Last week a Michigan judge dismissed a felony charge against Keith Wood, the activist who was arrested in November for distributing jury nullification pamphlets outside the Mecosta County courthouse. The dismissed charge, common-law obstruction of justice, carries a penalty of up to five years in prison. Wood still faces a misdemeanor charge of jury tampering, punishable by up to a year in jail, for handing out a pamphlet arguing that jurors have the right to acquit a technically guilty defendant in the interest of justice—a venerable idea that makes judges and prosecutors uncomfortable.
Wood's lawyer, David Kallman, successfully argued that the felony charge was inappropriate because it is authorized only when "no provision is expressly made" for punishment of a common-law offense. Since the jury tampering statute fits the government's allegations against Wood, Kallman said, the felony charge does not apply. Mecosta County Circuit Court Judge Kimberly Booher agreed, which did not surprise Mecosta County Prosecuting Attorney Brian Thiede. According to WOOD, the NBC station in Grand Rapids, "Thiede said that he expected the felony to be dismissed and that he has no real desire to see Wood behind bars." Rather, "he just wants to make sure that no one else tries the same stunt."
By Thiede's own account, then, he brought a felony charge he knew was inapplicable to teach Wood a lesson and send a message to anyone else who might consider engaging in political speech that offends Thiede. MLive Media Group reports that "Thiede argued at a probable cause hearing in December that the [jury nullification] literature misrepresented the legal system and could lead to a lawless society," since "jurors could set bombers and killers free if they believed in the motivation behind the crime." Last week Thiede remarked that "the defense is saying a juror's oath does not mean anything," adding sarcastically, "What a wonderful world."
Peter Jaklevic, the judge who ordered Wood's arrest, likewise takes a dim view of jury nullification. Apparently so does Magistrate Thomas Lyons, who set Wood's bail at $150,000—a punitively high figure that forced him to pay a $15,000 deposit by credit card to get out of jail. In a decision that reflects the frivolousness of the felony charge, Judge Booher eliminated the bond and ordered the entire $15,000 refunded to Wood, a 39-year-old former pastor and father of seven. WXMI, the Fox station in Grand Rapids, says a 100 percent bond-deposit refund is "a rarity," since the court usually keeps a 10 percent administrative fee.
Booher declined to dismiss the jury tampering charge, which applies to "a person who willfully attempts to influence the decision of a juror in any case" (except as part of the trial). Thiede argues that Wood was attempting to influence the outcome of the only case for which a jury was scheduled to be selected that day, involving an Amish man named Andrew Yoder who was charged with violating a wetland regulation and ultimately decided to plead guilty. Thiede says Wood was trying to "pollute the entire jury panel."
In his brief seeking dismissal of the charges against Wood, Kallman says Wood was aware of the Yoder case but "did not…personally know the defendant and had no personal stake in the outcome." In any event, he argues, "it is impossible to tamper with a jury that does not exist," and none was ever selected in Yoder's case. Booher rejected that argument, concluding that a jury panel member counts as a "juror in any case" under the jury tampering statute.
Kallman also argues that Wood was not trying to affect the outcome of any particular case but was merely distributing general information about jurors' rights. He says trying to punish Wood for doing that clearly violates the First Amendment, since the case against him is "solely based on the prosecutor and judge's disagreement with his topic and his views." Thiede's interpretation of the jury tampering statute therefore turns it into a content- and viewpoint-based restriction on speech, which is presumptively unconstitutional.
"This case is quite simple," Kallman writes. "Jurors have the power to vote their conscience and disregard a trial court's instructions….The government authorities in this case do not want members of the public to know, or be made aware of, their power. These authorities, therefore, arrest, charge, and imprison those who dare exercise their First Amendment free speech rights to inform citizens of their lawful power." While that argument did not convince Booher to dismiss the jury tampering charge, a version of it could sway the jurors who hear Wood's case. Regardless of whether he broke the law, they will have the power to acquit him, and it will be pretty hard to keep them in the dark about that power.
The Fully Informed Jury Association, which produced the pamphlet that Wood distributed, is tracking the case.