Judge Rules That Advocating Jury Nullification Is Not a Crime


Yeterday a federal judge ruled that distributing pamphlets about jury nullification—even in front of a courthouse—is not jury tampering. U.S. District Judge Kimba Wood dismissed a 2010 indictment against Julian P. Heicklen, a retired chemistry professor who was accused of violating Title 18, Section 1504, of the U.S. Code, which authorizes a jail sentence of up to six months for anyone who "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." U.S. Attorney Preet Bharara claimed Heicklen committed that crime by standing on the plaza near the federal courthouse in Manhattan and handing out literature about the venerable legal tradition that jurors have the authority to judge the law as well as the facts of a case and therefore may vote to acquit a defendant who is guilty of doing something (handing out pamphlets, say) that should not be a crime. Wood noted that the statute cited by Bharara proscribes written communication aimed at influencing a specific juror's vote in a particular case. By contrast, Heicklen passed out his literature to pedestrians generally, albeit with the hope that some of them might turn out to be jurors. Because the charge was so clearly inappropriate, Wood did not address the First Amendment implications of trying to imprison someone for controversial speech. "I don't think sensible prosecutors should have even brought this case," NYU law professor Rachel Barkow told The New York Times.

Nor would sensible prosecutors have claimed that "advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred." Yet that is what Bharara's underlings asserted in a brief last year. As George Washington University law professor Paul Butler pointed out in a New York Times op-ed piece, that position makes a criminal out of him and anyone else who dares to write favorably about jury nullification. So even though Wood dismissed the indictment against Heicklen on statutory rather than constitutional grounds, her repudiation of Bharara's astonishingly censorious position certainly counts as a victory for freedom of speech.

Brian Doherty covered Heicklen's case in the June issue of Reason and has been following the story here. More on jury nullification here. Go ahead and read it. It's not a crime!

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  1. Go ahead and read it. It’s not a crime!


    1. U.S. Prosecutor, Preet Bharara, was appointed by Obama.

  2. I was summoned for jury duty just yesterday. Maybe I should take a stack of Heicklen’s pamphlets with me.

    1. You sound like someone who can think for himself. You will not be selected as a jurror. You might as well pass out the pamphlets.

  3. Kimba Wood. Why does that judge’s name sound familiar? I don’t think it’s the LimeWire thing.

    1. The street fighter dude?

      I think his name is very similar.

      1. LOL!

        I see I’m not the only one who immediately thought “Kimbo Slice” when I saw the name!

    2. Too bad Judge Wood limited the decision and didn’t rule on the constitutional aspect.

      OTOH, I suspect her move in slapping down the prosecutor may be career-limiting.

      1. The prosecutor, Bharara, is unpunished and encouraged to arrest other people for crimes that do not exist.

        1. this does not logically follow on two fronts (at least)

    3. She was closely associated with Eric Holder somehow.

    4. A Clinton nominee whose booting gave us Reno. Lucky us.

      1. Yeah. Nannygate actually ran up quite the bodycount, no?

  4. Seems to me to be one of those deals where if you do it you will be arrested, only to have the charges dismissed.
    Do it again and you will be arrested again, only to have the charges dismissed.
    Wash, rinse, repeat.

    Kinda like open carry in my state. While technically legal it’s a guaranteed way to go to jail.

    1. You should move.

      1. Wifey ain’t leaving the stepson behind until he’s 18, so I’ve got eight years and counting.
        2020 NH here we come!

        1. Man, I thought about NH. I fucking hate the cold, and hate rust on vehicles.

          Texas for me, as soon as I either A: sell this shithole and B: Tell the fiancee she can either stay here or come with me, but there’s no third option.

          1. Just so you know we don’t have open carry in Texas.

            1. That’s ok, my concealed carry reciprocates.

          2. 101 Reasons to Move to New Hampshire.


            1. I know, I know. I’ve done the research. It’s soo tempting, but man, I really hate cold weather. And 6 ft of snow.

            2. Same. I thought about giving up Texas for NH, but frankly the upgrade wouldn’t be enough to convince me to live somewhere that gets *shudder* snow. Fuck that, and fuck the cold.

