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.”

In a “government” of “laws” rather than “men” (i.e., legislators and other law-makers and “rulers”), the “jury” or “judges” would still need to “determine the law and the facts” (i.e., what Justice requires) in the case before them. This determination should presumably be informed by how similar cases have been decided in the past. The real value of a “jury” of 12 is in its numbers and in the requirement that they be unanimous in convicting a defendant of a crime “beyond a reasonable doubt” before depriving him of liberty. Most people accused of a crime would want this protection rather than having their case decided by a fewer number of judges, and it seems that a society which valued liberty more than our own would be hard-pressed to justify denying such traditional protection to defendants. Of course, the number 12 is not inscribed in the natural law, and how a free society might go about forming such juries to decide cases remains an interesting question.

. . .

I like your [commenter HRearden’s] idea of a pool of professional jurors / judges from which juries could be formed. (It would be good to eliminate the distinction between judges and jurors. The selected jurors could choose from among their number a “foreperson” to also preside over the trial and act as “judge.” The jurors could themselves rule on such questions like the admissibility of evidence.) This would of course get around the problem of impressing into service randomly selected individuals for little or no pay who may or may not be qualified to sit in judgment over others. How the jurors voted in previous cases would presumably be available to the litigants and eliminate a lot of the guesswork that is now inherent in the voir dire crapshoot. You could have juries of 3 or 12 or any number in between (or more than 12?) depending on the seriousness of the case.

. . .

I’m actually okay with the idea of a conviction despite one lone holdout voting to acquit. [On second thought, I’m only okay with the idea of a re-trial in this circumstance, not a conviction.] Two (or more) holdouts, on the other hand, is almost by definition a pretty clear indication that their doubt is “reasonable.” By the way, this is one area where our current system of justice is a complete farce and contradicts the constitutional principles on which it’s supposed to be based. If 10 jurors vote to convict and 2 vote to acquit, that’s not an acquittal but a hung jury, and the defendant can be tried again, in spite of the constitutional prohibition against Double Jeopardy. Hell, if 11 jurors vote to acquit and 1 votes to convict, it’s a hung jury and the defendant can be tried again.

Norm’s post concludes:

We live in this schizoid fog because we lack the confidence as individuals to say what is and is not just. Indeed, it’s chic in most quarters to view the very question as quaint, or perhaps, naive. We’re just like sheep, afraid to reason, and then following the man or woman bold enough to seize the shepherd’s crook. We love to complain about politicians, yet we follow them blindly. Because we lack the courage to say what is just, because we are nihilists at heart, we take what we get and hope for more. I wonder what would happen if we took our hopes more seriously, and if jurors began to say “no” simply because they can do so. I wonder what would happen if we casts more bricks than votes, if we had the courage to believe, as the anarchists do, the we do not need to be told what is just, that we know it in our bones.

I’ve said it before and I’ll say it again: Justice is the absence of crime. Although, as Norm says, “‘right reason’ is said to shed light on justice,” it’s not all that complicated. Reason is simply the faculty of knowing the truth. Argument is the lowest form of reason, and its aim is to directly understand the truth. Lawyers, law professors, judges and politicians are certainly not more qualified to discern truth, or what justice requires, than are human beings. Quite the opposite. Restoring the right of juries to judge the justice of the laws does not entail expecting jurors to become expert logicians or policy wonks. If Justice is the absence of crime, it is something negative (in the good sense). It is characterized, as the passage from Norm’s post quoted above suggests, by simply saying “no.” It is characterized, in the first instance, by not doing something rather than by doing something.

If Justice is the absence of crime, what is crime? Presumptively, it’s simply anything we would not have others do unto us. Locking a human being up in a cage like an animal is presumptively a crime. Taking a person’s money, by sticking him up in an alley, or by threatening to lock him up in a cage like an animal if he doesn’t pay his “taxes,” is presumptively a crime.

I am not pure enough to subscribe to the pacifism advocated by Tolstoy. Sometimes we should fight crime with what is presumptively a crime. But we should thus fight fire with fire, violence with violence, only insofar as doing so is truly necessary, and only as a last resort. As a practical matter, Justice is the presumption of innocence.

