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Jury Nullification Prosecutorial Abuse

Julian Heicklenby Jacob G. Hornberger

While the U.S. government was expressing outrage over attacks on freedom of speech at the hands of U.S.-supported dictators in the Middle East, the U.S. Justice Department was securing a federal grand jury indictment against a man named Julian Heicklen. The charge? The feds are charging Heicklen for handing out jury-nullification pamphlets to people who are entering the federal courthouse in New York City, including prospective jurors. The feds say that that’s “jury tampering.”

Is that ridiculous or what? What an excellent example of prosecutorial abuse.

What is the government trying to accomplish with its prosecution of Heicklen? It’s trying to prevent people like Heicklen from telling prospective jurors the truth about the power of the jury in criminal cases. For decades, federal judges have been lying to jurors about their power, and fully informed jury advocates like Heicklen have been exposing the lie. The prosecutors want the judges to be free to continue lying to jurors with impunity, and they’re hoping to accomplish that by putting people like Heicklen into jail and scaring everyone else into shutting up.

Thanks to our American ancestors who demanded passage of the Bill of Rights, people charged in federal criminal cases are entitled to a jury trial. If our ancestors had not insisted on the inclusion of that guarantee in the Sixth Amendment, it is a virtual certainty that Americans accused of federal crimes today would be having their guilt or innocence determined by federal judges, military tribunals, or national-security courts rather than by ordinary people chosen at random from the community.

The fact is that federal prosecutors and many federal judges hate jury trials. They think juries are dumb and certainly not as smart as those well-educated lawyers who serve privileged positions as federal prosecutors and federal judges. That’s the whole idea of those military tribunals at Guantanamo — to ensure that people who the feds are accusing of terrorism aren’t tried by dumb, ignorant American juries who might acquit them but instead by smart, intelligent judges with law degrees from state-approved law schools who are certain to arrive at the “correct” verdict — the one that prosecutors are seeking. Juries, after all, are unpredictable. Unlike many federal judges or military judges, jurors cannot always be counted on to do what federal prosecutors and many federal judges want them to do, which is automatically grant the prosecutors’ request to convict.

The heritage of trial by jury, which stretches back into centuries of resistance to tyranny at the hands of the British government, is that the jury is the final judge not only of the facts in the case but also of the law.

In other words, the jury in a criminal case has two powers. One is to determine whether there is sufficient evidence to warrant a finding beyond a reasonable doubt that the accused really is guilty. Everyone, including the prosecutors and the judge, agree that the jury has that power. With one exception, the jury’s verdict on guilt or innocent is final. If the jury acquits, there is nothing the prosecutor or the judge can do about it. The defendant must be released.

The exception to that rule came into existence after the 9/11 attacks. As part of its “war on terrorism,” the military, on orders of the commander in chief, now wields the superior power to ignore jury verdicts of acquittal in terrorism cases and to take the accused into indefinite military custody as an “enemy combatant.”

The other power the jury has is the power to judge the law itself. This is the power that drives federal prosecutors and federal judges batty. If the jury decides that the law is rotten, it has the power to acquit, even if the evidence establishes beyond a reasonable doubt that the defendant committed the act. If the jury acquits on that basis, every federal prosecutor and federal judge in the land knows that there is absolutely nothing they can do about it. Thanks to our ancestors, the jury’s verdict is final, no matter how angry or upset the prosecutor or judge might be.

Sometime during the late 1960s or early 1970s, federal prosecutors in my hometown of Laredo, Texas, were prosecuting a man for possession of marijuana with intent to distribute. The defendant took the witness stand and admitted to the offense, explaining that he did it because his family was desperately poor and just needed the money.

The jury felt sorry for the guy and knew that the federal judge was one of those judges who just mindlessly meted out maximum sentences to drug-law violators. The jury understood that given the judge’s mindset, probation would be out of the question. To return the man to his family, the jury knew that it had but one course of action: acquittal. After deliberating, the jury returned to the courtroom and handed its verdict of acquittal to the clerk, who handed it to the judge, who was stunned, angry, and outraged.

The federal judge screamed at the jury, telling them that they were the dumbest jurors who had ever served in his courtroom. He told them that their names would be stricken from the jury list and that they would never serve as jurors in federal court again.

But what mattered was that that was all the federal judge had the power to do. He could scream, yell, and insult all he wanted but he knew that at the end of his tirade, he had no other choice but to order the release of the defendant and the discharge of the jury. The jury’s verdict was final, regardless of the reason. The judge could not incarcerate the jury and it could not keep the defendant incarcerated.

The reason that this power — the power of the jury to judge the law — came into existence was so that juries would serve as a final bastion of conscience and morality as a society plunged into the darkness of tyranny. If the government enacted a law, for example, criminalizing the housing of Jews, a jury has the power to respond to the dictates of individual conscience by refusing to convict, no matter how much evidence of guilt is adduced.

For decades, federal prosecutors and federal judges have done their best to keep this power secret from jurors, even to the point of openly lying about it. In their final instructions to jurors, federal judges tell jurors that they have the power to judge only the facts of the case, not the law. It’s a lie. The judge knows full well that the jury also has the power to judge the law and there’s not a thing the judge or the prosecutor can do about it, except rail, scream, yell, insult, and throw a temper tantrum, just like that judge in Laredo did.

All that fully informed jury advocates like Julian Heicklen are doing is telling the jurors the truth about their powers, and the truth is that juries have the power to judge both the facts and the law in criminal cases. That’s what Heicklen is being prosecuted for — for not only exercising freedom of speech but also for speaking the truth. In the minds of federal prosecutors and federal judges, telling people the truth is the real crime. Let’s hope the jury in Heicklen’s case is fully informed as to its powers.

Jacob Hornberger is founder and president of The Future of Freedom Foundation.

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