Former Rochester resident advocates jury nullification

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Julian Heicklen, a retired Penn State University professor and former Rochester resident,  faces up to six months imprisonment on jury tampering charges filed by the U.S. Attorney’s Office last year.

Prosecutors for the Southern District of New York U.S. Attorney’s Office alleged in a November 2010 indictment that Heicklen, 79, “attempted to  influence the actions and decisions” of U.S. District Court, SDNY jurors by distributing pamphlets and urging jury nullification in front of the court’s entrance.

Reached at his home in Teaneck, N.J., where he was preparing a pro se response to a prosecution brief, Heicklen said the issue of “informing juries of their right to judge the law as they see fit and disregard a judge’s instructions” is the crux of “one of the most important cases of the decade.

“They claim I was tampering with a juror, but I didn’t talk to any jurors,” he said. “Undercover agents posed as jurors.”

Prosecutors claimed last week that Heicklen’s actions showed he had the intent to target jurors in violation of federal jury tampering law.

“I agree you shouldn’t be talking to jurors in the courtroom,” Heicklen explained.

He maintains however, that he was on the sidewalk in the plaza in front of the court, which is a public forum.

Christopher Dunn, associate legal director of the New York Civil Liberties Union said Heicklen’s “sidewalk advocacy supporting jury nullification” is protected free speech and not a criminal act.

“Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment,” he said.

Prosecutors told The New York Times last week the courthouse plaza is not like a public park or thoroughfare. Heicklen has a long history of jury nullification activism, having distributed pamphlets and materials outside of courtrooms for years in numerous locations.

In addition to jury nullification, Heicklen said “morality laws” such as criminal penalties for marijuana, gambling and prostitution should be eliminated. He said judges often get the law wrong when instructing a jury and jurors should not have to rely on their instructions to come to a decision. Instead, they should be given the written law and a copy of the federal and state constitution.

Ironically, his case will not be decided by a jury in Judge Kimba Wood’s courtroom.

“They don’t want me to explain jury nullification to a jury,” he said.

As Rochester criminal defense attorney Brian Shiffrin explained, jurors are human and could conceivably decide to acquit even when the facts establish guilt in emotional situations — but it’s not an option they’re supposed to have.

“[Jury nullification] is a recognizable concept but courts don’t permit it,” Shiffrin said. “Jurors are only supposed to consider the law as given in the judge’s instructions. To have someone outside of the courtroom influencing jurors arguably skews the system.”

Heicklen disagrees. “The jury has the right to judge both the law as well as the fact in controversy,” he said, citing the nation’s first Supreme Court Justice, John Jay.

Heicklen, a self-described “dedicated Libertarian,” ran unsuccessfully for Pennsylvania attorney general and the New Jersey Assembly.

“I got started in activism in high school in Rochester,” he said. “My uncle gave me a copy of the Constitution and it changed my life forever.”

After graduating from Monroe High School, Heicklen attended Cornell University and returned to get his doctorate in chemistry at the University of Rochester before beginning his teaching career.

Heicklen said he does not expect his case to be dismissed by Judge Wood despite his motions to do so.

“If this case is won, it’ll be in the court of public opinion,” he said.