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?
Tar & Feathers for the idiots who wrongly charged this man…per Instapundit–Glenn Reynolds. We have the worst political class since the Democrats caused the the Civil War… it’s time to start holding our bureaucrats accountable for their actions.
I’m just happy to see a writer use the correct “quashed” instead of what every illiterate seems to substitute in its place: “squashed”.
Prosecutor: “Ladies and Gentlemen of the jury, the judge has instructed you that the Defendant may be found not guilty if you determine that he was exercising his free speech rights under the First Amendment of the Constitution. What the judge didn’t tell you is that you can ignore any instructions the judge gives you about the law. That’s right! Usually this is applied to situations where a jury disagrees with a charge that has been brought against a Defendant, even if the evidence proves guilt. If you don’t like the law, you could find the Defendant not guilty anyway under jury nullification. Well guess what. It cuts both ways! In other words, if you don’t like a law that would normally provide a defense to a defendant, like insanity, or self-defense or the Constitution, you can ignore that law and find the Defendant guilty anyway! Why not? After all, what’s good for the goose is good for the gander.” This, I submit, should be a perfectly permissible argument for a prosecutor to make if courts were to actually honor the idea of jury nullification. In essence, nullification calls for a jury to ignore the law and a judge’s instructions on the law. So why be selective? The jurors should be able to ignore whatever instructions they desire. So if a jury is very pro-prosecution, they should be able to ignore those instructions favorable to the defendant. Of course, this would result in utter chaos and a collapse of the criminal justice system. But so could the application of jury nullification as those here seem to advocate. If I am going to be trying a case (and I tried over 80 jury trials) I would at least like to know what law it is that a jury will be applying to the facts. The way I would present a case would be highly dependent on that knowledge. If I have to worry about nullification, where do I even begin? Do I somehow try to put in evidence about the history and purpose of the various statutes I’m relying on? One little problem– that sort of evidence is, first, generally not admissible and, second, a potentially HUGE consumption of time. You could end up with days of testimony from various law professors about the purpose and meaning of the various statutes. It would be utterly ridiculous. So, invite nullification and you invite total unpredictability into the system (which means many more cases would go to trial and thus a huge increase in taxes and lawyers), as well as chaos. Litigants need to know that “their” jury is going to follow the law, not just pick and choose. People who advocate for jury nullification are, I think, greatly undermining the justice system. Should that be a crime? Obviously not under most circumstances. But when it’s being foisted on actual jurors it may be a whole different story.
The Skeptic: Very well argued. I agree.
tar and feathers at the least ….. the prosecutor is the enemy
by the way the framers did not DESIGN juries. juries have been around in English law for a thousand years or so and they go all the way back in the West to the trial of Socrates. Now there is something worth reading. And pamphlets or not, a well educated population would understand that they have the power of nullification whether they get a jury instruction or a pamphlet or not.
However the character and quality of our population has vastly declined, so attempts to forestall our inevitable national doom by handing out pamphlets remain a laudable, if vain effort.
MikeA, Thanks for the link. Good to see you. I hope you stop by more often. You are missed.
Agree with Mike A.
The generic information about jury nullification being passed out to anyone who happens by is not in anyway jury tampering. It is free speech
It would be a different thing if he were handing out flyers directly referencing an up coming or currently on going case where jurors might be affected or influenced. Instead this is just general information that can be obtained by anyone who does an internet search.
We have to hold the officials accountable for these rogue actions and not allow free speech to be squashed by thuggish government officials.
Liberterians are classic liberals, both advocate a legal regime of individual rights, both property and speech.
They are soundly antidemocratic. Constitutional review of laws for infringing “individual rights” is also antidemocratic. Democratic legislatures pass a law, and then unelected judges strike them down because of one person’s sense of having individual rights violated. That’s how that works. Just understand, that it is not democratic. We are in a republican form of government which was first and is very much still based on capitalism. Capitalism requires liberalism as a normative ideology because if “democracy” was allowed too much sway, the majority would vote themselves to take the money from the richest stratum.
IN the 1930s, the powers that be decided it was a good idea to increase the relative degree of democracy and tune down the capitalism a bit. That is first year constitutional law, the end of lackner, the rise of deference to congress and the commerce clause, etc.
