NEW YORK, March 21 (Reuters) - A U.S. judge said on
Wednesday that advocating for jury nullification could pose a
threat to the judicial system, particularly if it takes place
close to potential jurors.
U.S. District Judge Kimba Wood made the comments in the case
of Julian Heicklen, of Teaneck, New Jersey, a retired, 80-year
old chemistry professor who was charged and arrested after
distributing pamphlets advocating jury nullification outside
federal court in Manhattan.
The pamphlets called on potential jurors to follow their
conscience in returning a verdict, and urged them to find a
defendant not-guilty if they disagreed with the law in question
or the government's conduct in the case.
"Juries were instituted to protect citizens from the tyranny
of government," said one pamphlet, submitted by the defense as
part of a brief. "It is not the duty of the jury to uphold the
law. It is the jury's duty to see that justice is done."
In defending Heicklen, attorney Steven Statsinger told the
court that jury nullification "really is not a serious threat to
the integrity of the system."
"I disagree with that," responded Judge Wood, who brought up
the possibility of jurors voting to acquit a person based on
ideological beliefs, such as "pro-life protesters who believe
that it should be lawful to kill an abortion provider, an eye
for an eye, a life for a life."
Heicklen, who is representing himself with the aide of
Statsinger, is charged with one count of jury tampering, which
carries up to six months in prison.
Prosecutors say that jury nullification is unlawful, and
that by encouraging it, Heicklen was undermining the good
functioning of the court system.
Prosecutors also argue that Heicklen could not claim free
speech protection because he was handing out pamphlets on
federal property -- the plaza at the 500 Pearl Street entrance
of the Manhattan Federal Courthouse -- and was specifically
targeting potential jurors.
"The thing here that is so troubling to the government is
that the message... undermines the fundamental fairness of our
system," Assistant U.S. Attorney Rebecca Mermelstein said at
Wednesday's hearing. "If a person is on the steps of a
courthouse and is trying to influence jurors, that is a crime."
Mermelstein conceded that if Heicklen was "further from the
courthouse, the less likely he is to be violating the statute."
Statsinger responded that the plaza in question was a public
forum where "expressive activity" routinely takes place and that
Heicklen's activity was "pure advocacy" not aimed at any
particular juror or trial.
The case is U.S. v. Julian Heicklen, U.S. District Court for
the Southern District of New York, No. 10-1154.
For the government: Assistant U.S. Attorney Rebecca
For Heicklen: Heicklen is representing himself and is
assisted by Sabrina Shroff and Steven Statsinger of the Federal
Defenders of New York.
(Reporting By Basil Katz)
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