May 11, 2017

Null and Void
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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[music]

Announcer: Listener-supported WNYC Studios.

Jad Abumrad: 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 and might not be appropriate for sensitive listeners or young children.

Announcers: You're listening to Radiolab from WNYC.

Laura: For some reason, this speakerphone doesn't ever want to go off. Can you guys call me right back and I won't put it on?

Tracy: Okay.

Laura: All right. Sorry about that. [silence]

Jad: Hey, I'm Jad Abumrad.

Robert Krulwich: I'm Robert Krulwich.

Jad: This is Radiolab. Today, we have a story about something that you might not know that you have, but you definitely do have it.

Robert: It's a crazy--

Jad: Maybe even scary.

Robert: It may be scary.

Jad: Even secret. A crazy, scary secret.

Laura: Hello.

Tracy: Hello.

Robert: Howard.

Tracy: Hey, sorry?

Robert: It comes to us from our producers Tracy Hunte-

Tracy: Are you there?

Jad: -and Soren Wheeler.

Robert: Yes, I'm here.

Laura: Okay, no speakerphone now.

Tracy: Okay.

Robert: This story, for us, got started with this woman, Laura Kriho.

Laura: I am a freelance internet marketer.

Robert: She's from Colorado and in the mid-'90s, something happened to Laura that hadn't happened to anyone in centuries.

Tracy: Why don't you just take us back to 1996, the day you got your jury summons, that very first one?

Laura: 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. I didn't have a ride to the courthouse, and so I called the court and ask them if I really had to show up since I didn't have a ride. They're like, "Yes, you have to show up." I said, "I'll have to hitchhike then and if something happens to me," I said to them, "my blood is on your hands." 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.

Tracy: Whatever. The point is Laura did get to court.

Laura: In Gilpin County in Colorado.

Tracy: When she got there, she walked in, took a seat.

Laura: I think there was about 40 jurors in the pool of jurors. First, they fill up the box with 12 jurors and then they ask them questions about themselves.

Robert: Real quick, were you hoping to get booted off?

Laura: Oh, yes. I was hoping to get booted off, of course. Any good red-blooded American was hoping to--

Tracy: Back towards the end of jury selection.

Laura: I was one of the last ones to be selected.

Tracy: The next day, Laura and the 11 other jurors showed up to hear the case. The case was for this 19-year-old girl.

Laura: She was charged with possession of methamphetamine. What happened is that she was up in Central City, which is a gambling town.

Tracy: That day, she was driving in her van with her boyfriend, and eventually, the two of them drove to this casino.

Laura: Her boyfriend jumped out of the van, he went to the casino.

Tracy: Then, she kept driving, and then the police pulled her over.

Jad: They just, for whatever reason pull her over?

Laura: I don't know what she got pulled over for.

Tracy: They just pull her over.

Laura: 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.

Tracy: Which they said gave them probable cause.

Laura: To search her purse.

Tracy: Because now they're thinking, "Oh, does she have a weapon in her purse? What is she trying to hide?" The police open up her purse and they start rifling through it.

Laura: At which they found this 1 ounce of methamphetamine.

Tracy: One of the questions before the jury was, "Is this young woman guilty of possession of methamphetamine beyond a reasonable doubt?"

Robert: At the end of the trial, Laura and the other 11 jurors got up and went to the jury room to deliberate.

Laura: 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.

Tracy: There is also the fact that she did have this meth.

Laura: It was unclear whether it was actually hers or not.

Jad: Because, according to the girl, when her boyfriend got out of the van--

Laura: He put something in her purse, she said, without her knowledge.

Tracy: This girl is saying the meth might be his, but it's definitely not hers.

Laura: To me, that's the whole thing. It's element number one of the possession charges that they have to knowingly possess.

Robert: For Laura--

Laura: If she said she didn't know she had it-

Robert: -and it could be her boyfriend's-

Laura: -then, she's not guilty.

Tracy: It seemed to her that it was just a pretty big hole in the prosecution's case.

Laura: To me, I just couldn't get beyond that.

Tracy: Laura turned to the other jurors.

Laura: I said to them, I was like, "Isn't that enough reasonable doubt for you to acquit her?" They were all like, "No, she had it in her purse, she knew it was there. It's almost five o'clock, we need to convict her and go home."

Jad: Laura wouldn't budge. She just couldn't get herself to go along and so she held out. That night when she went home, she just kept turning this case over and over in her mind. She started wondering-

Laura: -what the girl was looking at as far as the sentence.

