Ex-Pastor Faces Felony for Preaching Jury Nullification
Authorities need to choose between facing a lawsuit now or trying to win a groundbreaking conviction.
Attorney David Kallman says he will sue everyone involved in client Keith Wood’s arrest for handing out pamphlets. Legal scholars disagree on whether the First Amendment protects doing so.
By Steven Nelson
U.S NEWS
Michigan father of seven Keith Wood, a former pastor, was arrested two days before Thanksgiving and charged with a felony – with bail set at $150,000 – for standing on a courthouse sidewalk handing out brochures that included information about jury nullification.
The local prosecutor’s office isn’t backing down, potentially making Wood, 39, the posterboy of a protracted legal test case that would establish firmly whether it’s legal to tell people near courts that jurors can vote their conscience and acquit a suspect who they think may be guilty because they disagree with a law or its application.
It’s unlikely to get to that point, says Wood’s attorney David Kallman. He believes both charges against Wood – a felony for obstruction of justice and a misdemeanor for jury tampering, which jointly carry up to six years behind bars – will be dismissed at a hearing next week.
“If they just dismiss the case, we’re free to bring the lawsuit,” Kallman says. “The only reason I can think of that they aren’t just backing off is because they know they are exposed and they have liability and they don’t have immunity for what they did. [But] if they bring the case and somehow manage to win conviction for something, they cut our knees off.”
Kallman says he plans to sue “anyone involved in this charade” and the county government, likely on the grounds of malicious prosecution and false imprisonment, among other claims.
“Look, this is just before Thanksgiving and they’re telling him $150,000,” he says. “What was their intent? It’s obvious: ‘We’re going to make this guy stay in jail all weekend and make him stay away from his wife and kids and show him who has the power.'”
Wood was able to get out of jail after 12 hours by putting a $15,000 bond charge on a credit card.
Kallman says if the case does go to trial, he’ll argue his client is innocent, as there was no jury empaneled at the time of the incident. “Imagine the first exhibit we’re going to show at trial – the irony of that is so rich,” he laughs.
Mecosta County, Michigan, Prosecuting Attorney Brian Thiede’s office declined to comment on the case, saying in a Wednesday statement as media attention swelled that “the charges against this individual are merely accusations and he is presumed innocent until and unless proven guilty.”
Wood told local media outlets that he was arrested on the request of the county’s newly elected district judge, Peter Jaklevic, who summoned him inside the courthouse for a conversation before ordering a deputy to arrest him for jury tampering.
Jaklevic, a former prosecutor, presided over a preliminary hearing Tuesday before recusing himself from the case, Kallman says.
Other people have been arrested for advocacy similar to Wood’s, some of them for distributing the very same brochure produced by the Fully Informed Jury Association.
Julian Heicklen, a retired Penn State University chemistry professor, was acquitted in 2012 of jury tampering for handing out association materials in New York City, with federal Judge Kimba Woodfinding he would have broken the law only if he had tried to influence a juror in relation to “a specific case pending before that juror.”
In Denver, Mark Iannicelli and Eric Brandt face state-level jury tampering charges for passing out the same pamphlet that landed Heicklen and Wood behind bars. Their next hearing is later this month, but federal Judge William Martinez in August granted a preliminary injunction allowing activists to continue to hand out the pamphlets.
The Supreme Court hasn’t weighed in on whether it’s legal to hand out the brochures, and legal scholars are divided on whether the First Amendment protects doing so.
Ilya Somin, a law professor at George Mason University, says “it probably is unconstitutional, what’s being done to this person. If he was handing out these leaflets on a public street where other political speech is permitted, the government can’t punish him for engaging in speech promoting jury nullification.”
“Jury nullification in and of itself isn’t even illegal,” he adds, and even if it were, the Supreme Court has held general advocacy of criminal conduct is legal unless it’s likely to cause imminent criminal conduct.
UCLA law professor Eugene Volokh made the same point in a 2011 blog post addressing Heicklen’s case, pointing out that the 1969 decision in Brandenburg v. Ohio protects advocacy of illegal conduct, therefore making general advocacy of legal conduct even more clearly protected.
“Say that Mr. Heicklen’s brother stands on a street corner and hands out leaflets to passersby praising the propriety of jihad, of bombing abortion clinics, or of a range of other crimes,” he wrote. “That speech is protected by the First Amendment, despite the possibility that it might persuade some recipients to commit very serious crime.”
All scholars aren’t convinced that Wood will fare well if the case goes to trial.
“It’s a not easy and very complicated question,” says University of Chicago law professor Geoffrey Stone. Calling a juror and telling them to nullify would be jury tampering, he says, but advocating the practice only generally clearly is protected by the First Amendment.
“The question is where on the scale of ‘kill my brother’ – which is not a Brandenburg case – and ‘overthrow the government’ in a public speech with a thousand people – which is a Brandenburg case – this is,” Stone says.
“It’s in between the two, that’s the problem. You could easily say Brandenburg applies because it’s public speech, but on the other hand it’s speech that’s clearly addressed to a specific group of people to try to get them to do something that the legal system very carefully tries to restrain.”
Don Herzog, a law professor at the University of Michigan, leans against Wood, though he says a felony charge seems harsh.
“If I had to bet – on this very scanty description of the facts, and the facts really do matter – I bet courts will let the government control this speech,” he says, reasoning that the government absolutely can forbid discussion of jury nullification during court proceedings and that the law is “hyperdeferential” to speech restrictions “when the government has a job to do.”
Kirsten Tynan, executive director of the Fully Informed Jury Association, says the loosely organized group does not specifically target jurors or advocate jury nullification in any case that’s being considered at trial. Members don’t only distribute the information at courthouses, she says, and have distributed literature at peace rallies, hemp fests and gun shows.
“I would like to see the U.S. Supreme Court weigh in on it in a very explicit way,” says attorney Roger Roots, a FIJA advisory board member, who says he also would like the Supreme Court to mandate that all juries be informed of a right to nullification.
“There has been discussion” about finding a test case that would definitively allow people to distribute literature about jury nullification, Roots says. “Unfortunately, almost, the case never goes that high because the lowest courts realize our position is correct. Maybe this is the test case.”