734 Rutland Avenue
Teaneck, NJ 07666

November 29, 2011

Judge Kimba Wood
U. S. District Court
Southern District of New York
U. S. Courthouse
500 Pearl Street
New York, NY 10007

Re: U. S. v. Julian Heicklen: Criminal Case # 10 Crim. 1154 (KMW)

Judge Wood:

First I wish to apologize for my delay in responding to your reply of September 6, 2011 to my letter of August 15, 2011.  On August 22, 2011, I was arrested in Orlando, Fl for distributing jury information near the Orange County Courthouse in Orlando.  I was incarcerated in the Orange County jail without bail.  The trial was on September 1, 2011.  Judge Belvin Perry, the complainant, acted as judge and prosecutor.  As might be expected, I was found guilty and sentenced to 145 days in jail.  On September 15, I was released on $12,000 bond, pending appeal.

On my return home, I devoted all of my time and energy to my election campaign as the Libertarian Party candidate for the NJ Assembly in the 37th election district.  After the election on November 8, 2011, it was necessary to attend to personal matters which had been neglected since my trip to Orlando.  It was not until November 20, 2011, that I had the time to read the correspondence from you, the U. S. Attorney, or my stand-by counsel.

I believe that my stand-by counsel wrote an excellent memorandum of law.  I support it except for only one change.  I do not accept the view that the judge nor anyone else, including a defendant, has the decision-making prerogative to decide not to have a jury trial.

The U. S. Constitution is quite clear on this issue in two places.  In Article III, Sec. 2, it states: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”  In Amendment VI, it states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,...”

The courts do not have the authority to amend the Constitution.  Article V stipulates that amendments can be done only by the consent of 3/4 of the state legislatures or state conventions.  Article VI of the U. S. Constitution states that: “This Constitution,... shall be the supreme Law of the Land,...”  Judge Wood took an oath of office to uphold the U. S. Constitution, not decisions of any court.

 here are some ambiguities in the U. S. Constitution, such as in Amendment V, which states: “No person shall be held to answer for a capital, or otherwise infamous crime,...” and in Amendment VIII: Excessive bail shall not be required,...”  It is not specified who is to decide what is an infamous crime or excessive bail. 

George Washington thought this was the prerogative of the President and that was the purpose of the veto power.  This idea seemed to exist until the Marshall court claimed that authority [Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)].  Since then it has generally been accepted that the U. S. Supreme Court can make those decisions.  It has never been accepted that any court can amend the U. S. Constitution.  Jury trials must be available in ALL criminal cases.

     If there ultimately is a trial, I demand that it be a jury trial in conformance with Article III, Section 2 and Amendment VI of the U. S. Constitution which require a jury trial in ALL criminal cases.  No exceptions are permitted by the wording of both statements in the U. S. Constitution. The fact that the U. S. Supreme Court may disagree with my demand is irrelevant.  No court can amend the U. S. Constitution.  You took an oath to uphold the U. S. Constitution, not the Supreme Court.

    There is an additional reason in this specific case why a judge should not be allowed to prohibit a jury trial.  The outcome of this case could limit the authority of judges in general.  No judge can be expected to be impartial in such a situation.

    My reply to the U. S. Attorney’s response “Government’s memorandum of law in opposition to defendant’s motions” is enclosed. Additional information may be submitted by my stand-by counsel.

    My reply is a detailed, point by point, discussion of the Government’s  Memorandum.  Her elements are not numbered as required by court rules, which makes it more difficult to identify them.  I have identified them only by page number.  A summary of my response follows:

The U. S. Attorneys agree that jury nullification is legal, but telling anyone the truth about unclassified material may be criminal. 

Since when is telling the truth a crime?  No evidence is given that telling the truth about unclassified material can be criminal.

The U. S. Attorneys agree that distributing jury nullification, or any other material, is permissible in a public forum.  They argue that the plaza in front of any courthouse is not a public forum. Thirty nine other U. S. courthouses do not support that position. 

Public sidewalks are public forums.  The principal use of the plaza in front of the courthouse at 500 Pearl Street is as a sidewalk between Pearl and Centre Streets.

  The grand jury indictment is void for several reasons:
a) Defendant was not notified of the hearing, so could not defend himself,
b) no tampered juror was named nor testified,
c) no jury that Defendant appeared before was identified,
d) no trial that was affected by Defendant’s actions was identified.

Unless the U. S. Assistant Attorney Mermelstein can successfully refute the previous statements concerning the grand jury hearing, she is guilty of lying to a grand jury. The case must be dismissed, and Ms. Mermelstein and Preet Bharara should be disbarred and prosecuted.

In addition, I point out that Exhibits B and C of the government’s Memorandum are not permissible evidence, because they were not sent, written, given, or directed to jurors.  My personal opinions are not (or should not be) on trial.  There are several issues involved here.  I believe that they should be decided in the following order:

Is advocating jury nullification in a public forum protected by the First Amendment of the U. S. Constitution?

If so, is the plaza in front of the U. S. District Courthouse at 500 Pearl Street a public forum?

If the plaza in front of the U. S. Courthouse at 500 Pearl Street is not a public forum, is distributing jury nullification there still Constitutionally protected speech?

If the responses to the above questions are favorable to the Defendant, the case must be dismissed.

If the responses permit prosecution, then the validity of the indictment must be established. If the validity of the indictment is denied, the case must be dismissed.

If the validity of the indictment and trial are established, the prosecution must identify both the jurors and the jury referred to in the indictment.  The defense intends to interview all witnesses prior to trial in the presence of a court reporter and a person who can and will deliver an oath.

The court must agree that any person involved in law enforcement, opposes jury nullification, advocates physical or vocal abuse of Defendant or Jews, or is a member of a religion or cult that advocates physical or vocal abuse of Jews, will not be permitted to sit on the jury.

If any of these stipulations are not met, an interlocutory appeal will be filed.

Because of the tardiness of Defendant’s response, he agrees to a further postponement of the hearing, if the prosecution desires.

Sincerely yours,

Julian Heicklen
Counsel Pro Se

Encl: Reply to Response Memorandum of Law of the U. S. Attorney

CC:  Pto Se Clerk, U. S. District Court, Southern District of New York, 500 Pearl Street, New York, New York, 10007

Assistant S. Attorney, Rebecca Mermelstein, S. D. N. Y., U. S. Courthouse, 300 Quarropas Street, White Plains, NY 10601

U S. Federal Public Defender Sabrina Shroff, Federal Defendes of New York, Inc., Southern District, 52 Duane Street–10th Floor, New York, NY 10007

Attorney Adam Sudbury, 404 E. Central Boulevard, # 307, Orlando, FL 30801–1923

Mark Schmidter, 3609 Shader Road, Orlando, FL 32808

Ben Weiser, New York Times Court Reporter, weiser@nytimes.com

John Riley, Newsday Reporter, Riley@newsday.com

Anthony Colarossi, Orlando Sentinel Court Reporter, acolarossi@orlandosentinel.com

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