1 00:00:00,280 --> 00:00:03,760 Speaker 1: Hi, everyone, It's me Josi Duffie Rice, host of Unreformed. 2 00:00:04,280 --> 00:00:07,320 Speaker 1: Ahead of our last episode, which airs on March eighth, 3 00:00:07,360 --> 00:00:10,080 Speaker 1: we're sharing an episode of another podcast. I'm a huge 4 00:00:10,119 --> 00:00:13,600 Speaker 1: fan of five to four. This one is a favorite 5 00:00:13,600 --> 00:00:17,040 Speaker 1: of mine. The three hosts are amazing, so funny and 6 00:00:17,120 --> 00:00:19,800 Speaker 1: incredible at talking about how terrible the Supreme Court is. 7 00:00:20,440 --> 00:00:23,040 Speaker 1: Five to four is totally a bit different from Unreformed, 8 00:00:23,079 --> 00:00:25,439 Speaker 1: but it tackles some of the same issues like access 9 00:00:25,440 --> 00:00:29,080 Speaker 1: to justice, race, etc. Here's a little bit more about 10 00:00:29,080 --> 00:00:31,880 Speaker 1: the show. Five to four is a podcast about how 11 00:00:31,960 --> 00:00:35,120 Speaker 1: much the Supreme Court sucks. Every week, five to four 12 00:00:35,200 --> 00:00:37,640 Speaker 1: takes on the Supreme Court's worst decisions about the most 13 00:00:37,640 --> 00:00:41,879 Speaker 1: important issues like police abuse, abortion access, the Second Amendment, 14 00:00:41,960 --> 00:00:45,360 Speaker 1: and voting rights. Each episode covers a Supreme Court case 15 00:00:45,360 --> 00:00:48,560 Speaker 1: that reveals the ways in which the justices contort the law, 16 00:00:48,960 --> 00:00:51,959 Speaker 1: make stupid legal errors, and generally hack away at our 17 00:00:51,960 --> 00:00:55,480 Speaker 1: democracy as the Court shifts further and further to the right. 18 00:00:55,880 --> 00:00:58,480 Speaker 1: Five to four is your guide to how this supposedly 19 00:00:58,520 --> 00:01:02,480 Speaker 1: a political institution wields its power. Fine five to four 20 00:01:02,520 --> 00:01:04,720 Speaker 1: wherever you get your podcasts, and we're going to drop 21 00:01:04,760 --> 00:01:06,720 Speaker 1: one of their episodes here for you to listen, to 22 00:01:07,240 --> 00:01:09,520 Speaker 1: enjoy and meet us back here on Wednesday, March eighth 23 00:01:09,680 --> 00:01:14,240 Speaker 1: for the series finale of Unreformed. Well here. Argument First 24 00:01:14,280 --> 00:01:17,480 Speaker 1: This morning at number eighty six one seventy seven Anthony 25 00:01:17,680 --> 00:01:21,640 Speaker 1: rat Tanner and William M conover Petitioners versus the United States. 26 00:01:25,400 --> 00:01:29,080 Speaker 1: Hey everyone, this is Leon from Fiasco and Prologue Projects. 27 00:01:29,640 --> 00:01:33,000 Speaker 1: On this week's episode of five to four, Peter Rhannon 28 00:01:33,080 --> 00:01:37,440 Speaker 1: and Michael are talking about Tanner v. United States. It's 29 00:01:37,480 --> 00:01:39,840 Speaker 1: a sixth Amendment case about whether or not you're right 30 00:01:39,880 --> 00:01:42,560 Speaker 1: to a trial by jury has been compromised if the 31 00:01:42,760 --> 00:01:47,680 Speaker 1: jurors were consuming large amounts of alcohol. We're utilizing and 32 00:01:47,880 --> 00:01:53,240 Speaker 1: dealing in marijuana, and we're ingesting cocaine throughout the course 33 00:01:53,280 --> 00:01:56,080 Speaker 1: of a complex criminal proceeding. In a five to four 34 00:01:56,120 --> 00:01:59,200 Speaker 1: decision written by Justice Sandra Day O'Connor, and the Court 35 00:01:59,280 --> 00:02:01,640 Speaker 1: