The libertarian Cato Institute advocates for liberty, free markets and limited government.
The American Civil Liberties Union is mostly on the opposite side in political disputes.
However, the two organizations are joining forces in a case that could set a precedent regarding free speech in Michigan.
It’s about the state’s prosecution of former pastor Keith Wood for handing out brochures about jury rights on a public sidewalk in front of the Mecosta County courthouse in November 2015 in Big Rapids, Michigan.
Officials charged him with a misdemeanor and a felony. While the felony count was dismissed, he was convicted on the misdemeanor for exercising his First Amendment rights, and his case is before the state Court of Appeals.
“It is difficult to overstate the extent to which the decision below, upholding the conviction of Keith Eric Wood, strikes at the core of the First Amendment,” Cato wrote.
“Mr. Wood was arrested and convicted for engaging in classic political advocacy (peacefully distributing pamphlets) in the quintessential public forum (the sidewalk in front of a courthouse) on a matter of public concern more ancient than Magna Carta, and at the heart of Anglo-Saxon law (the rights, duties, and independence of citizen jurors). One can well imagine why an English monarch might wish to suppress efforts to inform potential jurors of their power to resist tyranny by refusing to convict fellow citizens who had incurred the sovereign’s enmity; what is – or should be – more surprising is American courts American sovereigns to suppress such speech on American soil.”
Cato pointed out it was solely because the subject of the pamphlets was jury work that he was convicted.
“Had Mr. Wood been handing out brochures for his church or advertisements for his car, he would not have been guilty of violating the statute. … The statute is therefore a content-based speech regulation, and its application to Mr. Wood must receive strict scrutiny.”
While the state certainly wants fair juries, the Cato Institute said, there is no legitimate interest “in preventing Mr. Wood from discussing the history of jury independence with any member of the public, whether or not they have been or may be called as a juror in any action.”
The ACLU sounded a similar concern.
“If the government has discretion to punish speech it doesn’t like, none of us truly enjoys the freedom of speech,” the group submitted in another friend-of-the-court brief.
“ACLU briefs are particularly important in free speech cases because, unlike a party whose speech is at issue, the ACLU has no particular interest in supporting or agreeing with the ideas expressed. Rather, the ACLU’s interest is that of supporting the guarantees of the First Amendment so that the freedom of expression remains protected for all of us.”
The group continued: “In this case, the prosecution of defendant Keith Wood raises serious First Amendment concerns because he was convicted for pure speech. … Moreover, Mr. Wood’s speech was regarding a matter of current public debate.”
Wood’s lawyers explain he was arrested just before Thanksgiving on Nov. 24, 2015, for handing out brochures about jury rights on a public sidewalk.
“Wood shared information in a pamphlet he obtained from the Fully Informed Jury Association (FIJA), a federally recognized 501(c)(3) non-profit educational organization. The pamphlet informed citizens of a particular topic and viewpoint concerning their legal authority and power as jurors, including the right of jury nullification. Mr. Wood was aware of a criminal case that was calendared for a possible trial that day. He did not, however, personally know the defendant or defense counsel. He had no personal stake in the outcome of that case. Mr. Wood was simply interested in members of the public knowing their authority. The pamphlet did not discuss any particular case. He gave brochures to anyone willing to take one. Some individuals receiving a copy had been summoned to appear that day for potential jury duty in a case set for a potential trial. No one was identified as a juror because no jury had yet been selected. In fact, no trial was ever held that day since the case settled just prior to the start of the trial,” they explained.
Then the problems began.
“Magistrate Thomas Lyons went outside to investigate and speak with Mr. Wood. Magistrate Lyons confronted Mr. Wood and instructed him that he should not share the information in the pamphlet on a public sidewalk. Mecosta County District Court Judge Peter Jaklevic also took issue with Mr. Wood sharing information outside the courthouse and apparently discussed with Deputy Jeff Roberts and Prosecutor Brian Thiede how to stop Mr. Wood. Judge Jaklevic ordered Deputy Roberts to go outside and bring Mr. Wood into the courthouse to speak with him. Deputy Roberts also spoke with DNR Detective Janet Erlandson and Prosecutor Thiede about Mr. Wood’s expressive activities. Prosecutor Thiede directed Detective Erlandson and Deputy Roberts to bring Mr. Wood inside the courthouse to speak with Judge Jaklevic. Detective Erlandson and Deputy Roberts confronted Mr. Wood outside on the public sidewalk and demanded to see his papers. After being coerced by a threat of arrest by Deputy Roberts, Mr. Wood was escorted into the courthouse,” Wood’s lawyers explained.
“Mr. Wood was taken to a hallway where Judge Jaklevic, Prosecutor Thiede, and Assistant Prosecutor Nathan Hull were waiting. Mr. Wood never distributed any of the informational pamphlets inside the courthouse. Despite the coercive demands of Deputy Roberts that Mr. Wood needed to come inside the courthouse to speak with the judge, Judge Jaklevic never spoke directly to Mr. Wood. 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 in a hallway; not in the court room, not on the record, and without an attorney present for Mr. Wood. At the time law enforcement arrested Mr. Wood, no jury had been picked or sworn in to serve on any case. Again, no jury was selected or sworn in at any time that day in Mecosta County District Court.”
He eventually was accused of obstruction of justice and jury tampering, and he was subjected to “punitive” bond of $150,000.
The obstruction charge was dismissed.
At trial Woods was deprived of his right to argue his defenses, his lawyers said, and convicted.
The case now is on appeal.
Also submitting a brief was the Fully Informed Jury Association, which published the brochures Wood was handing out.
“FIJA submits that the arrest, prosecution and conviction of Keith Wood in this matter constitute a terrible miscarriage of justice and a stain on the legal history of the state of Michigan.”
It affirms that its brochure’s warnings about “new attempts” to limit jury power are “entirely accurate,” and no ideas expressed in the brochure constitute unlawful tampering “which might induce any juror to act unlawfully in any specific case.”
FIJA continued: “The evidence … to convict Keith Wood of jury tampering is insufficicient under the plain text and meaning of this statute. Accordingly, Keith Wood was improperly convicted and is entitled to a judgment of reversal with an order for the trial court to dismiss this action. No instruction or set of instructions could cure the error in a new trial.”
The association pointed out that the brochure talks about the history, authority and powers of juries, and “nothing contained” has been challenged as untrue.”
Wood’s defender, David Kallman, contends 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.
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.