Is the Docket Too Light in Manhattan These Days?

Dig if you will the picture of an old guy holding a sign reading “jury info” and handing out pamphlets to random folks in a courthouse plaza in New York.  The pamphlets explain a nifty Constitutional doctrine called “Jury Nullification”.  Now imagine that old guy being prosecuted for jury tampering because of those same pamphlets.  Source

Long story short, jury nullification is when a jury finds a defendant not guilty of the crime he or she is accused of not because of a lack of evidence, but because of a moral or ethical aversion to the law.  Since the Fifth Amendment prohibits defendants from being tried for the same crime twice (double jeopardy), jury nullification is it for that defendant.  Buh-bye.  There can’t be a re-trial.  Ever.  This doctrine is, needless to say, hated by judges and prosecutors.

Back to our old guy- Julian Heicklen.  He’s been cited on six prior occasions for distributing his fliers at the Manhattan courthouse – not because of their content but apparently because he did not have the proper permit.  He admits that his “Jury Info” sign draws people to him and he does answer questions and advises people of the right to nullify. But he says he does not try to influence specific jurors or cases, and that he merely distributes brochures to passers-by, but admittedly with the hope that jurors are among them.

The Prosecution is of the opinion that his “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred…His speech is not protected by the First Amendment”.  Moreover, “No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

OK- that’s a bit much (did you catch that “no matter where it occurred” part?), but I can see a need for control in the courtroom, deference to the tribunal, and an even stronger need to ensure (as much as possible) that our laws are applied evenly and fairly across the board regardless of our personal convictions-especially in the criminal context.  It’s easy to paint Mr. Heicklen as the victim when we think of a case involving a law we personally disagree with, but what if the charge was sexual assault of a young boy and one of the jurors was a card carrying member of a pederast advocacy group?   It *could* pave the way for a slew of cases where a juror or group of jurors imparts their own moralistic ideals into a verdict and  finds a person “not guilty” based on those ideals without regard to the damage an acquittal could do to society at large.

And that’s where I jump off the prosecution’s train.

Even assuming arguendo  that the plaza is not a public forum (and I remain unconvinced that it is not) it does not appear that distributing pamphlets is a problem there (at least in Manhattan) so why not just another citation this time?   Oh, heavens to Betsy!  This wouldn’t be a prosecution based on content would it? Say it ain’t so!   And what of Mr. Heicklen’s right to voice his opinion about a little known but very important aspect of our Constitution? And since judges are loathe to remind juries of their Constitutional power to nullify (the right to do so notwithstanding) isn’t it important for that bit of knowledge be available? And where better to reach a juror than in a court plaza?

In New York, a person is guilty of jury tampering when “with intent to influence the outcome of an action or proceeding, he communicates with a juror in such action or proceeding…” I see the need for jurors to stick to their knitting, as it were, and not be swayed by outside influences, but what evidence is there that Mr. Heicklen was targeting a specific juror about a specific case?  He was not presenting an opinion to a particular case and he wasn’t even targeting a particular juror, he was just handing this stuff to anybody with the hope that it would go to a juror.

Sorry, but I think this is a case where the prosecution is attempting to kick the First Amendment right in the nuts.