Free Speech

This Crackdown on a Jury Nullification Activist Violates the First Amendment

What’s at stake in Michigan v. Wood

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"Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum." So held the U.S. Supreme Court in Schenck v. Pro-Choice Network of Western New York (1997). Unfortunately, the Michigan Court of Appeals has taken a dimmer view of what the First Amendment protects. In Michigan v. Wood (2018), that court upheld the criminal conviction of Keith Eric Wood for handing out pro-jury-nullification pamphlets while standing on the public sidewalk outside his local courthouse. The Michigan Supreme Court is now weighing Wood's appeal.

The matter arose in 2015, when Wood took to the sidewalk in front of the courthouse in Big Rapids, Michigan, and distributed pamphlets he had obtained from the Fully Informed Jury Association. "You may, and should, vote your conscience," the pamphlets told prospective jurors. "You cannot be forced to obey a 'juror's oath.'"

Two of the people who took the pamphlets had been summoned to court that day for jury duty. This led the authorities to bring Wood up on charges of jury tampering, a crime defined by the state as "willfully attempt[ing]…to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case."

The Michigan Court of Appeals rendered its judgment on Wood's fate three years later. Pushing back against the argument that Wood's conduct was "pure speech" and that "the state has no compelling interest in preventing a person from distributing educational pamphlets to potential jurors in public spaces," Chief Judge Christopher Murray ruled that his behavior was "precisely the type of speech states have a compelling interest in regulating through validly enacted statutes."

In a friend of the court brief submitted to the Michigan Supreme Court on Wood's behalf, Cato Institute legal scholars Clark Neily and Jay Schweikert offer a persuasive diagnosis of that ruling's constitutional ills. "The State not only lacks a compelling interest in censoring the speech at issue here," the brief points out, "but rather has no legitimate interest at all in preventing people like Mr. Wood from educating their fellow citizens about the injustice-preventing role that juries have played in our system of government for more than eight centuries."

Exactly. We're not talking here about a violent thug menacing jurors in the hopes of gaining an acquittal. We're talking about a civically minded citizen exercising a bedrock constitutional right in a public forum. There is no good justification for this censorship. The Michigan Supreme Court should overrule the lower court's judgment and wipe Wood's speech-suppressing conviction from the books.

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  1. “The Michigan Supreme Court should overrule the lower court’s judgment and wipe Wood’s speech-suppressing conviction from the books.”

    Oh you were serious. Let me laugh even harder.

    1. This “speech-suppression” nonsense really has gone too far. The state has every right to decide which “speech” crosses the line and poses a threat to public safety. Imagine the storm that would have been unleashed here at NYU if the jury had been allowed to “nullify” the results we were able to secure, a little bit of money here, a phone call there, in our nation’s leading criminal “parody” case. See the documentation at:

      https://raphaelgolbtrial.wordpress.com/

  2. Keith Eric Wood neglected to hand out his pamphlets at his own trial.

  3. Schenck v. Pro-Choice Network of Western New York (1997)

    Two USSC cases, first in 1919, then again in 1997? How old was this guy?

    1. Unicorn, your comment lacks a connection to the subject of the article which involves the corrupt, misuse of a charge of “jury tampering”.

      1. FTA: “speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.” So held the U.S. Supreme Court in Schenck v. Pro-Choice Network of Western New York (1997).”

        And learn to recognize humor. Idiot.

      2. Google “Schenck vs. United States 1919”. You’ll get the joke.

  4. Chief Judge Christopher Murray ruled that his behavior was “precisely the type of speech states have a compelling interest in regulating through validly enacted statutes.”

    Chip…chip…chip…

    1. Uh…what kind of states?

      1. You know states like North Korea, Iran, Saudia Arabia, Europe…

    2. Yes, really big chips. How dare someone suggest that the Jury has the authority to not be a rubber stamp for the judge’s opinion.
      http://www.fija.org

  5. “by argument or persuasion, other than as part of the proceedings”
    Does this mean a newspaper could be prosecuted for interviewing an alleged criminal’s mom for reporting “My boy is a good boy, he was about to head off to college, and he would never shoot somebody like the cops say he did.”

    1. Yes, it does mean a newspaper would commit jury tampering by publishing anyone’s opinion about a court case.

      It also means that a law school professor would be prosecutable if anything he taught in class or said to anyone at all ever influenced their understanding of the law prior to becoming a juror in a case related to that law.

