If a Michigan judge wanted to keep jury nullification information away from potential jurors in his court by ordering the arrest of a man handing out brochures on public property, he might have made the wrong move.
Because now, as WND reported was planned several days ago, a defense lawyer has explained in a court filing that if his client is tried for jury tampering, “everyone in the jury pool is a potential witness” and “it is imperative that Mr. [Keith Eric] Wood be given the opportunity to see what those jury pool members witnessed on the day in question.”
He wants the “names and contact information of the entire jury pool that was called to the court on Nov. 24, 2015, to both parties.”
After all, “Members of the jury pool may have exculpatory or impeachment evidence which is critical to Mr. Wood’s defense in this case.”
The requests, submitted by defense attorney David Kallman, are on behalf of Wood, who was ordered arrested by Mecosta County District Judge Peter Jaklevic after he dispatched court officials to order Wood into the courthouse from the public property outside.
Jaklevic and one prosecutor in the case already have been subpoenaed as witnesses in the fight over free-speech rights.
Judges generally dislike potential jurors being given “jury nullification” details, since they explain, simply, that once in a jury room, jurors should make a decision on the case based on their own interpretation of the law, the Constitution and the evidence.
In most cases, judges like to instruct the jurors on what they must believe about the law.
The brochure Wood was handing out, which comes from the Fully Informed Jury Association, from Montana, explains, “Judges only rarely ‘fully inform’ jurors of their rights, especially their right to judge the law itself and vote on the verdict according to conscience. In fact, judges regularly assist the prosecution by dismissing prospective jurors who will admit knowing about this right – beginning with anyone who also admits having qualms with the law.”
The brochure informs readers: “You may, and should, vote your conscience; You cannot be forced to obey a ‘juror’s oath’; You have the right to ‘hang’ the jury with your vote if you cannot agree with other jurors.”
It quotes John Adams saying about jurors, “It is not only his right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
It continues, “Americans colonists regularly depended on juries to thwart bad law sent over from England. The British then restricted trial by jury and other rights which juries had helped secure. Result? The Declaration of Independence and the American Revolution.”
It explains in 1972, the D.C. Circuit Court of Appeals found a jury has an “unreviewable and irreversible power … to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine upon instances of the jury’s exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law.”
At a preliminary hearing just days ago, another judge took under advisement a number of defense motions regarding the case, as well as prosecution motions that most of those involved in Wood’s arrest be exempted from testifying.
In addition to asking for the jury pool details, documents provided to WND on Tuesday also show that Wood is asking for his bond, set at $150,000, be reduced to a personal recognizance bond, and that the $15,000 he posted, on a credit card, be returned in full.
That’s because Wood has had no criminal history for 20 years, has his own business locally and has never missed a court hearing.
Regarding the jurors themselves, contact is needed, the defense counselor said.
“Here, a man’s liberty is at stake. If it was appropriate to release jury information to the media [in a previous case], how much more is it appropriate to release it to a defendant in order to help him prepare his defense? Especially in a case alleging jury tampering. Mr. Wood must be allowed to determine who was present on the day in question and find out what they know.”
WND reported after the preliminary hearing that Mecosta Circuit Court Judge Kimberly Booher heard arguments on several motions.
At that hearing, Mecosta County Prosecutor Brian Thiede, one of those subpoenaed to testify, said he didn’t want jurors to be using their own consciences to decide cases.
“We could have a juror that thinks jihad is righteous,” he warned. “There are some consciences out there I don’t want voting that way.”
His comments were reported at MLive.com, one of many news organizations to be reporting on the case on which WND has been reporting since it erupted as a controversy several weeks ago.
WND had reported when Wood, a former pastor, was arrested on the orders of Jaklevic and then he started raising a defense.
Wood’s bond was set at $150,000 in what Kallman described as a foiled attempt by the judiciary to keep Wood from his family over Thanksgiving. Wood responded by putting $15,000 on a credit card to leave jail.
