Libertarian activist Mark Schmidter landed in jail for handing out political flyers at the Orange County Courthouse. (Photo by Michael Freeman).
ORLANDO – Mark Schmidter knows a thing or time about incarceration – or, he did, briefly.
“I wasn’t on the extended stay plan,” Schmidter said. “I was only in jail for four days.”
But that was only because he got released on bond pending an appeal. His sentence was five months in the Orange County Corrections jail on 33rd Street – a sentence handed down to him last summer for contempt of court.
It’s now been exactly one year since Schmidter was arrested in front of the Orange County Courthouse, charged with violating a judge’s administrative order prohibiting anyone from distributing flyers to prospective jurors heading into the building to see if they get chosen for jury duty. Schmidter is now appealing his conviction by Judge Belvin Perry, chief justice of the Ninth Circuit Court covering Orange and Osceola counties.
The libertarian activist is also hoping to use his case to put a spotlight on another issue: people being incarcerated for non-violent, often victimless crimes. Schmidter is holding himself up as a poster child for that cause, since he believes his arrest was a clear violation of his right to free speech.
Schmidter said he and his attorney, Adam Sudbury of Orlando, are “very confident this will make it to the Supreme Court because it is so blatantly unconstitutional what Belvin Perry did. I wasn’t even in the building and I got 150 days in jail.”
Schmidter is an Orlando roofing contractor who got involved with a group called FIJA, or the Fully Informed Jury Association, which is based in Montana and work to educate jurors on their right to jury nullification. That’s when jurors vote to acquit a defendant if they think the law that person is being charged with shouldn’t be on the books.
Schmidter said he liked FIJA’s cause because he believes the United States and Florida have far too many unnecessary laws on the books, and he’d like to see a whole lot of them removed. In the meantime, he’s happy to raise the issue and highlight it further.
“Ever since (President Richard) Nixon instituted the war on drugs, our prison population has soared,” Schmidter said. “That’s one of the reasons I got involved in FIJA, so I could see the results of what I was doing.”
For months, he distributed FIJA’s material to prospective jurors heading into the Orange County Courthouse. He stopped when Judge Perry issued an administrative order banning anyone from handing material to jurors, calling it a form of jury tampering.
Schmidter eventually returned to the courthouse, and for months in the spring of 2011, was able to distribute them without being taken into custody.
Then in the summer, as Perry was presiding over the high-profile Casey Anthony murder trial, the judge established a free speech zone in front of the courthouse for protestors or political activists. Schmidter was arrested for handing out the flyers outside of the free speech zone, and Perry later convicted him of contempt of court.
Schmidter said he may return to the free speech zone before Aug. 14, the date of Florida’s state primary, to campaign against the judge, whose re-election bid has drawn opposition from former Judge Daniel Perry, who is not related to the incumbent. The two judges square off in the non-partisan election in August.
Schmidter said the election could be a good test of the implications of that free speech zone.
“I’m constructing a booth that can fit into the free speech zone,” he said. “You have to have something big enough in the free speech zone that people can see it and walk over to it and see what you’re doing. “
His message: the same one aspiring officeholders are using throughout this presidential election year, that it’s time for change. Only, in this case, his focus is on a judicial election. In Florida, judges are elected rather than appointed.
“We’re going to have some fun with this,” Schmidter said. “We’re going to use social media first, like Facebook and Twitter, before the August 14 primary. What we’re thinking of making is an ‘Unseat Belvin Perry’ flyer and hand them out and see if he requires us to go into the free speech zone.”
Schmidter thinks that might get dictated by the content of the flyers.
“If you’re handing out flyers that say ‘Re-elect Belvin Perry,’ he wants to keep them around, so they may not be sent to the free speech zone,” Schmidter said. “But if you’re out there saying ‘Can his ass,’ you end up in the free speech zone. You can’t do that. You can’t have selective enforcement.”
Schmidter also plans to use his involvement in the Libertarian group Campaign for Liberty and its Orlando chapter to highlight the issue of people getting jail terms for non-violent offenses.
“We have more people incarcerated here than in Russia and China combined,” he said. “That’s not the percentage, that’s the total prison population. It’s totally absurd.”
Schmidter thinks a profit motive may be behind that trend – namely, the move by states to save money by privatizing prisons.
“The people running private prisons want non-violent people like me in jail because we’re so cheap to take care of,” Schmidter said. “We aren’t dangerous, and they can almost let us wander around freely. I’m 65-years old. I’m not going to fight anybody. It becomes a gated community with 24-hour protection. “

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