Posted on 02/25/2011 10:52:20 AM PST by Second Amendment First
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Since 2009, Mr. Heicklen has stood there and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.
That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering. He was arraigned on Friday in a somewhat contentious hearing before Judge Kimba M. Wood, who entered a not guilty plea on his behalf when he refused to say how he would plead. During the proceeding, he railed at the judge and the government, and called the indictment “a tissue of lies.”
Mr. Heicklen insists that he never tries to influence specific jurors or cases, and instead gives his brochures to passers-by, hoping that jurors are among them.
But he feels his message must be getting out, or the government would not have brought charges against him.
“If I weren’t having any effect, would they do this?” said Mr. Heicklen, whose former colleagues recall him as a talented and unconventional educator. “You don’t have to be a genius to figure this thing out.”
Prosecutors declined to comment on his case, as did Sabrina Shroff, a lawyer who was assigned to assist Mr. Heicklen. (He is acting as his own lawyer.)
(Excerpt) Read more at nytimes.com ...
1) Defending you home, life and loved ones using deadly force
2) The right to bear arms and defend yourself
3) So-called hate speech crimes
4) Rights of a property owner to decline to perform a gay wedding in their establishment (coming our way in IL)
5) The right to free speech as posited in the article posted in this thread
6) The right to grow your own food for your own consumption
Hell, I could go on all day but I think the point is made.
I had a similar experience where two jurors wanted to give plantiff an award because the felt sorry for her and after all, the insurance comapny was paying. Myself and another juror believed she had not proved her case and was probably lying based on other tstimony. The eight others were somewhere in between. Eventually everyone agreed she had no case, but the two jurors still wanted her to get something. They eventually came around. Myself and that other juror were instrumental in preventing a miscarriage of justice.
Granted, that’s not the same as jury nullification, but it shows the imporatance we can all make doing our duty as jurors trying to serve justice.
You left out her stint with the London Playboy Club before law school.
The jury can then examine the evidence.
He and his counsel are probably smart enough to try, but you think the judge would allow that?
Of course if the judge doesn't, there's damn good grounds for appeal.
Many prosecutors frequently behave illegitimately. In such cases, a jury who acquits someone who did a forbidden act would not be acting lawlessly, but would instead be upholding the law.
For example, cruel and unusual punishments are forbidden by the Constitution and are thus illegitimate. The Constitution does not specify any particular types of punishment as permissible nor forbidden, because what would be a reasonable punishment for one crime might be grossly unreasonable for another. Further, the reasonableness of a particular sentence in many cases will depend not only on the particular statute violated, but on a variety of factors including the defendant's level of criminal intent. If the jury were to determine that given the facts of the case (including its judgment of the defendant's criminal intent or lack thereof) the defendant would receive a grossly unreasonable sentence if convicted, the jury would be duty-bound to acquit.
Note that many prosecutors and judges don't want jurors to know the sentences associated with crimes. That is because they know that jurors would likely stop them from imposing illegitimate cruel and unusual punishments.
Jurors should not be encouraged to acquit people lawlessly, but they need to be told that obeying the law does not imply obeying potentially-illegitimate instructions from a judge. Jurors have an obligation to uphold the Constitution and statutes, regardless of what a judge says. If a judge refuses to provide full information regarding the Constitution and statutes, a jury should regard as plausible the theory that something in the statutes they're not allowed to see would allow the render the defendant's action permissible--a perfectly fine basis for "reasonable doubt".
I would like to see groups like FIJA shifting their focus from being free of the law, to upholding the law. They'd find much broader support, and would help expose much more of what's really going on.
(On a related note, I'd like to see a rule providing that the prosecutor must show that the defendant's conduct met not only the description of a criminal act within the text of a statute, but also conformed to some reasonable interpretation of the title of the forbidden act. For example, to convict someone of "unlawful use of a weapon", the prosecution should be required to show that the defendant actually used a weapon unlawfully, for some reasonable definition of "used". The prosecution wouldn't have to show that the defendant fired, displayed, or even handled the weapon, but would have to demonstrate that weapon played a material part in some criminal design by the defendant [e.g. the prosecutor could show that the defendant, while committing some other crime, carried a weapon for the purpose of being able to shoot his way out of any trouble he might encounter; the defense could argue that was not the defendant's purpose for carrying the weapon; a jury would then decide who they believe]. I suspect a lot of legislation is sufficiently sloppily written that such a requirement might render many statutes unenforceable; I'm not sure that would be a bad thing, though.)
