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 ...
Just going be the article qoute. Soppusedly it was the Fed Judge who said that.
>>You are that cavalier with the concept of due process? Liberty weeps.<<
No, not really. I am not stating what jurys should do. I am stating what jurors legally CAN do. I was not so cavalier when on juries. Rather, I knew the judge to be merely a man, as myself, and used my own good judgement, coupled with the facts at hand, to come to my own personal decision regarding a verdict.
I should point out that both cases I sat on were civil, i.e. lawsuits. I’m a very black and white thinker. If I thought it was worth the time and effort to get the education, I think I would have been an excellent judge. Part of the reason for that, also, is my ability to “ego free” change my position as more evidence avails itself. It’s almost like a game.
Judges always instruct the juries before they deliberate. When they step over the line, jurors have an absolute right to ignore him. A jury I was on once wanted to see a written portion of the testimony while deliberating. The judge said "no."
We found the defendant unanimously 'not guilty,' in spite of the fact I absolutely thought he was guilty.
There's a principle at risk there.
Jury nullification helped create the system. Before that, juries basically had to rule whatever way the judge told them to. Jury nullification created the concept that jurors could rule in accordance with their own consciences. Such was the accepted case until the government powers started to crack down on this power of the people in the late 1800s.
That’s not right. It is due process. We weigh ALL in front of us. The Jury system keeps the citizens involved in the whole system of law and justice, it raises expectations and by so doing makes better citizens. The modern — perverted — system where citizens coming into juries are treated like trash is the real abuse of due process. Of course juries so treated — and so selected — act irresponsibly. Every narrowing instruction to them tells them they are viewed as imbeciles.
Judges ALSO make determinations of guilt or innocence based on personal appearance, as do police, detectives and prosecutors. Human nature. The trick is to have a culture — a courtroom culture — that empowers responsibility.
When the citizens are cut out and debased, we are left with an autocracy running all legal process — and that autocracy itself becomes corrupted and debased. Look ate the 111th Congress — it was full of lawyers. Look at the judicial tyrants now afflicting our courts.
Legally in what sense? A juror won't be arrested or sued for it, but it's not a verdict that will withstand a JNOV or appeal, particularly on a civil case.
Since you bring up civil cases, the concept of jury nullification has no place there. It's one thing to raise the concept in a criminal case, when jury nullification can be an important tool to prevent government oppression, but in a civil case, there is no such risk. Parties conduct themselves according to the law, and are entitled to rely on that law in their interactions with others. It is a gross disservice to the public, and to due process in general, to "nullify" in a civil case.
No, it’s not due process at all. Due process embodies the concept that I, as a defendant, am entitled to a fair trial in which my conduct will be judged against the law and the evidence to determine whether I committed a crime.
To return to RobRoy’s example, if I am convicted because the jury doesn’t like my hairstyle, how have I received any modicum of due process?
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>>There was a case some time ago where the jury convicted based on a coin flip.<<
Here is the difference, and I see it as “black and white”: When an individual juror votes, his vote is not scrutinized, other than to ask him if it is his vote. The reasoning is INTERNAL and, therefore, secret. When an entire jury flips a coin, it is not individual, nor secret. It is an utterly completely different thing that only appears, on the surface, to be similar.
>>Legally in what sense?<<
In the sense that no laws have been broken.
>>Since you bring up civil cases, the concept of jury nullification has no place there. It’s one thing to raise the concept in a criminal case, when jury nullification can be an important tool to prevent government oppression, but in a civil case, there is no such risk. Parties conduct themselves according to the law, and are entitled to rely on that law in their interactions with others. It is a gross disservice to the public, and to due process in general, to “nullify” in a civil case.<<
You crack me up! Seriously.
There’s only so far one can take a silly argument. But you asked a question. Yes, it is due process. The personal conduct and appearance of the defendant is a critical element to a Juror’s or Judge’s view of that defendant.
You can ask any criminal defense attorney. Yes, a hair style that is abnormal, off-putting or indicates a social negative in the current culture can weigh, and weigh hard against a defendant. Look like a violent gang member, more likely to be found guilty as a murderer.
