Is Advocacy of Jury Nullification a Crime?

The New York Times today catches up with a story Reason readers have known about for a while now: the ridiculous prosecution of Fully Informed Jury Association advocate Julian Heicklen, a 78-year-old retired Penn State chemistry professor arrested in his New Jersey home last week. From the Times account:

Since 2009, Mr. Heicklen has stood...at courthouse entrances...and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering.....

He said his activism on nullification dated back to just after he retired in the early 1990s, when he openly smoked marijuana in State College, Pa., to get arrested as a protest against marijuana laws. For this, he was arrested about five times. Mr. Heicklen has said that he otherwise does not smoke marijuana.

The Times does quote someone noting the insanity of the prosecution:

“This is classic political advocacy,” Christopher T. Dunn, associate legal director of theNew York Civil Liberties Union, said referring to Mr. Heicklen’s pamphleteering. “Unless the government can show that he’s singling out jurors to influence a specific verdict, it’s squarely protected by the First Amendment, and they should dismiss the case.”

On his own web site, Heicklen claims a prosecutor lied to the court, claiming that he was himself a juror on cases that he was allegedly "tampering" with. As he wrote there:

Magistrate Judge Ellis presided over the hearing. Rebecca Mermelstein was the Assistant U. S. Attorney, who was the prosecutor representing the U. S. Government....

Prosecutor Mermelstein informed the court that I had missed many previous appearances. She stated that I had influenced another juror on a case in which I was a juror, and influenced jurors in other cases. She asked that I be held in custody.

Ms. Shroff [his public defender] wanted to intervene on my behalf. Judge Ellis asked if this was acceptable to me. I spoke for the first time, since I fell to the floor in my home. I asked to speak with Ms. Shroff privately before I made a decision. I was wheeled out of the court room, still in handcuffs, to a cell where Ms. Shroff and I spoke. She advised me that I should accept whatever terms that would get me released....

I informed [Judge Ellis] that Ms. Mermelstein had committed perjury twice. I was not a juror on any case in this court and could not have been a juror, because I do not reside in the jurisdiction of the Second Circuit, which includes NY City. I am not even on the potential juror list. Furthermore I stated that I had never served on a jury.....

I asked him to charge Ms Mermelstein with perjury. He refused.

Lots of Reason clips on jury nullification.

UPDATE: Commenter SIV points to the possibility that Heicklen was misunderstanding the language of the indictment in accusing Mermelstein of lying--the indictment reads in part: "Julian Heicklen, the defendant, attempted to influence the actions and decisions of a grand and petit juror of a court of the United States, to wit, the United States District Court for the Southern District of New York, upon an issue and matter pending before such juror, and before a jury of which he was a member..." It's possible Heicklen was mistaking the "he" (which meant the juror) with "he" meaning Heicklen.

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  • SIV||

    Ms. Shroff [his public defender] ...

    She advised me that I should accept whatever terms that would get me released....

    You get what you pay for...

  • ||

    And what would your advice have been? Piss off the judge so you aren't released? A lawyer isn't supposed to provide only advice that you like.

  • Pendulum||

    *sigh*

  • Paul||

    This is kind of cool. It's all old timey. The government has arrested an agitator passing out libels in front of the statehouse! The narrative practically writes itself!

  • ||

    "I asked him to charge Ms Mermelstein with perjury. He refused."

    That's pathetic. That charge shouldn't even require an investigation. I bet there was somebody within ten feet who could have looked it up in minutes to see if that was true.

  • Ken||

    Except that a federal judge can't charge someone with perjury. Also, a lawyer making an argument to a court isn't under oath, so their statement can't be perjury by definition. Also, even if a federal judge could charge someone with perjury, and even if non-sworn argument could be perjury, the judge has no basis of knowing whether or not the lawyer thought that what she was saying was true (for instance, because an FBI agent gave her the information), and therefore it's highly dubious that there would be probable cause for the charge.

    You might agree with the guy on jury nullification (or you might find it abhorrent -- as Alan Dershowitz argued, jury nullification was why white people could murder black people in the South with impunity). But his talk about perjury is ignorant tax-protestor-style crazy-old-man talk.

