Fully Informed Jury Arrest

Julian Heicklen, who was indicted for jury tampering in November for distributing pamphlets about the jury's power and responsibility to judge both the law and the fact, was arrested in his home this morning.

The filming of Heicklen doing his jury-power thing inspired a bogus arrest and later court victory for the right to film on courthouse property.

I blogged the other week about a Florida's judge's attempts to prohibit the passing of pamphlets on this same topic near his courthouse. The Fully Informed Jury Association is planning legal action against that prohibition, as per a press release they emailed me yesterday which read in part:

Pursuant to an administrative order issued by State Judge Belvin Perry, Jr., barring FIJA volunteers from distributing literature at or near the Orlando, Florida State Courthouse, the jury education group FIJA has retained the legal services of Florida ACLU and Walters Law Group….

Confident that the order has no standing before the First Amendment, FIJA has retained the most capable representation available: Florida ACLU's seasoned legal experts join with Walters Law Group in representing FIJA.

Comments

[Tulpa]

If laws against electioneering at polling places are constitutional then so is this one. The sole purpose of this speech is to influence jurors outside the controlled trial process.

[Grover]

I think you're confusing two different things. The sole purpose of this speech is to inform jurors as to their powers. In particular nullification: The power to refuse to enforce a law that they find unjust. Not influence the outcome of a particular trial.

[Tulpa]

It would not be hard to pass off a pamphlet which favors a certain candidate as being merely a voter information guide.

[R C Dean]

Unless the pamphlet addresses a particular case, then I don't think your analogy to electioneering holds up.

[hmm]

That's a really good point. How can something be portrayed as so narrow when it is so broad. If they are advocating something about the entire system I can't see how that is tampering.

[Pro Libertate]

The standard of review for this will be very high, too, as it's a prior restraint.

[Bob Constantine]

Learn more abut what others are doing.

for more jury nullification info
go here ---- http://nhjury.com/

No victim. N o crime.

[robc]

You have an irrational hatred of John Jay.

[BakedPenguin]

Damn John Jay! Damn everyone that won't damn John Jay! Damn every one that won't put lights in his window and sit up all night damning John Jay!

[Pro Libertate]

I don't like names like that, because I keep reversing the names in my head.

[MikeP]

Indeed. Look at how I reversed Clay Conrad's name below.

[MikeP]

No. The purpose is to influence potential jurors who have yet to be placed on a jury.

No one is saying that FIJA or the like should be able to spoil explicit or implicit sequestration. But before jurors are sworn onto a jury, they should be completely free to hear political speech.

[Tulpa]

Lawyers and parties to cases in the courthouse are not even supposed to talk to potential jurors. That's why they force you to put the JUROR tag on when you leave the waiting room.

[Episiarch]

You're such an authoritarian douche. Are you proud?

[Hugh Akston]

Go easy on him, Epi. There's nothing authoritarian in his opinion. He just doesn't want the little people to have access to information about their rights and responsibilities. Might rock the boat, y'know.

[MikeP]

But FIJA activists are neither lawyers nor parties to any case.

Okay, I'll give you the waiting room and the hallway to the courtroom as court property where the court can legitimately deny First Amendment rights. Hell, I'll give you the entire courthouse interior.

The courthouse steps? No way. Not until they are wearing their JUROR tag indicating their sworn sequestration.

[Tulpa]

Have you ever been called for jury duty, Mike? You seem quite fuzzy on how things work.

As soon as you report to the waiting area, you get the juror tag and they tell you you have to wear it until dismissed. No oaths need be taken, no sequestration orders are given, indeed you haven't even been assigned to a possible trial yet.

[MikeP]

Yes, I have. I was kicked off because I could not answer "Yes" to the question "Would you follow only my instruction on the law regardless of what you think?" And, no, I was not accosted by pamphleteers on the way in. I had years before read the pamphlets.

Regardless, until you are actually assigned to a trial, I see no reason whatsoever to believe that the state has the legitimate authority to usurp your First Amendment rights to hear or read what you want or the First Amendment rights of anyone else to talk to you.

[Tulpa]

I've been called for jury duty five times in four different states, but last time I got booted as soon as the prosecutors found out I'm a professor...apparently there's a bleeding heart stereotype.

[Pro Libertate]

I got kicked off last time for having met the judge at a party. Actually served the time before that on a lame-ass criminal trial. The rest of the jury totally deferred to me as an attorney, which is why we shouldn't be allowed within a mile of a jury.

[MikeP]

It would have been nicer if my reason for being booted were the same as the reason the prosecutor's first preemptory in my pool was Marc Andreessen: he was worth 8 or 9 figures.

In the decade plus since then, I haven't been summoned back. I figure the judge blacklisted me.

[Dan Givens]

I don't think it's the bleeding heart stereotype, I think it's the fact that they don't like well educated individuals on juries.

[Kirsten]

Actually, MikeP, another Florida state judge issued an opinion that distribution of FIJA literature is not only protected under the First Amendment outside the courthouse, but also that there was no basis for excluding it even from the jury assembly room.

