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Null and Void

Friday, May 12, 2017 - 01:00 AM

(Photo Credit: Associated Press/AP Images)
Today, a hidden power 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 LA, we trace the history of a quiet act of rebellion and struggle with how much power “we the people” should really have.

Produced by Matt Kielty and Tracie Hunte

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. 

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Comments [68]

AC from CA

I get so tired of only allowing people that are PC to be considered intelligent or have an opinion. Sometimes it's simple....Radio Lab and it's staff suck for what they allowed and how they responded in this episode. I'm very disappointed. You should all be ashamed but you won't be because you'll justify and rationalize this non sense.

Aug. 18 2017 09:57 AM
Brian from NY

You guys lost me on this one. It's a great topic and while I have known about it for years I appreciated the history lesson on it. However, you lost me on 2 points. Actually you repelled me.
1) The guy who changed his opinion of the concept of nullification after hearing the guy call for violence. How shallow is that to reject an entire concept because of one guy.
2) The same guy I believe said repeatedly how frightening it is hearing the protester call for violence and how frightened he is. While I strongly disagree with his calling for violence it made me think of the founding fathers. By todays standard the Colonials who stood on Lexington Green and faced off against the British army as well as those who instigated the Boston tea party were right wing gun nuts and terrorists. Quite literally terrorists of their time but they birthed the arguably greatest nation in the history of mankind. Would you have cowered in fright then?

Jul. 30 2017 07:31 AM
Indigo Dingo from Australia

Great episode. Well done team.
I was on a jury in Australia for a manslaughter charge, where the opposite dynamic occurred. Several of the jury wanted to convict based on evidence it was not entitled to hear. They already had a gut feeling, half way through the trial, that the accused was guilty. They may have been accurate.
The offending juror who brought in the independently acquired damning evidence was threatened with contempt, but not otherwise punished. The trial was aborted. This was retrial number#2. The accused was convicted at subsequent trial (number 4).
I do not know if Australian jurors have a similar power to nullification. I have seen terrible injustices occur in courtrooms, usually by judges and magistrates of ill-disguised prejudice.
I worry about both judges and jurors having too much power to obfuscate justice. But our legal system is not designed to achieve justice, only order, which can correlate with justice but does not guarantee it.

Jul. 25 2017 12:08 AM
Max from Stockholm, Sweden

Like so many other commenters i was saddened at the way you dismissed Julian as some loony not to be taken seriously. I don't think gunning down judges will help his cause one bit. But i think his emotional response is appropriate. I would have really liked to hear him out on his frustrations.

The war on drugs, and other incarnations of over-policing, are ongoing genocides happening right now. Historical numbers of people are having their lives shattered for no good reason. Families and communities ruined for generations. That ongoing violence is a thousand times worse than Julian's empty threats.

Jun. 27 2017 01:21 PM
Kate from DC

This is my experience of jury nullification, with fellow jurors who were truly the peers of the defendants, and necessary, but one who engaged in improper conduct in the end, not so smart, causing a mistrial. I would say jurors are idiots savant.
DC is known for calling jurors to serve the very day they are eligible to serve, so I served three times in 9.5 years for cases of violent crimes. In one case, I refused to convict on one of the charges, essentially engaging in nullification for part of the defendants' alleged acts. Can you say split the baby? Partially, yes. The other aspect of my decision was the prosecutors piling on. One of the victims for whom they were charging assault with intent to kill, was a locally famous actor/bona fide street thug (he didn't just play one on TV!), who had engaged in the gunfight outside a club, but was not charged himself, even though he called his lawyer immediately following the crime. Three others were going down for life anyway, because they had shot up in the area of police officers, though not at them. Anyway, fellow jurors from the District were helpful in explain the street terms used by black defendants, understanding their testimony, and knowing literally where they are coming from for this white chick from the suburbs. I felt the prosecutors were using this witness/star to gain sympathy and to help secure a conviction for the three. He didn't seem to be a true victim to me, but involved in the whole gunfight directly. So, that count wasn't going through. My fellow jurors were pissed at me, but I didn't think we had the whole story, and they had done enough to have the books grown at them for good. I saw the one officer involved later on the street, and told him I appreciated his service and that I had sat on the trial. He told me that one of the local jurors had congratulated the Prosecutors after the trial, saying he had gone himself to the scene of the crime during the trial! The Defense attorneys heard, and then a mistrial was declared, after three and a half weeks of work by dozens. The Defendants pled out and instead of life, they got 10 years. No wonder people say juries are not needed.

Jun. 27 2017 12:37 PM

Has anyone entertained the idea that jury nullification is what accounts for the disparity between the number of officer-related shootings of unarmed civilians and the number of convictions for wrongful death? If not murder, at least some sort of reckless manslaughter? Some forfeiture of employment or of the right to possess firearms?

Jun. 24 2017 12:25 AM
Danno from Brooklyn, NY

I was disappointed in this Radiolab segment. I've studied the issues of jury nullification since the 1990's (My activism has included leaving copies of the FIJA flyer in the jury waiting rooms in NY). While some of what you say is true, much of the case for nullification wasn't covered. For example, the clearing of OJ had a lot to do with a jury that had heard of the routine mis-handling (or even manufacture) of evidence by the LAPD in order to obtain convictions. There's also a level of prosecutorial conduct involved in the verdicts you cited--prosecutors in cases involving police slayings of black defendants are not anxious to push those cases--the prosecution team on the Amadou Diallo case missed numerous opportunities to introduce testimony that might have made conviction of the officers more likely. I'm sure that other such cases (those for Dan Panteleo, killer of Eric Garner or the police shooter of Philandro Castille) may have been damaged by a prosecution that did not wish to come down hard on a police force they have to work with regularly.