Here’s some food for thought from Spooner’s Essay on the Trial by Jury:

It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes, of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor — that is, with the government.

It is fairly presumable that such a tribunal will agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, “a trial by the country.” In its results it probably comes as near to a trial by the whole country, as any trial that it is practicable to have, without too great inconvenience and expense. And, as unanimity is require for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws, (by punishing offenders, through the verdicts of juries,) except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, “the country,” or the people, judge of and determine their own liberties against the government, instead of the [*8] government’s judging of and determining its own powers over the people.

But all this trial by the country” would be no trial at all “by the country,” but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.

. . .

The force and justice of the preceding argument cannot be evaded by saying that the government is chosen by the people; that, in theory, it represents the people; that it is designed to do the will of the people; that its members are all sworn to observe the fundamental or constitutional law instituted by the people; that its acts are therefore entitled to be considered the acts of the people; and that to allow a jury, representing the people, to invalidate the acts of the government, would therefore be arraying the people against themselves.

There are two answers to such an argument.

One answer is, that, in a representative government, there is no absurdity or contradiction, nor any arraying of the people against themselves, in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of laws. Our American constitutions have provided five of these separate tribunals, to wit, representatives, senate, executive, fn2 jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. And there is no more absurdity or inconsistency in making a jury one of these several tribunals, than there is in making the representatives, or the senate, or the executive, or the judges, one of them. There is no more absurdity in giving a jury a veto upon the laws, than there is in giving a veto to each of these other tribunals. The people are no more arrayed against themselves, when a jury puts its veto upon a statute, which the other tribunals have sanctioned, than they are when the [*12] same veto is exercised by the representatives, the senate, the executive, or the judges.

But another answer to the argument that the people are arrayed against themselves, when a jury hold an enactment of the government invalid, is, that the government, and all the departments of the government, are merely the servants and agents of the people; not invested with arbitrary or absolute authority to bind the people, but required to submit all their enactments to the judgment of a tribunal more fairly representing the whole people, before they carry them into execution by punishing any individual for transgressing them. If the government were not thus required to submit their enactments to the judgment of “the country,” before executing them upon individuals if, in other words, the people had reserved to themselves no veto upon the acts of the government, the government, instead of being a mere servant and agent of the people would be an absolute despot over the people. It would have all power in its own hands; because the power to punish carries all other powers with it. A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws. In short, it is a despotism.

. . .

Here’s Justice Rucker:

In Holden v. State, we held “[i]t is improper for a court to instruct a jury that they have a right to disregard the law. Notwithstanding Article 1, Section 19 of the Indiana Constitution, a jury has no more right to ignore the law than it has to ignore the facts in a case.” Holden v. State, 788 N.E.2d 1253, 1255 (Ind.2003) (quoting Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994)). As the author of Holden, I obviously have no quarrel with this holding. But, I view it as very narrow. That is to say, although Indiana juries have no right to disregard the law, under the clear wording of the Constitution they still have the right to determine the law. . . .

. . .

[O]ther than declaring that the jury is entitled to be instructed on its Article 1, Section 19 authority, see Johnson v. State, 518 N.E.2d 1073, 1076 (Ind.1988), the Court has not been very explicit about explaining the contours of that authority in the context of the guilt phase of a criminal trial. . . . Simply advising the jury that it has the right to determine the law and the facts falls woefully short of explaining how this right may be exercised. . . .

[W]hen requested, juries should be given . . . guidance on its law determining function under Article 1, Section 19 in the guilt phase of trial. At a minimum this may be accomplished by advising the jury as follows:

Even where the jury finds that the State has proven the statutory elements of the offense beyond a reasonable doubt, the jury still has the unquestioned right to determine whether in this case returning a verdict of guilty promotes fairness and the ends of justice.

It is clear that the jury already has the unreviewable power to acquit even where the facts point in the other direction, and a trial judge cannot direct a verdict of guilty “no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); accord Peck v. State, 563 N.E.2d 554, 560 (Ind.1990). Informing the jury that it has such power under the Indiana Constitution . . . would breathe life into what otherwise too often has been treated as a dead letter constitutional provision.