Jad: That's not, technically, what a juror is supposed to do.

Tracy: No.

Robert: No, in fact, the judge, in this case, and generally, the judge had told them-

Laura: -"I'm the one that gets to decide the sentence-

Robert: -you don't have to worry about the sentence here-

Laura: -you just have to find out whether she's guilty or not guilty," but I was worried about the sentence. When you're a juror, you have somebody's liberty in your hand.

Tracy: Laura sat down on her computer, she got online, and she found this criminal statute. To her understanding, this girl-

Laura: -was looking at two to six years.

Robert: She's like, "What? That just feels so out of whack. That doesn't feel right."

Tracy: Also, it's a felony charge.

Laura: You can't erase that. The second day of deliberations, we just went back and forth, "Were the police lying?" "Yes, we think the police are lying." "Is that reasonable doubt?" "No, it's not reasonable doubt." After all my arguments about reasonable doubt we're exhausted--

Jad: 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--"

Laura: We didn't have to convict her for any reason, that we could let her go.

Jad: That even if she broke the law, we could say, "We don't agree with the law."

Laura: "We're here to be the conscience of the community." That's what I told them. "You don't have to convict her."

Robert: Wait, 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."

Laura: That's where everything broke down. [laughs]

Tracy: 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 is in here. She's talking about sentences, she's saying that she's only going to acquit this girl."

Laura: That note got sent to the judge and, apparently, the judge exploded and called us all back in and declared a mistrial.

Robert: Then, about a month later--

Laura: The sheriff showed up at my house with his summons for contempt of court.

Reporter 1: Paul Grant represented Colorado juror, Laura Kriho-

Robert: Suddenly, Laura's story caught fire.

Reporter 1: -after she refused to convict a young woman in a drug case last year.

Laura: I was the first juror in 400 years that was actually punished for their verdict. Prosecuted.

Jad: Really?

Robert: Actually, 326 years. The point is, when Laura told those other jurors they could essentially ignore the law, that they could disregard the facts if they disagreed with the law, she had tiptoed-

Reporter 2: What you're about to see is going to infuriate a lot of you.

Robert: -into this very bizarre-

Reporter 1: A lone juror tosses out the law.

Robert: -almost like a legal loophole of some kind.

Reporter 3: I think it's absolutely appalling.

Robert: That, on some sides, people see as a trap door to anarchy and, on other sides, people see it as one of the foundational bedrocks of what it means to be in a democracy.

Reporter 4: It is something called 'jury nullification'.

Reporter 5: Jury nullification.

Robert: I have to say, the first time I heard about jury nullification, I googled it, and the first thing that came up was this YouTube video that was like a little explainer thing with animation. I think the first thing that was said on the frozen screen of the YouTube video was, "You can get arrested for talking about this."

Jad: Really?

Robert: I was like, "Whoa. Okay, I'm hitting 'play' on that. Let's go."

[laughter]

Jad: You can get arrested for talking about this.

Robert: That ends up being sort of true, but also, sort of not, which is what makes it a loophole.

Participant 1: Thank you.

Participant 2: Just this way.

Robert: Anyway, as we dug into it, we figured we're going to need some help understanding this thing. I was thinking that we'd start with a little bit of just what jury nullification is.

Tracy: We called up our favorite legal expert, Ellie Mystal.

Ellie Mystal: I am an editor of Above the Law and the legal editor of More Perfect on WNYC.

Jad: More Perfect? What is that? That sounds amazing. What is that? [laughs]

Ellie: You know what, it's not worth mentioning.

[laughter]

Jad: Seriously, season 2 is coming.

Robert: Anyway, when we were talking to Ellie, the first thing that we asked him was, "Just give us a pure, uncut version of jury nullification."

Ellie: 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 saw they had me dead to rights. They have me on video. My mama said he stole the car.

Robert: No reasonable doubt.

Tracy: Your DNA is in the car.

Ellie: My DNA is 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. I had no other option and so I smashed the windows to somebody else's car. I hotwired it. I put my kid in the back. I drove to the hospital, saved my kid's life. Now I'm up for trial from the guy who has the Audi.

Robert: That I live in Westchester.

Ellie: The guy who has the Audi is like, he stole my car.

Robert: Which is true.

Ellie: I demand justice and the juror says, "No." The jury would nullify that clear illegality, that clear crime that I committed.

