Guy arrested for handing out pamphlets on jury nullifaction at courthouse. Guilty of jury tampering?

[Whack-a-Mole]

I was reading the following article and thought it raised an interesting question.

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.

SOURCE: http://www.nytimes.com/2011/02/26/nyregion/26jury.html?_r=2&hp

I think it is safe to say the basic facts, as given, are not in dispute. Mr. Heicklen was indeed handing out pamphlets on jury nullification in front of court houses.

The question for Dopers is do you think the government is right and he is guilty of jury tampering?

For my part I think the courts are stepping on his First Amendment rights. I realize the legal system dislikes the notion of jury nullification. Nevertheless I am pretty sure it is not illegal to tell people about it. Mr. Heicklen is not encouraging anyone to break the law.

As to jury tampering it is noted in the article he would hand out the pamphlets to anyone he could (with the admitted hope he’d hand it to incoming jurors but he could not know who they were). He was not targeting a specific set of jurors or trying to influence any particular case. Does the law cover tampering with jurors in general? Is it “tampering” with jurors by telling them something it is not illegal to tell them? If you hand out pamphlets promoting your pizza place in front of a courthouse hopping the jurors will order in some of your pizza is that tampering?

I’m not seeing it myself.

[Chronos]

Wouldn’t tampering require something specific to a particular case? What he’s suggesting could apply to any case, and could go either way in any of them. If he were saying specifically that the jury should nullify in the case of Smith vs. the State of North Tacoma, I could see an argument. Or if he were saying that juries should vote their conscience to lock up dangerous murderers even if the evidence isn’t strong enough, I could see that too. But saying that juries should vote their conscience, all the time, no matter where it leads? I’m not seeing that.

[Heyoka13]

I am not an attorney.
(Praise God)
However, just speculating here, wouldn’t one of the specifics of that crime be that his actions would have to pertain to a particular case?

By passing out information on apparently all cases, I am having difficulty distinguishing his conduct from free speech.
(not that I am a big fan of jury nullification, btw)

[Heyoka13]

Impressive, simultaneous posts making the same point.

I love it when that happens.

[Oakminster]

The guy is 78 years old, and apparently off his rocker. Sounds like he’s hooked up with some sort of nutjob conspiracy theory group, and distributes their crap along with his own. He’s been cited for doing this half a dozen times before, and it hasn’t made much of an impression on him.

Worse, he’s acting as his own lawyer, so odds of conviction appear to be high.

The most damning fact I saw in the article is he carries a sign that says something like “Jury Information”, and admits some people think he has some sort of official sanction. Jurors need to follow the instructions they are given by the Judge, period. They are to base their verdict on the evidence presented at trial. They should not rely on their own “research” into legal or factual matters.

[Whack-a-Mole]

@Oakminster

The guy is 78 years old, and apparently off his rocker. Sounds like he’s hooked up with some sort of nutjob conspiracy theory group, and distributes their crap along with his own. He’s been cited for doing this half a dozen times before, and it hasn’t made much of an impression on him.

Worse, he’s acting as his own lawyer, so odds of conviction appear to be high.

The most damning fact I saw in the article is he carries a sign that says something like “Jury Information”, and admits some people think he has some sort of official sanction. Jurors need to follow the instructions they are given by the Judge, period. They are to base their verdict on the evidence presented at trial. They should not rely on their own “research” into legal or factual matters.

Nutjobs have 1st Amendment rights too last I checked.

As for jurors following the instructions of the judge “period” this is not a universally held view.

Suppose that, after all the precautions taken to avoid it, a difference of sentiment takes place between the judges and the jury, with regard to a point of law: suppose the law and the fact to be so closely interwoven, that a determination of one must, at the same time, embrace the determination of the other: suppose a matter of this description to come in trial before a jury—what must the jury do?—The jury must do their duty, and their whole duty: they must decide the law as well as the fact.

This doctrine is peculiarly applicable to criminal cases; and from them, indeed, derives its peculiar importance. When a person is to be tried for a crime, the accusation charges against him, not only the particular fact which he has committed, but also the motive, to which it owed its origin, and from which it receives its complexion. The first is neither the only, nor the principal object of examination and discussion. On the second, depends the innocence or criminality of the action. The verdict must decide not only upon the first, but also, and principally, upon the second: for the verdict must be coextensive and commensurate with the charge.

It may seem, at first view, to be somewhat extraordinary, that twelve men, untutored in the study of jurisprudence, should be the ultimate interpreters of the law, with a power to overrule the directions of the judges, who have made it the subject of their long and elaborate researches, and have been raised to the seat of judgment for their professional abilities and skill.

But a deeper examination of the subject will reconcile us to what, at first, may appear incongruous. In criminal cases, the design, as has been already intimated, is closely interwoven with the transaction; and the elucidation of both depends on a collected view of particulars, arising not only from the testimony, but also from the character and conduct of the witnesses, and sometimes also from the character and conduct of the prisoner. Of all these, the jury are fittest to make the proper comparison and estimate; and, therefore, it is most eligible to leave it to them, after receiving the direction of the court in matters of law, to take into their consideration all the circumstances of the case, the intention as well as the facts, and to determine, upon the whole, whether the prisoner has or has not been guilty of the crime, with which he is charged.