I used to smoke the ayn rand crack. Now I have given it up for nigh on two decades. I “checked my premises.” I can see the logic in democracy and its corollary, socialism, because I understand that there is a thing such as the “common good” that requires coercion by the state. All that complicated stuff from Hayek, and the whiny prattling from Professor Pea Cough, all that is bunk. What is important is that you get yourself into a country where the democratic-socialist government is based on a solid population core. Give me democratic-socialist Iceland over democratic-socialist brazil any day,. The issue is not form of government it is the quality of the people. But you guys are all short circuiting that insight with the equality nonsense. Equality is just a slogan it is not the truth. The truth is all men are different, not all men are the same.
What most liberterians are, is white guys who are too weak to embrace the reality that all men are not equal, because all men are not the same. Thus all men are not likewise qualified to act properly under conditions of liberty. And not all men should be allowed to come to this country in the first place. But this runs very quickly into the mire of “racism” and most liberterians are too chicken to look in the mirror and say yes, I am white and I stand on countless generations of ancestors who were strong enough to stick together, defeat their mortal enemies, establish clans and tribes and nations, to allow “the west” to thrive, and now I the weak “individual” in the mirror, am afraid of being called names, so instead of being realistic I think up a bunch of mumbo jumbo that justifies my opposition to certain laws that I don’t like.
Liberterians, classic liberals, mostly foolish white people, who are afraid to learn about groups and keep on kidding yourselfs with this equality nonsense, you guys are like somebody who tries to fly solo in jail. It’s a dangerous proposition,. Cool guys do it in the movies but in the real pen you gotta pick a crew to dine with. If you don’t you will be picked off one by one. That’s what’s happening to the core group of white folks who are descended from those who built this nation– so befuddled by capitalist, individualist ideology, that you cant stick together and do what it takes to survive.
Anyhow, I’ll pray for you nonetheless.
The government has legitimate power because we, the people, gave it to them. Their power is legitimate so long as they stay within the bounds we set. When they step outside those bounds, they have no more legitimate power than a mob with torches and pitchforks.
I have previously commented on this topic. In my view the distribution is constitutionally protected free speech. http://jonathanturley.org/2011/02/20/jury-tampering-and-the-first-amendment/
It’d be singularly self-promotion (of a prosecutor seeking higher office) to try such a case, as the law chills constitutionally-protected speech. As for jury nullification itself, however, I’m absolutely, 100% positively, opposed.
During Andrew Jackson’s presidency, John C. Calhoun and South Carolinians thought nullification a state’s right with respect to tariffs (which resulted in Jackson sending in federal troops in fear of insurrection) and thirty-odd years later ended up fighting a civil war over what was really a fear of federal nullification of state slave-labor laws.
As apparently Abe Lincoln stated (thanks G. Mason): “‘This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it’ Abraham Lincoln”
In other words, amend the law, but don’t violate it when you’ve obligated yourself to uphold it as a jury member does. Or, start a civil war. A jury member has no unilateral right to amend law, and if he or she wants to start a civil war by violating his or her duty to it, the law may very well prevent that from happening. But unless and until you do either, jury nullification is illegal in a democratic society in which the People through representation, not individually, make the laws.
Sometimes humans confuse “libertarians” with “liberals” and /or “librarians”. Or “Liberians”. Never the Twain shall meet and there are more than two.
The Framers of the U.S. Constitution designed juries as a constitutional “check” on both the prosecutor and the judge. It’s one of the most powerful authorities that a regular citizen has, to rule (within legal and constitutional boundaries) over the judge and prosecutor.
This “check” only works if the jurors are properly educated as to their constitutional role. It sounds like the guy on the taxpayer-owned sidewalk in front of the taxpayer-owned courthouse was exercising his legal First Amendment right to educate the jurors of their duty. Maybe the courts aren’t providing that essential education to jurors. Either way it was legal.
If government services were valuable and the market wanted them, they wouldn’t be provided on a compulsory basis.
John Smith said at 6:23 PM yestersday “I know libertarians whine and wring their hands over democracy. They are clueless about how “individual rights” has been used for centuries to gut the foundations of culture which support the western conceptions of justice, the common good, and the purpose of life which informed the notion of “rights” in the first place. Individual rights in Marxist interpretation of history means, capitalists undoing the feudal restrictions of king and priest imposed on the action of the bourgeosie and its money.”
