In the coming weeks jury nullification educators will once again take their message to the Southern District of New York Courthouse (also known as the Daniel Patrick Moynihan Courthouse). More educators and also people willing and able to video record and/or livestream their outreach efforts are needed for this effort. To help out, click through to the Facebook event page, or contact the FIJA office at firstname.lastname@example.org or 406-442-7800 to be put in touch with those coordinating this outreach activity.
This courthouse was the location at which an activist was arrested multiple times in the course of handing out FIJA pamphlets in 2009-2010 and also at which another individual was arrested for filming jury nullification outreach back in 2009. FIJA does not recommend getting arrested as an outreach tactic for a variety of reasons, nor is it consistent with our educational outreach strategy. To minimize personal risk, we have outreach guidelines and training available to help juror educators avoid arrest in the course of conducting legal jury nullification outreach activity. That said, legal cases resulting from the arrest of Julian Heicklen for handing out FIJA literature, and separately of Antonio Musumeci for video recording Julian while he was being arrested in the course of jury nullification outreach, both ended in victories.
In this article, I will outline the circumstances regarding these arrests and the favorable outcomes of each, including documentation thereof. These outcomes are unique features of the courthouse in question that anyone involved in juror rights outreach or recording thereof at this location may find useful in the event of pushback against their lawful activities at or near the Daniel Patrick Moynihan Courthouse in New York City.
Handing Out FIJA Jury Nullification Pamphlets
On several occasions in 2009 and 2010, Julian Heicklen distributed FIJA literature in front of the entrance to the Daniel Patrick Moynihan Courthouse in New York City. On multiple occasions he was arrested in the course of such outreach activity. On one such occasion, an agent with the Federal Bureau of Investigations (FBI) came out of the courthouse posing as a juror apparently in an attempt to entrap Heicklen into engaging in jury tampering.
The only cases he was identified as discussing in the excerpt of their recorded conversation included in the ruling were those of William Penn and Edward Bushell (1670), John Peter Zenger (1733), and Georgia v. Brailsford (1794). Yet in November 2010, a grand jury indicted Heicklen under 18 U.S.C. § 1504, a federal jury tampering statute. In response, he moved to dismiss the indictment on a number of grounds.
On 19 April 2012, Judge Kimba Wood issued an Order and Opinion in the matter, identifying three elements contained in the statute:
(1) that the defendant knowingly attempted to influence the action or decision of a juror of a United States court;
(2) that the defendant knowingly attempted to influence that juror (a) upon an issue or matter pending before that juror, or pending before the jury of which that juror is a member; or (b) pertaining to that juror’s duties; and
(3) that the defendant knowingly attempted to influence that juror by writing or sending to that juror a written communication in relation to such issue or matter.
Wood noted that:
The statute therefore squarely criminalizes efforts to influence the outcome of a case, but exempts the broad categories of journalistic, academic, political, and other writings that discuss the roles and responsibilities of jurors in general, as well as innocent notes from friends and spouses encouraging jurors to arrive on time or to rush home, to listen closely or to deliberate carefully, but with no relation to the outcome of a particular case.
FIJA literature does not discuss any case currently in progress, and FIJA guidelines even caution against verbally discussing cases in progress while involved in juror rights education. Judge Wood observed that Heicklen had “no inkling of what type of case was before the juror who approached him and no intent to affect the outcome of a specific case”. In contrast, it was Wood’s judgement that:
Based upon the plain meaning of the text of 18 U.S.C. § 1504, reinforced by relevant judicial interpretations and the doctrine of constitutional avoidance, the Court holds that a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of written communication made in relation to a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.
It was therefore her conclusion in dismissing this indictment that:
Because the Indictment does not allege that Heicklen attempted to influence a juror through a written communication made in relation to a specific case before a juror or in relation to a point in dispute before a juror, the Court finds that the Indictment fails to state all of the elements of the offense described in 18 U.S.C. § 1504 and must be dismissed as legally insufficient.
—Opinion and Order dismissing the indictment
—18 U.S.C. § 1504- Influencing juror by writing
—18 U.S.C. § 1503- Influencing or injuring officer or juror generally
Recording Jury Nullification Outreach
Antonio Musumeci was arrested on 9 November 2009 in the public plaza in front of the steps outside of the Daniel Patrick Moynihan Courthouse in Manhattan in the course of recording the arrest of Julian Heicklen, who was present that day handing out jury nullification information. Heicklen was first arrested by Inspector Barnes.
While he was recording the arrest, Inspector Barnes and another officer grabbed Musumeci and forced him to the pavement. He was arrested, detained for several minutes, and ticketed for violating a photography regulation, but the charge was later dismissed. Subsequent to this incident, Musumeci was twice more harassed by federal officers, including threat of arrest, for attempting to record Heicklen at this location.
Assisted by the New York Civil Liberties Union (NYCLU), Musumeci successfully sued the U.S. Department of Homeland Security over his unlawful arrest and harassment. The settlement of this case included agreement by the Federal Protective Service (FPS) to provide written instruction to its officers and employees engaged in law enforcement directing them that for federal courthouses under the protective jurisdiction of FPS there are no general security restrictions against exterior photography by individuals from public spaces, absent a written local regulation, rule or order, and informing them of the right of the general public to photograph the exterior of federal courthouses from publicly accessible spaces. The original complaint, the settlement, and evidence of compliance with the settlement, obtained from the website of the New York Civil Liberties union, are available below for free download.
