Radiolab - Null and Void

Episode Date: December 16, 2022

This episode, first aired in 2017, has Reporter Tracie Hunte and Editor Soren Wheeler exploring a hidden power in the U.S. Court System that is either the cornerstone of our democracy or a trapdoor to anarchy. Should a juror be able to ignore the law? From a Quaker prayer meeting in the streets of London to riots in the streets of Los Angeles, we trace the history of a quiet act of rebellion and struggle with how much power “We the People” should really have.Special thanks to Darryl K. Brown, professor of law at the University of Virginia, Andrew Leipold, professor of law at the University of Illinois, at Urbana-Champaign, Nancy King, professor of law at Vanderbilt University, Buzz Scherr law professor at University of New Hampshire, Eric Verlo and attorneys David Lane, Mark Sisto, David Kallman and Paul Grant. Episode Credits:Reported by Tracie HunteProduced by Matt Kielty Citations:Media: You can hear the whole On the Media series, The Divided Dial, and many of their other great work by following this link(https://zpr.io/hbkfxQDKdHz8).  Our newsletter comes out every Wednesday. It includes short essays, recommendations, and details about other ways to interact with the show. Sign up (https://radiolab.org/newsletter)! Radiolab is supported by listeners like you. Support Radiolab by becoming a member of The Lab (https://members.radiolab.org/) today. Follow our show on Instagram, Twitter and Facebook @radiolab, and share your thoughts with us by emailing [e-mail] Leadership support for Radiolab’s science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, a Simons Foundation Initiative, and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.  

Hey, I'm Laptop Nasser. I'm Lula Miller. This is Radio Lab. And today in service of this Radio Lab rewind, we're about to play for you this episode from the archives. I want to ask you, Lula. Have you ever done jury duty? I have not. And I really want to, I mean, maybe I shouldn't say that on the air because like the envelope will come and it'll be the good, but I would love to. And I have never even been called. I think I've moved so many times they don't know where I am. I just became a citizen relatively recently, as you know.

Yeah. So I haven't, I also haven't been called, but I wanna do it. Yeah, what is it for you? Why do you wanna do it? I mean, there's part of it that feels like a, you're, I don't know, it's a weird thing to say. Like maybe like a little power trip to be like, oh wow, like I get to, it's also, and again, another thing that, I don't know, it's a weird thing to say. Like maybe like a little power trip to be like,

oh wow, like I get to, it's also, and again, another thing that maybe I shouldn't say a lot, but like, there's something like kind of voyeuristic about it. It's like an out of body moment. It's out of your life. You get to kind of like exit your life and sort of get plunged into probably the most dramatic

moment of somebody else's life, kind of in an ethical, moral puzzle of what to do next. And there's something kind of, I think, very humbling and powerful about that moment. And today, we have a story that is about that power, but it's about not just a power that you walk in the door of jury duty with. It's about this kind of trap door on any jury, which I had no idea about was waiting there and that you can kind of fall through and access a whole new realm of powers that isn't just about guilt or innocence.

That isn't just about truth, but it gives you and your whole jury, I don't know, change democracy. Yeah, it does feel like it's not just the power to change an individual's life. It's the power to change this society that we live in. And that to me, once you first hear about this power, once you first discover this power, then to hear the variety of ways it's been used, they're both so the variety of ways it's been used, they're both so inspiring and so horrifying that you yeah kind of yeah kind of knocks you down. Yeah and as the story goes this is I think this contains one of the most frightening moments that I've heard radio lab encounter in an interview ever. Yeah, for sure. The show is called No Envoy. Wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, wait, Now for some reason this speaker phone doesn't ever want to go off. Can you guys call me right back and I won't put it on?

Um, okay. Alright, sorry about that. Hey, I'm Jan Abumran. I'm Robert Krollwich, This is Radio Lab and today... ... Today we have a story about something that you might not know that you have, but you definitely do have it. Yeah, sort of a crazy... Maybe even scary. Maybe scary.

Even secret. A crazy, scary secret. Hello. Hello. Power. Hey, sorry. And it comes to us from our producers, Tracy Hunt. Are you there?

And, so are in Wheeler. Yeah, I'm here. Okay, no speaker phone, no. Okay. So this story for us got started with this woman Laura Creho. I am a freelance internet marketer. She's from Colorado and in the mid 90s something happened to Laura that hadn't happened to anyone in centuries. So we'll just, why don't you take a sec to 1996, the day you got your jury summons, that very first one. Well that was the day of jury duty, I had totally forgotten about the jury summons until the day of and I picked it up and I read the back of the summons and it said something about six months in

jail if you don't show up and so I didn't have a ride to the courthouse and so I called the court and asked them if I really had to show up since I didn't have a ride and they're like yeah yeah you have to show up and I said well I'll have to hitchhike then and if if something happens to me I said to them my blood is on your. I wanted to make them feel guilty about making me show up, but that didn't work. She said I had to show up anyway. But whatever, the point is, Laurie did get to court in Gilpin County in Colorado.

And when she got there, she walked in, took a seat. I think there was about 40 jurors in the pool of jurors, and first they fill up the box with 12 jurors, and then they ask them questions about themselves. And real quick, were you hoping to get booted off? Oh yeah, I was hoping to get booted off, of course. Any good red blooded American was hoping to...

That tore us in the jury selection. I was one of the last ones to be selected. So the next day Laura and the 11 other jurors showed up to hear the case. And the case was for this 19 year old girl. And she was charged with possession of a methamphetamine. What happened was that she was up in Central City, which is a gambling town. And that day, she was driving in her van with her boyfriend and eventually the two of them drove to this casino. Her boyfriend jumped out of the van, he went to the casino.

And then she kept driving and then the police pulled her over she kept driving, and then the police pulled her over. They just for whatever reason pulled her over. But I don't know what she got pulled over for. They just pull her over. And the police said that she got out and put her purse on the hood of the car and then made a lunging movement towards it, which they said gave them probable cause to search her purse.

