It was back in 2015 that a Michigan man was standing on the sidewalk in front of a courthouse, handing out brochures with common knowledge about juries in America, when he was ordered by officials, under the direction of a judge, to come in.
There, he was arrested, jailed under a $150,000 bond, and told that he was breaking the law by sharing his information.
All, it appeared at the time, in an effort to keep from jurors various tidbits of information about juries – how much power they have in cases, and the like.
The case against Keith Wood is now heading to appeal, and officials apparently still are trying to keep that information under wraps.
It was at a recent hearing for Wood, where his lawyers were asking for bond so he could be free while his case is appealed on First Amendment free speech questions, that the prosecutor, Amy Clapp, asked the judge for a gag order in the case.
That would prevent Wood or his lawyers from talking about the case, including to the media.
“She was very upset with the media attention given this case,” said a courtroom observer.
The judge, Eric Janes, however, dismissed the request, and then he decided that the sentence of eight weekends in jail and six months of probation should be stayed pending the decision from an appeals court.
It was just hours earlier that Judge Kimberly Booher had announced the penalty for Wood’s conviction in court of standing on the public sidewalk outside the courthouse and handing out flyers containing “generic juror rights information that said nothing about any specific case pending before the Mecosta County Courts.”
Originally charged with a felony for that, he was convicted of misdemeanor jury tampering.
Wood’s lawyer, David Kallman of the Great Lakes Justice Center, explained the major points that will be brought up on appeal.
It’s a clear First Amendment speech issue, and Booher refused to let Wood’s defenders talk about the issue with the jury, he explained.
Also, he said, “Booher refused to allow us to argue or comment to the jury on one of the elements of the crime charged. One of the elements of the crime of jury tampering is that the prosecutor must prove that Mr. Wood tried to influence jurors in the trial of a case. It would seem obvious that this element could not be proven because no trial was ever held and no jury was actually sworn in on a specific case. However, we were not allowed to argue this fact to the jury.”
Third, he said, Booher had ordered that a person becomes a juror with when they get a jury summons.
“We argued, and the [Michigan] Supreme Court has agreed in earlier case precedent, that a person is not a juror until sworn in to serve on a jury in a case. So we were also prohibited from arguing this point to the jury in Keith’s case,” Kallman told WND.
It was Mecosta County District Judge Peter Jaklevic who ordered Wood’s arrest Nov. 24, 2015, moments after Wood handed out about 50 juror rights pamphlets on the public sidewalk outside the courthouse.
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.