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Handing Out Pamphlets Is Not a Crime

A Michigan jury tampering case strikes at the heart of the First Amendment.

Brian Thiede, the prosecuting attorney for Mecosta County, Michigan, wants to put Keith Wood in jail for handing out pamphlets. Yet Thiede says the pamphlets are perfectly legal, and so is handing them out.

The solution to this riddle lies in Thiede's interpretation of Michigan's jury tampering statute, which he says turns constitutionally protected speech into a crime. If the Michigan Court of Appeals agrees, it will be giving officials like Thiede a versatile tool to censor and punish people who offend them.

The pamphlet at the center of this case, which Wood obtained from the Fully Informed Jury Association (FIJA) and distributed in front of the Mecosta County Courthouse on November 24, 2015, argues that jurors can and should judge the law as well as the facts, which may lead them to acquit a technically guilty defendant in the interest of justice. That principle, known as jury nullification, is venerable but controversial, especially among judges and prosecutors.

The FIJA pamphlet "just says ignore the law, ignore the facts, do what your conscience wants," Thiede declared at a preliminary hearing. "I'm thinking, 'Oh my goodness, we could have the jury who thinks that jihad is righteous, and if the San Bernardino shooters had not been killed, they'd say, 'Let's acquit.'"

Thiede believes FIJA is advocating lawlessness. "The jury's violation of their oath is illegal, even though we don't have a remedy for it," he said while opposing Wood's motion to dismiss. "The pamphlet was set up to instruct and encourage the jury to go in one direction and one direction only—to favor the defendant." Arguing against Wood's appeal, Thiede likewise complains that "the content of the pamphlet was clearly anti-government."

Officially, however, Wood was not prosecuted for promoting a message Thiede considers dangerously subversive. He was prosecuted for promoting that message near the courthouse on the day when the trial of Andy Yoder, a local man accused of illegally filling wetlands on his own property, was scheduled to begin.

Wood concedes he took an interest in Yoder's case and knew it was scheduled for trial that day. But he says he expected the case to end with a plea bargain (which it did) and picked that day because he thought the courthouse would be busy.

Wood was convicted of violating a state law that says "a person who willfully attempts 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, is guilty of a misdemeanor." Yet Wood did not discuss the Yoder trial with anyone at the courthouse, and none of the people who received a FIJA pamphlet from him was a juror in that case or any other, since no jurors were selected that day and Yoder ended up pleading guilty.

"Wood was charged with tampering with a jury that did not exist," says his attorney, David Kallman. "There is no such crime in Michigan."

The Cato Institute, in a brief it filed last week on Wood's behalf, argues that his conviction "strikes at the core of the First Amendment." It notes that he was "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)."

If the jury tampering law is understood to cover Wood's leafleting, the American Civil Liberties Union of Michigan warns in another brief filed last week, "it would criminalize a vast amount of protected speech." That might include, for example, holding rallies or passing out literature in support of tort reform, women's rights, or drug decriminalization, depending on whether those causes were arguably related to a pending case.

Thiede, in other words, may be inadvertently strengthening the case for jury nullification.

© Copyright 2018 by Creators Syndicate Inc.

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  • DajjaI||

    As a fellow pamphleteer, I fully support this guy since he wasn't targeting an existing jury ('tampering'). If he is convicted then hopefully this would precipitate a snowstorm of pamphleteering that would make the court regret its decision. Hopefully SESTA will get the same treatment online, though of course it could also be a bloodbath.

  • Cyto||

    You can tell that there will be a firestorm of reaction based on the intense national coverage this case has garnered so far....

  • Quixote||

    People generally understand that as long as the pamphlets clearly identify their authors and contain very general, polite statements that express a harmless point of view, there is no particular problem with them; but if they cross the line and do anything that tampers with the justice system, or that damages the reputation of a well-connected member of the community, action will need to be taken to stop the unwanted "speech" from causing public confusion, disorder, and mayhem. Surely no one here would dare to defend the "First Amendment dissent" of a single, isolated judge in our nation's leading criminal "satire" case? There the little "pamphlets" in question were written in the "name" of the Union of Orthodox Congregations of America's envoy to the Vatican, who also happens to be a highly esteemed faculty member at one of New York's finest academic institutions, and they were held to be illegal texts punishable by jail. See the documentation at:

    https://raphaelgolbtrial.wordpress.com/

  • BYODB||

    Ugh, I hesitate to reply to you but I actually agree.

    I'd show up at this guys trial to hand out those pamphlets.

