Null and Void
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Get your quote today at Progressive.com to join the over 28 million drivers who trust Progressive. Progressive Casualty Insurance Company and Affiliates. Price and coverage match limited by state law. Listener supported. WNYC Studios. Hey, I'm Latif Nasser. I'm Lulu Miller. This is Radiolab. 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, uh... Mm-hmm.

Have you ever done jury duty? 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, but I would love to. And I have never even been called. I think I've moved so many times. I don't know where I am. I just became a citizen relatively recently, as you know. Yeah. So I haven't. I also haven't been called. But I...

I want to do it. Yeah. What is it for you? Why do you want to do it? I mean, there's part of it that feels like you're, I don't know, it's 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. Yeah. 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 that.

probably the most dramatic moment of somebody else's life, kind of in a ethical, moral puzzle of what to do next. And there's something kind of, I think, very humbling and

and powerful about that moment. 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 trap door 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 gives you and your whole jury power

I don't know, change democracy. 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. 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 it's been used, they're both so inspiring and and so horrifying that you kind of yeah, kind of knocks you down.

Yeah, and as the story goes, I think this contains one of the most frightening moments that I've heard Radiolab encounter. In an interview, ever. Yeah, for sure. The show is called Null and Void. Wait, you're listening? Okay. All right. Okay. All right. You're listening to Radiolab. Radiolab. From WNYC. See? Rewind.

Now, 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? Um, okay. Alright, sorry about that. Hey, I'm Jad Abumrad. I'm Robert Krolwich. This is Radiolab. And today... Today we have a story about something that you might not know that you have, but you definitely do have it. Yeah, sort of a crazy... Maybe even scary. Maybe scary. Even secret. A crazy, scary, secret... Hello? Hello? Hello?

Hey, Soren. And it comes to us from our producers, Tracy Hunt. Are you there? And Soren Wheeler. Yeah, I'm here. Okay, no speakerphone now. Okay. So this story for us got started with this woman, Laura Crijo. I am a freelance internet marketer. She's from Colorado, and in the mid-90s, something happened to Laura that hadn't happened to anyone in centuries.

So we'll just, why don't you just take us back to 1996, the day you got your jury summons, that very first one. 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. But whatever. The point is, Laura did get to court in Gilpin County in Colorado. And when she got there, she walked in, took a seat. 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. Real quick, were you hoping to get booted off? Oh, yeah, I was hoping to get booted off, of course. Any good red-blooded American was hoping to... That's towards the end of jury selection. I was one of the last ones to be selected.

So the next day, Laura and the 11 other jurors showed up to hear the case. And the case was for this 19-year-old girl. And she was charged with possession of methamphetamine.

What happened was that she was up in Central City, which is a gambling town. And that day, she was driving in her van with her boyfriend, and eventually the two of them drove up to this casino. Her boyfriend jumped out of the van. He went to the casino. And then she kept driving, and then the police pulled her over. They just, for whatever reason, pulled her over? I don't know what she got pulled over for. They just pull her over.

And 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, which they said gave them probable cause to search her purse. 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. At which they found this one ounce of methamphetamine. And so one of the questions before the jury was, is this young woman guilty of possession of methamphetamine beyond a reasonable doubt? So at the end of the trial...

Laura and the other 11 jurors got up and went to the jury room to deliberate. 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. There is also the fact that she did have this map. But it was unclear whether it was actually hers or not.

Because according to the girl, when her boyfriend got out of the van... He put something in her purse, she said, without her knowledge. This girl saying the meth might be his, but it's definitely not hers. I mean, to me, that's the whole thing. It's element number one of the possession charges that they have to knowingly possess. So for Laura... If she said she didn't know she had it... And it could be her boyfriend's... Then she's not guilty.

It seems to her that it was just like a pretty big hole in the prosecution's case. I mean, to me, I just couldn't get beyond that. And so Laura turned to the other jurors. And I said to him, 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.

