If you’re Julian Heicklen, the answer may be: very difficult, if not impossible.
“I found when I wanted to get arrested, it’s not easy,” Heicklen said. “The truth is I didn’t want to get arrested here, but I suspected I would get arrested.”
But he wasn’t, even though Heicklen spent several hours on Monday violating a judge’s administrative order not to distribute pamphlets about jury nullification to prospective jurors entering the Orange County Courthouse in downtown Orlando.
Last January, Chief Justice Belvin Perry Jr. issued an administrative order banning anyone from handing out written material to prospective jurors on the grounds that it represented a form of jury tampering.
The order may have been directly aimed at Mark Schmidter, an Orlando Libertarian activist who had gotten involved in a group called the Fully Informed Jury Association, or FIJA, which passes out written materials to prospective jurors, encouraging them to engage in jury nullification — or voting to acquit someone of a crime even when the evidence strongly indicates the person is guilty.
FIJA’s goal is to encourage jurors to vote not guilty if they disagree with or disapprove of the law that person is being charged with. That result, the organization based in Montana believes, will send a message to state and federal lawmakers that there are too many victimless crimes that people are being prosecuted for.
Schmidter endorsed the concept and spent four months handing out the flyers every Monday morning in front of the courthouse — until Perry issued his order on Jan. 31.
The American Civil Liberties Union responded with a lawsuit challenging the judge’s order, which FIJA supported. Heicklen, though, offered to come by the courthouse and hand out the flyers – to engage in civil disobedience that leads to his arrest for violating Judge Perry’s administrative order.
But when he appeared in front of the courthouse around noon last Friday, and then again on Monday morning at 7:30 and again on Monday at noon, nothing happened – at least in terms of his getting arrested.
“I violated an order. It wasn’t the law I violated,” Heicklen said today.
And while a police officer never showed up to order him to leave the courthouse property or cease and desist, Heicklen thinks a lot happened at the courthouse just the same – namely, that Judge Perry threw in the towel.
“He’s not enforcing this order he issued, which means that it will be very much difficult for him to enforce it with someone else,” Heicklen said. “This is selective enforcement. That usually means it gets thrown out. You can’t decide you want to enforce it for one person and not another. We nullified this order.”
Schmidter agreed, saying “They just wouldn’t arrest him when he was there Monday morning and Monday afternoon. There was nothing else we could do. We could keep going down there, but in one way, we’ve already won. If somebody else goes down there and gets arrested, then the argument would be ‘Why didn’t you arrest Julian when you had three chances to do it?’ “
Schmidter got involved in distributing the FIJA flyers because he believes the United States has too many laws, and prosecutes too many people for victimless crimes. He’s hoping jurors start sending lawmakers a message if they refuse to convict people of crimes they don’t think belong on the books.
He also believes the judge’s order was unconstitutional, since the FIJA material did not address specific cases the jurors would be hearing.
“It was unconstitutional, so maybe what the judge did was just to write it to get us to buzz off,” Schmidter said. “Maybe he knew it was groundless. On Monday I called up Jill, (a secretary) in his office and said ‘Hey, we’re down here, why don’t you come arrest us,’ and they never did.”
Once the judge issued the administrative order, Schmidter had avoided handing out the flyers at Orange County Court, and instead began doing the same thing in front of Seminole County Courthouse.
“I’ve been going up Monday mornings to Seminole County, and we’ll still go up to Volusia County (Courthouse),” he said. “But for right now, we’re not going back to Orange County, so we’ll let this thing go through the courts.”
As for Heicklen, who lives in Pennsylvania, his next stop is Tampa for a Liberty Summit, where he plans to set up a booth and sell copies of his recently published book The Non-Trials as lived by Julian Heicklen, which is available on Amazon.com by logging onto http://www.amazon.com/Non-Trials-lived-Julian-Heicklen.
After that, the retired Professor Emeritus at Penn State University in State College, Pennsylvania, returns home, without an Orange County arrest report on his record, while Schmidter will carry on the fight for FIJA here in Orlando.
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