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Our Opinion: Even jurors can’t silence courthouse critics

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North Carolina’s highest court will soon decide whether defendants who believe they were wrongfully convicted have the right to complain to the jurors who sat in judgment.

A three-judge N.C. Court of Appeals panel upheld the state’s problematically vague juror harassment law in a 2-1 ruling last month, finding that shielding jurors from uncomfortable conversations outweighs the First Amendment’s free speech protections. Since the appellate opinion was not unanimous, the N.C. Supreme Court is obligated to review the case.

Patrick Mylett appealed his February 2017 conviction on a charge of conspiracy to commit juror harassment. A Watauga County jury acquitted Mylett on six counts of juror harassment but found him guilty on the lesser conspiracy charge. The case stems from Mylett’s decision to confront jurors who convicted him on a 2015 assault charge after his arrest during an Appalachian State University fraternity party.

After his sentencing in the original case, Mylett, his twin brother Dan Mylett and Dan’s girlfriend “loudly confronted six jurors about the verdict as they exited the courtroom and retrieved their belongings from the jury room,” Court of Appeals Judge Ann Marie Calabria wrote in the majority opinion.

According to court testimony, Patrick Mylett told jurors he hoped they could live with themselves because they’d convicted an innocent man.

Mylett contends that the First Amendment allows him to criticize his conviction and that the North Carolina statute for juror harassment is unconstitutional. Calabria and Judge Valerie Zachary disagreed.

“It is undeniable that the state has a substantial interest in protecting the sanctity of the constitutional right to a trial by jury through ensuring that jurors remain free from threats and intimidation directly resulting from their duty to serve,” wrote Calabria, who retired from the court on Dec. 4.

Unfortunately, the majority equated mere discomfort with intimidation and failed to differentiate between jurors’ umbrage at being jeered from a true threat or implied intent to retaliate. Calabria and Zachary would grant jury members a sweeping privilege no other American enjoys — immunity from public criticism.

In a blistering dissent, Chief Judge Linda McGee details the fatal flaws in Mylett’s conviction, shows the juror harassment statute to be unconstitutional on its face and essentially teaches a master class on First Amendment law. Her 37-page dissent picks apart the 26-page majority opinion and corrects its faulty reasoning.

Calabria and Zachary skirted the free speech issue by declaring the state’s ban on juror harassment and intimidation to be a law regulating conduct, not speech. But it’s laughable to suggest that identical conduct — approaching jurors in the open hallway of a public courthouse — would give rise to sanction had the message been complimentary rather than critical.

In order to be against the law, “intimidation” must be objectively defined and cannot rely on whether someone subjectively feels uncomfortable.

“...(N)ot a single juror could articulate anything concrete that happened at the courthouse in support of their fears that they might be in some future danger,” McGee wrote in the dissenting opinion.

The Times is a staunch proponent of jurors’ rights. In this space, we’ve discussed the history of jury nullification and urged courts to inform jurors they can set aside unjust and unnecessary laws by refusing to return a conviction. We trust the ordinary citizens in the jury box to mete out justice more than we trust the machinations of elected legislators and the tortured hairsplitting of elected judges.

But the act of serving on a jury doesn’t confer the right to be free from dissent and disagreement, much less the earnest protestations of a convict asserting innocence. No such right exists in the United States.

“I recognize the important governmental interest in preventing juror harassment, but I also recognize the countervailing fundamental right to challenge governmental action in a nonviolent manner,” McGee wrote.

The Court of Appeals’ chief judge reached the correct conclusion in this case. It’s a shame her fellow judges were stricken with constitutional cataracts and failed to see the glaring First Amendment conflicts in Patrick Mylett’s conviction. Our state Supreme Court will soon have the opportunity to set things right.

“...(T)he majority opinion’s holding will allow prosecution for protesting government action based on jurors’ claims that a defendant’s actions made them feel ‘timid or fearful,’” McGee wrote.

That simply won’t do in a free society. Some folks may scare easier than others, but a speaker’s lawful words don’t magically become unlawful whenever a listener shudders. Occasional discomfort is the price we pay for freedom of speech. The costs of censorship are far greater.

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