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 what the girl was looking at as far as a sentence, right? But that's not technically what a juror is supposed to do. No, in fact, the judge in this case and generally, the judge had told them, you know, like, I'm the one that gets to decide the sentence. You don't have to worry about the sentence here. You just have to find out whether she's guilty or not guilty. But I was worried about the sentence. You know, you have if when you're a juror, you have somebody's liberty in your hand.

And so Laura sat down on her computer, she got online, and she found this criminal statute. And to her understanding, this girl... Was looking at two to six years. And she's like, what? That just feels so out of whack. That doesn't feel right. Also, it's a felony charge. 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 are lying. Is that reasonable doubt? No, it's not reasonable doubt.

That's when Laura turned to the other jurors and tried this completely different tactic. She looked at him and she was like, look, even if you think she's guilty... That even if she broke the law, we could say we don't agree with the law. You know, we're here...

We're here to be the conscience of the community. That's what I told them. You don't have to convict her. 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. Right, right. Well, that's where everything broke down. 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 going to acquit this girl. That note got sent to the judge, and apparently the judge...

And then, about a month later... And suddenly, Laura's story caught fire. I was the first juror in 400 years that was actually punished for their verdict. Prosecuted. Really? 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... What you're about to see is going to infuriate a lot of you. ...into this very bizarre... A lone juror tosses out the law. ...almost like a loophole, like a legal loophole of some kind. I think it's absolutely appalling. ...that on some sides people see as a trapdoor to anarchy and...

And on other sides, people see it as like one of the foundational bedrocks of what it means to be in a democracy. It is something called jury nullification. Jury nullification. 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. Really? And I was like, whoa, okay, I'm hitting play on that. Like, let's go. You can get arrested for talking about this. Well, that ends up being sort of true. But also sort of not, which is what makes it a loophole. Thank you. Yeah, just this way.

Anyway, as we dug into it, we figured, you know, we were going to need some help understanding this thing. So I was thinking that I would start with a little bit just, you know, kind of what jury nullification is. Yeah. So we called up our favorite legal expert. Right. Mm-hmm.

Ellie Mistal. And I am an editor of Above the Law and the legal editor of More Perfect on WNYC. More Perfect. What is that? That sounds amazing. What is that? Yeah, well, you know what? It's not worth mentioning. Anyway, so Ellie... Anyway, when we were talking to Ellie, the first thing that we asked him was, you know, like, just give us a pure uncut version of jury nullification. Okay, so a pure aspect of jury nullification would be

Let's say I am the defendant. I am accused of stealing a car.

I absolutely stole that car. Everybody saw it. They had me dead to rights. They had me on video. My mama said he stole the car. No reasonable doubt. Your DNA is in the car. You know, my DNA is in the car. But I stole the car because my kid was sick and I needed to get to the hospital to take him to the hospital. 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. Saved his life. Saved my kid's life. Now I'm up for trial from the, you know,

The guy who has the Audi that I, I live in Westchester. The guy who has the Audi is like, he stole my car, which is true. I demand justice. Yeah. And the jury says, yeah, no, no, we're just going to, the jury would nullify that clear, uh,

That clear illegality, that clear crime that I committed. 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. Right. So that's kind of the pure version of it. And that's kind of the most...

Kind of happy, clappy, duh. Yeah, it's a very happy version of it. Version of it, right? I could have stolen Justin Bieber's car. I probably couldn't get convicted in a court for that. Nobody likes him. Nobody likes him. So they could be saying the law is 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. Right. 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? No, there's nothing in the Constitution 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. But it's not exactly a crime. Because, Ellie says, a jury is told to do what they think is best. If they think their best is nullifying a law, that's also not exactly illegal.

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. 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. 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, what kind of monster are you? The X-Men. Wolverine. So Wolverine's power is he can detach steel adamantium claws from his hands. That's just a fact of Wolverine's life. He has the ability to do this. It's his power. Now,

Is it a right for him to have claws shooting out of his hands? No, absolutely not. Is it illegal for him to have claws shooting out of his hands? 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. Real quick to the people who care about superhero powers. We know that Wolverine's power is actually the ability to heal, but Ellie's point still holds. 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? I mean, his simple point is that jury nullification is as fundamental to juries as having claws is to Wolverine. That's just a fact of their existence. But they still get in trouble if they use it?

