There is a highly disturbing criminal case out of Mecosta, Michigan where Keith Wood, 39, has been charged with a felony for obstruction of justice and misdemeanor of tampering with a jury. His felonious conduct? Passing out fliers about jury nullification rights on the sidewalk of the Mecosta County courthouse. The fliers from the Fully Informed Jury Association describe juror rights that some complain are omitted by judges and prosecutors in explaining jury service before trial.
For the purposes of full disclosure, I served as counsel to the Rocky Flats grand jury which was criminally investigated for going public with their allegations of prosecutorial misconduct and a cover-up of crimes committed at the Rocky Flats Nuclear Weapons Plant in Colorado. Click here and here. It was the first grand jury to be represented by private counsel in history and led to years of litigation seeking the release of the report quashed by the Justice Department.
The association prints fliers on various juror rights and powers. The organization posts its purposes:
FIJA works to:
• Inform potential jurors of their traditional, legal authority to refuse to enforce unjust laws
• Inform potential jurors that they cannot be required to check their consciences at the courthouse door
• Inform potential jurors that they cannot be punished for their verdicts
• Inform everyone that juror veto—jury nullification—is a peaceful way to protect human rights against corrupt politicians and government tyranny
Many courts have rules against lawyers arguing for jury nullification. The case law in this area is sketchy. There is no question that jury nullification has long been recognized as a historical element of the jury system. Indeed, in 1895 in Sparf v. United States, Justice John Marshall Harlan, wrote a 5-4 opinion saying that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a controversial decision since courts have recognized the existence of this right while penalizing anyone who tells the jury about it. See e.g., U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969); United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).
Putting aside the accuracy of such fliers (which I have not reviewed), this would seem to be an exercise of free speech by a citizen opposing what he views as governmental injustice. Now, after posting an absurdly high bond of $150,000, he is facing a five-year felony with up to $10,000 in fines, and attempting to influence jurors is a one-year misdemeanor with fines up to $1,000.
What do you think?
I say, hooray for jury nullification for two reasons.
First, jury nullification is an important adjunct to trial by jury. One of the most critical functions of a jury is as a buffer between an accused and an all-too-powerful government who wants to take the accused out of the picture. If the citizens speaking through their representatives on a jury want to free an otherwise guilty individual because they don’t think the prosecution should have been brought in the first place or for whatever other reason, let them do it. Maybe the prosecution should have exercised a little more discretion and not charged the defendant anyway. After all, a criminal trial is nothing more than a procedure by which the public decides whether to impose a sanction on one of its members – it is not a search for truth, don’t let anyone tell you otherwise. If the public declines to impose the sanction, the system is working. Mr. Wood’s situation would be a prime example.
Second, contrary to what contemporary precedent hold, there is no foundation in the common law for prohibiting a jury from nullifying an otherwise valid conviction. Look at the cases holding that nullification is improper. Those cases cite as precedent earlier cases which, in turn, cite earlier cases etc. If you go back far enough, you find that the prohibition against jury nullification was fabricated in the first instance. To the contrary, jury nullification has long been accepted in Anglo-American jurisprudence.
This is utter terrorism and I don’t mean in relation to passing out the flyers. Anyone who doesn’t agree and thinks this completely innocent man deserves to be charged with ANY crime is confused. Oh I’m sorry this opinion is coming from a nutjob conspiracy theorist. Nothing to see here folks…move along.
Most Americans probably agree that both the DOJ and Judicial Branch are broken, although many are good people in a dysfunctional system. Their top duty is to uphold the U.S. Constitution.
The big issue to solve is how to create a real “deterrent” so officials in the future don’t commit crimes against the U.S. Constitution. Currently constitutional officers (aka Bureaucrats) are screwed either way – if the follow unconstitutional orders they are betraying their oath of office, but if they uphold their oath of office they risk career suicide or even prison time (ex: Edward Snowden, John Kiriakou, etc).
How do we create a future deterrent against constitutional crimes? Maybe we could start (not end) by making Snowden, Kiriakou, Manning, etc. whole again and banning their disloyal superiors from ever serving in government or a position of public trust.
What is the deterrent that prevents this in the future?