Robert: 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.

Ellie: That's the pure version of it and that's the most happy-clappy does.

Robert: That's a very happy version of it.

Ellie: I could've stolen Justin Bieber's car. I probably couldn't get convicted in a court for that.

Robert: Nobody likes him.

Ellie: Nobody likes him.

Robert: They could be saying the law's not nuanced enough. They could be saying the punishment is off. They could be saying in this case, the victim deserved it or they could be saying, we disagree with this law.

Jad: Wait, something I don't understand is like-- Here we have a situation where Laura says she doesn't agree with the sentence. Does she or any of the other jurors have a right to do this? Is there something written in the constitution that says they can do that?

Ellie: 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. It's not exactly a crime.

Robert: Ellie says a jury is told to do what they think is best.

Ellie: If they think their best is nullifying a law. That's also not exactly illegal.

Tracy: Which just to get back to Laura for a second is why the court never actually charged her for jury nullification. Instead, they found her guilty for not answering questions directly during the jury questioning process.

Robert: Eventually that conviction was overturned on appeal because in general the things that are said in a jury room are protected. They're private.

Ellie: It's not a right. It's not a crime. What it is, is a power. I think of it like-

Participant: What kind of monster are you?

Ellie: The X-men. Wolverine's power is he can detach steel adamantium claws from his hands. That's just a fact of Wolverines life. 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? Not really. It's illegal for him to use them in certain ways. 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.

Robert: 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.

Jad: Wait a second. This is throwing me off a bit. The jury-- like the claws-- the jury has this claw-like power or whatever, but they're not allowed to use it.

Robert: I mean the simple point is that jury nullification is as fundamental to juries as having claws is to Wolverine.

Ellie: That's just a fact of their existence.

Jad: They still get in trouble if they use it.

Robert: Laura did.

Jad: 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. If you do it or even talk about it, you might get in trouble. That's--

Robert: I'm super glad you asked that question because it gives me a chance-- Hey, Matt, are you back there? Could you cue some like English Giante 1700s type music.

Matt: Coming right up. All right. Now we're in the mood.

Robert: All right, explain.

Tracy: I ended up finding this guy Jeffrey Emblemson.

Jeffrey Emblemson: Professor of law and government at the University of Texas [unintelligible 00:14:37].

Tracy: Jeffrey told me it all has to do with this battle over who has the power to decide what the law is. He says the opening shots of that battle go all the way back to--

Jeffrey: William Penn trial in 1670, which is really the birth of religious Liberty.

Tracy: I guess we can also cue some sounds of horses on Cobblestone streets.

Matt: I refuse to do that.

Tracy: Just do it, just do the horses. So much better. Thank you. In 1670, London, England, we've got a guy William Penn.

Jeffrey: William Penn at the time was a young man. He was a Quaker

Tracy: One day, he's walking through the streets of London.

Jeffrey: To hold a prayer meeting in Grace church, meeting chapel.

Tracy: He walks up to the chapel door.

Jeffrey: He finds it locked by the authorities.

Tracy: The reason the doors were locked was because there was actually this century-old law on the books.

Jeffrey: It made it a crime to essentially to be Quaker.

Tracy: But what Penn does.

Robert: Hey, [inaudible 00:15:36]

Jad: One, [bleep] both you, two.

Penn: Hey, gather around. Gather around. Yes.

Robert: Penn starts calling everybody together in the streets.

Tracy: As more and more people start to gather.

Jeffrey: There's a large crowd.

Robert: Like 300 or 400 people show up.

Penn: Come on, come on.

Robert: The authority sees the occasion to arrest him for breach of the peace. Eventually, Penn gets thrown into jail.

Jad: He gets a jury trial.

Judge: The indictment is as follows that William Penn of London.

Tracy: Now the government, the King was pretty much discharging Penn for being a Quaker.

Robert: The authorities felt they could go underneath the table and just prosecute them for what was the common law crime of breach of the peace.

Judge: Are you guilty as you stand in the matter and form as for said or not guilty?

Penn: I plead not guilty in manner and form.

Robert: The case is pretty open and shut. I mean, he gathered hundreds of people in the middle of the street.

Jeffrey: According to law and the evidence he's guilty, but his defense is show me--

Penn: Show me what law in England makes it a crime to worship God in my own way.

Tracy: The jury went off to the jury room.

Robert: The jurors come back several times and say, we cannot agree.

Jad: What was their hangup?