Because now they're thinking, oh, did she have a weapon in her purse? Like, what is she trying to hide? And so the police open up her purse and they start kind of rifling through it. At which they found this one ounce of methamphetamine. And so one of the questions before the jury was, is this young woman guilty of possession of methamphetamine beyond a reasonable doubt? So at the end of the trial, Laura and the other 11 jurors got up and went to the jury

room to deliberate. And so we talked about a lot of things. One of the things I remember we talked about was whether or not the police were lying about her lunging towards her purse and things like that. There is also the fact that she did have this map. But it was unclear whether it was actually hers or not. Because according to the girl, when her boyfriend got out of the van, he put something in her purse, she said, without her knowledge.

This girl saying the math might be his, but it's definitely not hers. I mean, to me, that's the whole thing. It's element number one of the possession charges that they have to knowingly possess. So for Laura? If she said she didn't know, she had it. And it could be her boyfriend. Then she's not guilty. It seems to her that it was just like a pretty big hole in the prosecution's case.

I mean to me, I just couldn't get beyond that. And so Laura turned to the other jurors. And I said to them, I was like, well isn't that that enough reasonable doubt for you to acquit her and they were all Like no, she headed in her purse. She knew it was there. It's almost five o'clock We need to get a victory and go home But Laura wouldn't budge. She just couldn't get herself to go along and so she held out and that night when she went home She just kept turning this case over and over in her mind. And she started wondering what the girl was looking at as far as a sentence,

right? But that's not technically what a juror is supposed to do. No, in fact, the judge in this case and generally the judge had told them, you know, like, I'm the one that gets to decide the sentence. You don't have to worry about the sentence here. You just have to find out whether she's guilty or not guilty. But I was worried about the sentence, you know, you have, if when you're a juror, you have somebody's liberty in your hand. It's the Laura sat down on her computer.

She got online and she found this criminal statute and to her understanding, this girl was looking at two to six years. And she's like, what? That just feels so out of whack. That doesn't feel right. Also, it's a felony charge. You know, you can't erase that. So the second day of deliberations, you know,

we just went back and forth. We're the police lying. Yes, we think the police are lying. Is that reasonable dial? No, it's not reasonable dial. After all, my arguments about reasonable dial were exhausted. That's when Laura turned to the other jurors and tried this completely different tactic.

She looked at them and she was like, look, even if you think she's guilty. We didn't have to convict her for any reason that we could let her go. That even if she broke the law We could say we don't agree with the law You know, we we're here We're here to be the conscience of the community. That's what I told them you don't have to convict her

But wait that seems like I can I would imagine some people might be like what are you talking about? Of course we do we're supposed to just say whether she broke the law or not That's what a jury does right right well. That's where everything broke down might be like, what are you talking about? Of course we do. We're supposed to just say whether she broke the law or not. That's what a jury does. Right. Right. Well, that's where everything broke down. Because as it turns out, when Laura started making this

argument, a whole series of events set into motion. One of the jurors, apparently, they wrote a note saying, Laura's in here. She's talking about sentences. She's saying that she's only gonna quit this girl. That note got sent to the judge and apparently the judge exploded and called us all back in and declared a mistrial. And then about a month later, the sheriff showed up at my house with a summons for a contempt

of court. Her grant represented Colorado juror Laura Cree home. And suddenly Laura's story caught fire. After she refused to convict a young woman in a drug case last year. I was the first juror in 400 years that was actually punished for their verdict, prosecuted. Really? Well, actually, 326 years, the point is,

when Laura told those other jurors that they could essentially ignore the law, that they could disregard the facts if they disagreed with the law. She had tipped-toed. What you're about to see is going to infuriate a lot of you. And into this very bizarre, a lone juror tosses out the law.

Almost like a loophole, like a legal loophole of some kind. I think it's absolutely appalling that on some sides people see as a trapdoor to anarchy. And on other sides people see it as like, one of the foundational bed rocks of what it means to be in a democracy. It is something called jury nullification. Jury nullification. I have to say the first time I heard about drain nullification, I googled it and the first

thing that came up was this YouTube video by CGP Gray that was like a little explainer thing with an animation. And I think it was like the first thing that is said on the front on the kind of frozen screen of the YouTube video was you can get arrested for talking about this. Really? And I was like, oh, okay, I'm hitting play on that. Like, let's go.

You can get arrested for talking about this. Yeah, well, that ends up being sort of true. It also sort of not, which is what makes it a loophole. Thank you. Yeah, just this way. Anyway, as we dug into it, we figured you know, we going to need some help understanding

this thing. So I was thinking that I would start with a little bit just, you know, kind of what your annulification is. Yeah. So we called the favorite legal expert, Ellie Missile. And I am an editor of above the law and the legal editor of more perfect on WNYC. More perfect. What is that?

That sounds amazing. What is that? Yeah, well, you know what? It's not worth mentioning. Anyway, so Ellie, anyway, when we were talking to Ellie, the first thing that we asked him, what's, you know, like just give us a pure uncut version of jury nullification. Okay, so a pure aspect of jury nullification would be, let's say I am the defendant, I am accused of stealing a car. I absolutely stole that car. Everybody thought they had me dead to rights, all they have, they had me on video.

My mama said he stole the car. No reason to. You're DNA's in the car. You know, my DNA's in the car. But I stole the car because my kid was sick and I needed to get to the hospital to take him to the hospital and I had no other option. And so I smashed the window to somebody else's car, I hot wired it, I put my get to the hospital, to take him to the hospital, I had no other option. And so I smashed the window to somebody else's car, I hot wired it, I put my kid in the back,

I drove to the hospital, save my kid's life. Now I'm up for a child from the guy who has the Audi, that I love the Westchester, the guy who has the Audi is like, he stole my car. Which is true. I demand justice. Yeah. And the jury says, yeah, no.

