Just In Case

Julian P. Heicklen is being tried for standing outside a courthouse and handing out pamphlets in favor of jury nullifcation--the concept that jurors can ignore the law in dealing with a criminal defendant.  Federal prosecutors have indicted Heicklen on jury tampering.  They claim his speech isn't protected by the First Amendment and that "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.”

I question this.  We already have, at the very least, de facto jury nullification (jurors take an oath to uphold the law but know if they acquit, regardless of the reason, they can't be punished) and it hasn't destroyed our system.  But let's assume the prosecutors are right--that we can't have a legal system with juries who don't think they have to follow the law.

So what? All that means is Heicklen is advocating a controversial idea.  I can name lots of ideas and ideologies (to pick an obvious example, communism) that could be dangerous if followed, but the advocacy of which is nevertheless protected.

At present the judge is considering Heicklen's lawyers' request to have the case dismissed on First Amendment grounds.  I certainly hopes she does--merely allowing the case to go forward hurts the freedom of political advocacy.

The prosecutors' brief cites one of Heicklen's pamphlets (provided by the Fully Informed Jury Association) as noting jurors may acquit if they believe the government is “just trying to flex its muscle by making an example out of the defendant.” I can understand the prosecutors' fear--it's very much like what they're trying to do here.

By the way, the prosecutors don't want to give Heicklen a jury trial, since they believe he'll tell them they can ignore the law.  All I can say is they better hope the jury ignores the law or he'll be acquitted.

PS  The judge happens to be Kimba Wood, whom you might remember from the Bill Clinton era.  That's her picture above.