Speech Related to the Politics of Juries Certainly Punishable by Law, New York Prosecutor Explains

The New York Times reports on the prosecutor's brief in the long-simmering prosecution of Julian Heicklen for handing out pamphlets advocating the jury's ye olde ancient Anglo-Saxon power and responsibility to judge the law as well as the facts (colloquially known as the power of jury nullification):

 prosecutors are offering their first detailed explanation for why they charged Mr. Heicklen, arguing in a brief that his “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.”

“His speech is not protected by the First Amendment,” prosecutors wrote.

“No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

The filing in the unusual case comes as Judge Kimba M. Wood of Federal District Court considers the defense’s request to dismiss the case. She has scheduled oral arguments on the issue for next month.

That may be so. And yea indeed, no mighty republic could survive if we all chose to stop growing up, become Lost Boys, and drift off to Never-Never Land. And yet works made of words that paint that as a possibly desirable alternative are, last time I checked, legal. For a more political take on the same point, no legal system could long survive if everyone engaged in any sort of civil disobedience, and yet strangely advocating specific forms of civil disobedience through words or pamphlets is not generally considered illegal in a nation with the First Amendment.

In short, the prosector's argument is very, very dangerous nonsense, and may it fail in court, and this whole indictment and prosecution is a blatant and awful case of legal punishment for political speech. (Which, not to put too fine a point on it, is a bad thing.)

I've been blogging about Mr. Heicklen's case many steps of the way, from his February arrest to the Times' first coverage of the case to Heicklen's defying a stupid court order about jury nullification pamphleteering in March to reporting in the June 2011 issue of Reason on a summation of his fight so far.

For the latest on Heicklen's legal troubles related to speaking the truth about jury's powers, see the "Tyranny Fighters" site.

Lysander Spooner explains it all to you on the traditional and necessary and just powers of juries, the final check and balance on tyranny.

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  • Lemon-Colored Character||

    Kimba! Kimba!
    Kimba the WHITE lioness was her name!

  • ||

    Kimba was almost U.S. Attorney General. See also here.

    I confidently predict that she will rule against Heicklen.

    May painful, incurable disease ravage her anus, for ever and ever. Amen.

  • Lemon-Colored Character||

    I'll just leave this here:

    Gov. Palin's Proclamation on Jury Rights Day:

    Jury Rights Day

    WHEREAS, September 5, 2007, will mark the 337th anniversary of the day when the jury, in the trial of William Penn, refused to convict him of violating England’s Conventicle Acts, despite clear evidence that he acted illegally by preaching a Quaker sermon to his congregation.

    WHEREAS, by refusing to apply what they determined was an unjust law, the Penn jury not only served justice, but provided a basis for the U.S. Constitution’s First Amendment rights of freedom of speech, religion, and peaceable assembly.

    WHEREAS, September 5th, 2007, also commemorates the day when four of Penn’s jurors began nine weeks of incarceration for finding him not guilty. Their later release and exoneration established forever the English and American legal doctrine that it is the right and responsibility of the trial jury to decide on matters of law and fact.

    WHEREAS, the Sixth and Seventh Amendments are included in the Bill of Rights to preserve the right to trial by jury, which in turn conveys upon the jury the responsibility to defend, with its verdict, all other individual rights enumerated or implied by the U.S. Constitution, including its Amendments.

    NOW, THEREFORE, I, Sarah Palin, Governor of the State of Alaska, do hereby proclaim September 5, 2007, as:

    Jury Rights Day

    in Alaska, in recognition of the integral role the jury, as an institution, plays in our legal system.

    Dated: August 31, 2007

  • Reasonathal||

    Shhh ... Reason hate Palin. Palin no good. Palin must be ridiculed. Palin worthless. Palin stupid. Palin good-for-nothing-but-Reason-editor-porn-fantasy.

  • Suki||

    Betcha they don't mention this in the next jury nullification story.

  • romulus augustus||

    Palin neither wrote this nor understands the concepts completely.
    But she did have the good sense to sign the proclamation. Most governors would have tossed it to some committee to "review" and it never sees the light of day.

  • wayne||

    While I agree that Sarah almost certainly did not write the proclamation, I see no basis for the claim that she did not understand it. You are simply piling into the politically correct meme that she is stupid. Anybody of average intelligence can read that proclamation and understand it; Sarah is certainly, at the least, of average intelligence.