Robert: Don't know how inside the heads of those people you can get. 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.

Tracy: Right. The judge says to the jurors.

Jeffrey: I am telling you that if the evidence shows that Penn preached to a throng on a public thoroughfare.

Tracy: He clearly did.

Jeffrey: You have to find him guilty of the crime of breach of the peace.

Robert: Then the judge locks him up in the jury room.

Jeffrey: Without food tobacco or rest facilities.

Robert: For a "considerable amount of time."

Tracy: Then finally.

Jeffrey: They come back and acquit him. The judge accepts the acquittal and then orders the jurors to jail for perjury.

Jad: Put the whole jury in jail?

Robert: Yes. They get locked up.

Tracy: There's one guy in the jury he's like this is not cool.

Robert: That guy ends up filing an appeal.

Jeffrey: It went to the highest courts in the realm.

Robert: All the way to the King's court .

Jeffrey: The chief justice ruled that it henceforth would be illegal to prosecute jurors for a not guilty verdict. This becomes the start of [unintelligible 00:18:14].

Robert: What it really was the birth of this bubble, this protected space called the jury room that you can't punish anybody for what they do in the jury room. 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.

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. Actually, Jeffrey says, one of the things that we get from a jury-

Jeffrey: -is freedom of the press.

Robert: When the 1700s, this newspaper guy in New York-

Jeffrey: had supposedly libeled the King or the crown.

Robert: To the jury, in that case, it was pretty clear that he did.

Jeffrey: But they decided the law itself is unjust.

Robert: Boom, there you go, freedom of the press. This idea is baked into our nation's beginning-

Jeffrey: -of trusting ordinary people to do the work of justice themselves.

Robert: I mean, ordinary people being white men at the time.

Tracy: 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. Now judges are seen as the experts in the law. Then what happens is that you see more and more judges take back the power to decide what the law is from the jury.

Jeffrey: The United States Supreme Court made clear.

Tracy: In a decision in 1895.

Jeffrey: 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.

Robert: From this, you get the judges instructions that are given to the jury.

Jeffrey: We still have this instruction today, that ladies and gentlemen 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.

Robert: It wasn't exactly that jury nullification became illegal and more like just the court pushed it down, made it unspoken thing. Over the next 100 years or so, certainly, there's times when jurors refused to convict. The famous cases are like during Prohibition and some arguments during the Civil Rights Movement and the Vietnam War, but really, the explicit idea of jury nullification, the idea that this is really a role for the jury stays mostly underground until the claws come out. That's after the break.

Jad: Yes.

[laughter]

[music]

Jad: Hey, this Jad. Radiolab is supported by Rocket Mortgage. When I'm looking for a new house, I imagine myself in every space. Do I want to relax in that yard? Can I use that shower every day? I want to know that the house fits me, but there's more to it than that. Rocket Mortgage built a home loan experience designed for you with certainty at every step and no unwanted surprises. You can relax knowing you're getting a home loan that fits your life. Visit rocketmortgage.com/radiolab, because when you need a mortgage that fits your life, Rocket can. Call for cost information and conditions. Equal Housing lender licensed in all 50 states, NMLSConsumerAccess.org number 3030.

Hi, this Jad. Radiolab is supported by TransferWise. The smart new way to send and receive money internationally. TransferWise gives you the real exchange rate every time you send money abroad. You can even get an account that holds up to 47 currencies at once and convert between them anytime. Join over eight million customers in more than 80 countries who are already saving. Try them out for free at TransferWise.com/podcast or download the app. Jad, Robert, Radiolab. We're talking about jury nullification.

Robert: Which is the power of juries to perhaps ignore the law.

Jad: Tracy Hunte and Soren Wheeler are our reporters. You guys are saying it was underground for a while?

Tracy: Yes.

Robert: Then what happened?

Ellie: The '90s happened.

[riot screams]

Jeffrey: It was a perfect storm of two events, both of them in California.

[riot screams]

First, you have the Rodney King trial where you have this videotape.

Reporter: We've all seen the pictures of Los Angeles police officers beating a man that had just pulled over.

Tracy: 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 multiple times repeatedly.

Jeffrey: Showing to most reasonable observers that there was severe police brutality against an unarmed Black man.

Reporter: Four Los Angeles police officers charged in the--

Tracy: Initially the trial was supposed to be held in Los Angeles but because of concerns about media exposure, it got moved.

