Nos. 18SC34 and 18SC35, People v. Iannicelli, and People v. Brandt
Nos. 18SC34 and 18SC35
The Supreme Court of the State of Colorado
September 23, 2019
2019 CO 80
Certiorari to the Colorado Court of Appeals, Court of Appeals Case Nos. 16CA210 and 16CA211
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ADVANCE SHEET HEADNOTE
September 23, 2019
2019 CO 80
Nos. 18SC34 and 18SC35, People v. Iannicelli, and People v. Brandt—Jury Tampering—First Amendment—“Juror”—“A Case.”
This case requires the supreme court to construe the terms “juror” and “case” in Colorado’s jury tampering statute,
The court concludes that for purposes of the jury tampering statute, a “juror” is defined as set forth in
Judgment Affirmed
en banc
September 23, 2019
* * * * *
Judgment Affirmed
September 23, 2019
Attorneys for Petitioner:
Beth McCann, District Attorney, Second Judicial District
Denver, Colorado
Attorneys for Respondents:
Killmer, Lane & Newman, LLP
David A. Lane
Andrew McNulty
Denver, Colorado
Attorneys for Amicus Curiae American Civil Liberties Union:
American Civil Liberties Union Foundation of Colorado
Sara R. Neel
Denver, Colorado
American Civil Liberties Union Foundation
Naomi Gilens
New York, New York
Attorney for Amicus Curiae Cato Institute:
Millennial Policy Center
Joseph Greenlee
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS joins in the dissent.
¶1 This case, which requires us to construe Colorado’s jury tampering statute,
¶2 Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering under
¶3 Iannicelli and Brandt moved to dismiss these charges, contending that
¶4 A division of the court of appeals affirmed the dismissal orders, although it did so without reaching the constitutional question. The division concluded instead that, as properly interpreted, the jury tampering statute’s prohibitions did not cover the conduct of which Iannicelli and Brandt were accused because that statute applies only to (1) “attempts to improperly influence jurors or those selected for a venire from which a jury in a particular case will be chosen” and (2) attempts to influence such a juror’s “vote, opinion, decision, or other action in a specifically identifiable case.” People v. Iannicelli, 2017 COA 150, ¶¶ 8, 31, __ P.3d __.
¶5 We now must determine whether the division properly interpreted the jury tampering statute.1 Although we deem too narrow the division’s conclusion that the statute prohibits only attempts to influence seated jurors or those selected for a venire from which a jury in a particular case will be chosen, we agree with the division that the statute requires that a defendant’s effort to influence a juror must be directed at a specifically identifiable case. Because the People did not charge Iannicelli and Brandt with such conduct, we affirm the division’s judgment, although our reasoning differs in some respects from that of the division below.
I. Facts and Procedural History
¶6 Iannicelli and Brandt went to the Lindsey-Flanigan Courthouse hoping to find jurors
¶7 An organization called the Fully Informed Jury Association produced the pamphlets that Iannicelli and Brandt distributed. As pertinent here, the pamphlets instructed jurors that “[j]uror nullification is your right to refuse to enforce bad laws and bad prosecutions.” The pamphlets also contained a number of other statements and purported advice, including, among other things, the following:
- “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. American jurors have a proud tradition of saying ‘no’ and ‘not guilty’ when bad and corrupt laws are used against people.”
- “It is the responsibility of the jury to judge not just the facts of the case but also the law in question.”
- “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 prosecution stack the jury by removing all the thinking, honest people!”
- “[J]udges only rarely ‘fully inform’ jurors of their rights, especially their right to judge the law itself and vote on the verdict according to conscience.”
- “The jury has the power to nullify any law . . . . [T]he jury has the power to ignore previous rulings by the Supreme Court and still find the defendant not guilty if they judge the law and previous court rulings to be wrong.”
- “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.”
- “You cannot be forced to obey a ‘juror’s oath.’”
- “If the law violates any human rights, you must vote no against that law by voting ‘not guilty.’”
