The Federal Bureau of Investigation arrested an 80-year-old man who had the audacity to stand in front of a federal building and hand out a pamphlet on jury nullification.
Jury nullification is better described as “hang the jury, not the criminal” when the law is wrong.
The jury system under British and American common law, empowers the jury to declare a criminal “not guilt” even when he broke the law, if the jury thinks the law is not valid. The jury can legally judge the law as well as the facts.
This is not well known. Local judges sometimes deny this legal fact. High school civics textbooks do not mention jury nullification. Jury nullification threatens prosecutors, who do not appreciate interference by the rabble who make up a jury of the accused’s peers.
So, the FBI assigned an agent to pose as a juror. This was a “sting” operation. He was wearing a wire.
Heicklen then allegedly talked to the agent at great length about the role nullification played in guaranteeing freedom of religion in the trial of William Penn, for preaching Quakerism, and freedom of the press in the trial of John Peter Zenger, for criticizing the king during colonial times.
The prosecution wanted the man to serve six months in prison. The judge set him free after she heard the recording. She invoked the right of free speech.
This kind of argument has always been an offense to prosecutors. The New York Times reported the following.
His speech is not protected by the First Amendment,” prosecutors wrote.
“No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”
The judge thought otherwise.