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.

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.

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.

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)

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.

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.

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).

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)

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)

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)

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 |

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.

Recommended for:

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