Dec 16, 2022

Null and Void

This episode, first aired in 2017, has Reporter Tracie Hunte and Editor Soren Wheeler exploring a hidden power in the U.S. Court System that is either the cornerstone of our democracy or a trapdoor to anarchy.

Should a juror be able to ignore the law? From a Quaker prayer meeting in the streets of London to riots in the streets of Los Angeles, we trace the history of a quiet act of rebellion and struggle with how much power “We the People” should really have.

Special thanks to Darryl K. Brown, professor of law at the University of Virginia, Andrew Leipold, professor of law at the University of Illinois, at Urbana-Champaign, Nancy King, professor of law at Vanderbilt University, Buzz Scherr law professor at University of New Hampshire, Eric Verlo and attorneys David Lane, Mark Sisto, David Kallman and Paul Grant.

Episode Credits:

Reported by Tracie Hunte
Produced by Matt Kielty


You can hear the whole On the Media series, The Divided Dial, and many of their other great work by following this link( 

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Leadership support for Radiolab’s science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, a Simons Foundation Initiative, and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.


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LATIF: Hey, I'm Latif Nasser.

LULU: I'm Lulu Miller. This is Radiolab.

LATIF: And today, in service of this Radiolab Rewind we're about to play for you, this episode from the archives, I want to ask you, Lulu ...

LULU: Mm-hmm.

LATIF: Have you ever done jury duty?

LULU: I have not. And I really want to. I mean, maybe I shouldn't say that on the air because, like, the envelope will come and then I'll be like, "Ugh!" But I would love to, and I have never even been called. I think I've moved so many times they don't know where I am.

LATIF: I—I just became a citizen relatively recently as you know.

LULU: Yeah.

LATIF: So I haven't—I also haven't been called, but I—I want to do it!

LULU: Yeah. What is it for you? Why do you want to do it?

LATIF: I mean, there's part of it that feels like a—your—I don't know, this is a weird thing to say. Like, maybe like a little power trip to be like, "Oh, wow! Like, I get to—" It's also—and again, another thing that maybe I shouldn't say out loud but, like, there's something, like, kind of voyeuristic about it.

LULU: Yeah.

LATIF: It's like an out-of-body moment. It's out of your life. You get to kind of like exit your life and sort of get plunged into probably the most dramatic moment of somebody else's life kind of in a—in a ethical, moral puzzle of what to do next. And there's something kind of I think very humbling and powerful about that moment.

LULU: And today, we have a story that is about that power, but it's about not just a power that you walk in the door of jury duty with, it's about this kind of trapdoor on any jury, which I had no idea about was waiting there, that you can kind of fall through and access a whole new realm of powers that isn't just about guilt or innocence, that isn't just about truth, but it, like, gives you and your whole jury, I don't know, change democracy?

LATIF: Yeah, it does feel like it's not—it's not just the power to change an individual's life. It's the power to change this society that we live in.

LULU: Yeah.

LATIF: And that it, to me, once you first hear about this power, once you first discover this power, then to hear the variety of ways that it's been used, they're both so inspiring and—and so horrifying that you ...

LULU: Yeah. Yeah.

LATIF: ... it kind of—yeah, kind of knocks you down.

LULU: Yeah. And as a story goes, this is—I think this contains one of the most frightening moments that—that I've heard Radiolab encounter.

LATIF: In an interview ever. Yeah, for sure.

LULU: The show is called Null and Void.


LAURA KRIHO: Well, 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?


LAURA KRIHO: All right. Sorry about that.

JAD ABUMRAD: Hey, I'm Jad Abumrad.

ROBERT KRULWICH: I'm Robert Krulwich.

JAD: This is Radiolab.

ROBERT: And today ...

JAD: Today we have a story about something that you might not know that you have, but you definitely do have it.

ROBERT: Yeah, it's sort of a crazy ...

JAD: Maybe even scary.

ROBERT: It may be scary.

JAD: Even secret. A crazy, scary secret ...


TRACIE: Hello?

ROBERT: ... power.

TRACIE: Hey, Soren?

ROBERT: And it comes to us from our producers, Tracie Hunte ...

TRACIE: Are you there?

JAD: And Soren Wheeler.

SOREN WHEELER: Yeah, I'm here.

LAURA KRIHO: Okay, no speakerphone now.


SOREN: So this story for us got started with this woman, Laura Kriho.

LAURA KRIHO: I am a freelance internet marketer.

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

TRACIE: So we'll just—why don't you take us back to 1996, the day you got your jury summons, that very first one?

LAURA KRIHO: Well, that was the day of jury duty. I had totally forgotten about the jury summons until the day of, and I picked it up and I read the back of the summons and it said something about six months in jail if you don't show up. And so I didn't have a ride to the courthouse, and so I called the court and asked them if I really had to show up since I didn't have a ride. And they're like, "Yeah, yeah. You have to show up." And I said, "Well, I'll have to hitchhike then, and if 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.

TRACIE: But whatever. The point is Laura did get to court.

LAURA KRIHO: In Gilpin County in Colorado.

TRACIE: And when she got there, she walked in, took a seat.

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

SOREN: And real quick, were you hoping to get booted off?

LAURA KRIHO: Oh, yeah. I was hoping to get booted off, of course. Any good red-blooded American was hoping to ...

TRACIE: But towards the end of jury selection ...

LAURA KRIHO: I was—I was one of the last ones to be selected.

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

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

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

LAURA KRIHO: Her boyfriend jumped out of the van. He went to the casino.

TRACIE: And then she kept driving, and then the police pulled her over.

JAD: They just for whatever reason pull her over?

LAURA KRIHO: But I don't know what she got pulled over for.

TRACIE: They just pull her over. And ...

LAURA KRIHO: 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.

TRACIE: Which they said gave them probable cause.

LAURA KRIHO: To search her purse.

TRACIE: Because now they're thinking, "Oh, does she have a weapon in her purse? Like, what is she trying to hide?" And so the police open up her purse and they start kind of rifling through it.

LAURA KRIHO: At which they found this one ounce of methamphetamine.