No, we're just gonna, the jury would nullify that clear, that clear illegality, that clear crime that I committed. So it's like, yes, he took the car, but the law, the way it's written, doesn't account for the fact that in this particular case, that's okay with us. Right.

So that's, that's kind of the pure version of us. So that's kind of the pure version of it, and that's kind of the most kind of happy clappy does. That's a very happy version of it. It's a very, yeah. Version of it, right? I could have stolen Justin Bieber's car. I probably couldn't get convicted in a court for that. Nobody likes him.

Nobody likes him. So they could be saying the law is not nuanced enough. They could be saying the punishment is off. They could be saying, in this case, the supporters victim sort of deserved it. Or they could be saying, we disagree with this law. Right. And okay, wait, something I don't understand is like,

so here we have a situation where Laura says she doesn't agree with the sentence. Like does she or any of the other jurors have like, a right to do this? Is there like something written in the Constitution that says they can do that? No, there's nothing in the Constitution that directly explicitly says, yes, you have the right to completely ignore the law and let off whoever you want to if you feel like it. That's not a constitutional right. Okay.

But it's not exactly a crime. Because Ellie says, a jury is told to do what they think is best if they think their best is nullifying A law that's also not exactly illegal Which just to get back to Laura for a second is why the court never actually charged her for jury notification Instead they found her guilty for not answering questions directly during the jury questioning process But eventually that conviction was overturned on appeal because in general, the things that are said in a jury room are protected.

They're private. Yeah, so it's not a right, it's not a crime. What it is is a power. And so I think of it kind of like, what kind of monster are you? The X-Men The Wolverine The Wolverine

The Wolverine So, Wolverine's power is he can, he can, he can detach steel, Adamantium claws from his hands. That's just the fact of Wolverine's life. He just, he has the ability to do this. It's his power. That's just the fact of Wolverine's life. He just, he has the ability to do this. It's his power. Now, is it a right for him to have claws shooting out of his hands?

No, absolutely not. Is it illegal for him to have claws shooting out of his hands? Well, not really, right? It's illegal for him to use them in certain ways, right? So if Wolverine comes into your house and scratches you on the face, that's assault. We have a law against a law prescribing assault. But Wolverine has the power to just walk around as he is with these claws in his hands. It's built into the nature of his being. Real quick to the people who care about superhero powers, we know that Wolverine's power is

actually the ability to heal, but Ellie's point still holds. Wait a second. This is throwing me off a bit. So the jury, like, the clause, so the jury has this claw like power or whatever, but they're not allowed to use it. Yeah, I mean, his simple point is that jury nullification is as fundamental to juries as having claws is to Wolverine. That's just a fact of their existence. But they still get in trouble if they use it. Lord did. But then how did we end up in this weird place where you can do it?

You don't have the right to do it, but you can do it, but if you do it or even talk about it, you might get in trouble. I'm really glad you asked that question because it gives me a chance to say, Hey Matt, are you back there? Could you cue some like English, John T. 1700s type music? Coming right up. Alright, now we're in the mood. Alright, explain. Yeah, so I ended up finding this guy Jeffrey Abramson.

Professor of Law and Government at the University of Texas at Austin. And Jeffrey told me it all has to do with this sort of battle over who has the power to decide what the law is. And he says the opening shots of that battle go all the way back to. The William Penn trial in 1670, which is really the birth of religious liberty. I guess you can also cue some sounds of horses on cobblestone streets. I would use to do that.

Just do it. Just do the horses. So much better. Thank you. Okay, so it's 1670 London England. We've got a guy William Penn. So William Penn, a time was a young man. He was a quaker. And one day he's walking through the streets of London to hold a prayer meeting and Grace Church meeting chapel. He walks up to the chapel door. But... He finds it locked by the authorities. And the reason the doors were locked was because there was actually this century-old law

on the books. It made it a crime to essentially be a quaker. But what pan does? Hey. Hey. Okay, one. Both of you. Two. Hey, you gather around, gather around, one. Both of you. And two.

Hey, you gather around, gather around, yes. Penn starts calling everybody together in the street. One boy, yes, gather around. And as more and more people start to gather. There is a large throng. Like, three or four hundred people show up. Come on, come on. And so, the authorities seize the occasion.

He- Uh, I guess you're gonna be able to arrest him for breach of the piece and eventually Penga thrown into jail and he gets a jury trial. The indictment is as follows that William Penn of London now the government became was pretty much just charging Penn for being a quaker but the authorities thought they could go underneath the table and just prosecute him for what was the common law crime of breach of the peace are you guilty as you stand in tighted a matter in form as for said or not guilty I plead not guilty in matter in form and the

case is pretty open and shut I mean he gathered hundreds of people in the middle of the street. According to law and the evidence he's guilty, but his defense is, show me what law and England makes of the crime to worship God in my own way. So the jury went off to the jury room? But the jurors come back several times and say we cannot agree. What was their hang up? Well, I don't know how inside the heads of those people you can get, but it seems like they just didn't feel like locking him up for that was the right thing to do.

Even though it was technically against the law. Right. And so the judge says to the jurors, I am telling you that if the evidence shows that Penn preached to a throng on a public thoroughfare, and he clearly did, you have to find him guilty of the crime of breaching the peace. And then the judge locks him up in the jury room without food, tobacco, or rest facilities

for a quote, considerable amount of time and quote. And then finally, they come back and acquit him. The judge accepts the acquittal and then orders the jurors to jail for perjury. Put the whole jury in jail. Yeah, they get locked up. But there's one guy in the jury who's like, this is not cool. So that guy ends up filing an appeal. It went to the highest courts in the realm.

All the way to the King's Court and the Chief Justice ruled that it henceforth would be illegal to prosecute jurors for a not guilty verdict. So this becomes the start of during oblification. And what it really was was the birth of this kind of bubble, this protected space called the jury room, that you can't punish anybody for what they do in the jury room. So that notion crosses the Atlantic Ocean and becomes a part of the American tradition of law so that when the colonies are coming up, they have trial by jury and they have juries and smart people are writing things about how the jury is the place where the people get to decide what happens.