Here’s Justice Dickson, who joined Rucker’s dissent and whose dissent was joined by Rucker:

First, I disagree with the majority’s understanding of Holden v. State, 788 N.E.2d 1253, 1253-54 (Ind.2003). Although not part of the majority’s actual holding but only reflected in its preliminary commentary, today’s opinion expresses a view that Holden stands for the proposition that Indiana juries do not have the power to acquit despite overwhelming evidence in criminal cases. To the contrary, I believe that this Court unanimously acknowledged in Holden that our state’s early jurisprudence held that, in the exercise of its law-determining function under Article 1, Section 19 of the Indiana Constitution, a jury could disregard the instructions of the trial court, but had no right to disregard the law. Id. at 1254, citing Blaker v. State, 130 Ind. 203, 204, 29 N.E. 1077, 1077-78 (1892). Our analysis in Holden also noted recent views from other jurisdictions and discussed recent academic literature arguing that a jury’s right to decide the law did not encompass the right to nullify. Holden, 788 N.E.2d at 1255. Holden did not attempt to resolve these competing perspectives, but rather issued a narrow holding focused on the propriety of expressly advising the jury that “you [have] the latitude to `refuse to enforce the law’s harshness when justice so requires,'” an instruction that had been tendered but refused. Id. at 1253. We held only that a jury should not be affirmatively instructed that it has a right to disregard the law, and that the tendered instruction was properly refused. In my view, however, Holden does not prohibit Indiana juries from exercising their historic power to find in favor of a criminal defendant despite substantial contrary evidence.

. . .

Third, the majority acknowledges that the rejected jury instruction was a correct statement of law, but declares that it would have been inappropriate to inform the jury of this legal principle because of the effect it might produce. . . . [T]he majority concludes that the substance of this instruction was adequately communicated to the jury by the following instruction: “[Y]ou have the right to determine both the law and the facts. The Court’s instructions are your best source in determining the Law.” Id. at 261. I cannot agree that this latter, broad, unspecific, and opaque instruction was adequate to inform the jury of the legal principal embodied in the defendant’s tendered instruction . . . .

Innocuous, generic, non-specific jury instructions are not an adequate substitute for plain-language advisements that meaningfully explain to jurors the reality of their rights and permissible function under the law. In my view, the resulting obfuscation and secrecy is inconsistent with the Rule of Law.

Because I believe that the defendant was entitled to have the jury meaningfully instructed regarding its right to find in favor of a criminal defendant despite substantial contrary evidence, a historic right of American juries and one additionally preserved in Section 19 of the Indiana Bill of Rights, I dissent from the majority’s opinion.

What makes all of this especially interesting is that just last year one of the Justices in the three Justice majority, Justice Boehm, retired, and a new Indiana Supreme Court Justice, Steven David, took the bench. If David is persuaded in a future case that the view of Rucker and Dickson is correct, there will then be a 3-2 majority recognizing the right of juries to judge the justice of the laws in Indiana.

Even if the trial judge only instructs the jury that they have the “right to determine both the law and the facts,” the defense attorney should still at least be allowed to argue to the jury that this instruction (and the constitutional provision on which it’s based) means (as Justices Rucker and Dickson argue it means) that the jury has the “right to determine whether . . . returning a verdict of guilty promotes fairness and the ends of justice,” or (as I might argue) that the jury has the right and the duty to determine whether an “instruction” given by the court promotes the ends of justice and is therefore the law. If the jury has the unquestioned right to determine the law as well as the facts, then the defense attorney must have a corresponding right to help the jury determine the law, just as the defense attorney undoubtedly has the right to help the jury determine the facts.

If David adopts the view of Rucker and Dickson to form a majority opinion in a future case, there will be one additional and essential step they must take to fully realize the rightful prerogatives of the jury: How is the jury to determine whether “returning a verdict of guilty promotes fairness and the ends of justice” if they are still kept in the dark about the sentencing consequences of a guilty verdict?

