JAD ABUMRAD: Hey, I'm Jad Abumrad.

ROBERT KRULWICH: I'm Robert Krulwich.

JAD: This is Radiolab. And today we're gonna—we're gonna tiptoe into some territory that's sort of new for us, new-ish, which is we're gonna talk about legal battles at the Supreme Court.

ROBERT: And we're gonna bring you two stories from the Supreme Court. One is actually from our new spinoff show that Jad is doing, which if you haven't heard is called More Perfect, and it's a mini-series dedicated to the Supreme Court. If you like the piece you're gonna hear at the end of this episode, you should totally check it out at Radiolab.org/moreperfect.

JAD: Okay, but first to get us rolling, we have the story of a little girl who became a very, very big deal.

ROBERT: How big a deal did this little girl become?

JAD: A very big deal to about 500-something nations. And Tim Howard, our intrepid producer, is gonna tell us this story.

TIM HOWARD: So I first—I first heard about this story, I saw it listed on the Supreme Court docket for cases that they were gonna be hearing.

MARCIA ZUG: Well, the name of the case is Baby Girl v Adoptive Couple.

TIM: Actually, in strict legal parlance, it's called Adoptive Couple v Baby Girl.

MARCIA ZUG: So it's not particularly catchy.

TIM: Can I say it's a weird name, though. It's hard to—it's hard to picture.

MARCIA ZUG: Yeah.

TIM: So this is Marcia Zug.

MARCIA ZUG: Associate professor of law at the University of South Carolina.

TIM: And she wrote about this case in Slate. And it stood out to me because, you know, it just seemed odd at first that this would even be a Supreme Court case. It seemed more like a straightforward custody case.

MARCIA ZUG: Right.

TIM: But when you dig in ...

MARCIA ZUG: [laughs] There's a lot going on here.

[ARCHIVE CLIP, man: Crusades.]

[ARCHIVE CLIP, woman: Text messages.]

[ARCHIVE CLIP, man: State laws.]

[ARCHIVE CLIP, woman: Errors.]

[ARCHIVE CLIP, man: Children.]

[ARCHIVE CLIP, man: Supreme Court.]

[ARCHIVE CLIP, man: Christopher Columbus.]

JAD: [laughs] Christopher Columbus.

TIM: And it is not straightforward at all.

JAD: Apparently not.

TIM: So let me walk you through it the way that I learned about it. The story begins with a couple.

MARCIA ZUG: Matt and Melanie Capobianco, they are a couple who live down here in South Carolina.

TIM: He's a technician at Boeing, she's a developmental psychologist.

MARCIA ZUG: Nice middle-class white couple.

TIM: They're in their late-30s.

MARCIA ZUG: And ...

TIM: They really wanted to have a kid.

MARCIA ZUG: They had gone through, you know, infertility problems, so ...

TIM: Eventually ...

MARCIA ZUG: ... they decide to adopt.

TIM: Enter a woman named Christy Maldonado. She lives about a thousand miles away.

MARCIA ZUG: I believe she's in Oklahoma.

TIM: She's in her 20s, already has a couple kids.

MARCIA ZUG: She's pregnant and decides that she wants to give the baby up for adoption, and she picks the Capobiancos. And everyone seems happy.

TIM: The Capobiancos get the baby, and they name her Veronica.

MATTHEW CAPOBIANCO: We used to call her "Boss Lady." Not a lot, most of the time it was ...

MELANIE CAPOBIANCO: Our family called her that.

MATTHEW CAPOBIANCO: Yeah. [laughs]

TIM: Boss Lady.

MELANIE CAPOBIANCO: She bosses everybody around.

TIM: This is Matt and Melanie Capobianco.

MATTHEW CAPOBIANCO: But you were happy to do whatever she told you to do because she's just the poster child for a proud father, you know?

TIM: Hmm.

MATTHEW CAPOBIANCO: But it's just gone as wrong as it could have possibly gone.

TIM: This is basically how it unfolded on TV news.

[NEWS CLIP: Back in session. On the docket today, a young child ripped from the arms of the only parents she's ever known ...]

[NEWS CLIP: ... and turned over to the Native American biological father she has never met.]

[NEWS CLIP: A man Veronica had never even met.]

TIM: What happened is when Veronica was two ...

[NEWS CLIP: Her biological dad turned up ...]

TIM: ... seemingly out of nowhere. And according to these clips hadn't been around for two years, had abandoned the child. And now he's asking for custody. And he gets it.

[NEWS CLIP: And the court is making them stand by and just let it happen.]

JAD: Why?

TIM: Well, it's mainly because of this law.

MARCIA ZUG: The Indian Child Welfare Act.

[NEWS CLIP: The 1978 Indian Child Welfare Act.]

TIM: Dustin, the dad, he's Cherokee.

MATTHEW CAPOBIANCO: He's a part of the Cherokee Nation.

TIM: So that makes his daughter Veronica eligible to be Cherokee. And the law is designed ...

[NEWS CLIP: ... to keep Indian families together.]

TIM: It gives preference to Indian kids staying with Indian parents. So even though he'd actually signed papers agreeing to the adoption, he was able to invoke this law and get custody of Veronica.

JAD: He signed his custody away, and he's able to then use his Cherokeeness to reverse the rights he signed away?

TIM: Just hang on.

JAD: All right.

TIM: This is all going to make sense.

JAD: Okay. But he takes the kid, is what you're saying.

TIM: Yeah. New Year's Eve, 2011. With cameras rolling, Dusten Brown drives his pickup truck into Charleston.

[NEWS CLIP: Matt and Melanie Capobianco clutch the two-year-old Veronica. This could possibly be the last time they hold their baby as her mom and dad.]

TIM: And that evening, Veronica is transferred to Dusten.

[ARCHIVE CLIP, Melanie Capobianco: I didn't feel like we have enough time for her to be not afraid when she's ...

[ARCHIVE CLIP, Matthew Capobianco: We left her with strangers.]

[ARCHIVE CLIP, Melanie Capobianco: Yeah. When she—I mean, to her they're complete strangers. And I can't imagine that she's not gonna be terrified.]

TIM: And as Dusten gets into the truck, holding his two-year-old daughter for the first time, a reporter asks him ...

[NEWS CLIP: Do you think this is in her best interest?]

TIM: And this is all you hear from him.

[ARCHIVE CLIP, Dusten Brown: I think so. We need to give her a ...]

[NEWS CLIP: Thank you. Have you ever seen the child before?]

[NEWS CLIP: They declined any further comment on camera.]

TIM: He gets into the truck with Veronica, and they drive away back to Oklahoma.

TIM: Can I—can I ask you what was the—when was the last time that you spoke with Veronica?

MATTHEW CAPOBIANCO: The day after. The day after the ...

MELANIE CAPOBIANCO: Transfer.

MATTHEW CAPOBIANCO: Transfer. We spoke to her for about two minutes, and we told her we loved her. And she said, "I love you Mommy and I love you Daddy." And ...

