Null and Void

Summary

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Radiolab: Null and Void

Date: May 12, 2017
Hosts: Jad Abumrad, Robert Krulwich
Theme: The hidden and controversial power of jury nullification in the American justice system — its history, practice, consequences, and philosophical implications.

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Episode Overview

"Null and Void" dives deep into jury nullification, a legal phenomenon where jurors acquit defendants regardless of the evidence, typically because they disagree with the law or its application. The episode tells the personal story of Laura Creho, a Colorado juror who became the first in centuries to be prosecuted for her stance, traces the legal and historical roots of jury nullification, explores its resurgence in the '90s, and examines its modern-day ramifications — including activism and controversy. The episode closes with philosophical debates and personal stories that reveal just how fraught and consequential this hidden power can be.

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Key Discussion Points & Insights

1. Laura Creho's Story: The Juror Who Wouldn't Convict

• Laura Creho is summoned for jury duty in Gilpin County, Colorado, in 1996. The case: a young woman is charged with meth possession.
  • Laura is skeptical whether the drugs were truly the defendant’s.
  • "It's element number one of the possession charges that they have to knowingly possess." (Laura Creho, 04:21)
• She expresses doubts during deliberations and is the lone holdout for acquittal due to "reasonable doubt" and her concerns about the severity of the mandatory sentence.
• Laura researches sentencing, finds the possible penalty excessive for the crime, and shares her findings and reasoning with other jurors, pushing the idea that they don’t have to convict if they believe the law is wrong.
  • "We're here to be the conscience of the community. That's what I told them. You don't have to convict her." (Laura Creho, 06:35)
• This leads to a note from a fellow juror to the judge, a mistrial, and — remarkably — Creho is charged with contempt of court.
  • "I was the first juror in 400 years that was actually punished for their verdict." (Laura Creho, 07:37)

Memorable Moment:
Laura’s steadfastness and punishment spark the exploration into jury nullification as both a right and a peril.

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2. What Is Jury Nullification?

• Legal definition: When jurors acquit someone who is technically guilty because they believe the law is unjust or wrongly applied.
  • "It's not a right. It's not a crime. What it is is a power." (Ellie Mistahl, 12:19)
• Ellie Mistahl (legal editor) and others explain:
  • Example: Stealing a car to save a dying child.
  • Constitutional silence: No explicit right, but no law against it.
  • Metaphor: Jury nullification is like Wolverine’s claws — intrinsic to juries, seldom used, not “officially sanctioned” but very real.
  • "As fundamental to juries as having claws is to Wolverine." (Robert Krulwich, 13:44)

Key Quote:
"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." (Ellie Mistahl, 11:53)

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3. Historical Roots & Evolution

• William Penn trial, 1670 (15:00–18:08):
  • Penn is put on trial for violating a law against Quaker gatherings; the jury refuses to convict, is punished by the judge, but ultimately a higher court rules juries can’t be punished for their verdicts — the origin of the jury room’s sacred bubble.
  • "It henceforth would be illegal to prosecute jurors for a not guilty verdict. So this becomes the start of jury nullification." (Jeffrey Abramson, 17:53)
• The American tradition picks up this idea — jury as the "conscience of the community" and as a counterweight to bad laws and government overreach.
• Shift in the late 1800s:
  • The judiciary professionalizes, more laws become complex, and the Supreme Court reasserts judge authority over law interpretation. Jury nullification recedes into the background.

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4. Nullification in Modern America: The 1990s and Beyond

• Rodney King verdict (22:24–23:18):
  • Officers acquitted in a highly publicized police brutality case by a mostly white jury.
• O.J. Simpson trial (24:14–24:50):
  • Simpson acquitted by largely Black jury despite copious evidence.
• The back-to-back cases unleash a national debate about whether juries are following laws or their own biases.
• Paul Butler (ex-DC prosecutor):
  • Explains how Black jurors sometimes used nullification to avoid sending more Black men to prison for nonviolent offenses:
    "The reason they were doing this is because they didn't want to send another young black man to jail..." (Paul Butler, 26:36)
  • Later becomes an open advocate for race-based jury nullification in nonviolent cases.

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5. Jury Nullification Activism and Contemporary Conflict

• Rise in activism: pamphlets, courthouse handouts, organizations like the Fully Informed Jury Association (28:00+).
  • Mark Iannicelli and Julian Hicklin among grassroots activists.
  • Activists arrested for “jury tampering,” but cases are typically thrown out as free speech.
  • "We were distributing the information and... I get arrested for seven class five felonies, looking at 21 years in prison." (Mark Iannicelli, 31:01)
• Northern juries and slavery:
  • Northern juries refused to convict those helping slaves escape, fueling abolitionist courage (33:00–33:29).