The memo is up on our website (FIJA.org). From the home page, Library > Activism & Organizing > Jury Nullification Handouts in Florida (pdf).

[bosty]

Is telling people they have the right not to vote the same as "electioneering"? That seems to be more analogous.

[James Anderson Merritt]

Right not to vote, right not to purchase a commercial product -- hey, however you decide to withdraw from interstate commerce, whether in goods and services, ideas, or political consent, the government can come after you. At least, that seems to be their often-stated position.

[Fluffy]

Laws against electioneering at polling places shouldn't be constitutional.

I don't see any clause in the 1st Amendment saying that I should be barred from engaging in political speech where it's likely to be effective.

What part is that, again?

[R C Dean]

Right after the part about commercial speech.

Oh, I bet you have one of those manky dead constitutions. You need one of the fuzzy pink living ones.

[Fluffy]

Oh, OK. So it's down past the part about obscenity.

Thanks, that clears it up for me.

[Colin]

+1

[Pro Libertate]

It's interesting to me that in my First Amendment seminar, we were all agreeing that the special treatment of commercial speech as "lesser" speech seemed to be fading. Wrong again, law school!

[Tulpa]

I don't see anything in the First Amendment that excludes death threats and perjury, among other speech acts that libertarians generally agree should be illegal.

So unless you think those types of speech should be protected, you agree that there are narrow exceptions to free speech. Preventing death threats is a public safety issue, while preventing perjury is an issue of the integrity of the justice system -- just like jury tampering.

[Pro Libertate]

It's a stretch to call this jury tampering. After all, the same logic could require newspapers to not publish articles on a case. Which, of course, is not how it works (judges sequester juries, when deemed necessary, not the press).

[Tulpa]

'fraid not. Newspapers are not specifically targeting potential jurors as the pamphleteers are.

If FIJA wants to rent a billboard on the same street as the courthouse or hand out pamphlets at the post office or something, that's a different story.

[Kirsten]

Actually, Tulpa, FIJA outreach guidelines prescribe distributing educational literature to ANYONE who will accept it. I suggest you take a look at Distributing FIJA Literature in Front of Courthouses located on our website FIJA.org, in the Library, under Activism & Organizing.

The guidelines explicitly state:
"FIJA activists frequently stand on the public sidewalks near courthouses, or near the jurors'
parking lot, and distribute FIJA brochures to all passersby."

and

"FIJA activists should make it clear that they are only passing out information of general interest to
all citizens, and are not trying to influence any particular case. No case-specific literature should
be distributed with FIJA literature to anyone who might be a prospective juror."

[Tulpa]

Ah, I see. You're not targeting potential jurors, you just happen to be distributing this literature in front of the courthouse entrance that potential jurors are required to go through.

[Apogee]

you just happen to be distributing this literature in front of the courthouse entrance that potential jurors are required to go through.

Additionally, I find it disgusting that Kirsten is submitting this literature anywhere in any of the states, as the potential jury pool is drawn from the total voting population.

Seriously Tulpa, how you can equate electioneering - the preference for one decision over another - with an informational pamphlet that highlights no such preference, is quite a stretch.

[Pro Libertate]

I think the line drawing is not so simple. Certainly, a newspaper could target a specific jury pool for a specific trial. In fact, I'd be shocked if that hasn't happened any number of times. Papers sometimes have political axes to grind, or so I hear.

[Old Man with Candy]

Better analogy: Passing out pamphlets advocating the elimination of the electoral college near a polling place.

[Tulpa]

I'm pretty sure the shoe would be on the other foot if people were handing out fliers questioning the application of police brutality laws outside a courtroom where a cop was on trial.

[robc]

Bullshit. Free speech is free speech.

I would support that speech too, even though I dont support the message.

[MikeP]

Not if the jury for the brutality case came in through the side door.

[Tulpa]

Before jury selection the jurors don't know whether they're going to be in the trial, so they don't know to go in the side door. Plus, the pamphleteers can always switch doors. (I'm sure they'll be notified by a friendly cop who knows which door they're going through.)

[robc]

That is what sequestration is for, if the judge is concerned. Before they are on the jury, I dont see any problem at all with the info.

[MikeP]

Of course they don't go in the side door. They are not yet jurors!

The judge is quite capable of asking prospective jurors whether they saw or were influenced by any pamphleteers on their way in and excuse them on those grounds.

And the judge is also free to name a private sequestered juror entrance that people can't be influencing jurors at.

But the courthouse steps? The very pedestal of free speech? Why would I want the state to suppress rights there? Why would anyone???

[Tulpa]

If the pamphleteers talk to even 50% of the people entering the courthouse that approach is going to cripple the jury selection process.

And the judge is also free to name a private sequestered juror entrance that people can't be influencing jurors at.

Straining out the gnat and swallowing the camel, eh?

[MikeP]

Apparently I know the difference between a sequestered juror and an as-yet-unsworn potential juror and you don't.

So I loan my copy of Conrad Clay's Jury Nullification to people who get called for jury duty. But I recommend they not actually read it in the jury waiting room.

