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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 [44]

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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