TIM: And that was 16 months ago.

JAD: And how long was Veronica with them again before this happened?

TIM: About two years.

JAD: Oh, man. That's hard.

TIM: Yeah. And, you know, when I first heard about this case, that's basically the only way I thought of it, you know, is just that's a crazy injustice. That's basically all I saw in it.

MARCIA ZUG: And if you're someone who has no background in this, then you see a case like the baby Veronica case and you're like, "Whoa! Where is this coming from? How can this possibly be okay?"

TIM: That's Marsha Zug again. And her article for Slate kind of caught me off guard because the title was "Doing What's Best for the Tribe. Two-year-old Veronica was ripped from the only home she's ever known. The court made the right decision."

MARCIA ZUG: Yeah. So one of the things that I think is important to realize is that the problems that ICWA was intended to address didn't stop happening that long ago.

TIM: And this is where the story turned into the biggest rabbit hole I've ever fallen into.

JAD: [laughs] What did she tell you?

TIM: I mean, Marcia basically said the only way you can begin to wrap your mind around what's right and what's wrong in this story is to go back to the '60s.

TIM: Hi. How you doing?

BERT HIRSCH: Good. How are you, Tim?

TIM: Great to meet you.

TIM: And to this guy.

BERT HIRSCH: Bert Hirsch. I'm a lawyer.

TIM: He lives in Long Island now, which is where I visited him, but in 1967 ...

BERT HIRSCH: The fall of '67, I was on the staff of the Association on American Indian Affairs.

TIM: Sort of a legal advocacy group for American Indians. And he traveled all over, working with different tribes.

BERT HIRSCH: And ...

TIM: One day, he gets a phone call from this guy Louis Goodhouse.

BERT HIRSCH: The tribal chair of the Devils Lake Sioux Tribe in North Dakota.

TIM: And this guy says, "I really need your help."

BERT HIRSCH: He said there was a child.

TIM: A Devils Lake kid, one of ours, that was just abruptly taken away by social workers.

BERT HIRSCH: The Benson County, North Dakota Social Services Agency came in, and they took little Ivan Brown away from his grandmother.

TIM: He was six.

TIM: What was their stated reason for taking Ivan away?

BERT HIRSCH: Neglect.

JAD: Because what? Because grandma wasn't—wasn't around?

TIM: No, actually. Bert says that the social workers were looking for that classic nuclear family.

BERT HIRSCH: Biological mother, biological father, children.

TIM: So when they saw him with an older relative but no Mom or Dad, they thought "Uh-oh," and they took him away.

BERT HIRSCH: The tribal council was extremely upset by this. They wanted to fight a battle about this.

TIM: Bert took the case. Fought it in court.

BERT HIRSCH: We won that case, by the way. Mrs. Alex Fournier, she got Ivan back.

TIM: But he began to wonder how widespread is this?

BERT HIRSCH: So from '67 to the end of '68 into '69 ...

TIM: He visited ...

BERT HIRSCH: Tribe after tribe after tribe.

TIM: Doing interviews. And he says that everywhere he went, he would hear these stories.

DEB WELLS: I remember it vividly.

TIM: This is Deb Wells. She's a member of the Rosebud Sioux Tribe. And when she was 10 years old, a car pulled into her driveway.

DEB WELLS: And they come driving in—social workers. And they got out of car. And I told my brothers and sisters, I said, "Go hide." And they had to drag us out from underneath the bed. because we got around and got in the house. Well then they took us to Scotts Bluff and put us in a foster home. It was horrible.

MARLA JEAN BIG BOY: This was just part of every native family's history.

TIM: This is Marla Jean Big Boy. She grew up on the Pine Ridge reservation in South Dakota.

MARLA JEAN BIG BOY: I remember when I was young, we'd go to one of the border towns and my grandma would say "Stay in the car. Lock yourself in. Don't get out of the car. I'm going into the trading post because they're gonna steal you."

TIM: Really?

MARLA JEAN BIG BOY: Yeah.

BERT HIRSCH: What we found is that on every reservation ...

MICHAEL EVANS NO HEART: My name is Michael Evans No Heart. I'm Hunkpapa Lakota from Standing Rock reservation.

BERT HIRSCH: Couldn't not find a family that didn't know of a child in placement.

MICHAEL EVANS NO HEART: Social Services came and took me and my sister, and told my mother and dad that they were taking us into Selfridge for a physical checkup. And they never got us back.

JAD: Wow.

TIM: Michael says that his dad spent the next 30 years looking for him. In any case, Bert would ask these people that he was interviewing what reason did the social workers give you for taking the child? And the answers that he got ran the gamut.

BERT HIRSCH: Conditions of poverty. Alcoholism.

TIM: Overcrowding.

BERT HIRSCH: Maybe they don't have adequate ventilation in the house.

TIM: No indoor plumbing. But in most cases, he says, the reasons wouldn't have stood up in court.

BERT HIRSCH: If they could, they tried to fight it.

TIM: But they usually couldn't afford to.

BERT HIRSCH: Look, the tribal people are poor, so we began to do a statistical collection of data state by state.

TIM: Asking how many Indian kids are in foster care.

BERT HIRSCH: Foster care and adoptive placement. And institutional placement—juvenile facilities.

TIM: And what he arrived at at the end of that analysis is a pretty shocking number.

BERT HIRSCH: About one-third of Indian children were in out-of-home placements in non-Indian settings.

ROBERT: Whoa.

JAD: One-third?

BERT HIRSCH: 25 to 35 percent of Indian children nationwide were in out-of-home placement.

JAD: That's a real number?

TIM: That is the real number. That's the number you see cited again and again.

BERT HIRSCH: Everybody thought that it was their own personal tragedy. Nobody realized that this was a pattern and a practice that was decimating these tribes.

JAD: Wait a second, wait a second. How would this happen on this scale?

TIM: Well, this is basically social workers very much acting in the spirit of the day, because you have to keep in mind that in the '50s and '60s, you have all these government policies that are put in place whose entire purpose is basically to try to once and for all "solve" this Indian problem that's gone on and on. You've got this guy in 1953 who's a senator from Utah who starts basically trying to terminate the tribes.

JAD: You mean like take away their sovereignty?

TIM: Yeah. He goes tribe to tribe trying to convince them or force them, tell them they have no—there's no way out of it. He argues that this will be best for all of them.

ROBERT: I remember this. This was like out of "E Pluribus Unum." Like, to integrate them into the whole.

TIM: They will melt into the wider culture. That's what will save them. Part of the social workers that were working this period, they were working under the auspices of this thing called the Indian Adoption Project.

JAD: Hmm.

TIM: Which was very much about that idea of, like, you take these kids from their poor conditions, and you connect them directly to white families that are looking to adopt.

JAD: So part of this was definitely top down.

TIM: Very much. In any case, the end result of this is that a third of these kids are being taken away.

TERRY CROSS: There were literally communities where there were no children.

