The Illegality of Advocating for Jury Nullification

Joel Cohen and Katherine A. Helm

Why are federal prosecutors going after Julian Heicklen, a 79-year-old retired chemistry professor, for speaking his mind? The indicted Heicklen is hardly your run-of-the-mill threat to society and all he has done is speak and write about a cause in which he believes. Surely there must be more to this story -- and there is.

For reasons not completely clear, Heicklen has led a one-man campaign to stand outside 500 Pearl St., the address of one of the busiest and highest-profile federal trial courts in America: the Southern District of New York. In that venue individuals of all stripes stand indicted and await trial. They range from white-collar criminals to celebrated Mafiosi to petty drug violators. Heicklen is apparently a drug and gambling law abolitionist. He believes in murder laws, however, and is a "big law and order guy when it comes to real crime." But in Heicklen's world, the definition of a "real" crime is no less subjective than morality.

When standing on the Pearl Street Plaza, Heicklen didn't read aloud, bullhorn in hand, from the Sixth Amendment to the U.S. Constitution. He didn't proclaim the guarantees of an individual's rights to trial, to an impartial jury, to the assistance of counsel or to confront witnesses against him. Presumably, Heicklen could have shouted those words into the proletarian abyss with objection only from his vocal cords.

So what did Heicklen do to arouse the U.S. Attorney's Office? He held aloft a "Jury Info" sign and gave out brochures advocating "jury nullification," a doctrine that is anathema in a modern American courtroom -- although there is some history suggesting that it once served a valid social purpose, e.g., during the civil rights movement. It is a doctrine that encourages jurors to decide cases irrespective of the law given to jurors during trial. A "nullifying" (also termed a "runaway") jury could decide a case, despite the compelling evidence admitted at trial and the trial judge's instructions, based on whether the law at issue was a good or just law or met with one or more juror's approbation.

Pause for a moment to imagine how this would work in practice with cases involving politically heated and classically divisive social issues, like abortion or the death penalty, and in cases involving more contemporaneous but equally schismatic issues surrounding, e.g., the treatment of potential terrorist suspects, or corporate boards' culpability in the financial crisis. Runaway jury verdicts would amount to little more than a random 12-person vote, where each person could vote their conscience, their pocketbook, a flip of their coin, or what have you. Talk about an engraved invitation for chaos -- indeed, anarchy. The freedom of self-expression is rightfully in play at the ballot box, but in the juror deliberation room?

It would be one thing if Heicklen had written an article advocating his position online, in a newspaper or perhaps in a scholarly law review, where dialogue and provocation can be luxuriously considered at one's leisure and from the comforting distance of one's armchair. But, for the U.S. Attorney's Office prosecuting him, on a misdemeanor charge, for violating Title 18, U.S. Code, Section 1504 ("Influencing Juror By Writing"), Heicklen was intentionally, and very directly, seeking to impede the legal process by stopping jurors in their tracks.

Precisely because he was conducting his one-man protest right outside the courthouse and not to a random audience in Times Square or on The Huffington Post, the U.S. Attorney's Office viewed Heicklen as a direct threat to our justice system. Because he was targeting potential or preferably sitting jurors, he needed to be stopped, before any potential copycat "Occupiers" of the downtown Manhattan courthouse plaza crop up and create further disruptions of the fair and working order of the legal system. This form of civil disobedience extends beyond any constitutional right to freedom of speech and invades territory the government must protect so that the judicial process is not misjudged in the minds of the public. Do you buy that? Well, what was Heicklen doing exactly? He was telling potential or actual jurors, jury panels or even jury venires to flat out ignore a judge's instructions and decide cases based on their own views of what the law should be. In fact, the pamphlet, in bold capitalized print, said this:

The judge will instruct the jury that it must uphold the law as he gives it. He will be lying. The jury must judge the law as well as the facts.

Juries were instituted to protect citizens from the tyranny of the government. It is not the duty of the jury to uphold the law. It is the jury's duty to see that justice is done.

And if that weren't enough for the prosecutors, Heicklen was also handing out a "job description" for jurors, with a series of questions and answers in this vein:

Once on a jury, must I use the law as given by the judge, even if I think it's a bad law, or wrongly applied?

The answer is "No. You are free to vote on the verdict according to your conscience."