¶8 A deputy district attorney observed Iannicelli and Brandt distributing these pamphlets and reported their activity to the police. The police arrived and arrested the two men, and the People charged them with multiple counts of jury tampering pursuant to
¶9 Iannicelli and Brandt subsequently moved to dismiss these charges. They argued, among other things, that (1) they had been engaging in speech protected by the First Amendment; (2) they had been doing so on the courthouse plaza, which, they asserted, is a designated public forum for free speech; and (3)
¶10 The district court ultimately granted Iannicelli and Brandt’s motion. The court initially concluded that
¶11 The People appealed, and in a unanimous, published opinion, a division of the court of appeals affirmed. Iannicelli, ¶¶ 2, 32. In doing so, the division did not address the question of the statute’s constitutionality. Id. at ¶ 8. Instead, the division concluded that as properly interpreted, the statute’s terms did not proscribe Iannicelli and Brandt’s conduct. Id. at ¶¶ 8, 31.
¶13 Specifically, the division noted first that the statute proscribes attempts to influence a juror in “a case” but that “[o]ne who has merely been summoned for jury duty is not serving in ‘a case,’ and indeed may ultimately not serve.” Id. at ¶ 15. In contrast, a person who is serving as a juror or who has been selected for a venire from which a jury in a particular case will be chosen is serving in “a case.” Id.
¶14 The division next pointed out that in the same sentence as the reference to “a case,” “the General Assembly limited prohibited communications to those ‘other than as a part of the proceedings in the trial of the case.’” Id. at ¶ 16 (quoting
¶15 Lastly, the division observed that although the defendant must intend to influence a juror’s action in a case, a person who has merely been summoned for jury duty and who sits in a room waiting to be called is in no position to take action in any case. Id. at ¶ 17.
¶16 Read together, the foregoing observations convinced the division that
¶17 The People then petitioned for certiorari, and we granted their petition.
II. Analysis
¶18 We begin by discussing the applicable standard of review. We then consider the language of
A. Standard of Review
¶19 We review issues of statutory interpretation de novo. Doubleday v. People, 2016 CO 3, ¶ 19, 364 P.3d 193, 196. In construing a statute, our primary purpose is to ascertain and give effect to the legislature’s intent. Id. To do so, we look first to the language of the statute, giving its words and phrases their plain and ordinary meanings. Id. We read statutory words and phrases in context, and we construe them according to the rules of grammar and common usage. Id.
¶20 We must also endeavor to effectuate the purpose of the legislative scheme. Id. at ¶ 20, 364 P.3d at 196. In doing so, we read that scheme as a whole, giving consistent, harmonious, and sensible effect to all of its parts. Id. We must avoid constructions that would render any words or phrases superfluous or that would lead to illogical or absurd results. Id.
¶21 If the statute is unambiguous, then we need look no further. Id. If, however,
¶22 Finally, “statutory terms should be construed in a manner that avoids constitutional infirmities. Thus, if a statute is capable of alternative constructions, one of which is constitutional, then the constitutional interpretation must be adopted.” People v. Zapotocky, 869 P.2d 1234, 1240 (Colo. 1994) (citations omitted).
B. Section 18-8-609(1)
¶23
¶24
any person who is 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.
¶25 The People contend that the division erred in concluding that
¶26 As noted above, if a statute is susceptible of alternate constructions, one of which is constitutional and the other of which is not, then we must adopt the constitutional construction. Zapotocky, 869 P.2d at 1240. Accordingly, we begin our analysis of
1. Constitutional Principles
¶27 “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). To this end, our Supreme Court has observed that “‘handing out leaflets in the advocacy of a politically controversial viewpoint . . . is the essence of First Amendment expression’; ‘[n]o form of speech is entitled to greater constitutional protection.’” McCullen v. Coakley, 573 U.S. 464, 488–89 (2014) (quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995)). This is the type of conduct in which Iannicelli and Brandt were engaged here.
¶28 The foregoing principles apply with no less force to speech concerning judicial proceedings, which are public events. See Craig v. Harney, 331 U.S. 367, 374 (1947) (“A trial is a public event. What transpires in the court room is public property.”).
¶29 Speech concerning judicial proceedings is not without limits, however, because like free speech, a fair trial is one “of the most cherished policies of our civilization” and must also be protected. Bridges v. California, 314 U.S. 252, 260 (1941); see also United States v. Heicklen, 858 F. Supp. 2d 256, 274 (S.D.N.Y. 2012) (“The relevant cases establish that the First Amendment squarely protects speech concerning judicial proceedings and public debate regarding the functioning of the judicial system, so long as that speech does not interfere with the fair and impartial administration of justice.”). Accordingly, the Supreme Court has long recognized that states “may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.” Cox v. Louisiana, 379 U.S. 559, 562 (1965).