Ah, your story brings back memories. In both my cases, it was a 10-2 decision. We finally decided it was not worth wasting our time to bring the other two around - in both cases.
BTW, the first was a 2 year old that fell off a city park slide 8 feet to asphalt - they were suing the city of Seattle. He suffered a subdural hematoma and had a square of his skull removed to release pressure. He was being watched by a baby sitter that we found out AFTER THE TRIAL was off in a corner of the park getting high with a friend. It was the big kids play area.
My attitude was “accidents happen” and people should be careful, but if they aren’t don’t be surprised if someone (like those for whom you are responsible) is hurt. The two holdouts were a couple of liberals that said, and I quote, “the city blew it”.
The slide had been installed in the fifties and was as safe as the day it was installed. Life is risk.
How about just knowing the law and facts of the case? The problem in that case was that the crook on the bench decided to convict the defendant, and put on a phony trial in he fed lies to the jury. The judge, not the jury, made the real decision in that case.
BTW, if I had my druthers, I would pass a law providing that defendants have the right to demand that any portions of the Constitution, statutes, regulations, ordinances, etc. that the defendant believe are relevant must be made available to the jury. For a judge to forbid such a request would be a gross criminal offense. Any defendant who would be prevented after the enactment of this statute would be entitled to a new trial if he could show that there was any possibility that a reasonable jury might conceivably have found in that information a basis for issuing a decision more favorable to him (note that this is explicitly a looser standard than would be required in most appeals, which typically require that it be likely that a jury would have issued a different decision).
BTW, to give some real teeth to the law, I would also provide that an affirmative defense be failable in a trial for homicide, assault, or other such offense: that such action was necessary for the protection of society, on the basis that the victim had at in some previous trial, since the enactment of this statute, unlawfully withheld from a jury, for the purpose of increasing the likelihood of convicting someone, portions of laws, statutes, etc. that the defense at that earlier trial wanted available to it. Judges probably wouldn't like that provision, but they'd have a simple way to avoid it: follow the law.
If the Constitution is the Supreme Law of the Land, jurors should be bound by what the Constitution actually says, rather than by anything judges say. The Constitution forbids cruel and unusual punishments. If a jury would find that the statutorially-defined sentence for a statutorially-described crime would be a grossly unreasonable punishment for the particular action actually performed by the defendant, the jury has a duty to acquit.
A major problem with the legal system in this country is that it relies in on many factual findings which are not only decided by someone other than a jury, but are often decided before the defendant is even alleged to have committed any crime. Some judge somewhere decides that in some circumstance it's not grossly unreasonable for cops to kick in a door two seconds after pressing the doorbell button, and it becomes almost impossible to challenge the reasonableness (and thus validity) of a search where a cop pushes the doorbell button, waits two seconds, and kicks in the door. Even if the doorbell had a sign saying "Bell bust--bang", pushing the non-functional button would make the search "reasonable".
I would really like to see FIJA work on educating the public about prosecutors' and judges' illegitimate tricks, and encourage jurors to be skeptical about their openness. Suggest to jurors that if prosecution and defendant both seem oddly silent about something that should be relevant, it's possible the judge illegitimately prevented the defense from presenting information which would have clearly compelled an acquittal, and such possibility may be a basis for reasonable doubt.
Not all of these beliefs of yours have to do with serving on a jury. However, if you are called to jury duty, there is a process called jury selection. During that process, you have a duty to disclose any beliefs and opinions you have versus the law or the crime or the parties in question, any problem you would have being impartial. If you fail to do that and you are selected for the jury, you are serving under false pretenses, having lied about your true sentiments. MY POINT is that jury service is not the place or the way to change laws you disagree with. In criminal cases, your job is to determine if prosecution has met the burden of proof.
Thanks for clearing up my recollection in a most excellent way. I've never seen that before.
Your argument is a bit flawed. It presupposes knowledge I don’t have and equates that with a belief or opinion. Let’s use the article of this thread as an example. I believe the man’s right of free speech is being violated under the guise of jury tampering. I don’t know that as a fact, but only from what I have read. Does that mean I can’t be impartial? Absolutely not. Must I tell the court I believe in free speech? Must I tell the court that if the defense can prove the law or its application unconstitutional, I may agree? Does it mean I must tell the court that I may not agree with the prosecution’s interpretation of what constitutes jury tampering? Absurd. That’s why they are having a trial and I am under no obligation to tell the court every belief or opinion I have that may influence my decison when I hear the case having not heard it. That would be a ridiculous burden of disclosure.
