The U.S. Supreme Court has called political pamphlets, once distributed only by hand, “historical weapons in the defense of liberty.”
And a fight is on now in a Michigan appeals court over the conviction of a man who did just that.
The appeal brief has been filed in the Circuit Court for the County of Mecosta in the case against Keith Eric Wood.
But Judge Peter Jaklevic, Magistrate Tom Lyons, Prosecutor Brian Thiede and others inside the courthouse didn’t want him to do that, because they didn’t like the content of the brochures.
They ordered him into the courthouse, arrested him and set his bond at a punitive $150,000, which left him behind bars until he could arrange to put a $15,000 tab on his credit card. He was charged with felony obstruction and misdemeanor jury tampering.
The felony count was abandoned by prosecutors, but they convicted him of misdemeanor jury tampering, even though there was no jury impaneled that day.
Now Wood’s lawyer, David Kallman of the Great Lakes Justice Center, has filed the opening appeal brief, arguing “judges, prosecutors, and law enforcement officials must discharge their duties within the confines of our Constitution.”
“Citizens hold many differing political views, and they often hold them passionately. They may express those views even in ways that offend government officials,” he said. “The price for our freedom is that we might be subjected to views that offend us. Democracy is a messy business, and we, as a people, have freely chosen it over the relative tidiness of tyranny.”
He said the First Amendment protects when citizens want to speak, and the “United States Supreme Court calls these kinds of hand-distributed political pamphlets ‘historical weapons in the defense of liberty.'”
“By prosecuting Mr. Wood, the state engaged in nothing less than suppression of protected free speech. Few legal principles are more clear than the one stating that ‘handing outleaflets in the advocacy of a politically controversial viewpoint … is the essence of First Amendment expression.'”
The high court even added that when states make it more difficult to engage in such communication, it “imposes an especially significant First Amendment burden.”
The brief explains: “Mr. Wood’s political speech is at the core of the First Amendment’s protection because it deals with matters of public concern … Mr. Wood was sharing information on the history, authority, and power of juries, a topic of political, social and public concern. … Not only is the content of Mr. Wood’s speech deserving of special protection, but restrictions on the method through which he delivered his message also historically require the highest scrutiny possible in order to protect our First Amendment rights. Indeed, the United States Supreme Court has stated, ‘leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment.'”
Jaklevic, for example, explained in a lower court that he was concerned that the pamphlet Woods was handing out said jurors should vote their conscience and encouraged them to consider whether the Bill of Rights was honored during the arrest.
“Thus, even though the state disagrees with Mr. Wood’s criticism and interpretation of the law regarding the authority of juries, it has no power to silence his speech,” Kallman explained. “Arbitrarily arresting … Mr. Wood on unfounded criminal charges to punish him for expressing a contrary opinion shamelessly violates the First Amendment.”
WND reported in July, when Wood was sentenced and an appeal was likely, prosecutors demanded a gag order that would prevent Wood or his lawyers from saying anything about the case.
The judge, Eric Janes, however, dismissed the request and then decided the sentence of eight weekends in jail and six months of probation should be stayed pending the decision from an appeals court.
It was just hours earlier that Judge Kimberly Booher had announced the penalty for Wood’s conviction in court of standing on the public sidewalk outside the courthouse and handing out flyers containing “generic juror rights information that said nothing about any specific case pending before the Mecosta County Courts.”
Woods said at the time it was a clear First Amendment speech issue, since Booher refused to let Wood’s defenders talk about the issue with the jury.
Also, he said: “Booher refused to allow us to argue or comment to the jury on one of the elements of the crime charged. One of the elements of the crime of jury tampering is that the prosecutor must prove that Mr. Wood tried to influence jurors in the trial of a case. It would seem obvious that this element could not be proven because no trial was ever held and no jury was actually sworn in on a specific case. However, we were not allowed to argue this fact to the jury.”
Third, he said, Booher had ordered that a person becomes a juror when he gets a jury summons.
“We argued, and the [Michigan] Supreme Court has agreed in earlier case precedent, that a person is not a juror until sworn in to serve on a jury in a case. So we were also prohibited from arguing this point to the jury in Keith’s case,” Kallman told WND.
It was Jaklevic who ordered Wood’s arrest Nov. 24, 2015, moments after Wood handed out about 50 juror rights pamphlets on the public sidewalk outside the courthouse.
WND reported earlier this year that prosecutors contend Wood tampered with a jury even though there was no jury empaneled that day.
The issues in the case center on free speech, the rights of jurors, the rights of citizens on public sidewalks to express their opinion and efforts by judges and prosecutors to run the court system by their preferences.
For example, if a citizen hands out a pamphlet on the issue of jury nullification in front of a courthouse to people who haven’t yet been sworn in as jurors, can the citizen be charged with improperly influencing a jury?
The state’s Supreme Court has ruled that “a jury is not a jury until it is sworn,” but in Woods’ case, prosecutors contended that any potential juror also is considered a juror, and Booher affirmed that.
WND reported earlier in the case the pamphlet is about the concept of jury nullification. It explains that juries can judge a particular law as well as a case.
A report on jury nullification by the University of Missouri-Kansas City explains it occurs “when a jury returns a verdict of ‘Not Guilty’ despite its belief that the defendant is guilty of the violation charged.”
“The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.”
Such decisions were common during the era of slavery in the United States, when juries acquitted activists who helped runaway slaves.
“Juries clearly have the power to nullify; whether they also have the right to nullify is another question,” the report said. “Once a jury returns a verdict of ‘Not Guilty,’ that verdict cannot be questioned by any court and the ‘double jeopardy’ clause of the Constitution prohibits a retrial on the same charge.”
Early in the nation’s history, “judges often informed jurors of their nullification right.”
“For example, our first Chief Justice, John Jay, told jurors, ‘You have a right to take upon yourselves to judge [both the facts and law].’ In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.”
However, over time the judiciary reversed its position, and in 1895 a defendant’s conviction was affirmed even though the trial judge “refused the defense attorney’s request to let the jury know of their nullification power.”
Now, prosecutors and judges routinely oppose even discussion of the concept, and judges tell jurors “it is their duty to apply the law as it is given to them, whether they agree with the law or not,” the report said.
Ilya Somin, professor of law at George Mason University, wrote that such discretion “has much in common with prosecutorial discretion,” in which prosecutors use their own judgment to pursue some cases and not others.
He noted legal scholar Glenn Reynolds pointed out that while “the power of juries to let guilty people go free in the name of justice is treated as suspect and called ‘jury nullification,’ the power of prosecutors to do the exact same thing is called ‘prosecutorial discretion,’ and is treated not as a bug, but as a feature in our justice system.”
“There’s no obvious reason why one is better than the other,” he said.