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A Felony For Educating The Public About Jury Nullification

Tagged under: Research USA Court System Criminal Justice
By Omid Ghaffari-Tabrizi on December 3, 2015.

Omid Ghaffari-Tabrizi found this picture of the scales of justice on top of the US Supreme Court.

Keith Wood is a 39-year old man living in Mecosta, Michigan, a town of 457 (as of the 2010 census) located somewhere close to the center of the state. On November 24, after reading about jury nullification online, he passed out about 50 fliers with information about the procedure in front of the county court house.

After finding out about this, Judge Peter M. Jaklevic asked him to come up to talk with him. Wood refused three times before Judge Jaklevic sent down word that the police would be called to arrest him if he did not come up. Wood went to see the judge, where he was arrested for felony obstruction of justice and misdemeanor tampering with the jury and held under $150,000 bond, a relatively steep amount.

According to Wood's attorney, David Kallman, Wood was arrested "for tampering with a jury that didn't exist." Wood, through Kallman, already rejected a plea bargain, and will be pushing to not only have all charges dropped, but perhaps going on the offensive and filing a federal lawsuit against the Judge and the county.

Wood definitely seems to have a case. This seems very much like what happened to retired chemistry professor Julian P. Heicklen. In 2010, Heicklen was arrested and charged with a misdemeanor for jury tampering after doing the same thing as Wood – handing out informational pamphlets outside of a courthouse. In 2012, after nearly 2 years of court battles, Heicklen had all charges against him dismissed by a federal judge.

What Is Jury Nullification?

Omid Ghaffari-Tabrizi found this picture from the movie 12 Angry Men.

First and foremost, please exercise extreme caution when talking about this idea if you are ever called to a jury. You can be charged with jury tampering, just like Wood and Heicklen were, and things would be much easier for the state since you are actually talking to real potential jurors. This is not legal advice and is for the purposes of having a theoretical discussion. We are not advocating it, nor are we advocating punishing discussion of it. The beauty of America is that we have the right to free speech. With that out of the way, let's dive in.

Everyone knows that a jury can vote one of two options: guilty or not guilty. But that doesn't necessarily mean things are black and white. There is a grey area, and that is nullification.

Jury nullification is when the defendant is 100% guilty, beyond a reasonable doubt, but the jurors don't believe the person should be punished. If jury after jury refuses to convict someone for a particular activity, then the law is, for all practical purposes, nullified. (There is also the opposite result, in which an innocent person is convicted because the jury wants to punish them for whatever reason, but for practical purposes, these cases would be overturned on appeal, and are not discussed in this article.)

Jury nullification is not an actual law. Rather, it is the product of two other aspects of the law: a jury cannot be punished for their decision (US v. Doherty, 473 F.2d 1113 (1972)) and a person cannot be charged for the same crime twice (the idea of double jeopardy).

The power of jury nullification is that it creates a third outcome from the two choices given in jury instructions:

  1. If the jury thinks a person is innocent and renders a verdict of not guilty, the person is freed.
  2. If the jury thinks a person is guilty and renders a verdict of guilty, the person is sentenced.
  3. If the jury thinks a person is guilty but should not be punished and renders a verdict of not guilty, the person is freed.

Double-Edged Sword

Omid Ghaffari-Tabrizi found this illustration of the US slave trade.

When debating the premise of jury nullification, it is important to point out the equal nature of the power that jurors have. A great example comes from US history.

Prior to the Civil War, runaway slaves that were arrested and tried in Northern courts would be acquitted, even though they were guilty under the letter of the law. Jurors who simply did not agree with slavery would not vote to punish a person for escaping a life of servitude. On the other hand, during the Southern juries who were faced with having to rule on cases involving white mobs lynching black people would let racial bias rule rather than the evidence in front of them.

During voir dire, the period when lawyers ask questions to build the jury, potential jurors are often asked a question along the lines of "will you make a decision based strictly on the law?" The reason is that the very concept of jury nullification means 12 people are going against the laws established by the legislators the community as a whole had voted into power. By the very nature of nullification, it may result in otherwise unjust results that a victim has to pay in order for a jury to make a statement.

One thing is clear – an attempt to convince the rest of the jury you are on to disregard the law and make a statement through nullification is going to lead to charges of jury tampering, among others. However, if you are arrested for handing out pamphlets or otherwise informing people about the theory of nullification, you should not be punished. If you were charged with jury tampering and had your charges dropped, see if you qualify to have the arrest removed from your record.

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