TRACIE: And so one of the questions before the jury was is this young woman guilty of possession of methamphetamine beyond a reasonable doubt?

SOREN: So at the end of the trial, Laura and the other 11 jurors got up and went to the jury room to deliberate.

LAURA KRIHO: And so we talked about a lot of things. One of the things I remember we talked about was whether or not the police were lying about, you know, her lunging towards her purse and things like that.

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

LAURA KRIHO: But it was unclear whether it was actually hers or not.

SOREN: Because according to the girl, when her boyfriend got out of the van ...

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

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

LAURA KRIHO: I mean, to me, that's the whole thing. It's element number one of the possession charge is that they have to knowingly possess.

SOREN: So for Laura ...

LAURA KRIHO: If she said she didn't know that she had it ...

SOREN: And it could be her boyfriend's ...

LAURA KRIHO: ... then she's not guilty.

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

LAURA KRIHO: I mean, to me, I just couldn't get beyond that.

TRACIE: And so Laura turned to the other jurors ...

LAURA KRIHO: And I said to them, I was like, "Well, isn't that enough reasonable doubt for you to acquit her?" And 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."

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

LAURA KRIHO: What the girl was looking at as far as a sentence, right?

JAD: But that's not technically what a juror's supposed to do.


SOREN: No. In fact, the judge in this case—and generally, the judge had told them, you know, like ...

LAURA KRIHO: "I'm the one that gets to decide the sentence."

SOREN: ... you don't have to worry about the sentence here.

LAURA KRIHO: "You just have to find out whether she's guilty or not guilty." But I was worried about the sentence. You know, you have—when you're a juror, you have somebody's liberty in your hand.

TRACIE: And so Laura sat down on her computer. She got online, and she found this criminal statute. And to her understanding, this girl ...

LAURA KRIHO: Was looking at two to six years.

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

TRACIE: Also, it's a felony charge.

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

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

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

LAURA KRIHO: "You know, we're here to be the conscience of the community." That's what I told them. "You don't have to convict her."

SOREN: But wait, that seems like—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 KRIHO: Right. Right. Well, that's where everything broke down. [laughs]

TRACIE: Because as it turns out, when Laura started making this argument, a whole series of events set into motion. One of the jurors, apparently, they wrote a note saying, "Laura's in here. She's talking about sentences. She's saying that she's only gonna acquit this girl."

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

SOREN: And then about a month later ...

LAURA KRIHO: The sheriff showed up at my house with a summons for contempt of court.

[NEWS CLIP: Paul Grant represented Colorado juror, Laura Kriho ...]

SOREN: And suddenly, Laura's story caught fire.

[NEWS CLIP: ... after she refused to convict a young woman in a drug case last year.]

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

JAD: Really?

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

[NEWS CLIP: What you are about to see is going to infuriate a lot of you.]

SOREN: ... into this very bizarre ...

[NEWS CLIP: A lone juror tosses out the law.]

SOREN: ... almost like a loophole, like a legal loophole of some kind ...

[ARCHIVE CLIP: I think it's absolutely appalling.]

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

[NEWS CLIP: It is something called "jury nullification."]

[NEWS CLIP: Jury nullification.]

SOREN: 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 by CGP Grey that was like a little explainer thing with an animation. And I think it was like the first thing that was said on the front, on the kind of frozen screen of the YouTube video was, "You can get arrested for talking about this."

JAD: Really?

SOREN: And I was like, "Whoa. Okay, I'm hitting play on that. You know, like, let's go!"

JAD: You can get arrested for talking about this?

SOREN: Well, that ends up being sort of true, but also sort of not, which is what makes it a loophole.

ELIE MYSTAL: Thank you.

SOREN: Yeah, just this way.

SOREN: Anyway, as we dug into it, we figured, you know, we were gonna need some help understanding this thing.

ELIE MYSTAL: So I was thinking that I would start with a little bit of just, you know, kind of what jury nullification is.


TRACIE: So we called up our favorite legal expert.


TRACIE: Mm-hmm.

TRACIE: Elie Mystal.

ELIE MYSTAL: And 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]

SOREN: Yeah. Well, you know what? It's not worth mentioning. Anyways, so Elie ...

JAD: [laughs]

SOREN: Anyway, when we were talking to Elie, the first thing that we asked him was, you know, like, just give us a pure, uncut version of jury nullification.

ELIE MYSTAL: Okay. So a pure aspect of jury nullification would be, let's say I am the defendant. I am accused of stealing a car.

SOREN: Uh-huh.

ELIE MYSTAL: I absolutely stole that car. Everybody saw—they had me dead to rights. They had me on video. My mama said he stole the car.

SOREN: No reasonable doubt.

TRACIE: Your DNA's in the car.

ELIE MYSTAL: Yeah, my DNA's in the car. But I stole the car because my kid was sick and I needed to get to the hospital to take him to the hospital, and I had no other option. And so I smashed the windows to somebody else's car. I hotwired it. I put my kid in the back. I drove to the hospital.

SOREN: Saved his life.

ELIE MYSTAL: Saved my kid's life. Now I'm up for trial from the guy who has the Audi—I live in Westchester. The guy who has the Audi is like, "He stole my car!"

SOREN: Which is true.

ELIE MYSTAL: "I demand justice!"


ELIE MYSTAL: And the jury says, "Yeah, no. No we're just gonna—" The jury would nullify that clear—that clear illegality, that clear crime that I committed.

SOREN: So it's like, yes, he took the car, but the law the way it's written doesn't account for the fact that in this particular case that's okay with us.

ELIE MYSTAL: Right. So that's kind of the pure version of it. And that's the most kind of happy-clappy ...

SOREN: Yeah, it's a very happy version of it.


ELIE MYSTAL: ... version of it, right? I could've stolen Justin Bieber's car. I probably couldn't get convicted in a court for that.

SOREN: Because nobody likes him.

ELIE MYSTAL: Nobody likes him.

TRACIE: Right. [laughs]

SOREN: So 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 supposed victim sort of deserved it. Or they could be saying, we disagree with this law.