Laura did. 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. 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? Coming right up. All right. Now we're in the mood. All right.

Yeah, so I ended up finding this guy, Jeffrey Abramson. Professor of Law and Government at the University of Texas at Austin. 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 the William Penn trial in 1670, which is really the birth of religious liberty. I guess we can also cue some sounds of horses on cobblestone streets. I refuse to do that. Just do it. Just do the horses.

So much better. Thank you. Okay, so it's 1670, London, England. We've got our guy, William Penn. So William Penn at the time was a young man. He was a Quaker. And one day he's walking through the streets of London... To hold a prayer meeting in Grace Church Meeting Chapel. He walks up to the chapel door... But he finds it locked by the authorities...

And the reason the doors were locked was because there was actually this century-old law on the books. It made it a crime to essentially to be a Quaker. But what Penn does... Hey. Matt? Okay, one, both of you. And two... Hear ye, gather round, gather round, yes. Penn starts calling everybody together in the street. More, more, yes, gather round. And as more and more people start to gather... There is a large throng. Like three or four hundred people show up. Come on, come on. And so...

The authorities seize the occasion to arrest him for breach of the peace. And eventually, Penn gets thrown into jail. And he gets a jury trial.

The indictment is as follows that William Penn of London... Now the government, the king, was pretty much just charging Penn for being a Quaker. 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. Are you guilty as you stand indicted in manner and form as foresaid or not guilty? I plead not guilty in manner and form.

And the case is pretty open and shut. I mean, he gathered hundreds of people in the middle of the street. According to law and the evidence, he's guilty. But his defense is, show me what law in England makes it a crime to worship God in my own way. So the jury went off to the jury room? But...

The jurors come back several times and say, we cannot agree. What was their hangup? Well, I 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. Even though it was technically against the law. Right. And so the judge says to the jurors, I am telling you that if the evidence shows that

And he clearly did. And then the judge locks him up in the jury room. For a, quote, considerable amount of time, end quote. And then finally...

and acquit him. The judge accepts the acquittal and then orders the jurors to jail for perjury. Put the whole jury in jail? Yeah, they get locked up. But there's one guy in the jury who's like, this is not cool. So that guy ends up filing an appeal. It went to the highest courts in the realm. All the way to the king's court. 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. And what it really was, was the birth of this kind of bubble, this protected space called the jury room that you

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 is freedom of the press. Where in the 1700s, this newspaper guy in New York supposedly libeled the king or the crown. And to the jury in that case, it was pretty clear that he did. But they decide that the law itself is unjust. And boom, there you go. Freedom of the press. Hmm.

So this idea is sort of baked into our nation's beginning. Of trusting ordinary people to do the work of justice themselves. I mean, ordinary people being white men at the time. 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 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. And the United States Supreme Court made clear.

In a decision in 1895... 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. And from this you get the sort of judge's instructions that are given to the jury. 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. Now, it wasn't exactly that jury nullification became illegal. It was more like just the court kind of pushed it down, made it a sort of unspoken thing. And over the next 100 years or so, it does... I mean, certainly there's times when jurors sort of refuse to convict. The famous cases are like during Prohibition and some arguments that during the Civil Rights Movement and the Vietnam War. But really...

The explicit idea of jury nullification, the idea that this is really a role for the jury, stays mostly underground until the claws come out. That's after the break. 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, young children.

Jad. Robert. Radiolab. So we're talking about jury nullification. Which is the power of juries to perhaps ignore the law. Tracy Hunt and Soren Wheeler are reporters. And you guys were saying it was underground for a while. Yeah. And then what happened? The 90s happened. Go, Justin!

There was a perfect storm of two events, both in California. First, you have the Rodney King trial where you have this videotape. We've all seen the pictures of Los Angeles police officers

beating a man they had just pulled over. 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. Showing to most reasonable observers that there was severe police brutality against Rodney.