Jeffrey: To neighboring Ventura County where the jury is almost all-white.

Tracy: After a month-long trial and weeks of jury deliberations.

Reporter: Majority in the Rodney King case has delivered its verdict and--

Jeffrey: You get an acquittal.

Tracy: They acquit the officers.

Reporter: Not one of the four police officers seen on videotape beating Mr. King a year ago, he is guilty of using excessive force. They've all been found not guilty.

Tracy: Of course, we all know what happened in LA after that.

[riot screams]

Five days of rights.

Reporter: We've seen rocks and bottles and various things going to car, school--

Tracy: More than 60 people were killed.

Reporter: He is bleeding unconscious in the street. You can see a white plume of smoke.

Tracy: There was about $1 worth of damages.

Reporter: There are several other plumes just like that in this area. I must say I'm scared.

Tracy: We all saw what happened. It looked very much to African-Americans in Los Angeles that these white people in Simi Valley California--

Tracy: Had voted race rather than evidence to acquit.

Female Speaker: 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.

Robert: According to Jeffrey, that was round one. Then just three years later.

Male Speaker: Okay. It's a white car.

Jad: You get round two.

Tracy: We believe that this is the police tracking OJ Simpson's White Ford Bronco. There you see, the police cars.

Jeffrey: The OJ Simpson trial.

Reporter: Regard with charges made by LA police against OJ Simpson in connection with the brutal slaying of his ex-wife Nicole and 25-year-old Ron Goldman--

Jeffrey: There is massive blood evidence.

Reporter: Bloody footprints, one of the bloody gloves.

Jeffrey: Massive DNA evidence.

Reporter: Red drops leading up to and inside the house in his bedroom.

Jeffrey: Yet a predominantly Black jury.

Reporter: With a jury and embarking title action find the defendant Orenthal James Simpson not guilty of a crime of murder.

Jeffrey: Acquit.

Reporter: You heard the verdict. Can we ask your reaction?

Robert: While many Black people thought that a white jury to ignore the law in the Rodney King case.

Reporter: It is a disgrace, I'm shocked.

Robert: Many white people felt that the largely Black Jury.

Reporter: I think it's absolutely appalling. Excuse me, no faith in the jury system whatsoever.

Robert: Then the same thing in acquitting OJ.

Reporter: I think he's guilty. I think he got off because the jury was mainly Black.

Jad: According to Jeffrey, these two cases together, they sparked a national conversation about jury nullification.

Jeffrey: The day after the OJ Simpson verdict, The Wall Street Journal a first-page story, essentially arguing that in inner cities throughout the country, Black jurors were remarkably acquittal prone.

Robert: In other words, according to the article, there was a spike in acquittals among Black jurors in cases where the defendant was also Black.

Jeffrey: The most likely explanation is a jury revolt.

Robert: Jeffrey actually argues that this idea of a jury revolt was overstated, in part because he says you can never really know if a jury is actually ignoring the law, but-

Jeffrey: Sometimes we as prosecutors would persuade a jury beyond a reasonable doubt, but the jurors would still find him not guilty.

Robert: 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?

Paul: It deals it felt wrong personally, because like every prosecutor, I wanted another notch in my belt. Yes, it ticked me off. The reason they were doing this is because, they didn't want to send another young Black man to jail.

Robert: Which Paul says was mostly what his job was.

Paul: If you go to criminal court in DC, you will think that white people don't commit crimes. They're just utterly absent from the criminal court. Obviously, that's not a reflection of the real world.

Robert: Over the years--

Paul: Day to day locking up Black people, it takes a psychic toll.

Robert: Paul says he started to ask himself.

Paul: Did I go to law school to put Black people in prison? For me, the answer became no.

Reporter: Now a Black law professor is urging Black juries to use nullification in their fight for racial justice.

Paul: That led me to not only understand what these African-American jurors were doing in DC.

Robert: In cases of nonviolent crimes.

Paul: To endorse it.

Reporter: If you let a guilty defendant off, isn't that the same as really taking the law into your own hands?

Participant: It absolutely is the same as taking the law in your own hands.

Paul: As a political protest.

Robert: That one 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's a group called the Fully Informed Jury Association that started actually in this tiny butthole of a town in Montana with these super libertarian--

Jad: You can say that because you are from Montana?

