Julian Heicklen and A Point Lost

It’s been about a month since I received the email from John Kindley.  John and I are not on the same political page, and have had some disagreements as a result.  But he knew a guy who needed help.

Critical Aside: When someone needs a hand, put aside whatever other differences you may have and do what you can to help.  We may argue and disagree in the blawgosphere, but what we do in real life affects real people.  It trumps whatever petty disagreements we have online.

Kindley wrote to me about the “nutty professor,” Julian Heicklen, who he came to know via his anarchist connections.  Heicklen needed help in my backyard, and Kindly asked whether I would be willing to do so.  His case and situation were clearly interesting, so I agreed to speak to him.  I awaited the call, which Kindly informed me was coming.  It didn’t come.  I waited.  Then Heicklen’s story appeared in the New York Times and people all over the blawgosphere are putting in their two cents.

This is what it’s all about .

There’s no doubt as to Heicklen’s sincerity about the significant of jury nullification, even if there’s a question as to the merit of his cause.  While few here would argue against the notion of jury nullification, the comments to  Eugene Volokh’s post offer a broad array of positions, showing that others disagree.  Some strongly.

Someone in the United States Attorney’s Office decided that Heicklen wasn’t getting the message that his political expression was unappreciated, and decided to arrest him for jury tampering, 18 USC §1504.

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Because the potential sentence is only six months, it’s a bench trial. The  indictment was wheeled to Judge Kimba Wood.  The AUSA is Rebecca Mermelstein.  This 78 year old, former Penn State chemistry professor, is defending himself.  An anecdote from the NYT story is illustrative.

“Mr. Heicklen?” the magistrate judge, Ronald L. Ellis, asked. “Mr. Heicklen? Is Mr. Heicklen awake?”

“I believe he is, your honor,” a prosecutor, Rebecca Mermelstein, said. “I think he’s choosing not to respond but is certainly capable of doing so.”

There was, in fact, nothing wrong with Mr. Heicklen, 78, who eventually opened his eyes and told the judge, “I’m exercising my Fifth Amendment right to remain silent.”

He certainly has the right to remain silent.  He certainly has the right to represent himself.  They do not work well together.  This is shaping up as a war of wills, and there appears little doubt that Julian Heicklen is a strong willed man.  But he’s in a room of strong-willed people, none of whom is likely to blink. 

My guess is that Preet Bharara, the United States Attorney for the Southern District of New York, decided it was time to teach Heicklen a lesson about what happens outside his courthouse, under the assumption that he would come to his senses with a bit of counsel, make appropriate apologies and be on his way with some supervision.  My guess is that Preet didn’t see the video.  Or Preet wasn’t told that Heicklen smoked marijuana publicly for the purpose of getting arrested to protest the law, even though he wouldn’t smoke pot otherwise. 

Now they have a problem on their hands, as Julian Heicklen is totally willing to martyr himself for the cause, and nobody over there, not Mermelstein, not Bharara and certainly not Judge Wood, wants to be the one to put a torch to his bonfire.  And nobody is going to back down.

I’m sure Preet assumed that the old professor would come to his senses, or have a lawyer who would persuade him to do so, seriously underestimating the strength of his beliefs and his dedication to his cause.  It doesn’t appear likely to happen, and all will find themselves backed into a corner.

There are spectacular issues arising from this case, both on the free speech side as well as the jury tampering side.  The problem is that Heicklen, in his zeal to remain true to his political beliefs, will be unable to let go of some minor battles (such as the right to remain silent) to focus on the war.  And even if he does, whether he will be capable of fighting the war, addressing the right to express his views on jury nullification, adequately. 

Ultimately, a huge issue may be at stake and yet never receive the attention it deserves.  Too many causes may muddle the message.  Too much politics may obscure the excellent arguments.  Too much hubris may force everyone in the courtroom to hold firm in their position to avoid the embarrassment of backing down and appearing weak or less than true to a belief. 

And Julian Heicklen is going to be the one to lose the war.  While he may not mind being a martyr to the cause, he will be sacrificing himself for nothing.  His point would be far better made by deciding not to fight battles on all fronts, but rather to focus on the big issue and deal with it properly. 

