Jury Nullification Advocate Is Indicted

Since 2009, Mr. Heicklen has stood there and at courthouse entrances elsewhere 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 was arraigned on Friday in a somewhat contentious hearing before Judge Kimba M. Wood, who entered a not guilty plea on his behalf when he refused to say how he would plead. During the proceeding, he railed at the judge and the government, and called the indictment “a tissue of lies.”

Mr. Heicklen insists that he never tries to influence specific jurors or cases, and instead gives his brochures to passers-by, hoping that jurors are among them.

But he feels his message must be getting out, or the government would not have brought charges against him.

“If I weren’t having any effect, would they do this?” said Mr. Heicklen, whose former colleagues recall him as a talented and unconventional educator. “You don’t have to be a genius to figure this thing out.”

Prosecutors declined to comment on his case, as did Sabrina Shroff, a lawyer who was assigned to assist Mr. Heicklen. (He is acting as his own lawyer.)

In such a case has the juror acted improperly? Would such a case violate due process?

If a juror were to use any such argument in favor of the prosecution, it would be a violation of due process, since such a juror would effectively be a witness for the prosecution but would be exempt from defense cross-examination. Such behavior would violate the Constitution, and I would regard it as indefensible.

Jurors should generally not act as witnesses favoring the defense either, but in some cases it may be necessary for them to do so in order to ensure that the Constitution is upheld. In general, evidence and arguments favorable to the defense should be brought up in court by the defense attorney, so the prosecutor has a chance to respond to them. On the other hand, if a judge would prevent such evidence from being presented, or if a defense attorney isn't sufficiently competent to bring it forth, it may be necessary for a jury to bring forth such evidence to ensure the defendant actually receives due process.

Incidentally, if I were being questioned in voir dire, I would truthfully respond that I would decide cases based upon the law, and I would do precisely that. If they ask whether I would follow judicial instructions, I would respond, "If you tell me what the law is, I will follow it." As good a promise as any honest judge should expect or require, but not a promise of unconditional acceptance of judicial orders: A judge who gives instructions contrary to the law does not say what the law is, but rather what he wants it to be, so I would feel no obligation to follow such instructions.

Vote with your conscience before even hearing the case? Sorry but that is just not what jury duty is about.

Thank you, but I think we are in the minority, not only on this board but in general. Most have decided they do not need to make the effort to be impartial and open-minded, as sworn to do. They lie under oath and bring their agenda into the courtroom. I recently served with some jurors like this.

In addition, there are always going to be laws we don't like. Tough. The idea we can live peacefully without laws is called anarchy. No thanks.

As a prospective juror, you are told at the beginning of jury selection what the case is about, the laws involved and the charges. Then you are asked specifically if you have any prejudices that would prevent you from being impartial in the specific case.

There are some statutes which are sufficiently lawless that I would have to strain a little to imagine circumstances where I could issue a conviction under them. Nonetheless, for almost any statute, I could imagine some combination of circumstances and behaviors where I would judge a conviction to be appropriate. I would not judge any case until the evidence and arguments were presented. At the time the prosecution starts his case, I may harbor significant doubts, but that's part of a juror's job; the prosecutor's job is to endeavor to remove all reasonable doubts. I would be as impartial as a juror's job requires, but no more so.

Again, you presuppose I have knowledge of the law in question and how it will be applied, sufficiently that I can say I would be prejudiced. Does this mean I have to announce my unequivocal belief that the Second Amendment is the law of the land before I can hear a case involving possession of a gun? Or the First Amendment before hearing a case about jury tampering? I don’t think so and any reasoning person can see the absurdity of requiring such statements as possible indications of “prejudice”.

The lawlessness you refer to is not confined to criminals on the street but has crept throughout government. It seems you choose not see that.

In addition, there are always going to be laws we don't like. Tough. The idea we can live peacefully without laws is called anarchy. No thanks.

Much of what is called "jury nullification" is not anarchy, but is actually represents a jury's successful quashing of governmental lawlessness. If twelve people on a jury would agree that it would be unreasonable to sentence to twenty years in prison a particular person who watered his flowers on an odd-numbered day, those jurors have a duty under the Constitution not to allow the government to impose such a punishment. If legislators passed a statutory 20-year minimum prison term for that crime, the jurors would have an obligation to acquit.

Note that a jury shouldn't acquit merely because he 'dislikes' a law, or even that the sentence resulting from conviction would be harsher than he would favor, but if a jury believes that the sentence resulting from a conviction would be grossly unreasonable, it has a right and duty to prevent it.