And we have to protect that. You can't punish them for what they do. And so you get people like Adams and Jefferson making grand arguments about the role of the jury. And actually, Jeffrey says, one of the things that we get from a jury is freedom of the press when the 1700s this newspaper guy in New York It's supposedly liable the king or the crown and to the jury in that case It was pretty clear that he did but they decide that the law itself is unjust and boom. There you go. Freedom of the press

So this idea sort of baked into our nation's beginning. Of trusting ordinary people to do the work of justice themselves. I mean, ordinary people being white men at the time. But then, in the mid-1800s, that starts to change because of two things. One, more and more laws are being written and they're just more complex and complicated and they're just harder for people to understand. Number two, the legal world is becoming way more professional. More and more people are getting legal training, even judges who before didn't have to necessarily have

legal training to become a judge. They're getting legal training. And so now judges are seen as the experts in the law. And then what happens is that you see more and more judges take back the power to decide what the law is from the jury. And the United States Supreme Court made clear. In a decision in 1895 that juries had no responsibility for deciding whether to enforce the law, question number one, or what the law properly interpreted was, question number two.

And from this you get the sort of judges instructions that are given to the jury. And we still have this sort of instruction today that ladies as a gentleman of the jury, the case is now upon you, it is your job to find the facts. But it is my job to instruct you on the law. Now it wasn't exactly that jury notification became illegal and more like just the court

kind of pushed it down, made it sort of unspoken thing. And over the next 100 years or so, it does, I mean, certainly there's times when jurors sort of refuse to convict. The famous cases are like during pro-abiton and some arguments that during the civil rights movement and the Vietnam War, but really the explicit idea of jury notification, the idea that this is really a role for the jury stays mostly underground until the clause come out. That's after the break. Yeah. Hey folks, just a quick note.

This story that you're about to hear has in it an interview that contains some threats of violence, might not be appropriate for sensitive listeners or young children. Chad. Robert. Radio lab. So, we're talking about drain altercation. Which is the power of juries to perhaps ignore the law. Tracy Hunt and Soren Wheeler are reporters,

and you guys are saying it was underground for a while? Yeah. And then what happened? The 90s happened. Oh, just the ass! No, please! No, just the ass! No, please!

There was a perfect storm of two events both in California. Help! This ain't gonna happen! This is the man who's babygillin' me! First, you have the Rodney King trial where you have this video tape. We've all seen the pictures of Los Angeles police officers beating a man that had just pulled over.

In this video you see Rodney King, he's on the ground, and police are surrounding him and they're kicking him and beating him with batons repeatedly. Showing to most reasonable observers that there was severe police brutality against an unarmed black man. For Los Angeles police officers charged in the police. Initially the trial was supposed to be held in Los Angeles, but because of concerns about media exposure, it got moved. To neighboring Ventura County where the jury is almost all white. And after a months-long trial and weeks of jury deliberations. The jury in the Rodney King case has delivered its verdict and get an acquittal. They acquit the officers.

Not one of the four police officers seen on videotape beating Mr. King a year ago is guilty of using excessive force. They've all been found not guilty. And of course they all know like what happened in LA after that. Yeah, yeah, yeah, that. Five days of rights. We've seen rocks and bottles and various things going to cars. More than 60 people were killed. He is bleeding unconscious in the street. You can see a white plume of smoke.

There was about a billion dollars worth of damages. There are several other plumes just like that in this area. I must say, I'm scared. I did this. We all saw what happened. And it looked very much to African Americans and Los Angeles that these white people in Simi Valley, California had voted race rather than evidence

to a quit. I'm 43 years old. I have witnessed this for 43 years of my life, the injustice. I cannot even convey to you the hurt. So according to Jeffrey, that was round one, and then just three years later. OK, it's a white car. You get round two.

We believe that this is the police tracking. OJ Simpson's in. There you go. Quite Ford Bronco. There you see the police. Here, out of you. The OJ Simpson trial. Yeah, and with charges laid by LA police against OJ Simpson

in connection with the brutal slang of his ex-wife Nicole a 25-year-old Ron goal there is massive blood evidence bloody footprints one of the bloody gloves massive DNA evidence blood drops leading up to and inside the house in his bedroom and yet a predominantly black jury. We the jury in the American title action find a defendant or a young or enthalled James Simpson not guilty of the crime of murder. A quits.

I was kidding. You heard the verdict. Can we ask you a reaction? So while many black people felt that a white jury had ignored the law in the Rodney King case, the disgrace shot. Now many white people felt it a largely black jury. I think it's absolutely appalling.

It gives me no faith in the jurists whatsoever. And then the same thing in acquitting OJ. I think he's guilty as hell. Yes, he's guilty. I think he got off because the jury was meant to go out. And according to Jeffrey, these two cases together, they sparked a national conversation about journalification. The day after the OJ Simpson verdict, the Wall Street Journal ran a first-page

story, essentially arguing that in inner cities throughout the country, black jurors were remarkably acquittal prone. In other words, according to the article, there was a spike in acquittals among black jurors in cases where the defendant was also black. And the most likely explanation is a kind of jury revolt. Now Jeffrey actually argues that this idea of a jury revolt was overstated in part because he says you can never really know if a juror is actually ignoring the law. But sometimes we as prosecutors would persuade a jury beyond a reasonable doubt, but the jurors would still find them not guilty. Georgetown law professor Paul Butler, who was a prosecutor in DC at the time, says that's

exactly what was happening. Did that feel wrong to you? It did, you know, felt wrong personally because, you know, like every prosecutor, I wanted another notch in my belt. So yeah, tick me off. But the reason they were doing this is because they didn't want to send another young black man to jail.