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6. The Dangers: Extremism & Violence

• Controversial Segment (34:45+):
  • Julian Hicklin (activist) tells Radiolab he intends to encourage armed resistance if arrested for distributing jury nullification pamphlets at a Florida courthouse.
  • "I'm asking all my people to come with guns and shoot the cops that come after us." (Julian Hicklin, 35:52)
• His words, and the hosts’ visible discomfort, highlight how the rhetoric of “defending justice” through nullification can attract extremist or anti-government sentiments.
• Law enforcement is informed; no violence occurs, but Hicklin is arrested for trespassing and making threats.
  • "He was shouting things about shooting police officers... he was charged with threatening public workers, assault and trespassing." (Emily Crockett, 38:55)

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7. Philosophical and Social Ramifications

• Hosts and legal experts wrestle with the double-edged sword:

  • Jury nullification as a shield against unjust laws (e.g., civil rights activists, slavery, excessive drug sentences) but also as a shield for racism (Jim Crow-era lynchings, acquittals of guilty parties in racial violence).
  • Jad Abumrad: "Think about all the times when white juries in the south refused to convict people of horrible things… That's absolutely jury nullification." (42:05)
  • Justice Sonia Sotomayor: Jury nullification protected civil rights activists — better occasional jury error than persistent government injustice. (42:44)

• Ellie Mistahl reflects on shifting trust from juries to judges:

  • "The older I get, the more comfortable I become with the idea of an unelected white man sitting in judicial robes deciding everything as opposed to 12 random jerk offs from the street…" (Ellie Mistahl, 43:58)

• Robert Krulwich’s personal jury story:

  • Moving anecdote of a group of jurors wrestling seriously with evidence, striving for justice, and collectively honoring the victim — a faith in the democratic process at its best. (46:28–48:46)

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Notable Quotes & Memorable Moments

• "You don't have to convict her. We're here to be the conscience of the community."
  — Laura Creho (06:31)
• "It's not a right. It's not a crime. What it is is a power."
  — Ellie Mistahl (12:19)
• "If it weren't for jury nullification, we would have many civil rights individuals who would be convicted felons…"
  — Justice Sonia Sotomayor (42:44)
• "I'm asking all my people to come with guns and shoot the cops that come after us."
  — Julian Hicklin (35:52)
• "This doesn't work. This doesn't feel right. It's just wrong."
  — Robert Krulwich (41:29)
• "Think about all the times when white juries in the south refused to convict people of horrible things… That's absolutely jury nullification."
  — Jad Abumrad (42:05)
• "I've been on about six [juries] now, and I have time and again been amazed."
  — Robert Krulwich (46:28)

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Timeline of Major Segments

| Timestamp | Segment/Theme | |-----------|-----------------------------------------------------------------------------------------------| | 00:51 | Introduction: What is this hidden power we all have as Americans? | | 01:16 | Laura Creho’s Jury Duty Story: The meth case, doubt, and refusal to convict | | 06:18 | First mention of jury nullification in deliberation | | 07:42 | Laura prosecuted: "…first juror in 400 years punished for a verdict." | | 09:05 | Legal expert Ellie Mistahl: Defining jury nullification; Wolverine metaphor | | 14:23 | Legal/historical history: William Penn, 1670, and the roots of jury nullification | | 18:08 | Emergence in US legal system, diminishment in late 1800s | | 21:55 | Return from ad break: Jury nullification’s resurgence in 1990s (Rodney King, OJ Simpson) | | 26:11 | Paul Butler on race, nullification, and the role of the prosecutor | | 28:00 | Jury nullification activism: pamphlets, legal fights, FIJA | | 33:00 | Historical example: Abolition, northern jurors, runaway slaves | | 34:45 | Activist Julian Hicklin, extremism and threats | | 38:34 | Aftermath: Precautionary action, police, charges against Hicklin | | 41:29 | Philosophical reflection by hosts and guests: the dangers and virtues of nullification | | 42:44 | Justice Sotomayor on jury nullification and civil rights | | 43:53 | Ellie Mistahl’s skepticism of jury power | | 46:28 | Robert’s personal jury anecdote: faith in the system at work |

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Final Reflections

Null and Void is a nuanced exploration of one of the justice system’s most paradoxical powers. Jury nullification can be a force for progress and conscience, but also for prejudice and chaos. The episode’s mixture of personal narrative, legal analysis, historical context, and pointed debate offers a bracing examination of democracy’s contradictions — and how ordinary people sometimes stand between strict justice and what feels right.

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Recommended for:

• Anyone interested in legal history, civil rights, modern activism, or the delicate balance between law and the democratic will of the people.

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Transcript

[Jad Abumrad]

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

[Robert Krulwich]

Oh, wait, you're listening.

[Emily Crockett]

Okay. All right. Okay. All right.

[Robert Krulwich]

You're listening to Radiolab radio from wny.

[Laura Creho]

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.

[Emily Crockett]

Okay.

[Laura Creho]

All right, Sorry about that.

[Jad Abumrad]

Hey, I'm Jad Abumrad.

[Robert Krulwich]

I'm Robert Krulwich.

[Jad Abumrad]

This is Radiolab.

[Robert Krulwich]

And today.

[Jad Abumrad]

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

[Robert Krulwich]

Yeah, it's sort of a crazy, maybe.

[Jad Abumrad]

Even scary, maybe scary, even secret. A crazy scary secret.

[Laura Creho]

Hello?

[Emily Crockett]

Hello?

[Robert Krulwich]

Power.

[Emily Crockett]

Hey, Soren.