  • Waggoneer||

    The arrest warrant is given under oath, right?

  • Ken||

    Not by the prosecutor. And not an arrest warrant based on an indictment. (An arrest warrant based on a complaint is based on an oath by the affiant, almost always a federal agent.)

    Anyway, as seen further down the thread, the "perjury" argument is almost certainly based on crazy-old-man-tax-protester-style misreading of what the indictment actually says.

  • ||

    correct. An arrest warrant is issued by a judge based on a PC certification (in every jurisdiction I have worked) written by a law enforcement officer and sworn by him. A prosecutor cannot simultaneously be a sworn witness and a prosecutor in a case, which is why cops have to sign the PC cert, at least where I work.

    We don't have indictments in my state (no grand jury either), but we have informations

  • Ray Pew||

    You might agree with the guy on jury nullification (or you might find it abhorrent -- as Alan Dershowitz argued, jury nullification was why white people could murder black people in the South with impunity).

    Dershowitz might be correct if he can show that such cases were influenced by the nullification concept, and not merely the refusal to rule "guilty" on white defendants. The two are not equal.

  • Apogee||

    I asked him to charge Ms Mermelstein with perjury. He refused.

    And not only refused to do that, but it seems that the Judge refused to even check the veracity of the defendant's statement.

    The system appears to exist to serve itself.

  • SIV||

    “The Grand Jury charges:

    From at least in or about October 2009 up to and including in or about May 2010, in the southern District of New York, Julian Heicklen, the defendant, attempted to influence the actions and decisions of a grand and petit juror of a court of the United States, to wit, the United States District Court for the Southern District of New York, upon an issue and matter pending before such juror, and before a jury of which he was a member, and pertianing to his duties, by writing and sending him a written communication in relation to such an issue or matter, to wit, HEICKLEN distributed pamphlets urging jury nullification, immediately in front of an entrance to the United States District Court for the Southern District of New York, located at 500 Pearl Street, New York, New York.”

    I don't speak lawyer but this reads like it is referring to a juror and the jury the juror was on, not Mr Heicklin. I think he is a bit confused.

  • Brian Doherty||

    That's certainly possible. His account doesn't specifically refer to the written indictment, but to statements she made before the judge. Which could well have been just reading the indictment.

  • Ken||

    This interpretation is much more plausible if you read the statute he is charged under, 18 USC 1504:

    "Whoever attempts to influence the action or decision of any grand
    or petit juror of any court of the United States upon any issue or
    matter pending before such juror, or before the jury of which he is
    a member, or pertaining to his duties, by writing or sending to him
    any written communication, in relation to such issue or matter,
    shall be fined under this title or imprisoned not more than six
    months, or both."

    The indictment simply tracks the language of the statute.

    Federal indictments have never been a model of clear diction.

  • ||

    ...upon an issue and matter pending before such juror, and before a jury of which he was a member,..."

    So, it depends on what the meaning of the word "he" is?

    In his defense, if I were Heicklen, and I had been indicted for exercising my constitutional rights, and had to face a court much like the one that wanted me indicted?

    Thinking they were out to get me would probably be my default assumption too.

  • ||

    Or could it hinge on what the meaning of "is" is?
    jis saying...

  • ||

    Who was the potential juror? Shouldn't that "such juror" be named? If he were named (if he exists) then who he is would be clearer.

    Or was anyone milling about the courthouse a potential juror?

  • Apogee||

    Agreed.

    any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member


    Doesn't this imply that these must already be jurors, and not possible jurors? Also, the charges seem to imply an "influence", but information on nullification as a possible resource would seem to counter the idea that the jury must follow the letter of the law, which could, in itself, be an influence.

    They seem to be saying that no one but the state can influence jurors.

  • Waggoneer||

    I don't get the "tampering with the jury that he is a part of," thing. Is the prosecuter retarded, or is this part of their plan.
    No jury trial and just move Heicklen into prison for 6 months to teach him a lesson.

