On April 19, 2012, U.S. District Judge Kimba Wood dismissed the indictment against Julian Heicklen for distributing pamphlets that advocated jury nullification. It was a wise decision that deserves more attention than it has received.

Julian Heicklen, an 80-year-old retired chemistry professor, advocates for the right of jurors to follow their conscience and not the law. On at least eight occasions between October 2009 and May 2010, he stood outside the entrance to the federal courthouse at 500 Pearl Street, holding a sign reading “Jury Info” and distributing pamphlets from the Fully Informed Jury Association. The pamphlets tell jurors that “the judge will instruct the jury that it must uphold the law as he gives it [but] he will be lying.” A juror, the pamphlets state, must “judge the law as well as the facts”—”it is the jury’s duty to see that justice is done.” And the pamphlets encourage jurors who believe in the “right to nullify” to be less than candid when asked if they “will follow the law as given.” In the words of the pamphlet: “It’s up to you to decide how to answer this question especially if you have moral qualms about the consequences of telling the truth. A truthful answer, the pamphlet notes, could “cost you your chance to serve and therefore enable the legal professionals to stack the jury with people who don’t know their rights.”

Convinced that Heicklen was a threat to the fair administration of the law, the government sent in a female undercover officer posing as a juror (“I’m a juror, I got picked yesterday”) to speak with Heicklen, and Heicklen gave the undercover a pamphlet and a history lesson:

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. In fact, that’s how we got freedom of religion. William Penn was the first guy, he was a Quaker in England and he used to practice his religion openly and that was a crime in England…he was tried, the jurors found him…not guilty, then the judge locked the jurors up for three weeks ’til a higher court let them go…. In this country, the first case was a guy named John Peter Zenger, who published a newspaper and he criticized the Governor of New York. It was a crime to criticize any of the King’s appointees and he was tried and the jury acquitted him and that’s how we got freedom of the press. So you serve a very important function. I’m not telling you to find anybody not guilty, there should be a reason for it. But, if there is a law you think is wrong then you should do that. And you will be in very good company…. [I]t only takes one juror to disagree to hang the jury. If you are one, you are Queen. You are a Queen for this trial.

For his pamphleteering, Heicklen was indicted for violating 18 U.S.C. §1504, which makes it a crime to “attempt[] to influence the action or decision of any…juror…upon any issue or matter pending before such juror…by writing or sending him any written communication, in relation to such issue or matter.” The crime is a misdemeanor. Heicklen, no doubt, was surprised to learn of his indictment, but even more astonished to be told that because the maximum penalty for the crime is six months’ imprisonment, it was the government’s position (almost certainly a correct one) that he did not have a right to a jury trial in his case.1

Shortly after his indictment, Heicklen, acting pro se, sent a letter to “Dishonorable Judge Wood,” to whom the case was assigned, telling her that “everything that [he had] said was true” and that “[t]he problem is that the judges and federal attorneys are ignorant of the law.” The behavior of the U.S. Attorney’s Office, Heicklen wrote, was “extremely despicable”; the “U.S. Attorney should be prosecuted”; and judges were “destroying the country by denying jury trials.” The letter, which ended “Yours in Disgust,” was copied to President Barack Obama, Attorney General Eric Holder, Chief Justice John Roberts, Ben Weiser of The New York Times, and numerous others.

Where It Began

Was everything Heicklen said true? The standard history has it that during our first century as a nation, jurors were regularly instructed along the lines that “juries are the best judges of the facts [and] the courts are the best judges of the law [but] you have nevertheless a right to take upon yourself to judge of both, and to determine the law as well as the facts in controversy.” (The language is from Chief Justice John Jay’s charge in Georgia v. Brailsford.)2 Indeed, when Justice Samuel Chase was impeached in 1806, one of the charges against him was that, as a circuit justice, he had endeavored “to wrest from the jury their indisputable right to hear argument, and determine upon the question of the law, as well as on the question of fact, involved in the verdict they are required to give.”3

According to the standard account, that changed in 1895 with the decision in Sparf and Hansen v. United States.4 In the course of deciding whether a lesser offense instruction should have been given, the Supreme Court reviewed the authority for and against the jury’s right to “take upon themselves the determination of both law and fact” and came down solidly against a right to nullify. Sparf was widely followed, and soon juries were regularly being instructed that they must take the law from the court.5

As Nancy King, professor at Vanderbilt Law School, has shown, however, the historical record is not quite so neat.6 King reports (i) that as early as 1820, Quakers opposed to capital punishment were excused for cause from federal death penalty cases; (ii) jurors were excused for cause from trials of persons accused of resisting the Fugitive Slave Law if they had “formed an opinion that the law [was] unconstitutional”; and (iii) jurors who believed that bigamy should not be criminalized were excused for cause when the federal government launched its crusade against bigamy in Utah in the late 19th century. In 1862, Congress enacted legislation excluding from jury service in bigamy trials anyone who “believes it right for a man to have more than one living and undivorced wife at the same time.” A belief in a broad right to nullify is hard to square with such exclusions.

