Advocating Jury Nullification: Crime or Freedom of Speech?

As I was browsing the New York Times website yesterday afternoon, an article caught my eye:  “Prosecution Explains Jury Tampering Charge.”  I assumed the charge was against a party, a witness or someone who was somehow affiliated with a recent trial, but I assumed wrongly.

Julian P. Heicklen

Last November, federal prosecutors in Manhattan indicted Julian P. Heicklen, a 79-year old retired Penn State professor, for jury tampering.  Why?  Because he personally handed out brochures in front of the United States Federal Courthouse while holding a sign that read “Jury Info.”  But the brochures didn’t just contain your average, run-of-the-mill message: they advocated jury nullification.

Prosecutors allege that the information contained within brochures, combined with the act of handing them out to prospective jurors on the courthouse steps qualifies as jury tampering.   Defense attorneys assisting Mr. Heicklen claim protection of free speech under the First Amendment and are seeking dismissal of the charges.  If found guilty, he could face up to six months in prison.

On October 24, 2011, prosecutors filed a Memorandum of Law in Opposition to Defendant’s Motions.  In it, they state:

[Mr. Heicklen’s] advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred. … No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic… but inevitably anarchic.

I can certainly understand the prosecution’s concern.  Heicklen’s brochure does seem to encourage jurors to withhold information during jury selection and to disregard the law if they don’t agree with it.  And there is language throughout the brochure that might give you pause.  For example:

You cannot be punished for following your conscience instead of the oath you take or the instructions you are given as a juror.  What you and the other jurors decide to do behind the closed doors of the deliberation room is your business.

However, it seems that Manhattan prosecutors assume jurors will intentionally disobey their oath simply because they read Mr. Heicklen’s pamphlet, or that merely learning about the concept of jury nullification will increase the likelihood of its occurrence.

Does jury nullification exist?  Sure.  We’d be naive to think otherwise.  I’m sure there are a hundreds of occasions where jurors believed a defendant committed a wrong but did not agree with the law that forbade the act.  But does holding that belief automatically cause a juror to disregard the judge’s instructions, the verdict form or the jury oath?

Surely we have jurors who are responsible enough to read a brochure about jury nullification but choose to follow the law rather than their heart?  I’ve interviewed a number of jurors over the years who rendered a verdict that went against their wishes, but the jurors made decisions according to the law and the court’s instructions.

Remember the Casey Anthony jurors?  While many people threw them under the bus and disagreed with the outcome, the jury voted according to their perception of the evidence and their understanding of the law and jury instructions.  They ignored their personal hearts and wishes, and did what the law required them to do.  I like to think most jurors do their very best to follow the law, despite the inner voices that might encourage them not to.

Has Julian Heicklen committed a punishable crime, or has he exercised his right to free speech?  It’s an interesting conundrum.

Judge Kimba M. Wood will rule on the defendant’s motion to dismiss soon.  Oral arguments are scheduled for December.  Tune in then for an update.