Not necessarily. But I’m not sure that’s the threshold issue.
As I said in my original post, there’s a continuum of specificity of influence, from talking to everyone in the county to talking only to the folks already chosen and sitting in the jury box. One is clearly OK. One is clearly not. The whole and entire question is “Where is the dividing line drawn in the MI statutes and case law specifically at issue?”
It seems pretty clear that Wood met the intent square generally required for a criminal act. His purpose was to influence jurors in the Yoder case. He seems to have said as much.
But, as you argue, if his actions don’t meet the technical standards of the statute because he influenced them when they weren’t “jurors” as defined in that statute then he didn’t commit the crime as defined in those statutes.
I don’t know any more than you do, and probably know less, on the narrow point. I’m just trying to separate the wheat from the chaff and highlight the critical factors that do matter as separated from all the fluff that doesn’t.
Contrary hypothetical:
Suppose instead of having Wood arrested the Yoder judge dismissed the whole pool he thought might be partly tainted and then tried again with a fresh pool tomorrow. And the next day and the next until Wood ran out of pamphlets or money or patience or something. What then?
And the answer is: as long as Jane’s testimony is not incredible as a matter of law, they’re entitled to believe her.
Which of course raises the question, “What causes a witness to be considered incredible as a matter of law?”
There are obvious cases. If a witness testifies to some event that clearly runs counter to the physical laws of the universe, for example, it’s easy to picture that his testimony is not credible as a matter of law, as opposed to a matter of factual determination.
Ordinarily, the credibility of the witness as a matter of law – the threshold determination – rests with the discretion of the trial judge. So a trial judge might rule, for example, that a witness who has thrice been convicted of perjury following a jailhouse confession offered to reduce his own sentence is so tainted by his prior perjury that he cannot be heard on the latest jailhouse confession. An appeals court would be unlikely to disturb that finding, either, because the review of a appeals court for questions of the trial court’s discretion are very deferential.
Another factor that comes up frequently is the concept that disbelief of a witness does not empower the jury to believe the contrary fact. This came up quite often during discussion of the George Zimmerman manslaughter trial.
Suppose Gamelin is suing Tuck Trucking. He claims that the employees of Tuck Trucking saw him “surfing” on top of the 18-wheeler and failed to stop, thus contributing to his injuries when he fell off the truck onto the highway.
Tuck Trucking employees testify they did not see Gamelin.
Even if the jury disbelieves the employees, that alone does not allow them to conclude they DID see him. You [del]see[/del] - er, understand the distinction?
Wouldn’t a story or ad in the local newspaper encompass any possible jurors? What about renting space on billboards that are near the courthouse? What about standing in front of the courthouse wearing a sandwich board? If not in front of the courthouse what about the sandwich shop a block away that many jurors go to for lunch?
Point is that while he is trying to sway people he is not saying anything illegal such as, “I’ll give you $100 if you find Joe Schmo innocent.”
Actually, on further thought, this one does confuse me.
Seems a binary choice. Either you saw the thing at issue or you did not see the thing at issue.
If I do not believe the employees’ testimony that they did not see Gamelin on the truck then it seems to me my belief must be that they did see him on the truck.
Not seeing a middle ground here (unless the contention is they saw “someone” on the truck but could not identify that person as Gamelin). In that case though the identity of the person seems to not matter. You saw someone so stop the truck.
As to her ruling on the First Amendment, there are really two issues:
(a) was she right to refuse to let the defense argue it, and
(b) was she right that the First Amendment is inapplicable
Let’s talk (a) for a moment.
So far as I can tell, there was no real factual dispute that involved the First Amendment. In other words, the defense argument would simply have been that the actions of handing out the flyers was legally protected speech. That’s an argument of law. The jury has no place in addressing that question. The defense, for this argument, concedes the flyers were handed out and that “jurors” got them. (This doesn’t mean the defense overall accepts that the venire were “jurors,” mind you – just that the jury was already asked to decide if they were, and if the were not, then the jury acquits anyway).
But if the venire were “jurors,” then the applicability of the First Amendment is not a question for the jury. It’s a question of law. So I think that (a) is answered, “Yes, the judge was correct.”
Now as to (b): without doing research, I have the following general thoughts. It’s not illegal for a jury to refuse to convict for any reason at all. That is, jury nullification itself, the act of refusing to return a guilty verdict even when each juror believes the facts adduced prove the crime beyond a reasonable doubt, is not illegal. Brandenburg v Ohio makes clear that there’s a First Amendment right to advocate for criminal conduct – just not IMMINENT criminal conduct. So it’s unclear to me why advocating for non-criminal conduct would be unprotected.
I think the First Amendment argument is a strong one, in other words. But this is shooting from the hip, not with the benefit of research.
The topic of the thread is not whether nullification is right or wrong. That’s a long and tired debate. We could do another thread on it if you’d like.
I’ll just point out that the bolded part amounts to the argument that if you’re not caught it must have been OK to do whatever you did. That’s a specious argument, regardless of the conduct it’s applied to.
Yes, that’s the thing that hangs up lots of folks when they think this.
But remember that the rule is: the record must show what evidence the jury relied on to reach a finding of fact. Here, there’s simply no evidence that the truckers saw Gamelin. The jury’s disbelief of their claim doesn’t translate to positive evidence that they DID see him. It’s a nullity, in other words. Disbelieved evidence doesn’t move the evidence needle in the opposite direction as believed evidence. The evidence that is believed is the thing that moves the needle.