[Robert Krulwich]

And it comes to us from our producers, Tracy Hunt.

[Emily Crockett]

Are you there?

[Jad Abumrad]

And Soren Wheeler.

[Robert Krulwich]

Yeah, I'm here.

[Laura Creho]

Okay, no speakerphone now.

[Emily Crockett]

Okay.

[Robert Krulwich]

So this story for us got started with this woman, Laura Creho.

[Laura Creho]

I am a freelance Internet marketer.

[Robert Krulwich]

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

[Emily Crockett]

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.

[Laura Creho]

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.

[Emily Crockett]

But whatever. The point is Laura did get to.

[Laura Creho]

Court in Gilpin county in Colorado, and.

[Emily Crockett]

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

[Laura Creho]

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.

[Robert Krulwich]

Were you hoping to get booted off?

[Laura Creho]

Oh, yeah, I was hoping to get booted off. Of course, any good red blooded American was hoping to.

[Emily Crockett]

But towards the end of jury selection.

[Laura Creho]

I was one of the last ones to be selected.

[Emily Crockett]

So the next day, Laura and the 11 other jurors showed up to hear the case. And the case was for this 19.

[Laura Creho]

Year old girl and she was charged with possession of methamphetamine. What happened was, is that she was up in Central City, which is a.

[Emily Crockett]

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

[Laura Creho]

Her boyfriend jumped out of the van.

[Emily Crockett]

He went to the casino, and then she kept driving. And then the police pulled her over.

[Jad Abumrad]

They just, for whatever reason, pulled her over.

[Laura Creho]

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

[Emily Crockett]

They just pull her over.

[Laura Creho]

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.

[Emily Crockett]

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.

[Laura Creho]

Through it, at which they found this one ounce of methamphetamine.

[Emily Crockett]

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

[Robert Krulwich]

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

[Laura Creho]

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.

[Emily Crockett]

There is also the fact that she did have this meth, but it was.

[Laura Creho]

Unclear whether if it was actually hers.

[Robert Krulwich]

Or not, because according to the girl, when her boyfriend got out of the.

[Laura Creho]

Van, he put something in her purse. She said, without her knowledge, saying the.

[Emily Crockett]

Meth might be his, but it's definitely not hers.

[Laura Creho]

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

[Robert Krulwich]

So for Laura, if she said she.

[Laura Creho]

Didn'T know she had it and it.

[Robert Krulwich]

Could be her boyfriend's, then she's not guilty.

[Emily Crockett]

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

[Laura Creho]

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

[Emily Crockett]

And so Laura turned to the other.

[Laura Creho]

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'.

[Jad Abumrad]

Clock.

[Laura Creho]

We need to convict her and go home.

[Robert Krulwich]

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.

[Laura Creho]

At as far as a sentence.

[Jad Abumrad]

Right, but that's not technically what a juror is supposed to do.

[Robert Krulwich]

No. In fact, the judge in this case, and generally the judge had told them, you know, like, I'm the one that.

[Laura Creho]

Gets to decide the sentence.

[Robert Krulwich]

You don't have to worry about the sentence here.

[Laura Creho]

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

[Emily Crockett]

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

[Laura Creho]

Looking at two to six years.

[Robert Krulwich]

And she's like, what? That just feels so out of whack. That doesn't feel right.

[Emily Crockett]

Also, it's a felony charge.

[Laura Creho]

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. After all, my arguments about reasonable doubt were exhausted.

[Robert Krulwich]

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.

[Laura Creho]

Guilty, we didn't have to convict her for any reason, that we could let.

[Robert Krulwich]

Her go, that even if she broke the law, we could say, we don't agree with the law.

[Laura Creho]

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

[Robert Krulwich]

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?

[Laura Creho]

Right. Well, that's where everything broke down.

[Emily Crockett]

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

[Laura Creho]

That note got sent, and apparently the judge Exploded and called us all back in and declared a mistrial.

[Robert Krulwich]

And then about a month later, the.

[Laura Creho]

Sheriff showed up at my house with a summons for contempt of court.

[Emily Crockett]

Paul Grant represented Colorado juror Laura Crehole.

[Robert Krulwich]

And suddenly, Laura's story caught fire after.

[Emily Crockett]

She refused to convict a young woman in a drug case last year.

[Laura Creho]

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

[Robert Krulwich]

Prosecuted really well, actually.326. 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.

[Emily Crockett]

A lone juror tosses out the law.

[Robert Krulwich]

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 trap door to anarchy, and on other sides, people see it as, like, one of the foundational bedrocks of what it means to be in a democracy. 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 that was like a little explainer thing with an animation. And I think it was, like, the first thing that was said on the front, on the kind of frozen screen of the YouTube video was, you can get arrested for talking about this.

[Jad Abumrad]

Really?

[Robert Krulwich]

And I was like, whoa, okay, I'm hitting play on that. Like, let's go.

[Jad Abumrad]

You can get arrested for talking about this.

[Robert Krulwich]

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

[Ellie Mistahl]

Thank you.

[Robert Krulwich]

Yeah, just this way. Anyway, as we dug into it, we figured, you know, we were gonna need some help understanding this thing.