¶30 Against this background of potentially competing constitutional principles, we turn to the question of statutory construction now before us.
2. A “Juror”
¶31 We first consider the People’s contention that the division erred in concluding that, for purposes of
¶32 As noted above,
¶33 We perceive nothing in the statutory definition of “juror” (or in
¶34 In reaching this conclusion, we are not persuaded by the division’s determination that the language of
¶35 Nor are we persuaded that applying
¶36 Accordingly, we conclude that for purposes of
3. A “Case”
¶37 In the People’s view, the division erred in concluding that
¶38 As noted above,
¶39 Stated another way, 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.
¶40 For these reasons, we conclude that
¶41 In Turney v. State, 936 P.2d 533, 540–41 (Alaska 1997), the Alaska Supreme Court reached the same conclusion in interpreting a similar jury tampering statute.
¶42 In Turney, the defendant, Turney, was a friend of a man named Hall, who was on trial on charges of being a felon in possession of a concealable weapon. Id. at 536. During Hall‘s trial, Turney was in the courthouse promoting his views of the jury system through, among other things, signs and leaflets, and he also publicized the telephone number of the Fully Informed Jury Association, the same organization that produced the jury nullification pamphlets at issue in the present case. Id. As pertinent here, Turney initially contacted several jurors who were summoned for jury duty in the Hall case, and, after the trial began, he contacted three
¶43 Based on these facts, Turney was charged with jury tampering under
¶44 The court ultimately rejected Turney‘s contentions. Id. at 540–41. In doing so, the court observed that the statute reaches communications made with the intent to “otherwise affect the outcome of the official proceeding.” Id. at 540. In the court‘s view, this language made clear that the statute was directed at “the” official proceeding, and particularly at communications intended to affect how the jury decides a specific case, namely, “the” official proceeding. Id.. The court opined that such a construction would properly avoid any constitutionality concerns because it would proscribe only speech intended to influence a juror in his or her capacity as a juror in a particular case, which conduct was not protected by the First Amendment. Id. at 541.
¶45 In our view, the Alaska Supreme Court‘s analysis mirrors our own analysis of Colorado‘s similarly worded jury tampering statute, and for the reasons set forth in Turney, as well as those set forth above, we conclude that section
¶46 In reaching this conclusion, we are not persuaded by the People‘s argument that “a case” refers to any existing case and that “the case” is solely part of the statutory exception (i.e., the language that states, “other than as a part of the proceedings in the trial of the case“).
¶47 As an initial matter, we perceive no basis to assign two different meanings to the word “case,” as that term is used in section
¶48 Even were we to agree with the People‘s construction of the statute, however, that construction would suggest, at best, that the statute is reasonably susceptible of multiple interpretations and therefore is ambiguous. But such a determination would not assist the People here because were we to perceive ambiguity, we would still be compelled to reject the People‘s proposed construction
¶49 Nor do we agree with the People‘s argument that our interpretation would permit an individual to walk into a jury assembly room to lecture the prospective jurors generally about the evils of the war on drugs and to urge acquittal in all prosecutions involving controlled substances. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker‘s activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800 (1985); see also Curious Theatre Co. v. Colo. Dep‘t of Pub. Health & Env‘t, 220 P.3d 544, 546 (Colo. 2009) (noting that, First Amendment protections notwithstanding, expression is subject to reasonable time, place, or manner restrictions and that such restrictions are valid if they are justified without reference to the content of the regulated speech, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information). Under our construction of section
¶50 For all of the foregoing reasons, we conclude that section
¶51 The question remains whether the People sufficiently alleged that Iannicelli and Brandt engaged in such conduct here. We conclude that the People did not do so. According to the People‘s allegations, Iannicelli and Brandt never asked individuals entering the courthouse whether they were serving on a specific jury. 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 any of such persons responded affirmatively, then 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.
¶52 On these facts, and based on our above-described construction of section
¶53 For these reasons, we conclude that for purposes of Colorado‘s jury tampering statute, section
JUSTICE SAMOUR dissents, and CHIEF JUSTICE COATS joins in the dissent.
