Libertarian activist Mark Schmidter hands out jury nullification flyers in front of the Orange County Courthouse last January. On Wednesday, that act got his arrested. (Photo by Michael Freeman).
ORLANDO – After Mark Schmidter got booked into Orange County Corrections, two things surprised him about the jail on 33rd Street.
“It’s relatively clean,” he said. “It’s not like a third world deal.”
The second thing is what the jail officers asked him to do.
“Naturally they sent me in for a psychiatric evaluation,” he said. “They must have figured anyone willing to go to jail for handing out pieces of paper on public property … I guess they wanted to say, ‘Are you crazy?’ “
Schmidter laughed a day later about the psyche exam that he easily passed, but on July 9, he will once again appear before Judge Belvin Perry, chief justice of the Ninth Circuit Court of Orange and Osceola counties, to face a charge of criminal content of court. The charge stems from Schmidter’s decision on Wednesday to hand out jury nullification flyers in front of the Orange County Courthouse – something he had been doing on and off since last September, nearly a year ago.
And if not a single deputy with the Orange County Sheriff’s Office had been willing to arrest him since Jan. 29 – when Judge Perry first issued an administrative order banning anyone from distributing those flyers, which encourage jurors to consider voting not guilty if they reject the law a defendant is being charged with – why would he suddenly get arrested and charged now?
And why would Judge Perry bring Schmidter into his courtroom to post his bond when Perry is presiding over the high profile Casey Anthony trial, and why postpone that trial briefly to address Schmidter’s case?
Schmidter said he has no clue, although he suspects that another judge may have learned about the flyers and asked Perry to intervene and have him arrested. But he’s not quite sure.
What he does know is that after weeks of handing out the flyers, everything changed in a split second on Wednesday.
“I’m standing there handing out flyers when some (sheriff’s) lieutenant says ‘You’ve got to go to the free spech zone,’ “ Schmidter said, a reference to the special taped-off zone near Orange Avenue, in front of the courthouse, that protestors are asked to stay in.
“So I said, ‘I thought I could be here,’ and he said, ‘You’re arrested,’ “ Schmidter said. It had been that simple.
“I was there on Monday and Tuesday,” Schmidter said. “I never got busted.”
For the sheriff’s office, and the court, to have allowed him to distribute the flyers for weeks without arresting him, and then suddenly put handcuffs on him amounts to selective enforcement, Schmidter said.
“If you have a law, it has to be equally distributed,” he said. “You can’t pick and choose who it applies to. You’ve got to bust all of them or none of them.”
As soon as he was told he was being arrested, Schmidter said, he fell to the ground and became totally non-responsive. The sheriff’s office responded by calling an emergency medical response unit to the scene.
“They put me in an ambulance, because I wasn’t moving,” Schmidter said. “If you’re not doing anything, they have no choice but to take you to the hospitall. They don’t know if the cops have done something to you or not. Once you move your eyes or even talk, that means you can talk. Since I wasn’t responding, taking to them or anything. They can’t move you, because for all they know you may have had a heart attack or something. The police were calling up their supervisor asking ‘What do I do here,’ and they all said if he isn’t moving or isn’t responsive, we have to take him to the hospital. That’s what you have to do. If you tried to move, they can always say you’re resisting.”
He was taken to Orlando Regional Medical Center, where he got checked out for 15 minutes, then released back into the custody of the sheriff’s office. He was transported back to the courthouse, where he was placed in a holding cell until Judge Perry could see him.
Throughout all this, Schmidter said, the sheriff’s deputies he dealt with were “very gentlemanly people. They were all really nice people. I’m going to give credit where credit is due. All the cops I’ve associated with handing out flyers all these months, we were on a first name basis.”
He was taken to Perry’s courtroom around 1:30 on Wednesday afternoon, on the day before the defense rested in the Casey Anthony murder trial.
“The jury wasn’t there, and Casey Anthony wasn’t there, either,” Schmidter said. “So the judge just asked me if I owned property, and I said yes, and he said the bail is $2,500. He asked if I would need a lawyer and I said no, I would take care of that myself.”
His arraignment was set for July 9, and then he was transported to the Orange County jail to be booked. Friends posted his $250 bond, and he was released early this morning, around 1 a.m.
“The charge is criminal contempt of court,” Schmidter said. “They also put a no-trespassing order on me (at the courthouse). I don’t know how they can do that with public property. If I need to go there, I have to call first and get authorization or approval.”
Judge Perry had issued an administrative order last January banning anyone from handing out written material to prospective jurors on the grounds that it represented a form of jury tampering. The order may have been directed at Schmidter, who had spent the previous four months visiting the courthouse to hand out flyers from the Fully Informed Jury Association, or FIJA, which encourages them to engage in jury nullification — or voting to acquit someone of a crime even when the evidence strongly indicates the person is guilty.
FIJA’s goal is to encourage jurors to vote not guilty if they disagree with or disapprove of the law the defendant is being charged with. That result, the organization based in Montana believes, will send a message to state and federal lawmakers that there are too many victimless crimes that people are being prosecuted for.
Schmidter endorsed the concept and spent four months handing out the flyers every Monday morning in front of the courthouse — until Perry issued his order on Jan. 31.
The American Civil Liberties Union responded with a lawsuit challenging the judge’s order, which FIJA supported. Schmidter had started handing out the flyers again this month, as the media swarmed onto the Orange County Courthouse for the high profile Anthony trial.
When he goes before Judge Perry again on July 9, “I’m going to plead not guilty,” Schmidter said. “We’ll have to see what happens then.”
But he still believes he has a strong free speech right to defend here.
“I don’t care if you’re handing out the Koran – it’s your right on public property to hand out whatever you want,” he said. “This isn’t Wal-Mart, this is the courthouse steps.”

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