[Ellie Mistahl]

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

[Robert Krulwich]

Yeah.

[Emily Crockett]

So we called up our favorite legal expert, right. Ellie Mistahl.

[Ellie Mistahl]

And I am an editor of above the Law and the legal editor of More Perfect on wnyc.

[Robert Krulwich]

More Perfect.

[Jad Abumrad]

What is that? That sounds amazing. What is that?

[Robert Krulwich]

Yeah, well, you know what? It's not worth mentioning. Anyway, so.

Ellie.

[Jad Abumrad]

No, but seriously, season two. Season two is coming.

[Robert Krulwich]

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.

[Ellie Mistahl]

Okay. So a pure aspect of jury nullification would be, let's see. I am the defendant. I am accused of stealing a car. I absolutely stole that car. Everybody saw. They had me dead to rights. All the evidence. They had me on video. My mama said, he stole the car.

[Robert Krulwich]

No, reasonable.

[Emily Crockett]

My DNA's in the car.

[Ellie Mistahl]

You know, my DNA is in the car. But I stole. 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 hot wired 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.

[Robert Krulwich]

Which is true.

[Ellie Mistahl]

I demand justice.

[Jeffrey Abramson]

Yeah.

[Ellie Mistahl]

And the jury says, yeah, no, no, we're just gonna. The jury would nullify.

[Emily Crockett]

That.

[Ellie Mistahl]

Clear illegality, that clear crime that I committed.

[Robert Krulwich]

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.

[Ellie Mistahl]

Right. So that's kind of the pure version of it. And that's kind of the most kind of happy. Clappy.

[Robert Krulwich]

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

[Ellie Mistahl]

Version of it.

[Paul Butler]

Right.

[Ellie Mistahl]

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

[Robert Krulwich]

Nobody likes him.

[Ellie Mistahl]

Nobody likes him.

[Robert Krulwich]

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.

[Ellie Mistahl]

Right.

[Jad Abumrad]

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?

[Ellie Mistahl]

No, there's nothing in the Constitution that direct, 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. Okay, but it's not exactly a crime.

[Robert Krulwich]

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

[Ellie Mistahl]

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

[Emily Crockett]

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

[Robert Krulwich]

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.

[Ellie Mistahl]

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.

[Robert Krulwich]

Of like, what kind of monster are you?

[Ellie Mistahl]

The X Men?

[Robert Krulwich]

The Wolverine.

[Ellie Mistahl]

So Wolverine's power is. He can. He can. He can detach steel adamantium claws from his hands. That's just a fact of Wolverine's life. He just. He has the ability to do this. It's his power. Now, is it all 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.

[Emily Crockett]

Right.

[Ellie Mistahl]

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.

[Robert Krulwich]

To the people who care about superhero powers, we know that Wolverine's power is actually the ability to heal. But Ellie's point still holds.

[Jad Abumrad]

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.

[Robert Krulwich]

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

[Ellie Mistahl]

That's just a fact of their existence.

[Jad Abumrad]

But they still get in trouble if they use it.

[Robert Krulwich]

Laura did.

[Jad Abumrad]

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

[Robert Krulwich]

I'm really glad. I'm super glad you asked that question because it gives me a chance. Hey, Matt, are you back there? Could you cue some, like, English jaunty 1700s type music? Coming right up. All right, now we're in the mood.

[Jad Abumrad]

All right, explain.

[Emily Crockett]

Yeah, so I ended up finding this.

[Jeffrey Abramson]

Guy, Jeffrey Abramson, professor of law and government at the University of Texas at Austin.

[Emily Crockett]

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.

[Jeffrey Abramson]

To the William Penn trial in 1670, which is really the birth of religious liberty.

[Emily Crockett]

I guess we can also cue some sounds of horses on cobblestone street.

[Robert Krulwich]

I refuse to do that.

[Emily Crockett]

Just do it. Just do the horses. So much better. Thank you. Okay, so it's 1670, London, England. We've got a guy, William Penn.

[Jeffrey Abramson]

So William Penn at the time was a young man, he was a Quaker.

[Emily Crockett]

And one day he's walking through the.

[Jeffrey Abramson]

Streets of London to hold a prayer meeting in Grace Church Meeting chapel.

[Emily Crockett]

He walks up to the chapel door.

[Jeffrey Abramson]

But he finds it locked by the authorities.

[Emily Crockett]

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

[Jeffrey Abramson]

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

[Emily Crockett]

But what Penn does.

[Robert Krulwich]

Hey, Matt. Okay, one, the both of you. And two, hear ye. Gather round, Gather round. Yes. Penn starts calling everybody together in the street.

[Emily Crockett]

And as more and more people start.

[Jeffrey Abramson]

To gather, there is a large throng.

[Robert Krulwich]

Like three or 400 people show up.

[Julian Hicklin]

Come on, come on.

[Jeffrey Abramson]

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

[Robert Krulwich]

Take your hands off of me. Get him. And eventually get him. Penn gets thrown into jail and he.

[Jeffrey Abramson]

Gets a jury trial.

[Robert Krulwich]

The indictment is as follows. That William Penn of London, now the.

[Emily Crockett]

Government, the king was pretty much discharging Penn for being a Quaker, but the.

