talks to prospective jurors on a day when only one case is scheduled for jury selection. If that person doesn’t know it’s the only case, behavior such as Brandt’s and Iannicelli still probably wouldn’t amount to jury tampering because the statute requires intent, Neel said. 

Schweikert said even though the decision doesn’t explicitly address the constitutionality of Colorado’s jury tampering law, he appreciated the majority’s statement that the prosecution’s proposed broad definition of “a case” would result in “constitutional infirmities” by chilling protected speech. 

“That’s pretty strong language for something that’s not explicitly a constitutional holding,” Schweikert said.

Even though the Supreme Court decided the jury tampering statute applies to attempts to influence particular cases, Schweikert said unanswered questions seem to linger about how the law applies to specific situations within that framing. How, for example, would the law apply to an op-ed in a newspaper that says what the author believes the outcome of a case should be? The Supreme Court specifically called out that type of situation in its decision and in oral arguments. 

“For example, the People’s construction would likely criminalize a significant amount of speech that appears to be protected, including, for example … an op-ed in a local newspaper expressly encouraging jurors or prospective jurors to refuse to convict a defendant if they felt that the state had crossed the line in a particular case …,” Gabriel wrote.

But Schweikert said even as narrow as the decision is, it seems like that type of speech could fall under the Supreme Court’s analysis. It’s likely that prospective jurors in the case would be among the op-ed’s readers, and it is aiming to influence the audience in a specific case.

“Is the state really going to say that running that op-ed can be criminally prosecuted?” he said. “I think that there is still this outstanding question about how these First Amendment principles apply even in the context of discussion about a particular case.”

— Julia Cardi

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