‘Nothing can be a crime until it has been recognized as such by the law of the land’
A Michigan man charged with felony obstruction of justice and jury tampering for handing out a leaflet on jury nullification in front of a courthouse contends the local prosecutor’s objection to the contents of his material doesn’t make his actions a crime.
Keith Wood, a former pastor, was arrested Nov. 24 on the orders of Mecosta County District Court Judge Peter Jaklevic while he was handing out leaflets published by the Fully Informed Jury Association to members of the public on public property.
Wood was charged with felony “obstruction of justice” for giving members of a jury pool what prosecutors described as “a pamphlet that encouraged the jurors to violate their oaths and directly contradicted the instructions the jurors would be given thereby tainting the entire jury pane.” He’s also charged with attempting to “influence the decision of a juror in a case by argument or persuasion that was not a part of the proceedings in open court in the trial of the case.”
Jury nullification occurs when a jury believes a defendant is guilty but renders a “not guilty” verdict because it regards the relevant law as unjust.
In a brief, Wood’s attorney David Kallman contends Mecosta County Prosecutor Brian Thiede’s response to a motion to dismiss all counts against Wood was based on “a standard all but abandoned almost 50 years ago” as well as “irrelevant” out-of-state court cases.
Kallman argues there is “not a single published or non-published case in Michigan where a defendant was charged with, or convicted of, statutory jury tampering or common-law obstruction of justice for allegedly tampering with a jury pool.”
“To be sure, if there was such a case, Prosecutor Thiede almost certainly would have cited it. Instead, he claims to have found a new, never-before-discovered crime that was unknown to all prosecutors and courts before him.”
Kallman contends that contrary to Thiede’s opinion, precedent holds that “nothing can be a crime until it has been recognized as such by the law of the land.”
‘The right to judge the law itself’
The leaflet Wood distributed says judges “only rarely ‘fully inform’ jurors of their rights, especially their right to judge the law itself and vote on the verdict according to conscience.”
“In fact, judges regularly assist the prosecution by dismissing prospective jurors who will admit knowing about this right – beginning with anyone who also admits having qualms with the law,” it says.
The brochure states: “You may, and should, vote your conscience; You cannot be forced to obey a ‘juror’s oath’; You have the right to ‘hang’ the jury with your vote if you cannot agree with other jurors.”
It quotes John Adams saying about jurors, “It is not only his right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
The brochure says Americans colonists “regularly depended on juries to thwart bad law sent over from England.”
“The British then restricted trial by jury and other rights which juries had helped secure. Result? The Declaration of Independence and the American Revolution.”
It explains that in 1972, the D.C. Circuit Court of Appeals found a jury has an “unreviewable and irreversible power … to acquit in disregard of the instructions on the law given by the trial judge.”
“The pages of history shine upon instances of the jury’s exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law.”
In his brief, Kallman says that instead of addressing arguments in Wood’s motion to dismiss, Prosecutor Thiede “erects the straw man that Mr. Wood believes free speech is absolute (which Mr. Wood never claims), then cites cases that the protection is not absolute (a proposition which no one disputes), and then concludes that he possesses the power to arrest people for handing out pamphlets on a public sidewalk because said free speech is not absolute.”
“In short, his argument is that since free speech protection is not absolute, Mr. Wood cannot lawfully hand out political information via educational pamphlets on a public sidewalk. … Indeed, the prosecutor completely ignores the required analysis when fundamental First Amendment constitutional rights are at stake.”
The prosecutor, the brief contends, “mischaracterizes Mr. Wood’s protected political speech as unprotected incitement of illegal activity. He then uses this mischaracterization as the basis to justify his censorship and criminalization of Mr. Wood’s protected speech.”
The defense attorney notes the present standard for incitement is the “constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
“Mr. Wood’s peaceful political expression on the public sidewalk here cannot constitute incitement (i.e., unprotected expression) as his words were not directed toward followers with intent to incite imminent lawless action. … It is protected speech and not unprotected incitement. Nothing contained in the pamphlet calls for any lawless action.”
Kallman asserts the prosecutor “can point to no criminal law which the pamphlet was encouraging people to violate.”