  • Zeb||

    Yeah, probably because it is not relevant at all, you stupid sockpuppet.

  • Zeb||

    Oh for fuck's sake. Yes, Sarah Palin is sometimes right. Now can everyone please get over this bizarre fixation?

  • mems||

    Kimba M. Wood, hadn't heard that name in a while.

  • Sebastian||

    Shaka, when the walls fell

  • tng geek||

    Hinber, as the seasons change

  • Sebastian||

    Kiteo, his eyes closed

  • tng geek||

    Ahh, draining of the Sun pool

  • Sebastian||

    Shatner, his toupee unfurled.

  • tng geek||

    Sheen, as his tiger juices

  • Fist of Etiquette||

    Doherty and Cavanaugh, on the Reason cruise.

  • Nancy Grace||

    dunphy, procedure followed.

  • ||

    Don't ever associate me with that piece of shot nancy grace. She is like a funhouse mirror versio of a reasonoid bigot.

  • rather loves her fans||

    That may be so. And yea indeed, no mighty republic could survive if we all chose to stop growing up, become Lost Boys, and drift off to Never-Never Land....


    Has someone been quoting reading my blog?


  • nope||

    No actually, there's this whole book about that stuff, kinda popular...

    seriously, what kind if mental illness one think "hey that's from my lameass derivative blog which just copied someone else's insight " instead of "hey that's from the source material"

    What the fuck is wrong with you?

  • Are you fucking retarded?||

    What the fuck is wrong with you?

  • turnip||

    Okay, this is just hilarious. Jebus freaks, get your panties in a wad.

  • Eduard van Haalen||

    Why would anyone, "Jebus freak" or not, be surprised at what happens in Miami?

    It *is* an interesting story, thought.

  • Mr. Mark||

    1. Prosecuting someone for handing pamphlets about jury nullification: Bad
    2. Jury nullification: Not necessarily all that great either

    Suppose that someone has stolen something from you, or destroyed something you worked hard and saved for over many years. Maybe you're still paying for it. Then some moonbat came along and stole it, destroyed, seriously damaged it, whatever.

    Then, the police catch them and the state prosecutes them.

    However, the jury decides..."You know what? I think the defendant is right because ya-know, the person that owned this doesn't need one of those anyway. I mean, why should they have something so expensive? I don't? Why should they?" And so, the person who wronged you is now free to go...not just that...free to go DO IT AGAIN!

    Or BETTER YET:

    YOU are on trial for something you didn't do, maybe you defended yourself, for instance, and suppose the laws of your state specifically your true actions under the true circumstances perfectly legal. Let's say your REALLY F'ING EXPENSIVE defense lawyer is able to demonstrate these true facts clearly in the courtroom, but the jury decides, "Well I don't he should have done that. I don't care what the laws say." And so, you're now cellmates with this guy.

    Apply this as well to civil suits and contract law...

    You get the idea.

    So, prosecuting this guy for handing out his pamphlets - bad.

    Jury nullification - no thanks. I'll take representative government over mob rule by jury.

  • Mr. Mark||

    I'd correct all the typo's in my post except...I have to get back to life.

  • Uncle Joe||

    Yes, because as we all know, jurors would like nothing more than to nullify laws that would actually protect THEIR rights when the time comes, right?

    Because jurors have no property and could never be victims of the crime they would deem not to be a crime in your hypothetical case.

    What is that called again? Reductio ad absurdum?

    Obviously, it is not nullification of any particular CRIME in that moment, but of the law that makes such activity a crime. Which would mean that theft in general would be "nullified" as a crime.

    Obviously, jury nullification is for laws that are STUPID and WRONG, because the crimes committed are not real crimes, and becoming a "victim" of them would mean so fucking little that nullification should not be much of a problem for any straight-thinking human being not involved somehow with the government.

    You know, "crimes" like handing out pamphlets with political speech, for example.

  • ||

    I'll take representative government over mob rule by jury.

    If we had anything remotely resembling a representative government, you'd have a point, but we don't, so you don't.

    -jcr

  • ||

    I'll take representative government over mob rule by jury.

    Quick! Spot the difference.

  • ||

    The same people you imply are too stupid to be jurors are the ones voting in the elections in your preferred representative government. So your choice is a false one.

    Not that our current government is at all representative anyway. Do you really believe that your congressman represents you?

