Mimesis Law
16 June 2019

Irony: The Mecosta County Jury Tampering Case

Apr. 4, 2016 (Mimesis Law) — Having written a couple of times about the case of Keith Wood, who was charged with jury tampering (a misdemeanor) and obstruction of justice (a felony) when he passed out pamphlets on jury nullification to venirepersons as they entered the Mecosta County, Michigan, courthouse on the morning of trial, it was time for an update.

The felony charge was based on MCL 760.505, which reads:

Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.

This logic of this statute basically follows Justice Stewart’s description of pornography: “I can’t define illegal conduct, but I know it when I see it.” While entirely too vague, there are some limits on the statute: it can’t be used to charge conduct expressly covered by another statute, and there does have to be some basis in the common law.

Woods’ lawyer, David Kallman, filed a well-written motion to dismiss both charges. With regard to the felony count, Kallman cited a case called People v. Thomas, which provided an exhaustive list (from Blackstone, no less) of 22 specific offenses that were indictable under common law for obstruction of justice. Kallman successfully argued that while two of those 22 offenses involved jury tampering, those were covered by the misdemeanor jury tampering statute. The prosecutor’s dodge was that the felony charge was tampering with the jury pool, not tampering with the jury. Kallman’s argument is spot on:

In short, there is nothing in the above list, or in all the history of Michigan, that supports the contention that “tampering with a jury pool” has ever been a crime in Michigan. Despite Prosecutor Thiede’s obvious animosity to Mr. Wood’s speech, he cannot make up crimes to try to silence him.

With regards to the misdemeanor charge, Kallman’s argument was straightforward, though this time unsuccessful. The jury tampering statute, MCL 750.120a, 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 punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both. (Emphasis added.)

Since the people who received the pamphlets were only prospective jurors, the statute does not apply to Wood’s conduct. Kallman went on to describe the contents of the pamphlet, which made no specific reference to the case in question, but only referred to jury nullification in general.

In his response brief, the prosecutor argued that the word “juror” in MCL 750.120a covers prospective jurors. He cited a different statute, MCL 600.1320, 1321, and 1322, which governs the procedural aspects of populating a jury pool. Specifically, MCL 600.1321(2) refers to “jurors” and MCL 600.1322 refers to a “panel of jurors” that, in context, clearly refers to prospective jurors.

It’s a so-so argument, since Kallman is arguing from the text of the actual statute under which Wood is charged, and the statute Thiede cites makes no reference to the jury tampering statute. Thiede develops his argument fairly well, however, by pointing out that direct contact with prospective jurors about the facts of a case before trial (such as informing panel members of inadmissible evidence) would not be illegal under Kallman’s interpretation. At any rate, the judge did not dismiss the misdemeanor charge, so we can assume she agreed with Thiede.

Thiede went on to call Woods’s position “self-contradictory” with regards to the felony count, saying that Wood’s argument is that the people on the panel weren’t “jurors,” but nevertheless that the obstruction of justice charge was trumped by the jury tampering statute. That isn’t self-contradictory; it’s an argument that the prosecutor was wrong on both counts, for different reasons. What is self-contradictory, though, is the redundancy of the charges. Thiede charged Wood twice for the same conduct, namely, distributing the pamphlets. I think there’s some obscure legal principle somewhere that says he can’t do that.

Thiede’s reaction to the dismissal of the felony count is priceless:

Theide 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.

That’s as gross a piece of prosecutorial overreach as you’ll see anywhere. That really is “making up a crime” in order to intimidate Wood specifically and nullification proponents generally. I wonder if Thiede is aware that “malfeasance in office” and “conspiracy to indict an innocent man” are indictable common-law offenses, and thus covered by the same felony statute he charged Woods under? Not that Thiede will ever be charged with either of them, but it would be karmic justice if he ever stood trial and the only defense he had to offer was…jury nullification.

This is a fascinating case, especially in light of Justice Sotomayor’s recent comments and New Hampshire’s proposed new jury instruction. It hasn’t even reached the point where of deciding whether a pamphlet that contains no reference to the case can be considered an attempt to “influence” a juror, and the irony of the jury in Wood’s case having to examine the pamphlet that the State claims is illegal to distribute to jurors. There are also a conflict between Wood’s First Amendment rights and the State’s (and the defendant’s, for that matter) interest in an impartial jury.

As stated before, jury nullification is a double-edged sword, and encouraging it risks turning trials into popularity contests (which defendants often lose). That said, there are certain situations in which the prosecutor has proved all the elements of a crime, but the defendant still deserves an acquittal, either because the law is unjust or because the prosecutor is applying the law unjustly. If I were in charge (soon, baby!), I’d allow it only in closing arguments. No voir dire on it, no nullification instruction, just an argument (if the defendant chooses to make it) that the jury should let this one go.

The facts in Wood’s case are undisputed. The only question is whether the pamphlet “counts” as jury tampering. It will be really interesting to see how it plays out.

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  • Patrick Maupin
    4 April 2016 at 10:41 am - Reply

    “The only question is whether the pamphlet “counts” as jury tampering.”

    There should be no question about whether it counts as evidence.

    If the judge and prosecutor persist, then it’s practically guaranteed that at least one jury will see Keith Wood’s pamphlets. Especially if it’s only a misdemeanor trial, properly presenting and describing it to the jury should be about as much fun as a defense attorney ever sees in the courtroom.

    “What I’m going to show you, ladies and gentlemen, is so dangerous that you should not be seeing it. In fact, we’re only here because this wicked man attempted to show others, just like you, this very piece of paper. YOU CAN’T HANDLE THE TRUTH!!!!”