Not to corrupt the thread but “Michigan Man Charged With Felony” reminds me of that Arkansas woman who should have been charged with mishandling classified material, as was Gen. Petraeus.
FBI Director Comey will be compelled to recommend charges. It’s not possible to require this much time. Hillary was probably hacked rendering that classified material global.
The AG will be forced to replicate the Petraeus sequence or engage in blatant corruption.
TinEar:
Some constitutional-attorneys have successfully obtained the “personal” assets of government officials in civil cases.
Think the basic premise is that “unconstitutional” actions are never “official” government authorities so sovereign immunity protections don’t apply. The constitutional officer (local prosecutor) is exceeding the limits of his or her authority – so those actions are not protected and not official duties. Why should taxpayers pay for corrupt officials abusing their authority, it should be “personal” assets of the corrupt official.
I agree with RB that action should be taken against a prosecutor who clearly abuses his/her authority. I wouldn’t rely on DOJ; they seem to be too heavily politicized. But perhaps the Court would assess sanctions or the State Bar would impose sanctions. Where a prosecutor brings baseless charges and later drops them, or the defendant is exonerated at trial, he is not “made whole.” He has still had to pay ruinous legal fees and suffer anxiety until the matter is resolved. Thus bringing groundless charges is nothing more than an act of intimidation against this citizen and others. Such an abuse of authority should not be allowed to go unchallenged and unredressed.
America is lawless. Obama rules by executive action even as he is ineligible for the office. The Supreme Court manufactures definitions and perverts the Constitution as it “legislates from the bench.” The next conservative in the White House will be fully justified and authorized to do whatever he chooses. He might start by repealing, by executive action, the 13th, 14th, 15th and 19th amendments and restoring the restricted-vote republic of Ben Franklin – “…if you can keep it.”
America will follow California, Illinois, New York et al. into the dictatorship of a one-party state.
Looks like Tytler was correct:
Alexander Fraser Tytler –
“A democracy cannot exist as a permanent form of government. It can only exist until the people discover they can vote themselves largess out of the public treasury. From that moment on, the majority always votes for the candidate promising the most benefits from the public treasury, with the result that democracy always collapses over a loose fiscal policy–to be followed by a dictatorship.”
The DOJ Civil Rights Division should prosecute those officials under federal “color of law” statutes and “pattern & practice” statutes. (Ex: Title 18 US Code 241-245).
These officials violated the letter & spirit of obstruction of justice statutes to punish a legal First Amendment activity on a taxpayer owned sidewalk – not private property. The selective enforcement is also a 14th Amendment violation.
This is classic free speech. Charges need to be brought against those involved in causing this false arrest.
I would argue for a change of venue due to the judiciary in this locality possibly being a party to the matter.
This demonstration by the accused is no different than protesters voicing on court grounds their objection to a particular criminal defendant being arrested and tried.
Jury nullification is the last line of defense for an individual citizen from government overreach. Though at times it has been a double-edged sword.
Thank you Darren for reminding us all that jury nullification promotes injustice too. Southern juries were notorious for allowing the murderers of Civil Rights workers to go unpunished.
The government is out of control, and the biggest reason is the size. All govt. needs to be cut, across the board, by 50%. Then, the next fiscal year, another 50% cut. Tax cuts should be done in the same increments. After those 2 cuts, we should asses if further cuts are warranted.
This shows how out of touch our judicial system has become. When a judicial system fails to acknowledge the rights of people or of jury’s only show that they do not care about the people and only want the revenue it produces.
I yearn to be able to prove I am no longer called for jury duty because of my previous juror voting history while serving as a juror. I practiced nullification.
“…..that some complain are omitted by judges and prosecutors in explaining jury service before trial.”
No, the truth of the matter is that judges, knowingly, and purposefully lie to jurors about their rights and duties as jurors. If anyone needs to be locked up, it is these criminal, deceitful, judges.
maybe he should demand a jury trial…
Solzhenitsyn wrote a short story titled, ‘We Never Make Mistakes’. The plot line is not important as anyone who remembers the USSR can imagine. However, there is a little bit of ‘We Never Make Mistakes’ in every country, especially in the US these days. Positions of power and trust are taken to mean mostly power, disregarding the trust, by some of our elected and appointed representatives. A judge is a representative of the due process of the law of the land. The structure and process: juries, protocol, rules that apply to everyone, etc are sacred even though they, from the necessity of societal evolution, change. However, they are not to be interpreted through the egos of those who represent the core rights and freedoms of the land.