If you are on a jury you can vote anyway you want no matter what. As long as you are not taking a payment or are under some other outside influence you can vote your conscience and not be punished for it no matter how deranged you might be.
Does that apply to finding people guilty of conduct that doesn’t fit the law as explained and the facts as believed at trial? Or does it only apply to finding people not guilty of conduct that does fit the law as explained and the facts as believed at trial?
Thanks for the straight skinny on the details on the law.
The practical realities of course as are you say: there’s no way to know who decided what and especially not why. So labeling any jury decision process, even flipping coins, as misconduct is practically problematic even if it might well be morally correct to label it as misconduct.
I was trying to ask Whack-a-Mole directly whether he was in favor of juries using their own standards when deciding not guilty but not when deciding guilty. Or whether he was fine with juries using their own standards in both directions.
The thread’s been moving pretty quickly and I may not have made the context of my question as clear as I intended.
If the jury disbelieves him, then it is as though there is no testimony at all, therefore, no evidence one way or another.
Also, I can tell you from having been on a jury that if a potential juror expresses during voir dire the fact that his vote is a foregone conclusion, even it is a matter of conscience, that person will be dismissed. There was a guy who said that it was a matter of religious belief for him that he couldn’t judge someone else, and no matter what evidence was presented, he would vote not guilty. Dismissed. Another guy (a real shmuck), who had been using a lot of profanity, and calling the trial process stupid, and saying he had an exam that afternoon that was way, way more important than anything that could possibly be happening in the courtroom, suddenly had a religious epiphany, and said his religion didn’t allow him to judge other people either.
Anyway, I really have no idea, but giving people pamphlets that they might read just prior to voir dire might lead to the selection of a lot of jurors whose minds were made up before they heard the case, because the information was fresh in their minds.
Someone not really committed to the idea of jury nullification (or not judging people) might blow it all off after sitting through the actual trial, but I can see a judge not wanting those in people’s hands.
Also, there might actually be people who would mention jury nullification during voir dire, and then they’d have to be dismissed.
It seems to me that apart from one rather narrow aspect of the question (to wit, 1st Amendment rights) this is all irrelevant. Under the statute, someone who published an article in the local paper with the intent of persuading a juror would be guilty of jury tampering. It would be very difficult to prove that the author or publisher had the specific intent of persuading jurors, and you would run into the same question of who is a juror if the article ran before jurors were empaneled. It also seems likely to me that a court would find the restriction on 1st Amendment rights imposed by such a broad application of the statute would be unjustified. (I understand courts generally balance restrictions of constitutional rights against the state’s interst, and also look at whether that interest Is being forwarded in the least restrictive way possible.) But proximity would not be the issue, nor would the specificity of the action, except inasmuch as prohibiting broadly targeted communication implies a greater overall restriction on speech.
Jury “nullification” can certainly go the other way and find a person guilty (not really “nullifying” but the same idea of the jury coming to a conclusion opposite the evidence in the case).
In this instance though it is a weaker version of nullification because (at least in some cases) a judge can toss a guilty verdict and of course the person found guilty can appeal. Neither of those happen when a person is found innocent.
It’s been awhile since I debated nullification here but IIRC juries actually are not loose cannons and usually dutifully do their jobs as jurors. Nullification is a relatively rare thing so one might suppose when it happens it is likely (not necessarily) for a good reason. Of course there are exceptions, nothing is perfect and sometimes it is used for bad results.
I would submit there is more upside than downside to jury nullification to make it, overall, a desirable thing.
Just telling someone that they have an option to nullify is a far cry from making their minds up. It is merely telling them there is a third option when in deliberation open to them.
That is nothing like making up their mind for them before they hear the case.
If you wrote an article telling people that jury nullification is a good thing then is the only thing saving you from prosecution that you have no concern, one way or another, for the outcome of any particular court case? If so why write the article? Aren’t you trying to alter the landscape of how juries find people guilty/not guilty?
Presumably the article is there to persuade people to your way of thinking.
First of all, “presumably” is not the same as “beyond a reasonable doubt.” If I claim I wrote the article because I think it is good for society to be well-educated in civics, or because I want the public to pressure judges and prosecutors to recognize nullification, but that I didn’t intend to sway any actual jurors, good luck proving otherwise before a jury (and having the law upheld as not overly broad in restricting free speech).
Also, it’s an open question in this case whether “juror” means someone empaneled on a jury or merely anyone summoned for jury duty, but I think it would be a stretch to say that wanting to “alter the landscape of how juries find people guilty/not guilty” without specifically trying to sway any particular jury or affect the outcome of any particular case is a violation of the law it is written. And if it is, it is almost certainly a violation of the First Amendment.
But if I happened to say to my buddy Judge Smith over drinks, “You know, I really hope the people you end up with on the jury for the Felps case read my article; I wrote it to persuade them, because the DA is really wrong on this one,” then I’ve technically admitted to violating the statute, and I shouldn’t be surprised if I get a call from the DA the next day.
So if you and I write the exact same article and have it published in the same paper on the same day I will go to jail if my intent was to have jurors acquit my buddy but you are not in trouble if you just wrote it to educate the masses.
Is that your contention? If so does that make sense to you?