Advocating Jury Nullification Is Not A Crime!

Wednesday, November 30, 2011

Yes, the feds have created a tyrannical prosecutorial state

When I was in journalism school about 40 years ago, I learned about the early American journalist John Peter Zenger, who was acquitted of criminal libel in 1735 by a jury in Philadelphia. It was clear that Zenger had broken the law -- although a law that would be considered tyrannical -- but jurors decided to acquit him anyway to show their displeasure with the law and with the authorities that brought the charges.

The principle was jury nullification, and it has served Americans well for centuries. Juries in the North refused to convict people under the awful Fugitive Slave Law, and juries have nullified when they believed prosecutors were hounding someone for no good reason.

(Unfortunately, juries also have nullified for bad reasons such as the not guilty verdicts in the South during the Civil Rights Era when whites were accused of murdering blacks. Likewise, juries in Herrin, Illinois, refused to convict union workers who executed 22 non-union workers during a coal strike in 1922.)

Jury nullification, while controversial, IS legal but federal prosecutors in New York City now are going after a man who publicly endorses the practice by charging him with crimes and trying to imprison him. Like always, the feds demonstrate beyond a doubt that they are bullies that despise the Constitution and our rights.

The feds have charged Julian P. Heicklen, a 79-year-old retired chemistry professor from Penn State University, claiming he is violating laws against jury tampering. I must admit that this is a "creative" interpretation of the law that was written to keep people with vested interests in the outcome of a verdict from bribing or threatening jurors to vote in a certain way.

Heicklen has done nothing of the sort, but that does not stop federal prosecutors from trying to stretch the law into oblivion. One would hope that Judge Kimba Wood, who is hearing the case, will dismiss it, but Wood demonstrated without a doubt 20 years ago when sentencing Michael Milken for a series of non-crimes that she did not understand the law. Thus, I must admit I have no confidence in Wood doing anything but bow down to the will of federal prosecutors.

According to the New York Times, the activity in which Heicklen was involved consisted of standing

...on a plaza outside the United States Courthouse in Manhattan, holding a “Jury Info” sign and handing out brochures that advocate jury nullification, the controversial view that if jurors disagree with a law, they may ignore their oaths to follow it and may acquit a defendant who violated it.

He has not dealt with jurors individually nor has he tried to influence them in any particular case, which is exactly what the jury tampering laws were supposed to prohibit. By charging Heicklen, however, the feds are moving into new legal territory, yet another "creative legal theory" that federal prosecutors have loosed upon this country as they seek to criminalize legal behavior.

The federal prosecutors clearly are making things up as they go along. The NYT writes:

But now 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.”

Not only do federal prosecutors want to deny this man his right of free speech, but they also are seeking to deny him a jury trial:

Mr. Heicklen, who could face a six-month sentence if convicted, has asked for a jury trial. Ms. (Rebecca) Mermelstein (the lead federal prosecutor), opposing that demand, cited as one reason Mr. Heicklen’s ardent stance that juries should nullify. He would probably “urge a jury to do so in a case against him,” she wrote.

In other words, Heicklen should be denied his right to trial by jury because (horrors) a jury might acquit him. In other words, if the feds cannot have the results they want, then the Constitution and the very Rule of Law should be abandoned so that prosecutors can win.

The problem in this country is NOT jury nullification. No, the real problem is that juries too often are willing to defer to prosecutors because they believe that is what they are supposed to be doing, or they reach verdicts out of convenience.

When juries use their right of nullification to deal with what they believe to be a wrongful or malicious prosecution, they do so out of a sense of principle and belief in a Higher Law. That federal prosecutors are trying to destroy that right tells us that nothing scares the feds more than decent Americans acting out of the sense of right and wrong that government employees in the "justice" system abandoned long ago.

In American "justice," principle and right and wrong is seen as a foreign object in the bloodstream, something that government demands be eradicated at all costs. In the Heicklen case, we get a sense that prosecutors today are so emboldened and so protected that they will openly advocate people have their rights taken away -- in the name of "doing justice," of course.