  • kinghat||

  • Jay Dubya||

    interesting you bring this up. i listened to this episode of radiolab recently. it was good and included what i found to be a very fair & thorough (for radio) explanation of nullification. at the very end, the episode lurches into a very different direction tho. one of the pronullification ppl they spoke to (cant remember his name) is a very old man & started saying crazy things to the reporter already re: an upcoming protest ie protestors should shoot police who attempt to arrest them. radiolab dnded up calling the police (a bitch move but one they really have to do for legal/tort reasons). all of that i found to be surpising, but what shocked me came after that. the journos were discussing whether the crazy old man had changed their opinion about nullification. two of the journos ended up not just expressing disapproval for nullification but expressing disdain for the idea of juries *in general*. their reasoning for this is utterly fkd. i still enjoy radiolab but i am blown away that otherwise intelligent ppl who spend a decent amount of time reviewing the US incarceration system could somehow come away with the impression that holding trials for the benefit of a judge only could somehow improve criminal justice outcomes. another in a growing list of indicatora that americans no longer agree on fundamental issues re: the notion of civil rights & the importance of constitutional ideas.

  • Ride 'Em||

    The idea that appointed/hired "experts" were smarter than the rest of us was approved by the SCOTUS just after WWII and has led to most rules/regulations/penalties/criminal offenses coming from government agencies and not elected officials. It has allowed the executive branch to become ever more powerful. Why wouldn't the guys who said this was okay not want to do the same thing?

  • sarcasmic||

    Cops, prosecutors and judges consider everyone to be guilty until proven guilty. They would do away with juries if given the chance. Juries are a threat to their power.

  • BYODB||

    They don't want the people to remember that they were supposed to be the one's with most of the power they now exercise.

  • Fist of Etiquette||

    It got real stupid at the end.

  • Jerryskids||

    Handing out pamphlets is not a crime? King George III disagrees.

  • SIV||

    "the content of the pamphlet was clearly anti-government."

    Sounds like a slam-dunk case. What's the remedy, imprisonment or execution?

  • gormadoc||

    Re-education.

  • Longtobefree||

    So, both, then?

  • prolefeed||

    The prosecutor also had the chutzpah argued that because a jury convicted the pamphleteer, no violation of the First Amendment could have occurred, because juries never err:

    "On the other hand, if the Defendant were not attempting to influence the opinions of
    jurors in a specific case (ie simply broadening public discourse and enlightening his fellow
    citizens), then the necessary element of intent would not have been met. Defendant would have
    been acquitted by either jury or directed verdict, as the evidence would have been insufficient to
    support a conviction. No First Amendment analysis would be necessary for purposes of a
    criminal prosecution because Defendant would have been (factually) innocent of the charge
    against him."

  • Get To Da Chippah||

    Thiede believes FIJA is advocating lawlessness. "The jury's violation of their oath is illegal, even though we don't have a remedy for it," he said while opposing Wood's motion to dismiss. "The pamphlet was set up to instruct and encourage the jury to go in one direction and one direction only—to favor the defendant."

    This is evidence that the prosecutor didn't actually read the pamphlet. The pamphlet merely informs individuals of the rights of jurors that judges and prosecutors choose not to divulge. It doesn't instruct them to exercise that right; it merely advises people to be aware that it's always an option if they're ever on a jury. If anything, prosecutors and judges, by omitting this information, are instructing and encouraging the jury to go in the direction of the plaintiff: the government.

  • sarcasmic||

    If anything, prosecutors and judges, by omitting this information, are instructing and encouraging the jury to go in the direction of the plaintiff: the government.

    Exactly.

  • Old Smokin' Egg||

    The pamphlet doesn't favor the defendant exclusively. On the second side, first column, first paragraph under the heading "How can people get fair trials...", we find: "Jurors often end up apologizing... to the community for acquitting a defendant when evidence of guilt seems perfectly clear."

    Therein a major problem with jury nullifcation. We may think of it primarily as a tool whereby honest ordinary citizens can check abuse of the system by police and prosecutors. But it cuts the other way, as well.

    Consider he-said-she-said rape cases, which've been the subject of a number of Reason articles and comments thereupon. Assuming that neither party's story has obvious holes, a jury would have to conclude that guilt hadn't been proven beyond reasonable doubt. But a juror with strong Me-Too feelings could persuade the other jurors that they need to use this case to right some historical injustices, whether or not there's good evidence of the guilt of this particular defendant.

    Furthermore, we don't always want a jury to bend the law in the defendant's favor. This is probably what's happening with a lot of the police-shooting acquittals: cop shoots unarmed fleeing suspect six times in the back, and is caught on video doing so; case goes to trial; in the privacy of the jury room, someone stands up and delivers a stirring peroration on the need to support the brave men and women who keep our community safe, regardless of the unpleasant facts of this particular case.

