Death of the First Amendment?

While the Supreme Court has taken unprecedented (truly) to expand the scope of the First Amendment and make it applicable to legal entities, the US Attorney's Office in the Southern District of New York is taking steps to kill it.

That office indicted one Julian Heicklen for jury tampering - what was the tampering you may ask...

Handing out pamphlets that told people (some of whom may have been prospective jurors) that they had the power to render a not guilty verdict through nullification!

Here is a link to the Indictment.

Seems to me that Heicklen is in pretty good company - here is a quote from none other than Judge Jack Weinstein, from an order granting a motion for a new trial (which was reversed - maybe the US Attorney's Office will indict him too for attempted jury tampering), in which Judge Weinstein shares his thoughts on nullification vis a vis minimum mandatory sentences.  The case is United States v. Polouizzi.  Before going to the quote, I want to acknowledge that I have been criticized in the past for long posts - the criticism is fair and warranted.  If you don't like long quotes, stop reading, and simply ponder whether or not we want the government indicting people for informing jurors of a power that they hold - in other words, not threatening or attempting to bribe them, but simply telling the truth.  But, if you really want to see how ridiculous (and scary) the indictment is, read this portion of Judge Weinstein's order:

"Consistent modern judicial attempts to water down the Sixth Amendment have not escaped notice by academics and other scholars whose commentary has been generally critical of limitations on Sixth Amendment jury power to dispense mercy. See, e.g., Polouizzi I, 549 F.Supp.2d at 450-54 (providing selected bibliography on powers of jurors when Sixth Amendment was adopted); see also, e.g., Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1191-99 (1991) (noting that juries had power to declare laws unconstitutional and calling that argument “strong,” but cautioning that “I do not mean to suggest that I am wholly persuaded”); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 Am.Crim. L.Rev. 89, 105 (1995) (“The time has come for the Supreme Court to reconsider its decision in Sparf, as well as the question of whether the jury should be instructed of its nullification power.”); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 679 (1995) (arguing that African-American jurors should nullify in some cases to combat racism in criminal justice system); David N. Dorfman & Chris K. Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. Mich. J.L. Reform 861, 900-01 (1995) (arguing that jury nullification is a “popular check on executive and judicial discretion”); Arie M. Rubenstein, Note, Verdicts of Con-science: Nullification and the Modern Jury Trial, 106 Colum. L.Rev. 959 (2006) (basing argument in favor of jury nullification on recent Supreme Court jury right cases); Alan W. Scheflin, Jury Nullification: The Right to Say No, 45 S. Cal. L.Rev. 168, 224 (1972) (“Preservation of ... the right to nullify ... [is] essential to a restoration of the vaunted stature the judicial system should occupy.”); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 Wash. & Lee L.Rev. 165, 166 (1991) (“[O]ur judicial system would be better served if judges instructed jurors of their true powers.”); Ran Zev Schijanovich, The Second Circuit's Attack on Jury Nullification in United States v. Thomas: In Disregard of the Law and the Evidence, 20 Cardozo L.Rev. 1275, 1278 (1999) (“Thomas is unsound both as a matter of law and as a matter of policy.”); Chaya Wein-berg-Brodt, Jury Nullification and Jury-Control Proce-dures, 65 N.Y.U. L.Rev. 825 (1990) (arguing for refocusing arguments regarding nullification on defendants' rights and reconsidering doctrines that impede nullification). But see Pamela Baschab, Jury Nullification: The Anti-Atticus, 65 Ala. Law. 110, 114 (2004) (“Jury nullification, no matter how you slice it, is at bottom a desecration of the basic premise that we are all equal under the law.”); Leo P. Dreyer, Jury Nullification*195 and the Pro Se Defense: The Impact of Dougherty v. United States, 21 U. Kan. L.Rev. 47, 60-63 (1972-73) (arguing against allowing instructions to juries regarding their power to nullify); Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L.Rev. 253 (1996) (arguing that jury nullification has a larger cost than is normally realized and that the Sixth Amendment does not protect the right of jury nullification); Richard St. John, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 Yale L.J. 2563 (1997)(criticizing legislative proposals to authorize jury nulli-fication).

2. Contemporary

Since the late nineteenth century, jury power has in-creasingly been suppressed in favor of judicial control in both civil and criminal trials through case law and amendments to the statutes and rules governing the trial process. This trend-especially since the 1990s-is so strong that one commentator considers it “war.” See Andrew J. Parmenter, Nullifying the Jury, The Judicial Oligarchy Declares War on Jury Nullification, 46 Washburn L.J. 379 (2007). That the courts of three out of the four states that grant juries the power in criminal cases to decide both law and fact “have eviscerated any literal translation of these constitutional provisions” is one such example. Id. at 391; see Ga. Const. art. I, § 1, para. x 1(a) (1998); Ind. Const. art. I, § 19 (1999) (“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”); Md.Code Ann., Const. art. 23, Declaration of Rights (same).

