I took a little vacation last week, driving the 8 hours to my family’s lake home in western Michigan is always a lot of fun; long days on the boat, bonfires, and watching the dogs swim after tennis balls, are always great ways to relax. Being back in my home state also gave me a chance to catch up on some local issues. That’s where I came across the “jury tampering” case of Keith Wood, a former pastor who was convicted of jury tampering earlier this month.
The case, is pretty straightforward; Mr. Wood was arrested in front of the 77th District Court in Big Rapids Michigan in November of 2015 for handing out pamphlets in front of the court
house entitled “What rights do you have as a juror that the judge won’t tell you about?” Mecosta County prosecutors stated that the pamphlets “misrepresented the legal system” and could “lead to a lawless society.” The defense, on the other hand, argued that since the pamphlets weren’t giving out specific advice on a specific case, that no tampering occurred.
What Mr. Wood was informing jurors about was the right jury’s have to vote in favor of Jury Nullification. Jury Nullification occurs when a jury returns a verdict of “not guilty” against a defendant, based on the fact that either the law, or the punishment for violating said law, was either wrongly applied, or the punishment for violating said law would be excessive. Once nullification occurs, the defendant is protected by double jeopardy.
Opponents of nullification state that nullification can lead to discrimination in the courtroom. They point to historical evidence for support. In the Jim Crow era, southern jurors would often use the concept of nullification to find white men innocent of racial crimes. Their argument, essentially, is that defendant A gets let off for a crime, but defendant B, charged with the same crime, is convicted; creating an unfair standard.
Legal scholar Glenn Reynolds argues against this line of thinking, stating:
“Of course, prosecutors have essentially the same power, since they’re under no obligation to bring charges against even an obviously guilty defendant. But 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. But there’s no obvious reason why one is better than the other. Yes, prosecutors are professionals — but they’re also politicians, which means that their discretion may be employed politically. And they’re repeat players in the justice system, which makes them targets for corruption in a way that juries — laypeople who come together for a single case — aren’t.”
And he’s not wrong. Prosecutorial Discretion is essentially the prosecutor’s version of “jury nullification.” This discretion allows prosecutors to decide what charges are brought against a defendant, and is essential to plea bargaining. The practice is so ingrained into the American justice system that many defense attorneys assume that it will come into play at some point in time during every case.
Mr. Wood’s defense team argues that his handing out pamphlets were a free-speech issue, and didn’t constitute “jury tampering” charges. UCLA law professor Eugene Volokh agrees:
“such speech is constitutionally protected, and that the indictment therefore violates the First Amendment. One can debate whether jury nullification is good or bad for the legal system, but it’s clear that it’s not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict. So Heicklen is encouraging a jury to engage in legal — even if, in the view of some, harmful — conduct.”
Judge Kimba Wood, a federal district judge based out of Manhattan, agreed with Mr. Wood’s, and Volokh’s assessment in 2012 when he wrote, in his opinion ruling in favor of nullification advocate Julian Heicklen, he stated that “jury tampering” could only occur when an advocate is petitioning jurors on behalf of a specific case.
Judges across the country tend to agree with Judge Woods; in 2015 a Denver judge dismissed charges against Mark Iannicelli and Eric Brandt, who were charged with jury tampering after handing out similar pamphlets; while New Hampshire Governor John Lynch recently signed a bill into law that protects a juror’s right to be informed about jury nullification.
When states, prosecutors, like those in Mecosta County, purposefully withhold information from the jury, that’s how democracy begins to erode, that’s tyranny.