Which Paul says was mostly what his job was. If you go to criminal court in DC, you would think that white people don't commit crimes. They're just utterly absent from the criminal court. And obviously that's not a reflection of the real world. And over the years, black people take a psychic toll. Paul says he started to ask himself. Did I go to law school to put black people in prison?

And for me, the answer became no. Well, now a black law professor is urging black juries to use nullification in their fight for racial justice that led me to not only understand what these African-American jurors were doing in DC. But in cases of nonviolent crimes, to endorse him. If you let a guilty defendant off, isn't that the same as really taking the law into your

own hands? It absolutely is the same as taking the law in your own hands. As a political protest. So yeah, I mean, and that one sort of seems to grow directly out of the racial mix of things that were going on in both Rodney King and in the OJ case. But as this was all bubbling up, there was a group called the Fully Informed Jurors Association that started actually in this tiny but whole of a town in Montana with these like super libertarian.

You can say that because you are from Montana. Yeah, so I checked. I am from Montana. I And you can say that because you are from Montana. Yeah, so I check. I am from Montana. I am allowed to say that. And they started this group that was basically advocating for jury notification, writing up pamphlets, sending out things. Eventually the internet comes along

and attention to jury notification just kind of goes, pooh. There's claims like jurors in Atlanta in the mid 1990s started acquitting sports like bookmaker people, defendants on a regular basis. Even though in the past those cases it's sort of a serviceman scene of slam dunks. And in the post trial interviews,

jurors were saying that they saw the reason was they saw no moral difference between betting on sports and playing like the Georgia lottery. By the time you get medical marijuana initiatives in round 1996, all of a sudden it's become much, much more difficult for prosecutors to convince Jerry to convict in marijuana cases, and so prosecutors are deciding not even to file charges in those cases. It comes up in gun-right cases during that time. So you have like this spasm of interest, largely because of these two kind of race-related trials,

and then suddenly you have it kind of spreading sort of in all these different places, yeah. Bro, share about your junior rights. And in fact, today what you're seeing is this kind of rising activism. Good morning, would you like a brochure about your junior rights? Around getting the word out about jury notification. Bro, share about your junior rights.

Morning, man, would you like a brochure about your junior rights? A lot of this is happening at courthouses, all across the United States, in Philadelphia, in Florida. Just say your name and who you are, what you do. We actually sent a reporter to Denver to talk to this guy. Yeah, yeah, sure. My name is Mark Yana-Celly.

You spelled that last name, I-A-N-N-I-C-E-L-L-I, I am an activist for jury notification. Three days a week. Very cold, very hot, rain or shine. Mark would show up at the court house, and he's some other people. And they would just stand near the steps of the court and hand out these pamphlets that basically say that your right is a juror to the non-guilty if it's a bad law designed by bad politicians. You know you have to write to vote your conscience.

Jury's there to represent the conscience of the community. You have to write to judge the law. You can vote non-guilty and not tell anybody and as your right is personally legal and that's how you get rid of bad law. And are these people various sorts? Like they are various sorts. You'll get the kind of guns rights people, you'll get the libertarians out west.

And with Occupy Denver. You get like occupiers like Mark and you might get some like racial justice people who think there's, you know, too many brown people in jail. So during theification is a very big tent. And see, there's a prosecutor in the CD's got that LLV tote bag. Well, it's always like a brushier about your J-Ride. But then the thing is, here's where we get to the Getting and Trouble part, guys like

Mark. We got arrested here. Who hand out these pamphlets in front of courthouses, they sometimes get arrested. We were distributing the information, and they came came down and they got seven of these right here from the fully informed jury association and we were handing them out to everybody and I get arrested for seven classified felonies looking at 21 years in prison. Under what grounds? Jury tempering.

Almost always Jury tempering. Yeah. But to no one ever says no, once a getting a vacation is legal because obviously it's not. And so they get usually they get arrested for for jury tempering. But then these cases will go and

they'll get appealed and eventually in I don't think we found a case where this isn't true. Every single case. The the charges will get thrown out because it's free speech. Well, actually, so I did find one case. A Macosta County man is facing a five-year felony

for obstruction of justice after he says he was arrested for passing out flyers on jury rights. He had been interested in a case that was going on up in Macosta County, big rapids Michigan. This is David Common, he's the attorney representing our main guy here, Keith Wood. Prosecuting him. So the case that Keith was interested in, the one that kind of spurred him to head down to the courthouse of these pamphlets, involved an omnis man who got in trouble

with the state of Michigan for filling up some wetlands near his property and he was facing, you know, all these fines and possible jail time. he thought this was totally unfair and so he went online. Found a brochure put out by the fully informed jury association and made a bunch of copies and just showed up at court on a day that he knew they were scheduled to start a trial. He just handed out his flyers to anybody who wanted them there at the courthouse. So he's standing outside the courthouse on the sidewalk, but there is a jury selection going on that day. And so when the judge comes into the courtroom

and sees potential jurors with these pamphlets, he wants to know what's going on. And then... One thing, glad to do another, he found out well there's a guy out in front of the courthouse handing these things out. The courthouse is their confronts' Keith outside of the courthouse, tells him to stop.

And when he would not stop, the officer, finally, court officer, finally told Mr. Wood, well, the judge wants to talk to you. And Mr. Wood said, well, I don't want to go in and talk to the judge out here. And the officer basically said, well, you're going to be arrested if you don't come in and talk to the judge. So then, of course, under the threat of arrest, he went in and the judge never asked him a question,

never talked to him and just ordered his arrest. For Jerry Tempering. And the court set a bond of $150,000 for this man who'd never been in trouble, was married, had seven kids, had his own business in town. I mean, he's not a flight risk at all. So Dave says a lot of this case hinged on when somebody actually becomes a juror. Are you a juror when you're when you get a summons and show up to the courthouse? Or are you a juror

only once you are actually seated on a case? The argument of the state has been all on that once you're summoned, that makes you a juror. And it was our position that's not the law. And in fact, the statute for jury tampering says you're supposed to you a juror. And it was our position that's not the law. In fact, the statute for jury tampering says, you're supposed to be a juror in a case. I think that's pretty clear. We filed motions asking the district court judge arguing his first amendment rights and his right to free speech and the judge ruled against us and then it ended up going to trial. The trial lasted about two days, and the jury in this case came back with a guilty verdict in about 30 minutes.