  • ||

    YOU are on trial for something you didn't do, maybe you defended yourself, for instance, and suppose the laws of your state specifically your true actions under the true circumstances perfectly legal. Let's say your REALLY F'ING EXPENSIVE defense lawyer is able to demonstrate these true facts clearly in the courtroom, but the jury decides, "Well I don't he should have done that. I don't care what the laws say."

    First of all, the judge can and will acquit if there is inadequate evidence of guilt.

    Second, do you imagine that if jury nullification were formalized by a judge's instruction to the jury that "The jury is allowed to acquit in the face of the facts, but not convict in the face of the facts." that anyone who argues for jury nullification would mind?

    The right of the jury to nullify is simply another procedural obstacle that must be cleared to get a conviction. It isn't an empowerment of the jury to play vigilante.

  • Zeb||

    Mr. Mark, a problem with complaints like yours is that jurors can vote however they choose to regardless of whether anyone thinks that they have the right to jury nullification. Even if the rules are unambiguously that the jury decides fact only, any juror can still vote any way he wants to for any reason and there is nothing anyone can do about it. I would argue that it is better to have all jurors informed that judging the law is their right under common law.

  • robc||

    Im not sure Mr Mark knows what jury nullification is.

    #2 is not an example of jury nullification. #1 is, ONLY if the jury says that laws against theft are wrong (or over-prosecuted or the punishment too harsh), not as in the example, because "the person that owned this doesn't need one of those anyway".

    If we are going to discuss jury nullification, lets actually discuss jury nullification.

  • ||

    jury nullification IS and HAS BEEN the law of the land in this country.

    so, this statement “No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

    our legal system can and HAS survived despite jury nullification. quite well, thank you.

    hey, maybe when some cops get acquitted it's jury nullification, too, but with jury nullification JUST LIKE with rule of law you take the bad with the good right?

    because it's about process, not results.

    can jury nullification in some instances bring about bad results?

    sure.

    but it IS the law in our nation, and our nation has done damn well with it.

  • ||

    oh, and to clarify ... jury nullification does NOT give "EVERY individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

    but given an individual breaking the law, it gives JURORS (not every individual) if they find the reason for the person's arrest morally untenable OR the punishment too draconian the ABSOLUTE authority to nullify.

    those who don't like it, can suck on it. rule of law bitches. and rule of law in the US means the JURY is the ultimate DECIDER.

  • sarcasmic||

    I thought Boosh was the DECIDER.

  • JD the elder||

    What worries me is what the prosecutors imply by this: "if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable".

    In other words: Fuck your moral judgement, peon, you're here to follow orders.

    I prefer Thoreau's take: "Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then? I think that we should be men first, and subjects afterward."

  • robc||

    We need to go back to the days when the appeals courts would THROW OUT a conviction if the judge failed to explain the right of nullification to the jury.

  • ||

    Posts like the two above (balanced, informed, pithy) are the reason that I'm a dunphy fan, not a hater.

  • ||

    our legal system can and HAS survived despite jury nullification.

    That's about like saying that we've survived oxygen exposure for our entire lives. The jury is the foundation of our legal system. Abolishing jury nullification would be a usurpation and in fact the destruction of our legal system.

    -jcr

  • ||

    I agree. That's kind of my point

  • OJ Simpson||

    Jury nullification is a good thing, but it can't protect you from your arrogant, thieving self.

  • ||

    How fucking abusive and frivolous can prosecutors get?

  • Nancy Grace||

    How high is up?

  • Spoonman.||

    Um....if this guy asks for a jury trial, do they have to explain what jury nullification is to the jury?

  • Nancy Grace||

    No, because that would be prejudicial.

  • ||

    Heicklen's entire defense, at this point, could be HOLY FUCKING SHIT! YOU'RE MAKING MY POINT FOR ME, YOU IRONY-IMPERVIOUS TWAT!

  • ||

    I'd acquit him on that statement alone. Too many prosecuters are self-centered egomaniacs and smacking them down is what I'd like to do.

  • ||

    “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.”

    That would certainly be news to the states of Georgia, Indiana, Maryland, and Oregon, who enshrine such advocacy in their own state constitutions!

  • sarcasmic||

    According to the Maine state constitution

    Section 16. To keep and bear arms. Every citizen has a right to keep and bear arms and this right shall never be questioned.

