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Thank You, Julian Heicklen

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Last February I published an article entitled, “Jury Nullification Prosecutorial Abuse,” in which I detailed the ridiculous and abusive federal indictment of Julian Heicklen.

What was the crime that the feds indicted Heicklen for? Handing out pamphlets in front of a public federal courthouse in Manhattan that informed people of the right of juries to judge the law in criminal cases. The grand jury, which undoubtedly followed the orders of the U.S. Attorney’s office, charged that handing out such pamphlets was the equivalent of “jury tampering.”

As I stated in my article, “Is that ridiculous or what? What an excellent example of prosecutorial abuse.”

As I explained in my article, for centuries juries have had the power to judge both the facts and the law in criminal cases. The problem is that federal prosecutors and federal judges, most of whom are ardent statists, hate that particular power of the jury.

So, over time the judges have simply come to lie about it. In case after case, they tell the jury that the matter of the law is solely within the prerogative of the judge and that juries have to accept the law as given to them by the judge.

Every so often, an enlightened and knowledgeable jury disregards what the judge says. The jurors know that the judge is lying to them and that, in fact, it is within their prerogative to judge both the facts and the law of the case, notwithstanding the judge’s false statements to them.

What does judging the facts and the law mean?

With respect to the facts, the jury’s job is to determine whether the government has satisfied its burden of proving the defendant’s guilt with competent and relevant evidence beyond a reasonable doubt.

With one post-9/11 exception, the jury’s verdict is final. If they find the defendant not guilty, the judge must set him free, even if the judge, the prosecutor, and the Marshals are 100 percent convinced that the defendant is guilty.

The one exception has come into existence since 9/11. The feds used the 9/11 attacks to claim that in terrorism cases, the military now wields the power to ignore jury verdicts of acquittal in federal terrorism cases. So, today even though a federal jury declares a terrorism defendant not guilty, the Pentagon can simply ignore the jury’s verdict and arrest the acquitted person as an “enemy combatant,” at which point he can then be treated as a “terrorist” (i.e., indefinite confinement, torture, kangaroo tribunal, execution, etc.) By the way, the power to ignore verdicts of acquittal in terrorism cases was also wielded by the Gestapo in Hitler’s Germany.

With respect to the law, the jury has the prerogative of judging whether the law is a good one or not. If the jury decides that the law is unconscionable or immoral, then it can vote to acquit the defendant even if the evidence conclusively establishes his guilt. For example, suppose the government enacted a law against hiring Jews. The jury could vote to acquit the defendant even if he confessed to violating it.

What is the current status of that ridiculous and abusive federal indictment against Heicklen?

According to Heicklen’s Progress Reports, “My court hearing for distributing fully informed jury information in front of the Newark, NJ federal district courthouse on August 25, 2010, was scheduled for 9:00 am on May 26, 2011…. My case was called and dismissed by 11:30 am.”

So, there you have it. After federal prosecutors subjected Heicklen to a ridiculous and abusive federal indictment, a federal magistrate summarily dismissed it. There was nothing the U.S. Attorney’s office or the U.S. Marshals office could do about. Under our system of justice, they couldn’t re-arrest him for the purported crime, and so far the Pentagon hasn’t picked him up as a terrorist.

The federal magistrate was, of course, right to summarily dismiss the indictment without even permitting the case to go to trial. It was a ridiculous, abusive, and shameful indictment.

Federal Marshals and federal prosecutors need to be reminded that this is not the Soviet Union and it’s not one of those Middle East dictatorships that the U.S. government ardently supports, finances, and partners with. They need to be reminded that people everywhere, including right here in the United States and particularly in front of a pubic federal courthouse, have the fundamental, God-given right of freedom of speech, which includes informing prospective jurors about their powers.

In his Progress Reports, Heicklen states since the dismissal of the indictment, he has returned several times to the federal courthouse where they arrested him in the first place to again distribute his fully-informed jury pamphlets. Wisely, the federal Marshals and prosecutors have decided not to arrest him and indict him again, a not-so-subtle acknowledgment that their previous arrest and indictment of this man constituted an excellent example of police and prosecutorial abuse.

In an article yesterday entitled “Heicklen Takes Manhattan,” where I learned of Heicklen’s success, author Garry Reed put it well: “Sometimes the fight for freedom gets so intense libertarians actually miss the important triumphs. It’s time to pause and savor a victory.”

Here, here. Thanks, Julian Heicklen, for putting the feds in their place and making them respect our fundamental, God-given rights of freedom of speech and to inform prospective jurors of their right to judge both the facts and the law in criminal cases.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.