But the other thing you REALLY missed was the story of people who (in a spirit similar to that which drove William Penn) had committed non violent civil disobedience against the state and were prevented from mounting a defense. I'm talking about activists such as 1968's Catonsville Nine who set draft records on fire in protesting the War in Vietnam, or activist Katya Komisaruk, who in 1987 disabled the NAVSTAR nuclear weapons targeting system in order to bring attention to the US adopting a 'first strike' nuclear capability. In those cases (and hundreds like them), defendants were barred from talking about their motives through prosecution instituting a motion 'in limine' that blocked them from such testimony. Elie Mystal's hypothetical example of the stolen car applies here. The application of a motion 'in limine' would make it impossible for a defendant to argue an explanation for the car theft. THIS is to my mind the classic argument for jury nullification--when a government has passed laws that are nigh-impossible to change and a jury must substitute its understanding for the government to decide whether the law is just and whether the government deserves the right to punish those whose only chance of correcting an egregious fault is through disciplined civil disobedience.
By the way, Juries in Europe have frequently found on behalf of the defendants, to the point where the judiciary does not bring felony charges against such defendants. Unfortunately, due to the prevalence of the use of Motions In Limine in cases involving civil disobedience, Americans are not fully informed as to the reasons for such civil disobedience and whether such acts of conscience should be treated with the full weight of the judiciary coming down on them.
Where were the attorneys who've represented such cases--people like Francis Boyle and Ramsey Clark?

Jun. 18 2017 06:17 PM
Stephanie Oduardo

Really enjoyed the quote from Thomas Jefferson The only thing that will save America is a jury. More accurately, T.J said, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." It was unfortunate that the jury rights advocate Julian had taken such a violent stance against judges because I found his testimony inspiring and intriguing. I was very touched hearing his voice break as he said he could not believe how corrupt this country has become.

I think if one takes a Lockean perspective, as the Founders obviously did, then one would rather be judged by one's community, rather than an established power such as the court. The question of" which victim is getting justice" was necessary to the episode, but not a question I would have asked myself. This has been one of my favorite episodes yet, very thought provoking and relevant to societies current position.

Jun. 12 2017 01:42 AM
Chris from New Kensington PA

@Ben from Alabama -- I get those repeats on occasion and on at least one podcast a portion glitched and I missed a bit. I assume it has to do with the downloading process rather than a problem with the original podcast. Good to know it's not just me.

Jun. 10 2017 04:51 PM
Ben from Alabama

Does anyone else get these weird repeated portions of audio without a change in the time lapse of the audio? I've noticed this here before and twice in this episode.

Jun. 09 2017 12:15 PM
Ricardo Cedillo from CA

Well, what else is there to do when you are informed by a judge in advance that your rights will not be respected by law enforcement? Using unjust arrest/police harassment as a deterrent against free speech is just plain wrong and deeply disturbing. I think the power of the court shouldn't extend beyond the courtroom, meaning, a judge who doesn't like someone for whatever reason shouldn't be able to send law enforcement or court employees out to knowingly impede you and/or violate your rights by proxy. I think the old man would be well within his right to use violence to resist any officer or public official attempting to violate his rights. Null and void really begs the question, who should have the power? I don't think power belongs to the police, or to the state, it belongs to people, because the people are allegedly the source of that power in a democracy. Arguing that most people are jerk offs doesn't change that. Because if the source of that power is not the people, it is the gun; and that's the antithesis of democracy. On the argument that people will vote/act according to racist bias, people can and do. In my opinion, it's the job of the courts to choose a place to try a case, and select a jury in a way that best serves justice, taking knowledge of racism and bias into account. That's literally what a judge it's for, to be above bias. Rodney King and OJ Simpson are pretty clear examples of the court failing to do their part, they failed to serve the community and this justice was not served. You guys immediately backed out at the end of this podcast, seemingly appalled that Julian would even consider resisting with violence to defend his rights, and that worries me. Are we really so lost as to think that oppression cannot possibly come from the state? Look at the times we are living in, consider the times when our condition was born. I was really disappointed with how radiolab handled the issues in this story, it's my sincere hope that if you do decide to tackle critical issues, that you reflect, and do so responsibly, with courage.

Jun. 07 2017 07:33 PM

It was really disheartening to hear the majority of the producers flip their opinion on jury nullification based on the impassioned comments of a worked up old man who has worked tirelessly his entire life for the greater good.

The reasons cited included southern juries not finding white criminals guilty against black people, which is simply false because Jury Nullification was never actually invoked or cited in these jury's official decisions...and then it was implied that jury nullification plays a role in whether cops who shoot people are prosecuted? This is also very stupid because most often this decision is left up to judges and prosecutors so the remark actually disproves his own position.

All in all, the tone and conclusions came off as academically self-satisfied, and generally disconnected. I'm just glad that with the Podcast renaissance fully underway, I don't have to rely on this show for good programming anymore. With nothing left to prove, I'm afraid Radiolab will continue to decline in quality.