Robert: Yes, I am from Montana. I am allowed to say that. They started this group that was basically advocating for jury nullification, writing up pamphlets, sending out things. Eventually, the internet comes along and tension to jury nullification just goes puff. There's claims that 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 hadn't certain seen as slam dunks. In the post-trial interviews, jurors were saying that 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 around 1996, all sudden it's become much much more difficult for prosecutors to convince juries to convict in marijuana cases and so prosecutors are deciding not even to file charges in those cases. It comes up in gun cases during that time.

Jad: You have this spasm of interest largely because of these two race-related trials and then suddenly you have it spreading in all these different places.

Mark: Brochure about your Jury rights.

Tracy: In fact, today what you're seeing is this rising activism.

Mark: Good morning. Would you like a brochure about your Jury rights?

Tracy: Around getting the word out about jury nullification.

Mark: Brochure about your Jury rights. Good morning, ma'am, would you like a brochure about your Jury rights?

Tracy: A lot of this is happening at courthouses all across the United States in Philadelphia in Florida.

Speaker 8: Just say your name and who you are what you do.

Tracy: We actually sent a reporter to Denver to talk to this guy.

Mark: Yes sure. My name is Mark Iannicelli. You spell that last name. I-A-N-N-I-C-E-L-L-I. I am with an activist for jury nullification. Very cold very hot rain or shine.

Tracy: Three days a week, Mark would show up at the courthouse and he had some other people and they would just stand near the steps of the court and hand out these pamphlets that basically say--

Mark: Your right as a juror to vote not guilty if it's a bad law designed by bad politics.

Tracy: You have the right to vote your conscience.

Participant: Jury's there to represent the conscious of the community.

Tracy: He has a right to judge the law.

Participant: You can vote not guilty and not tell anybody and it's you're right and it's perfectly legal. That's how you get rid of bad law.

Jad: These people of various sorts?

Robert: Various sorts. You'll get the guns right to people, you'll get the libertarians out west.

Mark: I am with occupier Denver.

Tracy: You get like occupiers like Mark and you might get some racial justice people who think there's too many brown people in jail. Jury nullification is a very big tent.

Mark: There's a prosecutor. You see these got the LLB tote bag. [unintelligible 00:32:05] a brochure about your jury rights?

Robert: The thing is here's where we get to the getting in trouble for guys like Mark.

Mark: We've got arrested here.

Robert: Who hand out these pamphlets in front of courthouses, they sometimes get arrested.

Mark: We were distributing information and they 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 class five felony. Looking at 21 years in prison.

Jad: Under what grounds? Jury tampering?

Tracy: Almost always jury tampering.

Jad: No one ever says no. Once again they can't equal because obviously, it's not.

Robert: They get arrested for jury tampering but then these cases will go and they'll get appealed and eventually, I don't think we've found a case where this isn't true. Every single case, the charges will get thrown out because it's free speech.

Mark: We are now in a first amendment free speech war.

Tracy: Juian, can you hear me?

Julian: Yes, I hear you.

Robert: This is Julian Hikeland. He became a jury nullification activist hero of sorts when he was arrested in 2010 at the federal district court here in Manhattan.

Julian: I made nine appearances at this courthouse and was arrested five times.

Tracy: He was about 78 years old at this point.

Jad: He was just handing out flyers?

Julian: Yes.

Tracy: Did you have a desk or like a table set up or are you just standing there--?

Julian: No. I stand up. I have a sign that says jury information and as they go by, I just pass out this one-page flyer.

Tracy: Do people come up to you when they see jury information?

Julian: Some do, more of them runaway.

Tracy: He used to show up at courthouses like all over the place like in New Jersey and in Pennsylvania and like in Philadelphia and Florida.

Robert: 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 notify laws they don't agree with. Basically, because they see nullification as a check on times when the government or a law goes in their view too far.

Julian: 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. 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.

Robert: This is probably the most famous example of jury nullification cases where Northern jurors, even though they knew someone had harbored a slave and was therefore guilty, they would just refuse to convict.

Julian: They didn't do it. That's factually the most important during nullification case that this country probably ever had is they just left the slaves-- they just sent them off 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.

Robert: By the way, if you need to stop and take a drink of water, don't hesitate.

Julian: I need to stop and cry a little, but anyway let's go ahead. You don't mind if I cry while we talk about this. This touches me pretty much.

Robert: Of course, I don't mind if you cry. I got some curious what is it that's hitting you in that emotion?

Julian: I'm sorry. I think 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.

Robert: You're seeing that corruption in people being locked away, put away for things they shouldn't be put away for?