The point of nullification, as I see it, is not to change laws you disagree with but only those you find unconstitutional or unjust during the course of the trial. The law and its application are on trial as much as the defendent. If you find the law is unjust or maliciously misapplied, then it should be nullified. If you already know that going into the trial, then you should be practicing law and not be a juror.
Your argument only supports the notion that brain-dead mushrooms should serve on juries and believe everything they are told by the judge regarding the law. That is not a justice system. It’s a kangaroo court.
I thought grand juries could indict, but a regular jury could produce verdicts of guilty, not guilty or not guilty via nullification when the judge’s direction would seem to provide the possibility of only a guilty verdict but of possibly varying degree.
“Incidentally, Clinton’s first nominee was Zoe Baird.
Obviously, men need not have applied during the Clinton regime.”
Then how do you explain Janet Reno? :^)
“You are crazy. . .But you would have to have some humility and some intelligence to understand that. “
A little over the top there, wouldn’t you say? Geez.
I happen to view jury nullification to be a great check on the power of Congress. Unjust laws don’t have to be upheld. Sorry if my viewpoint makes you go ballistic.
“The jury has a right to judge both the law as well as the fact in controversy.”
John Jay, 1st Chief Justice U. S. Supreme Court, 1789.
“The jury has the right to determine both the law and the facts.”
Samuel Chase, U. S. supreme Court Justice, 1796, Signer of The unanimous Declaration.
“The jury has the power to bring a verdict in the teeth of both law and fact.”
Oliver Wendell Holmes, U. S. supreme Court Justice, 1902.
“The law itself is on trial quite as much as the cause which is to be decided.”
Harlon F. Stone, 12th Chief Justice U. S. Supreme Court, 1941.
“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge...”
U. S. vs. Dougherty, 473 F 2nd 1113, 1139, (1972)
I was part of a jury that did such. Pissed off all involved shy of the defendant and amazingly ....the Judge !
She was pleased as punch and even wrote each of us a letter congratulating us on such. It wasn’t a major case, simple traffic court case where “contempt of cop” was the real issue as a speeder was also charged with tailgating. Seems when the cop came up behind the speeder, he turned on his emergency lights to pull the man over. The speeder said he didn’t think he was speeding so he pulled into the middle lane of a three lane freeway to get out of the cops way. In doing so he pulled in behind a vehicle in the middle lane and in the cops words, didn’t leave multiple vehicle lengths of space between the two cars. Thus the added tailgating charge added to speeding.
The defendant stated he accepts the radar speeding ticket but his first comment was he was yielding to an emergency vehicle so he pulled over to the middle lane as fast as he safely could.
In the little traffic court jury room all were ready to accept the cops word as gold. I asked if all noted the “smart ass attitude” of the defendant and they said yes. I asked had anyone driven through a red light after looking both ways to allow an emergency vehicle to pass them and get through the intersection etc ... ? They said yes. Pissed off cop just was piling on due the rude defendant was very clear. Even in the courtroom the cop was clearly still unprofessional and rude in his mannerisms etc ... As was the speeder per my observations.
We stated not guilty yet the prosecutor jumped up claiming nullification. Judge dismissed us to the jury room. We came back and courtroom was empty shy of attorneys , judge and bailiff . Judge and attorneys interviewed each of us with questions and answers sort of one on one...
Judge then called it nullification. I thought we were in trouble. Judge smiled at us said we did a very good job and let us go.
Small event, small case but a lesson learned for me none the less.
People clearly have too much time on their hands. I wish I had some of that time. Vote with your conscience before even hearing the case? Sorry but that is just not what jury duty is about.
A jury in New York City recently nullified a charge against a man from out of state who had a handgun in his vehicle. He admitted he had it in his glovebox but had forgot it was in there. He was facing a felony conviction and years in prison. I would have nullified the charge against him also.
You would but you would hear the case first and then nullify the charges. What this guy is doing is trying to tell people to use their beliefs when deciding. Quite frankly, I nor you need anyone to tell us to vote with our conscious. We would do the right thing without him.
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