Jun. 05 2017 06:57 PM
Stephen Muhammad from Akron Ohio

The Star that Sherriff employs represents "Justice"- when people are deprived of Justice they can go INSANE! America is truly sick/even corrupt in all of her systems. She will go the way of those great nations before her if she does not give Justice to the poor (especially the Black).

I listen to Radiolab often but was "let down" with this program commentary. Oh well, on to the next.

Jun. 04 2017 03:46 PM
sc'Que? from WPSU

Regarding the show content: The law SHOULD apply equally to all people. But the jury are the ones [and I'm pretty sure that's proper English in this case] who are supposed to help ensure that in a system that tips toward corruption.

Regarding the production of the show: THIS is the RadioLab I know and love. Thank you to the producers who diligently put this show together (the editing was superb) and for bringing the concept of "jury nullification" to light. Please continue to provide programmes as intense as this one!

Jun. 02 2017 07:38 AM

If we were to be judged by a jury of our peers solely, then of course pathos would be prevalent, however it is also very much prevalent in cases when women are being prosecuted already.

However when also dealing with cases such as Brock Turner's Stanford case, where Turner sexually assaulted an unconscious woman and the judge granted him a lenient 6 month jail sentence, it's very easy to notice that money persuades one person more than an entire panel. And it's a lot easier to leak that kind of bribery to the press with an entire group.

I think that we need a jury of our peers to promote checks and balances within our own jury system. And a better education system, but that's a whole other argument.

May. 31 2017 12:10 PM
A from Co

I really think the guy you interviewed who wanted to shoot police officers has the right idea. The law is corrupt, it no longer serves people or helps people, and i think it's cowardly to just write him off as some angry old man who doesn't get to say what he wants. he's the only one fighting for people rights, you guys just get to talk about it and not be affected.

May. 30 2017 10:10 PM
Frank from CA

For some time now I listen to Radiolab episodes, not all of them, but some. This particular episode was painful to listen to. The opener story was bizarre enough, but then the episode goes on to cite old English laws and if jurors should be "allowed" to interpret the law on their own and so on and all the while I was waiting for someone to step in an say: "Well, what did you expect would happen if you make amateurs to decide over law and order?". The only surprise I had was that I was surprised that this didn't happen more often, i.e. the jurors decide on their wit and with plenty of bias what the verdict would be. OTOH, who would know if it's not happening more often, as there is no accountability. A juror has only a limited, amateurish understanding of the law and is intitled to its opionion or guess what has really happened as anybody else.

Of course, I can fully understand why the judge is happy to outsource the decision finding process to other people, as the judge then only has to accept the verdict. In a sense, the judge is transformed from the judicative branch into the executive branch. What I don't understand is why nobody sees how bizarre this whole process is, not even a often deep-digging process like this podcast :-\

Having said that, I do like this podcast (although sometimes the execution of it with more than one person speaking at the same time makes it hard to follow a conversation) and I intend to continue to listen to your production. So, thank you for that.


May. 30 2017 05:39 PM
Derek from Australia

A fantastic episode that informed me and challenged me a great deal. I had no trouble with the treatment of any of the interviewees or interviewers or hosts. I like the variety. I agree with Allison from New York above that although Robert's final story was touching, all I could think of was "You lucked out, dude! There's no way that's the average jury!".
Fascinating, as usual, and I perfectly understand that my experience of it was probably vastly different to those who live with it, and I wish you all the best.

May. 30 2017 12:49 AM
Jeff Dyer from Boston, MA

I typically find Radiolab's podcasts interesting. However, I was horrified by this episode, as once again, Radiolab staff decided they were the only judge and jury in town. This was a well-crafted piece until the staff's response to the jury activist. People who agree to be interviewed for the show deserve to be treated with dignity, to have their opinions thoughtfully considered, and to have their ideas respectfully presented. Radiolab provided none of that to this gentleman, with the interviewer deciding to argue with and badger the interviewee instead of listening to what he had to say and asking follow-up questions to further understand the roots of the man's ideas. I do not condone shooting police, however I do believe in respecting interview subjects. During the interview and through their editing, Radiolab chose to depict the activist as a caricature, and I find that to be ethically appalling. The Yellow Rain episode is even worse, but this seems to be trend for Radiolab.

May. 25 2017 07:35 PM
Kimberley Taylor from New Orleans, LA

As a long time fan of Radiolab, I was astonished listening to Null and Void when Jad was appalled by the Jury activist's quixotic breakdown against the tyranny of the court system.
Although I don't think that the citizen handing out literature on jury rights was right in threatening to shoot servants of the courts sent to arrest him, neither do I believe the courts are right to arrest him for passing information outside the courts! This man has obviously arrived at the position he is in today because he feels a tremendous burden on his conscience over the state of our judicial system.
I support and admire his efforts (sans threats of actual violence) to do whatever he can to lessen and/or prevent further abuse by our now famous for profit criminal justice system.
Calling the United States the "land of the free" is the epitome of hypocrisy since our citizens are locked up at higher rates than any other country in the world. Furthermore, the vast majority of the incarcerated are persons of color, many of whom are locked up for non-violent crimes while being forced to labor.
Here in Louisiana, actual slavery is back in plain view with prison labor serving agriculture and even domestic service in the state house!
The United States government is in fact meant to be by the people and for the people and its current iteration is a far cry from serving all of the citizenry rather than the wealthiest few. This kleptoligarchy is nothing more than a modern version royals past who blithely told the starving citizens to eat their leftover cake.
What would you have us do Jad? You're in a position to remark on the desperation of this person rather than leap to judge while you admonish the listeners to stay calm.
The time for calm has passed. Perhaps it is yet time for panic, but certainly we are overdue for at the very least open discussion about what our citizens can do to improve and restore democratic order and why anyone would come to feel so desperate about it.