proclaimed that the receeedings of a jury room are so 36 00:02:01,640 --> 00:02:04,360 Speaker 1: sacrosanct that even if more than half the jury is 37 00:02:04,440 --> 00:02:08,480 Speaker 1: high and drunk, their verdict must stand. This is five 38 00:02:08,560 --> 00:02:11,880 Speaker 1: to four, a podcast about how much the Supreme Court suns. 39 00:02:16,560 --> 00:02:19,720 Speaker 1: Welcome to five to four, where we dissect and analyze 40 00:02:19,720 --> 00:02:22,720 Speaker 1: the Supreme Court cases that have infested our law, like 41 00:02:22,840 --> 00:02:27,240 Speaker 1: lantern flies have infested New York. I am Peter, I'm 42 00:02:27,280 --> 00:02:31,160 Speaker 1: here with Michael everybody and Rhiannon. Hello. What is a 43 00:02:31,280 --> 00:02:34,400 Speaker 1: lantern fly? Like a lightning bug? They're a big problem 44 00:02:34,400 --> 00:02:36,440 Speaker 1: in like Philly, New York right now. Oh, they're the 45 00:02:36,440 --> 00:02:39,600 Speaker 1: ones that, like the Philly local government was like on site. 46 00:02:39,639 --> 00:02:42,280 Speaker 1: You fucking kill these things when you see that? Yeah, yeah, 47 00:02:42,280 --> 00:02:45,840 Speaker 1: So they're like indigenous to China. Every like decade or so, 48 00:02:46,440 --> 00:02:50,480 Speaker 1: some insect that has no natural predators makes its way 49 00:02:50,480 --> 00:02:55,880 Speaker 1: over from China and just like ruin some ecosystems, and 50 00:02:56,400 --> 00:02:58,840 Speaker 1: they're all over New York right now. And like I 51 00:02:58,840 --> 00:03:01,959 Speaker 1: had to change my route the grocery store because there 52 00:03:02,040 --> 00:03:04,960 Speaker 1: is a building that is like teeming with them, like 53 00:03:05,000 --> 00:03:08,040 Speaker 1: a almost a skyscraper, and when you walk by it, 54 00:03:08,600 --> 00:03:12,120 Speaker 1: like the ground is littered with their corpses. One fell 55 00:03:12,240 --> 00:03:19,560 Speaker 1: into my like collar, oh god, And I had to 56 00:03:19,560 --> 00:03:23,440 Speaker 1: try to act like I was not absolutely losing my mind. 57 00:03:24,360 --> 00:03:26,040 Speaker 1: It's like, oh one of them fell, I guess I'll 58 00:03:26,040 --> 00:03:30,800 Speaker 1: just casually get this out. And I was like internally 59 00:03:31,080 --> 00:03:36,880 Speaker 1: just absolutely losing my ship. Anyway, kill them all. Yeah, 60 00:03:36,920 --> 00:03:40,920 Speaker 1: I've been stomping on them doing my best. Today's case 61 00:03:41,840 --> 00:03:46,880 Speaker 1: Tanner v. United States. This case is sort of about 62 00:03:46,920 --> 00:03:50,280 Speaker 1: the right to a jury, but specifically, you know, it's 63 00:03:50,280 --> 00:03:53,920 Speaker 1: about if you're on trial and the jury deliberating over 64 00:03:54,040 --> 00:03:58,160 Speaker 1: your guilt or innocence is just wasted out of their minds, 65 00:03:59,240 --> 00:04:04,560 Speaker 1: absolutely rips on alcohol, cocaine, and marijuana. Is that a 66 00:04:04,640 --> 00:04:07,680 Speaker 1: violation of your right to a jury trial? And you 67 00:04:07,720 --> 00:04:12,560 Speaker 1: maybe get some testimony about that? The court, in a 68 00:04:12,640 --> 00:04:16,080 Speaker 1: five to four decision written by Sandra Day O'Connor, because 69 00:04:16,080 --> 00:04:19,880 Speaker 1: this is nineteen eighty seven, said no, you cannot get 70 00:04:19,920 --> 00:04:23,120 Speaker 1: any testimony about that, and this is maybe