A district court judge in Mecosta County, Mich. has ordered a former pastor, Keith Eric Wood, to be arrested for felony obstruction of justice and misdemeanor jury tampering.
His crime?
Wood distributed a pamphlet (available here) on jury rights and jury nullification—when a jury believes the defendant is guilty but returns a “Not Guilty” verdict in conscientious opposition to the law or application of law at hand— produced by the Fully Informed Jury Association from a public sidewalk outside the county courthouse.
Obstruction of justice charges are typically warranted when a criminal defendant says to a juror “I know where your daughter lives, and if you ever want to see her alive again, you’ll vote not guilty;” or “There’s five large waiting for you if you vote to acquit.”
In fact, another Michigan judge recently sentenced a Michigander to thirty-four months in prison for jury tampering after the man used a break in a $7 million fraud trial to drive to a juror’s home and try to “influence” the juror on the defendant’s behalf.
That kind of intimidation or bribery fits the letter and the spirit of the law perfectly.
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But not the conduct here. Consider again what is alleged against Wood: he stood outside a courthouse on a sidewalk—a place where speech is traditionally protected by the First Amendment—and handed out fliers on “jury rights” and jury nullification.
Michigan authorities argue that Wood’s leafletting “encouraged the jurors to violate their oaths and directly contradicted the instructions the jurors would be given thereby tainting the entire jury panel.”
Sorry, that won’t fly.
Wood handed out flyers while standing on a public street to any passersby who would take them. He did not approach jurors in a particular case, nor did he distribute flyers inside the courthouse.
These facts are critical because the Free Speech Clause does not allow the government to make it a crime to urge others to break the law unless the government can prove an imminent risk of violence.
Under the government’s theory that an organization’s general opinion on a jury issue “encourages” jurors to violate their oaths in a specific case, the judge could hold in contempt the producer of a crime drama on the theory that showing people how to commit a crime increases the likelihood that people will do so.
You cannot hand a juror a threat or a bribe, but you can publicly urge your fellow citizens to engage in jury nullification. As the Supreme Court made clear in Brandenburg v. Ohio, unless what you say and do constitutes an incitement to imminent violence, the First Amendment protects your right to tell the public to disregard the facts or law when acting as jurors.
Three years ago, retired professor Julian P. Heicklen engaged in virtually identical conduct. He stood outside a courthouse handing out flyers on jury nullification. Heicklin was also charged with jury tampering, but federal Judge Kimba M. Wood dismissed his indictment, arguing that someone tampers with a jury only by knowingly trying to influence “a juror’s action or decision by means of a written communication made in relation to ‘a specific case pending before that juror.’”
Wood’s attorney told media outlets that he “had no case at the court, knew of no cases[,] and no jury had been seated at the time he was handing out the fliers”—“[t]here was no jury to tamper with.”
The Fully Informed Jury Association has documented several instances where their advocates were charged with jury tampering and the charges were later dismissed, the defendant was acquitted, or laws were overturned as a violation of the First Amendment.
Just as legislatures cannot impose unreasonable restrictions on those who advocate views they don’t like in public places, judges cannot be empowered to erect no free-speech zones around courthouses. The charges against Wood should be dropped.
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