An Unlikely Ally of Free Speech In Denver

Regardless of whether you think jury nullification is a blessing or a curse, or potentially both, there is little doubt that those who want to inform others of its existence have a First Amendment right to do so.  Well, maybe a little doubt, at least by the Chief Judge of Denver’s Second District.

Denver Chief Judge Michael Martinez . . . on Thursday issued an order barring demonstrations, protests, distributing literature, proselytizing and other activities on the courthouse grounds.

Two men were arrested for handing out jury nullification leaflets outside the courthouse on the basis that they were trying to unlawfully influence jurors. They were charged with seven felony counts of jury tampering.

The district attorney’s office says the two arrested men were targeting actual jury pool members. Yet even if that were true, so what? If they were not advocating a specific course of action in a specific trial, how could they be guilty of trying “to influence a juror’s vote,” as Colorado’s law defines tampering?

Their jury nullification literature, as it happens, merely offered general statements, such as, “Juror nullification is your right to refuse to enforce bad laws and bad prosecutions.

If this smells remarkably familiar, the same thing happened in New York, and ended when SDNY Judge Kimba Wood reacted with the judicial equivalent of AYFKM?  It sounds more legalish in Latin. Anyway, it’s back.

So Denver civil rights attorney David Lane sued to stop this flagrant infringement of First Amendment rights.  And Denver City Attorney, Scott Martinez, reacted to the action by taking a surprisingly wise position.

City Attorney Scott Martinez said his staff argued that the Denver judge’s order was overly broad. They also argued against arrests targeting people handing out jury nullification literature.

The city attorney’s office also has taken a position that their actions do not violate state law.

Or to put this differently, when Martinez swore to uphold the Constitution, he meant it. And he’s putting it into words and deeds.

“We agree that the court house steps are a public forum and that people can pass out information, including pamphlets, in accordance with the First Amendment,” the city attorney said.

It’s almost invariably the case that government officials, whether city attorney or district attorney, side with the prohibition of conduct that irks the government, for whatever reason.  Some would argue that it’s the job, that Martinez is there to do the government’s bidding, unconstitutional or not.

And to make matters worse, the Chief Judge, who one would suspect gets a say in what is and isn’t constitutional, says that the courthouse is a First Amendment-free zone, because, well, he doesn’t like all this jury nullification stuff that conflicts with the official instructions to do as judges command.

This makes Scott Martinez’s stance all the more difficult, taking a position contrary to the judge, contrary to the district attorney, contrary, perhaps, to the folks who gave him his desk chair who tell him, you’re our mouthpiece, so say what we tell you to say.

The city attorney’s position is unusual in that it is siding with the very people who are suing the city. It also pits the city attorney’s office against the district attorney’s office, which filed criminal charges.

This is wrong. The city attorney is not “siding with the very people who are suing the city.”  Sure, his position may put him on the same side they’re on, but he is not siding with them. He is siding with the Constitution. So is David Lane, and so their respective positions align. It’s just two guys being right about the same thing.

What is remarkable is that so many “official” attorneys fail to recognize, or have the guts to take the position that government’s foremost duty is not to elected politicians, law enforcement, even the whims of judges, but to the Constitution.

The city attorney represents Denver’s interests, but that duty is secondary to City of Denver’s duty to adhere to the Constitution, no matter what the guys in official hats say.  They are no more entitled to disclaim responsibility to honor the Constitution than anyone else, and if they have chosen to go down a path that violates the constitutional rights of citizens, that doesn’t mean the city attorney is relieved of his responsibility to comply with his oath.

“Denver agreed that the passing out of jury nullification literature is protected free speech,” Lane said. “The only opposition I had in court today was the state attorney general.”

City attorney Scott Martinez gets it.  Unsurprisingly, others whose view of the Constitution is a wall they need to circumvent do not. Still, the fact that Martinez has refused to blindly defend a flagrantly unconstitutional order, and prosecute those who commit no crime by exercising their constitutional rights, reminds us that there are good people in positions in government who won’t wait until after they’ve completed their tenure to take a firm stand in defense of the Constitution.

Slow clap, Scott Martinez. You did good.

H/T Wrongway




3 thoughts on “An Unlikely Ally of Free Speech In Denver

  1. dm

    Colorado Revised Statutes: 18-8-609. Jury-tampering. (1) A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.
    While there is very little case law in Colorado on this statute, and none that addresses its constitutionality, that it is unconstitutionally overbroad seems apparent.
    That Scott Martinez was principled enough to take the position that FIJA members handing out jury nullification pamphlets does not violate state law was not wildly surprising if you know his (brief) history. Bravo to him.

    1. John Barleycorn

      Well he doesn’t smoke weed and came out strongly against the legislation of cannabis but after the votes were counted he has become known as the Prince of Pot.

      So if that is part of his “brief” history to which you refer I say what’s not to like about a guy that can get past his feelz and do his j_O_b?

      I second your bravo to Mr. Martinez dm.

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