It’s not a final victory. But a defendant in a battle royale in Michigan over free speech, the rights of jurors to be fully informed about their rights and how courts operate has won a battle.
Keith Wood, convicted of “jury tampering” for handing out a common brochure that describes the rights and responsibilities of jurors in America, has been given permission to appeal his conviction.
The request was approved this week by the Michigan Court of Appeals, which relieves him of the obligation to spend weekends in jail and opens the door for his record to be cleared.
Wood was arrested for simply handing out informational pamphlets on a public sidewalk about the power of jurors to vote their conscience, according to his defenders, “as permitted by Michigan’s Criminal Jury Instructions.”
District court judges and prosecutors, including those who ordered him to shut up about juror rights and get off a public sidewalk, had refused him permission to remain free on bond while his case was under appeal.
Wood’s defender, David Kallman, contended the prosecution violated Wood’s First Amendment rights. He asserted the charge is unfounded, because “it is impossible to tamper with a jury that does not exist” and the government’s judiciary engaged in “unlawful” conduct in prosecuting him.
Wood argues in his court filings that judges, prosecutors and law enforcement officials “must discharge their duties within the confines of our Constitution.”
“Citizens hold many differing political views, and they often hold them passionately. They may express those views even in ways that offend government officials. The price for our freedom is that we might be subjected to views that offend us. Democracy is a messy business; and we, as a people, have freely chosen free speech over the relative tidiness of tyranny.”
Further, the evidence indicates that although court officials accused him of jury tampering, he had no interaction with any person who was a “juror in any case,” and “tampering with a jury that did not exist” is not a crime.
Lower court judges had refused to allow his bond to continue and his sentence to be delayed until the appeal was resolved, ordering him, earlier this month, immediately to jail for weekends.
The new ruling means any further part of that sentence will now be delayed.
Wood was on a public sidewalk outside the Mecosta County courthouse in 2015, handing willing recipients a pamphlet he got from the Fully Informed Jury Association, a recognized non-profit.
There was a case calendared that day for a possible jury trial, but he had no contact with those involved and did not have a stake in the outcome.
His actions infuriated court officials.
According to a brief in the case, “Magistrate Thomas Lyons went outside to investigate and confront Mr. Wood. … Lyons told Wood to not share the information in the pamphlet on a public sidedwalk.”
Then court officials ramped up their aggression.
“District Court Judge Peter Jakelvi … and Prosecutor Thiede decided that Mr. Wood should be brought inside to speak with the judge. Jaklevi ordered Court Officer Jeffrey Roberts to bring Mr. Wood into the courthouse because he wanted him to stop handing out his pamphlets on the public sidewalk,” it explains.
Eventually, Department of Natural Resources Det. Janet Erlandson and court officer Roberts ordered Wood, under threat of arrest, to go and talk to the judge.
Erlandson was accused of “manhandling” Wood on the way in, and she reportedly responded with a further threat about him being “face down on the ground.”
Then Jaklevic ended up refusing to talk with Wood. Instead, the judge ordered him arrested for jury tampering, even though no jury was empaneled that day.
Wood was charged with felony obstruction of justice, a charge later dropped, and a misdemeanor jury tampering.
Lyons then set a “punitive” bond of $150,000 for Wood.
The jury tampering charge producted a conviction after the district court simply redefined state recognition of a “juror” to be someone who is “merely summoned to appear.”
The appeal points out state law says jury tampering happens when someone tries to influence a “juror in any case,” and there was no jury at the time Wood was handing out pamphlets.
And the state Supreme Court has stated a “jury is not a jury until it is sworn.”
Kallman has stated that by prosecuting Wood, the state “engaged in nothing less than suppression of protected free speech.”
“Few legal principles are more clear than the one stating that ‘handing out leaflets in the advocacy of a politically controversial viewpoint … is the essence of First Amendment expression.'”
WND reported when prosecutors demanded a gag order that would prevent Wood or his lawyers from saying anything about the case.
WND also reported the pamphlet on jury nullification 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.
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.