[Jeffrey Abramson]

Authorities thought they could go underneath the table and just prosecute him for what was the common law crime of breach of the peace.

[Robert Krulwich]

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.

[Jeffrey Abramson]

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.

[Emily Crockett]

So the jury went off to the.

[Jeffrey Abramson]

Jury room, but the jurors come back several times and say, we cannot agree.

[Robert Krulwich]

What was their hang up? 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.

[Jad Abumrad]

Though it was technically against the law.

[Emily Crockett]

Right. And so the judge says to the.

[Jeffrey Abramson]

Jurors, I am telling you that if the evidence shows that Penn preached to a throng on a public thoroughfare, and he clearly did, you have to find him guilty of the crime of breach of the peace.

[Robert Krulwich]

And then the judge locks him up in the jury room without food, tobacco.

[Jeffrey Abramson]

Or rest facilities for a, quote, considerable.

[Robert Krulwich]

Amount of time, end quote.

[Jeffrey Abramson]

And then finally, they come back and acquit him. The judge accepts the acquittal and then orders the jurors to jail for perjury.

[Jad Abumrad]

Put the whole jury in jail?

[Robert Krulwich]

Yeah, they get locked up.

[Emily Crockett]

But there's one guy in the jury who's like, this is not cool.

[Robert Krulwich]

So that guy ends up filing an appeal.

[Jeffrey Abramson]

It went to the highest courts in.

[Robert Krulwich]

The realm, all the way to the king's court.

[Jeffrey Abramson]

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

[Robert Krulwich]

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

[Jeffrey Abramson]

Is freedom of the press.

[Robert Krulwich]

Where in the 1700s, this newspaper guy.

[Jeffrey Abramson]

In New York supposedly libeled the king.

[Robert Krulwich]

Or the crown, and to the jury in that case, it was pretty clear that he did.

[Jeffrey Abramson]

But they decide that the law itself.

[Robert Krulwich]

Is unjust, and boom, there you go, freedom of the press. So this idea is sort of baked into our nation's beginning of trusting ordinary.

[Jeffrey Abramson]

People to do the work of justice themselves.

[Robert Krulwich]

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

[Emily Crockett]

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.

[Jeffrey Abramson]

And the United States Supreme Court made.

[Emily Crockett]

Clear in a decision in 1895 that.

[Jeffrey Abramson]

Juries had no responsibility for deciding whether to enforce the law. Question number one. Or what the law properly interpreted was question number two.

[Robert Krulwich]

And from this you get the sort of judge's instructions that are given to the jury.

[Jeffrey Abramson]

And we still have this sort of instruction today that ladies and gentlemen of the jury, the case is now upon you. It is your job to find the facts, but it is my job to instruct you on the law.

[Robert Krulwich]

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

[Jad Abumrad]

That's after the break.

[Robert Krulwich]

Yeah.

Hi, this is Albert in State College, Pennsylvania. Radiolab is supported in part by the Alfred P. Sloan foundation, enhancing public understanding.

[Laura Creho]

Of science and technology in the modern world.

[Robert Krulwich]

More information about Sloan at www.sloan.

[Jad Abumrad]

Jad Robert, Radiolab. So we're talking about jury nullification, which.

[Robert Krulwich]

Is the power of juries to perhaps ignore the law.

[Jad Abumrad]

Tracy Hunt and Soren Wheeler are reporters. And you guys are saying it was underground for a while.

[Emily Crockett]

Yeah.

[Robert Krulwich]

And then what happened?

[Emily Crockett]

The 90s happened.

[Robert Krulwich]

No justice, no peace.

[Ellie Mistahl]

No justice, no peace.

[Jeffrey Abramson]

There was a perfect storm of two events, both of them in California.

[Laura Creho]

This ain't the 60s, this the 90s, baby.

[Jeffrey Abramson]

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

[Robert Krulwich]

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

[Emily Crockett]

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

[Jeffrey Abramson]

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

[Robert Krulwich]

Four Los Angeles police officers charged in the.

[Emily Crockett]

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

[Jeffrey Abramson]

To neighboring Ventura county, where the jury is almost all white.

[Emily Crockett]

And after a months long trial and weeks of jury deliberations, the jury in.

[Robert Krulwich]

The Rodney King case has delivered its verdict.

[Emily Crockett]

You get an acquittal, they acquit the officers.

[Robert Krulwich]

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.

[Emily Crockett]

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

[Robert Krulwich]

We've seen rocks and bottles and various things Thrown at cars.

[Emily Crockett]

More than 60 people were killed.

[Robert Krulwich]

He is bleeding, unconscious in the street.

[Ellie Mistahl]

You can see a white plume of smoke.

[Emily Crockett]

There was about a billion dollars worth of damages.

[Ellie Mistahl]

There are several other plumes just like that in this area.

[Robert Krulwich]

I must say I'm scared.

[Emily Crockett]

We all saw what happened and it looked very much to African Americans in Los Angeles that these white people in.

[Jeffrey Abramson]

Simi Valley, California had voted race rather than evidence to acquit.

