an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As the New York Times reports, the federal government has indicted Julian Heicklen on one count of jury tampering in connection with his distribution outside the federal courthouse in lower Manhattan of pamphlets advocating that jurors refuse to apply laws with which they disagree. In the days when jurors played a greater role in interpreting statutes, nullification was an available tool for reining in overreaching government actors. Today, of course, judges instruct jurors that they must follow the law as the judge provides it. As a practical matter, though, there is little that can be done to remedy a verdict that is based on the jury's belief that the law they are asked to apply is unjust. Heicklen is charged under 18 USC s 1504, which provides:
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.
Heicklen's case is far from the usual section 1504 case in which somebody tries to reach a juror to influence the juror's vote in a specific case. The government faces several hurdles in prosecuting Heicklen.
First, as the statute makes clear, there needs to be an actual juror Heicklen attempted to influence. The indictment charges that Heicklen "attempted to influence the actions of a grand and petit juror of . . . the United States District Court for the Southern District of New York, upon an issue and matter pending before such juror, and before a jury of which he was a member, and pertaining to his duties, by writing and sending to him a written communication in relation to such issue or matter." In other words, the government says that it has somebody who at the time he received one of Heicklen's pamphlets was serving as a juror in the SDNY. We'll have to wait to see who that juror is and the circumstances under which he received Heicklen's pamphlet.
The second hurdle the government faces is that the statute requires that Heicklen have written or sent to the juror a communication relating to a matter before the jury. It's not at all clear that handing out a pamphlet advocating that jurors vote their conscience constitutes sending a juror a communication relating to the matter the juror is deciding. The indictment states only that Heicklen "distributed pamphlets." There is no indication that Heicklen targeted individual jurors or thrust the information into their hands, or that the pamphlets contained anything more than general information about jury service.
The third hurdle to convicting Heicklen is the most intriguing. Presumably, Heicklen will go to trial. At trial, he will have ample opportunity to explain to his jury what he was doing and why. That jury might well view the prosecution of Heicklen (engaged in the age-old practice of pamphleteering) to constitute prosecutorial overreaching. It might, therefore, vote to acquit Heicklen on that basis. In other words, to nullify.