We are living in times of severely destructive and open fraud by our elected officials and public servants at every level of government, aided and abetted by a largely corporatized media whose main agenda is to gaslight a citizenry into not believing their own eyes and ears, while we slowly and steadily lose any and all collective power we ever had to influence our destiny.

I hope, in future, you will find some sympathy for those who are foundering in despair, which for many is the price for many unwilling to accept what we're being told to think in these modern times.

From the Declaration of Independence: "Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."

With hope...

May. 25 2017 12:18 PM
Tom from Kent, WA USA

Nice work. Very interesting and helpful.

- comment written from jury selection waiting room

May. 23 2017 12:54 PM
Concerned about RL hosts from Cambridge, MA

Jad was appalled by listening to that "crazy" talking about shooting cops. However, Jad showed no emotional response when one of the lawyers (or whatever he was, the guy from more perfect) said that he is getting more and more comfortable with un-elected white judges. Jad should have been more appalled at this because that has the potential of ruining more lives in the entire country than that one "crazy" guy ever could.

Unfortunately for small minded people like Jad, they only see what's right in front of them and change their opinion based on that (like how Jad seemed to change his feeling about jury nullification because of listening to ONE guy without understanding where that guy is coming from). Very disappointed at how people in influence, such as Jad, think.

Basically to me, Jad seems to be okay with a guy like Jess Sessions, and to me it seems Jad will accept cops dragging people off flights, because as off right now, cops can continue to do that forever with absolutely no retribution and Jad will accept that because that's how it is. Jad will accept police brutality but not accept citizen brutality?

People like Jad basically have this respect for people in authority, the same way some women stay with their abusive boyfriends. Do you even know how this country was made? Citizens took up arms against the the people in charge, the British. Of course, he will try to argue that "oh that was different". In essence, it's all the same.

And to me, from what I learned from this story, is that that is the essence of Jury nullification, to look at the whole picture. But Jad just thinks, well authority made this, so that's how it should be.

What I personally think is that no one should wrong anybody and everyone should be fair and unbiased.

Secondly, someone on the show (think it was Jad and one other guy) said something about how people shouldn't be in charge and people have this burn it all attitude against those in charge, and having people in charge/in juries is not good (something along those lines). Basically the idea was that "commoners" are stupid and should not have a say. THIS is a problem. People forget that the government was made by people. Think about a small tribe. You have people. Then the tribe gets bigger, and these people get together and say, well we need a group of people to administer the tribe. So a small group of people from the tribe itself are elected. These people are doing the bidding of the entire tribe because these people are also part of the tribe. That is what the government is supposed to be. But today, people have just accepted that the government is it's own entity and they are there against the "commoners" and the "commoners" should listen to the government. They forget that the government was supposed to be the people. Not a completely separate entity out to do whatever the hell it pleases to do.

May. 23 2017 10:44 AM
no its shetupid from Hong Kong

I'm not sure if RL got "jury nullification" right. Jury nullification is not about nullifying the law. It's about nullifying the defendant's "act".

Neither the judge nor the juror have the power to ignore, much less nullify any law. The only power a juror, and all of us have is to change the law through legislation by voting for the people that will act in our interest.

May. 23 2017 02:16 AM
nrcbtm1 from Ashburn, VA

Isn’t jury nullification what all-white juries in the Jim Crow south used to release anyone clearly guilty of killing blacks?

May. 22 2017 04:14 PM
sepiae from Europe

R.lab & its coats at their best.
Utterly engaging and provoking subject, and the jury in the studio ending up with different views.
This goes to the heart of what ciminal justice, can be, might be or should be.

May. 21 2017 12:59 PM

Null and Void is a great title for this episode because it provided nothing of value to criminal justice discourse.

May. 20 2017 06:09 AM
Smeeed from CA

It is SO good to hear this subject on a mainstream show. It's high time that the law and the direction of this country is put back in the hands of responsible citizens. Jury nullification is one of the most powerful tools we have as a people to control the corrupt bureaucracy that is our government. Spread this information far and wide!

May. 19 2017 11:53 AM

This is wild.

May. 19 2017 10:55 AM
Dale Wisely from BIrmingham

What a stunning piece of work. I thought I was in for an interesting-enough academic piece on juries, but the last 5 minutes had me sitting down and staring at the floor, with tears at the end. Well done.

May. 18 2017 09:36 PM
Ben from Syracuse

Great episode, with so many strong and varied opinions. While I believe the court and representatives should be legally trained, I still believe in juries not for their background, but for the strength in numbers to resist influence and corruption. While a judge may know the law better, they don't need to convince others of their views, biases, or other intentions. The very fact that some appeals courts, circuit courts, and supreme courts have multiple justices is proof of the power of numbers and the difficulty of judgment on law interpretation alone.

As a final thought, I wish this episode looked at the opposite side of jury nullification. What happens when jurors decided someone shouldn't be free because of shared fear or bias? If no evidence exists to convict, and the defense has a clear argument of innocence, but the jury decides they don't want that person in their community. That is the concern I have with jury nullification, especially when combined with jury selection issues and bias we've heard in previous Radiolab and More Perfect episodes.