JAD: Okay, wait. Something I don't understand is like, so here we have a situation where Laura says she doesn't agree with the sentence. Like, does she or any of the other jurors have, like, a right to do this? Is there like something written in the Constitution that says they can do that?

ELIE MYSTAL: No, there's nothing in the Constitution that direct—that 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.

SOREN: Okay.

ELIE MYSTAL: But it's not exactly a crime.

SOREN: Because, Elie says, a jury is told to do what they think is best.

ELIE MYSTAL: If they think their best is nullifying a law, that's also not exactly illegal.

TRACIE: 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.

SOREN: But eventually that conviction was overturned on appeal because in general, the things that are said in a jury room are protected. They're private.

ELIE MYSTAL: Yeah, so it's not a right. It's not a crime. What it is is a power. And so I think of it kind of like ...

[ARCHIVE CLIP, the X-Men: What kind of monster are you?]


[ARCHIVE CLIP, the X-Men: The Wolverine.]

ELIE MYSTAL: So Wolverine's power is he can detach steel adamantium claws from his hands.

TRACIE: Uh-huh.

ELIE MYSTAL: That's just a fact of Wolverine's life. He just—he has the ability to do this. It's his power. Now is it a right for him to have claws shooting out of his hands? No. Absolutely not. Is it illegal for him to have claws shooting out of his hands? Well, not really, right? It's illegal for him to use them in certain ways, right? So if Wolverine comes into your house and scratches you on the face that's assault. We have a law against—you know, 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.


SOREN: Real quick to the people who care about superhero powers. We know that Wolverine's power is actually the ability to heal, but Elie's point still holds.

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

SOREN: I mean, his simple point is that jury nullification is as fundamental to juries as having claws is to Wolverine.

ELIE MYSTAL: That's just a fact of their existence.

JAD: But they still get in trouble if they use it?

SOREN: Laura did.

JAD: But then how did we end up in this weird place where you can do it? You don't have the right to do it, but you can do it. But if you do it or even talk about it, you might get in trouble. That's just weird.

SOREN: I'm really glad—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 jaunty 1700s-type music?

MATT KIELTY: Coming right up.

SOREN: All right. Now we're in the mood.

JAD: All right, explain.

TRACIE: Yeah, so I ended up finding this guy Jeffrey Abramson.

JEFFREY ABRAMSON: Professor of law and government at the University of Texas at Austin.

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

JEFFREY ABRAMSON: The William Penn trial in 1670, which is really the birth of religious liberty.

TRACIE: I guess we can also cue some sounds of horses on cobblestone streets.

MATT: I refuse to do that.

TRACIE: [laughs] Just do it. Just do the horses. So much better. Thank you. Okay, so in 1670, London, England, we've got a guy, William Penn.

JEFFREY ABRAMSON: So William Penn at the time was a young man. He was a Quaker.

TRACIE: And one day, he's walking through the streets of London.

JEFFREY ABRAMSON: To hold a prayer meeting in Grace Church meeting chapel.

TRACIE: He walks up to the chapel door.

JEFFREY ABRAMSON: But he finds it locked by the authorities.

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

JEFFREY ABRAMSON: It made it a crime to—essentially to be Quaker.

TRACIE: But what Penn does ...

SOREN: Hey, [whistles]


MATT: Okay, one? [bleep] both of you. And two ...

[ARCHIVE CLIP, William Penn: Here ye! Gather 'round, gather round, yes!]

SOREN: Penn starts calling everybody together in the streets.

TRACIE: And as more and more people start to gather ...

JEFFREY ABRAMSON: There is a large throng.

SOREN: Like, 300 or 400 people show up.

[ARCHIVE CLIP, William Penn: Come on, come on!]

JEFFREY ABRAMSON: And so the authorities seize the occasion to arrest him for breach of the peace.

SOREN: And eventually, Penn gets thrown into jail.

JEFFREY ABRAMSON: And he gets a jury trial.

[ARCHIVE CLIP, Judge: The indictment is as follows that William Penn of London ...]

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

JEFFREY ABRAMSON: But the authorities thought they could go underneath the table and just prosecute him for what was the common law crime of breach of the peace.

[ARCHIVE CLIP, Judge: Are you guilty as you stand indicted in matter and form as for said or not guilty?]

[ARCHIVE CLIP, William Penn: I plead not guilty in manner and form.]

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

JEFFREY ABRAMSON: According to law and the evidence he's guilty, but his defense is show me ...

[ARCHIVE CLIP, William Penn: Show me what law in England makes it a crime to worship God in my own way.]

TRACIE: So the jury went off to the jury room.

JEFFREY ABRAMSON: But the jurors come back several times and say, "We cannot agree."

SOREN: What was their hang up?


SOREN: Don't know how inside the heads of those people you can get, but it seems like they just didn't feel like locking him up for that was the right thing to do.

JAD: Even though it was technically against the law.

TRACIE: Right. And so the judge says to the jurors ...

JEFFREY ABRAMSON: "I am telling you that if the evidence shows that Penn preached to a throng on a public thoroughfare ..."]

TRACIE: And he clearly did.

JEFFREY ABRAMSON: "You have to find him guilty of the crime of breach of the peace."

SOREN: And then the judge locks them up in the jury room.

JEFFREY ABRAMSON: Without food, tobacco or rest facilities.

SOREN: For a quote, "considerable amount of time" end quote.

TRACIE: And then finally ...

JEFFREY ABRAMSON: They come back and acquit him.


JEFFREY ABRAMSON: The judge accepts the acquittal, and then orders the jurors to jail for perjury.

JAD: He put the whole jury in jail?

SOREN: Yeah. They get locked up.

TRACIE: But there's one guy in the jury who's like, "This is not cool."

SOREN: So that guy ends up filing an appeal.

JEFFREY ABRAMSON: It went to the highest courts in the realm.

SOREN: All the way to the King's Court.

JEFFREY ABRAMSON: And the chief justice ruled that it henceforth would be illegal to prosecute jurors for a not guilty verdict. So this becomes the start of jury nullification.