  • Hugh Akston||

    This is the right approach. Heicklen's testimony might influence the jury's decision. His fate should be decided by people who know better without him there to muck up the proceedings. He should also be barred from talking to the jury, anyone who has served on a jury, or anyone who is or every will be eligible to serve on a jury.

  • No Name Guy||

    To answer the question posed by the headline of this entry directly:

    No. No informing jurors of their power is not a crime.

  • ||

    So if a bunch of off-duty cops stand at the entrance to the courthouse on the day of jury selection for a police brutality case, handing out fliers urging jurors to demanding an extremely high standard of proof before convicting, you guys would be OK with that?

  • Hugh Akston||

    Why shouldn't we be?

  • ||

    Yes.

    And if the judge threw out anyone from the jury pool who says they were influenced, or even approached, I'd be okay with that too.

  • ||

    If the pamphleteers are standing at the entrances, every juror in the courthouse has been approached. Is the judge supposed to throw out the entire jury pool every day?

    At some point, you have to balance the need for a functioning justice system against the freedom of speech. They should restrict speech as little as possible to keep the court running, but that's going to be a nonzero amount.

  • omg||

    Except informing juries of their right to nullification does not impede the function of the justice system at all. Prosecutors and judges don't like it, because it robs them of some power. But I don't see any reason why we need to search far and wide for the 12 most clueless individuals to have a "fair trial".

  • ||

    That's a fair point.

    And when it becomes a problem for a particular case that particularly biased pamphleteering affects the ability to seat a jury, then the message those summoned get when they call in the morning can be changed to "Numbers 3300 to 3500 please report to another public building to be escorted to the courthouse."

    There are measures that can be taken in the rare case that a problem arises -- none of which suggest any need for prior restraint of political speech.

  • robc||

    That's a fair point.

    No it isnt.

  • ||

    Is too!

  • robc||

    Rights never need to be balanced.

  • ||

    Perjury and threats are speech.

  • robc||

    They arent free speech.

  • ||

    Why not? I smell a balancing going on.

  • Bill||

    Jury nullification is a part of any functioning justice system. Jurors are allowed to do it, but lawyers are not allowed to ask them to nullify. There is no rule or law against others doing it outside the courthouse. This guy should be honored for his work.

  • Pendulum||

    Hypo: A person stands outside a courthouse door on jury-selection day handing out lurid articles about the crime at which prejudge the defendant as guilty and contain inadmissible evidence. Protected speech or jury tampering?

  • ||

    That would be jury pampering, but the difference is that it pertains to a particular case, while the jury nullification lit doesn't.

  • Apogee||

    No, free Mani-Pedi's would be jury pampering.

  • Coeus||

    That depends whether or not they're in uniform.

  • Bill||

    I would contact their commander and see that they were internally disciplined. As cops they are rightly held to a higher standard. Regular citizens are allowed to express any view they like. Read the Constitution.

  • ||

    You seem to have missed the part about them being off-duty; in the absence of some official department policy to the contrary, they have the same freedom of expression as anyone else when they're off-duty. But it's not even necessary for the pamphleteers to be cops for my hypothetical; it could be friends and family of cops who are not cops themselves.

  • ||

    excellent discussion of this case at volokh.com. some have pointed out correctly that one of the reasons juries exist in the first place *IS* to nullify. iow, it's a fundamental aspect of our system that is meant as a check against the power of the state. if legislators can pass bad law (and they can) and if judges can make bad case precedent and/or rule unconstitutional laws to be valid (and they can) etc. and if prosecutors can abuse their power (and they can) etc. then it's up the juries, the FINAL check in the system to nullify.

  • Apogee||

    Yes. Arresting Julian Heicklen and preventing him from informing juries of their duties as a check against an imperfect State is an improper influence on said juries by the state.

  • ||

    Problem is, what's the check on jury nullification? Letting initiators of force go free -- while not as bad as punishing the innocent -- is destructive of liberty in its own way.

    The historical examples of murderers of black people being acquitted, or more modern example of police being acquitted of obvious acts of brutality, should drive this point home. Unfortunately TEAM NULLIFICATION is loath to acknowledge it.

  • ||

    So what is the evidence that those cases -- I'm sure you have many cites -- were juries applying the notion of jury nullification rather than plain bias in the face of the law and the facts?