He appealed, he got rejected, and now they're waiting to see if the Michigan Supreme Court will take it up. So like what are like kind of the larger ramifications of this case? Um, that I have been surprised by the judges on appeal. Yeah, that they don't you know, I mean, it's a I don't know. It's almost like it's a very status Don't mess with the system kind of a kind of rulings. It's really what is coming down to

Yeah, in fact judge Jaclovic when we had him on the stand and they had to admit That he was did what he did because of the content of the brochure and the educational pamphlet Yeah, in fact, Judge Jaclovic, when we had him on the stand, it had to admit that he did what he did because of the content of the brochure and the educational pamphlet, Mr. Wood, was handing out. That's a blatant First Amendment violation. Oh, hold on. Oh, so you're talking about the judge who originally directed the police to kind of talk to Mr. Wood?

Yeah, we called him as a witness. Oh, I didn't know that. Oh, yeah. What? Yeah we called them as a witness. Oh I didn't know that. Oh yeah. Yeah so we got them on the stand and he at first tried to argue, well I really wasn't doing it because the content of what was on there it was just I didn't want yours being handed stuff whatever it was. He tried to dance around it but we put up instance after instance of his own quotes you know and things he had said himself which made it abundantly clear He was doing it because he didn't like what the what the pamphlet said Regardless of whether or not those empowered liked what Keith Wood was doing

That's not the issue. I mean isn't that the whole point of free speech and if we're're getting to the point where you can as a citizen hand out information like that, you know, I'm sorry, I don't want to live in a country like that, that's ridiculous. We are now in a First Amendment free speech of war. Okay, Julian, can you hear me? Yes, yeah, I hear you. OK. This is Julian Heiklin.

He became a kind of a jury nullification activist hero of sorts when he was arrested in 2010 at the federal district court here in Manhattan. Well, I made nine appearances at this courthouse and was arrested five times. And he was about 78 years old at this point. And he was just handing out flowers? Yeah, yeah.

Do you have like a desk or like a table set up or are you just standing there? No, I stand up. I have a sign that says jury information. And I just, as they go, go by, I just pass out this one page flyer. Do people come up to you when they see jury information? Like are there some do? Yeah. do some do more of them run away

And he's just show up at courthouses like all over the place like in New Jersey and in Pennsylvania and like in Philadelphia and Florida and actually when we talked to him He was in Orlando staying with his friend Mark and they were heading down to the local courthouse the following Monday to urge people to nullify laws they don't agree with, basically because they see notification as a kind of a check on times when the government or a law goes in their view too far. We have many cases like this that have shown it. When the slaves were escaping from the South and going up North, people were running them up

into Canada. And they were told that they had to return them. After all, the slaves were property. What they were guilty of was theft when they didn't return these slaves. This is probably the most famous example of jury nullification cases where Northern jurors, even though they knew someone had a harbored a slave

and was therefore guilty, they would just refuse to convict. They didn't do it. That's how that's actually the most important during allification case that this country probably ever had. Because they just let the slaves, they just sent them up to Canada. They were just violating the law out and out. That's the point of having a jury.

In fact, Thomas Jefferson made the statement, the only thing that will save this country is the jury. The only thing. Hey, by the way, if you need to stop and take a drink of water, don't hesitate. Well, I need to stop and cry a little. Because... Anyway, let's go on. You don't mind if I cry while we talk about this. Just touches me pretty much.

I mean, I don't, of course I don't mind if you cry. I've got some curious, what is it that's hitting you in that way emotionally? Well, I'm talking about these cases that I just can't believe what's happened to this country. I can't believe how corrupt this country has become. And you're seeing that corruption in people being locked away, put away for things they shouldn't be put away for? For drugs, for example. Do you know that we now are the number one prison state in the world? We have the highest percentage of prisoners in any country in the world. That's the United States of America. And of course, look at the people, 40% of the people are in there for drug violations. Why does the government have any right to tell you what you can do with your body? It's the same thing for prostitution.

Why should the government be able to tell you whether you can have sex or whether you can't have sex? Or why you can smoke a cigarette? Or why you can't smoke a cigarette? Now, I understand why the government tells you you can't shoot somebody else. To me, that makes sense but if you want to shoot yourself that's your business anyway and i'll tell you something

we're going to the courts even though pass out this literature and monday in orlando that's why i'm down here and well i m in contact with the judge and he's been in contact with me and he's informed me that if i show up, I'll be arrested. What's the case in Northland? I probably have 50 or 100 people along, I hope, along with me. Oh, Julian, so you're going to be, is that what you're doing at the courthouse?

Are you going to be passing out the jury pamphlets? That's exactly right. And the judge has promised us that we'll be arrested. He said, he, he, he, and I'm asking all my people to come with guns and shoot the cops that come after us. You're not serious about that, are you? I am serious. Well, I mean, that would be the thing that you just said, you understand why the government would stop someone for, I mean, that crosses the line going to shoot.

The point is, there comes a time when you've got to stop it. And I think that time is December 5th. It's got to be ended. You got to start killing the police and the guards and hopefully the judges until they learn how to behave. Well, but that's not justice either. The point is we've tried now for years. It doesn't seem to sink into them that is their job to uphold a law, not to keep throwing people in prison. For 70 years, I've been doing this, and this is the first time it ever occurred to me that I would ever have to do such a thing, but I can't help it. I have a hard time believing in you believe.

