Is a juror legally a juror before he or she is picked for a case and sworn in? How about in the courthouse hallway? Or how about on the sidewalk in front of the courthouse? While driving to the courthouse? When a juror notice is received in the mail?
And can it be described as “jury tampering” if someone hands that person on the sidewalk a pamphlet with information that is readily available to the public on the Web or in libraries?
Some contend the issue in Michigan already was decided when the state’s Supreme Court last year ruled “a jury is not a jury until it is sworn.”
But that’s not good enough for a prosecutor and a magistrate who were offended by a former pastor’s public distribution of pamphlets about the practice of jury nullification last year.
They charged him with obstruction of justice but had to drop the count a short time later. They also charged him with a misdemeanor of jury tampering, and the pastor’s simple request to have that charge dismissed now has reached the state Court of Appeals.
The case developed when Keith Eric Wood stood on the sidewalk outside his local courthouse handing out the pamphlets.
But Judge Peter Jaklevic, Magistrate Tom Lyons, Prosecutor Brian Thiede and others inside the courthouse didn’t want him to be doing that.
They ordered him into the courthouse, arrested him and set his bond at a punitive $150,000, which left him behind bars until he could arrange to put a $15,000 tab on his credit card to get out.
Another judge shortly later dismissed the felony but left the misdemeanor standing, and a circuit court ruling also left the charge unchanged.
So now attorney David Kallman of the Great Lakes Justice Center, representing Wood, has asked the next higher court to straighten things out.
A report on jury nullification by the University of Missouri-Kansas City explains it 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 time the judiciary reversed its position, and in 1895 a defendant’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.
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.
In his new request for permission to pursue an appeal, Kallman explained that the pamphlet didn’t discuss any particular case and did not advocate for anyone on a jury to vote any particular way.
Wood simply had an interest “in members of the public” knowing a jury’s full options, he wrote.
Further, on the day that Wood was handing out the information, there was no jury picked at the courthouse, the petition explains.
The district court had concluded that every person who went to the court that day for possible jury duty was a juror.
But besides the state Supreme Court already having a say in a similar case, Black’s law dictionary, the resource of choice for most American courts, says a juror is a member of a jury, described as “a certain number of men, selected according to law, and sworn to inquire of certain matters of fact, and declare the truth upon evidence to be laid before them.”
“Consider the following scenario: Mr. Smith is on his way to potentially serve as a juror and is handed a flier on the public sidewalk in front of the courthouse. Once Mr. Smith is inside the courthouse, but before he is accepted as a juror, he slips and breaks his hip. According to the district court’s initial ruling on this issue, Mr. Smith is a juror when he is handed the flier; but the Michigan Supreme Court holds he is not yet a juror at that time or even minutes later when he breaks his hip for the purposes of receiving monetary compensation as a juror,” Kalllman wrote.
Kallman wrote that the higher court “should correct the district court’s improper ruling on this issue.”
There’s also the argument that Wood’s speech is protected by the First Amendment, the brief argues.
Wood alleges he is being prosecuted solely because of the content of the pamphlet he handed out, which, Kallman asserts, is “an impermissible restriction of his free speech.”
“Nothing in the pamphlet urges anyone to commit a crime or violate the law in any way,” the lawyer said.
He contends in the petition the lower courts did not correctly interpreted the state law.
“Mr. Wood requests that the district court’s definition of the word ‘juror’ be corrected to define a juror as a person who is sworn in to serve on a specific case,” the petition explains.
Kallman notes that other states have other definitions for “juror,” but in Michigan the high court ruled that a woman was not considered a juror when she fell in the courthouse, even though she had been summoned and was in the courthouse en route to her assignment.
“The reason for this was because she had not yet been accepted by the court to serve as a juror,” the brief explains.