Posted on 02/25/2011 10:52:20 AM PST by Second Amendment First
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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.)
(Excerpt) Read more at nytimes.com ...
That a juror cannot be punished for a not-guilty verdict in opposition of the court's instructions was established in 1600s England in the case of William Penn. The first famous use here was in the early 1700s in the Peter Zenger case, where he was acquitted of libel against the crown for printing truths. The jury was told truth is no defense for libel, yet they acquitted him anyway. This case also helped establish that truth is an absolute defense to a claim of libel. That's still not the case everywhere in the world today.
Lani Guinier was flagged out because of her radical publications, iirc. Wood was one of two Slick appointees (Zoe Baird the other) that bowed out because of SS irregularities concerning their household staff (which little people don't understand because we don't have servants, you know.)
Incidentally, Clinton’s first nominee was Zoe Baird.
Obviously, men need not have applied during the Clinton regime.
Unfortunately, the Constitution does not agree and Federal court will reverse this in an instant.
The only legal non jury offense is an "infraction" and can only carry a monetary penalty, with no custodial option (jail time). There are no indictments for infraction level offenses.
Additionally, a Federal civil rights tort will likely result. This won't go the way the prosecutor wants.
>>According to the article: “distributing of such pamphlets at the courthouse entrance violates the law against jury tampering”<<
I would say that is someone’s interpretation of the law. :)
I suppose it’s all they got though, unless they had the presence of mind to slip some coke in one of his pockets.
Thus neatly avoiding the problem of having to inform a jury of the existence of their nullification power. Since that's the subject of the trial in the first place it would be impossible for a judge to preven the jury from being told about it.
Jury Tampering
It is a crime to influence a jury to make decision in your favour by illegal means other then a fair trial process involving presentation of evidence and court proceedings.It includes discuusing the case out of the court,offering bribes,warning of dire consequences or asking a friend or family to make negotiations with a jury member.
Unless they can prove this guy was talking to specific jurors on specific cases with specific case related info, I cannot see how they possibly have a case against him. And I think they know it.
A Florida circuit judge has issued an administrative order virtually certain to result in a court battle pitting the right of free speech against the duty of courts to protect the integrity of jury deliberations. The order prohibits “the dissemination of all leaflets and other materials to summoned jurors, ....Hope so.Several months prior to entry of the order, another judge in the same circuit felt compelled to disqualify a jury panel whose members were found to be in possession of FJIA educational pamphlets, concluding that the distribution of the materials to prospective jurors was a form of jury tampering under Florida law. Florida statutes make it a third degree felony to influence a juror with the intent to obstruct justice.
The FJIA contends that their information is generic and is intended solely to educate jurors on the historical right to acquit a criminal defendant, even in the face of evidence of guilt beyond a reasonable doubt, if they conclude that the law is unjust or is being unjustly applied. ...
The order will undoubtedly be attacked as an unconstitutional restriction on free speech, at least in the absence of evidence that the dissemination of the information created a clear and present danger to the administration of justice. It is highly doubtful that the order as drafted can withstand a constitutional challenge.
on the contrary...jury nullification is discussed at great length in the federalist papers. It is another way the population at large can over rule a bad or unfair law or to reneder moot prosecutorial misconduct. I agree with the premise as long as it is not abused ( example of abuse of jury nullification....OJ simpson )
Jury nullification is an old and ancient right of a free people.
“It has nevertheless always been recognized in practice in this jurisdiction, that the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.”In the trial of William Penn in London, the Judge demanded that the Jury return a guilty verdict and held them in the Tower of London without food for days. They steadfastly refused his order, and Penn was exonerated. He later founded Pennsylvania.
Jury nullification is a natural right, and long established in common law.
Representative Bob Waqner's proposed law is here. It looks like they are trying to kill it in committee. I might suggest that folks should write the committee members to express support for it.
And even when prohibition ended, these techniques did not. Some are still in use. So while jury nullification might work for a while, a court system that does not care what the public thinks will seek to overcome it.
The current war on drugs is being misused in similar ways to subvert our rights. I wish we actually learned something from history.
If, legally, that argument should be respected, then how are we to classify what the prosecutors and the defense attorneys do when they use professional jury profilers to guide their challenges to prospective jurors from the randomly selected jury pool.
If Federal prosecutors win against Mr. Heicklen in court, then their own rationale needs to be turned against them, in a class action, against their use (and defense attorneys use) of professional jury profilers.
It seems to me that their actions pose the greater example of "jury tampering" than what Mr. Heicklen is doing.
You are that cavalier with the concept of due process? Liberty weeps.
There was a case some time ago where the jury convicted based on a coin flip. The jury said that since they all agreed on the coin flip, they thought it would be fine. Instead, there was a mistrial and the guy was retried. Good use of tax money there.
Even before the Revolution, and even further back to the early days of British Common Law.
typo in post above: “Representative Bob Wagner”, with a “g” ;-)
Talk about attempting to stop free speech.
Geesh, Robroy is right, and you’re right too, but not that he was wrong. A coin flip is a mistrial. Common sense.
It’s not due process to decide to convict someone because you don’t like his hairstyle. While there is some utility to the concept of jury nullification—and I emphasize some—this notion that juries can do as they please subverts the concept of due process upon which our criminal justice system is based.
-PJ
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