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)
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
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
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
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,
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.
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
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
If any of these stipulations are not met, an interlocutory appeal will
Because of the tardiness of Defendant’s response, he agrees to a
further postponement of the hearing, if the prosecution desires.
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
Mark Schmidter, 3609 Shader Road, Orlando, FL 32808
Ben Weiser, New York Times Court Reporter, firstname.lastname@example.org
John Riley, Newsday Reporter, Riley@newsday.com
Anthony Colarossi, Orlando Sentinel Court Reporter,
Legal Advisors by E–mail