Above: Jury nullification pamphlet being handed out at Denver courthouse. Source Screen shot from Denver Post TV.
Denver Courthouse at Center of Freedom of Speech Conflict
There is a battle brewing in Denver, CO. between the City, the Second Judicial District Court, and protesters. The problem: a controversial court order issued on August 14 that makes protesting of any kind prohibited both inside and outside the courthouse.
“Apparently a minor turf war has erupted between Denver and the Second Judicial District over control of the Courthouse grounds,” writes Federal Judge William J. Martinez in his decision of a lawsuit brought against the City and the Second Judicial District by protesters planning on handing out pamphlets outside of the Lindsey-Flanigan Courthouse. This decision was handed down on August 25.
It was the same two pamphlets, “Fresh Air for Justice,” and “Your Jury Rights: True or False?”, which spurred the court order, CJO 15-1 (a.k.a the “Plaza Order”) in the first place.
On July 27, Mark Ianicelli and Eric Brandt were passing out the pamphlets, published by the organization Fully Informed Jury Association, outside of the courthouse. That day, Iannicelli was arrested, as was Brandt a few days later.
Both the men were charged with jury tampering, which is committed, according to Colorado statute, when one acts with “intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts to directly or indirectly communicate with a juror other than as a part of the proceedings in the trial of the case.”
The court argued that the literature the men were handing out encouraged prospective jurors to lie during the voir dire process.
From “Fresh Air for Justice”:
“When you are called for jury duty, you will be one of the few people in the courtroom who wants justice rather than to win or to score career points. For you to defend against corrupt politicians and their corrupt laws, you must get on the jury. During the jury selection, prosecutors and judges often work together to remove honest, thinking people from juries. When you’re questioned during jury selection, just say you don’t keep track of political issues. Show an impartial attitude. Don’t let the judge and prosecutor stack the jury by removing all the thinking, honest people! Instructions and oaths are designed to bully jurors and protect political power. Although it all sounds very official, instructions and oaths are not legally binding, or there would be no need for independent thinking jurors like you.” “Judges say the law is for them to decide. That’s not true. When you are a juror, you have the right to decide both law and fact.” “If the law violated any human rights, you must vote no against that law by voting ‘not guilty’”
On August 14, CJO 15-1 was posted on the doors of the Courthouse. It was issued by Chief Judge Michael Martinez of the Second Judicial District, of no relation to the Federal judge. It reads as follows:
“The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, as depicted in the highlighted areas of the attached map, without regard to the content of any particular message, idea, or form of speech.
Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map. 1) Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration; 2) Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds; 3) Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and 4) Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse.”
Eric Verlo, Janet Matzen, and the Fully Informed Jury Association filed suit against the City, Denver Police Chief Robert C. White, and Chief Judge Michael Martinez, as they had planned to pass out the same pamphlets that Ianicelli and Brandt did. They did not want to suffer the same fate, and argued that the Plaza was a public forum where freedom of expression was allowed.
In his testimony for the case, Commander Antonio Lopez of the Denver Police Department said that “he has seen ‘more protests [in the area between the Courthouse and the Detention Center] than [he can] recall. As one point we were averaging about two or three a week, in that area.”’
It could be concluded that the court order was meant to make sure jurors wouldn’t be persuaded by the literature, but testimony by Steven Steadman, Colorado judicial branch security administrator, gave different reasoning for the court order.
Steadman was, according to court documents, “closely involved in the discussions leading up to the Plaza Order,” but was “unaware of Brandt and Iannicelli,” and that “the Plaza Order actually arose from very different concerns.”
Two high-profile cases with similar charges were being held in the same vicinity. First was the trial of Dexter Lewis, a black man who murdered five people in 2012 with a knife. The second was Jason Holmes, a white man who shot and killed 12 people inside a movie theater during a showing of “The Dark Knight Rises.”
From the court documents: “According to Steadman, discussions began with Chief Judge Martinez in early July 2015 because the Dexter Lewis trial was scheduled to overlap with another death penalty trial in Arapahoe County, i.e., the trial of Aurora theater shooter James Holmes. Steadman and Chief Judge Martinez specifically worried about potentially violent protests that might break out if Lewis (who is black) eventually received the death penalty but Holmes (who is white) did not.”
It then came out through electronic court filings that Denver hadn’t “intend[ed] to enforce the [Plaza] Order as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.” So, as far as Denver was concerned, handing out jury nullification was protected by the First Amendment, and that the Courthouse plaza was a public forum, as long as things didn’t get out of hand.
Chief Judge Martinez, as the Second Judicial District states, in court documents, that “Plaintiffs assert that the courthouse plaza is a traditional public forum, and therefore maintain that Chief Judge Martinez’s administrative order must be strictly scrutinized. As a matter of state law, however, Chief Judge Martinez — and not Denver — is responsible for the oversight of the courthouse and the adjoining grounds. Thus, any concession on this point by Denver binds neither the parties nor this Court.“
“Because Denver has stipulated that the Courthouse Plaza is a public forum,” the Federal Judge’s decision reads, “Plaintiffs are likewise likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum.”
“Paragraph 1 of the Plaza Order bans essentially all expressive activity regardless of whether it would affect ‘the efficient functioning of the court’ or threaten ‘public safety.’ Courts look dimly on such ‘First Amendment Free Zones,’” Federal Judge Martinez decided, while still upholding the remaining paragraphs that limit disruption inside the courthouse, limit loudspeakers broadcasting outside the courthouse, and prohibiting people from stepping on the gravel and landscaping.
The day after this ruling, according to the Denver Post, a number of activists arrived at the courthouse to hand out pamphlets. They decided to build a canopy, bring buckets to call attention to themselves, and put up banners with anti-law enforcement sentiment.
Waiting for Occupy Denver GA to start pic.twitter.com/PZzZTnHHcS
— Occupy Communication (@OccupyCommunica) August 22, 2015
The police took their materials, and a motion was filed against them and the City. Up to this point, Denver had been on their side in the matter. The Denver Post reported that during each day, protesters would show up, and police would monitor them.
Now, the case of whether they are allowed to continue in the plaza will be up to the Federal Judge once again.
According to the Denver Post on Tuesday, Colorado Assistant Attorney General Matthew Grove wants the first paragraph of Second Judicial District Judge Michael Martinez’s court order to be reinstated. According to the article, Federal Judge Martinez “appeared surprised” that the state wanted to uphold the full ban.
It is now up to Federal Judge Martinez to figure out if Second Judicial District Judge Michael Martinez’s court order should remain. Once again, the first paragraph is up in the air.
Activists argued that the police were in contempt of court when they seized materials. However, the protesters did not “present evidence to prove the police seized their property as a way to retaliate or intimidate them,” according to the Denver Post earlier today.
It’s up in the air whether or not the plaza in front of a courthouse is public space that protects free speech.