TIM: That's Terry Cross. He's the executive director of the National Indian Child Welfare Association.

TERRY CROSS: In Minnesota, there were communities where there were no children. In Alaska, there were communities where there were no children.

MARCIA ZUG: I mean, what is a culture except, you know, the ideas and traditions that you pass on to your kids.

TIM: That's Marcia Zug again.

MARCIA ZUG: If you are hemorrhaging your children, then you're gonna disappear.

TIM: So what do you do?

BERT HIRSCH: Well, it's too massive a problem if you're trying to fight all these removals of kids on a case-by-case basis. Forget about it. A national law is needed.

TIM: So Bert spent years ...

BERT HIRSCH: ... walking the halls of Congress, literally.

TIM: Endless lobbying, Congressional hearings, until finally ...

MARCIA ZUG: The Indian Child Welfare Act is passed by Congress in 1978.

TIM: So it does a lot, but basically when it comes to adoptions ...

MARCIA ZUG: ICWA has placement preferences. So the first preference would be with the immediate family. So you're removed from Mom, you're placed with Dad, or maybe with Grandmother.

TIM: If they say no ...

MARCIA ZUG: Second preference would be someone else in the tribe. And the third is any other American Indian.

TIM: Wow.

JAD: Any other?

TIM: Yeah.

MARCIA ZUG: And then after that, then the child could be placed with, you know, another family. By and large, most of us think that ICWA was probably the best federal Indian law ever passed. It did the most to help Indian tribes, respect tribal sovereignty and really fulfill the United States's trust relationship with American Indian people.

TIM: But now, because of this case, that law may be in jeopardy.

JAD: We'll continue in a moment.

[LISTENER: This is Jean Pelletier in Boston, Massachusetts. Radiolab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org]

JAD: I'm Jad Abumrad.

ROBERT: I'm Robert Krulwich.

JAD: This is Radiolab. Today, a look at a Supreme Court case that may determine the future of a law called the Indian Child Welfare Act or ICWA. Story comes from producer Tim Howard. Back to him.

TIM: So in April, I went to this conference in Tulsa.

[ARCHIVE CLIP, conference: Good morning directors, Council of Elders.]

TIM: Big room. There were about 700 people there. Most of them work in child welfare organizations in Indian communities around the country. There was some traditional Cherokee drumming, there were films, workshops. And all anybody could talk about was this case.

[ARCHIVE CLIP, speaker: But there's no issue bigger now than how the baby Veronica case may affect the Indian Child Welfare Act.]

[ARCHIVE CLIP, speaker: So please, please do keep baby Veronica and her family in your prayers.]

TIM: Everybody was on edge.

TERRY CROSS: Well, I'm really worried in this situation.

TIM: This is Terry Cross again, and he's one of the organizers. And he told me that look, the Capobiancos ...

TERRY CROSS: I feel for them, but in what world is it okay for one family who feels they were damaged by a law to put thousands of other children at jeopardy for their own hurt. I can't imagine a world where that's okay.

MELANIE CAPOBIANCO: Well I mean, it's hard for us to say that because, you know, that's not what motivated us.

MATTHEW CAPOBIANCO: Our daughter is what's motivating us.

MELANIE CAPOBIANCO: How we feel? We just feel that, in this case, it was a beautiful law that was put into place to prevent the breakup of families, Indian families, and I just think it wasn't really supposed to be applied to a situation like ours.

TIM: They say ...

MELANIE CAPOBIANCO: But ...

TIM: ... we get that there's a huge historical wrong here, but what does that have to do with us?

JAD: Yeah.

TIM: You know, they say this is a law that was created to protect Indian families, right? But here you've got a Hispanic birth mom, you got a white couple, and then you got a dad who's out of the picture. So you're not actually protecting an Indian family, you're forcibly creating a new one.

MELANIE CAPOBIANCO: Absolutely. I mean ...

TIM: And in the process, you're breaking up a loving home.

MELANIE CAPOBIANCO: I don't think that was the intent of the law ever.

MARK FIDDLER: My personal opinion is that ICWA has outlived its usefulness, and causes more problems than it solves.

TIM: This is Mark Fiddler.

MARK FIDDLER: I'm one of the attorneys for Matt and Melanie Capobianco.

TIM: He also happens to be Native American himself.

MARK FIDDLER: I'm an enrolled member of the Turtle Mountain band of Chippewa Indians. That's a reservation up in North Dakota, right on the border with Canada. You know, so I kind of had a foot in two cultures, so to speak. I go back to the rez in the summer.

TIM: Mark actually used to argue the other side: that the most important thing was to keep Indian families together. But then ...

MARK FIDDLER: I had a case in, I think it was '94.

TIM: Which gave him pause.

MARK FIDDLER: Boy, that's a good word.

TIM: It was a case in which this young American Indian girl ...

MARK FIDDLER: Sierra.

TIM: ... wanted to be adopted by this white couple, and Mark opposed it.

MARK FIDDLER: Even though in my heart of hearts, I knew it was probably not the right thing for the child.

TIM: He won the case. She was removed from the couple's home.

MARK FIDDLER: And as Sierra would tell you herself, she had—she had a really rough life.

TIM: She bounced in and out of more than 20 foster homes, ran away many, many times, and got into serious trouble with the law.

MARK FIDDLER: And it always nagged me.

TIM: Mark says even though the tribes have suffered, that doesn't change the fact that if you take a kid out of a loving home, you're gonna cause her real harm. And he says that's why he took this case.

MARK FIDDLER: Because the Capobiancos, you know, they are among the most loving people I know.

TIM: He said they did everything you could ask.

MARK FIDDLER: They're just amazing people.

TIM: They met the birth mother, Christy Maldonado, when she was pregnant. They got to know her.

LORI MCGILL: She felt a connection to them.

TIM: That's Lori McGill. She's represented Christy since last year.

LORI MCGILL: And they were also willing to have an open adoption.

MATTHEW CAPOBIANCO: Yeah, we still have a relationship with Christy. We—we love her to death.

TIM: When Christie gave birth to Veronica ...

LORI MCGILL: They were there with her in the delivery room.

MATTHEW CAPOBIANCO: Yeah. I mean, the day she was born, I cut the cord.

TIM: That's such a degree of intimacy, that I ...

LORI MCGILL: I know. I mean, having given birth twice myself, the idea that anyone other than my husband would be in the room is kind of scary. But it gives you some idea of how she felt about the Capobiancos.

TIM: Now as for Dusten Brown, Veronica's biological dad, a couple months before she was born, Christy, the birth mom, sent him a text message asking him ...

LORI MCGILL: If he wants to pay child support or he wants to waive his rights.

TIM: And he replied, "I'll waive my rights."

LORI MCGILL: Rather than pay a dime in child support.

JAD: Well, there's a contrast. So in the beginning, it sounds like he did not want to be a dad.

TIM: Yeah. And then actually a few months later, he seems to make it even more official by signing a form agreeing to the adoption.

JAD: And then he changes his mind?

