Wednesday, December 7, 2011

In Praise of Julian Heicklen

What??  You've never heard of Julian Heicklen??  I thought everybody had heard of Julian Heicklen!!

Julian Heicklen is a retired Penn State professor just recently arrested in downtown Manhattan for jury tampering.  Right out there in public.  In front of God and everybody.  Right in front of the federal courthouse.

Julian was arrested for passing out flyers, some of his own making, others provided to him by FIJA, The Fully-Informed Jury Association.

FIJA has as their mission and goal to inform everyone who might ever become a member of a jury of their natural right to judge both the law and the facts concerning the case at hand.  And here you thought the jury only got to decide whether the perp did it or not, didn't you?  Nope.  You also get to decide whether the perp was justified in doing whatever was done.  This tradition has a long and colorful history.  It is mentioned in the Magna Carta (1215 AD) as one of those rights the people can invoke against the King.

The Salem Witch Trials ended when prosecutors suffered 62 consecutive acquittals by juries that were tired of seeing their grandmothers burned at the stake, hung, drawn-and-quartered, and ducked in the local pond until they drowned.

John Peter Zenger, publisher of the New York Weekly Journal, walked out of court a free man when a 1735 jury decided that printing the truth could never be considered 'libel', even if it embarrassed the Colonial Governor.  This case was the precedent for our own First Amendment.

Prosecutors similarly gave up prosecuting fugitive slaves after one Northern jury after another refused to send people to jail just for helping slaves escape.

If you get called for jury duty these days, you will be asked to swear an oath that you will administer the law as the judge explains it.  You swear that you won't give a hoot about whether or not the law is good, bad, or indifferent, and that you will convict the defendant for violating a bad law exactly as you would convict for violating a good law.

Did you miss that?  If Congress passes a law saying all Presbyterians have to move to Kansas and Nebraska — (they wouldn't, but let's just say they did) — you will send that Presbyterian to jail for the crime of 'living in Texas'.

"That's silly," I hear you say,  "Congress would never pass a law like that!"  Oh, yeah?  How about...  The USA PATRIOT Act that wipes out the Fourth Amendment (among other things)?  How about the new National Defense Authorization Act that purports to allow the Army to arrest U.S. citizens on U.S. soil without a warrant and hold them indefinitely without trial merely on someone's accusation that they are a 'terrorist'?  Recall that during the Second World War, President Roosevelt ordered all Japanese-Americans interned (in 'concentration camps').  Given those examples, how far are we away from "packin' all them Jews into boxcars"?

The judge has no authority to require that oath, and you have no obligation to answer it truthfully.

So Julian is defending himself (he is acting as an attorney pro se) because he will likely raise some or all of these points at trial, and a licensed attorney who did so would very likely be disbarred.  Acting pro se also has another advantage:  what's the judge going to do to Heicklen?  Throw him in jail for 'contempt'?  He's already in jail.

The prosecutor, one Rebecca Mermelstein, also has something of a problem.  She's going to have to explain to a jury that Professor Heicklen committed a crime by espousing his opinion in public and that the First Amendment doesn't cover what he did.  She's going to have to explain that if the law ever requires Jews to wear an armband with a yellow Star of David, she, Rebecca Mermelstein, will encourage all her family to comply and will prosecute any of them who don't.  Oh, dear.

If the judge, Jack Weinstein, tries to suppress questioning along those lines he may find himself in a similarly uncomfortable position.

Along the way, the jury's historical power to acquit even in the face of evidence of guilt will garner more publicity than FIJA has ever been able to get on its own.  The Law of Unintended Consequences strikes again!

Until the 20th century, it was fairly common for judges to instruct juries that they had virtually unlimited power — to acquit.  If the prosecutor brings a charge of 2nd-degree manslaughter, the jury cannot bump that charge to 1st-degree murder, but a charge of 1st-degree murder can be softened to something lesser.  Similarly, a jury may decide

  • this is a good law and he violated it — guilty, go to jail
  • he violated the law, but I don't think the law was ever intended to apply in a case like this — not guilty
  • I'm not going to let you enforce this obscene law in this jurisdiction — not guilty;  I don't care whether he did it or not.

Even when the jury brings in a 'guilty' verdict, the judge can still issue a JNOV (judgment non obstante veredicto), a judgement notwithstanding the verdict, and acquit, but the judge cannot overrule a 'not guilty' verdict.  Further, if the jury says 'guilty', the accused may appeal.  If the jury says 'not guilty', it's 'game over' — the prosecution cannot appeal unless there has been a demonstrable failure of the system.  The whole process is biased in favor of 'not guilty'.

Professor Heicklen's trial is going to be very interesting.  Keep your eyes peeled.


  1. You said it better than I did.

  2. This just in from the NYT: Judge Kimba Wood yesterday dismissed the indictment, stating that "the indictment could be dismissed merely on a reading of the plain language of the statute".

    The prosecutor is saved from having to be sworn in as a witness against the state ;-)