If a citizen hands out a pamphlet on the issue of jury nullification in front of a courthouse to people who haven’t yet been sworn in as jurors can they the citizen be charged with improperly influencing a jury?
That’s the question being posed to the Michigan Supreme Court in a First Amendment case that erupted in late 2015 when a judge in Mecosta County, a magistrate, a prosecutor and a deputy worked together to threaten a man handing out that information, arrested him and ordered him held on an exorbitant $150,000 bond.
And now the case has moved to the highest levels of the state courts in Michigan.
Attorney David Kallman of the Great Lakes Justice Center, representing Keith Wood, is asking the high court to define the word “juror,” explaining that prosecutors and others in the case against Wood have been using a definition that doesn’t align with what the high court itself has determined in the past.
That court wrote “a jury is not a jury until it is sworn.”
In Wood’s case, prosecutors contend it’s someone who might become a juror
The case developed when Wood, a former pastor, stood on the sidewalk outside his local courthouse late in 2015 handing out the pamphlets.
But Judge Peter Jaklevic, Magistrate Tom Lyons, Prosecutor Brian Thiede and others inside the courthouse didn’t want him to do 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. He was charged with felony obstruction and misdemeanor jury tampering.
Another judge shortly later dismissed the felony but left the misdemeanor standing, and a circuit court ruling also left the misdemeanor jury tampering charge unchanged.
In new arguments now submitted to the state Supreme Court – before a trial on the misdemeanor can be held – Kallman explains: “No Michigan court has ever interpreted or defined the word ‘juror’ as it applies to Michigan’s jury tampering statute. Mr. Wood is entitled to know what constitutes the crime of jury tampering before he is forced to go to trial.”
The filing explained: “The lower courts erred when they incorrectly interpreted the misdemeanor jury tampering statute while denying appellant’s motion to dismiss. In denying Mr. Woods’ motion, both the district court and reviewing circuit court incorrectly interpreted Michigan’s jury tampering statute and ignored controlling Michigan Supreme Court precedent.”
Wood was handing out to passersby a pamphlet from a federally recognized 501(c)3 education organization, the brief said.
The pamphlet told of the authority and power of jurors, and while Wood was aware court was going on that day, he did not know the defendant or counsel.
“He had no personal stake in the outcome of that case,” the filing said.
He, and the pamphlet, “did not discuss any case,” and “did not advocate a jury vote in any particular way.”
More to the point, there had been no jurors selected, impaneled or sworn in.
“Mr. Wood contends that the crime of jury tampering cannot occur where no jurors exist,” the filing explains. “In Michigan, a person must be sworn in order to become a juror.”
Kallman’s argument explained, “No published or non-published Michigan case exists in which the state charged a person with statutory jury tampering for exercising his First Amendment rights on a public sidewalk.”
WND reported last summer the case involves a pamphlet about the concept of jury nullification, which explains that juries can judge a particular law as well as a case.
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 “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.
Wood simply had an interest “in members of the public” knowing a jury’s full options, Kallman wrote.
Further, on the day that Wood was handing out the information, there was no jury selected at the courthouse, the case explained.
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.”
When charges were filed against an individual in a similar case in Denver recently, they were promptly dismissed.