<\/p>\n
Bob Unruh
\nWND.com<\/p>\n
Is a juror legally a juror before he or she is picked for a case and sworn in? How about in the courthouse hallway? Or how about on the sidewalk in front of the courthouse? While driving to the courthouse? When a juror notice is received in the mail?<\/p>\n
And can it be described as \u201cjury tampering\u201d if someone hands that person on the sidewalk a pamphlet with information that is readily available to the public on the Web or in libraries?<\/p>\n
Some contend the issue in Michigan already was decided when the state\u2019s Supreme Court last year ruled \u201ca jury is not a jury until it is sworn.\u201d<\/p>\n
But that\u2019s not good enough for a prosecutor and a magistrate who were offended by a former pastor\u2019s public distribution of pamphlets about the practice of jury nullification last year.<\/p>\n
They charged him with obstruction of justice but had to drop the count a short time later. They also charged him with a misdemeanor of jury tampering, and the pastor\u2019s simple request to have that charge dismissed now has reached the state Court of Appeals.<\/p>\n
The case developed<\/a> when Keith Eric Wood stood on the sidewalk outside his local courthouse handing out the pamphlets.<\/p>\n But Judge Peter Jaklevic, Magistrate Tom Lyons, Prosecutor Brian Thiede and others inside the courthouse didn\u2019t want him to be doing that.<\/p>\n 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 to get out.<\/p>\n Another judge shortly later dismissed the felony but left the misdemeanor standing, and a circuit court ruling also left the charge unchanged.<\/p>\n So now attorney David Kallman of the Great Lakes Justice Center,<\/a> representing Wood, has asked the next higher court to straighten things out.<\/p>\n A report on jury nullification by the University of Missouri-Kansas City<\/a> explains it occurs \u201cwhen a jury returns a verdict of \u2018Not Guilty\u2019 despite its belief that the defendant is guilty of the violation charged.\u201d<\/p>\n \u201cThe 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.\u201d<\/p>\n Such decisions were common during the era of slavery in the United States, when juries acquitted activists who helped runaway slaves.<\/p>\n \u201cJuries clearly have the power to nullify; whether they also have the right to nullify is another question,\u201d the report said. \u201cOnce a jury returns a verdict of \u2018Not Guilty,\u2019 that verdict cannot be questioned by any court and the \u2018double jeopardy\u2019 clause of the Constitution prohibits a retrial on the same charge.\u201d<\/p>\n Early in the nation\u2019s history, \u201cjudges often informed jurors of their nullification right.\u201d<\/p>\n \u201cFor example, our first Chief Justice, John Jay, told jurors, \u2018You have a right to take upon yourselves to judge [both the facts and law].\u2019 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.\u201d<\/p>\n VIDEO: SCOTUS THROWS OUT MCDONNELL CORRUPTION CONVICTION<\/a><\/p>\n However, over time the judiciary reversed its position, and in 1895 a defendant\u2019s conviction was affirmed even though the trial judge \u201crefused the defense attorney\u2019s request to let the jury know of their nullification power.\u201d<\/p>\n Now, prosecutors and judges routinely oppose even discussion of the concept, and judges tell jurors \u201cit is their duty to apply the law as it is given to them, whether they agree with the law or not,\u201d the report said.<\/p>\n \u201cAs it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across. Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given,\u201d the report said.<\/p>\n Ilya Somin, professor of law at George Mason University, wrote<\/a> that such \u201cdiscretion\u201d actually \u201chas much in common with prosecutorial discretion,\u201d in which prosecutors use their own judgment to pursue some cases and not others.<\/p>\n He noted legal scholar Glenn Reynolds pointed out that while \u201cthe power of juries to let guilty people go free in the name of justice is treated as suspect and called \u2018jury nullification,\u2019 the power of prosecutors to do the exact same thing is called \u2018prosecutorial discretion,\u2019 and is treated not as a bug, but as a feature in our justice system.\u201d<\/p>\n \u201cThere\u2019s no obvious reason why one is better than the other,\u201d he said.<\/p>\n In his new request for permission to pursue an appeal, Kallman explained that the pamphlet didn\u2019t discuss any particular case and did not advocate for anyone on a jury to vote any particular way.<\/p>\n Wood simply had an interest \u201cin members of the public\u201d knowing a jury\u2019s full options, he wrote.<\/p>\n Further, on the day that Wood was handing out the information, there was no jury picked at the courthouse, the petition explains.<\/p>\n The district court had concluded that every person who went to the court that day for possible jury duty was a juror.<\/p>\n But besides the state Supreme Court already having a say in a similar case, Black\u2019s law dictionary, the resource of choice for most American courts, says a juror is a member of a jury, described as \u201ca certain number of men, selected according to law, and sworn to inquire of certain matters of fact, and declare the truth upon evidence to be laid before them.\u201d<\/p>\n \u201cConsider the following scenario: Mr. Smith is on his way to potentially serve as a juror and is handed a flier on the public sidewalk in front of the courthouse. Once Mr. Smith is inside the courthouse, but before he is accepted as a juror, he slips and breaks his hip. According to the district court\u2019s initial ruling on this issue, Mr. Smith is a juror when he is handed the flier; but the Michigan Supreme Court holds he is not yet a juror at that time or even minutes later when he breaks his hip for the purposes of receiving monetary compensation as a juror,\u201d Kalllman wrote.<\/p>\n Kallman wrote that the higher court \u201cshould correct the district court\u2019s improper ruling on this issue.\u201d<\/p>\n There\u2019s also the argument that Wood\u2019s speech is protected by the First Amendment, the brief argues.<\/p>\n