JUSTICE SAMOUR, dissenting.
¶54 Trial by jury is a bedrock of our justice system and, by extension, of our democracy. Of course, this is hardly a revelation. Our founding fathers recognized the indispensable role of trial by jury. Thomas Jefferson proclaimed that he considered trial by jury “as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” 3 The Writings of Thomas Jefferson 71 (Washington ed. 1861). And Alexander Hamilton declared that, whatever differences existed between the friends and adversaries of the convention, they agreed on “the value they set upon the trial by jury,” and, to the extent their views on this topic were not aligned, the disagreement consisted of “the former regard[ing] it as [a] valuable safeguard to liberty” and “the latter represent[ing] it as the very palladium of free government.” The Federalist No. 83, at 491, 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
¶55 The U.S. Supreme Court has echoed our forefathers’ sentiments. In Dimick v. Schiedt, 293 U.S. 474, 486 (1935), it observed that “[m]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” See also City of Morgantown v. Royal Ins. Co., 337 U.S. 254, 258 (1949) (“Trial by jury is a vital and cherished right, integral in our judicial system.“). Much more recently, it reminded us (in a Colorado criminal case no less) that trial by jury is one of the foundational pillars of our system of justice and central to the rule of law and our form of government:
Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.
Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 860 (2017) (emphases added).
¶56 Yet, today, the majority concludes that our jury tampering statute countenances conduct admittedly aimed at nullifying jury verdicts. Such conduct at once threatens the integrity of judicial proceedings and undermines the public‘s trust in the justice system. The integrity of legal proceedings, including with respect to jury trials in general and jury verdicts in particular, is of seminal importance because the public‘s confidence in our justice system rests squarely on the belief that jurors act fairly and impartially in reaching their decisions. When, as alleged here, individuals compromise that belief by
¶57 Because Iannicelli‘s and Brandt‘s alleged acts are criminal under a plain reading of Colorado‘s jury tampering statute,
I. Analysis
¶58 I begin by interpreting the language of the jury tampering statute. After demonstrating that the majority misses the mark in its textual analysis, I briefly discuss the First Amendment concerns raised by the parties and the majority.
A. The Jury Tampering Statute
¶59 The jury tampering statute, section
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.
(emphases added). The issues we agreed to review revolve around the interpretation of two terms in this statute: “juror” and “a case.” I agree with the majority‘s construction of the former, but not the latter. I address each in turn.
1. “Juror”
¶60 I commend the majority for recognizing that the division erred in finding that “juror,” as used in section
“Juror” means any person who is 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.
¶61 Thus, like the majority, I understand “juror” in the jury tampering statute to cover: (1) any person selected to serve on a jury in the trial of a case; (2) any person selected to be on a venire from which the jury in the trial of a case will be chosen; and (3) 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 (hereinafter “prospective juror“). Where I part ways with my colleagues in the majority is in their interpretation of “a case.” I analyze that aspect of the jury tampering statute next.
2. “A case”
¶62 Section
¶63 Given the reality surrounding prospective jurors, the legislature wisely defined the offense of jury tampering broadly, making it a crime to communicate or attempt to communicate with a prospective juror with the intent to influence her vote, opinion, decision, or other action in “a case.” I cannot join the majority in its untenable conclusion that “a case” circumscribes the statute‘s prohibited conduct to communications or attempted communications about a specifically identifiable case.
¶64 Notably, there are times when, unbeknownst to the public, citizens are summoned to appear as prospective jurors for a single case (for example, a first-degree murder case or a high profile case). In that situation, there would be a “specifically identifiable case.” Consequently, under the majority‘s analysis, the charges against Iannicelli and Brandt would have survived if it had turned out that only one case was scheduled for trial on the date of offense. 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. I find it difficult to believe that this is what our legislature intended.
¶65 Based on the majority‘s reading of the jury tampering statute, no crime will have been committed if an individual approaches a woman who has been summoned for one of a number of cases set for jury trial on a particular day and tells her that if she is selected to be a juror, then she had better vote “not guilty” or else harm will befall her or her family. Indeed, this conduct is not dissimilar to Iannicelli‘s and Brandt‘s, which the majority says does not amount to jury tampering. In the event a jury tampering charge is brought against the individual in this example, he would have a surefire defense: He did not intend to influence any prospective juror‘s vote, opinion, decision, or other action in a specifically identifiable case because it was later discovered that there were multiple cases set for jury trial that day. Even if, as a result of eleventh-hour dispositions, only one case actually proceeds to trial that day, the individual still will not have committed jury tampering according to the majority. Nor would the subsequent selection of the woman to serve on the jury in that case be of consequence for the majority.