SOURCE: Collected Works of James Wilson (James Wilson signed the Declaration of Independence, helped draft the US Constitution and was one of the six original Supreme Court justices among other bonafides)

[Acid_Lamp]

@Oakminster

Jury Information", and admits some people think he has some sort of official sanction. Jurors need to follow the instructions they are given by the Judge, period. They are to base their verdict on the evidence presented at trial. They should not rely on their own “research” into legal or factual matters.

Snip.

I couldn’t disagree more. The whole POINT to having a jury is for the public to decide if the person is guilty, and to make their voice known on the case and the law by doing so. Other wise they are nothing more than rubber stampers. If they decide to nullify, it is their choice to do so. Considering laws like 3 strikes and mandatory minimums for minor drug offenses are now more common, this is an important direct check on the power of the judicial system.

[Happy_Fun_Ball]

@Oakminster

Jurors need to follow the instructions they are given by the Judge, period. They are to base their verdict on the evidence presented at trial. They should not rely on their own “research” into legal or factual matters.

This seems to run afoul the text of the 6th amendment, or are you saying that the meaning of the sixth amendment is:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State following to the letter the instructions of the presiding judge and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Note: Text added.

[Oakminster]

@Acid_Lamp

Snip.

Considering laws like 3 strikes and mandatory minimums for minor drug offenses are now more common, this is an important direct check on the power of the judicial system.

The jury is the trier of fact. Did Defendant do X? It is not the place of the jury to decide what consequences, if any, should be attached to doing X—with the exception of death penalty cases, where the jury first decides whether the defendant is guilty, and then hears more testimony before deciding whether the Defendant should be sentenced to death.

At least in my state, the jury is not going to know whether Defendant is on his third strike, or what, if any, mandatory minimum penalties apply. In a criminal case, they are to decide if the State has proved guilt beyond a reasonable doubt. If they so find, then the Judge will impose sentence according to the law–again with the exception of death penalty cases.

[Oakminster]

@L. G. Butts

This seems to run afoul the text of the 6th amendment, or are you saying that the meaning of the sixth amendment is:

Note: Text added.

Nothing I said contradicts the actual text of the Sixth Amendment.

[Happy_Fun_Ball]

Yeah, maybe, but a juries right to jury nullification (for instance due to a law being unjustly applied) regardless of the facts of the case has long been recognized. Your original statement that they need to follow the instructions they are given by the Judge is flat out wrong.

[Ravenman]

@L. G. Butts

This seems to run afoul the text of the 6th amendment, or are you saying that the meaning of the sixth amendment is:

Honest question here: for those who support jury nullification, is there some text of the Constitution upon which one’s hat might hang to state that nullification is a matter of constitutional, not criminal law?

As far as I know, the Constitution is silent on the issue, which would leave me to believe that the federal government or the states may make laws on whether or not nullification can be a part of a jury’s deliberation. I would say that quoting one (or a few) of the Founding Fathers doesn’t really have any basis in the conversation, as their words are not law, the Constitution and acts of the legislature are. (To put it another way, finding a quote from Benjamin Franklin saying that whores and liquor are good things does not invalidate laws against prostitution and bootlegging.)

I’m undecided on the matter in the OP. My first thought is that if there were an actual case of a juror disregarding a judge’s instructions based on the pamphlet, the prosecution may have a case. If the prosecution is simply bothered by a whacko handing out pamphlets and what could happen, then I’m not so sure there’s been a crime.

[Acid_Lamp]

@Oakminster

The jury is the trier of fact. Did Defendant do X? It is not the place of the jury to decide what consequences, if any, should be attached to doing X—with the exception of death penalty cases, where the jury first decides whether the defendant is guilty, and then hears more testimony before deciding whether the Defendant should be sentenced to death.

At least in my state, the jury is not going to know whether Defendant is on his third strike, or what, if any, mandatory minimum penalties apply. In a criminal case, they are to decide if the State has proved guilt beyond a reasonable doubt. If they so find, then the Judge will impose sentence according to the law–again with the exception of death penalty cases.

Understood, but that’s kind of the point. The Jury is responsible for the fate of the defendant. As such, they have to consider the consequences of a “guilty” verdict. Even if they don’t know, it’s almost certainly going to be jail time, and a convicted felon will have a very hard time erasing that stigma. As far as I’m concerned it is intrinsic to weighing in with a verdict. In cases where the offense is controversial I can easily see a jury placing even more weight upon that factor when making their decision. I know I certainly would.

