Wednesday, November 30, 2011

Yes, the feds have created a tyrannical prosecutorial state

When I was in journalism school about 40 years ago, I learned about the early American journalist John Peter Zenger, who was acquitted of criminal libel in 1735 by a jury in Philadelphia. It was clear that Zenger had broken the law -- although a law that would be considered tyrannical -- but jurors decided to acquit him anyway to show their displeasure with the law and with the authorities that brought the charges.

The principle was jury nullification, and it has served Americans well for centuries. Juries in the North refused to convict people under the awful Fugitive Slave Law, and juries have nullified when they believed prosecutors were hounding someone for no good reason.

(Unfortunately, juries also have nullified for bad reasons such as the not guilty verdicts in the South during the Civil Rights Era when whites were accused of murdering blacks. Likewise, juries in Herrin, Illinois, refused to convict union workers who executed 22 non-union workers during a coal strike in 1922.)

Jury nullification, while controversial, IS legal but federal prosecutors in New York City now are going after a man who publicly endorses the practice by charging him with crimes and trying to imprison him. Like always, the feds demonstrate beyond a doubt that they are bullies that despise the Constitution and our rights.

The feds have charged Julian P. Heicklen, a 79-year-old retired chemistry professor from Penn State University, claiming he is violating laws against jury tampering. I must admit that this is a "creative" interpretation of the law that was written to keep people with vested interests in the outcome of a verdict from bribing or threatening jurors to vote in a certain way.

Heicklen has done nothing of the sort, but that does not stop federal prosecutors from trying to stretch the law into oblivion. One would hope that Judge Kimba Wood, who is hearing the case, will dismiss it, but Wood demonstrated without a doubt 20 years ago when sentencing Michael Milken for a series of non-crimes that she did not understand the law. Thus, I must admit I have no confidence in Wood doing anything but bow down to the will of federal prosecutors.

According to the New York Times, the activity in which Heicklen was involved consisted of standing
...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.
He has not dealt with jurors individually nor has he tried to influence them in any particular case, which is exactly what the jury tampering laws were supposed to prohibit. By charging Heicklen, however, the feds are moving into new legal territory, yet another "creative legal theory" that federal prosecutors have loosed upon this country as they seek to criminalize legal behavior.

The federal prosecutors clearly are making things up as they go along. The NYT writes:
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.”
Not only do federal prosecutors want to deny this man his right of free speech, but they also are seeking to deny him a jury trial:
Mr. Heicklen, who could face a six-month sentence if convicted, has asked for a jury trial. Ms. (Rebecca) Mermelstein (the lead federal prosecutor), 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.
In other words, Heicklen should be denied his right to trial by jury because (horrors) a jury might acquit him. If the feds cannot have the results they want, then the Constitution and the very Rule of Law should be abandoned so that prosecutors can win.

The problem in this country is NOT jury nullification. No, the real problem is that juries too often are willing to defer to prosecutors because they believe that is what they are supposed to be doing, or they reach verdicts out of convenience.

When juries use their right of nullification to deal with what they believe to be a wrongful or malicious prosecution, they do so out of a sense of principle and belief in a Higher Law. That federal prosecutors are trying to destroy that right tells us that nothing scares the feds more than decent Americans acting out of the sense of right and wrong that government employees in the "justice" system abandoned long ago.

In American "justice," principle and right and wrong is seen as a foreign object in the bloodstream, something that government demands be eradicated at all costs. In the Heicklen case, we get a sense that prosecutors today are so emboldened and so protected that they will openly advocate people have their rights taken away -- in the name of "doing justice," of course.


AGSCalabrese said...

Do you have a snailmail address for these prosecutors ? I would like to send them some fan mail..... ha hahhahaha


justiceseeker51 said...

Off topic...but wanted you to see:)....

Sexting Former Wisconsin DA Accused Of Sexual Harrassment By State Agency

former Wisconsin District Attorney Kenneth Kratz

Anonymous said...

What is hilarious is that they will have to allow the jury to see his brochures as evidence. Would be a great thing if he was acquitted by those means.

Anonymous said...

What's really hilarious is that Heicklen wouldn't even be asking for nullification if he asked the jury to acquit. What law would they be nullifying? It's not like he'd be asking them to disregard the tampering law--he'd just be saying, "Look, passing out literature in front of your courthouse isn't tampering, duh." Ticking off a US Attorney? That's not an actual law.

Anonymous said...

“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.”

How ironic, therein lies the entire purpose and principle behind jury nullification in the first place. Either they just don't get it... Or maybe they do.

Anonymous said...

Courts have ruled that jurors have the RIGHT to disregard a law. Courts also have ruled that a defendant doesnt have a right to tell the jurors about nullification. The traditional remedy is striking the juror who is tainted, or if the statement is infective, a mistrial - NOT a criminal charge of tampering. This guy speaking his mind on a street corner about nullification, as long as he is not tampering with an actual juror, is speaking to EVERY potential juror there is. There is tons of literature about nullification on the internet and in libraries. Since that is available to every potential juror, should that be a crime too? I really cant beleive they did this. This is criminalization of free speech or the constitutionally prohibited practice of PRIOR RESTRAINT.

Anonymous said...

“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.”

You can't give every individual that option - that's reserved for Federal Prosecutors!

newworldview said...

