Posted by
Federal prosecutors are pressing their case against Julian Heicklen,
the elderly man who distributed pamphlets about jury nullification. A
lot of things are said about jury nullification and much of it is
inaccurate. But whatever one’s view happens to be on that subject, I
would have thought that the idea of talking about (and that includes
advocating) jury nullification would be a fairly simple matter of free
speech. We now know that the feds see the matter very
differently. (FWIW, my own view is that in criminal cases jury
nullification is part and parcel of what a jury trial is all about.)
In response to Julian Heicklen’s motion to dismiss his indictment on
First Amendment grounds, federal attorneys have filed a response with
the court. Here is the federal government’s position: “[T]he
defendant’s advocacy of jury nullification, directed as it is to jurors,
would be both criminal and without Constitutional protections no matter where it occurred”
[emphasis added]. This is really astonishing. A talk radio host is
subject to arrest for saying something like, “Let me tell you all what I
think. Jurors should vote their conscience!” Newspaper columnists and
bloggers subject to arrest too?
If Heicklen had been distributing flyers that said, “I Love
Prosecutors. Criminals Have No Rights!” there would not have been any
“investigation” and tape recording from an undercover agent. Any
complaint lodged by a public defender would have been scoffed at.
First Amendment experts will know more than I about the significance
of the “plaza” outside the courthouse and whether or not that’s a public
forum under Supreme Court precedents. The feds make much of the fact
that the plaza is government property. Well, so is the Washington
mall, but protesters have been seen there from time to time. The plaza,
however, is not the key issue. Activists like Heicklen would simply
move 10-20 yards further away (whatever the situation may be) and the
prosecutors seem determined to harass them all the way back into their
homes, and even there if they blog, send an email, post a comment on a
web site, text, tweet, or use a phone to communicate with others. After
all, so many people are potential jurors.
Judges and prosecutors already take steps to exclude persons who know
about jury nullification from actual service. And the standard set of
jury instructions says that jurors must “apply the law in the case
whether they like it or not.” But the prosecution of Heicklen shows
that the government wants to expand its power far beyond the courthouse
and outlaw pamphleteering and speech on a controversial subject. Once
again the government is trying to go over, around, and right through the
Constitution.
For previous coverage and additional info, go here, here, and here.
No comments:
Post a Comment