You mean those dogmatic doctrines that allowed the Church and State to burn people a the stake, hang them, take their children away and steal their property, (for the Public Good). The good old days. Yea, we have know no clue what it took to force the King to sign the Magna Carta or what it took to rid ourselves of the treacherous tyranny of the British Crown and Church of England.
Democracies all fail for the same reasons, to numerous to venture into them in a single blog thread. There are no individual rights in Marxism, only the public good, which you or anyone else is not smart enough to determine. You can not possibly know what is in my best interest. If you cannot know what is in a single persons best interest, you surely cannot know what is in the majorities best interest. Government just guesses and why we have a $600,400,000,000 annual defense budget. This is greater then the top 11 countries “combined”. This means, other countries can defend themselves for a lot less and we are way off on our guestimate, which makes the war mongers really happy.
All nation states must sacrifice individual rights for the public good and that is why none of them have ever provided for what is in the best interest of the majority, instead giving the wealthy class the legalized ability to steal through taxation from the majority in the name of the public good. https://groups.google.com/forum/#!topic/harrietrobbins/UU38TwCmrjQ
Marxist philosophy by the way was a blueprint for the bourgeoisie to recapture financial and political control of the means of production, they had lost in the various revolutions during the late 1700 and early 1800s. And you though Marx was trying to raise the workers out or the mercantilist system. Lol. Don’t fret though, he fooled many many people who don’t understand the various socio-economic systems and how governments have always been used to suppress individual rights for the best interest of the ruling oligarchy.
Yes, we libertarians have no clue as to the purpose of life which forms the nation of rights in the first place. This is something a politician would say to fool the workers into adopting various socialist/communist philosophies; it’s for the public good. Rights are not inalienable, they are given to us by justice, mon’s apple pie, our government and the American way. That was sarcasm. I think we need to gut the foundation of the various cultures which have placed so much hardship on the majority.
http://www.wnd.com/2015/12/judge-subpoenaed-as-witness-after-ordering-mans-arrest/
One issue. Does he wait for the criminal prosecution to be done with to file his civil rights suit in federal court.
Second issue. It is not just free speech standing on its own. It is also a right to petition his government for redress of grievances. Both are prongs of the First Amendment.
Third issue. Who are defendants in the federal civil rights litigation? Everyone who conspired to have him arrested. And after the arrest who conspires to go forward.
Fourth issue. On the criminal case file a motion for change of venue. But, you might be better off in that county with jurors who might be as offended as he is by the prosecution.
You guys are right jury nullification was used in the fight against “Civil Rights.” As such it functioned properly as a form of democratic opposition to “individual rights.” Lets understand the fundamental tension at the root of American government: democracy versus individual rights. But with the quasi religious creed of “individual rights” that we were brainwashed with by the Declaration (itself a form of blatant hypocrisy vis a vis slaves if there ever was one) but the creed of individual rights is directly opposed to democracy that can vote those rights away.
I know libertarians whine and wring their hands over democracy. They are clueless about how “individual rights” has been used for centuries to gut the foundations of culture which support the western conceptions of justice, the common good, and the purpose of life which informed the notion of “rights” in the first place. Individual rights in Marxist interpretation of history means, capitalists undoing the feudal restrictions of king and priest imposed on the action of the bourgeosie and its money.
The “Civil rights era’ like the Civil war before it was the march of Yankee capitalism across the backs of all the poor rednecks and white honkies, both the southerners and the northern proletarians and the dead rebs and union soldiers too poor to buy their way out of military service.
Justice has always been phony to capitalists, who were wrangling on building fortunes even as the aristocrats were expelled or had their heads chopped off. They’ve been in charge ever since.
“Jury nullification” is regarded among lawyers as a patriotard phenomenon, Let’s be honest about that. The only lawyers that take it seriously are criminal defense lawyers and even they cant get a jury instruction on the matter. Lawyers have to work for capitalist system interests in general, but only the criminal defense lawyer gets paid to do otherwise. They really are the last line of defense for the common man.
CPC 182.
(a) If two or more persons conspire:
(1) To commit any crime.
(2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime.
(3) Falsely to move or maintain any suit, action, or proceeding.
etc.
The officers that detained and charged must be similarly detained and charged for “conspiracy,” false
indictment, abuse of the power of government against the people and denial of constitutional rights.