Jury Nullification

Juror Rights Pamphleteer Says Prosecutors Twisted the Law to Silence Him

Michigan activist Keith Wood argues that his jury tampering conviction violated the First Amendment.



Keith Wood, the Michigan activist who was convicted of jury tampering last June for handing out pamphlets about jurors' rights near the Mecosta County courthouse, argues in an appeal filed this week that local officials who disagreed with the ideas he was promoting violated his First Amendment rights by misreading state law. Although Wood was convicted of trying to improperly "influence the decision of a juror in any case," he says, no one who received a flyer from him qualified for that description.

On November 24, 2015, the day that Wood distributed pamphlets he had ordered from the Fully Informed Jury Association (FIJA), the only case pending at the courthouse involved Andy Yoder, a local man who was accused of illegally filling a wetland on his own property. Wood testified that he had taken an interest in Yoder's case and knew it had been scheduled for a possible trial but did not realize no other cases were pending that day. Wood said he did not discuss the case with anyone, merely offering the FIJA pamphlet to passers-by without knowing who among them had been summoned for jury duty. The pamphlet argues that jurors have a right and a duty to judge the law as well as the facts, a position that has deep historical roots but remains controversial, especially among judges and prosecutors.

Since Yoder ended up pleading guilty, no jury was ever chosen to hear his case. Prosecutors argued that every prospective juror nevertheless qualified as a juror in Yoder's case, and they identified two who had received FIJA pamphlets. Wood's lawyer, David Kallman, says that's a clear misinterpretation of the statute.

Kallman cites a 2015 case in which the Michigan Supreme Court said "a jury is not a jury until it is sworn" and a 1961 case in which the same court ruled that a prospective juror did not qualify as a juror entitled to worker's compensation for an injury. He notes that in 1955, when Michigan's jury tampering statute was adopted, Black's Law Dictionary defined juror as "one member of a jury" and defined jury as "a certain number of men, selected according to law, and sworn to inquire of certain matters of fact, and declare the truth upon evidence to be laid before them."

Kallman contrasts the jury tampering statute with Michigan's juror bribery statute, which explicitly includes "any person summoned as a juror." The latter law immediately precedes the former. "It is obvious that the legislature intended the juror bribery statute (MCL 750.120) to encompass every person summoned as a juror," Kallman writes, "but it did not intend the general jury tampering statute (MCL 750.120a) to be so broad as to include every person summoned." He also points to the jury instruction originally proposed by the prosecution, which included as the first element of jury tampering "that [name juror involved] was a juror in the case of [name case in which juror sat]." Neither of the pamphlet recipients identified by the prosecution ever sat in Yoder's case.

"In short," Kallman says, "Mr. Wood was charged with tampering with a jury that did not exist. There is no such crime in Michigan. On the day in question, Mr. Wood had no interaction with a single person who was a 'juror in any case.' Indeed, no jury was selected, empaneled, or sworn on the day in question."

Kallman argues that the interpretation of the jury tampering statute proposed by the prosecution and endorsed by the trial court "has now made a substantial amount of constitutionally protected speech a criminal offense." For example, "if Mr. Wood had started handing out pamphlets to the summoned potential jurors after the Court released them on the day in question, under the Trial Court's redefinition, he could still be charged with jury tampering because they were still summoned for that month." Counting anyone who receives a jury duty notice in the mail as a juror renders the law void for vagueness, Kallman argues, since people could not reasonably be expected to understand that a conversation with such a person might be deemed a crime.

Such a broad and vague prohibition invites discriminatory enforcement, Kallman says, and that is exactly what happened in Wood's case: The judge who ordered his arrest and the prosecutors who pursued charges against him (which included a felony obstruction of justice charge that was later dismissed) were offended by the notion that jurors should vote their conscience, even if that means acquitting a technically guilty defendant. Mecosta County Prosecutor Brian Thiede said the FIJA pamphlet is dangerous because "we would have a lawless nation if people were to vote their conscience." Kallman notes that Thiede "even went so far as to say that if people are exposed to the content of the brochure, it would create a lawless nation where terrorists and clinic bombers could potentially go free."

Kallman says Thiede "attempted to characterize the content in the pamphlet as 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 rendering a guilty verdict again." He calls that argument "patently absurd." In any case, "it is absolutely clear that it was the content and message that Mr. Wood was spreading that caused the State to silence him."

The trial judge, Kimberly Booher, nevertheless dismissed Wood's First Amendment argument out of hand, saying testimony suggested he was trying to influence jurors in a trial he thought would happen that day. "The Trial Court cited nothing in support of its personal opinion that Mr. Wood's conduct was not protected by the First Amendment," Kallman writes. "The Trial Court's complete lack of First Amendment analysis is very troubling."

Kallman says he has been unable to identify any other Michigan case in which a defendant was convicted of jury tampering merely for distributing pamphlets on a public sidewalk. "State officials in this case unconstitutionally abused the power of the State to arrest and charge Mr. Wood with crimes in order to harass, intimidate, and silence him and because they disagree with the content of his message," he writes. "By prosecuting Mr. Wood, the State engaged in nothing less than suppression of protected free speech."

Wood, a former pastor and father of seven, was sentenced in July to eight weekends in jail, plus $545 in fines, 120 hours of community service, and six months of probation. He is free pending his appeal.