An unarmed black man. Four Los Angeles police officers charged in the... Initially, the trial was supposed to be held in Los Angeles, but because of concerns about media exposure, it got moved. To neighboring Ventura County, where the jury is almost all white. And after a months-long trial and weeks of jury deliberations... The jury in the Rodney King case has delivered its verdict... You get...

An acquittal. They acquit the officers. 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. And of course, we all know what happened in L.A. after that. Yeah!

Five days of riots. We've seen rocks and bottles and various things thrown at cars, school buses. More than 60 people were killed. He is bleeding unconscious in the street. You can see a white plume of smoke. There was about a billion dollars worth of damages. There are several other plumes just like that in this area. I must say...

I'm scared. We all saw what happened. And it looked very much to African Americans in Los Angeles that these white people in Simi Valley, California... Had voted race rather than evidence to acquit. 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. So according to Jeffrey, that was round one. And then just three years later... Okay, boom.

It's a white, white car. You get round two. We believe that this is the police tracking O.J. Simpson's white Ford Bronco. There you see the police cars. Give me audio. The O.J. Simpson trial. ...with charges laid by L.A. police against O.J. Simpson in connection with the brutal slaying of his ex-wife Nicole and 25-year-old Ron Goldman. There is massive blood evidence. Bloody footprints, one of the bloody gloves. Massive DNA evidence. Blood drops leading up to and inside the house.

And yet a predominantly black jury... We, the jury, in the above entitled action, find the defendant, Orenthal James Simpson, not guilty of the crime of murder. ...or quits. You heard the verdict? Can we ask your reaction? So while many black people thought that a white jury had ignored the law in the Rodney King case... It's a disgrace. I'm shocked. Now...

many white people felt at a largely black jury. I think it's absolutely appalling. It gives me no faith in the jury system whatsoever. And done the same thing in acquitting OJ. I think he's guilty as hell. I think he got off because the jury was mainly black.

And according to Jeffrey, these two cases together, they sparked a national conversation about jury nullification. The day after the O.J. 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-prospects.

In other words, according to the article, there was a spike in acquittals among black jurors in cases where the defendant was also black. And the most likely explanation is a kind of jury revolt.

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... Sometimes we as prosecutors would persuade a jury beyond a reasonable doubt, but the jurors would still find them not guilty. Georgetown Law Professor Paul Butler, who was a prosecutor in D.C. at the time, says that's exactly what was happening. Did that feel wrong to him?

to you? 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. Which Paul says was mostly what his job was. If you go to criminal court in D.C., 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. And over the years, day to day, locking up black people takes a psychic toll. Paul says he started to ask himself, did I go to law school to put black people in prison? And for me, the answer became no. Well, now a black law professor is urging black juries to use nullification in their fight for racial justice. That led me to not only understand black

what these African-American jurors were doing in D.C. But in cases of nonviolent crimes... To endorse it. If you let a guilty defendant off, isn't that the same as really taking the law into your own hands? It absolutely is the same as taking the law into your own hands. As a political protest. One out of three young black men is under criminal justice supervision. I guarantee you.

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... You can say that because you are from Montana. Yes. I am from Montana. I am allowed to say that. Yeah.

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, you're like,

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. 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. Yeah.

"Brochure about your jury rights." And in fact, today what you're seeing is this kind of rising activism... "Good morning, would you like a brochure about your jury rights?" ...around getting the word out about jury nullification. "Brochure about your jury rights." "Good morning, ma'am, would you like a brochure about your jury rights?" A lot of this is happening at courthouses all across the United States, in Philadelphia, in Florida... "Just say your name and who you are, what you do..." We actually sent a reporter to Denver to talk to this guy. "Yeah, yeah, sure."

Three days a week, Mark would show up at the courthouse, and he and some other people, and

And they would just stand near the steps of the court and hand out these pamphlets that basically say... That it's your right as a juror to vote not guilty if it's a bad law designed by bad politicians. You know, you have the right to vote your conscience. Jury's there to represent the conscience of the community. You have the right to judge the law. 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.

