Mecosta County Prosecutor Brian Thiede invoked bigoted scaremongering rhetoric last week in the first court hearing for Keith Wood, a juror rights educator falsely charged with felony obstruction of justice and misdemeanor attempting to influence jurors. Wood was handing out FIJA brochures on the public sidewalk near the Mecosta County Courthouse in Michigan, legally and within his First Amendment rights. I have collected details of his case on a case file page in our library.
Wood’s first court hearing was on 10 December 2015, during which the main point in contention was whether the defense would be allowed to call Mecosta County Prosecutor Brian Thiede and Assistant Prosecutor Nathan Hull as witnesses, given their involvement in Wood’s arrest and in questioning Wood without first Mirandizing him and without him having legal representation.
In arguing that he should not be called as a witness, Thiede further made clear that if called as a witness he would do his best to discredit the concept of jury nullification in the eyes of the jury. In explaining what he would be telling the jury, Thiede engaged in inflammatory, disrespectful, and factually-unsupported religion baiting. Specifically, Thiede stated:
This just says ignore the law, ignore the facts, do what your conscience wants. And I’m thinking, oh my goodness, well we could have the jury who thinks that jihad is righteous and if the San Bernadino shooters had not been killed, they’d say ‘Let’s acquit!’ We would have a lawless nation if people were to vote their conscience.
Let’s examine whether this outrageous rhetoric, which Thiede surely knew to be inflammatory, stands up to reason.
To begin with, defense attorney David Kallman pointed out in the hearing that the Michigan Model Criminal Jury Instructions explicitly call for jurors to vote their consciences:
“In the end, your vote must be your own, and you must vote honestly and in good conscience.”
Reference: M Crim JI 3.11 Deliberations and Verdict (.pdf)
So with all these jurors ALREADY being told to consult and act on their consciences, where is all this lawlessness in Michigan? Is Michigan the very picture of anarchy? If not, that is a dramatic body of empirical data that soundly demonstrates that Thiede’s wild prediction is utter nonsense.
But let’s go beyond that. Let us say there were hypothetically to arise a case in which Thiede were to try a mass murder such as the one he referenced. Are we to believe that he is concerned that if jurors on such a case were to consult their consciences, that murderers would be acquitted? That is what he is saying there.
How could such a thing come about when twelve jurors would ALL have to agree that murder was perfectly acceptable and should not be punished?
Is Thiede saying that he is himself such a bumbling litigator that he would be unable to seat a jury from which he had eliminated people of ill conscience through challenges for cause and peremptory challenges? That he is such a failure of a prosecutor that he could somehow seat a jury of twelve people, ALL of whom would want to let a murderer go free?
Or is he suggesting that Mecosta County is so overrun with citizens who approve of murder of innocents that it would be impossible to seat a jury that would convict?
Even though Thiede clearly specified an outright acquittal, let us also consider the possibility of hung jury. In order to get a hung jury in such a case, he would still have to fail to seat a jury all twelve of whose members would convict someone of murder. If that happened, he would surely refile the charges and prosecute again, given that a mistrial due to a hung jury allows the option of another prosecution. Is he concerned that he would get a second, a third, or even more consecutive juries who would have at least one member solidly in favor of murder?
There are only two ways such a thing could happen—either Thiede is impugning his own competence as a prosecutor, in which case jurors of good conscience should not be blamed, or he is besmirching the character of a huge portion of Michigan’s population. His remarks are nothing short of ludicrous.
Why would a prosecutor such as Thiede reach to such dishonest rhetoric to keep jurors uninformed of their full, legal authority and ethical responsibility to judge of the justice of the law as well as the facts of a case before them?
I think the answer is quite simple: often prosecutors are looking for jurors to rubber stamp their prosecutorial abuses that shock the conscience.
They charge and prosecutor harmless people for victimless activity and do their best to punish them. They often successfully seek to punish defendants more if they assert their Constitutionally-guaranteed right to trial by jury than if they meekly accept prosecutor nullification in the form of a plea bargain. They maliciously charge people who make their jobs more difficult and seek to make examples of them so the rest of the community will be intimidated out of exercising their own rights.
We need look no further than Keith Wood’s case to see Thiede engaging in EXACTLY this kind of abuse. Thiede’s wrongdoing may be enabled by virtue of his position of government privilege, but he cannot force jurors to be complicit in his malicious misdeeds.