Activist Dismisses Jury Nullification Indictment

MANHATTAN (CN) - An elderly activist has the right to pass out literature outside courthouses urging jurors to reach verdicts based on their consciences, even if the findings contradict the letter of the law, a federal judge ruled.

The concept of nullification allows jurors to acquit criminal defendants who are technically guilty if they believe the person does not deserve to be punished. It dates back to 17th century England and is also accepted in the U.S. Constitution.

Prosecutors believe, however, that promotion of this right to jurors constitutes a violation of 18 U.S.C. § 1504, which prohibits influencing a juror by writing.

From October 2009 to May 2010, 80-year-old Julian Heicklin stood outside the federal courthouse in Manhattan with a sign that said "Jury Info," handing out pamphlets from the Fully Informed Jury Association.

The FBI indicted Heicklen for criminal jury tampering after he handed the form to an FBI agent posing as a juror.

U.S. District Judge Kimba Wood transcribed the alleged conversation while dismissing the indictment Thursday.

"Heicklen: Would you like jury information? Find out what you [inaudible]

"Agent: I'm a juror, I got picked yesterday.

"Heicklen: Oh good, that'll be good for you to know. Take it home and read this. Thank you very much.

"Agent: What's nullification?

"Heicklen: The jury has the right to judge the law as well as the facts. The judge will tell you otherwise, but there are several Supreme Court decisions which said that was true. In other words, if you think the law is unjust you can find a person innocent."

Heicklen then allegedly talked to the agent at great length about the role nullification played in guaranteeing freedom of religion in the trial of William Penn, for preaching Quakerism, and freedom of the press in the trial of John Peter Zenger, for criticizing the king during colonial times.

Wood described Heicklen's acts of conscience, which prosecutors sought to punish with a maximum six-month sentence.

"Heicklen advocates passionately for the right of jurors to determine the law as well as the facts," Kimba wrote.

"The pamphlets state that a juror has not just the responsibility to determine the facts of a case before her on the basis of the evidence presented, but also the power to determine the law according to her conscience," Wood added.

Wood said Heicklen correctly understood his legal rights.

"The statute thus prohibits a defendant from trying to influence a juror upon any case or point in dispute before that juror by means of a written communication in relation to that case or that point in dispute," the 27-page order states. "It also prohibits a defendant from trying to influence a juror's actions or decisions pertaining to that juror's duties, but only if the defendant made that communication in relation to a case or point in dispute before that juror. The statute therefore squarely criminalizes efforts to influence the outcome of a case, but exempts the broad categories of journalistic, academic, political, and other writings that discuss the roles and responsibilities of jurors in general, as well as innocent notes from friends and spouses encouraging jurors to arrive on time or to rush home, to listen closely or to deliberate carefully, but with no relation to the outcome of a particular case.

"Accordingly, the court reads the plain text of the statute to require that a defendant must have sought to influence a juror through a written communication in relation either to a specific case before that juror or to a substantive point in dispute between two or more parties before that juror."

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