A former pastor’s conviction for jury tampering – he handed out on a public sidewalk a widely recognized brochure on the rights of jurors – will be appealed because the trial judge didn’t allow First Amendment arguments, according to the man’s attorney.
“Absolutely we are going to appeal. The judge did not let us argue the free-speech issue to the jury or the fact that no trial was actually held and therefore the elements of the crime could not be met,” said attorney David Kallman of the Great Lakes Justice Center regarding the case against Keith Wood.
Kallman told WND that even though the magistrate was a witness in the case, the trial judge refused to allow him to question the magistrate regarding the $150,000 bond he set for Wood. Kallman said he wanted “to delve into his possible bias or credibility as a witness.”
“There are also other issues we will raise on appeal,” he said. “Obviously, we are disappointed with the verdict, but it is not surprising given the constraints placed upon us by the trial judge.”
Wood was convicted in Mecosta County Circuit Judge Kimberly Booher’s courtroom of trying to influence a jury after she banned most references to the First Amendment and also defined a juror as anyone who is summoned for jury, WXMI-TV in Grand Rapids, Michigan, reported Friday.
WND reported earlier this year that prosecutors contend Wood tampered with a jury even though there was no jury empaneled that day.
The issues in the case center on free speech, the rights of jurors, the rights of citizens on public sidewalks to express their opinion – and share information – and efforts by judges and prosecutors to run the court system by their preferences.
For example, 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 the citizen be charged with improperly influencing a jury?
The state’s Supreme Court has ruled that “a jury is not a jury until it is sworn,” but in Woods’ case, prosecutors contended that any potential juror also is considered a juror, and Booher affirmed that.
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.
Wood was handing out to passersby a pamphlet from a federally recognized 501(c)3 education organization when he was ordered into the courthouse. 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.
WND reported earlier in the case the pamphlet is about the concept of jury nullification. It 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.