even okay, 71 00:04:23,160 --> 00:04:29,640 Speaker 1: this is hard. They harped on an evidentiary rule to 72 00:04:29,760 --> 00:04:32,400 Speaker 1: hold that the evidence of the jury's rampant drug and 73 00:04:32,480 --> 00:04:36,760 Speaker 1: alcohol use was not admissible in court, making this another 74 00:04:36,880 --> 00:04:39,599 Speaker 1: in the long list of cases where the court prioritizes 75 00:04:39,640 --> 00:04:45,640 Speaker 1: procedural technicality over substantive constitutional rights. I'm gonna let you 76 00:04:45,720 --> 00:04:50,520 Speaker 1: run wild on the background. Here are you turning this over? Yeah? Okay, 77 00:04:50,800 --> 00:04:53,760 Speaker 1: all right. This case comes out of a federal criminal 78 00:04:53,839 --> 00:04:58,400 Speaker 1: trial took place in Florida. That's right, Florida man strikes again. 79 00:05:00,120 --> 00:05:04,000 Speaker 1: Homestead Yeah, this time, it isn't the criminal defendants who 80 00:05:04,040 --> 00:05:07,320 Speaker 1: are being Florida man, It is the jury, that's right, 81 00:05:07,520 --> 00:05:11,200 Speaker 1: all right. So Anthony Tanner and William Conover were on 82 00:05:11,320 --> 00:05:14,920 Speaker 1: trial for mail fraud and conspiracy to commit fraud. They 83 00:05:14,920 --> 00:05:18,440 Speaker 1: were convicted by the jury, but before they were sentenced, 84 00:05:18,839 --> 00:05:21,840 Speaker 1: one of the lawyers for Tanner and Conover got an 85 00:05:21,920 --> 00:05:27,479 Speaker 1: alarming phone call. A juror named Vera Asbell called defense 86 00:05:27,520 --> 00:05:31,240 Speaker 1: counsel and told him that she needed to get something 87 00:05:31,320 --> 00:05:35,400 Speaker 1: off her conscience. This was a confession of sorts, father, 88 00:05:35,880 --> 00:05:40,120 Speaker 1: I have witnessed some sin. She told the attorney that 89 00:05:40,240 --> 00:05:43,479 Speaker 1: at the trial, some of the mail jurors were drinking 90 00:05:43,760 --> 00:05:46,400 Speaker 1: during the day, you know, as the trial is going on, 91 00:05:46,800 --> 00:05:49,279 Speaker 1: and then a few of them would sleep through the 92 00:05:49,320 --> 00:05:53,520 Speaker 1: afternoons while the trial is happening in the courthouse. Men, 93 00:05:53,720 --> 00:05:56,440 Speaker 1: am I right? Yeah, it was the mail jurors that 94 00:05:56,560 --> 00:06:01,159 Speaker 1: she pointed out. Yeah. She told defense counsel that another juror, 95 00:06:01,279 --> 00:06:04,800 Speaker 1: Tina Franklin, could confirm these accusations, could confirm what she 96 00:06:04,880 --> 00:06:08,640 Speaker 1: was saying. The ladies on the jury are a guest, 97 00:06:07,960 --> 00:06:13,400 Speaker 1: you know, there's one who gets into it. Well, yeah, 98 00:06:13,640 --> 00:06:17,719 Speaker 1: at least at first that's how it seems, right, yeah, exactly. Now, 99 00:06:17,760 --> 00:06:21,320 Speaker 1: the district court refused to have an evidentiary hearing on this. 100 00:06:21,320 --> 00:06:23,279 Speaker 1: This would be the type of hearing where the court 101 00:06:23,680 --> 00:06:28,160 Speaker 1: digs into what happened, here's testimony from people who were there, 102 00:06:28,200 --> 00:06:30,800 Speaker 1: who know what happened, and the court would be deciding 103 00:06:30,880 --> 00:06:35,040 Speaker 1: whether the defendant's rights were violated. Right. They said no, because, 104 00:06:35,080 --> 00:06:39,000 Speaker 1: according to the court, the jurors testimony would be inadmissible 105 00:06:39,200 --> 00:06:43,920 Speaker 1: under a certain federal evidentiary rule. But that wasn't the 106 00:06:44,040 --> 00:06:47,200 Speaker 1: end of it. It wasn't just that they were drinking. 