Perhaps most importantly, if Heicklen believed that nullification was lawful, he picked the wrong courthouse for that message. In 1997, in United States v. Thomas, the Second Circuit “categorically rejected the idea that in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is in their authority to prevent.”7 As the court noted, the jury that acquitted Peter Zenger may have reached a result we now consider just, but “more recent history presents numerous and notorious examples of juror nullifying-cases that reveal the destructive potential of a practice [that] has rightly [been] termed a ‘sabotage of justice.’” One has only to recall the 1955 trial of the two white men who brutally murdered 14-year-old Emmitt Till for supposedly flirting with a white woman to appreciate that jury nullification is not always about returning a conscientious verdict in the face of a “bad” law. Despite clear evidence of guilt, the jury acquitted the two men in one hour and seven minutes, taking “additional time” because the sheriff-elect had sent word “to wait a while, to make it ‘look good.’”8

So if the jury does not have a right to nullify (and if Heicklen was handing out literature that encouraged jurors to dissemble so that they could exercise a right that was not theirs), why did Judge Wood dismiss the indictment? As she read it, Section 1504 did not reach Heicklen’s conduct. Focusing on the words “upon any issue or matter” and interpreting the statute to avoid constitutional difficulties, Judge Wood concluded that it applied only if the defendant “sought to influence a juror through a written communication in relation to a specific case before that juror or to a substantive point in dispute between [the] parties before that juror.” Because Heicklen had “no inkling of [the] type of case [that] was before the ‘juror’ who approached him [i.e., the undercover officer] and no intent to affect the outcome of a specific case,” his conduct was outside the statute’s reach.

Where Reason Wins

Was Judge Wood correct? One could argue that Heicklen was trying to influence a juror in relation to an issue or matter pending before the juror—he was, after all, urging her to vote her conscience, not follow the law, whatever the issue in the case might be. But the decision seems a sound one. Heicklen’s pamphlets did not pose an imminent threat to the administration of justice, and it is hard to believe that Congress had him in mind when it enacted the statute. Moreover, as Judge Wood observed in a footnote, there is little reason to believe that jurors will not follow an instruction to ignore the retired chemist outside and accept the law from the court. (The government is usually the first to argue that jurors are presumed to follow instructions.) Notably, in 2010, the government won convictions in 75 percent of its tried cases (64 of 75), and six of the 11 acquittals came in bench trials, suggesting that Heicklen is finding few sympathetic ears.9

After the decision, Heicklen took the lawyers who were appointed to assist him (whom he tried to fire several times) to lunch and announced that he would return to 500 Pearl Street to continue his campaign.10 He sent this e-mail to his “tyranny-fighting” friends: “One small step for a shabby old man, but a giant leap for justice and our country.” That is hyperbole. But one does not have to believe in jury nullification or have much regard for Julian Heicklen to believe that Honorable Judge Wood got it right.

Paul Shechtman is a partner at Zuckerman Spaeder and an adjunct professor at Columbia Law School.

Endnotes:

1. Heicklen argued that even though he had no right to a jury trial, the court could grant him one in its discretion. But see Fed. R. Crim. Pro. 58 (“the magistrate judge must inform the defendant of…the right to a jury trial…unless the charge is a petty offense” [i.e., a misdemeanor punishable by six months' imprisonment or less].

2. See Alschuler and Deiss, “A Brief History of Criminal Jury in the United States,” 61 U. Chi. L. Rev. 867, 907 (1994).

3. Id. at 908.

4. 156 U.S. 51 (1895).

5. See, e.g., People v. Goetz, 73 N.Y.2d 751 (1988) (proper to instruct jury it “must” find defendant guilty if People have met their burden of proof).

6. King, “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,” 65 U. Chi. L. Rev. 433 (1998).

7. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997).

8. Whitfield, “A Death in the Delta” at 42.

9. Administrative Office of the United States Courts. 2010 Annual Report of the Director: Judicial Business of the United States Court. Washington, D.C.: 2011, Table D-7.

10. Posting of Scott H. Greenfield to http://blog.simplejustice.us/2012/04/20/heicklen-wins-jury-nullification-charge-dismissed.aspx (April 20, 2012, 6:35 EST).