Should I be indicted for contempt? Should Conrad Clay?

[Apogee]

cripple the jury selection process

Ha! More like cripple the ability of the state to keep prospective jurors in the dark about their constitutional duties.

You're also now switching to a specific case - police brutality - when the actual discussion is the ability to inform jurors of their abilities.

Goalpost much?

[Kirsten]

If the pamphleteers talk to even 50% of the people entering the courthouse that approach is going to cripple the jury selection process.

Only if the jury selection process is meant to be biased in favor of the government.

If the government can make a good case for taking away someone's freedom on the merits of the case- that is, demonstrates the facts and the justice and applicability of the law- then jurors understanding their rights and responsibilities pose no problem.

[SIV]

But the courthouse steps? The very pedestal of free speech?

That's where they auction the tax delinquent properties.

[Fluffy]

Only if the pamphleteering was being done by identified policemen. ["Identified" by uniform or otherwise.]

[R C Dean]

I'm pretty sure the shoe would be on the other foot if people were handing out fliers questioning the application of police brutality laws outside a courtroom where a cop was on trial.

You're right, Tulpa. If that were the case, the judge wouldn't be trying to stop it, and no one would be getting arrested for doing it.

[Tulpa]

True, but that's not the point.

[hmm]

You can inform outside of election sites, you just need to be a distance from the door.(correct?) This looks like an outright ban.

[Tulpa]

That depends...in NYS at least the distances are long enough that most voters are already within the no-electioneering zone upon exiting their vehicles/buses, so that's similar to the restriction described here.

Whereas here in PA you practically have to run the pamphlet gauntlet to get into the polling place.

[Brett L]

And everyone can see that NY's system is clearly less rigged, right?

[Fluffy]

NY's election system is a model of openness and fairness!

(Lightning bolt strikes dick.)

OUCH!

[Tulpa]

Yeah, and we have murder laws, yet murder still happens. Let's repeal the law against murder.

[Zeb]

Oh come on. We all know you aren't that stupid.

[Strained Analogy]

Hi

[Ted S.]

Isn't it 100 feet?

At least, I think that's what it is in the rural part of the Catskills where I live. The town hall sits on a large plot of grass with a long driveway/road leading up to the hall. One could easily stand where the turn-off from the main road is and be more than 100 feet from the entrance to the town hall.

[Tulpa]

Yeah, that sounds about right. I was in a more urban environment. where most of the parking lot was within the no electioneering zone.

[Apogee]

upon exiting their vehicles/buses

You mean those voters shipped in to vote, who, along the way, sing hymns about the greatness of Obama?

[Dan Lavatan]

I can't imagine where they find a grand jury to indict on these cases. If I were on the jury, I'd indict the procescutor for treason.

[Tulpa]

Which enemy of the United States has he been giving aid and comfort to?

[Derp]

That would be one from the 'domestic' variety. See also, John Brown.

[Tulpa]

OK, which domestic enemy?

[jb]

They find a grand jury to indict on such cases the same way all grand juries are found, they cherry pick them.

[jb]

Nay... the wy all juries are found...

[The Truth]

It's good to see not every one of the commentators here is opposed to common sense. Glad to see Tulpa showing the proper respect to the state.

[Episiarch]

HAHAHAHAHAHAHAHAHA

[Citizen Nothing]

(if I may continue)
....HAHAHAHAHAHAHAHA

[barfman]

*barf*

[Hugh Akston]

You know who else showed proper respect to the State?

[califronian]

Is Tulpa one of those federal employees they pay to hang out on message boards and sound 'reasonable' in defense of the regime?

[yonemoto]

No, tulpa has some reasonably libertarian viewpoints from time to time.

[yonemoto]

it's okay. I'm on the koch brothers payroll, so we've got equal time.

[Pro Libertate]

Me, too. I'm commenting while on a one of their private jets to Tahiti.

Did you know they have legal slaves? They found a loophole in the 13th Amendment. One is giving me a pedicure and another is serving me a bourbon as I dictate this comment!

[yonemoto]

Hm. Clearly you negotiated a better deal than I. Hats off to you, sir.

[Pro Libertate]

Well, I'm a lawyer and my grandfather was a Mason. Can't beat that combination, let me tell you!

[Tulpa]

As a law-and-order libertarian, I occasionally find myself at loggerheads with the cosmo element that typically congregates at places such as this.

[Pro Libertate]

Cosmo?! [Throws martini contents into Tulpa's face]

Does anyone actually self-identify as a cosmolibertarian? It just occurred to me that I'm not sure I've ever heard anyone do so.

[David Smith]

Anyone besides me notice an interesting "statistic"?

The people in favor of FIJA are a mixture of all kinds of people - including lawyers.

The people against FIJA are all (by my best count from some pretty broad reading)- lawyers.

[JasonKnighte]

That is interesting, I know a few people that have been in hit and run cases, luckily none of them where hurt to badly, and they recovered pretty quickly from the bruises.

Jason.
http://www.mcdonnelllawllc.com/