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:

In 1999, Robert D. Rucker was elevated from the Indiana Court of Appeals to the Indiana Supreme Court by the Governor. In 2003 he was the author of the supreme court’s unanimous short opinion in Holden v. State, and wrote:

Article I, Section 19 of the Indiana Constitution provides “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” Holden argues the trial court erred in refusing to give an instruction advising the jury, among other things, “[w]hile this provision does not entitle you to return false verdicts, it does allow you the latitude to refuse to enforce the law’s harshness when justice so requires.” Appellant’s App. at 61. Holden’s argument is inspired at least in part by a Law Review article written by the author of this opinion. See Honorable Robert D. Rucker, The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation, 33 Val. U.L.Rev. 449 (1999). Tracing the history of the doctrine that allowed juries to determine both the law and the facts in criminal cases, the article reached several conclusions. One conclusion was that “an instruction telling the jury that the constitution intentionally allows them latitude to `refuse to enforce the law’s harshness when justice so requires’ would be consistent with the intent of the framers and give life to what is now a dead letter provision.” Id. at 481 (footnote omitted).

The general thrust of the article is that Article I, Section 19 amounts to a constitutionally permissible form of jury nullification. That is, under the Indiana Constitution the jury has the right to return a verdict of not guilty despite the law and the evidence where a strict application of the law would result in injustice and violate the moral conscience of the community. Although jury nullification has been variously defined, this is its central tenet. [Citations omitted.]

It is historically accurate to say that a jury’s right in a criminal case to “determine the law and the facts” has a long and distinguished history that can be traced from medieval England through the seditious libel trial of New York publisher John Peter Zenger. See generally Rucker, supra, at 449-55. It is also true that early case authority in this state stood for the proposition that the jury’s law determining function meant that the jury could “disregard” the instructions of the trial court. However, on closer examination it appears that the right to disregard the trial court’s instructions has never been equated as a right to disregard “the law.” This point is best illustrated by a case decided forty-one years after Article I, Section 19 was ratified. The trial court gave the following instruction:

You, gentlemen, in this case, are the judges of law as well as of the facts. You can take the law as given and explained to you by the court, but, if you see fit, you have the legal and constitutional right to reject the same, and construe it for yourselves.

Blaker v. State, 130 Ind. 203, 29 N.E. 1077 (1892). On appellate review the Supreme Court approved the instruction but admonished, “the Constitution gives to juries in criminal cases the right to determine the law as well as the facts. It does not, however, give to them the right to disregard the law.” Id. at 204-05, 29 N.E. 1077.

. . .

Although there may be some value in instructing Indiana jurors that they have a right to “refuse to enforce the law’s harshness when justice so requires,” the source of that right cannot be found in Article I, Section 19 of the Indiana Constitution. This Court’s latest pronouncement on the subject is correct: “[I]t is improper for a court to instruct a jury that they have a right to disregard the law. Notwithstanding Article 1, Section 19 of the Indiana Constitution, a jury has no more right to ignore the law than it has to ignore the facts in a case.” Bivins v. State, 642 N.E.2d 928, 946 (Ind.1994) (citation omitted). The trial court in this case properly refused to give Holden’s tendered instruction.

A few questions and observations: By admitting “there may be some value in instructing Indiana jurors that they have a right to ‘refuse to enforce the law’s harshness when justice so requires,'” the supreme court apparently concedes that jurors have such a right, and not merely the power, to nullify “the law” when justice so requires. If justice so requires, then don’t jurors have not only the right but also the duty to nullify the law? If jurors have such a right and duty but “the source of that right [and duty] cannot be found in . . . the Indiana Constitution” or the U.S. Constitution, then isn’t it found in the Law by which all putative “laws” (including constitutions and judicial interpretations of constitutions and Fugitive Slave Acts) are judged? If jurors have the right and the duty to nullify “the law” when justice so requires, then isn’t it against the Law for a judge to prohibit a defendant or his attorney from arguing to the jury that in his case justice does so require, apart from the question of whether “there may be some value” in the judge himself instructing the jury that they have the right to nullify “the law” when justice so requires?