TIM: Yeah. You know, and obviously, I was wondering what was he thinking? Because you can't avoid the fact that how you feel about this guy is gonna influence how you feel about this law.

JAD: Yeah.

TIM: And so I was trying to get in touch with him. I was pestering his lawyers. You know, will he do an interview? This went on for weeks, and they were basically like, he doesn't want to do interviews. He doesn't want to talk.

JAD: Yeah. So you didn't get him.

TIM: [sighs] Yeah, I got him.

JAD: [laughs] Good.

TIM: So shortly before we were gonna wrap this story, I get an email saying, "Come to Oklahoma." So I went. He lives in this one-story house on this tree-lined block in a small town north of Tulsa.

TIM: Hey, how's it going?

DUSTEN BROWN: How are we doing? Doing good.

TIM: Okay.

TIM: We go inside, and the first thing he tells me ...

DUSTEN BROWN: Right now, my daughter, she's not here.

TIM: ... is that Veronica is not there.

TIM: Oh no! I was excited to meet her.

TIM: She was out with his wife Robin.

DUSTEN BROWN: She goes out with my wife.

TIM: Turns out, he's remarried. In any case ...

TIM: Test, test, test. All right.

TIM: ... we sat down at the kitchen table and started talking.

TIM: Do you want to just tell—do you mind introducing yourself and tell me, like, where we are?

DUSTEN BROWN: I'm Dusten Brown. We're in Nowata, Oklahoma. This is my house. I'm part of the Wolf Clan.

TIM: Wolf Clan is one of the seven Cherokee clans.

DUSTEN BROWN: And my name Dusten means "Brave warrior" in Cherokee. And I actually, you know, joined the Army up and go over to Iraq. I'm like, "Wow, I'm here for the Cherokees. I'm the brave warrior out in, you know, desert."

TIM: He's been a registered member since he was a little kid. His parents were members and their parents. And he said he's proud to be Cherokee basically because it means that he's from where he lives.

DUSTEN BROWN: It's a big deal to me.

TIM: So anyway, we started talking about the case and, you know, it gets complicated. There's a lot of detail. I'm not gonna go into all of it, but basically he and Christy Maldonado, the birth mom ...

DUSTEN BROWN: We've known each other since we were 16. We've dated off and on throughout ...

TIM: 2008, he joins the Army.

DUSTEN BROWN: Basic training.

TIM: He lives on a base. It's four hours away.

DUSTEN BROWN: About four hours south.

TIM: And Christmas time that year, he basically says let's get serious.

DUSTEN BROWN: Got down on one knee and proposed to her. Said, "Hey, I want to bring you into my life." She said, "Okay, that's just great." And almost a month later, she sent me a message saying that she was pregnant. And I was excited. I mean, to have children with her was one of the things I wanted at that time. Told her I can move you and your kids up to the base. Housing was gonna be free on base. There was schools for her kids. She could get a job right there on base, you know? Everything was taken care of. I mean, everything was going great, you know?

TIM: And then pretty quickly the whole thing just soured. It's impossible to know exactly what happened, but Christy says that Dusten just simply didn't offer any support. He says that he did, he tried to at least, but shortly after she got pregnant, she basically just shut him out, stopped taking his calls.

DUSTEN BROWN: I didn't get no phone calls, no text messages, nothing from her out of the blue. And I'm just like, well, what's going on?

TIM: He says that he tried to get in touch with her.

DUSTEN BROWN: Texting her up, trying to call her. Still no answer. There's a couple times that I've went back to Barso and went to her house.

TIM: Drove those four hours from the base.

DUSTEN BROWN: Knocked on her door. I could hear, you know, voices in the house. It sound like her and the kids. They wouldn't answer the door for me.

TIM: And then one day, he says ...

DUSTEN BROWN: She sent me a message saying "I don't want to be with you no more."

TIM: And three weeks after that ...

DUSTEN BROWN: She's like, "Well, I want you to sign your rights over."

TIM: His parental rights.

DUSTEN BROWN: "Would you sign your rights over?"

TIM: You guys are texting this, or you talking?

DUSTEN BROWN: The whole time we're text messaging this because she wouldn't talk to me.

TIM: And what did you think it meant?

DUSTEN BROWN: To me, I just thought she wanted me to sign my rights over to her. And I'm like, this is something I really don't want to do.

TIM: He says she kept texting him that question, and looming in his mind was the fact that he'd just learned ...

DUSTEN BROWN: That we were gonna be going to Iraq to do a radar mission. So ...

TIM: And he starts to wonder what's the right thing to do here?

DUSTEN BROWN: You know, if there was one of them chances I wasn't gonna come back, I wanted to make the right choice and let the mother be that sole parent.

TIM: And he says that he's holding out hope that if he does make it back ...

DUSTEN BROWN: We'll get back together and she'll just change their mind. Finally, I just told her, I was like, "All right. I'll sign my rights over."

TIM: Months go by. Christy has the baby. He says he doesn't know exactly when because they weren't speaking. But then ...

DUSTEN BROWN: Six days before I had to go deploy to Iraq, I get a phone call from some guy in Washington County.

TIM: The process server.

DUSTEN BROWN: Said "Hey, we need you to sign some papers so you can sign your custody rights over."

TIM: And the guy directed him to an office right near the base.

DUSTEN BROWN: Went there and signed the paper, and ...

TIM: What did you think it meant?

DUSTEN BROWN: The whole time I thought I was just, you know, the paperwork was for me to sign custody rights to her. But when I got done signing the guy said, "You just signed your rights away." And said the biological mother, the baby's been up for adoption. She's been living in South Carolina for four months.

TIM: Dustin says this is the first moment that he realized what was actually happening: that the baby was up for adoption. And he says that he had no idea he had just legally consented to it.

DUSTEN BROWN: I should have had a lawyer there with me. At that point in time, I grabbed the paper and the guy looked at me said, "If you're gonna rip that up" he said "It's a—it's not good to do that."

TIM: That he could be arrested.

DUSTEN BROWN: And I said, "What do I gotta do?: He said, "You need to get a lawyer."

TIM: Which he immediately did. And that's why the courts have ruled in his favor, because they say that from that moment, he's clearly demonstrated that he wants to be her dad.

DUSTEN BROWN: I mean, I never, never once did I want to give up on my daughter. Never once did I want to give her up. I mean, everybody says that I gave her up. Never wanted to.

TIM: Now Mark and Lori say that if this were any other guy ...

LORI MCGILL: Any other man of any other race ...

TIM: ... the story would be over right about here.

LORI MCGILL: It's too late.

MARK FIDDLER: He wouldn't have any rights at all.

LORI MCGILL: Under every states' laws, too late. Under the federal Constitution, too late. He rejected that opportunity to become a father.

TIM: But he has one thing in his favor, says Lori. He happens to be Cherokee. And because of that fact ...

LORI MCGILL: Not only can this sort of man object, but he gets an automatic transfer of custody to him.

