A Michigan jury has found a former pastor guilty of illegally attempting to influence jurors by distributing pamphlets about jury nullification near a courthouse.

Keith Wood, a father of eight who works as an insurance broker, faces a statutory maximum of one year in jail and a $1,000 fine following his Thursday conviction.

Jury nullification is a lawful option for jurors who believe convicting a defendant would be wrong, even if the evidence otherwise says they are guilty. But how activists can educate jurors about this option is not legally settled.

Wood was arrested in 2015 after handing out fliers on a sidewalk, on the orders of elected county Judge Peter Jaklevic. He originally faced a felony obstruction of justice charge and a misdemeanor jury tampering charge.

The felony charge was dismissed last year, and defense attorney Dave Kallman said he planned to file a federal lawsuit against "anyone involved in this charade" after an anticipated acquittal on the misdemeanor.

WXMI-TV reports, however, that jurors took just 30 minutes to convict Wood after Mecosta County Assistant Prosecutor Nathan Hull argued "it’s the manner by which this pamphlet was handed out" that was illegal.

At trial, Wood said he did not ask anyone entering the courthouse if he or she was a juror, contrary to a witness' claim, WXMI reports. Wood said he ordered the pamphlets from the Fully Informed Jury Association after attending a pretrial hearing for Andy Yoder, an Amish man accused of illegally draining a wetland on his property.

Mecosta County Circuit Judge Kimberly Booher reportedly limited the use of the First Amendment as a defense and held that prospective jurors could be considered jurors for purposes of the case.

Wood reportedly distributed about 50 of the pamphlets on the day Yoder’s trial was scheduled to begin. Some prospective jurors were holding them, Jaklevic testified. Yoder accepted a plea deal on the day of Wood's arrest and potential jurors were dismissed.

Hull tells U.S. News that Wood "was not randomly handing out pamphlets; he was targeting jurors for a specific trial," and that he anticipates his office strongly defending the "valid conviction" against any appeal.

Hull also says he's unaware of laws against distributing jury nullification pamphlets outside courthouses "as long as you're not attempting to target a jury."

Kallman says Wood, scheduled to be sentenced in July, intends to appeal. Wood testified he assumed Yoder would accept a plea deal, his attorney says, and that he didn’t know Yoder’s trial was the only one scheduled that day.

“He wasn’t out there with a megaphone screaming, ‘Free Mr. Yoder!’ The pamphlet talks about voting your conscience, things like that,” Kallman says. “And it’s not like people are walking up to the courthouse with a neon sign saying, ‘I’m a juror.’”

Kallman says the presiding judge prevented him from providing a full defense, barring analysis of witness bias, questions about constitutional rights and discussion of whether the law even covers potential jurors.

“Essentially our defenses got cut out from under us,” Kallman says. “We were not able to argue to the jury anything about our client’s First Amendment rights. We weren’t even able to argue to the jury that no trial occurred [and that] no jurors were seated.”

Kirsten Tynan, executive director of the Fully Informed Jury Association, which produced the pamphlets Wood was handing out, says the conviction is “an outright miscarriage of justice.”

Watch WXMI-TV's coverage:



Tynan's loosely organized group believes there's a First Amendment right to hand out the fliers near courts, and ships a couple thousand pamphlets a month across the country. Copies of the pamphlet also are available online.

First Amendment experts disagree on whether the Constitution allows prosecutors and judges to muzzle advocates who hand out FIJA fliers. Recent court rulings also are mixed.

FIJA’s most high-profile case is ongoing, with activists awaiting a ruling after a federal civil trial earlier this year. The group recently had a preliminary injunction upheld by the U.S. Court of Appeals for the 10th Circuit to protect brochure distribution near a Denver courthouse. That followed jury tampering charges being filed in 2015 against two men – Mark Iannicelli and Eric Brandt – who distributed FIJA brochures in Denver. Those charges were dismissed, though authorities have appealed.

But FIJA lost a challenge of a Florida judge’s 2011 ban on distributing information that could influence a jury – a loss that came after a supportive 2010 memo from another judge. Activists Mark Schmidter and Julian Heicklen, a retired Penn State University chemistry professor, were separately arrested and convicted of contempt for violating the judge's order. Heicklen's conviction was tossed on a technicality, but Schmidter – who was sentenced to 141 days in jail in connection with the pamphlet order – had his conviction partially upheld by a state appeals court.

In 2012, Heicklen had a jury-tampering case against him dismissed after he handed out FIJA materials in New York City. Federal Judge Kimba Wood found Heicklen would have broken the law only if he had tried to influence a juror in relation to "a specific case pending before that juror."

On one side of the legal debate, UCLA law professor Eugene Volokh says he believes the First Amendment protects jury nullification advocates who stand on courthouse sidewalks "even if the speaker is trying to influence jurors’ behavior in a particular trial."

In a 2011 article, Volokh wrote that the Supreme Court’s 1969 decision in Brandenburg v. Ohio protects general advocacy of illegal conduct – such as abortion-clinic bombings – and that advocacy of legal conduct, therefore, is even more clearly protected.

George Mason University law professor Ilya Somin also believes Wood "has a First Amendment right to do what he did.”

But others disagree.

“I don't see any serious First Amendment question here,” says Geoffrey Stone, a University of Chicago law professor. “It is clearly illegal to try to influence a potential juror. Jurors are a special case in the sense that, in order to fulfill their responsibilities, they are shielded from all sorts of outside information.”

"If it wasn't directed at jurors, it would be different," Stone says.

Don Herzog, a law professor at the University of Michigan, says a lack of higher-court rulings leaves unresolved the tension between speech rights tied to a traditional public forum like a sidewalk and the government’s interest in shielding juries.

“I'd rather that the law held that the First Amendment protected the speech here. But I think the actual case law is currently up for grabs,” he says.

Tynan says FIJA would like to engineer a test case to firmly establish the right to distribute jury nullification information outside courts, but that the group lacks the deep pockets required.