For what it's worth, the New Jersey State Bar Foundation's Educational Guide for Trial Jurors refers those interested in learning more about the role of juries to read several books, including Spooner's An Essay on the Trial by Jury (pdf page 14). [Spooner, for readers who don't know, advocated jury nullification.]

Is it possible there's a similar endorsement tucked away somewhere in NY that may help Mr. Heicklen's case?

Anonymous said...

Legally change your middle name to "Juries_have_the_right_to_judge_both_the_facts_and_the_law." Then make sure your lawyer has your full name placed on the docket so to "properly" idenfify yourself to the jury (;P)!!!

dc.sunsets said...
This comment has been removed by the author.
Richard said...

It sure is a PITA posting this to facebook... I thought blogger had sharing tools embedded?

Tatiana Covington said...

I am free. Thus I have the right to overrule any law, any vote, any decision, including those of juries.

Further, I have never consented to be governed. Thus anything and everything is illegitimate!

John C. Randolph said...

When a person serves on a Jury, they are directly exercising the people's sovereign power, which is only delegated to the judge and the prosecutor. By right, and by law, the jury stands superior in power to any government official in deciding the justice of convicting or punishing the accused. Any official seeking to usurp the power of the jury should be dismissed from any position of public trust, and forever barred from practicing law in the United States.


doublenickel said...

Just wondering--isn't there any way we can go after these lowlifes? Is federal employement carte blanche to do anything you want to anybody with impunity? (Speaking of impunity! THEY are the ones who introduced this very term to the conversation!) I mean something more than just loss of their tax-feeding positions, in the very worst possible case. Can't we do to them something like they intend to do to this defendant, for instance? Just wondering.

Chris Sullivan said...

This doesn't really surprise me. Back in 1993, I and several others went down to the federal courthouse in Atlanta and passed out Fully Informed Jury Association literature.

A week or two before this, another group had gone down and done the same thing, but when Judge William O'Kelly found out that some of the jurors had gotten the FIJA lit, he sent the whole panel home. The feds came out and confronted the group which was on the courthouse property, but nothing really happened.

When we went back, we made sure that none of us were actually on federal property, but some officials of some kind came out with a big thick law book about like Black's Law Dictionary and flipped through it looking for something they could charge us with. Nothing happened, but not because they weren't trying.

In the state of Georgia, the jury is told (or at least it used to be, I don't know if it still is) that it has the power to ignore the law, but it is read in such a perfunctory manner that nobody understands what they are being told. The judge reads a long charge which contains(ed) the phrase, "...and the jury is the judge of the law and the facts..."blah, blah ,blah. Nobody is told what that means and I'm sure the federal courts didn't do that since it's a state law.

Gordo said...

For more than six hundred years, that is, since Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws. Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of liberty”, a barrier against the tyranny and oppression of the government, they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed. Lysander Spooner 1852

Les Elliott said...

“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.”

This is precisely what needs to happen. We need a completely private legal system, not one that is designed to protect the state at the expense of the citizens.

In fact, we need an end to the state.

Tomás Estrada-Palma said...

Why wasn't I arrested? I handed out jury nullification pamphlets for 6 months straight at the Rockville, MD courthouse and I was not arrested. The truth is the politicians are filthy unamerican scum who will have to be overthrown.

Anonymous said...

Jury Nullification is a crucially
important weapon in our fight with
these craven, crazed fascists.

In short, Juries are ABOVE the judge,
and are free to decide any case on
which they sit any way they see fit,
and may, and should, ignore any, and
all, 'instructions' from 'The Bench'.

They may, likewise, ignore all of
the "laws" in existence.

liberranter said...

Not that I miss reading their verbal vomitus, but I wonder what happened to all the little prosecutorial trolltards who used to "hit and run" on this blog during the Tonya Craft trial? Why aren't they out here now, front and center, defending the system to which they're in such complete thrall?

Doc Ellis 124 said...

Greetings Dr Anderson


Thank you for writing this essay

Doc Ellis 124

Anonymous said...

That's nothing. Wait till they get the idea that a juror in the jury room arguing against the prosecution's case constitutes "jury tampering."

William L. Anderson said...

To the 10:57,

I was wondering the same thing yesterday, and then I read your comment.

Now, the feds will ignore fraud when it works in their favor. For example, at least one of the jurors in the Martha Stewart trial lied on the jury form so that he could be a juror because from the beginning, he wanted to stick it to her. The judge in the trial said this was OK, or at least did not raise any questions after it was pointed out to her after the trial.

As long as things go their way, prosecutors are happy, no matter how often they and their allies break the law.

liberranter said...

The judge in the trial said th[e fact that a juror lied on the jury selection form] was OK, or at least did not raise any questions after it was pointed out to her after the trial.

Not at all surprising, given that judges, particularly federal judges, have become nothing but auxiliary prosecutors.

Anonymous said...

@Anonymous posted: "In short, Juries are ABOVE the judge..."

In fact, juries are above the law, which is a necessary condition of their ability to disregard it. A jury represents the people, who are the source of the authority of the government's laws and therefore not bound by them.

Anonymous said...

This coverage from last year gives a good idea of what devolution the Statist food-chain has undergone.

Anonymous said...

Liberranter, they're all having grits for breakfast! ;D