In the US, as with other countries, certain people in positions of power ride roughshod over the very rights and freedoms to which they owe their existence. We have a liberal and free enough society to plaster their faces and actions on blogs such as this and various newspapers. But, we seem to shrug this off when it comes to issues of responsibility and accountability. This judge will do enormous damage to the person he had arrested and even greater damage to the system he is supposed to be protecting. Then he will continue. Along with our freedoms and rights we attach a certain complacency. The US has to attach in the place of this complacency a required accountability in the form of recompense to those who are harmed and punishment to those who harm.
The person arrested should get his day in court and if proven innocent then the actions of the judge must be scrutinized by the same jury that exonerated the accused. Perhaps if the prosecution and judge where held accountable by the very system they abandon to their egos, this deplorable practice would be reduced.
I read this blog and follow the activities of this nation in various newspapers. I have yet to come across an instance of this sort of behavior being dealt with properly. The judge, prosecutor, and sometimes cop continues on with a sneer and a chuckle.
Agreed. This arrest is so absurd to me yet I have seen so many similar to this throughout my life that I have become somewhat complacent to it’s social effects and more importantly don’t know how to solve the problem. Many FIJA activists have been arrested and exonerated yet the Judges and prosecutors keep up their relentless attacks. Our Constitution has been shredded to a large degree.
The less we the people defend the usurpation of individual rights the more and more those rights will be usurped. It reminds me of Yogi Berra saying. The games not over until it’s over. Except the game is never over.
The questions are? 1. How important are individual rights to a society? 2. Can we and how do we restrict those in government from constantly attempted to usurp the Citizens rights? 3. How does government exist except for in an individual voluntary basis unless we acquiesce certain rights for the public good?
3. How do we stop the usurpation of individual rights if we must acquiesce certain rights for the pubic good. If seems like when you give up even one individual right, it opens the door for others to be usurped.
It is impossible to define and clearly delineate what is a “public good”. For instance, try proving public education provides a greater social benefit than it’s negative social ramifications?
To me the single and only function of government is to protect individual rights and that does not seem possible.
Well done, Steve.
I signed your petition and shared it on twitter.
Great point, BK.
“If I were on the jury judging _this case_ I would easily opt for nullification regardless of any judge’s instruction.”
In this case that wouldn’t even be necessary – reading the statutes, it’s absolutely clear that the charges are complete and utter nonsense. No person in their right mind would convict him on either charge
@bettykath: “Sounds like a free speech case”
It is.
“Hope he doesn’t accept a plea but goes for a jury trial where the jury gets to read his flyer as part of the evidence”
He won’t plead out – there is no way he would be convicted on those charges. Most likely the prosecutor (aka the Judge’s buddy) will drag it out for a while, force him to show up for court appearances over the next few weeks or months and then quietly drop the charges when it gets close to actually going to trial.
As for lawsuits, well… at the state level, the most he can hope for is the recovery of his bond money.
At the federal level level, they seem to have a pretty strong case with respect to actually being able to sue (absolute Judicial Immunity is tough, but not impossible to beat), but the actual amount he’ll be able to recover is likely so low that the only lawyer who would be willing to take the case would be one doing it for free out of principle.
This is perfect example of why I give $25 each and every month to the ACLU.
Paul,
This is far more than a free speech issue. We have the right to speak freely even if what we are saying is incorrect. By silencing this speech they are essentially enabling the state to limit the defendant’s right to a fair trial. The People and by extension the jury are supposed to be “peers” of the defendant and not the state. By limiting instructions to the violation of the law and completely ignoring the validity of the law, the jury is forced to side with the state that the law is ‘just’. What protection would the People have from unjust laws? The People would be at the mercy of the court system, hoping to win an appeal of a conviction that should never have been a law in the first place.