How can you tamper with a jury that doesn’t exist?
The Michigan Supreme Court will review the case of a former pastor who was arrested for distributing information about juries on a public sidewalk.
Keith Wood was handing out “informational pamphlets” on the power of jurors to vote their conscience – as permitted by Michigan’s Criminal Jury Instructions – when he was ordered into a nearby courthouse and arrested, according to his legal representatives, the Kallman Legal Group.
The court also invited the Fully Informed Jury Association, the Cato Institute and the ACLU of Michigan to file arguments in the case, the legal team announced.
The state’s high court will address whether the prosecution of Wood violated his First Amendment right to free speech, whether it is possible to tamper with a jury with does not exist, whether a person is a juror before being chosen, and whether the prosecution was the result of unlawful government conduct.
“Mr. Wood believes that freedom of speech leads to more justice and more freedom, not less, and that citizens are competent to shape their own opinions without the ‘protection’ of government officials,” said David Kallman, who is representing Woods.
His briefing to the high court argues 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.”
Also, the appeal argues Wood was charged with tampering with a jury that did not exist.
“There is no such crime in Michigan,” the appeal points out. “On the day in question, Mr. Wood had no interaction with a single person who was a ‘juror in any case.'”
The appeal argues the lower courts simply redefined the state’s jury tampering statute and applied it to Wood in violation of the First Amendment.
“Our jury system is predicated upon responsible citizens voting their conscience on a jury. There is no better system in the world. Mr. Wood believes that freedom of speech leads to more justice and more freedom, not less, and that citizens are competent to shape their own opinions without the ‘protection’ of government officials,” the brief argues.
“In this case of first impression and for all the reasons stated above, the state violated Mr. Wood’s rights and his conviction must be overturned. The lower courts ignored United States Supreme Court and Michigan Supreme Court precedent and failed to address numerous significant arguments raised by Mr. Wood. If this honorable court agrees with the lower courts’ interpretation of the term ‘juror’ in the jury tampering statute, then the statute is facially unconstitutional and must be stricken to avoid violation of the First Amendment and Due Process clauses.”
The appeal seeks to have the conviction overturned and the case dismissed.
Wood has earned the support of groups as diverse as the libertarian Cato Institute and the left-wing American Civil Liberties Union.
Wood’s case began when he was handing out brochures in front of the Mecosta County courthouse in November 2015 in Big Rapids, Michigan.
He was charged with a misdemeanor and a felony. While the felony count was dismissed, he was convicted on the misdemeanor for exercising his First Amendment rights.
“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 earlier.
“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 convicted solely because the subject of the pamphlets was jury work.
“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 said 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 explained he simply wanted members of the public to know the rights of jurors.
They contend 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.”
Inside the courthouse, Jaklevic, Thiede and Assistant Prosecutor Nathan Hull confronted Wood, and Jaklevic ordered him arrested for jury tampering.
The court officials then asked for a “punitive” bond of $150,000.
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.