TIM: And Mark and Lori see that as basically the worst kind of preferential treatment.

JOHN NICHOLS: And that is unbelievable.

TIM: This is John.

JOHN NICHOLS: John Nichols.

TIM: This is Shannon.

SHANNON JONES: Shannon Jones.

TIM: They're two of Dusten's lawyers. And John says okay, there's preferential treatment.

JOHN NICHOLS: Fine. But ...

TIM: But think about why all the protections of ICWA are there.

JOHN NICHOLS: These roadblocks are there for a reason.

TIM: We went over this earlier but, you know, basically people are being manipulated out of their kids. And while you might like to think that that's ancient history ...

JOHN NICHOLS: Now fast forward to 2010.

TIM: He says the same thing is happening in this case.

JOHN NICHOLS: And we have a registered member of the Cherokee Nation. We have his child being given up for adoption without his knowledge and without his consent.

TIM: And they kept this adoption from him for months and then spring it on him six days before he leaves the country?

JOHN NICHOLS: It looks to us like it was engineered to make sure he got served but not in enough time to where he could put up a fight.

SHANNON JONES: I believe it was absolutely intentional.

TIM: And Shannon suggests that they knew about ICWA, they knew it would apply, and they were trying to sidestep.

SHANNON JONES: There were so many errors.

TIM: You just did a little air quotes on "errors" then.

SHANNON JONES: Yeah, I did. Because I mean ...

TIM: Like for example, there's this one important form where Shannon says that they went out of their way to make it look like Veronica is not Native American.

SHANNON JONES: Because it would be detrimental to the adoption.

JOHN NICHOLS: That's just—that's a preposterous argument. You know, the form ...

TIM: Mark and Lori say the reason that nobody put Cherokee in big bright flaming letters is simple.

LORI MCGILL: Christy herself is predominantly Hispanic. Dusten is predominantly Caucasian, and is approximately two percent Cherokee.

JAD: What? Did you say two percent?

TIM: Yeah, I—Veronica herself would be a little bit over one percent.

JAD: Wait, this whole thing is happening because he's only two percent?

TIM: Well ...

JAD: I feel like that changes things somehow.

TIM: Well yeah, but you have to keep in mind that Cherokee Nation doesn't care about the percentage of Cherokee in your blood. That's not how they determine their members.

MARK FIDDLER: Being a member of the Cherokee Nation is like being a member of the United States. You are a citizen of the nation.

CHRISSI NIMMO: You know, if your parent's a US citizen, you're automatically a citizen.

TIM: That's Chrissi Nimmo, Assistant Attorney General for Cherokee Nation.

CHRISSI NIMMO: If your parent's a Cherokee citizen, you're not automatically a citizen ...

TIM: But you can automatically apply. So it's based on direct lineage. But still, you're right because this is the argument that is most troubling to the tribes. Both Chrissi Nimmo and Marcia Zug told me that if the Supreme Court ends up deciding that ...

MARCIA ZUG: ICWA is unconstitutional because it really is race-based ...

CHRISSI NIMMO: Unconstitutional because it's a race-based preference ...

MARCIA ZUG: ... it calls into question every single federal Indian law.

CHRISSI NIMMO: There goes Indian law.

MARCIA ZUG: This is a case that they could use to do that.

TIM: If ICWA falls because it's unconstitutional, it could have a crazy domino effect.

CHRISSI NIMMO: Every single federal Indian law is premised on giving some sort of special treatment to Indians.

JAD: What would that mean concretely if Indian law were to go away?

TIM: It means that their policing, their court system, their education, anything they do as a sovereign nation, all of that just evaporates. You know, like, a tribe would just become another group of people on some land.

JAD: Huh.

TIM: That said, this is not the likely outcome. Now the Supreme Court will probably rule as narrowly as they possibly can, and as far as the tribes are concerned, they can do a lot of damage to the law without calling it unconstitutional. You know, they could allow for this certain kind of exception to ICWA, which would make it a lot easier for people like the Capobiancos to adopt.

JAD: So they could rule any number of ways.

TIM: Yeah. And the thing is that it's all strangely connected to this three-year-old girl.

DUSTEN BROWN: The whole time through this I'm thinking I'm just gonna sign custody rights over.

TIM: So when she finally showed up halfway through my interview with Dusten?

DUSTEN BROWN: Hello.

TIM: Hi.

TIM: It was kind of surreal.

VERONICA BROWN: Daddy.

TIM: Hey Veronica. I'm Tim.

TIM: She's got dark, curly hair. She's this ball of energy.

DUSTEN BROWN: She's definitely bullheaded.

TIM: And within a minute, she's giving me a tour of every single object in her room.

VERONICA BROWN: And this ...

TIM: I mean everything.

TIM: Who's that?

VERONICA BROWN: Army bear.

TIM: Army bear?

TIM: She was a very, very proud host. A few minutes later, she wanted to show me her geese.

TIM: I don't think I've seen geese in a long time.

VERONICA BROWN: You're about to.

TIM: We're about to.

JAD: Those are real geese?

TIM: Yeah.

[geese squawking.]

VERONICA BROWN: Hi babies!

TIM: She feeds them out of her hand.

DUSTEN BROWN: No, no, no. Don't mess with their water.

[train horn]

VERONICA BROWN: Thomas! Thomas Train!

DUSTEN BROWN: Thomas the Train?

VERONICA BROWN: Yeah.

DUSTEN BROWN: Yeah.

JAD: So what could happen to her?

TIM: Well, if the Supreme Court said Dusten Brown shouldn't have qualified as father under ICWA, what they do is they would send it back down to a South Carolina court, and they would have this new best interest evaluation. Basically like, what's the best thing for her at this point? She's been with him now for about a year and a half. And so that actually might really change the calculation. You know, and honestly, hanging out with her and Dusten in the backyard, it's really easy to forget all these people whose lives are just completely tangled up in this scene, but who aren't there. Christy Maldonado, the birth mom.

MARCIA ZUG: She did not intend to give Veronica up. She intended to give Veronica a life.

TIM: Matt and Melanie Capobianco.

MELANIE CAPOBIANCO: I mean, this has been going on for so long. We've kind of been in a holding pattern for, like—well, forever.

MATTHEW CAPOBIANCO: We're just waiting and waiting and waiting.

TIM: And of course, the hundreds of tribes who are just worried about their own kids.

TIM: Pretty cool. Are you a good swimmer?

VERONICA BROWN: Yeah. I'm a good swimmer.

TIM: I'm a bad swimmer.

VERONICA BROWN: You're not! You're a good swimmer.

TIM: No, I'm a pretty bad swimmer.

VERONICA BROWN: No, you're not! You're a good swimmer.

TIM: How do you know I'm a good swimmer?

VERONICA BROWN: I know you're a good swimmer. You're a good swimmer.

TIM: Well, I appreciate that.

JAD: So the Supreme Court came to a decision on this ruling about a month after we first aired this podcast, and here's what they said.

