Julian Heicklen’s Indictment and The Problem with Jury Nullification

Yesterday, I learned of a story published in the New York Times that I think bears some careful consideration. Since that article has been published, it’s garnered various media coverage including posts like this one from Simple Justice (with an included video and very good information regarding factual details of Mr. Heicklen’s case). The various articles out there are definitely worth a read but here’s my brief summary of what happened:

A retired Pennsylvania State University Professor of Chemistry has been indicted for handing out fliers encouraging jurors to disregard the law and instead decide cases based on conscience. Since 2009, the defendant Mr. Heicklen has stood outside of various courthouses handing these fliers to people walking by in the hopes that some of them might land in the hands of jurors.

This type of action in and of itself is a fairly easy case of protected free speech. The complicating factor for Mr. Heicklen is that his advocacy includes holding a sign with “Jury Info” written on it and answering questions people may have. He noted that sometimes people think he’s an official. As a result, the United States Attorney’s office has charged him with jury tampering under 18 U.S.C. § 1504 (1994). So the question is: what result?

My first inclination was to start to answer that question. I’d pulled up Lexis with the intent to do some research but I’ve changed my mind. The specific legal criterion is not what I want to focus on. Rather, I want to discuss the theory of jury nullification and why I think it’s unsupportable.

Jury Nullification is an approach to justice that essentially suggests that we as citizen-jurors should use our power to negate or nullify laws (and/or legal results) with which we disagree. In Mr. Heicklen’s case, this was probably driven by his beliefs regarding the illegality of marijuana, which he protested earlier in life by smoking it in public to make a statement (yes, he was arrested for said marijuana smoking).

The title or position of juror truly is a unique one. In some ways, jurors are imbued with a highly democratic power that perhaps outshines the right to vote in political elections. Rather than chose people to make decisions, the citizen him/herself does…it’s empowering. It could almost lead a person to believe they have the power as a juror to make decisions regarding the law itself.

But that’s not the case.

The idea of a trial by jury is nothing new; its history was already highly developed by the time Sir William Blackstone wrote his seminal treatise in the 1700s. As he puts it, “In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new invention…” 3 William Blackstone, Commentaries *349. The role of the jury has been fairly constant throughout the many hundred years it has been an institution. Namely, it seeks to make sure to promote fair evaluation of facts in trials. By dividing up who makes the findings of fact (the jury) and who makes findings of law (the judge), we promote what is essentially a system of checks and balances that seeks to ensure no one person can hijack the decision-making process.

Whether or not the jury actually achieves this theoretical division of labor is unclear. The practice of jury nullification would suggest that it does not. When jurors choose to disregard the law this means that they ignore what the judge instructs them and decide based on their own rationale. Accordingly, the legal decision-making process goes from being a joint endeavor to a unitary one. Now, just as the jury is not a new institution, this approach to justice has been around for some time. For example, contemporary legal scholar Nancy King advances the claim that jury nullification was a useful tool for allowing American colonists to “shield against British oppression before the Revolution.” Nancy J. King, The American Criminal Jury, 62 Law & Contemp. Probs. 41, 50 (1999).

In criminal trials, the usefulness or advantageousness of jury nullification lies almost exclusively on the side of a defendant. Because of the double-jeopardy clause in the fifth amendment, a defendant cannot be tried for the same crime twice. Thus, if (s)he is acquitted due to jury nullification, the government is barred from prosecuting again. However, if jury nullification leads to a conviction, the defendant always has the option of requesting a new trial or other relief on appeal. I’m less familiar with civil litigation so I can’t make any particular claims to how big of a role jury nullification plays in trials for damages.

Yet, regardless of whether the case is civil or criminal, the problem I see with jury nullification remains the same. When we condone jurors going outside the constraints of the laws they’re supposed to be bound by, it makes the laws themselves rather pointless…indeed, it makes the law-making process itself rather pointless. It doesn’t matter that jurors may only sometimes nullify law or that, when they do, it will be with good cause; regardless of their reason, they break the predictability and denigrate the reliability that the justice system provides. We have a justice system because we have decided as a nation that this is the best method for adjudicating disputes and righting wrongs. We have laws because we elect officials to represent and promote our interests. If we have disagreements with what our representatives do on our behalf, the proper course of action is not to put a rip in the garment of justice that those representatives sewed for us. No, the proper course of action is to get a new fabric maker. After all, what makes law successful is precisely that it is uniform and covers all of us. Putting a rip in that fabric does nothing but obfuscate the purpose of a justice system by which we are all bound.

Jury nullification may not seem that bad. Sometimes, when good people are in the defendant’s chair, it might even seem like the right thing to do. Yet it is a threat to the fairness of the legal system. The task of the juror is to evaluate evidence, weigh it, and determine if it satisfies a legal standard. It is not to play judge or lawmaker. Doing as such is beyond what’s asked of the juror and it’s wrong. When laws appear inappropriate, when upstanding people are facing criminal or civil liability, when seemingly-malicious cases are brought…well, these might also be wrongs. We might feel like these wrongs need to be made right. But, remember what your mother told you all because it’s especially true here: two wrongs don’t make a right.

-Zachary Cloud

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