Redefining “Jury Tampering”?

What does a man who attempted to pay a juror $2,500 for a “not guilty” verdict have in common with a 79 year old retired college professor who handed out information on jury nullification to people entering a court house? This is not a trick question, both men have been charged with “jury tampering.”

Julian Heicklen was indicted of jury tampering last year and now faces federal charges. Heicklen, a 79-year-old retired chemistry professor, has often stood outside various courthouses holding a “Jury Info” sign and handing out brochures that inform jurors of their rights. During his indictment, Heicklen insisted that he never tries to influence specific jurors or cases, and instead gives his brochures to passers-by, hoping that jurors are among them. Prosecutors allege that Heicklen was targeting prospective jurors and cite a recorded conversation in which he told an undercover agent posing as a passer-by, “I’m not telling you to find anybody not guilty, but, if there is a law you think is wrong then you should do that.”

Heicklen contends that his action is protected speech under the First Amendment. While the prosecution claims Heicklen’s speech is not protected by the First Amendment and that “no legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

The New York Times reports that Rebecca Mermelstein, one of the prosecutors, “noted that historically, jury nullification had at times produced just results, like acquittals by Northern juries in prosecutions under the fugitive slave laws. But more frequently, nullification was used to frustrate justice, she added, citing hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of the civil rights leader Medgar Evers the previous year.”

Heicklen says, “I don’t want them to nullify the murder laws. I’m a big law-and-order guy when it comes to real crime.” However, there were other laws he wants nullified, like drug and gambling laws, those without a real victim.

Not surprisingly, Julian Heicklen has requested a jury trial, the prosecution is opposing that demand and cited Mr. Heicklen’s ardent stance that juries should nullify, as one of the reasons. The prosecution also claims, he would probably urge a jury to do so in a case against him.

If he is granted a jury trial, the question becomes: will Heicklen be allowed to explain to the jury how informing them of their rights to nullify bad laws is not jury tampering?