Keep up the great work!

May. 18 2017 09:22 AM
Darcy Phillips from Chicago

Appreciate the podcasts, listener for several years. This podcast on nullification jumped around quite a bit. Towards the end of the podcast, the interview with the older guy brought to tears- he was shown respect at first, then told the interview was over, yet Radiolab still broadcasted the entire segment prior to him going off air! If there was a reason to end the interview, then there is probably a reason not to air the entirety of the interview. Knowing the guy showed up unarmed to the court is further reason NOT to air his rant at the end.

May. 17 2017 11:40 PM
Neil Brooks from Vernon, CT

It is rare to hear the degree of balance of an argument that occurred in the presentation on Jury nullification. I was surprised by and strongly disagreed with the remark that "old white men" would make better decisions" but the context and content of the remark appeared to expresses an opinion which seemed to be more based on intellectual analysis rather than bigotry.

The discussion was primarily based on criminal law but similar decisions are found in many civil actions including medical liability cases. In a case in which I was a witness a physician anti-smoking crusader sprayed a woman with a room air freshener because she was smoking. This resulted in her hospitalization for a severe episode of bronchospasm. The man was charged with 4th degree endangerment and although it was stipulated that she was in a place that allowed smoking and that he intentional sprayed her and he (an MD) was aware of the potential consequences of the act and that she was harmed as a result of his actions which fulfils all of the criteria for this charge the jury ruled him not guilty. The judge said that he could ignore the jury's decision and declare a mistrial but decided to accept the jury's decision. Was justice served?

May. 17 2017 04:25 PM
Guille from Mexico

You do not just mention a video by CGP Grey and not have his beautiful voice on. Should've played a clip at the least :P

May. 17 2017 12:19 PM

"I can not believe how corrupt this country has become." - the guy starts crying.

Radiolab punches down with no compassion nor understanding.

No wonder the world is where it is today.

May. 17 2017 08:41 AM
Brian T. Miller from Chengdu, China

This is one of my favorite episode, mostly because of the debate at the end - a true discussion! The content was intriguing, but the honest and open conversation about the pros and cons was a lesson, to me, on how people of differing opinions should be able to sit and discuss, even if they disagree, because ultimately, what MOST people want is the same thing: equality, justice, and the ability to be heard. Great show.

May. 17 2017 12:35 AM
Sloppy from Sweden

Great episode!! Thanks for presenting different perspectives with balance. However I would say that, for better or worse, the extreme ends were presented. Ideally both jury and judge working together with equity would provide the best out come.
Money, competition, and a trend towards binary and agentic thought process are the virus for which bad justice is the symptom rather than the cause. But this is a huge story that also leads to how the standard of living affects crime.

A great episode is one that makes you think. So thanks for that.

May. 16 2017 08:09 AM
Marcy Berry from San Francisco, CA

Thank you for the fantastic segment on jury nullification. The bottom line here in my personal view is that the Founding Fathers were clear as to who is boss: We the People. Let's not confuse someone who wants to kill law clerks with someone who wants to point out that a law, as applied at a specific time and place, is not just.

May. 15 2017 10:16 PM
Charles from Gurnee

The guy in Orlando who sounded like a crank, I kinda agree with him and disagree with the show's hosts. I've seen cops and courts arrest people engaged in constitutionally protected 1st amendment activities hundreds of times via YouTube (see "1st amendment audit"). The cops illegally detain and/or arrest people who are not breaking the law.

Think about it. The cops are on the clock and breaking the law by violating our rights. The citizens are not on the clock and they will probably have to leave work and lose money to fight the illegal arrest. In the end, the cops are still paid and not punished and the citizens are out of time, salary, and probably legal fees.

At what point should an illegal use of force by the police be met by a use of force by innocent citizens? If the police are in no way sanctioned by the state for violating a citizen's rights, what will deter them for repeating the violation?

I found the hosts' reaction to be disturbing. They were appalled that a citizen would suggest that violence should be used against the police but they expressed no disgust regarding illegal abuse of power and civil rights violations by the police. Why is an illegal use of force somehow more palatable when the violator is wearing a badge? What the police are doing is illegal period. If a private citizen tried to do what the cops are doing, force would be justified, but why? It's an illegal act whether a cop does it or a private citizen. Yes, a cop has arrest powers but when those powers are used in an illegal manner, it's every bit as illegal as a private citizen uses force on another. Why the double standard?

May. 15 2017 07:12 PM
Chelsea from NY

I am an avid listener of Radiolab. I love the insight that the show gives into various topics and how it offers various points of views.

I was deeply troubled by Elian Stahl's comment that as he gets older is is more comfortable with a white male as a judge providing judgement instead of jurors. I wish that someone would have delved further into that statement. What it says to me, that in his view, only white men are the only people that have a moral authority and therefore the only people capable of rendering judgement. This is very problematic in that it reinforces sexist and racist attitudes, even classist, and ethnic biases. The statement flies in the face of anything that he Civil Rights movement fought to achieve. If he thinks that only white men have the moral authority one only has to look towards the judge in the Brock Turner case as an example. Not to mention countless historical and recent examples of cases as it pertains to race and class.