The judge had ordered court officials to bring Wood into his courthouse, then ordered Wood’s arrest.
Kallman told WND earlier more details were being uncovered about what happened.
In a statement released to the media, he said Wood was arrested “for simply handing out brochures about jury rights on a public sidewalk in front of a courthouse. The court set a $150,000 bond to try to force Mr. Wood to be in jail over Thanksgiving away from his family and refused to appoint him a court-appointed attorney.”
Kallman continued, “According to just released police reports, Deputy Jeff Roberts threatened Mr. Wood to either come inside the courthouse to meet with the judge or else be arrested. Under the threat of arrest, Mr. Wood was escorted to a hallway in the courthouse where Prosecutor Brian Thiede, Assistant Prosecutor Nathan Hull, and Judge Peter Jaklevic were waiting. Prosecutor Theide then questioned Mr. Wood. Mr. Wood was not given his Miranda rights prior to being questioned. Judge Jaklevic then ordered Deputy Roberts to arrest Mr. Wood for jury tampering. This entire meeting was not in the courtroom, not on the record, and without an attorney present for Mr. Wood.”
“Our defense is a First Amendment defense,” Kallman said. “My client is handing out a pamphlet saying vote your conscience and Mr. Thiede is trying to criminalize it.”
Thiede alleged Wood was trying to impact the jurors for a land use case against an Amish man.
Kallman pointed out, “At the time Mr. Wood was arrested no jury had been sworn in on any case. In fact, no jury was sworn in … that day in Mecosta County District Court.”
Testimony also submitted in written form confirmed that court personnel had confiscated the brochures from as many people as they could.
But court records show that the judge and a magistrate conceded that they will have to testify.
WND reported the felony charging document naming Wood alleges he obstructed justice by “knowingly and intentionally giving the members of the 77th District Court jury pool a pamphlet that encouraged the jurors to violate their oaths and directly contradicted the instructions the jurors would be given thereby tainting the entire jury panel.”
The complaint signed by a “court personnel,” Jeffrey W. Roberts, also claimed Wood tried to influence the decision of a juror in a proceeding that was not part of the court.
The first is a felony carrying a possible five years and $10,000 in fines. The second is a misdemeanor.
Kallman has said the fight is about speech.
“The judge directly ordered him to be arrested for jury tampering, for tampering with a jury that didn’t exist, now wrap your head around that,” he said.
A similar case developed just weeks ago in Denver.
There, a federal judge upheld the First Amendment right of protesters to hand out jury nullification pamphlets near the federal courthouse.
The judge found authorities could ensure public access to the court was unimpeded but could not impose a “no-protest” zone there.
In that case, Eric Brandt and Mark Iannicelli were accused of jury tampering for handing out similar pamphlets. A judge shortly later issued an injunction barring similar arrests and a civil rights attorney has filed a First Amendment lawsuit for damages on behalf of the two.
WND had reported only a few weeks earlier when a Florida judge banned people from criticizing the court on its property – then quickly backtracked.
But WND reported Judge Mark Mahon of Florida’s Fourth Judicial Circuit didn’t move quickly enough, and a lawsuit was filed over his decision to order the arrest of anyone outside the courthouse, including on certain public sidewalks, who questions “the integrity of the court or any of its judges.”
“Demonstrations or dissemination of materials that degrade or call into question the integrity of the court or any of its judges (e.g., claiming the courts, court personnel or judges are ‘corrupt,’ biased, dishonest, partial or prejudiced), thereby tending to influence individuals appearing before the courts, including jurors, witnesses and litigants, shall be prohibited on the Duval County Courthouse grounds,” the judge had written. Violators would be arrested, he ordered.
Legal experts immediately declared the order likely was unconstitutional, and the day after WND’s report, Mahon issued another order to replace the older one. But the new order focuses on a ban on photography of secure locations, security systems and people in those locations.
However, in the interim, two photographers, Thomas James Covenant and Jeffrey Marcus Gray, filed a lawsuit against the judge.