What of the supreme court’s suggestion that juries may have or have had the right to disregard the trial court’s instructions but not “the law”? What of its pronouncement that “a jury has no more right to ignore the law than it has to ignore the facts in a case”? The jury undoubtedly has the constitutional “right to determine the law and the facts.” But a jury of course has no right to “ignore” the facts in a case, and if it renders a guilty verdict that is unsupported by the facts the trial court is obligated to set aside the verdict. Nor, heaven forbid (despite the implication in the title of this post), does the jury have the right to ignore “the law.” But what is “the law”? An unjust law is no law at all, and the jury has the right and the duty to determine whether “the law” the court instructs it to apply is just and therefore in fact the law. This determination belongs in the first instance to the legislature, and in the second instance to the prosecutor, and in the third instance to the judge, but it rightly and properly belongs also and in the final instance to the jurors, because without their cooperation there can be no conviction, and each of them is at least as personally and morally responsible for any injustice inflicted on the defendant by their verdict as are these government actors. If the jury carefully considers the “instructions” given to it by the judge, but then conscientiously determines that these instructions if followed would work an injustice and are therefore not the law, can it be said to have “ignored” or “disregarded” the law? The jury’s right to determine the law doesn’t mean that juries are “at liberty to create new offenses, or find a defendant guilty of an offense not charged even though they might attempt to do so.” The jury is the judge of the law, but it is not the “exclusive” judge of the law, just as it is not the exclusive judge of the facts.

See the Indiana Supreme Court’s lengthy treatment of these issues in its 1957 decision in Beavers v. State, which I’ve tried to answer in the preceding paragraph. Tellingly, the supreme court in that case seemed almost ashamed of Article I, Section 19 of the Indiana Constitution, quoting with apparent approval a law review article which said of the “archaic” doctrine that juries have the right to determine the law in criminal cases: “Among the very few exceptions, Indiana may claim the dubious distinction of giving the outmoded relic its widest present day application.”

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:

In essence, I want to discuss the jury’s right to nullify the law IN FRONT OF A JURY. . . . My position is that neither jury nullification is or that I am on trial. My position is that the judiciary is on trial. Jury nullification needs no defense. It is the law of the land.

I get it. Because he knows that juries, including his jury, have not only the power but also the right and the duty to nullify the law when it works an injustice, he naturally wants to inform the jury that will be deciding his fate of this fact, and to argue to them that even if they believe he violated the State’s jury tampering law as written they should still acquit, because it would be unjust to convict him and the jury’s duty is not to follow the “law” but to see that justice is done. He also knows that a licensed attorney will not do this for him because by doing so the attorney would risk, if not disbarment, suspension or some form of “discipline.” Now, the “law” that allows judges to forbid attorneys from arguing nullification to the jury also applies to pro se defendants, but the fact remains that a pro se defendant has both more to lose and less to lose than an attorney in this context. It’s interesting to speculate on what measures the court in Julian’s case can or is likely to take to muzzle Julian when he insists on making a nullification argument to the jury (particularly when the main evidence against him will be jury nullification brochures and the jury will therefore necessarily be exposed to such arguments anyway), but I’ll leave that to Julian and his advisers.

Second, I want to take this occasion to “qualify” my firm conviction that juries have not only the power but also the right and the duty to nullify an unjust law or an unjust application of a law by acknowledging that juries are only as good as the people who make them up, and that a lot of people suck. Julian might get to make his jury nullification argument to the jury and still get convicted, even though he should be acquitted based on the facts and the law even apart from any nullification. But even a sucky jury can’t unjustly convict a person until a sucky legislature, prosecutor and/or judge has enabled it to do so, and so the right of a jury to do the right thing in the teeth of the “law” remains an essential, if not the essential, check on government injustice.

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.    