              At least Texas is halfway decent though. What I really don’t get is people living in Michigan and Ohio, where it’s democrats all the way down AND freezing.

              1. Go skiing.

                1. Or hibernate.

              2. I don’t mind the cold as much as the summer heat/humidity. A goose down parka negates the cold, but the heat is harder to escape. I think Columbus had a record hot summer last year. I don’t care to repeat that.

              3. The cold keeps my basement at a nice low temperature that allows me to brew lagers without the need for refrigeration.
                So there’s always a bright side.

                1. Ahh, find memories. I rented a farmhouse in Wisconsin for a year that had a basement straight out of a horror movie.

                  Brewed absolutely divine lagers down there.

            3. I’m not a pussy who rejects a place because it has normal habitable weather. Things that would keep me from living in New Hampshire are the original Mayflower kin who think they are in charge of everything, the massholes, and the “respect mah authoritah” cops. Also, my professional prospects would be stunted up there.

              1. I’m a pussy, and I’m not afraid to say so.

              2. Yep, anyone who considers what sort of climate they would prefer before moving someplace is a total pussy.

                1. Unfortunately, when I moved from Ohio to Georgia I didn’t do enough considering or I would be in Jamaica right now.

                2. Yep, anyone who considers what sort of climate they would prefer before moving someplace is a total pussy.

                  Yeah, taking into account relevant stuff before making a decision is the mark of a pussy. Real men just do random stuff without reflection and hope the consequences don’t bite too much.

                  P.S. Sunny and beautiful weather here on Oahu.

              3. Hey, I’m original Mayflower kin (probably not really, but pretty close) and I don’t think I’m in charge of anything. The massholes are a problem though. The cops aren’t too bad if you stay away from the south-east of the state (or “New Massachusetts” as I like to call it).

                1. MA state troopers think they are god’s gift to law enforcement

                  they are fucking STATE TROOPERS. give me a break

                  1. Aren’t all state troopers like that?

                    1. not in states like WA where they are more limited in power, etc.

                      MA is unique in that county cops are essentially powerless and city cops have essentially no police powers (apart from warrant arrests and in fact committed standard) outside their city limits.

                      ample case law to this effect

                      they threw a hissy fit when the metropolitan district, capital police and registry police were incorporated into their ranks

                      they also have the ‘bragging rights’ that hitler supposedly devised his ss uniforms based on theirs (no i am not joking) plus the norman rockwell shit, etc.

                      compare with california, for example.

                      chp is a phenomenal agency. some of the most professional, best trained, capable troopers out there.

                      but they do not have the concrete commando attitude that ma troopers have

                      they are truly ‘special’.

              4. I’m not a pussy who rejects a place because it has normal habitable weather. Things that would keep me from living in New Hampshire are the original Mayflower kin who think they are in charge of everything, the massholes, and the “respect mah authoritah” cops

                So.. You’re a pussy that won’t move somewhere because someone might say something bad about you?


        2. my brother lives in NH and loves it.

          it is a great state, and obviously the very libertarian nature of NH is a big part of it.

          pretty good surf too (in the fall and winter)

          1. My wife has family there, and a happy wife is a happy life.
            That’s good enough for me.

            1. yes. i bought the house we live in (the location and the price were not optimal FOR ME) because my wife wanted it

              that IS reason enough. as long as it wasn’t exceedingly expensive or in a place i would be miserable, that’s the kind of sacrifice i think it’s wise to make.

  5. Join FIJA, the Fully Informed Jury Association, and get your name on several watch lists.
    And for good measure, Happy 4/20 everyone! (except o3, shreik, the derider, and t o n y)

    1. I would smoke a joint with Shrike, but only to watch John call him a demented little weirdo or something similar.

    2. Hitler’s birthday?

  6. Any bets on the turd federale filing Section 1001 charges against Heicklen?

  7. I wonder if U.S. Attorney Preet Bharara has any comments about the judge’s ruling and criticisms.

    And shouldn’t Bharara be reprimanded for bringing false charges? And would any of you like to buy a unicorn from me?