¶66 The majority‘s reasoning seems counterintuitive. If, in communicating with a prospective juror, a defendant intends to influence a case that is specifically identifiable because it is the only case set for jury trial, he may be charged with jury tampering. But if there is more than one case set for jury trial and he intends to influence either multiple cases or a single case he shrewdly or inadvertently omits identifying, then no crime has occurred and no charges may be brought. In each of these scenarios, the defendant has attempted to influence the outcome of a case, but based essentially on semantics, the majority would hold the defendant liable only in the first scenario.
¶67 In justifying its form-over-substance position, the majority hangs its hat on the exception in section
The word “‘the case’ describes a specific case,” which must mean “the case to which the actor‘s efforts to influence a juror are directed” because the statute refers to “the case“; and “the words ‘the case’ . . . refer back to” “the words ‘a case,‘” which “introduce a particular case to which the actor‘s efforts to influence a juror are directed.”
¶68 In my view, no mental gymnastics are necessary. The term “a case” evinces the legislature‘s intent to refer to any case and to include multiple cases. See, e.g., Brooks v. Zabka, 450 P.2d 653, 655 (Colo. 1969) (rejecting defendants’ claim that the phrase “the tax levy” in a city charter referred to “[a]ny tax levy,” instead of “the property tax mill levy,” and citing the well-established “rule of law” that the definite article “the” “is a word of limitation as opposed to the indefinite or generalizing force of ‘a’ or ‘an‘“); Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 501 (Colo. App. 2010) (explaining that “by using the indefinite article ‘a,’ the phrase ‘a major purpose‘” in a constitutional amendment brought “within its ambit organizations for which promoting a ballot issue [was] but one major purpose“); see also Colorado v. Sunoco, Inc., 337 F.3d 1233, 1241 (10th Cir. 2003) (“If Congress intended to allow multiple actions for separate components of recovery or remedy, it surely would have used the indefinite article ‘a’ rather than the definite article ‘the’ to modify the phrases ‘removal action’ and ‘remedial action.‘“).
¶69 Hence, giving the words “a case” their plain and ordinary meaning, see Cowen v. People, 2018 CO 96, ¶ 14, 431 P.3d 215, 218, and effectuating all parts of the statute in harmony with the overall statutory design, see id. at ¶ 13, I generally agree with the People that section
¶70 It is true that section
¶72 In the end, I cannot in good conscience endorse the majority‘s approach. In particular, I find it troubling that, as it relates to prospective jurors, today‘s holding improperly shrinks the scope of the jury tampering statute nearly to the point of extinction. But not only does today‘s decision shield from prosecution almost all tampering involving a prospective juror, it also inadvertently disseminates the blueprint for how to tamper with a prospective juror and get away with it: Make sure more than one case is set for jury trial and avoid identifying a specific case.
¶73 Armed with today‘s decision, any individual—including a party or a party‘s relative, friend, or agent—may follow in Iannicelli‘s and Brandt‘s footsteps, show up to a courthouse on the day a case of interest is one of multiple cases set for jury trial, and lawfully urge any or all of the prospective jurors summoned for jury service to vote “guilty,” “not guilty,” “liable,” “not liable,” “for the defense,” or “for the plaintiff and the prosecution” in the cases set for jury trial that day. Even assuming law enforcement later digs up evidence that links such an individual to one of the cases set for trial that day and establishes an interest in that case‘s outcome, I question whether the prosecution could prove a charge of jury tampering because it would have difficulty showing that he intended to influence only that particular case. Whatever his true motive, his communication directed broadly at no case in particular would serve as irrebuttable proof that he intended to influence multiple cases, not a single identifiable case. And that would suffice to escape liability.