For example, let’s say I’m on a jury hearing a criminal possession case. They have shown thoroughly that the defendant did indeed have more than enough pot on him to qualify for a felony. I know that regardless of number of offenses, that is serious business. Considering that I do not support the law in this matter, It might be very difficult for me to return a guilty verdict. Especially so if the accused is just a random guy with an otherwise clean record. Yes, he did have it; and yes that is against the law. A law that I feel is draconian, wrong, and not worth ruining someones life over. While it isn’t really the correct forum for me to exercise my opinion, it does allow me to make a bold statement and follow my judgment.

In a perfect world, we could directly poll the public and simply follow the dictates of their opinion on such matters. In the real world, we often do not get to do so.

[Happy_Fun_Ball]

Nowhere in the Constitution is it stated that Judges have the power and right to instruct a jury and thus control a trial, any attempt to give them this power is reading into the Constitution. The right to jury nullification, at least insofar as I understand it, is rooted in the sixth amendment to the constitution which gives the right to be judged by a jury of your peers (paraphrased). How your peers reach their judgement cannot be influenced by the government (i.e. judges) without running afoul this right.

From the 4th circuit decision U.S. v. Moylan:

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

[Giles]

Suppose some frequenter of the SDMB read Dr Butts’ postings in this thread, and next week was called to jury duty. Could Dr Butts be charged with jury tampering? Or is he too remote from the courthouse?

[Whack-a-Mole]

@Ravenman

Honest question here: for those who support jury nullification, is there some text of the Constitution upon which one’s hat might hang to state that nullification is a matter of constitutional, not criminal law?

I’d say the 6th Amendment.

It grants the right to a trial by jury and the jury’s decision is final.

If a jury nullifies (and it is an acquittal) there is nothing a judge can do* (that I am aware of). Defendant goes free. Jury cannot be penalized or arrested for nullifying.

Nothing says they can’t so they can.

*IANAL but I do not think a judge can set aside a finding of not guilty by a jury and declare the defendant guilty…no matter how misguided the judge thinks the jury is.

[Oakminster]

@L. G. Butts

Your original statement that they need to follow the instructions they are given by the Judge is flat out wrong.

No, it isn’t. In fact, jurors swear an oath to follow the Judge’s instructions.

For Acid Lamp, a juror that feels that way should disclose as much during voir dire, and will likely be challenged for cause and then dismissed. A juror that lies about having such beliefs is guilty of perjury.

[Happy_Fun_Ball]

@Oakminster

No, it isn’t. In fact, jurors swear an oath to follow the Judge’s instructions.

For Acid Lamp, a juror that feels that way should disclose as much during voir dire, and will likely be challenged for cause and then dismissed. A juror that lies about having such beliefs is guilty of perjury.

Bullshit. I don’t remember reading anywhere in the Constitution about jurors having to swear an oath in order to be a member of a jury. From Wikipedia (I know, Wikipedia is lame, but I am at work and cannot give this debate my full effort):

In the United States, a federal juror’s oath usually states something to the effect of, “Do you and each of you solemnly swear that you will well and truly try and a true deliverance make between the United States and ______, the defendant at the bar, and a true verdict render according to the evidence, so help you God?” The oath leads some jurors to believe that they do not have a right to exercise jury nullification. Joseph Duane notes:[1]

A jury’s latitude to nullify is deliberately protected by the Constitution. Neither the tradition nor the wording of the oath administered to the jurors, on the other hand, is so dictated. In federal court it is not even prescribed by statute. It is simply an old tradition judges have made up. If the wording of the oath poses some conflict with the jury’s constitutional prerogative to nullify, it is clear which one must yield the right of way.

[Oakminster]

@L. G. Butts

From the 4th circuit decision U.S. v. Moylan:

Yet you ignore other parts of your own cite, including paragraphs 16-18:

T*he Supreme Court, in the landmark case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), affirmed the right and duty of the judge to instruct on the law, and since that case the issue has been settled for three-quarters of a century. Justice Harlan’s scholarly opinion traced the history of the rights of juries in criminal cases. He distinguished Brailsford as a civil case and therefore not controlling in criminal trials. Justice Harlan further deprecated that decision, going to the extreme of questioning whether it was in fact reported properly, since he doubted that Chief Justice Jay could ever have held such an opinion even in a civil case. The Justice concluded finally that
17

Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as, in their judgment, were applicable to the particular case being tried. * * *
18

But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. * * * We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.13
*

:rolleyes:

[Tilley]

>>A law that I feel is draconian, wrong, and not worth ruining someones life over.<<

Presumably you’d never be put into this position, because you’d be asked during the voir dire process, where jurors are selected for each particular case.

But the broader question is: Does the principle of jury nullification give you the “right” to not disclose this opinion when asked? Every juror has the “power” to vote in accord with his/her own conscience, regardless of the law or the instructions of the judge. Does he/she have this “right,” and does every accused have the “right” to have such jurors sitting in judgement of his case?

Juries are often referred to as “the conscience of the community.” This maxim undoubtedly acknowledges something more than just a fact-finding body, given the long history of “jury nullification” in American jurisprudential history, beginning with colonial America.

Judges and prosecutors don’t like this de facto power, but they’ve had to deal with it ever since John Peter Zenger.