“A shabby old man distributing his silly leaflets from the sidewalk outside a courthouse”

And that’s his defense lawyer talking. No wonder he’s gone pro se.

Julian Heicklen, an 80-year old retired chemistry professor, looks shabby only because he keeps getting  pummeled by U.S. Marshals for handing out leaflets informing jurors of their historic right to acquit in the interest of justice.

Ever vigilant in safeguarding their right to punish ideas they don’t like, the federal prosecutors sent a wired undercover officer disguised as a passerby to talk to him as he stood outside the Southern District of New York courthouse in Manhattan. And for once, we’re not making this up. The following is taken verbatim from the prosecution brief (“available” through the SDNY’s fiendishly user-hostile website):

Heicklen: (handing the undercover a leaflet) Would you like jury information? Find out what you [inaudible]

Agent: I’m a juror, I got picked yesterday.

Heicklen: Oh good, that’ll be good for you to know. Take it home and read this. Thank you very much.

Agent: What’s jury nullification?

Heicklen: The jury has the right to judge the law as well as the facts. The judge will tell you otherwise, but there are several Supreme Court decisions which said that that was true. In other words, if you think the law is unjust you can find a person innocent. . . I‘m not telling you to find anybody not guilty, there should be a reason for it. But if there is a law you think is wrong, then you should do that. And you will be in very good company.

Heicklen then launches into the story of how a jury refused to convict William Penn of being a Quaker and acquitted John Peter Zenger of publishing a newspaper critical of the King.  Other than the laws against being a Quaker or criticizing the King, Heicklen doesn’t mention any law that this “juror” should nullify, let alone ask what kind of case she’s on. The “juror,” who can’t get away fast enough from this bo-rrrring history lesson, answers, “Ok, thank you,” and scurries back to Police Plaza.

For this, Mr. Heicklen is charged with jury tampering, defined as attempting to influence a juror “on an issue and matter before such juror.” Suppose he’d advised her not to spit on the floor during the judge’s charge. Would that have been jury tampering too?

The prosecution argues that Mr. Heicklen is advocating a crime (so no First Amendment protection), without the silly detail of showing what statute makes jury nullification a crime.  All they can say is that judges don’t like it. Well, boo hoo.

With dire warnings of what jury nullification can lead to, the prosecution trots out the acquittal of murderers of civil rights activists in the South (but not the acquittal of the cops in the Rodney King, Diallo or Louima trials) .  Of course those acquittals had nothing to do with how the prosecution handled those cases.

Naturally, the prosecution bitterly opposes a jury trial for Mr. Heicklen. What, they can’t find 12 people in Manhattan willing to throw him in jail for talking about William Penn?

But although this terrible threat to the System has been dragged off the streets, you can still find lots of seditious information at  Fully Informed Jury Association