Jury Nullification: The First Amendment in Mecosta County
Dec. 7, 2015 (Mimesis Law) — Keith Wood was arrested in Mecosta County, Michigan for distributing a jury nullification pamphlet outside the courthouse. The pamphlet, written by the Fully Informed Jury Association, is pretty tame stuff, as far as political literature goes.
Nevertheless, after Judge Peter Jaklevich heard about Wood passing it out on the sidewalk outside the courthouse, he sent a court officer to bring him inside for a chat, who told Wood that the police would arrest him if he didn’t see the judge. Wood complied, under pain of arrest, and the judge had him arrested anyway. Judge Jaklevich had been the County Prosecutor for the past 20 years before recently being elected to the bench. (Newly robed career prosecutors doing stupid things is apparently becoming something of a pattern.) Judge Jaklevich set Wood’s bond at $150,000, of which Wood had to put up $15,000 to get out of jail.
The Mecosta County prosecutor, Brian Thiede, filed charges accusing Woods of jury tampering, a misdemeanor, and obstruction of justice, a felony. The relevant part of the jury tampering statute 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.
In the obstruction of justice charge, Wood is charged with
…knowingly and intentionally giving the members of a 77th District Court jury pool 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 panel.
Jury nullification occupies a sort of gray area within the law. It was uncontroversial at first. In 1794, Chief Justice John Jay instructed a jury (the Supreme Court held jury trials back then):
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.
The Supreme Court walked it back a bit in 1895, in the case of Sparf vs. United States, where they held that while jury nullification was legal, trial courts did not have to instruct the jury on it. That’s the last time the Supreme Court addressed the issue.
But nowadays, while acknowledging that jury nullification exists, modern courts look upon it with the stink-eye. For example, in 1997, the D.C. Circuit upheld the dismissal a juror who wanted to nullify:
We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.
In other words, jury nullification happens, but courts will do its best to prevent it. Critically, though, juries don’t have to justify their decisions. If a jury acquits a defendant because they feel the law is unjust, neither the judge nor the prosecutor can say them nay.
Eugene Volokh has already covered the First Amendment doctrine that applies to Woods’s case. The practical aspects are even more ridiculous. Woods had no criminal record besides a DWI when he was a teenager. Another defendant was charged with sexual assault in Mecosta County and his bond was … $25,000. In Mecosta county, apparently, a defendant accused of sexual assault presents one-sixth of the risk to the community as the guy who was accused of passing out pamphlets on the sidewalk.
Never mind that there was no jury trial in progress, no jury panel was being selected, and that Woods only passed out about 50 pamphlets, whereas the “entire jury pool” consists of over 25,000 registered voters. As Woods’s lawyer, David Kallman, puts it, Woods was arrested for “tampering with a jury that didn’t exist” and for tainting the entire jury pool by giving a pamphlet to 0.2 percent of it on a public sidewalk. By that reasoning, is Fault Lines going to be charged with a count of jury tampering for every Mecosta County resident that clicks the link to the pamphlet?
What Woods is really “guilty” of is pissing off Judge Jaklevich. And not even in person, but by exercising his free speech rights in a public place in the judge’s general vicinity. That’s not a crime, even if the judge can lock someone up for it. Here’s hoping someone (whether another judge, a jury, or the voters of Mecosta County) smacks him down hard.