Julian Heicklen can, and should, win this case.  Preet Bharara, by now, realizes that he made a tactical error, but he’s stuck with an indictment. Judge Wood can’t be happy about what’s coming before her, and how she’s supposed to deal with a defendant who presents a controversial and troubling issue, but won’t or can’t defend himself. 

Regardless of whether you, or the courts, accept jury nullification as a legitimate legal position, and regardless of whether you, or the courts, believe that it conflicts with the court’s instructions to follow the law as charged, it remains unquestionably a legitimate political expression, protected by the First Amendment.  More to the point of the specific charge, jury tampering relates not to general speech, but to the exertion of improper influence in a particular case.  That’s not what happened here at all.

There have been many times over the past month that I’ve wanted to write about Julian Heicklen, but I couldn’t given that I was awaiting his call.  Now that his story is out, my silence no longer matters.  It’s now about the battle of one man, a true believer, against a system determined to shut him up and teach him a lesson.  Julian Heicklen should not fight this battle unarmed.

20 thoughts on “Julian Heicklen and A Point Lost

  1. Ahcuah

    I’m not a lawyer, so I was surprised to see that even for the Federal Government, there are criminal cases that use a bench trial (and for 6 months in jail!). I thought the Sixth Amendment said, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .”. Here in Ohio, despite Article 5 in their Bill of Rights, which says, “The right of trial by jury shall be inviolate . . .”, that has been interpreted as not applying to minor misdemeanors (a new meaning of the word “inviolate” that I was not previous aware of). But minor misdemeanors are only fines of up to $150 and no jail time. But up to six months of jail without a jury?

    It would, however, have been interesting to see a trial with a jury in which they tried to convict him of his actions regarding jury nullification without informing the jury itself about jury nullification.

  2. SHG

    I suspect that Heicklen thought he would have his day before a jury, offering a professorial lecture on freedom and the jury’s authority to nullify laws which it finds unjust.  It might have made for fascinating viewing, except it will never happen.  Kimba Wood will not likely be inclined to tolerate a lecture on the law.

  3. D-Day

    Can U say David and Goliath? Some people wait their entire lives for the chance of a lifetime, something they can really chew on and not let go: some way or somehow where they can make their mark. Am sorry to see you “triangulating” here. Thought you were better than that. Win or lose, the retired professor is a hero second to none.

  4. SHG

    I imagine this post is particularly close to your heart.  George S. Patton is attributed with the quote, “the object of war isn’t to die for your country, but make the other poor bastard die for his.”  If Julian Heicklen wants to serve his cause, he would be more effective by winning rather than losing as a slavishly principled martyr.

  5. D-Day

    That’s a great quote. Thank you for reminding us. Hey look, IANAL either; however this would seem to me to be an important case, even if it is a one-man band. Many defendants and/or plaintiffs are not the beneficiaries of their own cases, even if they win. Rosa Parks comes to mind. Roe in Roe v. Wade is another. The beneficiaries followed in their wake. Somebody has to take the first step.

    The judicial process often is seemingly divorced from real life as most of us know it. It helps to be an untrained, law-abiding citizen to fully understand this dichotomy.

    This Heicklen case rests in the hands of Judge Kimba Wood; and then of course there are the inevitable appeals, which may or may not be walk-throughs. I’d certainly like to see Rebecca Mermelstein turned into a stone mermaid. That would suit me just fine, and I don’t even know the lady. But I’ve known a few prosecutors in my day,… not my favorite people on the planet.

    Hopefully, the judge makes short-shrift of this false arrest and malicious, ill-conceived prosecution.

  6. SHG

    Fair enough.  But it’s not up to the judge to be Heicklen’s advocate, so he (or his advocate) will have to hold up his end in an adverary system.

  7. Rick Horowitz

    There are many interesting aspects to this story, particularly the ones that highlight the point that the United States government does not follow its own laws.

    But I wonder about the last point you made, Scott, that “he (or his advocate) will have to hold up his end in an adversary system.”