  • BYODB||


    Therein a major problem with jury nullifcation. We may think of it primarily as a tool whereby honest ordinary citizens can check abuse of the system by police and prosecutors. But it cuts the other way, as well.


    Of course it does, but that's less of a problem than the alternative. If you can get 12 random strangers to agree on something, it probably more accurately reflects the opinion of the populace whereas one judge agreeing with themselves is what we usually refer to as 'authoritarian', especially in terms of things like 'mandatory minimum sentences' which are absurd at face value.

  • John C. Randolph||

    More to the point, by suppressing this information, the persecutors and judges are usurping the power of the jury.

    -jcr

  • Fist of Etiquette||

    The jury's violation of their oath is illegal, even though we don't have a remedy for it...

    Is it a violation of the oath? I've never served on a jury.

  • Vernon Depner||

    Not in my state. This is the oath here:

    "Do you swear or affirm that you will diligently inquire into and carefully deliberate all matters between the State of Ohio and the defendant (giving the defendant's name)? Do you swear or affirm you will do this to the best of your skill and understanding, without bias or prejudice? So help you God."

  • Conchfritters||

    Brian Thiede has a tiny mind, and probably a tiny cock to go with it.

  • Rev. Arthur L. Kirkland||

    Knowledge Is Good
    -- Emil Faber, Founder

    How many of the best people from your law school class became prosecutors?
    -- A natural question

  • John C. Randolph||

    How many of us have to hit that "report spam" link before shit like this get deleted?

    -jcr

  • UnrepentantCurmudgeon||

    We have to keep doing it until the moderator wakes up

  • JunkScienceIsJunk||

    I love that the Cato Institute took up his cause. And did so in a pretty eloquent and direct way.

  • BYODB||


    The pamphlet at the center of this case, which Wood obtained from the Fully Informed Jury Association (FIJA) and distributed in front of the Mecosta County Courthouse on November 24, 2015, argues that jurors can and should judge the law as well as the facts, which may lead them to acquit a technically guilty defendant in the interest of justice. That principle, known as jury nullification, is venerable but controversial, especially among judges and prosecutors.


    The fact that something that's clearly intended in our judicial system is 'controversial' tells us how much better jurists think they are than the people they are intended to serve.


    The American judicial system is broken, and has been since I've been alive.

  • Brandon Magoon||

    Thiede believes FIJA is advocating lawlessness. "The jury's violation of their oath is illegal, even though we don't have a remedy for it," he said while opposing Wood's motion to dismiss. "The pamphlet was set up to instruct and encourage the jury to go in one direction and one direction only—to favor the defendant."

    Well yeah dumbass, the jury is supposed to favor the defendant. Our whole criminal justice system is based on it. It's called the presumption of innocence.

  • silver.||

    "Our whole criminal justice system is based on it. It's called the presumption of innocence."

    Good point.

  • retiredfire||

    But nullification tells the jury that, even if the guilt is proven to the standard required, the presumption of innocence can still be maintained, in opposition to what the people, who society empowers to make the law have decreed.
    Jury nullification is a single person deciding that they are above the legislators.
    That's anarchy.
    You'll notice, anarchy is pretty popular on this "libertarian" site.

  • EscherEnigma||

    Jury nullification is a single person deciding that they are above the legislators.


    Nah. At best (worst?) you have a roomful of folks deciding that they are above the legislators.

    More honestly, you have a roomful of folks deciding that, in the particular case before them, justice is not served by obeying the letter of the law, in accordance with the constitution that empowers juries to make that determination.

  • John C. Randolph||

    anarchy is pretty popular on this "libertarian" site.

    If you don't like it, you can always fuck off to the Daily Kos or some shit like that.

    -jcr

  • retiredfire||

    How comfortable would everyone be, who is supporting this clown, if he was handing out a pamphlet telling anyone who reads it how to go about robbing your house?
    Not saying they should do it, mind you, just informing everyone of how it could be done.
    That is analogous to informing potential jurors that they can break their oath by making themselves above the legislators, who decide what is to be considered against the law.
    In every jury selection, you are asked if you can judge the defendant guilty, if the prosecution proves it, regardless of your opinion on the law involved. You will have to lie to be able to use nullification. That's against the law.

  • John C. Randolph||

    The legislature and the judge wield power delegated to them by the people. The Jury ARE the people, and when it comes to deciding whether it's just to punish the defendant before them, they outrank the whole fucking government. Nullification is the whole point of trial by Jury, and if you have a problem with that, then I heartily invite you to fuck yourself.

    -jcr

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