¶74 Significantly, the majority appears to realize the magnitude of today‘s decision. But, simultaneous with handcuffing the People‘s ability to charge the likes of Iannicelli and Brandt with jury tampering in order to protect the integrity of judicial proceedings and to foster the public‘s trust in our justice system, it brushes off the adverse impact of its opinion, swiftly discounting the compelling concerns raised by the People. Maj. op. ¶ 49. The Government is “not powerless,” proclaims the majority, speculating that there must be other measures it can take to ward off the alleged conduct in question. Id. Tellingly, though, the majority stops short of providing a specific, practical remedy. Id. And I‘m aware of none.
¶75 In sum, I agree with the majority‘s interpretation of “juror,” but I strongly disagree with its reading of “a case.” Because the majority gives “a case” an overly narrow and unsupportable construction and, in the process, turns a blind eye to a distressing situation, I cannot concur in its opinion.
B. Constitutional Concerns
¶76 As I mentioned earlier, we agreed to review two specific questions related to the meaning of “juror” and “a case” in the jury tampering statute. There are not competing interpretations that are textually supportable for either term because neither term is ambiguous. Instead, as I have demonstrated, applying time-honored rules of statutory interpretation, there is only one way to construe each term. Therefore, I do not believe it is appropriate to invoke the canon of constitutional doubt. See High Gear & Toke Shop v. Beacom, 689 P.2d 624, 632 (Colo. 1984) (stating that the canon of constitutional doubt assists a court in choosing among competing interpretations that are textually supportable when one of those interpretations would raise serious doubts about the constitutionality of the statute); see also Pa. Dep‘t of Corrs. v. Yeskey, 524 U.S. 206, 212 (1998) (indicating that the constitutional doubt canon is applicable where a statute is susceptible to two constructions, not where it is unambiguous).1
¶77 The majority nevertheless surmises, as do Iannicelli and Brandt, that the People‘s interpretation of “a case” would yield “a number of constitutional infirmities.” Maj. op. ¶ 48. More specifically, the majority asserts that such an interpretation would bring within the purview of the jury tampering statute protected speech, including “a post about jury nullification on a message board about jury duty, an op-ed in a local newspaper expressly encouraging jurors or prospective jurors to refuse to convict a defendant . . . , or an anti-death penalty protest in front of a courthouse while a capital case [is] proceeding.” Id. The People respond that those concerns are not valid because the statute implicitly requires proof that the actor knowingly communicated or attempted to communicate with someone who is a juror, see
¶78 In front of the district court, Iannicelli and Brandt challenged the constitutionality of the statute, both on its face and as applied to them. The district court did not address the facial challenge, finding instead that the statute was unconstitutional as applied. The division avoided review of the as-applied determination, and we subsequently accepted the People‘s appeal to determine the proper interpretation of “juror” and “a case” in the statute. Having interpreted both terms now, I would remand the matter to the court of appeals with instructions to decide whether the district court correctly concluded that the statute is unconstitutional as applied to Iannicelli and Brandt.
II. Conclusion
¶79 Because Iannicelli and Brandt openly acknowledge that they seek to deliberately influence jury verdicts, I view their alleged conduct as a threat to the administration of justice, the rule of law, and our democracy. Ironically, Iannicelli and Brandt are motivated by their belief that “the people should have power over government” to prevent “abuse of power.” According to them, nullifying jury verdicts “take[s] power away from the government and gives it to the people,” thereby keeping the government “in check.” These mission statements reflect utter ignorance of trial by jury and its role in our democracy. Iannicelli and Brandt have it backwards. We have trial by jury precisely to keep the government in check. By attempting to nullify jurors’ decisions and influence the outcome of jury trials, Iannicelli and Brandt are working to thwart trial by jury; and, in doing so, they are unwittingly trying to take power away from the people to give it to the government—the opposite of what they purportedly intend.
¶80 Inasmuch as the legislature has explicitly forbidden Iannicelli‘s and Brandt‘s alleged conduct through the jury tampering statute, the majority errs in approving the dismissal of the charges brought against them. I therefore respectfully dissent. I would reverse and remand for further proceedings.
I am authorized to state that CHIEF JUSTICE COATS joins in this dissent.
Notes
- Whether the jury tampering statute requires proof of an intent to influence a juror’s vote, opinion, decision, or other action in a specifically identifiable case.
- Whether the jury tampering statute implicitly modifies the definition of “juror” set forth in
section 18-8-601, C.R.S. (2017) .