    In California, we have a motion which can be made at the end of the presentation of the prosecution’s evidence. The motion can be made by the defense, or — and this is the important part here, if there is such a law applicable in the Heicklen’s case — on the court’s own motion.

    In essence, what that law (in CA, it’s Pen. Code 1118) states is that if the evidence won’t support the charge, the court enters a judgment of acquittal. The defense need not put on any evidence where the government has not presented enough evidence to overcome the “beyond a reasonable doubt” standard.

    From what you said — and I agree — the jury tampering charge is inapplicable under the facts of this case.

    If a law analogous to what I cited above exists, the court may, can and should do the right thing and acquit, even if Heicklen remains silent.

  8. SHG

    What makes me a lawyer is that I actually fight to try to make that happen.

    Why bother if it’s so obvious that a judge will do the job for you?  No need for lawyers since we have judges who should apply the law the way you think it should be applied.

  9. Rick Horowitz

    I know you don’t allow links here, so I won’t post any, but your comments inspired my latest blog article.

    Also, regarding the incident about which you wrote, did you notice the arrest of the guy who tried filming it?

  10. Martin Budden

    You say “And Julian Heicklen is going to be the one to lose the war.”

    That statement presumes you know what war Heicklen is fighting. It’s unclear to me what he would regard as a positive outcome from the affair, and so it is unclear as to whether he will lose. For example, his aim may be to make as many Americans as possible aware of the right to jury nullification, even at the price of going to jail.

    You also say “he will be sacrificing himself for nothing.” Well he has made at least one Brit (myself) read up and inform himself about jury nullification. How many Americans are also better informed as a result of his actions?

    It’s unclear to me what

  11. SHG

    While it’s unclear how his conviction and incarceration will let more people learn about nullification than winning at trial, you are quite right that I don’t know that Heicklen doesn’t want to be convicted and incarcerated.  But if he thinks it’s worthwhile to go to jail so that one Brit learns about something that almost every reader here is already familiar with, then the issue isn’t advocacy but competence.

  12. Martin Budden

    You have disingenuously taken my figurative comment as a literal one. Heicklen’s target audience is not the set of your readers, or even the set of people who read legal blogs. It’s the set of people who don’t know about jury nullification. There is an argument that he will get more publicity if he goes to jail than if he doesn’t.

    I’m not saying Heicklen’s tactics are intelligent, merely that without a clear knowledge of what he is trying to achieve it is premature to say he is sacrificing himself for nothing.

    By the way, I found your comment “He certainly has the right to remain silent. He certainly has the right to represent himself. They do not work well together.” extremely amusing.

  13. SHG

    If Heicklen stood in the square in front of 500 Pearl Street, poured gasoline over his head and self-immolated, chances are he would garner even more attention.  He would also be in great pain, and would likely die.  And it’s not an idea I plan to promote as a valid option to make a point about jury nullification, even if someone else thinks so.

  14. Martin Budden

    You are caricaturing my position. I’m not suggesting self-immolation as a reasonable option for Heicklen. I’m not even suggesting that deliberately trying to to get arrested and sent to jail is a reasonable option. (I did say there was an argument that he would get more publicity going to jail – but the statement of the existence of an argument is not a statement of agreement with that argument.)

    What I am saying is that, without knowing Heicklen’s motives, values and goals, we cannot say whether he will lose (since, for example, we do not know whether he would consider being sent to jail a win or a loss), or whether his sacrifice is worth it (since we don’t what price he puts on freedom and what price he puts on publicity).

  15. SHG

    You’ve made your point three times now, and it’s no better the last than the first.  We got it. Thanks for playing.


    Is it just me or is the US looking more like the USSR every day ?

    It’s probably because I remain as naive as Rick Horowitz, despite your best (and very much appreciated)efforts to scrape the scales from my eyes.

  17. Jeff_Davis

    In my state of South Carolina, I could get a jury trial for anything at all. I went to court a few years ago to contest a $90 fine for letting my dog loose and the judge offered me a jury trial or a bench trial (I took the bench trial and won). So the idea that you aren’t entitled to a jury when you’re facing six months in jail is just ludicrous, not to mention appallingly unconstitutional.

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