So, yes, if you are rebellious to the advice of your public defender and come in looking like a criminal, a jury will duly deliberate and find you, with all due process, guilty. Yes, they will also weigh the facts and testimony presented. But they consider all they see. If they see you as a threat to society — bad. If they see you as a upstanding member of society — good.
Also true. Except that when the coin flip of a whole jury becomes known it is public stink and a Judge must rule a mistrial or risk it becoming a bad habit of juries. It is irresponsible but not reviewable as not as it is not publicly known. It is also likely that among the 12 jurors one will out the bad actions, secrets will out.
But also consider the case of a single juror, in private, flipping a coin to decide. Is that just as irresponsible? No it is not. The juror is making a judgment — to accept the outcome once tossed. A juror might toss a coin, meaning to accept the result, but upon seeing the verdict of chance decide it is wrong. Thus to accept the coin toss judgment is to really gave decided that way. The coin was a tool for the juror to see his or her own mind.
That logic doesn’t apply as well to a whole jury, where the coin toss is way to intimidate the weak.
My hairstyle has nothing to do with whether I am guilty of the crime with which I am charged. Since the decision of my guilt is being made according to something other than the law and the evidence, I fail to see how I've received due process. In fact, if a juror were to admit that he or she convicted someone based on their appearance, I'm quite certain that the conviction would be reversed, just as the coin toss conviction was set aside.
Your argument seems to be that my appearance, or the appearance of our fictional defendant, could color the jury's view of the evidence. I don't disagree with that as a matter of fact. What I'm saying, though, is that if your juror says "I don't care whether he's guilty or not, I hate people that wear pompadours and, thus, I will vote to convict him." I contend that is a gross violation of due process.
Jurors are not computers that weigh facts and spit out results. I agree that jurors will consider factors other than the evidence. But where I disagree is that if factors other than the evidence color their verdict, it's a due process violation.
Indeed. We wouldn’t want a society in which people relied on objective facts to plan their behavior.
It is a much better system when people make up the rules as they go.
Judges pop off stupidly on a regular basis. If a judge really wants to get a railroad job done without getting it by a jury, they pretty much have to use a court order, and then contempt, and failure to be very clever in that can cost 'em their bench.
Publicity is their worst nightmare, Caesar's wife, ya know.
What a juror says afterward about how they decided — even when under oath — is only a recollection. At the time they made a judgment it is most likely they considered other factors. Humans are humans.
I don't believe Mr. Penn was on trial. He was one of the jurors that refused to convict.
I assume, by the way, you are perfectly comfortable with plaintiffs receiving large verdicts in personal injury cases?
Someone spills coffee on their lap and gets a $100 million verdict. Totally cool with you?
The Indictment sets forth, ‘That William Penn, Gent. and William Mead, late of London, linen draper, with divers other persons to the jurors unknown, to the number of 300, the 14th day of August in the 22d year of the king, about eleven of the clock in the forenoon, the same day, with force and arms, &c. in the parish of St. Bennet Grace-church in Bridge-ward, London, in the street called Grace-church street, unlawfully and tumultuously did assemble and congregate themselves together, to the disturbance of the peace of the said lord the king: and the aforesaid William Penn and William Mead, together with other persons to the jurors aforesaid unknown, then and there so assembled and congregated together; the aforesaid William Penn, by agreement between him and William Mead before made, and by abetment of the aforesaid William Mead, then and there, in the open street, did take upon himself to preach and speak, and then and there did preach and speak unto the aforesaid William Mead, and other persons there, in the street aforesaid, being assembled and congregated together, by reason whereof a great concourse and tumult of people in the street aforesaid, then and there, a long time did remain and continue, in contempt of the said lord the king, and of his law, to the great disturbance of his peace; to the great terror and disturbance of many of his liege people and subjects, to the ill example of all others in the like case offenders, and against the peace of the said lord the king, his crown and dignity.’
What say you, William Penn and William Mead, are you Guilty, as you stand indicted, in manner and form, as aforesaid, or Not Guilty?
— http://www.constitution.org/trials/penn/penn-mead.htm
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