Just days after a judge in Denver ordered all charges against two men accused of jury tampering for handing out informational booklets dismissed, a defense attorney for a Michigan man facing such a charge wants it dismissed, too.
Defense attorney David Kallman on Monday filed a motion on behalf of defendant Keith Wood asking that all charges in his case, which resulted from his actions in handing out similar informational brochures to the public in Michigan, be dismissed.
In a statement about the motion to dismiss, Kallman pointed out that Wood was accused of tampering with a jury “that does not exist,” the prosecution violates his First Amendment right to free speech and the case “is the result of arguable unlawful government conduct.”
The pamphlets Wood was handing out to the public were “informational pamphlets” that were being given to members of the public “on a public sidewalk.” Kallman’s statement said they’re about “the power of jurors to vote their conscience in any case, as permitted by Michigan’s Criminal Jury Instructions.”
The lawyer explained, “Democracy is a messy business; and we, as a people, have freely chosen free speech over the relative tidiness of tyranny.
But he called “troubling” the position taken by the prosecutor, that people cannot be allowed to do that.
“He is trying to scare everyone into believe that if we allow freedom of speech or, more specifically, allow jurors to vote their conscience, we will live in a lawless nation. Yet, we have lived in just such a nation for over two hundred years, with no anarchy traceable to this fundamental principle thus far.”
Judges generally dislike potential jurors being given “jury nullification” details, since they explain, simply, that once in a jury room, jurors should make a decision on the case based on their own interpretation of the law, the Constitution and the evidence.
In most cases, judges like to instruct the jurors on what they must believe about the law.
The brochure Wood was handing out, which comes from the Fully Informed Jury Association, from Montana, explains, “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.”
The brochure informs readers: “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.”
It quotes John Adams saying about 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.”
It continues, “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 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 at a recent hearing, Mecosta County Prosecutor Brian Thiede said he didn’t want jurors to be using 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.”
WND had reported when Wood, a former pastor, was arrested on the orders of Judge Peter Jaklevic and then he started raising a defense.
Kallman earlier had reported the arrest developed as Wood was on public property: “According to just released police reports, Deputy Jeff Roberts threatened Mr. Wood to either come inside the courthouse to meet with the judge or else be arrested. Under the threat of arrest, Mr. Wood was escorted to a hallway in the courthouse where Prosecutor Brian Thiede, Assistant Prosecutor Nathan Hull, and Judge Peter Jaklevic were waiting. Prosecutor Theide then questioned Mr. Wood. Mr. Wood was not given his Miranda rights prior to being questioned. Judge Jaklevic then ordered Deputy Roberts to arrest Mr. Wood for jury tampering. This entire meeting was not in the courtroom, not on the record, and without an attorney present for Mr. Wood.”
“Our defense is a First Amendment defense,” Kallman said. “My client is handing out a pamphlet saying vote your conscience and Mr. Thiede is trying to criminalize it.”
In Denver, all charges against Mark Iannicelli and Eric Brandt recently were dropped. They had faced seven counts of jury tampering.
Denver District Court Judge Kenneth Plotz ordered the cases dropped, but not before a federal civil rights lawsuit was filed in which U.S. District Judge William Martinez said 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.”
Kallman pointed out that in a recent hearing, Thiede “implied that the informational pamphlet was a veritable Jedi mind trick, containing a message so powerful, so compelling, and so convincing, that no citizen who reads it will be capable of ever rending a guilty verdict again.”
“The information that Mr. Wood shared with people on the public sidewalk was general information. It was not specific to any jury, to any defendant, or to any case,” the motion to dismiss explained. “Nothing in Mr. Wood’s informational pamphlet said anything about Mecosta County, any specific case in Mecosta County, or even indicated which way a juror should vote.”
The defense attorney also pointed out recently that should the case move forward, he would need access to all the contact for anyone who may have been at the courthouse that November day as a potential juror.
He explained he would need to ask that about what they heard or saw – to determine whether there was any of the alleged “tampering.”
WND had reported only a few weeks earlier when a Florida judge banned people from criticizing the court on its property – then quickly backtracked.
But WND reported Judge Mark Mahon of Florida’s Fourth Judicial Circuit didn’t move quickly enough, and a lawsuit was filed over his decision to order the arrest of anyone outside the courthouse, including anyone on certain public sidewalks, who questions “the integrity of the court or any of its judges.”
“Demonstrations or dissemination of materials that degrade or call into question the integrity of the court or any of its judges (e.g., claiming the courts, court personnel or judges are ‘corrupt,’ biased, dishonest, partial or prejudiced), thereby tending to influence individuals appearing before the courts, including jurors, witnesses and litigants, shall be prohibited on the Duval County Courthouse grounds,” the judge had written. Violators would be arrested, he ordered.
Legal experts immediately declared the order likely was unconstitutional, and the day after WND’s report, Mahon issued another order to replace the older one. But the new order focuses on a ban on photography of secure locations, security systems and people in those locations.
However, in the interim, two photographers, Thomas James Covenant and Jeffrey Marcus Gray, filed a lawsuit against the judge.