Okay. Maybe the question during jury selection is whether one can be impartial in hearing the arguments and the evidence presented. Naturally, by the time the jury is deliberating, opinions are being formed. These are not opinions as we understand them in civilian life, but judgements based on evaluation of evidence. At least, that is my understanding of the job of the juror.

It is completely different from how we lead our lives outside the courtroom, and best described as "going against type."

I guess, according to one poster here, that makes me a "brain dead mushroom." LOL.

Again, you presuppose I have knowledge of the law in question and how it will be applied, sufficiently that I can say I would be prejudiced.

If I were involved in a gun-possession case, I would listen for any evidence that the person who possessed the gun dod so for the purpose of furthering some bona fide criminal design (e.g. to commit robbery himself, or to supply it to someone he knew would use it to commit robbery). I would be skeptical of prosecutors' attempts to imply such intention, but would be receptive of attempts to prove it.

Someone who supplies material aid to someone he knows is going to commit a crime often becomes a thereby a conspirator in that act (precise culpability depends on the extent of knowledge). This is true even if the action in question would otherwise be legal. The Second Amendment does not exempt firearms from this principle. Someone who provides a gun to someone else for use in a robbery may legitimately be prosecuted for doing so, if he had sufficient knowledge as to the purpose for which the gun was requested of him.

If a prosecutor asks whether I'd have any trouble convicting in a gun possession case, I'd respond truthfully that I'd have no trouble convicting if the facts of the case compelled a conviction. My burden of proof would likely be higher than the prosecutor would want, but that doesn't mean that I wouldn't convict if the facts really showed that to be the appropriate action.

What then would you do in the case I put forth in post 154 wherein the state law being cited would be in direct opposition against the State Constitution? (ie Is that statute still a [valid] law?, if so, then how would you reconcile it against the authority/law that is the State Constitution?)

>>If that’s the case then the 7th Amendment applies: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved [...]”
>
>The term $20 probably refers to the value of a $20 gold piece, not the value of a $20 Federal Reserve Note; that amount is sometimes exceeded by civil fines, but not usually.

The Constitution also says that Congress has the power to regulate the value of money; they have delegated this responsibility to the Federal Reserve (possibly unconstitutionally) and therefore the $20 reference *IS* applicable to a $20 Federal Reserve note. {Unless the prosecution cares to prove that the Congress’s delegation of that power is unconstitutional... which would doubtless be amusing precedent.}

What then would you do in the case I put forth in post 154 wherein the state law being cited would be in direct opposition against the State Constitution?

The state constitution is law. No state statute may be legitimately applied in any way contrary to the state constitution. For me to convict the person, the prosecutor would have to show beyond a reasonable doubt that the firearm was not being carried for a legitimate security, defense, or other lawful purpose. Until the prosecutor presents his case, I would have no way of knowing whether the evidence would show that or not.

The Constitution also says that Congress has the power to regulate the value of money

Unless things have changed very recently, Congress authorizes the minting of $20 gold coins. The Constitution doesn't specify that the dollars in question should be the type of "dollars" that are most widely used in the U.S. Indeed, since the Federal Reserve isn't actually an agency of the federal government, I can't think of any Constitutional reason why the $20 FRN (not issued by the government) should be regarded as the unit of value in preference to the $20 gold piece (which is issued by the government).

>>The Constitution also says that Congress has the power to regulate the value of money
>
>Unless things have changed very recently, Congress authorizes the minting of $20 gold coins. The Constitution doesn’t specify that the dollars in question should be the type of “dollars” that are most widely used in the U.S. Indeed, since the Federal Reserve isn’t actually an agency of the federal government, I can’t think of any Constitutional reason why the $20 FRN (not issued by the government) should be regarded as the unit of value in preference to the $20 gold piece (which is issued by the government).

How about this: on the federal reserve note the says, right on the front, “this note is legal tender for all debts public and private.”
“LEGAL TENDER” means that it applies in regards to the Constitution, no?

Also, could one pay their employees in $20 gold government-minted coins? Would the taxes reported thereon be different than if he was paid in Federal Reserve Notes? If so, why? That is, would it be valid for me to report all my income to the IRS in the value of the minted-gold dollar instead of the Federal Reserve Note so as to put myself in a different taxing-bracket? [I don’t see anywhere that says that the US Dollar you report your income in has to be Federal Reserve Notes...]

