Jury Nullification Advocate Is Indicted

Law prof Volokh writes:

The New York Times reports:

Since 2009, Mr. Heicklen has stood ... at courthouse entrances ... and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering.

It seems to me that such speech is constitutionally protected, and that the indictment therefore violates the First Amendment. One can debate whether jury nullification is good or bad for the legal system, but it’s clear that it’s not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict. So Heicklen is encouraging a jury to engage in legal — even if, in the view of some, harmful — conduct.

So a retired chemistry professor has been indicted for advocating what has been considered a legal and essential liberty for 300 years. He has already been denied a jury trial. His own notes are here, where he describe distributing this pamphlet. For those who think that jury nullification is somehow illegal for reasons of perjury or some other reason, please read the pamphlet. This retired professor was performing a public service.

Update: There are persistent comments on Volokh's blog from people who argue that jury nullification violates a juror's oath to uphold the law. These comments show a fundamental logical error. The jury system is in our constitution. The law says that juries are supposed to return verdicts, not factual determinations. No oath could be contrary to that.