[Emily Crockett]

I'm 43 years old. I have witnessed this for 43 years of my life. The injustice I cannot even convey to you the hurt.

[Robert Krulwich]

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

[Julian Hicklin]

It'S a white, white car.

[Jeffrey Abramson]

You get round two.

[Laura Creho]

We believe that this is the police tracking O.J.

[Emily Crockett]

Simpson.

[Laura Creho]

Ready to go.

[Emily Crockett]

White Ford Bronco there, you see the police.

[Robert Krulwich]

Give me audio.

[Jeffrey Abramson]

The O.J.

[Robert Krulwich]

Simpson trial began with charges laid by LA Police against O.J. simpson in connection with the brutal slaying of his ex wife Nicole and 25 year old Ron Goldman.

[Jeffrey Abramson]

There is massive blood evidence, bloody footprints, one of the bloody gloves, massive DNA evidence, blood drops leading up to and inside the house, in his bedroom. And yet a predominantly black jury.

[Emily Crockett]

We, the jury in the above entitled action, find the defendant, Orenthal James Simpson, not guilty of the crime of murder.

[Jeffrey Abramson]

Acquits.

[Robert Krulwich]

You heard the verdict. Can we, 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 that a largely black jury. I think it's absolutely appalling. It gives me no faith in the jury system whatsoever. And then the same thing in acquitting O.J.

[Emily Crockett]

I think he's guilty as hell. I think he got off because the jury was mainly guava.

[Robert Krulwich]

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

[Jeffrey Abramson]

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 prone.

[Robert Krulwich]

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

[Jeffrey Abramson]

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

[Robert Krulwich]

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.

[Paul Butler]

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

[Robert Krulwich]

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 you?

[Paul Butler]

It did. You know, it felt wrong personally because, you know, like every prosecutor, I went in 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.

[Robert Krulwich]

Paul says was mostly what his job was.

[Paul Butler]

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.

[Robert Krulwich]

And over the years, day to day.

[Paul Butler]

Locking up black people takes a psychic toll.

[Robert Krulwich]

Paul says he started to ask himself.

[Paul Butler]

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

[Robert Krulwich]

Well, now a black law professor is urging black juries to use nullification in their fight for racial justice.

[Paul Butler]

That led me to not only understand what these African American jurors were doing.

[Robert Krulwich]

In D.C. but in cases of nonviolent.

[Paul Butler]

Crimes, to endorse it. If you let a guilty defendant off, isn't that the same as really taking.

[Robert Krulwich]

The law into your own hands?

[Paul Butler]

It absolutely is the same as taking the law in your own hands as a political Protestant supervision, I guarantee you.

[Robert Krulwich]

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

[Jad Abumrad]

You could say that because you are from Montana.

[Robert Krulwich]

Yes, Chuck, I am from Montana. I am allowed to say that. And they started this group that was basically advocating for jury nullification, writing up pamphlets, sending out things. Eventually the Internet comes along, and attention to jury nullification just kind of goes. There's claims that jurors in Atlanta in the mid-1990s started acquitting sports like bookmaker people, defendants on a regular basis, even though in the past, those cases had sort of been seen as slam dunks. And in the post trial interviews, jurors were saying that they saw the reason was they saw no moral difference between betting on sports and playing, like the Georgia lottery. By the time you get medical marijuana initiatives around 1996, all of a sudden, it's become much, much more difficult for prosecutors to convince juries to convict in marijuana cases. And so prosecutors are deciding not even to File charges in those cases. It comes up in gun right cases during that time.

[Jad Abumrad]

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.

[Robert Krulwich]

Yeah.

[Paul Butler]

Brochure about your jury rights.

[Emily Crockett]

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

[Paul Butler]

Good morning. Would you like a brochure about your.

[Emily Crockett]

Jury rights around getting the word out about jury nullification?

[Paul Butler]

Brochure about your jury rights. Good morning, man. Would you like a brochure about your jury rights?

[Emily Crockett]

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

[Robert Krulwich]

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

[Emily Crockett]

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

[Paul Butler]

Yeah, yeah, sure. My name is Mark Iannicelli. You spell that last name. I, A, N, N I, C, E, L, L, I. I am with an activist for jury nullification.

[Emily Crockett]

Three days a week, very cold, very.

[Paul Butler]

Hot, rain or shine.

[Emily Crockett]

Mark would show up at the courthouse. He and some other people, we're out.

[Ellie Mistahl]

Here today talking about jury rights.

[Emily Crockett]

And they would just stand near the steps of the court and hand out these pamphlets that basically say that it's.

[Paul Butler]

Your right as a juror to vote not guilty. If it's a bad law designed by bad politicians.

[Emily Crockett]

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

[Laura Creho]

Jury's there to represent the conscience of the community.

[Emily Crockett]

You have the right to judge the law.

[Paul Butler]

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

[Robert Krulwich]

And are these people various sorts? Like they.

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

[Paul Butler]

I am with Occupy Denver, you get.

[Emily Crockett]

Like occupiers like Mark and you might get some like, racial justice people who think there's, you know, too many brown people in jail. So jury notification is a very big tent.

[Paul Butler]

See, there's a, there's a, there's a prosecutor. You see, he's got the L.L. bean tote bag. Sir, would you like a brother.