SOREN: And what it really was was the birth of this kind of bubble, this protected space called the jury room that you can't punish anybody for what they do in the jury room. So that notion crosses the Atlantic Ocean and becomes a part of the American tradition of law, so that when the colonies are coming up, they have trial by jury and they have juries. And smart people are writing things about how the jury is the place where the people get to decide what happens, and we have to protect that. You can't punish them for what they do. And so you get people like Adams and Jefferson making grand arguments about the role of the jury. And actually, Jeffrey says, one of the things that we get from a jury ...

JEFFREY ABRAMSON: Is freedom of the press.

SOREN: Where in the 1700s, this newspaper guy in New York ...

JEFFREY ABRAMSON: Had supposedly libeled the King or the crown.

SOREN: And to the jury in that case, it was pretty clear that he did.

JEFFREY ABRAMSON: But they decided the law itself is unjust.

SOREN: And boom, there you go. Freedom of the press.

JAD: Hmm.

SOREN: So this idea is sort of baked into our nation's beginning.

JEFFREY ABRAMSON: Of trusting ordinary people to do the work of justice themselves.

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

TRACIE: But then in the mid-1800s, that starts to change because of two things: one, more and more laws are being written, and they're just more complex and complicated and they're just harder for people to understand. Number two, the legal world is becoming way more professional. More and more people are getting legal training, even judges who before didn't have to necessarily have legal training to become a judge, they're getting legal training. And so—and so now judges are seen as the experts in the law. And then what happens is that you see more and more judges sort of take back the power to decide what the law is from the jury.

JEFFREY ABRAMSON: And the United States Supreme Court made clear ...

TRACIE: In a decision in 1895 ...

JEFFREY ABRAMSON: ... 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.

SOREN: And from this, you get the sort of judges' instructions that are given to the jury.

JEFFREY ABRAMSON: And we still have this sort of 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.

SOREN: Now it—they didn't—it wasn't exactly that jury nullification became illegal, and more like just the court kind of pushed it down, made it a sort of unspoken thing. And over the next hundred years or so, it does—I mean, certainly, there's times when jurors sort of 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.

JAD: That's after the break.

[ARCHIVE CLIP, Wolverine: Yes.]

JAD: [laughs]

JAD: Hey, folks. Just a quick note: this story that you're about to hear has in it an interview that contains some threats of violence. Might not be appropriate for sensitive listeners or young children.

JAD: Jad.

ROBERT: Robert.

JAD: Radiolab. So we're talking about jury nullification.

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

JAD: Tracie Hunte and Soren Wheeler are our reporters. And you guys are saying it was underground for a while?


ROBERT: Yeah. Then what happened?

TRACIE: The '90s happened.

[ARCHIVE CLIP, protesters: No justice, no peace! No justice, no peace!]

JEFFREY ABRAMSON: It was a perfect storm of two events, both of them California.

[ARCHIVE CLIP, protesters: Guilty! Guilty! Guilty! This ain't the '60s, it's the '90s, baby!]

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

[NEWS CLIP: We've all seen the pictures of Los Angeles police officers beating a man they had just pulled over.]

TRACIE: In this video, you see Rodney King. He's on the ground, and police are surrounding him and they're kicking him and beating him with batons repeatedly.

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

[NEWS CLIP: Four Los Angeles police officers charged in the beating ...]

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

JEFFREY ABRAMSON: To neighboring Ventura County, where the jury is almost all-white.

TRACIE: And after a months-long trial and weeks of jury deliberations ...

[NEWS CLIP: The jury in the Rodney King case has delivered its verdict, and ...]

JEFFREY ABRAMSON: You get an acquittal.

TRACIE: They acquit the officers.

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

TRACIE: And of course, we all know, like, what happened in LA after that. Five days of riots.

[NEWS CLIP: We've seen rocks and bottles and various things thrown at cars, school buses.]

TRACIE: More than 60 people were killed.

[NEWS CLIP: He is bleeding, unconscious in the street.]

[NEWS CLIP: You can see a white plume of smoke.]

TRACIE: There was about $1-billion worth of damages.

[NEWS CLIP: There are several other plumes just like that in this area. I must say I'm scared.]

TRACIE: We all saw what happened, and it looked very much to African Americans in Los Angeles that these white people in Simi Valley, California ...

JEFFREY ABRAMSON: Had voted race rather than evidence to acquit.

[ARCHIVE CLIP, woman: 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.]

SOREN: So according to Jeffrey, that was round one. And then just three years later ...

[NEWS CLIP: Okay. It's a white—white car.]

JEFFREY ABRAMSON: You get round two.

[NEWS CLIP: We believe that this is the police tracking OJ Simpson's white Ford Bronco. There you see the police cars.]

JEFFREY ABRAMSON: The OJ Simpson trial.

[NEWS CLIP: It all began 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 ABRAMSON: There is massive blood evidence.

[NEWS CLIP: Bloody footprints, one of the bloody gloves.]

JEFFREY ABRAMSON: Massive DNA evidence.

[NEWS CLIP: Blood drops leading up to and inside the house in his bedroom.]

JEFFREY ABRAMSON: And yet a predominantly Black jury ...

[ARCHIVE CLIP, juror: We the jury in the above and title action find the defendant Orenthal James Simpson not guilty of the crime of murder.]


[NEWS CLIP: You heard the verdict. Can we—can we ask your reaction?]

SOREN: So while many Black people thought that a white jury had ignored the law in the Rodney King case ...

[ARCHIVE CLIP, woman: It is a disgrace, I'm shocked.]

SOREN: Now many white people felt that the largely Black jury ...

[ARCHIVE CLIP, man: I think it's absolutely appalling. It gives me no faith in the jury system whatsoever.]

SOREN: ... had done the same thing in acquitting OJ.

[ARCHIVE CLIP, woman: I think he's guilty as hell, and he got off because the jury was mainly Black.]

SOREN: And according to Jeffrey, these two cases together, they sparked a national conversation about jury nullification.

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

SOREN: 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 ABRAMSON: And the most likely explanation is a kind of jury revolt.