This morning I called the NYCLU to inquire about any developments with respect to this settlement. I spoke very briefly with Christopher Dunn, Associate Legal Director of the NYCLU and attorney for the plaintiff in this case, explaining that there are upcoming juror education efforts planned along with video recording and live streaming of such. My first question was to ask for a sort of temperature check with regard to the implementation of this settlement and how well the courthouse was abiding by it. He reports that he has not heard of anyone who has had any further problems of this nature at the courthouse since the settlement. Note that this is a general observation, is not legal advice, and is not a guarantee of future performance by courthouse officials.
Second, I asked if he had any recommendations as to what people should do if they experience pushback from courthouse officials against their recording and streaming activities. He invited such people to contact him by calling the main office number of the NYCLU (listed on the Contact page linked below). This is ONLY with respect the issue of photography or recording, and this is NOT an offer or promise of legal assistance. This is simply an invitation to call him in the event of courthouse officials failing to abide by this settlement in which he was the plaintiff’s attorney. What may or may not transpire from there would be determined by calling him. If you find yourself with reason to call, you may wish to reference the Musumeci settlement when you ask to speak with him.
—Musumeci Complaint (.pdf)
—Stipulation and Order of Dismissal (.pdf)
—FPS Photography Bulletin 8-2-2010 (redacted) (.pdf)
—Musumeci v. U.S. Department of Homeland Security at NYCLU Website
—Contact Information for the NYCLU
Note that as in the stock market, past performance is no guarantee of future results. In other words, there is no guarantee that courthouse officials are aware of or even that they care to abide by this ruling and settlement, nor that they will not find other reasons to arrest individuals, even those engaged in legal activity. Activists are each individually responsible for the risks that they take, including their own personal actions as well as the choice of with whom else they will do outreach. It is up to you to decide your own personal risk tolerance and not allow yourself to be pressured into activity with which you don’t feel comfortable. It is also your responsibility when communicating your planned actions to those working with you, to honor and abide by how you have represented to them that you will behave so as not to endanger them by acting outside the bounds of how you represented to them that you would conduct yourself in association with them.
There are real risks involved in juror rights education, particularly in the vicinity of courthouses where judges and prosecutors have a vested interest in keeping secret from jurors their full authority. Nonetheless, the vast majority of juror rights outreach, including near courthouses, is done without any arrests or other legal consequences. On occasions where there is a disagreement from courthouse officials over whether or not activists may conduct juror rights outreach, it is usually possible to resolve the issue either afterward or even there on the spot by exercising peaceful forbearance in complying with the unjustified demands to stop but then following up to explore the alleged grounds for such orders non-antagonistically yet assertively. Individuals conducting juror rights outreach can reduce personal risks to themselves while asserting their First Amendment-protected rights by acting in accordance with FIJA guidelines and training, and by strategically pushing back against these orders through means other than violating them.
Moreover, with respect to this particular courthouse, juror rights educators have the benefit of additional legal precedent that activists at other courthouses typically have not had had established prior to their activity. It may provide a bit of protection beyond what activists at other courthouse have to back them up, and I encourage everyone to be aware of the above information so that even if you decide to leave the courthouse at some point for your own safety, you can then push back through media attention, legal action, and other means that do not put you at risk of arrest.
When individuals have been arrested, often such arrests could have been avoided. Among the avoidable errors made that could result in arrest are:
-violating a standing court order rather than challenging it through the civil legal process, in the media, or otherwise
-violating FIJA guidelines, for example, by discussing a specific case, seeking out jurors in particular, or trying to do outreach inside a courthouse
-conducting outreach while they have unresolved legal issues such as unpaid parking tickets or an outstanding warrant for their arrest
-behaving purposely provocatively or antagonistically toward law enforcement
To reduce your risk of negative interactions with law enforcement, don’t do these things.
Arresting people is a script that law enforcement is well familiar with, and it is one that they will more often than not win. Even when they “lose” it can end up costing you far more in time, money, and energy than it costs them, not to mention potentially damaging educational outreach efforts in the process. Instead, we need to write a script that they are not already familiar with, by challenging these orders without getting arrested.
Such efforts have a track record of success such as in Florida, where FIJA activist Robert Dreyfuss peacefully secured a memo from a state circuit court not only upholding our right to hand out FIJA literature at the courthouse, but further directing that such pamphlets should not be confiscated from jurors in the jury assembly room. More recently, we saw juror rights activists’ strategic efforts to challenge repeated harassment in Bucks County pay off, not only in being left alone to do outreach at this location, but also resulting in a front page news story and an editorial in the local paper, which spread the message far beyond just the courthouse.
Remember: just because you may leave the courthouse one day because you are being bullied by courthouse officials does not mean that the situation is over. In fact, more than once juror rights educators have turned such unlawful bullying to their advantage to shine FAR MORE ATTENTION on our educational mission by bringing the situation to the attention of the media, and even successfully asserting their right to be conduct outreach unharassed and unmolested by government agents.
If you experience any uncomfortable encounters with government officials in the course of your work at this location, please feel free to contact me in the FIJA office at 406-442-7800 or email@example.com so that we can strategize about how to turn the situation into an advantage to spread the message further! We do not offer legal advice or provide legal defense for activists, but we can offer you ideas and observations about successful strategies and tactics for challenging bullying and unlawful orders coming from government agents in an attempt to stifle our voices and work.