TIM: Okay. So the Supreme Court ruled 5-4 in favor of the adoptive couple, which is to say against the birth father.

JAD: So Dusten Brown, the dad, lost.

ROBERT: Right.

TIM: It was like a 60-page ruling, and not being totally confident what all the ramifications were, I just made some calls.

MARCIA ZUG: Hi, how are you?

TIM: I'm doing great. How are you?

TIM: For example, I Skyped with Marcia Zug, who you remember from the piece.

JAD: Mm-hmm.

TIM: She's a law professor at the University of South Carolina.

TIM: Can you walk me through what this opinion means?

MARCIA ZUG: Well, in terms of Veronica's placement, had it come out the other way, then it would be over. She would stay with Dusten Brown, her biological father, end of story.

TIM: Mm-hmm.

MARCIA ZUG: What we have now is the court upholding the termination of his parental rights.

TIM: So basically, the Supreme Court ruled that Dusten Brown shouldn't have been allowed to invoke the Indian Child Welfare Act because he didn't have what's called "continuing custody" of Veronica.

ROBERT: Continuing custody.

TIM: Right. They argue that this law's about preventing the breakup of Indian families, and there was no Indian family here because they didn't live together.

ROBERT: The dad and the daughter didn't live together.

TIM: Right. So they don't scrap the Indian Child Welfare Act, they just say that it shouldn't apply in a case like this.

JAD: So basically, according to Tim, it was pretty narrow ruling. What then happened is that the Supreme Court kicked the case down to a lower court in South Carolina, and that lower court ultimately awarded custody of Veronica to the Capobiancos. Dusten Brown tried to fight it. There were lots of lawsuits flying back and forth in both directions, but in the end Veronica did end up going to the Capobiancos.

DUSTEN BROWN: It's been two and a half weeks since our daughter Veronica left with Matt and Melanie Capobianco.

JAD: And on October 10, 2013, Dusten Brown called a press conference.

DUSTEN BROWN: It was the love for my daughter that kept me going all this time. But it was also the love for my daughter that finally gave me the strength to accept things that are beyond my control. The time has come for me to let Veronica live a normal childhood that was so desperately needed and deserves.

JAD: Dusten Brown then announced that he would be stopping his custody battle for good.

DUSTEN BROWN: And to Veronica: one day you will read about this time in your life. Never ever for one second, never ever for one second doubt how much I love you, how hard I fought for you, or how much you mean to me. My home will always be your home. You're always welcome in it. I miss you more than words can express. You'll always be my little girl, my princess. And I will always love you until the day I die.

TIM: One more thing. In our story, we talked a lot about the possibility, sort of the larger possibility that from the tribes' perspective this case could be used as a first step to basically declare Indian law as a race-based situation that could then be negated. That didn't happen in this case, but there is a sense that they kind of planted a seed. For example, Justice Alito, who wrote the ruling, he starts it off with mention of Veronica being, you know, 1.2 percent Cherokee.

JAD: Hmm.

TIM: Which is interesting because it sounds like he's about to make an argument for why this is a race-based preference and why it's a violation of equal protection.

JAD: But then he doesn't make that argument. He pulls back, according to Tim. And so the question is: why did he start the ruling that way? Was he trying to send a message of some kind?

TIM: I asked Marcia what she thought about it.

TIM: Why do you think they started it off that way?

MARCIA ZUG: I've been thinking about that. It clearly sat wrong with at least some members of the court. I mean, when listening to the oral arguments, you could tell that. You know, Roberts harped on it as well. I think it's an indication that at least some members of the Court have serious reservations about Indian law because they just don't see Veronica as an Indian child. To them, Indian is a race, and she doesn't have enough blood to be of that race. And it's a possible indication of where future Indian law cases are gonna go. I don't know.

JAD: Since then, the Supreme Court has seen a handful of Indian law cases. And the biggest development so far is that the Bureau of Indian Affairs and the federal government have changed the rules surrounding the Indian Child Welfare Act—or they're about to. The new rule changes are gonna go into effect December, 2016. What it will mean is that when a child like Veronica is put up for adoption, the state would have to ask whether or not she was an Indian child. The father would have to have been asked whether or not she was an Indian child, and the state would not be able to consider what percentage Indian blood she has in determining if she is an Indian child. Obviously, the hope is that future Veronicas will not have to go through what this Veronica went through. But we'll see.

JAD: Huge thanks to Tim Howard, who now produces the amazing podcast Reply All. They just put out a four-part series on the criminal justice system. It's called "On the Inside." Definitely check it out. Coming up next: a segment from, as Robert mentioned at the top, our first-ever spin-off that we just launched, called More Perfect. And in it, we tell stories about the Supreme Court sort of like the one you just heard. So after the break, I want to play the first part of our first episode for you. And if you dig it, I hope you'll think about subscribing, which you can do at Radiolab.org/moreperfect. Stay tuned.

[BETHANY: Hey there. This is Bethany Barton in Los Angeles, California. Radiolab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.]

JAD: Three, two, one. Hey, everybody. Welcome back. I'm Jad Abumrad.

ROBERT: I'm Robert Krulwich. This is still Radiolab.

JAD: Indeed. And for our final segment, we're gonna play you an excerpt from Radiolab's very first new spin-off called More Perfect. And ...

ROBERT: Here we go.

JAD: Yeah.

KAREN DUFFIN: Can we watch Teletubbies for a second?

JAD: [laughs]

KAREN: Although that's also horribly ...

JAD: That is true.

JAD: Hey, I'm Jad Abumrad. This is More Perfect, a miniseries that we're just getting going about some of the ideas and the cases that flow through the Supreme Court. And we're gonna start the series off with a story that isn't so much a courtroom drama, this one is about an issue that I think everybody agrees is about to land at the Supreme Court again in a big way. Story comes from reporter Karen Duffin, and it begins with a mystery.

KAREN: Right.

JAD: All right. So we're starting with Maya, right?

KAREN: With Maya, yeah.

MAYA FOA: Maya Foa. I am the director of the death penalty team at Reprieve.

KAREN: Okay, so Maya Foa lives in London. And when she was about 25, she had graduated from college. She was doing some theater things, but she was, like, having this quarter-life crisis and didn't know what to do with her life.

JAD: Post college flail.

KAREN: Sorta.

MAYA FOA: An existential crisis, and I wrote to a couple of organizations and said "Please can I be useful to you?"

KAREN: She ends up volunteering at this place called Reprieve.

MAYA FOA: A legal organization that did death penalty cases.

JAD: Are they, like, just a bunch of lawyers, or what do they do?

KAREN: Yeah. Like, they do legal work and advocacy. They've been working on the death penalty for, like, years at that point to try to abolish it.

MAYA FOA: I view the death penalty, and I viewed it at the time as sort of the sharp end of a series of societal injustices.

KAREN: So anyway, she's at Reprieve one night. This was 2010.

MAYA FOA: I was sat in the office, and I ...