Professor Heicklen has been arrested numerous times for distributing information about jury nullification on federal courthouse property. On 2009-11-09, not only Heicklen but also a videographer who was recording his arrest outside a federal courthouse in Manhattan were both arrested. The arrest of the videographer resulted in the New York Civil Liberties Union suing the federal government on his behalf and this settlement. Here’s the footage of these arrests:

//www.youtube.com/watch?v=8HyfbEyL8A0

//www.youtube.com/watch?v=W8Jk14b6PvM

Heicklen has apparently brought his own civil suit against the federal government for his arrests. After a story published in the New York Post suggested that Heicklen was high on pot when he wrote this letter to the federal judge presiding over his civil suit in defiance of the judge’s order to stop sending him letters, Heicklen wrote on his website:

This could be a breakthrough moment in or movement if we can keep its attention. I urge each of you to write a letter to the Post. Garry Reed has already done so: http://www.examiner.com/libertarian-news-in-national/ny-post-treats-libertarian-activist-as-loony-pothead.

It makes no difference if you praise me, denigrate me, say that I have good intentions but am a nut, or say that I am a nut but sometimes do something good. The New York Post does not care. All it wants to do is increase circulation. If there is interest in the situation, it will continue to publish the letters. I also do not care what you say. Bad publicity is better than no publicity. Just spell my name right.

I’m going with the good-intentioned-nut-who-sometimes-does-something-good theory. Here is his report on the jury tampering charge:

On January 11, 2011, I was notified by summons that I have been criminally charged with jury tampering. The moment of truth has arrived. My response to the court is given at the end of this E-mail. The dance begins. Finally we will have the opportunity to inform the jury in the U. S. District Court: Southern District of New York that the judges have routinely lied to it.

This trial could be the defining trial of the decade. We must not blow it. I will represent myself as counsel pro se. However, I am asking all the attorneys and others knowledgable in the law on the Tyranny Fighters mailing list receiving this E-mail to join as co-counsels. Particularly, I hope that the American Jury Institute/Fully Informed Jury Association and the American Civil Liberties Union join me to provide advice, guidance and strategy.

I maintain the role as lead counsel, because I can and will say and do things that could disbar any attorney.

In addition, I request that all of you that write for news outlets, have radio shows, and/or blogs will publicize this trial to the hilt. I intend to provide a blow by blow flow of trial information. Be sure to send your material to major news outlets. The rest of you can write letters-to-the editor of your local newspapers and magazines with trial information as it becomes available.

I want this to be the ultimate public trial.

As several supportive but concerned commenters on Heicklen’s report note, his presumably already-filed “response to the court” appears to demonstrate serious ignorance of the laws and procedures being deployed against him, and his decision to retain a fool for his lawyer appears exceedingly . . . foolish.

I’m not going to judge Professor Heicklen, although he does seem intent on shooting himself in the foot to the detriment of both himself and his noble cause.

As I’ve previously suggested, the restoration of the right of juries to judge the justice of the laws is perhaps our single most necessary political reform. Repealing the income tax is a close second, but restoring the independence of juries would seriously if not fatally subvert the State’s ability to prosecute tax “offenders” and to continue extorting its revenue.

A New York federal district court judge other than the one Heicklen has been fighting with, the great Jack Weinstein, struck in his gutsy and brilliant 236-page decision in U.S. v. Polizzi a strong blow for jury independence.

More recently, potential jurors being selected for a criminal case in Missoula County, Montana, in what the prosecutor called a “mutiny” and Jonathan Turley described as an act of pre-trial jury nullification, just said no to the idea of convicting a defendant for possessing a small amount of marijuana, resulting in the trial judge calling a recess and the lawyers working out a less onerous plea deal.

The Independent Institute’s Mary Theroux, describing a lively exchange between David Friedman and Judge Alex Kozinski of the Ninth Circuit Court of Appeals at a recent Institute-sponsored forum, in which Kozinski opined that jury nullification is “an abomination” and “a crime” and that “juries should be told in no uncertain terms that if they can’t apply the law as instructed by the judge, they ought to get off,” astutely observed that the potential jurors in Missoula “acted as Judge Kozinski said they ought,” and raised an excellent question:

Is mutiny the new nullification?