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

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

SOREN: Georgetown Law Professor Paul Butler, who was a prosecutor in DC at the time says that's exactly what was happening.

SOREN: Did that feel wrong to you?

PAUL BUTLER: It did—you know, it felt wrong personally, because, you know, like every prosecutor, I wanted another notch in my belt. So yeah, it ticked me off, but the reason they were doing this is because they didn't want to send another young Black man to jail.

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

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

SOREN: And over the years ...

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

SOREN: ... Paul says he started to ask himself ...

PAUL BUTLER: Did I go to law school to put Black people in prison? And for me, the answer became no.

[NEWS CLIP: Well, now a Black law professor is urging Black juries to use nullification in their fight for racial justice.]

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

SOREN: But in cases of nonviolent crimes ...

PAUL BUTLER: ... to endorse it ...

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

[ARCHIVE CLIP: It absolutely is the same as taking the law in your own hands.]

PAUL BUTLER: ... as a political protest.

SOREN: So yeah, I mean that one sort of seems to grow directly out of the racial mix of things that were going on in both Rodney King and in the OJ case. But as this was all bubbling up, there was a group called the Fully Informed Jurors Association that started actually in this tiny butthole of a town in Montana with these, like, super libertarian ...

JAD: [laughs] And you can say that because you are from Montana.

SOREN: Yes, I am from Montana. I am allowed to say that. And they started this group that was basically advocating for jury nullification, writing up pamphlets, you know, sending out things. Eventually, the internet comes along and attention to jury nullification just kind of goes poof! There's claims that jurors in Atlanta in the mid-1990s started acquitting sports—like bookmaker people—defendants on a regular basis, even though, like, in the past those cases had sort of been seen as slam dunks. And in the post-trial interviews, jurors were saying that they saw—the reason was they saw no moral difference between betting on sports and playing, like, the Georgia Lottery. By the time you get medical marijuana initiatives around 1996, all of a 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-right cases during that time.

JAD: So you have, like, this spasm of interest largely because of these two kind of race-related trials, and then suddenly you have it kind of spreading sort of in all these different places.

SOREN: Yeah.

MARK IANNICELLI: Brochure about your jury rights?

TRACIE: And in fact today what you're seeing is this kind of rising activism ...

MARK IANNICELLI: Good morning. Would you like a brochure about your jury rights?

TRACIE: ... around getting the word out about jury nullification.

MARK IANNICELLI: Brochure about your jury rights? Good morning, ma'am. Would you like a brochure about your jury rights?

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

REPORTER: Just say your name and who you are, what you do.

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

MARK IANNICELLI: Yeah, yeah. 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.

TRACIE: Three days a week ...

MARK IANNICELLI: Very cold, very hot. Rain or shine.

TRACIE: ... Mark would show up at the courthouse, and he and some other people ...

[ARCHIVE CLIP, Mark Iannicelli: We're out here today talking about jury rights.]

TRACIE: ... and they would just stand near the steps of the court and hand out these pamphlets that basically say ...

MARK IANNICELLI: That it's your right as a juror to vote not guilty if it's a bad law designed by bad politicians.

TRACIE: You know, you have the right to vote your conscience.

MARK IANNICELLI: The jury's there to represent the conscience of the community.

TRACIE: You have the right to judge the law.

MARK IANNICELLI: You can vote not guilty and not tell anybody. And it's your right and it's perfectly legal. And that's how you get rid of bad law.

ROBERT: And are these people various sorts?

SOREN: Yeah, various sorts. You'll get the kind of guns-rights people, you'll get the libertarians out west.

MARK IANNICELLI: I am with Occupy Denver.

TRACIE: You get, like, Occupiers like Mark, and you might get some, like, racial justice people who think there's too many brown people in jail.

JAD: Hmm.

TRACIE: So jury nullification is a very big tent.

MARK IANNICELLI: see, there's a—there's a prosecutor. You see he's got the LL Bean tote bag? Good morning, sir. Would you like a brochure about your jury rights?

SOREN: But then the thing is here's where we get to the getting in trouble part. Guys like Mark ...

MARK IANNICELLI: We got arrested here.

SOREN: ... who hand out these pamphlets in front of courthouses, they sometimes get arrested.

MARK IANNICELLI: 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 felonies, looking at 21 years in prison.

JAD: Under what grounds?

SOREN: Jury tampering.

TRACIE: Almost always jury tampering. Yeah.

JAD: Huh. But so no one ever says ...

SOREN: No. Once again they can't. They can't.

JAD: ... jury nullification is illegal, because obviously it's not.

SOREN: And so they get—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.

TRACIE: Well actually, Soren. I did find one case.

[NEWS CLIP: A Mecosta County man is facing a five-year felony for obstruction of justice after he says he was arrested for passing out fliers jury rights.]

DAVID COMMON: He had been interested in a case that was going on up in Mecosta County, Big Rapids, Michigan.

TRACIE: This is David Common. He's the attorney representing our main guy here, Keith Wood.

DAVID COMMON: ... prosecuting him over ...

TRACIE: So the case that Keith was interested in, the one that kind of spurred him to head down to the courthouse with these pamphlets, involved an Amish man who got in trouble with the State of Michigan for filling up some wetlands near his property. And he was facing, you know, all these fines and possible jail time. Keith thought this was totally unfair, and so he went online ...

DAVID COMMON: Found a brochure put out by the Fully Informed Jury Association. And made a bunch of copies and just showed up at court on a day that he knew they were scheduled to start a trial. He just handed out his fliers to anybody who wanted them there at the courthouse.

TRACIE: So he's standing outside the courthouse on the sidewalk, but there is a jury selection going on that day. And so when the judge comes into the courtroom and sees potential jurors with these pamphlets he, you know, wants to know what's going on. And then ...

DAVID COMMON: One thing led to another. He found out well, there's a guy out in front of the courthouse handing these things out.

