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A case against a Michigan man for handing out informational leaflets on jury nullification in front of a courthouse could impact what juries can do and how much control judges and prosecutors have of their decision-making process.

“Freedom of speech is not absolute,” argued Brian E. Theide, who is prosecuting former pastor Keith Wood on charges of obstruction of justice and attempting to influence a juror for handing out the brochures last November.

Theide has acknowledged that handing out leaflets “in the advocacy of a politically controversial viewpoint … is the essence of First Amendment expression,” but he argues the U.S. Supreme Court has found such conduct unprotected by the First Amendment.

He cited a 1907 case, centering on the Espionage Act, in which someone encouraged “insubordination” in military service.

David Kallman, a defense lawyer for Wood, however, pointed out that there was no existing “jury” with which to tamper, and the First Amendment protects such speech.

“Democracy is a messy business; and we, as a people, have freely chosen free speech over the relative tidiness of tyranny,” Kallman wrote.

A hearing is scheduled at 9 a.m. on March 23 before Mecosta County Circuit Judge Kimberly Booher, who previously decided Judge Peter Jaklevic and Magistrate Tom Lyons, who were involved in the original confrontation with Wood and personally on hand for the orders that he be arrested, must be available to be called as witnesses.

The question before the court that day will be whether or not the charges should be dismissed.

Get “Liberty’s Secrets: The Lost Wisdom of America’s Founders” by Joshua Charles to discover – or rediscover – what the Founders really intended.

A report on jury nullification by the University of Missouri-Kansas City explains jury nullification occurs “when a jury returns a verdict of ‘Not Guilty’ despite its belief that the defendant is guilty of the violation charged.”

“The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding”

Such decisions were common during the era of slavery in the United States, when juries acquitted activists who helped runaway slaves.

“Juries clearly have the power to nullify; whether they also have the right to nullify is another question,” the report said. “Once a jury returns a verdict of ‘Not Guilty,’ that verdict cannot be questioned by any court and the ‘double jeopardy’ clause of the Constitution prohibits a retrial on the same charge.”

Early in the nation’s history, “judges often informed jurors of their nullification right.”

“For example, our first Chief Justice, John Jay, told jurors, ‘You have a right to take upon yourselves to judge [both the facts and law].’ In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.”

However, over the generations the judiciary reversed its position, and in 1895 a man’s conviction was affirmed even though the trial judge “refused the defense attorney’s request to let the jury know of their nullification power.”

Now, prosecutors and judges routinely oppose even discussion of the concept, and judges tell jurors “it is their duty to apply the law as it is given to them, whether they agree with the law or not,” the report said.

“As it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across. Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given,” the report said.

The report is part of a detailed analysis of the John Peter Zenger trial of 1735 in which Zenger was acquitted, against the instructions of the government, of printing “seditious libel” against the British authorities.

“Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications – the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt. Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders – that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.

“On the other hand, jury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid – it provides some play in the joints for justice, if jurors use their power wisely,” the report said.

Ilya Somin, professor of law at George Mason University, wrote that such “discretion” actually “has much in common with prosecutorial discretion,” in which prosecutors use their own judgment to pursue some cases and not others.

He noted legal scholar Glenn Reynolds pointed out that while “the power of juries to let guilty people go free in the name of justice is treated as suspect and called ‘jury nullification,’ the power of prosecutors to do the exact same thing is called ‘prosecutorial discretion,’ and is treated not as a bug, but as a feature in our justice system.

“There’s no obvious reason why one is better than the other,” he said.

Somin explained jury nullification “is supported by longstanding Anglo-American legal tradition, and was considered a vital check on government power by many of the Founders.”

“The case for jury nullification today is strengthened by the enormous growth of modern criminal law, which has expanded to the point where almost all of us are guilty of some crime or other. … In a world where almost everyone is a criminal, there is already enormous arbitrariness, because prosecutors can only go after … a small percentage of the many perpetrators.

“Jury nullification is unlikely to make that situation worse than it already is,” he said.

WND reported this week a proposal in the state of New Hampshire would require state courts to inform juries that a defendant who has been shown to have committed a crime can be declared not guilty if a guilty verdict would “yield an unjust result.”

The plan, approved 184-145 by the state House of Representatives, would have the courts state tell jurors: “Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”

Constitutional expert Herb Titus of William J. Olson, P.C., pointed to a federal case in 2012 in which a New York judge ruled on the issue.

There, Judge Kimba Wood tossed out a case against Julian Heicklen, “saying the First Amendment protects speech concerning judicial proceedings as long as the speech doesn’t prevent fair and impartial justice.”

Fox News reported Heicklen repeatedly handed out pamphlets to people outside a Manhattan courthouse urging “jury nullification.”

The federal judge found the law would be violated only if someone tried to influenced “the action or decision of a juror on a specific case pending before that juror.”

The brochure in question in Michigan includes a statement from John Adams, who said of 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.”

Get “Liberty’s Secrets: The Lost Wisdom of America’s Founders” by Joshua Charles to discover – or rediscover – what the Founders really intended.

The Fully Informed Jury Association, which advocates publicizing the issue, recently reported that U.S. Supreme Court Justice Sonia Sotomayor had indicated an acceptance of the idea.

“The Second Circuit, where Justice Sotomayor once sat, said … in U.S. v. Thomas that a juror’s attempt to nullify the law and instead find in favor of their conscience is grounds for dismissal from the jury. … Sotomayor said the Second Circuit may have been wrong to so assiduously close off nullification,” the report said of her recent presentation to a law school.

“There is a place, I think, for jury nullification – finding the balance in that and the role judges should play,” she reportedly said.

The leaflet Wood distributed says 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,” it says.

The brochure states: “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.”

Get “Liberty’s Secrets: The Lost Wisdom of America’s Founders,” by Joshua Charles to discover – or rediscover – what the Founders really intended.

The brochure says 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 that 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.”

WND reported in another recent case a judge in Denver dismissed all charges against Mark Iannicelli and Eric Brand, who were accused of jury tampering for handing out similar informational booklets.

But before Denver District Court Judge Kenneth Plotz dismissed the charges, a federal civil rights lawsuit was filed in which U.S. District Judge William Martinez argued the pamphlets are protected speech and the men had the right to hand them out on courthouse grounds.

In a commentary at Complete Colorado, Jacob Sullum wrote about Denver DA Mitch Morrissey’s prosecution.

“Morrissey continued to pursue those charges even after conceding that such activity is protected by the First Amendment. When I asked Lynn Kimbrough, Morrissey’s public information officer, what Iannicelli and Brandt had done that crossed the line from constitutional protected speech to felonious jury tampering, she refused to say. That’s probably because Morrissey had no case.”

He continued: “Contrary to what Kimbrough claims, there was never any evidence that Iannicelli or Brandt were trying to influence the outcome of any specific case. … What happened here is pretty clear: Morrissey abused his office to punish people for speech that offended him. He persisted in that effort even after it became abundantly clear that the charges were unconstitutional, as when a federal judge in Denver ruled that activists have a First Amendment right to do exactly what Iannicelli and Brandt were arrested for doing: passing out literature arguing that jurors have the authority to judge the law as well as the facts.”

In the Michigan case, WND reported the prosecutor said in a hearing that he didn’t want jurors to use 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.”

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