And are these people various sorts? Yeah, various sorts. You'll get the kind of guns rights people. You'll get the libertarians out west. I am with Occupy Denver. 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. So jury nullification is a very big tent. See, there's a prosecutor. You see, he's got the L.L. Bean tote bag.

But then the thing is, here's where we get to the getting in trouble part. Guys like Mark... Who hand out these pamphlets in front of courthouses, they sometimes get arrested. And we were handing them out to everybody...

And I get arrested for seven class five felonies looking at 21 years in prison. Under what grounds? Jury tampering. Almost always jury tampering. Yeah. Huh. But so no one ever says. No, once again, they can't. Jury nullification is illegal because obviously it's not. And so they get usually they get arrested for for jury tampering. But then these cases will go and they'll get appealed. And eventually, I don't think we found a case where this isn't true. Every single case, the.

the charges will get thrown out because it's free speech. Well, actually, I did find one case. A Mecosta County man is facing a five-year felony for obstruction of justice after he says he was arrested for passing out flyers on jury rights. He had been interested in a case that was going on up in Mecosta County, Big Rapids, Michigan. This is David Common. He's the attorney representing our main guy here, Keith Wood.

prosecuting him. 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, found a brochure put out by the Fully Informed Jury Association and

So he's standing outside the courthouse on the sidewalk and

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 one thing led to another. He found out, well, there's a guy out in front of the courthouse handing these things out. The court officer confronts Keith outside of the courthouse, tells him to stop. And when he would not stop, the officer finally, 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 going to be arrested if you don't come in and talk to the judge. 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 his arrest. For jury tampering. And the court set a bond of $150,000 for this man who

who'd never been in trouble, was married, had seven kids, had his own business in town. I mean, he's not a flight risk at all. So Dave says a lot of this case hinged on when somebody actually becomes a juror. Are you a juror when you get a summons and show up to the courthouse? Or are you a juror only once you were actually seated on a case? The argument of the state has been all along that once you're summoned, that makes you a juror.

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. I think that's pretty clear. We filed motions asking the district court judge arguing his First Amendment rights and his right to free speech. And the judge ruled against us. And then it ended up going to trial.

The trial lasted about two days, and the jury in this case came back with a guilty verdict in about 30 minutes. He appealed, he got rejected, and now they're waiting to see if the Michigan Supreme Court will take it up. So, like, what are, like, kind of the larger ramifications of this case? That I have been surprised by the judges on appeal. Yeah. That they don't, you know, I mean, it's a...

I don't know. It's almost like it's a very statist, don't mess with the system kind of ruling. So it's really what it's coming down to. Yeah. In fact, Judge Jaklovec, when we had him on the stand, he had to admit that

That he 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. And it's just been ignored. Oh, so you're talking about the judge who originally directed the police to kind of talk to Mr. Wood? Yeah, we called him as a witness during the trial. Oh, I didn't know that. Oh.

Yeah, so we got him on the stand, 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 up instance after instance of his own quotes and things he had said himself, which made it abundantly clear he was doing it because he didn't like what the pamphlet said.

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. We are now in a First Amendment free speech war.

Okay, Julian, can you hear me? Yes, yep, I hear you. Okay. This is Julian Heiklin. 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. Well, I made nine appearances at this courthouse and was arrested five times. And he was about 78 years old at this point. And he was just handing out flyers? Yeah, yeah. Do you have like a desk or like a table set up?

or are you just standing there? 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 flyer. Do people come up to you when they see jury information? Some do, some do. More of them run away.

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 in Florida. 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.

We have many cases like this that have shown it. When the slaves were escaping from the South and going up North, people were running them up into Canada.

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. 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.

They didn't do it. 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. Hey, by the way, if you need to stop and take a drink of water, don't hesitate. Well, I need to stop and cry a little.

Anyway, let's go on. You don't mind if I cry while we talk about this? This touches me pretty much. I mean, what is it? Of course, I don't mind if you cry. I'm curious, what is it that's hitting you in that way emotionally? 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.

