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.