Addendum: See also my post 167. The state statute in question is contrary to the state constitution only to the extent that it restricts the carriage of firearms for security, defense, or other lawful purposes. To the extent that the state law also restricts the carriage of firearms for truly unlawful purposes (those whose prohibition would not contradict the Constitution), it is perfectly valid and enforceable. To be sure, the state statute should be written better so as to avoid illegitimate prosecutions (i.e. those which don’t even allege any criminal design for the person carrying the firearm) but that doesn’t mean it shouldn’t be enforced to the limited extent that it complies with the Constitution.

Maybe the question during jury selection is whether one can be impartial in hearing the arguments and the evidence presented. Naturally, by the time the jury is deliberating, opinions are being formed.

Finally something we can agree on, but ...

These are not opinions as we understand them in civilian life, but judgements based on evaluation of evidence.

I don't know about you, but in "civilian life" I form opinions based on the evaluation of evidence. Whether you call that an opinion or judgment, the thought process is the same and is just as applicable in the jury room as it outside.

If you want to talk about "beliefs", that's a different matter. You can believe there is no right to free speech or self defense. The law says there is and that is where you must separate your belief from your opinion (or judgment if you prefer) on guilt or innocence in a free speech or self defense case. The belief doesn't mean you can't be impartial, though it may be quite difficult.

>Addendum: See also my post 167. The state statute in question is contrary to the state constitution only to the extent that it restricts the carriage of firearms for security, defense, or other lawful purposes.

Not so.
What of the case of a Citizen living in on-campus housing? This statute criminalizes his right to keep firearms [in his home].
{Nothing in the law demands that a Citizen own a car, which is exempted from this law.}

Also note that the qualifier ‘lawful’ applies only to the “hunting” and “other purposes” clauses — the right to security and defense is not so qualifies (it is inherent).

This stance is supported by Art II, Sec 4 which says:
All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.

How about this: on the federal reserve note the says, right on the front, “this note is legal tender for all debts public and private.” “LEGAL TENDER” means that it applies in regards to the Constitution, no?

I could write "This photo is legal tender" on pictures of my smiling face, but that wouldn't establish its worth relative to the Constitution. Absent specific action by Congress stating that the $20 in Amendment VII refers to the fiat note rather than to the gold coin, I would think the government would have a perfectly sound basis for claiming the latter. Certainly the latter is probably closer to the amount of wealth the Founders had in mind.

Also, could one pay their employees in $20 gold government-minted coins? Would the taxes reported thereon be different than if he was paid in Federal Reserve Notes? If so, why?

If I were a judge looking at the issue, I would declare that as long as the gold coin was not described as anything other than "$20", it would be valued as such. If the employer were contractually obligated to pay in a particular type of currency or coinage, then the market value of that type of currency would be assumed value of the payment. If the employer would be contractually free to pay a $20 bill with only the consequence being the immediate disgruntled departure of the employee, however, I would regard the payment as $20.

Note, however, that the employee wouldn't be receiving $1,400 of post-tax income; he'd be receiving $20 of post-tax income. If he were to later exchange the coin in any way that "documented" its value as being anything other than $20 cash, any extra value would be regarded as immediate income. Note further that while an business is allowed to deduct an employee's income from its own taxes, the business in this case could only deduct $20. If the business spent $1400 to pay the employee $20, that $1400 would probably not be viewed as a legitimate deductible business expense.

In short, I'd regard the gold coin as being $20 for tax purposes, but the IRS would likely end up collecting more in taxes than if the employee were paid $1,400 cash.

What of the case of a Citizen living in on-campus housing? This statute criminalizes his right to keep firearms [in his home].

Perfectly lawful, unless the state could demonstrate that the possession was intended to further some criminal design. If the prosecution could demonstrate beyond a reasonable doubt that a student obtained a firearm for the purpose of robbing the campus bookstore, such possession would not be protected, and prosecution of such possession would be perfectly legitimate. Note that if the jury is doing their jobs, demonstration of criminal intent beyond a reasonable doubt will generally be difficult, and often impossible, but that doesn't mean it will never be possible.

“You really lose a ton of money if you serve on a jury, but I would do it if called.”

If I were king, jurors would be paid the average daily pay of what they earned the last year according to their filed tax return.

It is only reasonable, and it would really improve the quality of our jury pool.

However, no one has seen fit to put me in charge!

Okay, I also say that the OJ Jury did a good job. BUT ... where were the peers of the two who were murdered?

Still, the Jury did well.

The California trial procedures, and the Judge’s management of the trial were not good. It may well be that the prosecutors were starstruck, that aspect wasn’t something I recollect, but at the time I wasn’t paying attention to the trial except as a lost cause of a popular circus.

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