May. 15 2017 06:37 PM
Rosebriars from US

I was fascinated and moved by the entire episode. Regarding concern that people can just take the law into their own hands, our founding fathers did that exact thing. The Declaration of Independence can be summed up thus: when a government repeatedly applies its own laws in an inconsistent and preferential matter its citizens are no longer bound by those laws. Sadly, the "long train of abuses and usurpations" of privilege and institutional inequity feed the pain, anger and desperation which likely led the jury nullification activist to consider a violent attempt to "throw off such Government, and to provide new Guards for [his] future security." Indeed, the USA could be legitimately considered a police state given its incarceration rate.

My final take: jury nullification is a non-violent, allowed (as in not compelled or proscribed by law) form of civil participation of the everyday citizen, whose influence in public policy has become increasingly minimal. It is infinitely less revolutionary than the war which we often sanitize away in our story of the noble American founding. Considering the pitch of race and class relations in this country, we should all seriously ponder what actions individually and collectively we find moral and expedient to use to ensure justice, because it feels like without serious institutional and social change a new American revolution of race and class will erupt, one potentially as violent and devastating as the first.

May. 15 2017 03:59 PM
Tyler N from US

@Ted Potter- Say it again for the people in the back!

May. 15 2017 09:24 AM
Aaron Van Curen

This is the most impressive episode of this series and one of the best episodes of radio journalism I've ever heard. The story is about jury nullification, but the discussion is a serious look at the American social contract. We can agree to disagree, but we must agree to abide by certain rules. This story question that.

May. 15 2017 01:52 AM

Really enjoyed this episode!

May. 14 2017 06:01 AM
Peter Ross from San Jose. KQED

Jury nullification is just a lazy man's way of saying LET a jury be perverse and rewrite a law it has an issue with cuz it must be a bad law, right? Maybe. But what courts know and juries don't is that the law AIN'T perfect -- it's just the law -- and the law good or bad is still an ass. Yet keep in mind that a good-new-law will still be grist for jury nullification by malcontents who liked the bad old law thank you very much if you LET them, right?

May. 14 2017 04:14 AM
Caleb Avraham

Robert's story at the end is why I love so very much this Nobel profession of the Law and trying cases in front a Jury. As a criminal defense attorney of 4 years and having nearly 34 cases as both a public defender and private counsel, something happens in that jury room that, in general, is very sacred. Jurors often come to court hating the fact that they've been selected to serve.but leave with a greater appreciation for the law and our system of democracy. I often tell clients before we empanel a jury "this whole time I've been with you we have been alone, the prosecutor is against you, the bailiff is against you, and the even the judge, yes the judge is against you. But rest assured you have 12 friends walking through the door to even the playing field."

May. 13 2017 11:57 PM
Craig from WA

I was very disappointed by Mr. Mystal's careless use of the example regarding the man stealing a car because his son needed to go to the hospital. The law already provides what is known as the necessity defense in such cases. A defendant can argue that the impact of the 'crime' is outweighed by the impact of failing to act(the lesser of two evils) and it can be used as an affirmative defense in criminal cases.
By framing nullification using what any sane person would agree is an potentially unjust outcome, he put his thumb on the scale early in the conversation. Listeners would have been much served by a more informed example.
If he is going to be a legal editor, he needs to better understand/articulate the law.

May. 13 2017 08:35 PM
nick catania

Just a point of clarification, the situation with the sick kid and the guy stealing the car to save him at the beginning could successfully be a legal defense to the theft charge called necessity and would not require nullification.

May. 13 2017 08:25 PM
Paul in WA

Supreme Court Justice Hughes (1862-1948) states "The Constitution is what the judges say it is."
Seventh Circuit Judge Richard Posner (presently on the Court) sees “absolutely no value” in studying the U.S. Constitution.
President Obama declares the Defense of Marriage Act unconstitutional, not the Justice Branch.
When Immigration order stopped, President Obama states it was “good policy,” & nothing about the constitutionality of the case.
When President Trump immigration banned stopped, no constitution violation, precedent or statute mentioned in the court decision. In oral arguments, when asked by a Justice if the order could be constitutional if signed by another President, the layer replies, “Yes, it could be.”
We are headed for a mobocracy.

May. 13 2017 07:01 PM
Dave Robinson from Australia

I have a lot of time for Julian Heicklen, the old guy who was wanting to shoot court officers for trying to stop him (I should add, that I do not support his violent threats though). The American 'justice system' is a total joke and as a person not living in the USA, I look at it and shake my head. For such an advanced western society to allow such rampant corruption to continue is one really good reason to live elsewhere in the world.

I think he may not have only been crying for the current state of the USA, but for the fact that he seemed to be fighting a one-man battle against powerful forces. It is quite clear what the intent of the jury system is, but there is little value in it if the system is flawed as it seems to be. ...and this is without even considering the fact (that your great podcast illuminated) that the jury can be stacked without any accountability for the selection of individuals.

Get your act together USA - you are not the greatest country in the world whatever you think! This kind of twisted culture is bringing the world down. Start to be the greatest - really become the shining light of democracy and justice rather than just saying such things. You can do it, but you need a shift in attitude which this one old guy was trying to create.

May. 13 2017 06:33 PM
Emily from Denver, CO

I respect and enjoy Elie Mystal's work andopinions. I'm a 3rd year law student, on the cusp of an internship at the local DA's office. (I love More Perfect! Can't wait for Season 2!)

