U.S. v. Heicklen Explained – a Win for the Wizened and Worried

By Larry Sutter, Special to the Legal Satyricon

The Southern District of New York recently issued its order dismissing the United State’s case against Julian Heicklen.  The order is available here.  While this is an interesting case about the protection of speech advocating jury nullification, what is even more interesting is the story behind it – from both the people involved to the affect it has had on New York’s legal community.

The Defendant: An 80-year-old retired chemistry professor who believes in freedom and liberty. Like, a lot. He stands in front of the federal courthouse in lower Manhattan handing out pamphlets advocating jury nullification. Calling him “cantankerous” is an understatement that does violence to the language: With his counsel’s motion to dismiss still pending, he addresses a letter to the federal judge who has his case firing his court-appointed standby federal defense counsel–a letter in which the salutation is “Dishonorable Judge Wood,” and the closing is “yours in disgust and hatred.” Among other requests, the letter sought the indictment of the District’s US Attorney.

As part of the investigation, the US Attorney sends an undercover agent posing as a juror to talk to the professor – who advises him he has the right to decide both the law and the facts in the interest of justice. The professor is then indicted for violating the federal jury tampering statute, 18 U.S.C. § 1504. Ironically, such a charge does not merit trial by jury.

The federal defenders, who moved to dismiss the case on every possible ground before they were fired, including § 1504’s vagueness and overbreadth in violation of the First Amendment. But even in their briefs, the defenders refer to their client as a “shabby old man distributing his silly leaflets.”

New York’s legal community has drawn its battle lines over the case, spawning numerous articles on our precious heritage of freedom.  Prominent attorneys forecast that mere anarchy would be loosed upon the world—as two eminent lawyers argued last December in The New York Law Journal:

“Pause for a moment to imagine how this would work in practice with cases involving politically heated and classically divisive social issues….Runaway jury verdicts would amount to little more than a random 12-person vote….Talk about an engraved invitation for chaos—indeed, anarchy.”

Indeed? Indeed! Which the prosecutors were glad to echo. Last month, an Assistant U.S. Attorney characterized Heicklen’s advocacy as “an absolute threat to the system,” during a hearing on the defendant’s motion to dismiss.

But then comes a noble-visaged Portia of a judge to render justice between these parties.  Filleting the statute as skillfully as the countermen at Zabar’s wield their razor-sharp knives upon the $28-a-pound Nova Scotia salmon, Judge Kimba Wood rules that because the statute—giving effect to all its language, not allowing any of its provisions to be condensed or duplicated—only forbids attempting

“to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of a written communication made in relation to a a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.” (Emphasis the Court’s.)

Therefore, generalized exhortations—as opposed to urging the juror to throw a specific case—are OK. (source)  And you don’t even have to get to all those tricky First Amendment issues, do you?

Nevertheless almost half the decision is spent not getting to the First Amendment issues. In particular, the judge found that the danger, whatever it might be, in free-floating jury nullification advocacy wasn’t clear or present enough to pose “a danger to the administration of justice.” Why shouldn’t the jurors respond as sympathetically to the judge’s instructions to follow the law as she gives it as they might to Heicklen’s exhortation to disregard it?  Indeed, Judge’s Wood statutory interpretation reached the same result Heicklen’s counsel urged in their overbreadth argument, namely, that to convict Heicklen for what he was doing would be to punish protected First Amendment activity, viz.,  speech not directed to a specific case or matter before a particular juror.

Heicklen is said to be pleased and is reported to be planning to resume his post Monday in Federal Plaza and, afterwards, go to lunch with his supporters. Dutch treat, of course. It’s reported (on Scott Greenfield’s Simple Justice blog) that his email to this effect was signed, “one small step for a shabby old man, but a giant leap for justice and our country.”

9 Responses to U.S. v. Heicklen Explained – a Win for the Wizened and Worried

  1. Wow, I like this guy. Will buy him a beer next time I’m at SDNY!

  2. CPlatt says:

    Having had a lay person’s enthusiasm for jury nullification for several decades, I was disappointed that the Legal Satyricon didn’t express a viewpoint for or against. The “It would lead to chaos!” argument has never done much for me, since it seems elitist, and could just as well be applied to any grass-roots activity, such as the process of voting for political candidates. Why, people can vote for anyone they like! They can even write in names of their own choosing!

    Yes, I realize that we need an orderly system of precedents in law, yet when legislators create bad law, and the only check on it is to make sure it doesn’t contain totally egregious constitutional violations, where else can you turn for commonsense, other than to the generally sincere and decent people who serve on juries? I only regret that I have never been called to jury service in, say, a case involving drug possession.

  3. John says:

    I’m old enough to remember when a white killer of a black man couldn’t get convicted in several southern states. That left a rather sour taste in my mouth.

    Yeah, nullification is great when I don’t like the law, but it’s not so great when I think the law is good.

    • CPlatt says:

      John, it worked both ways. As I understand it, northern jurors refused to convict abolitionists who had violated the 1850 Fugitive Slave Law.

      • John says:

        As I said, jury annulment is great when I think the law sucks, but not when it’s a good law. That provides no principled argument, however. It’s just another way of expressing personal bias.

        Yes, annulment is legal, but it can be abused too readily to keep me happy or confident that justice is anywhere near being served.

        I’d be happy to see some formulation that shifts personal bias to something that works today as well as tomorrow.

        • CPlatt says:

          Well, I agree. But the question is, do you distrust a runaway jury, on average, more than you distrust a runaway judge? Personally I think I trust the 12 jurors a little more, but if I was a black defendant in a predominantly white southern area, you’re right, the situation would be different. So, then the question becomes, is judicial bias more prevalent, on average, nationwide, than jury bias? Note that judicial bias can result in massive punitive sentences, while it takes all 12 jurors to convict an innocent man, and only 1 out of 12 for a hung jury that does not convict. That seems safer to me (assuming majority verdicts are not allowed in a serious criminal case).

          • Can I note that we don’t let all-white juries try black defendants anymore?

            I agree that 12 “ordinary” citizens are more likely to uphold liberty and justice, as it pertains to a criminal trial, than a judge. I would also much rather a few guilty men walk free than remove this safeguard to our freedom.

  4. Just read this guy’s letter to the judge — it’s absolutely epic. He actually tells the judge that she should be executed for treason, and still wins his case.

    I sent the AUSA an e-mail letting her know my disgust with these proceedings. If anyone would like to do the same, the address is: rebecca.mermelstein@usdoj.gov

  5. gimmytruth says:

    Julian Heicklen and I were both arrested by Chief Judge Belvin Perry for “Indirect Contempt of Court” for handing out FIJA.org fliers @ Orange County Courthouse, in Orlando FL last summer.We were not in the “Free Speech Zones”? We have a pending 1st Amendment challenge costing $10,000 each! Any support would be appreciated! FLJURY.com

    Mark Schmidter

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