KAREN: She's sitting there one night, and Clive Stafford Smith, who's the president of Reprieve, or the head of Reprieve, calls and says ...

MAYA FOA: "Look, we've got an execution tonight."

KAREN: There's an execution in Arizona tonight.

[NEWS CLIP: Jeffrey Landrigan is set to be put to death for killing Chester Dyer. Landrigan was found guilty of strangling and stabbing the man in 1989.]

KAREN: So Clive says, "There's an execution tonight, and we just found out that the lethal injection drugs that they're gonna use ...

MAYA FOA: "They came from a pharmacy in England."

KAREN: But we don't know which pharmacy because Arizona refuses to release the name.

MAYA FOA: "Does anyone in the office have some time, a volunteer have some time to figure out where those drugs could've come from?"

KAREN: And she raises her hand and she's like, "I have 30 minutes," you know?

MAYA FOA: And I said "Yeah, sure, I've got half an hour." I didn't know what I was starting when I started it.

JAD: So wait, why do they want to find this supplier? Like, why does that help them?

KAREN: Well, the drugs that they want to use in Arizona have to be FDA approved. So if they can find who made these drugs and prove that they are not FDA approved, then they can probably stop the execution.

JAD: Did they have any reason to think the drugs weren't FDA approved?

KAREN: It was kind of a Hail Mary.

JAD: Ah.

MAYA FOA: So I started the half hour research task that has taken me now five and a half years. And I was trying to figure out, with limited information, where sodium thiopental could have come from in the UK to get to the US.

KAREN: Sodium thiopental is an anesthetic, and for a long time it was one of the most common anesthetics used in surgeries. But it's also one of the drugs used in lethal injection.

MAYA FOA: I was sort of—I don't think I knew the purpose of all the research that I was doing, but I was doing it very quickly because of course they had an execution that night.

[NEWS CLIP: Landrigan is running out of time and options.]

MAYA FOA: And it was—I was in the UK, so it was the evening ...

KAREN: Which is morning, Arizona time.

MAYA FOA: We had just a number of hours.

KAREN: She's like frantically searching through all these, like, global medical regulations. And, you know, she can't figure out exactly what the name of the company is.

MAYA FOA: Because there was no way to know at that point.

KAREN: But ultimately, she does figure out that there are no UK companies authorized to ship this drug to the US.

MAYA FOA: There was no, effectively no FDA-approved supplier of the stuff.

KAREN: So whatever this mystery pharmacy was, it probably wasn't FDA approved.

MAYA FOA: And I remember, you know, I emailed that over. I think we had the time to enter an affidavit from me or from Clive.

KAREN: They write up a quick affidavit. They send it back to the States.

MAYA FOA: And the execution that night was stayed.

KAREN: Like halted.

MAYA FOA: When I went to sleep, it had been stayed. And I just thought, "Okay, great. You know, we've got a bit of time."

KAREN: And the next morning ...

MAYA FOA: I woke up. I was couchsurfing, I was in someone's—and I turned on World Service.

[NEWS CLIP: You're listening to the BBC.]

MAYA FOA: And they announced that ...

[NEWS CLIP: Jeffrey Landrigan was executed at 22:26 hours.]

MAYA FOA: Yeah.

[NEWS CLIP: His final meal was a piece of steak. His last words were, "Well, I'd like to say thank you to my family. And Boomer Sooner."]

KAREN: It turned out while Maya was asleep ...

[NEWS CLIP: The state appealed all the way to the Supreme Court. And late yesterday, the justices, by a 5 to 4 vote, lifted the stay of execution, allowing Landrigan to be put to death last night.]

[NEWS CLIP: The stay was put in place due to concern over lethal injection drugs. One of those drugs obtained from Britain was not FDA approved, but the US Supreme Court did rule that there was no reason to believe that the drug wasn't safe.]

MAYA FOA: You know, talk about a rude awakening in the literal sense.

JAD: Now that rude awakening would send Maya on a journey around the world. It would get her called out by the United States Supreme Court, and it would spark a global conversation about the American death penalty, and about those little words, "cruel and unusual," that are embedded in our Eighth Amendment.

[MORE PERFECT INTRO]

JAD: All right, back to Karen.

KAREN: So we were in London with Maya, who just learned that Jeffrey Landrigan had been executed.

JAD: Mm-hmm.

KAREN: But to understand what she does next, let me just give you a little bit of context. In the fall of 2010, when Jeffrey Landrigan was executed, the drug that they'd used ...

[ARCHIVE CLIP, The Colbert Report: The lethal drug sodium thiopental ...]

KAREN: ... was suddenly in really short supply.

[ARCHIVE CLIP, The Colbert Report: There was a nationwide shortage of ...]

KAREN: Because the only US company that still made that drug was having, like, a manufacturing problem, so they had stopped manufacturing or producing this drug. So you actually see these emails between states like, "Dude, do you have any sodium thiopental?"

[ARCHIVE CLIP, The Colbert Report: California got help from right next door. Arizona agreed to lend California a cup of death.]

KAREN: And there's actually one great email exchange between the California Department of Corrections. They send Arizona this thank you email.

[ARCHIVE CLIP, The Colbert Report: Writing—and I quote, "You guys in Arizona are lifesavers."]

KAREN: We'll buy you a beer next time I see you. [laughs]

JAD: You're a lifesaver? Come on.

KAREN: Yeah. So when Jeffrey Landrigan is set to be executed, Arizona is out of that drug. And this is how they end up at this mystery drug company in London. So after the execution, Maya is doing all this research. She's calling pharma companies ...

MAYA FOA: Plowing through these documents.

KAREN: ... and very quickly, she learns that the same company that is sending drugs to Arizona had sent drugs to, like, lots of different states.

MAYA FOA: Georgia and ...

KAREN: South Carolina, Kentucky.

MAYA FOA: California and various other places.

KAREN: They'd actually become one of the primary suppliers of lethal injection drugs to the United States.

JAD: Wait, tell me again: why was it so hard to find out information about this company?

KAREN: So what happens is that anybody involved with an execution, your name is kept confidential. And states have started to keep companies' names confidential too.

JAD: I see.

KAREN: So next she starts calling suppliers and distributors, kind of trying to trace, like, how did this drug get to that company, thinking that maybe that'll lead her to it.

MAYA FOA: We had figured out it had come originally from—there were some active ingredients made in Austria. Some of those were sent over to Germany. They were packaged, put into vials. Those were sent over to the UK. There was one company that has the marketing authorization for the product. They were sold to another one. That company changed it, and then they were sent to this company in England.

KAREN: Which she still can't figure out the identity of. But then the real breakthrough came just a couple months after Jeffrey Landrigan was executed.

MAYA FOA: I think there was lots of material coming out of that time. I remember California and the ACLU got a batch of documents.

KAREN: And in one of these batches of documents, she finds an invoice. And this invoice has a name on it.

MAYA FOA: I just—I just remember getting the court documents, and I was working with this very, very slow internet connection.

