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?

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

November 2017

Preaching to The Choir

= Subscribers only.
Sign in here.
Subscribe here.

Monumental Error

= Subscribers only.
Sign in here.
Subscribe here.

Star Search

= Subscribers only.
Sign in here.
Subscribe here.

Pushing the Limit

= Subscribers only.
Sign in here.
Subscribe here.

Bumpy Ride

Bad Dog

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Pushing the Limit·

= Subscribers only.
Sign in here.
Subscribe here.

In the early Eighties, Andy King, the coach of the Seawolves, a swim club in Danville, California, instructed Debra Denithorne, aged twelve, to do doubles — to practice in the morning and the afternoon. King told Denithorne’s parents that he saw in her the potential to receive a college scholarship, and even to compete in the Olympics. Tall swimmers have an advantage in the water, and by the time Denithorne turned thirteen, she was five foot eight. She dropped soccer and a religious group to spend more time at the pool.

Illustration by Shonagh Rae
Article
Star Search·

= Subscribers only.
Sign in here.
Subscribe here.

On December 3, 2016, less than a month after Donald Trump was elected president, Amanda Litman sat alone on the porch of a bungalow in Costa Rica, thinking about the future of the Democratic Party. As Hillary Clinton’s director of email marketing, Litman raised $180 million and recruited 500,000 volunteers over the course of the campaign. She had arrived at the Javits Center on Election Night, arms full of cheap beer for the campaign staff, minutes before the pundits on TV announced that Clinton had lost Wisconsin. Later that night, on her cab ride home to Brooklyn, Litman asked the driver to pull over so she could throw up.

Illustration by Taylor Callery
Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Article
Bumpy Ride·

= Subscribers only.
Sign in here.
Subscribe here.

One sunny winter afternoon in western Michigan, I took a ride with Leon Slater, a slight sixty-four-year-old man with a neatly trimmed white beard and intense eyes behind his spectacles. He wore a faded blue baseball cap, so formed to his head that it seemed he slept with it on. Brickyard Road, the street in front of Slater’s home, was a mess of soupy dirt and water-filled craters. The muffler of his mud-splattered maroon pickup was loose, and exhaust fumes choked the cab. He gripped the wheel with hands leathery not from age but from decades moving earth with big machines for a living. What followed was a tooth-jarring tour of Muskegon County’s rural roads, which looked as though they’d been carpet-bombed.

Photograph by David Emitt Adams
Article
Bad Dog·

= Subscribers only.
Sign in here.
Subscribe here.

Abby was a breech birth but in the thirty-one years since then most everything has been pretty smooth. Sweet kid, not a lot of trouble. None of them were. Jack and Stevie set a good example, and she followed. Top grades, all the way through. Got on well with others but took her share of meanness here and there, so she stayed thoughtful and kind. There were a few curfew or partying things and some boys before she was ready, and there was one time on a school trip to Chicago that she and some other kids got caught smoking crack cocaine, but that was so weird it almost proved the rule. No big hiccups, master’s in ecology, good state job that lets her do half time but keep benefits while Rose is little.

Illustration by Katherine Streeter

Number of cast members of the movie Predator who have run for governor:

3

A Georgia Tech engineer created software that endows unmanned aerial drones with a sense of guilt.

Roy Moore, a 70-year-old lawyer and Republican candidate for the US Senate who once accidentally stabbed himself with a murder weapon while prosecuting a case in an Alabama courtroom, was accused of having sexually assaulted two women, Leigh Corfman and Beverly Young Nelson, while he was an assistant district attorney in his thirties and they were 14 and 16 years old, respectively.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today