Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime.
The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.
Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams.
The rest of the article goes on to explain a few things about how juries work and what they may not know about their rights and responsibilities. Jurors are allowed to let their personal moral lines influence their decisions. It also explains the dark side of the effect, that racist or elitist regions have used this to warp the justice system. Of course someone will, but if you believe in people then you have to hope that educating the public about this will do more good than harm.
If nothing else, just knowing this is how the system can (and was intended) to work is a good thing. We should all be more educated about our judicial system, which is chewing us up and taking advantage of its complexity and the public's ignorance.
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