However, I felt great consternation about his comment to the effect of, the older he becomes the more comfortable he is with putting a white judge in charge of cases so that the victims and defendants are not subject to the biases of the jury.

I recognize this sounds idealistic, however I whole-heartedly believe the answer is an educated public from which we can draw excellent juries, like the one Robert Krulwich experienced, who are not easily manipulated because they have critical thinking skills & empathy through education and experience in the world.

Perhaps too, Jury Service needs a PR campaign to underscore how important and truly what an honor it is to have the privilege to serve on a jury, rather than to shirk our duty, as something left only to those who can't muster a good excuse to avoid it.

Thank you for these important conversations. They have never been more necessary or salient.

May. 13 2017 02:30 PM

In response to Norma Lopez' earlier comment -- that was Elie Mystal, and he himself is black if that makes any difference.

May. 13 2017 12:49 PM
Justin Hamaker from Northern California

I seem to remember hearing something about Jury Nullification in relation to the OJ Simpson case before this podcast, but didn't think anything about it because I didn't realize it was an actual thing.

I see a place for nullification when you're talking about victimless crimes - such as prostitution, drug possession, and even some types of financial crimes. I can also see it in cases where some degree of racial bias seems to be obvious in how the defendant was charged.

What troubles me is the idea of nullification being used in cases where someone has been harmed. If it becomes common place for juries to not convict people who have actually done harm to someone else, then I feel like we are moving towards anarchy.

May. 13 2017 03:08 AM
Audrey from Mobile, AL

One of the problems is that a criminal trial looks SOOOOO similar to a scientific investigation (in fact usually involves some real science like forensics, ballistics, etc.), that people too easily accept juries' verdicts as if they reached it via strict adherence to the Scientific Method. But that's not what a trial is at all. In actual science, the #1 thing to avoid is bias, even accidental bias. In trials, there is the appearance of bias avoidance, plenty of it gets to rear its ugly head. And jurors' preconceived notions are only part of it. There can be attorneys prosecuting people they believe are innocent, and attorneys defending people they know are innocent. An attorney can ask a witness a question that can create powerful bias in jurors' minds, even if he/she knows the witness won't get to answer it because the opposing side will object and have their objection sustained. Compelling evidence and testimony can be disallowed for reasons that have nothing to do with how compelling it is, and that can happen even AFTER the jury has seen or heard it! They are literally told to forget they saw or heard it. Omissions like that are not allowed in real science investigations; data is data, and you can write that a piece may have been a recording error, or call it an "outlier," but you can't just pretend you didn't observe it.
But yes of course, the biggest difference between judicial trials and scientific ones are the reviewers, and here, again, the terms used are deceptively congruent but the reality is a stark contrast. Science findings must have literal PEER reviews before publishing, other scientists who know exactly what to look for reading and reviewing the work. "Peers" as used in law is such a loose term it's a wonder it persists. Not only can jurors be far more different from than similar to the accused, but they are made to consider cases involuntarily and therefore automatically carry the bias of wanting to get the whole thing over with, and get back to their non-juror lives, unlike a scientist whose life IS truth-seeking. More to the point, a scientist has been trained in avoiding bias, and knows to view evidence purely on its own merit--not the personality or talent level of the person/people presenting it, not the subject matter or personal feelings about it, not even volumes of similar investigations that prompted totally different conclusions.
I have thought about these things a lot because I'm a science researcher with two relatives who are attorneys, with whom I've had many an argument over many things, and the difference in our reasoning styles shocks me, vexes me, and amuses me, depending on what's at stake. This Radiolab episode (and 'More Perfect') feels like home to me.

May. 13 2017 01:16 AM
Norma Lopez from San Antonio, Texas

The last speaker—I think Jad Abumrad called him Elian Stall--changes to an uneducated, African American register when he speaks in the “voice” of a juror who blames the victim for rape. Why? Did his language betray him? Was he “Freudian slipping” into a bias that insinuated black jurors are incapable of performing their civic duty?
I am a language teacher who grew up in a black neighborhood. I can “hear” better than most after listening to nonnative speakers of English speak for the past 20 years and having learned two languages to fluency.
The change in register was strange if not telling.

May. 12 2017 09:56 PM
Lorena Carpenter from San Diego

I think if we TRULY had a jury of our peers in some magical faraway land where we have fixed these issues, then that's what would
Keep the system strong. Peers as in same race for the majority same socio-econmic status, similar experiences and location. For example if a Supreme Court judge was charged of a crime could any of us regular folk be part of his jury? Or should his jury include other judges and lawyer and high level people? If a woman of color is charged for prostitution I think her jury should include mostly women of the same socio-economic background and mostly women of color that have been faced with financial hardship.
But first we have to look at these laws in the first place in this country. What about victimless crimes, once again toward the end when the argument was being made against jury nullification was brought up he said to think about the victim not the offender, ok who is the victim in prostitution? Who is the victim in drug use offenses? That's why we do have the highest incarceration rate than anyone. The solution to problems is not to be locked up where now you have a record and cannot get a meaningful job afterward at all and are worse off than before.

May. 12 2017 08:40 PM
Lorena Carpenter from San Diego

The debate at the end involving the argument to get rid of jury nullification and the subject of date rape was brought up and the conclusion you came to was that thr jury was the problem.... I think that is completely wrong. Well I guess maybe the jury could be the problem in so much as it is males that would ask why she was out late and what was she wearing, but the judge is no different that is a male issue. I mean look at the Brock Turner case? That was the judge that wanted to lower the sentencing to try to save the " poor kid and his swimming career". White males think as white males and I for one do not want our society in the hands of these conservative minded white males! Jury nullification is a checks and balances of our time and race and class play way too much of a role in the court.