[Robert Krulwich]

Sure.

[Paul Butler]

About your jury rights?

[Robert Krulwich]

But then the thing is, here's where we get to the getting in trouble part.

[Paul Butler]

Guys like Mark, we got arrested here.

[Robert Krulwich]

Who hand out these pamphlets in front of courthouses. They sometimes get arrested.

[Paul Butler]

We were distributing the information and they came down and they got seven of these right here from the Fully Informed Jury association. And we were handing them out to everybody. And I get arrested for seven class five felonies, looking at 21 years in prison.

[Jad Abumrad]

Under what grounds?

[Robert Krulwich]

Jury tampering.

[Emily Crockett]

Almost always jury tampering.

[Jad Abumrad]

Yeah, but so no one ever says no.

[Robert Krulwich]

Once again, jury notification is illegal, because obviously it's not. And so they get arrested for jury tampering, but then these cases will go and they'll get appealed, and eventually. I don't think we've found a case where this isn't true. Every single case, the charges will get thrown out because it's free speech.

[Paul Butler]

We are now in a first amendment free speech war.

[Emily Crockett]

Okay, Julian, can you hear me?

[Julian Hicklin]

Yes. Yep, I hear you.

[Emily Crockett]

Okay.

[Robert Krulwich]

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

[Julian Hicklin]

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

[Emily Crockett]

And he was about 78 years old at this point.

[Jad Abumrad]

And he was just handing out flyers.

[Paul Butler]

Yeah, yeah.

[Emily Crockett]

Do you have, like, a desk or like a table set up, or are you just standing there?

[Julian Hicklin]

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.

[Emily Crockett]

Do people come up to you when they see jury information? Like, are there?

[Julian Hicklin]

Some do. Some do. More of them run away?

[Emily Crockett]

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.

[Robert Krulwich]

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

[Julian Hicklin]

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

[Robert Krulwich]

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

[Julian Hicklin]

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.

[Robert Krulwich]

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

[Julian Hicklin]

Well, I need to stop and cry a little.

[Laura Creho]

Anyway.

[Julian Hicklin]

Let's go on. You don't mind if I cry while we talk about this? This touches me pretty much.

[Robert Krulwich]

I mean, what is it? Of course I don't mind if you cry. I'm curious what it. What is it that's hitting you in that way emotionally?

[Julian Hicklin]

I'm sorry. I think about these cases that I just can't believe what's happened to this country. I can't believe how corrupt this country has become.

[Robert Krulwich]

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

[Julian Hicklin]

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.

[Laura Creho]

And.

[Julian Hicklin]

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'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. 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.

[Robert Krulwich]

What's the case in Orlando?

[Julian Hicklin]

I'll probably have 50 or 100 people along, I hope, along with me.

[Emily Crockett]

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?

[Julian Hicklin]

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

[Emily Crockett]

He said he.

[Julian Hicklin]

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

[Robert Krulwich]

You're not serious about that, are you?

[Julian Hicklin]

I am serious.

[Robert Krulwich]

Well, I mean, that would be the thing that you just said. You understand why the government would stop someone for. I mean, that crosses a line. Don't you think?

[Julian Hicklin]

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.

[Robert Krulwich]

But that's not justice either.

[Julian Hicklin]

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.

[Robert Krulwich]

I have a hard time doing it.

[Julian Hicklin]

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

[Robert Krulwich]

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

[Julian Hicklin]

Tries to arrest me. They've been warned. I've sent them the letter. I've told them anybody that comes within 15ft 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.

[Robert Krulwich]

Well, I think that if you're in.

[Julian Hicklin]

A position, I have to see that it's ended on December 5th. We can't put up with it anymore.

[Robert Krulwich]

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

[Julian Hicklin]

That I'm not gonna do anything. It's only if they do something.

[Robert Krulwich]

Well, okay.

[Julian Hicklin]

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

[Robert Krulwich]

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

[Julian Hicklin]

Me heard my opinion. It's not only my opinion, it's my intention.

[Robert Krulwich]

Yeah, we hear you. We got it.

[Julian Hicklin]

Okay. Thank you very much for having me.

[Robert Krulwich]

Okay.

[Emily Crockett]

Thank you, Julian.

[Julian Hicklin]

Welcome. Bye. Bye.

[Robert Krulwich]

Holy.

[Emily Crockett]

Oh, my God.

[Robert Krulwich]

Do you have the tape sinkers number?

[Emily Crockett]

Yes, I do.

[Robert Krulwich]

You want to just give a call right now?

[Emily Crockett]

I did not. When I talked to him, he never said anything like that. I'm so sorry.

[Robert Krulwich]

Oh, no, no, no, I don't. Wow. Yeah.

[Jad Abumrad]

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

[Emily Crockett]

So after we hung up, we felt we had an obligation to Call law enforcement down there, because he. It sounded very much like he was making a direct threat with a time and a place. And so that Monday, he and his friend Mark did show up. Neither of them were armed, Neither him or Mark.

[Jad Abumrad]

Did any of the other people he'd been wanting to show up?