TRACIE: The court officer confronts Keith outside of the courthouse and tells him to stop,

DAVID COMMON: And when he would not stop, the officer finally—the court officer finally told Mr. Wood, "Well, the judge wants to talk to you." And Mr. Wood said, "Well, I don't want to go in and talk to the judge. I'm out here." And the officer basically said, "Well, you're gonna be arrested if you don't come in and talk to the judge."

TRACIE: Mm-hmm.

DAVID COMMON: So then of course under the threat of arrest, he went in. And the judge never asked him a question, never talked to him, and just ordered the—his arrest.

TRACIE: For jury tampering.

DAVID COMMON: And the court set a bond of $150,000 for this man who'd never been in trouble, was married, has seven kids, had his own business in town. And he's not a flight risk at all.

TRACIE: So Dave says a lot of this case hinged on when somebody actually becomes a juror. Are you a juror when you're—when you get a summons and show up to the courthouse? Or are you a juror only once you are actually seated on a case?

DAVID COMMON: The argument of the state has been all along that once you're summoned that makes you a juror.

TRACIE: Mm-hmm.

DAVID COMMON: And it was our position that's not the law. In fact, the statute for jury tampering says you're supposed to be a juror in a case.

TRACIE: Mm-hmm.

DAVID COMMON: [laughs] I think that's pretty clear. We filed motions asking the district court judge, arguing his First Amendments rights and his right to free speech. And the judge ruled against us. And then it ended up going to trial.

TRACIE: The trial lasted about two days. And the jury in this case came back with a guilty verdict in about 30 minutes. He appealed, it got rejected. And now they're waiting to see if the Michigan Supreme Court will take it up.

TRACIE: So, like, what are, like, kind of the larger ramifications of this—of this case?

DAVID COMMON: That I had been surprised by the judges on appeal.


DAVID COMMON: That they don't—you know what I mean? It's a—I don't know. It's almost like it's a very status, don't-mess-with-the-system kind of a—kind of ruling.

TRACIE: Right.

DAVID COMMON: Is really what it's coming down to. Yeah. In fact, Judge Jaklevic, when we had him on the stand had to admit that he was—did what he did because of the content of the brochure and the educational pamphlet Mr. Wood was handing out. That's a blatant First Amendment violation.

TRACIE: Wait. Oh, hold on. Oh, so—so you're talking about the original—like, the judge who originally, like, directed the police to kind of talk to Mr. Wood?

DAVID COMMON: Yeah. Yeah. We called him as a witness during the trial.

TRACIE: Oh! I didn't know that! Oh. Yeah.

DAVID COMMON: Yeah. Yeah. So we had him on the stand ...

TRACIE: Mm-hmm.

DAVID COMMON: ... and he at first tried to argue, "Well, I really wasn't doing it because of the content of what was on there, it was just I didn't want jurors being handed stuff whatever it was." He tried to dance around it, but we put instance after instance of his own quotes, you know, and things he had said himself which made it abundantly clear he was doing it because he didn't like what the—what the pamphlet said.

DAVID COMMON: Regardless of whether or not those in power liked what Keith Wood was doing, that's not the issue. I mean, isn't that the whole point of free speech? And if we're getting to the point where you can't as a citizen hand out information like that, you know, I'm sorry. I don't want to live in a country like that. That's ridiculous.

MARK IANNICELLI: We are now in a First Amendment free speech war.

TRACIE: Okay, Julian. Can you hear me?

JULIAN HEICKLEN: Yes. Yeah, I hear you.


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

JULIAN HEICKLEN: Well, I made nine appearances at this courthouse and was arrested five times.

TRACIE: And he was about 78 years old at this point.

JAD: And he was just handing out fliers?


TRACIE: Did you have, like, a desk or, like, a table set up? Or are you just standing there and you ...

JULIAN HEICKLEN: No, no. I stand up. I have a sign that says "Jury Information," and I just—as they go by, I just pass out this one-page flier.

TRACIE: Do people come up to you when they see "Jury Information?"

JULIAN HEICKLEN: Some do. More of them run away. [laughs]

TRACIE: And 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.

SOREN: And actually, when we talked to him he was in Orlando staying with his friend Mark, and they were heading down to the local courthouse the following Monday to urge people to nullify laws they don't agree with. Basically, because they see nullification as a kind of a check on times when the government or a law goes, in their view, too far.

JULIAN HEICKLEN: We have many cases like this that have shown it. When the slaves—when the slaves were escaping from the South and going up North, people were running them up into Canada. And they were told that they had to return them. After all, the slaves were property. What they were guilty of was theft when they didn't return these slaves.

SOREN: 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 HEICKLEN: They didn't do it. That's how the—that's actually the most important jury nullification case that this country probably ever had is they just let the slaves—they just sent them up to Canada. They were just violating the law out and out. That's the point of having a jury. In fact, Thomas Jefferson made the statement, "The only thing that will save this country is the jury. The only thing."

SOREN: Hey, by the way, if you need to stop and take a drink of water, don't—don't hesitate.

JULIAN HEICKLEN: Well, I need to stop and cry a little.

SOREN: Hmm. Because?

JULIAN HEICKLEN: But anyway let's go on. You don't mind if I cry while we talk about this? This touches me pretty much.

SOREN: I mean, what is it—of course, I don't mind if you cry. I guess I'm curious what is it that's hitting you in that way emotionally?

JULIAN HEICKLEN: Well, I think about—I'm sorry. I think about these cases, and I just can't believe what's happened to this country. I can't believe how corrupt this country has become!

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

JULIAN HEICKLEN: Take drugs, for example. Do you know that we now are the number one prison state in the world? We have the highest percentage of prisoners than any country in the world. That's the United States of America. And of course—but look at the people. 40 percent of the people are in there for drug violations. Why does the government have any right to tell you what you can do with your body? It's the same thing for prostitution. Why should the government be able to tell you whether you can have sex or whether you can't have sex, or why you can smoke a cigarette or why you can't smoke a cigarette? Now I understand why the government tells you you can't shoot somebody else. To me that makes sense. But if you want to shoot yourself that's your business. Anyway, and I'll tell you something: we're going to the courts even though—to pass out this literature on Monday in Orlando, that's why I'm down here. And I've been in contact with a judge and he's been in contact with me, and he's informed me that if I show up I'll be arrested. So of course, I'll probably ...