I have a hard time believing in you believe realize I have a hard time believing that you believe that that deserves killing a court clerk who has a family who arrest me. They've been warned. I've sent them to letter. I've told them anybody that comes within 15 feet of me that's an officer of the court or an employee of the court that they're to be removed one way or the other. I've come to the conclusion that it has to be ended. Well, I think that if you're in position, I hope you see that it's ended on December 5th.

I think we just can't put up with it anymore. I think that if you're in a position of considering doing what you've just said you're considering doing That I'm not gonna do anything. It's only if they do something. Well, okay. No matter what we have to do It's not gonna happen again. Julian. I'm gonna interrupt you there and just say you know I think I think we're probably best off just ending the conversation Letting our microphone person go home and letting me know. Anyway, you've heard my opinion. It's not only my opinion, it's my intention.

Yeah, we hear you, we got it. Okay, thank you very much for having me. Okay, thank you. Thank you, Julian. Welcome, bye-bye. Holy. Oh my God. Do you have the tape sinker's number? Yes, I do.

You want to just give them all right now. When I talked to him, he never said anything like that. Oh no, no, no, I don't know. I don't know. Wow, yeah. What happened after that interview or the tail end of that interview? So after we hung up, we felt we had an obligation to call law enforcement down there because he sounded very much like he was making a direct threat with a time and a place. And so that Monday he and his friend Mark did show up. Neither of them were armed, neither him or Mark.

Did any of the other people he'd been wanting to show up? No, it was just them, nobody else showed up. And the police say that somebody who works at the court and told him that he had to leave, that he was trespassing. He refused to leave. A police officer didn't also came. He was shouting things about shooting police officers. At one point, apparently he attempted to hit the court worker, but he actually didn't.

He was charged with threatening public workers, assault, and trespassing. So what happened then? So the charge for threatening public workers, that was dropped. The prosecutor's dropped that charge, but he is still fathing to misdemeanor charges of assault and trespassing. Yeah.

Did, when you were sitting there in that interview, did that change in any way your feelings? One way or the other about jury notification? because I kind of feel like it did for me a little bit. My answer will be really short. No. Okay. Why no?

I think he's just sort of, sounds like an angry, frustrated person. He's angry about people not letting him talk about what he wants to talk about in front of a courthouse. Sorry. I guess not. I mean, I did hear when I was talking to him. I mean, partly because I had been thinking about juryification, you know, sort of in the most heroic terms,

is like this chance to stand up against an unjust law. And this conversation just made me realize it can also, it also kind of gets twisted up with this really deeply anti-government idea. You know, like you talk to these people and you hear arguments that sound like burn it down. And that's my problem. That burn it down instinct was always sort of at a distance for me and it felt just much, much closer.

Yeah, that's kind of my, when I hear that tape, I think that's the strain and that's the kind of thinking that you bump into a lot, that I find one of the most frightening things. I find it more frightening than almost anything. That idea that like we, the people should be triumphant over everything. Like that, I find that to be a really scary idea that pops up. I think like Tracy, I've always thought of this is a checks and balance kind of thing. Like you have a system, we have a legislative branch, it passes laws, some of the laws

are, are, are you conceived or are, are circumstances changed? Or you find out a consequence of the law that, you know, people of one race are constantly going to jail and people you guys aren't or getting electrocuted or not. And then you get these then you get these ordinary people walking into these decision points and they're saying, you know what, this doesn't work. This doesn't feel right, it's just wrong. And that's like, if you don't have that,

then the legislators don't get that little prick in their little bubble to totally hear you. I mean, I've never advocated for going along with a bad law. And I think you're right with bad laws right now. But there's something potentially corrosive about saying to a person, you can just negate the law. Think about all the times when white juries in the South

refused to convict people of horrible things. You know, it's like that's, I mean, that's absolutely jury nullification. And that's like, that is absolutely during nullification. And that's like, that is the history of like post-reconstruction in the South, you know? Yeah, but you can make those same arguments on the other side. And we're gonna get into that right after this quick break.

Stick around. Okay. I'm Jed, I'm Ron. I'm Robert Krollwich. This is Radio Lab. And I'm Soren Wheeler here with Tracy Hunt. And today we are talking about jury notification. And when we left, you guys, we were getting into a sort of a debate about whether a juror's

having this power is a good thing or not because you know, it can definitely let people sort of lean into their racial biases and make judgments based on race or gender or whatever, even in the face of the facts or against the facts against the law. But next I wanna make the case that there are actually times when the jury having this power can prevent that kind of discrimination. Think about what Jury's did during the Civil Rights Movement.

This is Supreme Court Justice Sonia Sotomayor speaking at NYU in 2016. If it weren't for Jury notification, we would have many civil rights individuals who would be convicted felons or otherwise, for things that today we think are protected by the first amendment. There is a place, I think, for jury notification, finding the balance of that and the role that a judge should or should not play. Our forefathers did not believe that juries necessarily always got it right, but it was, I think, what they believed is that the jury getting wrong was better than the crown getting it wrong.

It goes at some fundamental level to how we want as a people to be governed. Do we want to be governed by experts? Do we want to be governed by experts? Do we want to be governed by each other? What power do we want each of us to have over the other one? This is what this question really comes down to. This is once again Ellie Mistal, legal editor at the WNYC Show More Perfect. The older I get, the more comfortable I become with the idea of an unlected white man sitting in judicial robes deciding everything as opposed to 12 random jerk offs from the street. Really? And I say that knowing full well that that is a horribly elitist and kind of terrible for that reason solution to the problem. We have a, So puts hand, it concentrate power into mostly white hands.