    1. What?! Are you crazy? If a prosecutor can face punishment for abusing their role, then they will be too timid in their duties.

      I’ve actually heard this response to my suggestion that we should reign in prosecutorial discretion. I respond: That’s a feature not a bug. The more scared they are to arrest people the better.

      1. that excludes the middle.

        they certainly should, for example, not have ABSOLUTE IMMUNITY, but it is clearly bad policy imo for their discretion to be reigned in too much

        there is a happy medium.

        1. disagree. unless a prosecutor is afraid of going to jail for misusing their power, then it is a sham police-state position.

          1. but that wasn’t the argument made. read it again.

          2. A criminal law against violating a person’s constitutional rights would be a good start.

            1. we already have criminal laws against violating people’s constitutional rights (when done by a state agent)

              but again, that’s not the point i was disputing

              “The more scared they are to arrest people the better”

              that’s the kind of silliness i expect from ideologues

              if taken literally/seriously, it could result in a law for example that said anytime a prosecutor charged somebody and the person was found not guilty or given a hung jury, the prosecutor would get charged with the same crime.

              that kind of silliness

              it’s a ‘balancing’ test. like most things.

              i 100% agree that prosecutors should not have absolute immunity, and that there needs to be more accountability

              but saying that the more scared they are to arrest, the better, is completly ludicrous.

              why not just raise the criminal conviction standard to “beyond any possible doubt whatsoever”?

              clearly, we’d have less bad convictions, but the balancing test would fail.

              1. I’d be happy with cops and prosecutors going to jail like anyone else when they falsify evidence and commit perjury.
                Instead it’s just part of the job description.

  8. OT — Zimmerman bail set at $150k.

    He also took the stand and apologized to the Martins.

    And detective admitted on cross that he has no evidence showing who started the fight.

    1. And detective admitted on cross that he has no evidence showing who started the fight.

      So, it defaults to who carries the burden of proof on self-defense. Which I believe is the state, although I also remember reading an article that left me confused.

      1. You’re not the only one.

      2. The state has to prove second degree murder, their inability to do so would give creedence to Zimmerman’s claim that he was acting in some capacity of self-defense, which would at most make him guilty of manslaughter.

      3. in florida, as in WA, the burden is on the state. that’s inarguable.

      4. So, it defaults to who carries the burden of proof on self-defense. Which I believe is the state

        The burden of proof for every aspect of the crime committed is on the state, not just on self-defense.

        The defense could simply sit quietly and not put on a defense at all if the state’s case was weak enough, just move to dismiss after the prosecution was done presenting their case.

    2. This topic is relevant in a jury nullification thread.

      Whether Zimmerman will be convicted will probably have more to do with who the jury is than anything else.

      If the cops who beat Rodney King hadn’t been tried in Simi Valley, with a jury from Simi Valley, they probably wouldn’t have been acquitted.

      If the jury for the OJ trail had been from anywhere else but downtown LA (or Inglewood), he probably would have been convicted.

      Those are both examples of what I’d call jury nullification–even if nobody else calls it that, even if the jurors themselves had never heard of the term.

      1. also, imo the cops getting convicted in the rodney king trial CLEARLY was jury nullification (if one refers to it working in both directions)

        jurors admitted that they were afraid riots would break out AGAIN if they found the cops not guilty.

        it was pretty clearly a political decision. that was way more clear than the initial acquittal (again imo it’s also de facto double jeopardy but i am aware the courts don’t think so).

        i disagree about OJ. the racial disparity was SO prevalent (look at the polling data), as long as there were several blacks on the jury, no matter where it was, he probably would have gotten a hung jury.

  9. this is a great decision, and another pretty good example of how our scotus (unless one happens to be a minor) is pretty damn good on speech issues

    scalia, for example, who is pretty bad in many search and seizure issues, is damn good on speech.

    1. This wasn’t a supreme court decision.

      1. LOL. my bad. (doh!!!)

  10. What he said…..

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