Julian: Like drugs, for example. Do you know that we now are the number one prison state in the world? We have the highest percentage prisoners than any country in the world. That's the United States of America. 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. If you want to shoot yourself that's your business. Anyway, and I'm telling you something, we're going to the courts even though-- to pass out this literature on Monday in Orlando that's why I'm down here. I met 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. Of course, I probably have 50 or 100 along. I hope along with me.

Tracy: Julian, is that what you're doing at the courthouse? Are you going to be passing out the jury pamphlets?

Julian: That's exactly right. The judge has promised us that we'll be arrested. I'm asking all my people to come with guns and shoot the cops that come after us.

Robert: You're not serious about that. Are you?

Julian: I am serious.

Robert: That would be the thing that you just said. Do you understand why the government would stop someone for-- That crosses the line.

Julian: The point is there comes a time when you've got to stop it. 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.

Robert: That's not justice either.

Julian: The point is we've tried now for years, it doesn't seem to sink into them that it's their job to uphold the law not to keep throwing people in prisons. 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.

Robert: I have a hard time-- [crosstalk]

Julian: There's no reason why I should be arrested and taken away. Now if they're going to try and do it, I want them killed.

Robert: You realize-- I have a hard time bEllieving that you believe that that deserves killing a court clerk who has a family.

Julian: Come down and try to arrest me. They've been warned that I've sent them the letter. I've told him 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. I hope to see that it's ended on December 5th. We just can't put with it anymore.

Robert: I think that if you're in a position of considering doing what you've just said you're considering doing, that--

Julian: I'm not going to do anything. It's only if they do something. No matter what we have to do, it's not going to happen again.

Robert: Julian, I'm going to interrupt you there and just say, I think we're probably best off just ending the conversation and letting our microphone person go home and letting me-- [crosstalk]

Julian: Anyway, you've heard my opinion. It's not only my opinion. It's my intention.

Robert: We hear you. We got it.

Julian: Thank you very much for having me.

Tracy: Thank you, Julian. Bye.

Julian: You're welcome. Bye-bye.

Tracy: Oh my God.

Robert: Do you have the tape seekers number?

Tracy: Yes I do.

Robert: You want to just give them.

Tracy: I'm going to give them a call right now. When I talked to him he never said anything like that, I'm so sorry.

Jad: What happened after that interview or at the tail end of that interview?

Tracy: After we hung up, we felt we had an obligation to call law enforcement down there because he-- It 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 of him r Mark.

Jad: Did any other people he'd been wanting to show up?

Tracy: No, it was just them. Nobody else showed up. The police say that somebody who works at the court 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.

Jad: What happened then?

Tracy: The charge for threatening public workers that was dropped, the prosecutors dropped that charge, but he is still facing two misdemeanor charges of assault and trespassing.

Jad: When you were sitting there in that interview, did that change in any way your feelings, one way or the other about jury nullification because I feel it did for me a little bit?

Tracy: My answer will be really short. No.

Jad: Okay. Why no?

Tracy: I think he just 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.

Jad: Sorry.

Robert: I guess not. I did hear when I was talking to him, partly because I had been thinking about jury nullification, almost heroic terms, it's like this chance to stand up against an unjust law. This conversation just made me realize it also gets twisted up with this really deeply anti-government idea. You talk to these people and you hear arguments that sound like burn it down.

Jad: That's my problem.

Robert: That burn it down instinct, was always at a distance for me, and it felt just much closer.

Jad: Yes, that's kind of mine, when I hear that tape, I think that's the strain, that's the 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 triumphing over everything." I find that to be a really scary idea that pops up.

Ellie: It's funny because I think like Tracy, I've always thought of this as checks and balance thing. You have a system. We have a legislative branch, it passes laws, sometimes the laws are, or you'll concede or circumstances change, or you find out a consequence of the law, people of one race are constantly going to jail or getting electrocuted or not, and then you get these ordinary people walking into these decision points and saying, "You know what? This doesn't. This doesn't feel right. It's just wrong." If you don't have that, then the legislators don't get that little prick in their little bubble.

Jad: I totally hear you. I've never advocated for going along with a bad law, and I think we get a rife 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. It's like that.

Robert: That's jury nullification.

Jad: That's absolutely jury nullification. That is the history of the post-reconstruction of south.

Robert: Yes, but you can make those same arguments on the other side.

