DENVER (CBS4)– In early August Denver police arrested Eric Brandt and Mark Iancelli for handing out information about jury nullification outside the Denver courthouse.

Jury nullification is when a juror believes a defendant is guilty of a crime, but disagrees with the law and returns a not guilty verdict instead.

Now activists looking to do the same thing are filing a lawsuit, saying the plaza is public space, a site often used for protests, and that the men should be allowed to hand out the flyers.

“My clients were passing out literature explaining all of that to passersby in the plaza at the Lindsay Flanningan courthouse,” said David Lane, who is representing the two men now charged with seven counts of jury tampering.

Eric Brandt left, Mark Iancelli right (credit: Denver District Attorney's Office)

Eric Brandt left, Mark Iancelli right (credit: Denver District Attorney’s Office)

He is also the attorney for three other activists filing a lawsuit against the city claiming the threat of arrest is unconstitutional.

“It’s our contention that this is free speech, this is not jury tampering, they weren’t seeking a result on any particular case, they weren’t seeking to influence jurors,” Lane said.

In a statement, the Denver District Attorney’s Office says the allegations,

“are very narrow and allege that the defendants were, with intent, trying to influence a juror’s opinion, decision or vote when they specifically identified jury pool members and gave them jury nullification literature as they were entering the courthouse.”

Lane believes that even if the two men were handing flyers to potential jurors, they have the right to do so.

The issue will come down to what was in those flyers they were handing out, and who they were handing them to.

Now it will be left up to a judge, and possibly a jury, to decide what’s allowed.

On Friday, Lane and other activists will be in federal court filing an injunction to keep DPD from making similar arrests in the future.

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