Even if you are not a lawyer familiar with basic First Amendment jurisprudence and its "clear and present danger" test, you still probably recognize the potential hazards of Heicklen's "unrestricted expressive activity." The old chestnut that timing is everything is never truer than during a jury trial.

Put to the test; imagine how you would feel about Heicklen's actions if you were in the midst of a jury trial in the SDNY courthouse right now. Imagine you are defending an insurance company in a motor vehicle accident where liability is very thin, representing a pharmaceutical firm in a questionable product liability action or advocating on behalf of one or another unpopular defendant in a complex litigation where liability hinges on the interpretation of a web of statutory schemes and changes in the law over time and requires careful vetting of evidence to properly frame the factual issues for a jury. The case has taken years of disciplined and principled legal arguments and judicial rulings to best preserve the sanctity of the jury's ability to make its decision fairly and impartially and today is the first day of jury deliberation. Then, right around lunchtime, some jury nullification "pamphleteer" basically tells the deliberating jurors in your case to ignore whatever law and/or legal instructions they heard and vote their "conscience" to back the "little guy" or to stick it to Corporate America. To play with a juror's personal feelings at such a critical time in an attempt to influence their vote is not only illegal but shows great disrespect for our system of justice and the process due to all.

Of course, we don't know why the investigation leading to the indictment of Heicklen was initiated. Was it because prosecutors saw this going on daily and were concerned that it would affect jury deliberations in their cases? Was it because one of the SDNY judges herself called U.S. Attorney Preet Bharara and told him to remove this menace? Or was it something else?

Whatever the back story, the government took it seriously enough to insert an undercover agent into its investigation. And that may explain why the David (Heicklen) versus Goliath (U.S. government) metaphor may not be apt. To wit: On May 25, 2010, according to the government's memorandum opposing Heicklen's motion to dismiss the charge, Heicklen, not knowing he was on tape and maybe not even caring, offered the undercover agent his pamphlet after the agent said, "I'm a juror. I got picked yesterday." Looking at the pamphlet and playing the juror role, the agent asked Heicklen, "What's nullification?" Heicklen replied, "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 that said that was true. In other words, if you think the law is unjust you can find the person innocent." Yes, Heicklen dressed up his (unwittingly taped) remarks to the "juror," referring to William Penn, John Peter Zenger and Chief Justice John Jay; but at the end of the day his message would have been pristinely clear to a sitting juror, to whom he believed he was speaking: "If you think a law is unjust you can find a person innocent."

The truth is: That's not the law. Our justice system is based on jurors following the law as instructed by judges. As the 2nd Circuit made exquisitely clear in U.S. v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997):

A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant guilty, and that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

Simply put, it is a juror's duty to take the law from the court. This is why, as a juror, you must take an oath to uphold the law. If you encourage someone to violate that oath, you yourself violate the law by encouraging lawlessness.

An interesting question would have arisen if Heicklen's message were different -- that is, if his pamphlet, distributed outside the courthouse to individuals he believed were jurors, told them to "Follow the law as instructed by the judge, that's your absolute duty." Or if Heicklen was distributing his actual pamphlets, not really knowing whether those headed for the courthouse door were jurors or simply courthouse personnel. Or if he set up his jury nullification pulpit a few blocks away, say, at the closest train station to the courthouse.

Indeed, there are First Amendment issues implicated by this prosecution, and they're not easy to decide in broad strokes. Cases are often decided based on their unique and distinguishable facts. In this case, by telling an undercover agent whom Heicklen believed was a juror to actually violate the law, some might even question why the misdemeanor charge against him was so minimal. On the other hand, one can understand the government not wanting to be overbearing against a senior citizen whose heart, if not his judgment, was probably in the right place. The fact that the misdemeanor charge carries a maximum penalty of a fine or a six-month sentence means that Heicklen probably does not have a right to a jury trial, which is a point of irony not to be lost either.

Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches Professional Responsibility at Fordham Law School. He is also the author of "Truth Be Veiled," released in July 2010 by Coffeetown Press. Katherine A. Helm, Ph.D., is a former law clerk to a U.S. District Court judge and a U.S. Court of Appeals judge and is now in private practice in New York. This column is the latest in a series by Cohen and Helm for Law.com. The views expressed are the personal opinions of the authors.