KAREN: She was actually in Malawi at the time.

MAYA FOA: Just sort of, you know, fervently willing the computer to download the document so I could start looking through them and figuring out this stuff. And those were the documents that had the name of the middleman.

JAD: What was it?

MAYA FOA: Dream Pharma.

JAD: Dream Pharma.

KAREN: Dream Pharma.

MAYA FOA: Dream Pharma.

KAREN: Yeah.

JAD: Huh.

KAREN: Yeah.

JAD: Okay.

KAREN: Yeah. So she's in Malawi, so she, you know, rings up her colleague and says "Can you go just look at this place? It's in West London, and it's this residential area but also, like, with sort of warehouses. Kind of middle class."

MAYA FOA: You have a couple of petrol stations, a couple of cafes, and then this pharmacy. Except that it doesn't look like a pharmacy because it's got a big sign on the front that says "Elgon Driving Academy."

NINA PERRY: I'm gonna go and try and go and knock on the door of the Elgon Driving Academy.

KAREN: This is Nina Perry. She's a freelance producer in London.

NINA PERRY: It doesn't look too good. Is this—there's a ...

KAREN: Tiny little storefront.

NINA PERRY: Well, I can't see any evidence of driving. And if you walk in ...

MEHDI ALAVI: Hello.

NINA PERRY: Hello.

KAREN: You walk in, and in the front it's just this reception area. But in the back ...

NINA PERRY: Hi. I'm looking for Dream Pharma. Is that you?

MEHDI ALAVI: Yeah.

NINA PERRY: Oh, hi. I'm recording for ...

KAREN: There's a guy sitting at a desk. His name is Mehdi Alavi. He's in his 50s, gray feathered hair, kind of like square glasses. Looks a little bit like William Hurt. He is Dream Pharma. In other words, the company that is helping prop up the death penalty system in America.

MAYA FOA: It's a one-man operation operating out of the back of a driving school.

JAD: One guy?

KAREN: One guy.

MAYA FOA: And I thought well, this can't be true.

NINA PERRY: But they're interested in speaking to you about the injections that you supplied to the States.

MEHDI ALAVI: From the get-go, I had no comment and I still have no comments.

NINA PERRY: Oh, so what was it like when Reprieve came to find you?

MEHDI ALAVI: Ask them yourself.

NINA PERRY: What was it like for you?

MEHDI ALAVI: Ask them for yourself.

NINA PERRY: Okay, are you still supplying the States with ...

MEHDI ALAVI: No.

NINA PERRY: No, no.

MEHDI ALAVI: It's illegal.

NINA PERRY: Oh, right. Did you—were you aware of that?

MEHDI ALAVI: It wasn't illegal at that point.

NINA PERRY: Oh, right. So then it became illegal.

MEHDI ALAVI: That is correct.

NINA PERRY: Oh. Would you mind me asking how you came to get involved in that in the first place? How they came to find you, or you to find them?

MEHDI ALAVI: They found me.

NINA PERRY: They found you? Wow! Were you surprised when they got in contact with you?

MEHDI ALAVI: Surprised? I don't know at that point.

NINA PERRY: No. But I guess it unraveled somewhat.

MEHDI ALAVI: I got no further comments, my dear.

NINA PERRY: Okay. Well, thank you very much for ...

MEHDI ALAVI: Pleasure.

NINA PERRY: ... for doing that. And thank you for bringing me to Acton. I very much enjoyed walking around Acton and meeting people around here.

MEHDI ALAVI: Okay.

NINA PERRY: Yeah. So what do you—what do you sell now?

MEHDI ALAVI: It's irrelevant to your case.

NINA PERRY: Well, I'm just quite interested as a citizen of London.

MEHDI ALAVI: It's irrelevant to you. You're not in the business, that's irrelevant to you, okay?

NINA PERRY: Okay. Well, thank you very much for your time.

MEHDI ALAVI: Pleasure.

NINA PERRY: And what was your name again, please?

MEHDI ALAVI: You know my name. If not, find out.

NINA PERRY: Okay. Thank you very much.

MEHDI ALAVI: Pleasure.

NINA PERRY: Bye bye. Do you actually do driving lessons?

MEHDI ALAVI: Irrelevant to you.

NINA PERRY: You don't do driving lessons.

KAREN: So once Maya and Reprieve found that guy, Mehdi Alavi, in his pharmaceutical broom closet of death, the next step was pretty simple: they went to the UK government and they told them. Because in the UK, it's illegal to be part of capital punishment in any way.

MAYA FOA: We have a law that prohibits exports of products for the facilitation of capital punishment or torture. It's called the torture regulation.

[NEWS CLIP: The anti-torture regulation. With this text unique in the world, the EU is profoundly committed to the fight against torture and the death penalty.]

MAYA FOA: And when they realized that the sole purpose of the export of this drug was for executions, they put an export control in place.

KAREN: And just like that, the supply of this drug is turned off.

JAD: So the States were just out of luck?

KAREN: Well I mean, 60 percent of Americans support the death penalty, so that they're not gonna give this up without a fight. And so over the next few years, you have, like, this arms race. Missouri says, "We're gonna find the drug in Germany." So Maya goes to Germany. And then she hears that a company called Hospira is about to make the drug in ...

MAYA FOA: Italy. And so I spent a bit of time there. The Italian government really didn't want drugs made in the seat of the Pope to be used for execution.

[NEWS CLIP: A Hospira spokesperson said, "We cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment.]

MAYA FOA: And then ...

KAREN: Denmark. A bunch of states, you have Florida, Ohio, Alabama, 11 other states, they all decide they're gonna get their drug from this company called ...

MAYA FOA: Lundbeck.

KAREN: Maya calls them up.

MAYA FOA: And I remember my first call with them.

KAREN: She's like, "Did you know that your drug's being used in executions?" And they were like, "What?"

ANDERS SCHROLL: It certainly came as a huge surprise for us.

KAREN: This is Anders Schroll. He's vice president for communications at Lundbeck.

ANDERS SCHROLL: We have been in the pharma industry for a little more than a hundred years, and we are here to save people's lives. This was the complete opposite of the intention of this product.

KAREN: And Maya says that she heard the same thing all over the world, even when states like Nebraska and South Dakota go to India to get their drug.

MAYA FOA: And it's interesting in India, because India has capital punishment. So this isn't an objection to capital punishment, this is—from every company I've spoken to in India, they say, "But why? Why would they use medicines?"

KAREN: Like, if you're gonna kill someone, just kill them. Why are you using something that saves lives to do it? And actually, there's a really interesting story about why we do it that way.

JAD: Hope you guys enjoyed that. That was an excerpt of More Perfect, our very first spin-off show about, all about the Supreme Court. And that was just the first half of the first episode. To hear the rest of that episode and to hear all the other episodes, subscribe to the series at Radiolab.org/moreperfect. I'm Jad Abumrad.

ROBERT: I'm Robert Krulwich.

JAD: Thanks for listening.

 

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