People v. State

Wendy McElroy has posted at the Daily Anarchist her second article in a series on free-market justice. This one asks what role, if any, Trial By Jury would have in a society from which the State had been eliminated. My comments in the comments section on the article include the following:

I think you’re basically right about the jury. I might quibble slightly with this: “Moreover, a jury’s presumed right to judge the justice of the law may also be irrelevant. In a voluntary society, the ‘laws’ being enforced would either protect person and property from aggression or be a matter defined by contract. In this context, for a jury to pass judgment on the propriety of the law would be akin to allowing them to pass judgment on the propriety of voluntary interaction itself.”

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Norm Pattis has a very interesting post up today about Lysander Spooner and his Essay on the Trial by Jury. (Norm, a prominent Connecticut trial lawyer whose recent book includes a Foreword by F. Lee Bailey and an Introduction by Gerry Spence, credits yours truly with directing his attention to Spooner. I’ve sometimes second-guessed the value and purpose of this blog. Posts about the actual practice of law or actual court decisions have been few and far between, and, on the other hand, the folks at the Center for a Stateless Society illuminate the principles of anarchism more eruditely than I. But if I’ve facilitated a little cross-pollination, bringing some anarchism to trial lawyers, maybe some Georgism to anarchists, and maybe even a little religion to anarchists and trial lawyers, maybe this blog hasn’t been a complete waste of time.)

Norm’s post concludes:

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It’s absolutely essential in representing a client to check whether a case that appears to help or hurt your client has been cited by later cases and perhaps overruled or distinguished, and it’s a very good idea to also do so in writing a blog post, even though “Nothing on this site constitutes legal advice.” A couple posts ago I suggested that the Indiana Supreme Court in its unanimous decision in Holden v. State (2003) had effectively nullified Article I, Section 19 of the Indiana Constitution, which recognizes the right of juries to nullify “the law” when justice so requires. [“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”] I’ve since discovered the Indiana Supreme Court’s 3-2 decision in Walden v. State (2008), and particularly the dissenting opinions of Justice Rucker and Justice Dickson, which shed significant light on Holden.

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UPDATE: See my post here about a 2008 Indiana Supreme Court decision which sheds significant light on the 2003 Indiana Supreme Court decision discussed below.

In honor of the publicity currently being given (by the New York Times, Scott Greenfield, and Eugene Volokh, among others) to the federal “jury tampering” prosecution of Julian Heicklen for distributing pamphlets containing truthful information about jury nullification to passerby outside a Manhattan federal courthouse, here’s a short story which hopefully sheds some light on the widespread belief that Indiana is one of a few states whose constitutions explicitly recognize and protect the right of juries to judge the justice of the laws:

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Despite writing about jury nullification yesterday, I forgot that yesterday, January 19th, was also the birthday of Lysander Spooner, the patron saint of jury nullification and this blog. I want to take this auspicious occasion to make a couple observations:

First, I want to acknowledge that I’ve perhaps been too harsh in my implicit criticism of Julian Heicklen for planning to represent himself in a criminal case charging him with jury tampering for allegedly distributing pamphlets about jury nullification outside a federal courthouse. There may be some method to his madness. He’s stated that he plans to represent himself “because I can and will say and do things that could disbar any attorney.” But by that he may “just” mean what he meant when he later explained:

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Or even just one really good one. (And yes, for this post only, Scott Greenfield is not banned from commenting.) Julian Heicklen needs your help. Here is the indictment. If a criminal case can be a thing of beauty, this one is. The good professor is charged with jury tampering for “distribut[ing] pamphlets urging jury nullification, immediately in front of an entrance to the United States District Court for the Southern District of New York.” Here is one of the pamphlets Heicklen is in the habit of distributing, entitled “A Primer for Prospective Jurors” and produced by the Fully Informed Jury Association (FIJA). As a commenter on this post by Garry Reed observes: “What is funny is that the evidence against him will be FIJA pamphlets.”

You’ve got to like a guy whose self bio begins:

Julian Heicklen was born at an early age. At 8 days, he was circumcised. This was so traumatic that he did not walk or talk for a year.

Via Darian Worden at the Center for a Stateless Society, the septuagenarian libertarian activist has been criminally charged in Manhattan’s federal district court with “jury tampering,” apparently for distributing FIJA literature about jury nullification outside federal courthouses. Before his jury nullification outreach he was known for participating in weekly Marijuana Smoke Outs in front of the main gates at Penn State University, where he was a professor.     (more…)