And you're seeing that corruption in people being locked away, put away for things they shouldn't be put away for? For 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 in any country in the world. That's the United States of America. And of course, but look at the people, 40% of the people are in there for drug violations. Why does the government have any right to tell you what you can do with your body? It

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. What's the case in Northampton? I probably have 50 or 100 people along, I hope, along with me. Julian, so you're going to be, is that what you're doing at the courthouse? Are you going to be passing out the jury pamphlets? That's exactly right. And the judge has promised us that we'll be arrested. He said he... And I'm asking all my people to come with guns and shoot the cops that come after us.

You're not serious about that, are you? I am serious. Well, I mean, that would be the thing that you just said. You understand why the government would stop someone. I mean, that crosses a line. The point is, there comes a time when you've got to stop it. And I think that time is December 5th.

It's got to be ended. You got to start killing the police and the guards and hopefully the judges until they learn how to behave. Well, but that's not justice either. 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 prison. 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. I have a hard time believing that you believe. There's no reason why I should be arrested and taken away. And if they're going to try and do it, I want them killed. It's just that simple. I have a hard time believing that you believe that that deserves killing a court clerk who has a family who— Comes out and tries to arrest me. They've been warned. I've sent them the letter. I've told them 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. Well, I think that if you're in a position... And I hope to see that it's ended on December 5th.

We just can't put up with it anymore. I think that if you're in a position of considering doing what you've just said you're considering doing, that this— I'm not going to do anything. It's only if they do something. Well, okay. No matter what we have to do, it's not going to happen again. Julie?

Julian, I'm going to interrupt you there and just say, you know, I think we're probably best off just ending the conversation and letting our microphone person go home and letting me... Anyway, you've heard my opinion. It's not only my opinion, it's my intention. Yeah, we hear you. We got it. Okay. Thank you very much for having me. Okay. Thank you, Julian. You're welcome. Bye-bye. Holy... Oh, my God.

Do you have the tape-sinker's number? Yes, I do. You want to just give them... I'm going to give him a call right now. Yeah. I did not. When I talked to him, he never said anything like that. I'm so sorry. Oh, no, no, no, I don't. Wow. Yeah. What happened after that interview, or at the tail end of that interview? So after we hung up, we felt we had an obligation to call law enforcement down there because it sounded very much like he was making a direct threat with a time and a place, and

And so that Monday, he and his friend Mark did show up. Neither of them were armed. Neither him or Mark. Did any of the other people he'd been wanting to show up? 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. So what happened then? 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. Mm-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 kind of feel like it did for me a little bit. My answer would be really short. No. No. Okay. Why no? I think he's 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. Hmm.

Sorry? I guess not. I mean, I did hear when I was talking to him, I mean, partly because I had been thinking about jury nullification, you know, 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 like twisted up with this really deeply anti-government idea. You know, like you talk to these people and you hear people

arguments that sound like burn it down. That's my problem. That burn it down instinct was always sort of at a distance from me and it felt just much, much closer. 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. What? That idea that like we, the people, should be triumphant over everything. Like that, I find that to be a really scary thing.

idea that pops up. I think like Tracy, I've always thought of this as a checks and balance kind of thing. Like you have a system where you have a legislative branch, it passes laws. Sometimes the laws are ill-conceived or circumstances change or you find out a consequence of the law. You know, people of one race are constantly going to jail and people of the other race aren't or getting electrocuted and not

And then you get these ordinary people walking into these decision points and saying, you know what? This doesn't work. 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. I totally hear you. I mean I never advocate for going along with a bad law. And I think 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...

I mean, that's absolutely jury nullification. And that's like, that is the history of like post-reconstruction South, you know? Yeah, but you can make those same arguments on the other side. And we're going to get into that right after this quick break. Stick around.