SOREN: What's the case in Orlando?

JULIAN HEICKLEN: ... have 50 or 100 people along—I hope along with me.

TRACIE: Julian, so you're gonna be—is that what you're doing at the courthouse? Are you gonna be passing out the jury pamphlets?

JULIAN HEICKLEN: That's exactly right. And the judge has promised us that we'll be arrested.

TRACIE: And I ...

JULIAN HEICKLEN: I'm asking all my people to come with guns and shoot the cops that come after us.

SOREN: You're not serious about that, are you?

JULIAN HEICKLEN: I am serious.

SOREN: Well, I mean, that—that would be the thing that you just said you understand why the government would stop someone for—I mean, that crosses a line, don't you think?

JULIAN HEICKLEN: The point is there comes a time when you've gotta stop it, and I think that time is December 5. It's gotta be ended. You gotta start killing the police and the guards and hopefully the judges until they learn how to behave.

SOREN: Well, but that's not justice either.

JULIAN HEICKLEN: 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.

SOREN: I have a hard time believing that you believe ...

JULIAN HEICKLEN: There's no reason why I should be arrested and taken away. And if they're gonna try and do it, I want them killed. It's just that simple.

SOREN: But you realize—I have a hard time believing that you believe that that deserves killing a court clerk who has a family.

JULIAN HEICKLEN: Come down and try to arrest me. They've been warned. 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.

SOREN: Well, I think that if your vision ...

JULIAN HEICKLEN: And I hope to see that it's ended on December 5. We just can't put with it anymore.

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

JULIAN HEICKLEN: I'm not gonna do anything. It's only if they do something.

SOREN: Well, okay.

JULIAN HEICKLEN: No matter what we have to do, it's not gonna happen again.

SOREN: Julian, I'm gonna interrupt you there and just say, you know, I think—I think we're probably best off just ending the conversation and letting our microphone person go home, and letting me ...

JULIAN HEICKLEN: Anyway, you've heard my opinion. It's not only my opinion, it's my intention.

SOREN: Yeah, we hear you. We got it.

JULIAN HEICKLEN: Okay. Thank you very much for having me.

SOREN: Okay. Thank you.

TRACIE: Thank you, Julian. Bye.

JULIAN HEICKLEN: You're welcome. Bye-bye.

SOREN: Holy!

TRACIE: Oh my God!

SOREN: Do you have the tape syncer's number?

TRACIE: Yes, I do.

SOREN: You want to just give them ...

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

JAD: Wow.

SOREN: Yeah.

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

TRACIE: Yeah, so 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 him or Mark.

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

TRACIE: No, it was just them. Nobody else showed up. And 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 then 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. And he was charged with threatening public workers, assault and trespassing.

ROBERT: So what happened then?

TRACIE: So 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: Hmm. Did—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 like it did for me a little bit.

TRACIE: My answer will be really short: no. [laughs]

JAD: No. Okay. Why no?

TRACIE: I think he just sort of sounds like an angry, frustrated person. He's angry about people not letting him talk about what he wants to talk about in front of a courthouse.

JAD: Hmm. Soren?

SOREN: Honestly, I guess not. I mean, I did hear when I was talking to him, I mean, partly because I was—had been thinking about jury nullification sort of in almost heroic terms as like this chance to stand up against an unjust law. And this conversation just made me realize it can also—it also, like, kind of gets twisted up with this really deeply anti-government idea. You know, like, you talk to these people, and you hear arguments that sound like "Burn it down."

JAD: That's my problem.

SOREN: And that burn-it-down instinct was always at a distance for me, and it felt just much, much closer.

JAD: Yeah, that's kind of my—when I hear that tape, I think that's the strain and that's the kind of thinking that you bump into a lot that I find one of the most frightening things. I find it more frightening than almost anything.


JAD: That idea that, like, we the people should—should be—should be triumphing over everything. Like, I find that to be a really scary idea that pops up.

ROBERT: It's funny because I think like Tracie, I've always thought of this as checks and balance kind of thing. Like, you'll have a system where you have a legislative branch, it passes laws. Sometimes the laws are—are ill-conceived or circumstances change, or you find out a consequence of the law, that, you know, people of one race are constantly going to jail and people of another race aren't. Or getting electrocuted or not. And then you get these—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." And that's like, if you don't have that, then the legislators don't get that little prick in their little bubble to learn.

JAD: I totally hear you. I mean, I've never advocated for going along with a bad law. And I think our—we are 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. You know, it's like that's

ROBERT: That's jury nullification, too

JAD: That's absolutely jury nullification, and that's like—that is—that is the history of post-Reconstruction South, you know?

ROBERT: Mm-hmm.

SOREN: Yeah, but you can make those same arguments on the other side. And we're gonna get into that right after this quick break. Stick around.

JAD: I'm Jad Abumrad.

ROBERT: I'm Robert Krulwich.

JAD: This is Radiolab.

SOREN: And I'm Soren Wheeler, here with Tracie Hunte. And today we are talking about jury nullification. And when we left we were—you guys, we were getting into a sort of a debate about whether jurors having this power is a good thing or not because, you know, it can definitely let people sort of lean into their racial biases and make judgments based on race or gender or whatever, even in the face of the facts or against the facts, against the law. But next I want to make the case that there are actually times when the jury having this power can prevent that kind of discrimination.

[ARCHIVE CLIP, Sonia Sotomayor: Think about what juries did during the Civil Rights Movement.]

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

[ARCHIVE CLIP, Sonia Sotomayor: 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.]

ELIE MYSTAL: 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.

SOREN: This is once again, Elie Mystal, legal editor at the WNYC show More Perfect.

ELIE MYSTAL: The older I get, the more comfortable I become with the idea of an unelected white man sitting in judicial robes deciding everything, as opposed to 12 random jerk-offs from the street.

JAD: Really?

ELIE MYSTAL: I say that knowing full well that that is a horribly elitist and kind of terrible for that reason solution to the problem.