“No matter how much Prosecutor Thiede may personally disagree, he cannot prosecute anyone for following their conscience, disregarding their juror oath, or hanging a jury.”
Just as Thiede was preparing his prosecution arguments against Wood, WND reported a judge in Denver dismissed all charges against Mark Iannicelli and Eric Brand, who were accused of jury tampering for handing out similar informational booklets.
But before Denver District Court Judge Kenneth Plotz dismissed the charges, a federal civil rights lawsuit was filed in which U.S. District Judge William Martinez argued the pamphlets are protected speech and the men had the right to hand them out on courthouse grounds.
In a commentary at Complete Colorado, Jacob Sullum wrote about Denver DA Mitch Morrissey’s prosecution.
“Morrissey continued to pursue those charges even after conceding that such activity is protected by the First Amendment. When I asked Lynn Kimbrough, Morrissey’s public information officer, what Iannicelli and Brandt had done that crossed the line from constitutional protected speech to felonious jury tampering, she refused to say. That’s probably because Morrissey had no case.”
He continued: “Contrary to what Kimbrough claims, there was never any evidence that Iannicelli or Brandt were trying to influence the outcome of any specific case. … What happened here is pretty clear: Morrissey abused his office to punish people for speech that offended him. He persisted in that effort even after it became abundantly clear that the charges were unconstitutional, as when a federal judge in Denver ruled that activists have a First Amendment right to do exactly what Iannicelli and Brandt were arrested for doing: passing out literature arguing that jurors have the authority to judge the law as well as the facts.”
In the Michigan case, WND reported when, at a court hearing, Thiede said he didn’t want jurors to use their own consciences to decide cases.
“We could have a juror that thinks jihad is righteous,” he warned. “There are some consciences out there I don’t want voting that way.”
Wood’s case developed, according to Kallman, when he was on public property and Deputy Jeff Roberts “threatened Mr. Wood to either come inside the courthouse to meet with the judge or else be arrested.”
“Under the threat of arrest, Mr. Wood was escorted to a hallway in the courthouse where Prosecutor Brian Thiede, Assistant Prosecutor Nathan Hull, and Judge Peter Jaklevic were waiting. Prosecutor Theide then questioned Mr. Wood. Mr. Wood was not given his Miranda rights prior to being questioned. Judge Jaklevic then ordered Deputy Roberts to arrest Mr. Wood for jury tampering. This entire meeting was not in the courtroom, not on the record, and without an attorney present for Mr. Wood.”
Kallman pointed out that in a recent hearing, Thiede “implied that the informational pamphlet was 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 rending a guilty verdict again.”
“The information that Mr. Wood shared with people on the public sidewalk was general information. It was not specific to any jury, to any defendant, or to any case,” the motion to dismiss explained. “Nothing in Mr. Wood’s informational pamphlet said anything about Mecosta County, any specific case in Mecosta County, or even indicated which way a juror should vote.”
The defense attorney also pointed out recently that should the case move forward, he would need access to anyone who may have been at the courthouse that November day as a potential juror. He explained he would need to ask what they heard or saw to determine whether there was any “tampering.”
WND reported in July when a Florida judge banned people from criticizing the court on its property then quickly backtracked.
But WND reported Judge Mark Mahon of Florida’s Fourth Judicial Circuit didn’t move quickly enough, and a lawsuit was filed over his decision to order the arrest of anyone outside the courthouse, including on certain public sidewalks, who questions “the integrity of the court or any of its judges.”
“Demonstrations or dissemination of materials that degrade or call into question the integrity of the court or any of its judges (e.g., claiming the courts, court personnel or judges are ‘corrupt,’ biased, dishonest, partial or prejudiced), thereby tending to influence individuals appearing before the courts, including jurors, witnesses and litigants, shall be prohibited on the Duval County Courthouse grounds,” the judge had written.
Violators would be arrested, he ordered.
Legal experts immediately declared the order likely was unconstitutional, and the day after WND’s report, Mahon issued another order to replace the older one. But the new order focused on a ban on photography of secure locations, security systems and people in those locations.
However, in the interim, two photographers, Thomas James Covenant and Jeffrey Marcus Gray, filed a lawsuit against the judge.