  • ||

    If the jurors acquit someone because of either the law or the facts, then it's not jury nullification. So, nullification IS bias in the face of the law and the facts, every time it occurs.

  • ||

    Jury A acquits a defendant who has been proven beyond a reasonable doubt to have been in possession of marijuana, because they believe marijuana prohibition to be unjust.

    Jury B acquits a cop who has been proven beyond a reasonable doubt to have beaten a suspect to a bloody pulp during the course of making an arrest, because they believe restrictions on police behavior toward suspected criminals to be unjust.

    Which one is jury nullification and which one is bias in the face of law and fact, you tell me.

  • ||

    Jury A is nullifying: they believe that the law is wrong.

    Jury B is acquitting due to bias: they believe that the law shouldn't apply to persons of class X.

  • omg||

    Indeed. And the most important part of jury nullification would come into effect here: the castration of bad laws. Jury B's would be a rare event, and the problem exists even with all the restrictions on jury nullification (see: the OJ trial). The law itself would is not and will not be changed because of such cases.

    Jury A's can actually make a law impotent, however, as juries that routinely vote to acquit people of bullshit charges like MJ violations will basically block enforcement of those laws. If prosecutors can't get a conviction, they will just drop the case.

  • ||

    Huh? Jury B believes the law against police brutality is wrong. The law inherently doesn't apply to non-police, so it's not a class-discrimination issue.

    If you want a clearer example, take Jury C which acquits a government official who has been proven beyond a reasonable doubt to have taken bribes, because they don't think public servants are paid enough.

  • ||

    And of course, jury nullification does not only allow acquittal in the case of a fundamentally unjust law; it also allows acquittal in cases where jurors believe that a generally just law is being unjustly applied. So the characteristics of the defendant and/or the victim in this particular case are fair game for the nullification decision.

  • Ray Pew||

    And of course, jury nullification does not only allow acquittal in the case of a fundamentally unjust law; it also allows acquittal in cases where jurors believe that a generally just law is being unjustly applied. So the characteristics of the defendant and/or the victim in this particular case are fair game for the nullification decision.

    This is a possibility, but why is it that concerning? Are we to believe that abuse by the system is acceptable, while abuse by the citizenry is not? It is evident that the system has the incentive to protect itself and its own power, why should an imperfect check by the people be that worrisome?

  • robc||

    If we could actually get prosecutors to charge cops, I will consider that a victory regardless of the jury outcome.

    And Im really not worried about B if we can get the prosecutors to do their damn job.

  • Bill||

    Are you stupid or just an asshole?

  • robc||

    There is no need for a check on jury nullification.

  • Ray Pew||

    Problem is, what's the check on jury nullification? Letting initiators of force go free -- while not as bad as punishing the innocent -- is destructive of liberty in its own way.

    It most surely can be, but since lack of jury nullification does not make the system any more perfect, I fail to see why an additional check by the citizen is worse than the bias towards institutional imperfection.

    The historical examples of murderers of black people being acquitted, or more modern example of police being acquitted of obvious acts of brutality, should drive this point home. Unfortunately TEAM NULLIFICATION is loath to acknowledge it.

    I really don't see how these are direct evidence of jury nullification, as opposed to cultural and personal bias, where jurors refuse to convict because of the particulars of those involved. We know that it occurs, but is not due to any knowledge of jury nullification, which deals with the law itself, as opposed to particulars of the case.

  • ||

    late, but let's not forget all the acquittals of actors in the Underground Railroad in the late 1840s, 1850s and early 1860s.

    Quit arguing about whether its a good thing or a bad thing, tell us how the heck you'd stop it if it were up to you. Should we literally hang the jurors like they did in England before Zenger?
    http://en.wikipedia.org/wiki/John_Peter_Zenger

    "Zenger was most likely a convenient target to use in an attempt to end criticism. His defense attorney, Andrew Hamilton, was appointed after Zenger's disbarred ex-lawyers, James Alexander and William Smith, interested Benjamin Franklin in the case. Franklin was able to persuade Hamilton to accept the challenge.[4] The judge in the case gave the jurors an order to ignore whatever slander Hamilton tried to throw at them and deal a guilty verdict no to Zenger based on his charge of printing false, scandalous, and malicious articles about the Governor.[3] After much battling in the courtroom Hamilton said "The question before the court and you, ladies and gentlemen of the jury, is not of small nor private concern...No! It may in its consequences affect every free man that lives under a British government on the main of America. It is the best cause of liberty."

