I love jury nullification. It’s one of those things that makes being a criminal defense lawyer a lot of fun. It is a time when ordinary citizens can take charge of a proceeding and let their views, their opinions, and their sensibilities override the law, when necessary.
Of course, let’s not forget that all good things can turn into bad things, depending on your perspective. Plus, whether something is good or bad depends largely on the palate of the individual tasting it.
Nonetheless, I like jury nullification. It is a tool that a CDL can use if the circumstances and facts warrant it. Let me say that again: it is a tool. Not all tools are useful all the time. We use them when they are necessary. At the same time, I think it is also useful if ordinary citizens are aware of the various tools available to them when discharging their civic duties.
Sure, jury nullification is distasteful to some. They want to limit the scope of jury discretion to just the facts and whether those facts fit neatly into the applicable laws. I understand those arguments. I don’t agree, but I understand. My point is that we call for juries to give both the facts and laws a sanity-check, and do what they believe is right under all the circumstances. If it were merely a matter of fitting facts to law, then we’d place a specially-trained computer in the jury box and see what it spits-out after each side has a turn at the keyboard.
Enter Julian Heicklen, a 79-year-old professor (emeritus) of chemistry at Penn State. He made the news some time ago for distributing pamphlets federal courthouse steps in New York. The pamphlets were an attempt to educate the reader about the concept of jury nullification and to use it when necessary. To my knowledge, he acted alone and had no groupies or posse. He is the epitome’ of grass roots. Just Julian, standing in front of a courthouse with a bag full of pamphlets.
Now, he stands accused of a crime. What crime? Jury tampering. Federal prosecutors say he was specifically targeting those called to jury duty. He says he wasn’t.
Frankly, I believe what he did is protected free speech. He was making a point about our justice system in front of a symbolically appropriate government building. Shockingly, I even saw a Fox News commentator agree with me, and if a Fox News commentator is siding with a protestor, that says something.
So, he is accused of a misdemeanor and awaits trial. Because it is a misdemeanor, he lacks some of the protections afforded to those charged with felonies.
Here’s where the problem begins. He is appearing pro se. That is, he represents himself. I’m sure he has some folks out there advising him on courses of action. I’m not sure they are acting in his best interests.
He sent a press release widely across the internet. Attached was an email he sent to his public defender advisor:
This case is now 15 months old, and absolutely nothing has been done. We have not even received a Bill of Particulars. No surprise. Assistant U. S. Attorney Marmelstein does not have a single witness. She lied to a grand jury. She has no case. She even admits that jury nullification is legal, but claims that jurors must not be so informed. The inmates are running the asylum.
Time Magazine just ran a cover story on U. S. Attorney Preet Bharara, lauding him for his 57–0 victory string in the Southern District of NY. Anyone with that score is either handling only softball cases, or is in criminal collusion with the court. It is time that he be exposed for the fraud that he is. I had written to both Attorney General Eric Holder and President Barack Obama asking for his removal from office. They ignored my requests. It is time that both he and his staff be exposed as the criminals that they are.
I have been denied a speedy trial. I have been denied a jury trial. The judge has a vested interest in the case and is in collusion with the prosecution. I asked that she be recused, but she has refused. She cannot be impartial. I had already sent her a letter informing her of my intense hatred of her, and that she and her colleagues have destroyed my country.
Their strategy is to drag this case on and on, in order to keep me under indictment, in the hope that it will deter me and others from exercising their First Amendment rights.
They will never bring this case to trial. I have had enough. From now on, I will make the rules or inform the court that the charges are dismissed and the case terminated. One way or another, this case will be out of the control of the District Court in a few months. It will either have been dismissed (by me if necessary) or be in appeal.
Enough already. The shit has hit the fan.
Yours in freedom and justice—Julian
There is nothing wrong with this letter (except that it was published by him for public consumption). It is a typical client letter. It conveys emotion and frustration. We expect this from clients, and it is where we excel as attorneys because we cut-through the emotion, hyperbole, and tangential distractions and focus on the task-at-hand. We educate and advocate, one client at a time.
The press release also included this letter to the judge and opposing counsel.
This is not the product of enlightened thinking regarding our justice system. It constitutes haphazard flailing that will not result in anything productive, meaningful, or helpful. It validates what everyone says about representing yourself.
Julian has a great case. He has a great shot at succeeding. The issues are wonderful and colorful, and they deserve to be advocated by a capable and competent lawyer. The issues deserve this, and Julian deserves this.
Unfortunately, his pro se advocacy hurts his case. By extension, it hurts what he advocates.
He stands to benefit by hiring a good lawyer. A good lawyer is not one who will nod and agree with all of his client’s assertions. A good lawyer is one who will analyze the evidence and facts, spot issues, and formulate a sold game plan using legal reasoning and logical principles. They will eschew emotion and focus dispassionately on how to pave a path for Julian to walk confidently out of the courthouse as a free man.
If he beats the rap, Julian receives a huge feather to put in his cap. His position in favor of educating the public on jury nullification becomes more solid.
Conversely, if he fails through a defense that is sloppy and unfocused, the general consensus will be that he was a senile alchemist with a burr under his saddle about jury duty. That doesn’t help his case, and it won’t help his cause.
His advocacy has the potential of, even on a small level, helping courtroom advocates in achieving a fair result for their clients. But, before he can help further, he must enlist their help.
Pick up the phone, Julian. Call a competent federal CDL who practices in your courthouse. Don’t hire the one who makes you happy or says “yes” to everything you say. Hire the one who has the best game plan for getting you out of this pickle.