Jury Nullification and Jury Tampering: The Case of Keith Wood

            Keith Wood found interest in a government case against Andy Yoder, an Amish man accused of violating a regulation that prohibited draining a wetland, the wetland of which was on Yoder’s property. Wood’s interest in the case centered on the government’s purported right to control what one does with his private property. He attended Yoder’s pre-trial conference. After the pre-trial conference, Wood ordered pamphlets from the Fully Informed Jury Association, which contained general information about juror’s rights, including the right to vote one’s conscience and jury nullification.

            On the day of the Yoder trial, Wood stood on the sidewalk in front of the courthouse and passed the pamphlets out to passersby. Wood was arrested for, charged with, and subsequently convicted of jury tampering. He denied at trial that he asked any person to whom he handed a flier whether that person was a juror.

            At the trial, the prosecution made clear that the content of the flier was not at issue; rather, at issue was the manner in which Wood passed out the flier. The prosecution’s position was that Wood intended to target jurors in the Yoder trial in an effort to aid Yoder’s defense, essentially telling jurors (without saying the actual words) that they should nullify or conscientiously vote against the government.

            Wood’s defense focused on the First Amendment implications of the criminal charges. The pamphlets contained general information about juror’s rights. They contained no information pertaining to the Yoder case or Yoder himself.

            For the government to arrest and charge one of jury tampering for passing out general information pertaining to the rights of citizens as jurors seems to run afoul of the First Amendment right to free speech. The Michigan Penal Code, section 750.120a(1) reads as follows: “A person who willfully attempts to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case, is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.” The prosecution in the Wood trial really focused on the “willfully attempts to influence the decision of a juror” element. The defense focused on the “argument or persuasion” element. 

            It is worth considering what constitutes argument or persuasion under this statutory provision. Is it argument or persuasion to inform ordinary citizens of their rights when serving as jurors? If Wood informed every person he met that morning that every citizen has a right to vote his or her conscience as a juror and to nullify—to effectively veto government prosecution—without saying anything else, would that constitute argument or persuasion?

            Imagine that Wood did not hand out a juror’s rights pamphlet. Instead, Wood stood on the sidewalk in front of the courthouse handing out copies of certain statutory provisions and all case law interpreting those provisions. Assume that the statute and case law applied to the Yoder case. No other information was provided—no analysis of the statute or case law by some third-party. Assume also that every case analyzed the statute favorably for a defendant and unfavorably for the government. Would that constitute argument or persuasion? Consider that the statute is law and the case law is also law. Also consider that every person is expected to know and understand the law; otherwise, how could government expect law to govern any citizen's conduct? Ignorance of the law is no excuse, right? What is the difference between this scenario and handing out a juror’s rights pamphlet that simply states facts: every citizen has a right as a juror to vote his or her conscience and to nullify (that is, to act as a check against a wayward legislature, executive, and/or judiciary).

****As an aside, it is worth noting that jury nullification was a concept alive and well at this nation’s founding. John Adams once declared, “the common people . . . should have as complete a control, as decisive a negative” in courts as they do in other governmental decisions through their representatives. See 2 JOHN ADAMS, Diary, Feb. 12, 1771, THE WORKS OF JOHN ADAMS 253 (1850).****

            Same scenario except assume that every case provided by Wood analyzed the statute unfavorably for a defendant and favorably for the government. Would the government consider this to constitute argument or persuasion for purposes of prosecuting Wood for jury tampering? Why or why not? What if the case law was split, interpreting some parts favorably but others unfavorably for a defendant?

               Last, what if the judge informed the Yoder jury panel of the same rights listed in the pamphlet handed out by Wood? Would that constitute argument or persuasion? If not, then it should not constitute argument or persuasion to hand out the same information to passersby in front of a courthouse, even if they are serving as jurors.

            The rights of citizens as jurors should not be treated as taboo. At the same time, ensuring every party or person adjudication by an impartial jury is central to any free society. In the end, no matter where one falls on the issues raised in the Wood trial, it is worth noting that a jury of his peers found him guilty of jury tampering under the facts as described above.