    If you're against jury nullification you're on the opposite side of the table from Ben Franklin and Alexander Hamilton.

  • Jake Badlands||

    All issues of jury nullification aside, why isn't this a pure first amendment issue? Is pamphleteering in front of a court forbidden in the same way electioneering in front of a polling place is, at least where I live?

  • Jake Badlands||

    Just to make myself look less ignorant...

    I understand that the exact charge seems to be tampering with a juror, or unduly influencing a juror, or some other nonsense. Where the hell do you draw that particular line? Can we go into a juror's home and make sure their spouse or parent isn't inappropriately "influencing" said juror?

  • ||

    The law is and means what those with the authority to enforce it say it is and say it means. We have had and endless litany of examples from the very beginnings of this country which demonstrate that the laws protects you from precisely nothing. The federal government has never been constrained by the Constitution when it has any serious desire not to be constrained and the law at all levels of government has been distorted or ignored to serve the interests of those enforcing it. Yes, you can point to examples where, after having gone to court, an individual's rights have been vindicated versus the government, but this counts for exactly nothing.

  • Ayn R. Key||

    The ironic thing is that in order to prosecute Heicklen they will have to enter the Jury Nullification pamphlets as evidence.

  • WasabiPeas||

    But they won't give him a trial by jury

  • Bill||

    They can't deprive him of his right to jury trial. Of course, they shouldn't be allowed to prosecute him the first place.

  • Your Majesty||

    If Dr. Pot stood in front of the courthouse and passed out copies of the NY Times, with a front-page headline "Mob Boss Jury Selection Begins Today," that would be OK. And that is a lot more inflammatory and prejudicial than this.

  • Anonymous||

    JAY, C.J., Opinion of the Court
    SUPREME COURT OF THE UNITED STATES
    3 U.S. 1
    Georgia v. Brailsford
    http://www.law.cornell.edu/sup.....01_ZO.html
    It may not be amiss, here, Gentlemen, to remind you of the good old
    rule, that on questions of fact, it is the province of the jury, on
    questions of law, it is the province of the court to decide. But it must
    be observed that by the same law, which recognizes this reasonable
    distribution of jurisdiction, you have nevertheless a right to take upon
    yourselves to judge of both, and to determine the law as well as the
    fact in controversy. On this, and on every other occasion, however, we
    have no doubt, you will pay that respect, which is due to the opinion of
    the court: For, as on the one hand, it is presumed, that juries are the
    best judges of facts; it is, on the other hand, presumbable, that the
    court are the best judges of the law. But still both objects are
    lawfully, within your power of decision.

  • ||

    ...and this is not just any judge's opinion. John Jay was the first Chief Justice of the U.S. Supreme Court.

  • Anonymous||

    http://www.lp.org/platform
    1.5 Crime and Justice
    We assert the common-law right of juries to judge not only the facts but also the justice of the law.

  • ||

    Well, hopefully if he goes to trial, the jury will disagree with the law, and acquit him.

  • ||

    Sorry, it's a misdemeanor. No right to a jury trial in this case.

  • ||

    http://www.constitution.org/jury/pj/7826_abc.htm

    Angela Davis - for those old, decrepit, and senile enough to remember...or fail to remember what they thought they remembered...

  • db||

    I talked with Heicklen a couple of times when I was at Penn State, even voted for him when he was running,for some state or local office. He seemed nice enough, but he (like many of my fellow libertarians) was sort of ineffective at communicating the ideas to non-libertarians. Sadly he just seemed "off" enough that instead of engaging him in discussion or finding out about what he was advocating, folks tended to avoid him due to his appearance and demeanor, which sometimes was reminiscent of an overly engaging homeless man.

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