The reasons for this trend are beyond the scope of this opinion, but hypotheses include “changes in the American psyche, transitioning a young republic with revolutionary zeal and distrust for governmental authority into a mature democracy” more concerned with law and order; profes-sionalization of the lawyers and prioritizing law over facts; fears of an increasingly diverse jury pool due to the twen-tieth-century opening up of jury service, particularly with a post-World War II influx of immigrants to the country on a non-discriminatory basis from all parts of the world; and the need to have a uniform predictable national law and its enforcement that would favor the growth of national commerce. See Parmenter, supra, at 386-87; see also Husain v. Springer, 494 F.3d 108, 138 (2d Cir.2007), cert. denied, 552 U.S. 1258, 128 S.Ct. 1658, 170 L.Ed.2d 356 (2008); Monroe v. Kuhlman, 436 F.Supp.2d 474, 480 (E.D.N.Y.2006), aff'd, 248 Fed.Appx. 223 (2d Cir.2007) (suggesting that causes include “ ‘the reluctance to expand the powers of totally passive and unenlightened juries stems from three sources: (1) the tremendous inertia of long-standing legal tradition; (2) a basic distrust of juries; and (3) trial attorneys' and judges' fear of loss of control of the trial process.’ ” (quoting Mark A. Frankel, Legal In-stitutions: A Trial Judge's Perspective on Providing Tools for Rational Jury Decision-Making, 85 Nw. U.L.Rev. 221, 222 (1990))).

Relying on Sparf v. United States, judges now gener-ally refuse to inform juries of their full powers, including their power to nullify. Nullification instructions, histori-cally common, are no longer given. It is generally accepted that defendants have no right to such a charge. Yet Sparf-supposedly the bedrock case against jury nullification-adopted no such holding:

Harlan's opinion did not preclude judges from rendering nullification instructions or allowing nullification ar-guments in proper circumstances, it did not require judges to mislead jurors about their power to judge the law, and it did not sanction a judicial denial of the jury's nullification power, either by instruction or interference. Sparf only held that it was not reversible error to instruct the jury that it would be wrong to disregard the court's instruction as to the law. In fact, the trial judge in Sparf informed the jury that it had the “physical power” to render a verdict contrary to his instructions.

Parmenter, supra, at 388 (footnotes omitted).

Not only are juries not informed of their constitutional and historic power to nullify, judges increasingly issue directive and authoritative jury instructions, which increase judicial control over jurors. See B. Michael Dann, “Must Find the Defendant Guilty ” Jury Instructions Violate the Sixth Amendment, 91 Judicature 12, 12 (2007) (stating that a “survey of the states' and federal circuits' corresponding jury instruction language reveals that 24, almost 40 percent, of state courts and federal circuits use the command ‘must’ or its equivalent (‘shall’ or ‘duty’) to point juries to verdicts of guilty when all of the elements of the alleged crime have been proven. Another 7, or 13 percent, use the milder admonition ‘should’ to steer the jury's decision to guilt.”). Some judges have gone as far as to tell jurors they have a legal obligation to apply the law, that they could face sanctions upon nullification, and that they “had a duty to notify the court if any juror expressed intent ‘to disregard the law.’ ” See Parmenter, supra, at 404, 409.

Judicial control over potential and actual members of the jury has steadily increased. Voir dire, in practice since the Fugitive Slave Acts, is used to weed out potentially nullifying jurors. See Parmenter, supra, at 398 (citing Lysander Spooner, Trial by Jury (1852)). The Court of Appeals for the Eleventh Circuit has upheld a trial court's sua sponte dismissal of a juror because the juror knew the jury had the power to nullify. United States v. James, No. 98-1479, 2000 WL 136816, 2000 U.S.App. LEXIS 1738 (11th Cir. Feb. 7, 2000).

Dismissals for cause based on jurors' beliefs still result, especially in death penalty cases, in pro-conviction jury panels not fairly selected as a cross-section of the community. See, e.g., Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (approving a trial court's decision to dismiss a juror for cause after finding that the juror's ability to impose the death penalty was substantially impaired, even though he indicated that he would follow the law as instructed by the judge).

Since the 1990s, there has been a growing trend to-wards discharging jurors who may nullify. See Parmenter, supra, at 408-10 (citing cases). The court in United States v. Thomas, 116 F.3d 606 (2d Cir.1997), discussed further in Part IV.D.1, infra, utilized Federal Rule of Criminal Procedure 23(b) to approve removal of a juror during deliberations, thus allowing the return of an eleven-person verdict, citing as “good cause” the juror's possible nullifi-catory intent. Other circuits have followed Thomas. See Paramenter, supra, at 407 n. 279. After Thomas, judges might well feel empowered to disqualify potentially nul-lifying jurors at both voir dire and trial under Rule 24(c). See Fed.R.Crim.P. 24(c)(1) (“The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.”). Is this the unanimous, uncovered verdict from a cross section of the community required by the Constitu-tion?

A completely distinct division between the roles of judge and jury as is said to be embodied in Sparf is un-supported historically, see Parts IV.A and IV.B, supra, and now, post- Booker, it is unsupportable legally.197 See Part IV.D., infra. Providing jurors sentencing information would enable the jury to more effectively fulfill its historical Sixth Amendment role as the conscience of the community and guardian against government oppression."

I have seen and received similar pamphlets in front of our courthouse -

David, you should go down there now and file a lawsuit seeking an injunction on behalf of one of the pamphleteers.