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.
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.
“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.”
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.