It is astonishing that Denver police would arrest someone for handing out political literature outside a courthouse. It's even more astonishing that prosecutors would charge that person with seven felony counts of jury tampering.
Yet that is what happened last month to two activists who were handing out pamphlets on jury nullification on the pedestrian plaza outside the Lindsey-Flanigan Courthouse in Denver.
Now, fortunately, civil rights attorney David Lane has filed a lawsuit in federal court on behalf of other jury nullification activists. They want an injunction to stop the city from violating their First Amendment rights should they too wish to pass out literature.
They deserve to get one.
Jury nullification is understandably controversial — and is especially resented by courts and prosecutors. It is the notion that jurors can ignore the law and follow their conscience when they believe the law would dictate a miscarriage of justice. But it is hardly a new concept.
In one of the most celebrated colonial trials, for example, a jury acquitted newspaper editor Peter Zenger of libeling the royal governor even though Zenger was technically guilty under the law and the judge basically told jurors to find him guilty.
And his defense attorney? None other than Alexander Hamilton.
In the 19th century, Northern juries refused to convict abolitionists for harboring runaway slaves. In the 20th century, juries often balked at enforcing Prohibition and later, on occasion, at what they considered overly harsh drug laws or laws governing sexual behavior.
Jury nullification had a darker strain, too, as Southern juries would sometimes refuse to convict white defendants guilty of racial violence.
The point is that jury nullification is not some crank theory concocted out of the blue.
As First Amendment scholar Eugene Volokh has written, "It's clear that it's not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict."
Those who believe the public needs to know about this possibility should have every right to publicize their views — even outside a courthouse.
Maybe especially outside a courthouse. If not there — near the precincts of American justice where protests and leafleting of all sorts are an honorable tradition — then where?
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."
Four years ago, prosecutors in New York City charged a retired chemistry professor with jury tampering after he stood outside a federal courthouse handing out information on jury nullification. But Judge Kimba M. Wood of federal district court wouldn't buy it. She ruled that prosecutors needed to show the protester meant to influence jurors in a specific case, and dismissed all charges.
Denver officials should be held to no less of a standard.