Background
Barry C. Shiffer texted a Lansing Police Department social worker that he had mailed an “unlit pipe bomb” to an Ingham County judge and directed authorities to evacuate the county courthouse and contact the bomb squad. The message also referred to kidnapping Michigan judges and other public officials. Law enforcement searched the courthouse, found no explosives, notified additional officials named in later messages, and arrested Shiffer five days later.
At trial, Shiffer admitted sending the messages and characterized the incident as a false bomb threat intended as a protest on behalf of incarcerated people suffering from PTSD. A jury convicted him of threatening or falsely reporting terrorism. As a fourth-offense habitual offender, he received a prison term of 16 years and 8 months to 42 years. On appeal, he challenged the denial of jury-nullification and justification instructions and the assessment of 25 sentencing-guidelines points under Offense Variable 19.
The Court’s Holding
The Court of Appeals affirmed. It held that the trial court properly refused Shiffer’s requested “Citizens’ Veto” instruction and argument. Although jurors possess the practical power to acquit contrary to the evidence, Michigan precedent treats nullification as a power rather than a right and does not entitle a defendant to have the jury instructed or invited to exercise it.
The court also rejected Shiffer’s unpreserved claim that the trial court should have instructed the jury sua sponte on self-defense or defense of others. Shiffer did not claim that he acted to defend himself, and his stated desire to advocate for incarcerated people did not support defense of others. The court further reasoned that he threatened force rather than used force, so the evidence did not satisfy the requirements for either justification instruction.
Finally, the court upheld the assessment of 25 points under OV 19 because Shiffer’s conduct threatened the security of a court. Even though he had not actually mailed a bomb and described the purported device as “unlit” and “harmless,” authorities could not know that no bomb existed until they searched the courthouse. His message therefore created a genuine institutional security threat sufficient for the scoring decision.
Key Takeaways
- A Michigan defendant is not entitled to a jury instruction or argument encouraging jury nullification, even though jurors possess the practical power to acquit contrary to the evidence.
- Self-defense and defense-of-others instructions were unsupported where the defendant issued a threat of force as political protest but did not use force to defend himself or another person.
- A false bomb threat can support 25 points under OV 19 when it causes an unresolved threat to courthouse security, even if no explosive was actually sent.
Why It Matters
The unpublished decision reinforces the distinction between a jury’s practical ability to nullify and a defendant’s claimed right to seek nullification through instructions or argument. It also limits justification instructions to cases in which the evidence supports the legal requirements of self-defense or defense of others, not merely a defendant’s asserted moral or political motive.
For sentencing, the decision confirms that OV 19 focuses on whether the defendant’s conduct threatened court security when it occurred. A later determination that the threat was false does not erase the security risk created while law enforcement and courthouse personnel had to treat it as potentially genuine.