Sonia Sotomayor: Think about what juries did during the Civil Rights Movement.

Robert: This is Supreme Court Justice, Sonia Sotomayor, speaking at NYU in 2016.

Sonia: If it weren't for jury nullification, 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 nullification, 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 believe is that the jury getting wrong was better than the crown getting it wrong.

Ellie: 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 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.

Robert: This is once again, Ellie Mystal, legal editor at the WNYC show more perfect.

Ellie: The older I get, the more comfortable I become with the idea of an elected white man sitting in judicial robes deciding everything, as opposed to 12 random jerk offs from the street. I say that knowing full well that that is a horribly elitist and terrible for that reason, solution to the problem.

Jad: Well, also puts hand, it concentrates power into mostly white hands.

Ellie: It concentrates power into mostly white 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. If you look at it only from the perspective of the defendant, then jury nullification seems like a great way to protest the system. I've started to look at things more from the perspective of the victim, which victims are getting justice, and which victims are not?

When I start to look at it from that angle, what I see is juries nullifying cases when the victim is of color, or when the victim is a woman, try bringing a rape case, try bringing a date rape case in this country. Try it. It's really hard. One of the reasons why it's really hard is the jury. Is the jury sitting there, he's talking about, "She was asking for it." Talking about, "What was she were?" talking about, "Why was she out that late any damn way?" That's a jury doing that to the woman as much as any other part of the system.

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 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 he did it, when you saw him do it, when you can't convict the cop who shot when we 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. To me, the first people to go have to be these, Gee, The Jerks.

Jad: I find that really persuasive.

Jeffrey: 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 about one time I was in a murder case. Some man had been accused of stabbing a woman 22 times and she died on the staircase. They're fourth woman and in New York, they just picked the person who's picked first becomes the fourth person. She came in, she sat down to look, how many of you noticed that the defendants' lawyer was asleep a lot of the time? Every hand went up. He don't see this. Here's what I want you to do.

Let's go back over everything that we know. Essentially retry the case, and we actually went together through every bit of evidence, looking for some doubt somewhere. We staged the stabbing, we went back over the distances where 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. "It's okay, let's vote now."

When it came clear to the fourth woman that we were going to convict because she was counting the votes, and finally the 12th vote went to convict. Just shorter than her chair. When she got off her chair, she actually was smaller than when she was sitting on chair, but she asked us all to hold hands. We just spent five days, we've been sequestered in a hotel. Each of us had policemen guarding us because there was some violence about it.

We are all standing on the way, she asked us to hold hands, and then she looks up at the ceiling, and it's one of those ordinary rooms. She addresses the woman who's killed, and she says, "We have spent the last few days trying to do something that is just, you are there. You died at his hands or didn't. We decided that you did, and we hope and we pray that this is a system that works, and that you are getting justice." She said, "God bless America."

Robert: Wow.

Jad: That's amazing. Even though I think you're expressing a faith in democracy that I think is in short supply right now.

Robert: I know.

[music]

Jad: Big thanks to producers Soren Wheeler and Tracy Hunte.

Unidentified Speaker: Now, we should say a couple of things to first of all Jeffrey Abramson his book is called, We the Jury, and also Judge Fred B. Rogers in Colorado.

Unidentified Speaker: Nancy Martyr, a law professor at Chicago Kent College of Law.

Unidentified Speaker: Valerie Han's professor of law at Cornell law school.

Unidentified Speaker: Ella Hannaford with the National Center for State Courts. Robert Lewis in the WNYC newsroom for helping me out with some public record stuff.

Unidentified Speaker: One more quick note, Laura Kriho, the woman from the beginning of the story, the juror who got punished. She actually passed away earlier this year 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.

Robert: This story is produced by Matt Kielty and Tracy Hunte.

Jad: I'm Jad Abumrad. He's Robert Krulwich. Thanks for listening.

Emily Crockett: This is Emily Crockett calling from Washington DC. Radiolab is produced by Jad Abumrad, Dylan Keefe is our Director of sound design. Soren Wheeler is senior editor, Jamie York is our senior producer. Our staff includes Simon Adler, David Gebel, Tracy Hunte, Matt Kielty, Robert Krulwich, Annie McEwen, Latif Nasser, Malissa O'Donnell, Arianne Wack, and Molly Webster. With help from Valentina Bohanini, [unintelligible 00:51:59], Phoebe Wang, and Katie Ferguson. Our fact-checker is Michelle Harris.

 

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