It concentrate power into mostly white hands, and concentrates power into the system when we're saying that one of the only benefits of jury nullification is to be a check on the system, right? If you look at it only from the perspective of the defendant, then jury nullification seems like a great way to protest the system, right? But I've started to look at things more

from the perspective of the victim, which victims are getting justice and which victims are not. And when I start to look at it from that angle, what I see is jury's nullifying cases when the victim is of color, or when the victim is a woman, try, try bringing a rape case, try bringing a date rape case in this country. Try it. It's really hard. And one of the reasons why it's really hard is the jury. Is the jury sitting there talking about she was asking for it, talking about what was she wearing, talking about how why was she out that lay any damn way, right?

That's a jury doing that to the woman as much as any other part of the system. So when I think about it from the perspective of the victim and what are the avenues of justice for the victims? If you're a person of color, if you're a minority, if you're an other, I feel like the jury makes it very hard for you as the victim to get justice. I feel better about the judge not caring if the people that you shot happen to be white or black.

A jury cares a lot about that. If you can't convict a cop when you know we did it, when you saw him do it, when you can't convict the cop who saw Walter Crock, when you can't convict, that we can't even indict the cop who choked Crock. You can't convict, you can't even indict the cop who choked Eric Gardner to death in broad daylight. That to me requires a much more drastic rethink of how we do things in this country.

And to me, the first people to go have to be these G.D. jurors. I find that really persuasive. I don't. And maybe that's because I've served on a bunch of juries. I've been on about six now. And I have, time and again, been amazed. At one time I was in a murder case.

Some man had been accused of stabbing a woman 22 22 times and she died on a staircase. And the four women, and in New York they just picked the person who picked first becomes the four person. So she came in, she sat down and said, look, how many of you noticed like the defendant's lawyer was asleep a lot of the time? Every hand went up, we'd all seen this. And she said, here's what I want you to do. Let's go back over everything that we know and

Essentially retry the case and we we actually We went we went together through every bit of evidence looking for some some doubts somewhere We staged the stabbing we we went back over the distances whether the perqued the guy have gotten from here to there in that amount of time I live in that neighborhood. I don't think you can maybe you can. We basically did the job of the court all over again ourselves. And when we were done, she said, okay, let's vote now. And when it came clear to the four women that we were going to convict because she was counting the votes in it. And finally, the 12th vote went to convict. She was shorter than her chair.

So when she got off her chair, she actually was smaller than when she was sitting on her chair. But she asked us all the hold hands. We just spent five days, we've been sequestered in a hotel. Each of us had a policeman guarding us because there was some violence about it. So we were all standing on the table, but she a whole hand and then she looks up at the ceiling

and it's one of those ordinary rooms and she addresses the the woman who was killed. And she says, she says, we have spent the last few days trying to do something that is just and you know, you were there, you died at his hands or didn't We decided that you did and we hope and we pray This is a system that works and that you are getting justice And then she said God bless America Wow That's amazing

That's amazing. Even though I think you're expressing that kind of faith in democracy that I think is in short supply right now. I agree. Big thanks to producers, Soren Wheeler and Tracy Hunt. We should say a couple of thanks to, first of all, Jeffrey Abramson. His book is called We The Jury. And also Judge Fred B. Rogers in Colorado. Nancy Martyr, law professor at Chicago Cant College of Law. Valerie Hans, professor of law at Cornell Law School. Paula Haniford, with the National Center

for State Courts, and Robert Lewis in the WNYC Newsroom for helping me out with some public record stuff. So much of what we learned and the sort of spark for this whole story came from a video by CGP Gray, it was actually a whole YouTube channel and a ton of videos and they are all amazing. I watch them all the time. There's tons of great stuff in there. You should definitely go check it out. CGP Gray on YouTube.

And one more quick note, Laura Criho, the woman from the beginning of the story, the juror who got punished, she actually passed away. And we just want to say what a pleasure it was to talk to her and how lucky we feel to have been able to tell her story. And one last thing before you go, if you enjoyed this episode, there's a series from our down the hall neighbors on the media that we think you will love. It's called the divided dial and it is a deeply reported series. And it, yeah, it shares a lot of big themes and big stakes. Yeah, it basically looks at the rise of the sort of political right domination of the radio airways

I mean 12 out of the 15 top radio host lean right and it looks at the ways in which this form this form We all love audio radio can kind of gain its power from having a slightly stealth In print on the world like a lot of radio shows aren't archived and transcripts aren't searchable. So people can say things to millions of listeners without other people monitoring it. And it's just really well done. Every second of that thing is well written, well reported. It's hosted by the incredible reporter Katie Thornton. The final episode is out.

So it's a great time to go binge the whole thing, get a sense of the whole picture and as a little teaser in that final episode, we do actually hear from the force behind many of these shows and stations. Phil Boyce, he is the VP of a company called Salem. The difference with Salem is, even though we always want to make money and we do make money, we're in this to save America. Again, the series is called the divided dial. It's from on the media and you can find that wherever you listen to podcasts or on the website, wnycstudios.org slash podcast slash OTM. And there are also links to it in the liner notes

for this episode that you are listening to right now or over at radialab.org. Radio Lab was created by Jad Abbernrock and is edited by Soren Wheeler. Lulu Miller and Latif Nasir are our co-hosts. Dylan Keef is our director of Sound Design. Our staff includes Simon Adler, Jeremy Bloom, Becca Brestler, Beitru Kusek, Bakedi Foster Keys, W Harry Fortuna, David Gabel, Maria Basco, Tierra,

Sindu Nhanasambandan, Matt QT, Anime Q and Alex Nisen, Saurkari, Anna Rasquedbass, Sarah Sandbach, Ariana Wack, Pat Waters, Saurikari, Anna Rosquitbos, Saur Sanbach, Aryan Wack, Pat Walters, and Molly Webster, with help from Andrew Vinyales. Our fat checkers are Diane Kelly, Emily Krieger, and Natalie Middleton. Hi, this is Ellie from Cleveland, Ohio. Leadership support for Radio Lab Science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, Assignment Foundation Initiative, and the John Templeton Foundation. Foundational support for Radio Lab was provided by the Alfred P. Sloan Foundation. you