Prosecution Explains Jury Tampering Charge
Benjamin Weiser

Julian P. Heicklen, a 79-year-old retired chemistry professor, has often stood on a plaza outside the United States Courthouse in Manhattan, holding a “Jury Info” sign and handing out brochures that advocate jury nullification, the controversial view that if jurors disagree with a law, they may ignore their oaths to follow it and may acquit a defendant who violated it.

Then, last year, federal prosecutors had Mr. Heicklen indicted, charging that his activity violated the law against jury tampering. Lawyers assisting him have sought dismissal of the case on First Amendment grounds.

But now prosecutors are offering their first detailed explanation for why they charged Mr. Heicklen, arguing in a brief 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,” prosecutors wrote.

“No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

The filing in the unusual case comes as Judge Kimba M. Wood of Federal District Court considers the defense’s request to dismiss the case. She has scheduled oral arguments on the issue for next month.

Christopher Dunn, associate legal director of the New York Civil Liberties Union, said: “The government is dangerously wrong in claiming it can criminalize sidewalk advocacy supporting jury nullification. Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment.”

Mr. Heicklen, who taught at Pennsylvania State University and now lives in Teaneck, N.J., has said that he does not try to influence specific jurors or cases, and that he merely distributes brochures to passers-by, with the hope that jurors are among them.

Reached by telephone on Friday, Mr. Heicklen said, “Since when is telling the truth a crime?” He was preparing his own response to the government brief, he said.

In an earlier interview, he had explained that his nullification activism began in the 1990s after his retirement from Penn State when he openly smoked marijuana in State College, Pa., to get arrested as a protest against marijuana laws.

He says that he does not favor nullifying the laws against, say, murder, but that he does believe in nullifying laws on drugs and gambling.

He has also acknowledged that his advocacy on a plaza outside the courthouse at 500 Pearl Street was part of a larger effort that has taken him to dozens of courthouses in places like Philadelphia, Albany, Hartford, Boston, and Orlando, Fla. He distributes his own materials and pamphlets produced by a national group called the Fully Informed Jury Association.

Lawyers assisting him (officially, he is acting as his own lawyer) wrote in a motion to dismiss that prosecutors were seeking “to imprison a man for disseminating a lawful message about a subject in which he has an honest and deeply held belief.”

The lawyers, Sabrina Shroff and Steven M. Statsinger, said the prosecution of Mr. Heicklen would only draw attention to the nullification issue and would “surely convert more to the cause than poor Mr. Heicklen ever could on his own.”

But a prosecutor, Rebecca Mermelstein, wrote in the government brief that Mr. Heicklen’s courthouse appearances, his “Jury Info” sign, his writings, and statements he made to an undercover agent posing as a passer-by showed his “intent to target prospective jurors in particular.”

“I’m not telling you to find anybody not guilty,” she quoted Mr. Heicklen telling the agent in a secretly recorded conversation.

“But,” he added, “if there is a law you think is wrong then you should do that.”

The brief, filed last month, also cited one of Mr. Heicklen’s pamphlets, which says jurors may vote to acquit if they believe the government was “just trying to flex its muscle by making an example out of the defendant.” The brochure also “strongly suggests that jurors lie to judges in order to avoid being excused from a panel,” Ms. Mermelstein wrote.

She noted that historically, jury nullification had at times produced just results, like acquittals by Northern juries in prosecutions under the fugitive slave laws. But more frequently, nullification was used to frustrate justice, she added, citing hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of the civil rights leader Medgar Evers the previous year.

Ms. Mermelstein argued that Mr. Heicklen could advocate jury nullification only in a public forum and not to jurors. The courthouse plaza, surrounded by concrete bollards, security booths and 24-hour video surveillance, was not like a public park or thoroughfare, she said.

Mr. Heicklen, who could face a six-month sentence if convicted, has asked for a jury trial. Ms. Mermelstein, opposing that demand, cited as one reason Mr. Heicklen’s ardent stance that juries should nullify. He would probably “urge a jury to do so in a case against him,” she wrote.