      So would a lawyer being consulted by a client to find out what the law says, if that client ever becomes a juror in a relevant case.

  6. Sounds like falsely shouting fire in a theatre and causing a panic, if you ask me.

    1. Thank you for not quoting it as “shouting fire in a crowded theatre” dropping the qualifiers falsely and causing a panic and adding the unnecessary crowded.

    2. If you don’t shout “fire” in a theater when there actually is a fire, and prevent anyone else from sounding the alarm either, you would be guilty of manslaughter if anyone died in the fire.

  7. Another speech-hostile judge for the woodchipper.

  8. Just another reason the entire court system needs to be dismantled and the prosecutors and judges tried before the people for their crimes.

    1. A judge has no authority to rule on the law without the Constitution granting them that authority. So where in the Constitution were courts granted the authority to place themselves above the Constitution?

  9. The absolutely critical ability of a Jury to nullify, is a threat to the power of the judicial arm of the state, therefore, it’s a compelling state interest in not letting the people know about it.

    1. Supposedly jury nullification is a more threat to laws passed by representative legislatures than it is a threat to judicial power. Laws like the Virginia 1924 Racial Integrity Act and its evil sister the Sterilization Act (supported by the guy who equated questioning the draft for the Great War in Europe as unprotected speech like falsely shouting fire in a theatre and causing a panic). Yeah legislators are all wise and sagacious and perfect and jurors are ignorant idiots and should be rubber stamps for the prosecution.

  10. On another front,

    Jacob Sullum, “Judge Dismisses Felony Charge Against Michigan Jury Rights Pamphleteer”, Reason.com, 30 Mar 2016.
    “According to WOOD, the NBC station in Grand Rapids, “[Mecosta County Prosecuting Attorney Brian Thiede] said that he expected the felony to be dismissed and that he has no real desire to see Wood behind bars. He just wants to make sure that no one else tries the same stunt.”

    In my not so humble opinion, as someone who has been called for jury duty, a prosecutor who brings felony charges in what he knows is, at best, a misdemeanor case, just to send a message ought to be required to reimburse the taxpayers out of his own pocket for the court costs on the dismissal or acquittal of the felony charges and to pay for the defendant’s legal costs as well.
    If you want to send a message, send it by Western Union and pay for it yourself: take your stinking paws off taxpayers’ dollars you damn dirty apes!

    1. Title 18, Section 241 of the US Code makes it a crime for any two or more people to conspire to deprive anyone of any civil, statutory or constitutional right under color of law.

      Threatening someone to prevent them from exercising a right deprives them of that right if they are scared out of exercising it. Any violation of Section 241 is a felony, though if a death occurs as a result of the violation, it becomes a capital crime.

      Further, it is impossible to handcuff someone during a false arrest without committing a violent crime, and the federal statutory definition of an act of domestic terrorism is an act of unlawful violence committed with the intent to alter the political behavior of a government official or the US population. There is no requirement in the law that a death must occur for the violent act to be terrorism.

      Handing out pamphlets with unpopular but true statements about the law, with an eye towards ensuring jurors are properly educated in their role, in a way judges frequently neglect to do properly, is without doubt political behavior.

      Judges are not immune to arrest or prosecution under 18 USC 241, nor are they exempt from terrorism charges.

  11. “Eight centuries”??!! 800 years?

    “role that juries have played in our system of government for more than eight centuries.”

    CB

    1. Jury trials have been a feature of republics for longer than the US has existed.

  12. When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

  13. an arn’s length’ reading of that statute would hold that “jury tampering” would apply only to cases where a specific juror, or a member of a jury sitting for a specific case cannot be tampered with. It would seem to be concerning any attempt to sway the outcome in a particular trial now underway.
    Passing out general information to any and all individuals, no knowledge of who might be seated to hear which matter before the court IS protected speech. If the pamphlet were concerning, say, conduct of judges as they manage a trial, as a general topic of concern, it woiuld SEEM to be different but in reality would be the same as addressing jury nullification.
    these lower courts have it wrong… and I suspect corruptly so.

    1. If handing out pamphlets to passersby is jury tampering, then any educational effort must be as well, under that reading of the law. Every judge, attorney (both defense and prosecution) as well as a fair number of jurors has had classes that taught about what the laws are.

      If teaching about laws outside of a courtroom is jury tampering, then every law school needs to be arrested and prosecuted en masse.

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