I wonder what the Government told grand jurors in the case of United States of America versus Julian P. Heicklen. The 78-year-old retired college professor was indicted on charges of jury tampering. He was charged under a statute designed and intended to make it a crime to try to influence a juror engaged in the heady business of deciding whether a person is or is not guilty of the crime charged.
Here is the operative language of the statute, 18. U.S.C. Section 1504, that Heicklen is accused of violating: “Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.”
What does the Government allege Heicklen did to warrant prosecution? He passed out material about jury nullification to persons entering the United States District Court on Pearl Street in Manhattan. The material urged jurors to vote their conscience, even if it conflicted with the law. Heicklen’s material reminded all passersby, and that includes both jurors and non-jurors alike, that they are, in fact, free to disregard the law, a practice known as jury nullification. Some of the material he passed out what prepared by the Fully Informed Jury Association; Heicklen wrote some of the material himself.
One would think that tampering with a jury would regarded a serious crime, affecting, as it does, the very administration of justice. But Congress declared this crime punishable by no more than six months in prison. By definition, the crime is a misdemeanor. As a matter of law, a person charged with a crime carrying less than six months potential imprisonment is not entitled to a jury. (You lawyers out there take note. The case deciding this is: Lewis v. United States, ___ U.S.___, 116 S.Ct. 2163, 135 L.Ed.2d. 590 (1996). In other words, Heicklen will never see the whites of a jury’s eyes: his case will be decided by a judge.
This prosecution is a sick and detestable joke, the sort of cluster fuck engaged in by prosecutors and judges the cries out for the very practice it seeks to thwart. If ever a jury should hear a case in order to reign in an eager beaver prosecutor and a wooden-minded judge, this is it. Nothing in the indictment charging Heicklen suggests he sought to influence the deliberations of an actual jury. He merely sought to remind jurors, and exhort jurors to act, in the name of a time-honored tradition in the American courts. Jury nullification is one of the few times the people get to speak directly to power as a means of rejecting and rebuking a misapplication or offensive application of the law.
The federal knucklehead of a prosecutor bearing down on Heicklen, Rebecca Mermelstein, is immune from suit for her conduct charging a man for speaking out. So, too, is Judge Kimba Wood. Both prosecutor and judge, in this case serving as judge and jury – let’s not forget the secret grand jury pow wow the Government resorted to in order to secure the indictment – get to protect their turf, their discretion to apply the law as they see fit without any accountability to ordinary citizens sitting as jurors. It is a chilling reminder of just how governs in this country: robe and law-woman, a dynamic and often toxic due, dancing all over the graves of the Bill of Rights.
Mermelstein is shameless in bringing this action. It is the cowering of a naked emperor seeking through foul means to silence the one man in the vicinity of the court with the nerve to point out her nakedness.
Heicklen is not stranger to controversy. In his late 50s, he was arrested several times while smoking marijuana in planned acts of protest designed to test silly drug laws. He now plans to represent himself in these proceedings. That is a mistake. He needs to lawyer up and file a motion to dismiss this indictment. The prosecution relies on a too broad reading of a narrow statute. The case stands as an important reminder that speaking truth to power can get your arrested, First Amendment or not. This case demands immediate review by a higher court.
Of course, that carries with it the danger that the high court will simply turn a blind eye. Nullification cuts into the power of judges, after all. It is a threat to established ways of doing things. But threats to the established order are the very nutrients from which the vine of liberty grows.
Heicklen is a hero. He needs a heroic defense. It should not be a crime to remind jurors that they are free to vote their conscience. Only a wicked cabal of fools fears the acts of men and women heeding conscience's call.
Note: Thanks yo John Kindley for pointing out my mistaken misidentification of the prosecutor in this case.I have corrected the error.