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

ELIE MYSTAL: It concentrates power into mostly white hands, and concentrates power into the system when we're saying that one of the only benefits of jury nullification is to be a check on the system, right? If you look at it only from the perspective of the defendant, then jury nullification seems like a great way to protest the system, right? But I'm kind of—I've started to look at things more from the perspective of the victim: which victims are getting justice and which victims are not?


ELIE MYSTAL: And when I start to look at it from that angle, what I see is juries nullifying cases when the victim is of color.

SOREN: Mm-hmm.

ELIE MYSTAL: 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! And one of the reasons why it's really hard is the jury.

SOREN: Yeah.

ELIE MYSTAL: Is the jury sitting there talking about, "She was asking for it," talking about, "What was she wearing?" Talking about, "Why was she out that late any damn way?" Right? That's not—that's a jury doing that to the woman as much as any other part of the system.

ELIE MYSTAL: So when I think about it from the perspective of the victim, and how is—what are the avenues of justice for the victims. If you're a person of color, if you're a minority, if you're an other, I feel like the jury makes it very hard for you as the victim to get justice. I feel better about the judge not caring if the people that you shot happen to be white or Black. A jury cares a lot about that. If you can't convict a cop when you know he did it, when you saw him do it, when you can't convict the cop who shot Walter Scott, when you can't convict—you can't even indict the cop who choked Eric Garner to death in broad daylight, that to me requires a much more drastic rethink of how we do things in this country. And to me, the first people to go have to be these G-D jerks!

JAD: I find that really persuasive.

ROBERT: I don't. And I—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. One time I was in a murder case. Some man had been accused of stabbing a woman 22 times and she died on ta staircase. And the forewoman, and in New York, they just pick the person who's picked first becomes the foreperson. So she came in, she sat down and said, "Look, how many of you noticed, like, the defendants' lawyer was asleep a lot of the time?" Every hand went up. We'd all seen this. And she said, "Here's—here's what I want you to do. Let's go back over everything that we know and essentially retry the case." And we—we actually—we went together through every bit of evidence, looking for some doubt somewhere. We staged the stabbing, we went back over the distances, whether—could the guy have gotten from here to there in that amount of time? I live in that neighborhood. I don't think you can, maybe you can. We basically did the job of the court all over again ourselves, and when we were done she said, "Okay, let's vote now."

ROBERT: And when it became clear to the forewoman that we were gonna convict because she was counting the votes, and finally the 12th vote went to convict, she—she was shorter than her chair, so 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'd 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. So we're all standing there. She asked us to hold hands, and then she looks up at the ceiling. And it's one of those ordinary rooms, and she addresses the—the woman who was killed, and she says, "We have spent the last few days trying to do something that is just. And you were there. You died at his hands. Or didn't. We've decided that you did, and we hope and we pray that this is a system that works, and that you are getting justice." And then she said, "God bless America."

JAD: Wow! 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.

JAD: Big thanks to producers Soren Wheeler and Tracie Hunte.

SOREN: And we should say a couple thanks to, first of all Jeffrey Abramson. His book is called We the Jury. And also Judge Fred B. Rogers in Colorado.

TRACIE: Nancy Marder, a law professor at Chicago Kent College of Law.

SOREN: Valerie Hans, professor of law at Cornell Law School.

TRACIE: Paula Hannaford with the National Center for State Courts. And Robert Lewis in the WNYC newsroom for helping me out with some public record stuff.

SOREN: So much of what we learned and the sort of spark for this whole story came from a video by CGP Grey. There's actually a whole YouTube channel and a ton of videos, and they are all amazing. I watch them all the time. There's tons of great stuff in there. You should definitely go check it out. CGP Grey on YouTube. And one more quick note, Laura Kriho, the woman from the beginning of the story, the juror who got punished, she actually passed away and we just wanted to say what a pleasure it was to talk to her, and how lucky we feel to have been able to tell her story.

LATIF: And one last thing before you go: if you enjoyed this episode, there's a series from our down-the-hall neighbors On the Media that we think you will love. It's called "The Divided Dial," and it is a deeply-reported series. And it—yeah, it shares a lot of big themes and big stakes.

LULU: Yeah, it basically looks at the rise of the sort of political right's domination of the radio airwaves. I mean, 12 out of the 15 top radio hosts lean right. And it looks at the ways in which this form, this form we all love—audio, radio—can kind of gain its power from having a slightly stealth imprint on the world. Like, a lot of radio shows aren't archived and transcripts aren't searchable, so people can say things to millions of listeners without other people monitoring it. And it's just really well done. Every second of that thing is well-written, well-reported. It's hosted by the incredible reporter Katie Thorton. The final episode is out, so it's a great time to go binge the whole thing, get a sense of the whole picture.

LULU: And as a little teaser, in that final episode, we do actually hear from the force behind many of these shows and stations, Phil Boyce. He is the VP of a company called Salem.

[PHIL BOYCE: The difference with Salem is even though we always want to make money, and we do make money, we're in this to save America.]

LULU: Again, the series is called "The Divided Dial." It's from On the Media, and you can find that wherever you listen to podcasts or on the website, And there are also links to it in the liner notes for this episode that you are listening to right now. And we're over at

[LISTENER: Radiolab was created by Jad Abumrad and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Dylan Keefe is our director of sound design. Our staff includes: Simon Adler, Jeremy Bloom, Becca Bressler, Rachael Cusick, Ekedi Fausther-Keeys, W. Harry Fortuna, David Gebel, Maria Paz Gutiérrez, Sindhu Gnanasambandan, Matt Kielty, Annie McEwen, Alex Neason, Sarah Qari, Anna Rascouët-Paz, Sarah Sandbach, Arianne Wack, Pat Walters and Molly Webster. With help from Andrew Viñales. Our fact-checkers are Diane Kelly, Emily Krieger and Natalie Middleton.]

[LISTENER: Hi, this is Ellie from Cleveland, Ohio. Leadership support for Radiolab's science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, a Simons Foundation initiative and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.]


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