May. 12 2017 08:24 PM
Isaiah Michael Gooley from Baltimore

Also, against what's his face's point, the cops who killed Freddie Gray had a bench trial, and they got off.

The justice system is over taxed, so cases that actually matter go under-argued by overworked lawyers and prosecutors who are only interested in winning.

May. 12 2017 07:45 PM
Isaiah Michael Gooley

I'd much rather have a jury of my peers decide my fate than one dude in funny clothes who thinks he's an expert.

May. 12 2017 07:42 PM
Allison from New York

As always, I really enjoyed the most recent episode of Radiolab (one of my joys in life), but I felt moved to comment on something I found a bit troubling. Robert's story about his jury experience was lovely, moving and uplifting. It also was a perfect example of one of the problems in policy debate - anecdotal evidence being give the same or greater weight that statistical evidence. We make decisions based on what feels true, rather that what we can prove is true. It is troubling that the same logic that underlies arguments for pseudoscience cures (I know someone who tried homeopathy and it cured her arthritis) is the same logic the underlies our policy decisions (I heard a terrible story about an immigrant who raped some girls, so I think we should get rid of immigrants). Both sides of the isle, and the human race in general, are guilty of this, but when an individual makes a decision based upon this reasoning the consequences are generally minimal, when policy is decided on this reasoning the consequences can be far greater. We don't have data driven policy, and we won't until we, as a nation, learn to talk about these issues in a different way. Anecdotal evidence will always have it's place; it stirs our emotions, but it must always be handmaiden to data.

And yes, I did have a sign that said "Give me Liberty and Give me Data" at the March for Science, and I'm still not over it.

May. 12 2017 07:35 PM
Susan Purcell from Illinois

Please tell me the name of the piece of music that played at the very end of the story, it had bells, and was very haunting and beautiful.

May. 12 2017 06:29 PM
J.B. from Massachusetts

As usual, I listened to the show with great anticipation and interest. I'm really touched by Robert's story at the end of the show, and how fragile the system is. I find it interesting that the United States has this beautifully set up system that relies and is based on the assumption that the people in it are decent, honest, fair and just. It's easy to get bogged down in the notion that those people are way too far few in between nowadays, and maybe that's true, I don't know because nowadays is the only time I know of. I believe that the hope always has been to cultivate more people like that not only in this country but also all over the world. I sincerely think that we live in a very interesting time (as probably has always been). Thank you for great and enlightening story.

May. 12 2017 01:03 PM
Georgina from NY

I know this wasn't a science focused story but I loved it. Great story and really strikes a chord for how most of us are feeling right now - but in a way that's not just another anxiety inducing reminder that nothing works. That's more important that getting my science fix :)

May. 12 2017 11:47 AM
Aaron from Florida

Huh. I actually served on a jury last year in Seminole County in Florida (next door to Orlando). There was a group outside the courthouse handing out juror rights pamphlets, and it seemed like no big deal. They were not hassled by law enforcement or by court personnel at all, which makes me wonder if that fellow had already made threats against the judge and the police, prompting the judge's threats of arrest.

May. 12 2017 10:37 AM
Michael Nordtømme from Norway

Norway is in a process of abolishing the jury, since there is little evidence that the jury is responsible for legal certainty better than other alternatives.

May. 12 2017 10:31 AM
Austin from Las Cruces, New Mexico

Wow....that was an interesting one...glad you guys called the police to let them know. Great podcast, very informative!

May. 12 2017 10:09 AM
Felicia Nomiko from New Hampshire

While I prefer the Science episodes myself, I felt this one was good to broadcast. One of the basic rights we enjoy is that of being judged, not by Lords and Kings and nobles of the land, but by a jury of our peers, or fellow citizens. Jury nullification guarantees that right. Without it, we are judged by those in power over us which is not a peer. We are a Nation that believes that We the People are the ultimate power on which the nation rests. Without our consent to be a nation, we are not a nation. The government, judicial system and police force work for us, we do not work for them. So we should have the final say in what laws are followed and which are not. And this is done on a case by case basis, which is the best way to apply the law, as the words of the law see nothing but those words.

Yes, there will be mistakes made but mistakes are made with or without jury nullification. I would rather a person who is guilty go free on occasion than an innocent be made to pay the price for a law that has no compassion.

Not to mention that the people who work in the court system tend to see only the worst of humanity and that can take a toll and lead to blindness. Having fresh eyes on the cases is always a good idea.

May. 12 2017 10:09 AM
Ben Stern from beyond the grave

I see another RadioLab posted to my Podcast app with zero science content. Do I swipe left or right to delete? I fear the time to unsubscribe has come. I'll check back every few months an download the science themed episodes.

May. 12 2017 09:14 AM
Ted Potter from san francisco

Re Null and Void

The law only works when it is applied equally to all people. In my opinion that is no longer true in this country. With enough money and power your are not subject to the same level of criminalization as those people with less or no money or power.

The greatest failing of the liberal movement is its failure to have enough courage of conviction to stand by their beliefs.

"I can not believe how corrupt this country has become."

May. 12 2017 06:12 AM

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