Persuasion Matters

Sign on jury room that says Do Not Enter

More on Jury Nullification and Julian Heicklen…

As you may know (or have read in our blog, or others), Julian P. Heicklen was criminally charged with jury tampering by New York prosecutors in November 2010.  Judge Kimba B. Wood was scheduled to hear oral arguments in December 2011, but the hearing was postponed.

While we continue to wait for further developments, there have been some thoughtful opinions published on the issue that you might find interesting.

An article written by two New York lawyers titled “The Illegality of Advocating for Jury Nullification” adamantly supports the criminal charges against Mr. Heicklen.  One of the more poignant sections of the article states:

Put to the test; imagine how you would feel about Heicklen’s actions if you were in the midst of a jury trial in the SDNY courthouse right now. Imagine you are defending an insurance company in a motor vehicle accident where liability is very thin, representing a pharmaceutical firm in a questionable product liability action or advocating on behalf of one or another unpopular defendant in a complex litigation where liability hinges on the interpretation of a web of statutory schemes and changes in the law over time and requires careful vetting of evidence to properly frame the factual issues for a jury. The case has taken years of disciplined and principled legal arguments and judicial rulings to best preserve the sanctity of the jury’s ability to make its decision fairly and impartially and today is the first day of jury deliberation. Then, right around lunchtime, some jury nullification “pamphleteer” basically tells the deliberating jurors in your case to ignore whatever law and/or legal instructions they heard and vote their “conscience” to back the “little guy” or to stick it to Corporate America. To play with a juror’s personal feelings at such a critical time in an attempt to influence their vote is not only illegal but shows great disrespect for our system of justice and the process due to all.

Simply put, it is a juror’s duty to take the law from the court. This is why, as a juror, you must take an oath to uphold the law. If you encourage someone to violate that oath, you yourself violate the law by encouraging lawlessness.

Certainly something to think about.

On the other hand, Paul Butler — a law professor at George Washington University —  recently wrote an opinion piece titled “Jurors Need to Know That They Can Say No”.  Mr. Butler has been “recommending jury nullification for nonviolent drug cases since 1995” and passionately defends the actions of Julian Heicklen.

He writes:

Jury nullification is not new; its proponents have included John Hancock and John Adams.

The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)

Mr. Butler also addressed a point that I raised in my prior post: what about the impaneled jurors?

It all boils down to trust and believing in the system.

Yes, I’ve been disappointed over verdicts. Yes, I’ve witnessed some crazy mock deliberations that caused me to scratch my head and wonder if the mock jurors were sitting in a different courtroom.  I’ve even found myself on occasion wondering if jurors were too lenient.  But at the end of the day?  I.  Trust.  Juries.

Do you?


(PS: Special thanks to Thaddeus Hoffmeister and his Juries blog for these articles!)

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