I'm Jed Abumrad. I'm Robert Krulwich. This is Radiolab. And I'm Soren Wheeler here with Tracy Hunt. And today we are talking about jury nullification. And when we left, 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 where

when the jury having this power can prevent that kind of discrimination. Think about what juries did during the civil rights movement. This is Supreme Court Justice Sonia Sotomayor speaking at NYU in 2016. 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 believed is that the jury getting wrong was better than the crown getting it wrong. 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. This is once again, Eli Mistal, legal editor at the WNYC show More Perfect. The older I get, the more comfortable I become with the idea of an unelected

sitting in judicial robes deciding everything as opposed to 12 random jerk-offs from the street. And I say that knowing full well that that is a horribly elitist and kind of terrible for that reason solution to the problem. We have a... So it puts hand... It concentrates power into...

mostly white hands it concentrates power into mostly white hand 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 um 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? And when I start to look at it from that angle, what I see is juries nullifying cases when the victim is of color or when the victim is a woman. Try bringing a rape case. Try bringing a date rape case in this country. Try it.

It's really hard. And one of the reasons why it's really hard is the jury. 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 a jury doing that to the woman as much as any other part of the system. So when I think about it from the perspective of the victim and what are the avenues of justice for the victims, right?

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 Codd, when you can't convict, you can't even indict the cop who choked Eric Gardner to death in broad daylight. That, to me, requires a much more drastic rethink of how we do things in this country. And to me, the first people to go have to be these G.D. jurors.

I find that really persuasive. I don't. And maybe that's because I've served on a bunch of juries. I've been on about six now. And I have time and again been amazed. One time I was in a murder case. Some man had been accused of stabbing a woman 22 times and she died on a staircase.

And the four women, and in New York, they just pick the person who's picked first becomes the foreperson. So she came in, she sat down, she said, look, how many of you noticed like the defendant's lawyer was asleep a lot of the time? Every hand went up. We'd all seen this. And she said, here's what I want you to do. Let's go back over everything that we know.

and essentially retry the case. And 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. Maybe you can't. We basically did the job of the court all over again ourselves. And when we were done,

She said, okay, let's vote now. And when it became clear to the forewoman that we were going to convict, because she was counting the votes and finally the 12th vote went to convict, she was shorter than her chair. So when she got off her chair, she actually was smaller than when she was sitting on her chair. But she asked us all to hold hands. We just spent five days. We'd been sequestered in a hotel. Each of us had a policeman guarding us because there was some violence about it.

So we're all standing on the table. She has us hold hands. And then she looks up at the ceiling. And it's one of those ordinary rooms. And she addresses 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 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. That's amazing. Even though I think you're expressing a kind of faith in democracy that I think is in short supply right now. I know. Big thanks to producers Soren Wheeler and Tracy Hunt. We should say a couple of thanks to, first of all, Jeffrey Abramson. His book is called We the Jury.

and also Judge Fred B. Rogers in Colorado. Nancy Marder, law professor at Chicago Kent College of Law. Valerie Hans, professor of law at Cornell Law School. 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.

So much of what we learned and the sort of spark for this whole story came from a video by CGP Grey. It was 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 Crijo, 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.

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. Yeah, it basically looks at the rise of the sort of political rights 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 stealthy

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 Thornton.

The final episode is out, so it's a great time to go binge the whole thing, get a sense of the whole picture. 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. 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. 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, wnycstudios.org slash podcasts slash OTM. And there are also links to it in the liner notes for this episode that you are listening to right now or over at radiolab.org. ♪

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: With help from Andrew Vinales. Our fact checkers are Diane Kelly, Emily Krieger, and Natalie Middleton.

Hi, this is Ellie from Cleveland, Ohio. Leadership support for Radiolab science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, Assignments Foundation Initiative, and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation. ♪

There's a lot going on right now. Mounting economic inequality, threats to democracy, environmental disaster, the sour stench of chaos in the air. I'm Brooke Gladstone, host of WNYC's On the Media. Want to understand the reasons and the meanings of the narratives that led us here, and maybe how to head them off at the pass? That's On the Media's specialty. Take a listen wherever you get your podcasts.