    Yet for some reason if you attempt to bear arms nice men with clubs and guns will question you and detain you, and if you argue they will beat you and quite possibly kill you.

  • ||

    I am not responsible for the abrogation by governments of the rights they claim to guarantee.

    My argument requires only that they advocate the right -- not that they actually secure it.

  • ||

    Maine police are actually extremely tolerant of open carry. I'd never try it in Portland though, because the police there are very different from the rest of the state, which I think proves your point. Jes' sayin'.

  • sarcasmic||

    Portland police are dicks. Personally I think all cops are dicks, but the ones in Portland are especially prickish.

  • ||

    Portland is a lib stronghold. Color me unsurprised

  • ||

    "...all cops are dicks..."

    Is it possible that that assessment is overbroad?

  • ||

    If I were Mr. Heicklen's lawyer, after I get this charge against my client dismissed, I would make it my personal crusade to have this DA disbarred for prosecutorial misconduct.

  • ||

    and possibly tarred and feathered, the traditional method of punishing asshats.

  • sarcasmic||

    But, but, but the law is THE LAW.

    It is not the place of a jury to decide the law. That is what judges are for. Juries are to follow instructions. Period.

    Just as it would be wrong wrong wrong for a jury to refuse to convict under the Fugitive Slave Act, nullifying the law, because the law is THE LAW, no jury should ever judge the law.

    Ever!

    The law is THE LAW!

  • ||

    I AM THE LAAAAAW

    Also, why have juries at all if we're ascribing to the napoleanic system of law enforcement. Judges understand the letter of the laws alot better than juries.

  • ||

    The law is THE LAW!

    Also known as Tulpagra.

  • juris imprudent||

    The legal profession, which barely existed when the Constitution was written, will tolerate no intrusion upon holy ground by those not of the priesthood.

  • Michael S. Langston||

    Of the many issues with our current legal system, the jury represents one of the most basic principles and due to normal human thinking paterns in groups, is inherintly flawed.

    Think most of those exonerated through DNA not available at the time of trial, were convicted on usually little more than a single victim's statement and lack of a good alibi. & we know that this jury system has failed in just this way too many times.

    Contemplate a system setup where people are innocent until proven guilty, but where the common jury assumes the defendant is guilty of something and it's the defendant who must prove innocence.

    Having said that, I have little idea how to change the system and every alternative I can contemplate as worse.

    Indeed, likely education, such as ensuring the public knows they have the right to nullify charges, as well as a better societal understanding of human behavior, are keys to success.

    Unfortunately for those wrapped unjustly in our legal system today, that's a solutions which is at least a couple generations off.....

  • jtuf||

    NJLP represent.

  • Nipplemancer||

    Why are all of their meetups downstate? They'd get a bigger crowd if they threw a little love up north. I'm better off hanging with downstaters in NY than driving 2-3 hours to cherry fucking hill.

  • robc||

    So, the prosecutors are unfamiliar with Chief Justice John Jay?

  • GILMORE||

    “No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

    ...Isn't that exactly the point?

    If enough individuals disagree with specific laws and/or the manner of their enforcement (e.g. mandatory sentencing of minor drug offenses / labeling pre-teens 'sex offenders' because of consensual behavior, etc), then the 'system' will cease to function, and politicians will be forced to amend said laws so that they can actually serve some socially useful purpose, as opposed to being something put in place because of some short sighted moral panic/desperate need to seem 'tougher on crime' than their competing candidate.

    The lawyer here seems to think "the system" is more important than the actual laws they are supposed to be the caretakers of.

    And they're *surprised* people think Lawyers are scum.

  • Another Phil||

    I don't think there is a better alternative, but the hand-waving when it comes to criticism of mob rule doesn't help make the case. One side of the coin is refusing to convict under the Fugitive Slave Act, the other is refusing to convict for the crime of lynching a nigger. Jury nullification may, at times, help protect the individual from unjust laws, yet it may also shield the guilty from justice. There may not be a better way, but it's not ridiculous to be wary of it.

  • ||

    What next? Are we going to start telling criminals that they have rights? Where will this insanity end?

  • ||

    If informing a juror of the rights, duties, obligations and legal powers of a juror is illegal, then wouldn't a judge giving instruction to a jury on the law also be illegal?

  • ||

    If I can manage to get on the jury when that asshole prosecutor goes on trial for violating Heicklen's civil rights, I promise not to nullify.

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