[Emily Crockett]

No, it was just them. Nobody else showed up. And the police say that somebody who works at the court told him that he had to leave, that he was trespassing. He refused to leave. A police officer then also came. He was shouting things about shooting police officers. At one point, apparently he attempted to hit the court worker, but he actually didn't. And he was charged with threatening public workers, assault and trespassing.

[Robert Krulwich]

So what happened then?

[Emily Crockett]

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

[Jad Abumrad]

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.

[Emily Crockett]

My answer will be really short. No.

[Robert Krulwich]

No.

[Emily Crockett]

Okay.

[Jad Abumrad]

Why?

[Emily Crockett]

No, I think he's just sort of sounds like a angry, frustrated person. He's angry about people not letting him talk about what he wants to talk about in front of a courthouse.

[Jad Abumrad]

Hmm. Zorin?

[Robert Krulwich]

Honestly, 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 arguments that sound like, burn it down.

[Jad Abumrad]

That's my problem.

[Robert Krulwich]

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

[Jad Abumrad]

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, that idea that, like, we the people should be triumphant over everything. Like, I find that to be a really scary idea that pops up.

[Robert Krulwich]

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 that you know, people of one race are constantly going to jail and people of the race aren't or getting electrocuted or not. And then you get these, you get these ordinary people walking into these decision points and saying, you know what? This doesn't 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.

[Jad Abumrad]

I totally hear you. I mean, I've never advocated 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. I mean, that's jury nullification too. That's absolutely jury nullification. And that's like, that is the history of like post reconstruction south, you know.

[Robert Krulwich]

Yeah, but you can make those same arguments on the other side.

[Laura Creho]

Think about what juries did during the civil rights movement.

[Robert Krulwich]

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

[Laura Creho]

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.

[Ellie Mistahl]

It goes at some fundamental level to how we want as a people to be governed. Do we want to be governed by experts? Do we want to be governed by each other? What power do we want each of us to have over the other one? This is what this question really comes down to.

[Robert Krulwich]

This is once again Elie Mistahl, legal editor at the WNYC show. More perfect.

[Ellie Mistahl]

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

[Robert Krulwich]

It also puts hand. It concentrates power into mostly white hands.

[Ellie Mistahl]

It concentrates power into mostly white hands and concentrates power into the system. When we're saying that one of the only benefits of Jury nullification is to be a check on the system. Right. If you look at it only from the perspective of the defendant, then jury nullification seems like a great way to protest the system.

[Jeffrey Abramson]

Right.

[Ellie Mistahl]

But 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 not. That's a jury doing that to the woman as much as any as any other part of the system. So when I think about it from the perspective of the victim and how is. What are the avenues of justice for the victims? If you're a person of color, if you're a minority, if you're an other, I feel like the jury makes it very hard for you as the victim, to get justice. I feel better about the judge not caring if the people that you shot happen to be white or black. A jury cares a lot about that. If you can't convict a cop when you know he did it when you saw him do it, when you can't convict the cop who shot Walter Cobb, 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 GD jurors.

[Jad Abumrad]

I find that really persuasive.

[Robert Krulwich]

I don't. And I. You know, 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 forewoman. And in New York, they just picked. The person who's picked first becomes the forewoman, the foreperson. So she came in, she sat down, 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 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 went together through every bit of evidence looking for some doubt somewhere. We staged the stabbing. We went back over the distances. Could the guy have gotten from here to there in that amount of time? I live in that neighborhood, I don't think. 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 in there, 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 a 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 policemen guarding us because there was some violence about it. So we were all standing on the table. She asked us to hold hands. And then she looks up at the ceiling, and it's one of those ordinary rooms. And she addresses the woman who was killed, and she says, we have spent the last few days trying to do something that is just, you know, 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.

Wow.

[Jad Abumrad]

That'S amazing. Even though I think you're. You're expressing a kind of faith in democracy that I think is in short supply right now.

[Paul Butler]

I know.

[Jad Abumrad]

Big thanks to producers Soren Wheeler and Tracy Hunt.

[Robert Krulwich]

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

[Emily Crockett]

Colorado, Nancy Marder, law professor at Chicago.

[Robert Krulwich]

Kent College of Law, Valerie Hans, professor of law at Cornell Law School, Paula.

[Emily Crockett]

Hannaford with the national center for State Courts, and Robert Lewis in the WNYC newsroom for helping me out with some public record stuff.

[Robert Krulwich]

And one more quick note. Laura Creho, the woman from the beginning of the story, the juror who. Who got punished, she actually passed away earlier this year. 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.

This story is produced by Matt Kilty and Tracy Hunt.

[Jad Abumrad]

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

[Emily Crockett]

This is Emily Crockett calling from Washington, D.C. radiolab is produced by Jad Abumrad. Dylan Keefe is our director of sound design. Soren Wheeler is senior editor. Jamie York is our senior producer. Our staff includes Simon Adler, David Gable, Tracy Hunt, Matt Kielty, Robert Krulwich, Andy McEwen, Latif Nasser, Melissa O', Donnell, Ariane Wack and Molly Webster, with help from Valentina Bohonini, Igar Fatali, Phoebe Wang and Katie Ferguson. Our fact checker is Michelle Harris.