No Comment — February 28, 2011, 4:13 pm

The Obstinate Dr. Heicklen

The New York Times reports on the case of Julian P. Heicklen, a 78-year-old retired chemistry professor from New Jersey, who now faces federal criminal charges. What has the mild-mannered Dr. Heicklen done?

Since 2009, Mr. Heicklen has stood [at 500 Pearl Street in Manhattan] 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 a law against jury tampering.

Federal prosecutors in New York have reached the alarming decision that informing individuals on the street in front of the courthouse (some of whom may be en route to serve on a jury pool) about the doctrine of jury nullification is a criminal act. Their view would find no sympathy among the authors of America’s constitutional system.

Jury nullification has a long and noble history in America. William Penn’s trial in 1671 is often taken as the first textbook case illustrating the doctrine. Charged with “breaching the King’s peace” (more or less the charge that prosecutors previously tried against Heicklen) because he convened a gathering of Quakers in London, jurors were charged to convict Penn. They steadfastly refused. There was no doubt that Penn had broken the law. The jurors’ quarrel was rather with the prosecutors who brought the charges and the judge who ran the court, whom they viewed as instruments of repression, and with the law itself, which, as it was being applied, was manifestly unjust. In the end Penn and the jurors all went to prison, but the injustice of the entire process belongs to the chain of events that presaged the American Revolution and led the nation’s founders to embrace nullification.

At the sedition trial of journalist John Peter Zenger in 1735, Andrew Hamilton recounted the story of the Penn trial to a New York jury and admonished them that whatever the law and facts, they had the right to acquit Zenger if they held that to be the just result. They followed his advice in an outcome that laid the foundation for American press freedom.

America’s Founding Fathers made their case to juries arguing for nullification. John Adams, when defending John Hancock in 1771, insisted that the juror has not merely the “right” but actually the “duty to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court” and its understanding of the law. Conscience should serve as a safety valve, he argued, against unjust laws, or against just laws, unjustly applied.

Since then, jury nullification has been used to block the prosecution of those who helped slaves flee captivity or who simply offered them education; to free those who faced prosecution for resisting military service in unpopular wars or whose conscience forbade them to bear arms; and to end the prosecution of women who sought abortions and the doctors who served them. In the December 1926 issue of Harper’s Magazine, Walter Lippmann made the case for the use of jury nullification to address some of the extreme prosecutions resulting from the Volstead Act. In the December 1995 issue, Paul Butler argued that minorities should use jury nullification to press social issues.

The “controversy” relates not to nullification as a doctrine but to a far narrower issue: can the jurors be told that they have this right? Prosecutors and judges detest this notion because it strikes at the core of their power to interpret and guide the application of the law. No doubt about it: nullification makes their lives difficult. Consider the recent dilemma of prosecutors and judges in Montana, unable to find a pool of jurors willing to convict anyone for possession of marijuana, no matter the evidence.

Julian Heicklen’s conduct is remarkably like that of the seventeenth century pamphleteers whose obstinate insistence on rights and fair process belongs to the animating background of the American Revolution. Consider the case of John Lilburne, for instance, who was repeatedly arrested and tried for distributing pamphlets articulating a vision of natural rights and whose stout defiance of prosecutors and judges led directly to the notion of the right of confrontation and the exclusion of secret evidence. Consciously or not, Heicklen even embraces their tactics—like Lilburne and early dissenters, he kept his silence in response to questioning from the bench. Heicklen is just the sort of defendant that jurors in days gone by would have recognized as a victim of persecution and would have acquitted. And the federal prosecutors, no doubt aware of this fact, are eager to keep his case before a judge who shares their belief that jurors must be kept ignorant of the existence of the doctrine of jury nullification.

Shortly before his death, Thomas Jefferson noted with disdain that judges were working hard to bury jury nullification. It reflected a pernicious “slide into toryism,” he remarked in a letter to James Madison in 1826. In Jefferson’s view, judges and prosecutors who rejected the jury’s right of nullification were betraying the values of the Constitution and instead embracing those of the British Crown. “They suppose themselves… Whigs, because they no longer know what Whigism or republicanism means.” The fundamental question to put to the “tory” prosecutors who have brought the Heicklen case is simple: what about the First Amendment?

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