107 00:06:47,800 --> 00:06:51,680 Speaker 1: A few months later, the initial allegations by Vera Asbell 108 00:06:51,800 --> 00:06:56,360 Speaker 1: were supplemented by another juror named Daniel Hardy. Hardy told 109 00:06:56,360 --> 00:07:00,560 Speaker 1: the defense counsel that fully seven members of the jury 110 00:07:01,800 --> 00:07:06,160 Speaker 1: out of twelve people solid majority more than half, including himself, 111 00:07:06,200 --> 00:07:11,400 Speaker 1: with drinking alcohol during lunch. Four male jurors shared up 112 00:07:11,400 --> 00:07:15,560 Speaker 1: to three pitchers of beer on a daily basis. Okay, 113 00:07:16,040 --> 00:07:20,400 Speaker 1: Hardy himself said that he quote consumed alcohol all the time. 114 00:07:21,360 --> 00:07:25,360 Speaker 1: The female juror, who was four person, would drink a 115 00:07:25,560 --> 00:07:33,360 Speaker 1: leader of wine at lunch every day. The men did 116 00:07:33,480 --> 00:07:36,280 Speaker 1: take it up a notch though. The four jurors, the 117 00:07:36,360 --> 00:07:39,360 Speaker 1: four dudes who were drinking pitchers every day at lunch. 118 00:07:39,640 --> 00:07:43,600 Speaker 1: They also smoked marijuana during the trial about every day. 119 00:07:44,160 --> 00:07:47,720 Speaker 1: One of the jurors allegedly sold sold a qpe a 120 00:07:47,840 --> 00:07:52,640 Speaker 1: quarter pound of marijuana to another juror inside the courthouse. 121 00:07:53,320 --> 00:07:56,080 Speaker 1: The lord, this is the eighties. You could like get 122 00:07:56,120 --> 00:08:00,200 Speaker 1: the death penalty for that. Two of the jurors nor 123 00:08:00,240 --> 00:08:03,360 Speaker 1: died a couple lines of cocaine on several occasions during 124 00:08:03,400 --> 00:08:06,680 Speaker 1: the trial. Sometimes during the trial, two of the jurors 125 00:08:07,040 --> 00:08:11,040 Speaker 1: were ripped off of all three substances. They were drinking, 126 00:08:11,200 --> 00:08:14,400 Speaker 1: they were smoking marijuana, and they were snorting coke. Good. 127 00:08:15,040 --> 00:08:21,760 Speaker 1: The eighties were wild, you know what a time one 128 00:08:21,840 --> 00:08:25,040 Speaker 1: of the jurors talked about how he was quote flying 129 00:08:25,640 --> 00:08:29,120 Speaker 1: during the trial. That was his characterization. And I think 130 00:08:29,120 --> 00:08:31,440 Speaker 1: he's the one where Hardy said like he would go 131 00:08:31,440 --> 00:08:33,600 Speaker 1: to the bathroom and come back sniffling like he had 132 00:08:33,600 --> 00:08:35,840 Speaker 1: a cold. Yeah, all the time. And then he had 133 00:08:35,840 --> 00:08:37,720 Speaker 1: like a little contract and he had a little container 134 00:08:38,240 --> 00:08:41,000 Speaker 1: being like in court on trial for your life, and 135 00:08:41,120 --> 00:08:43,280 Speaker 1: you like glance over at the jury and you to 136 00:08:43,320 --> 00:08:47,719 Speaker 1: see a dude in a khole. We're not far from 137 00:08:47,760 --> 00:08:51,040 Speaker 1: that here. Drooling a little bit. Yeah, yeah, yeah. At 138 00:08:51,080 --> 00:08:53,880 Speaker 1: this point, the defense lawyers file another request for an 139 00:08:53,880 --> 00:08:58,199 Speaker 1: evidentiary hearing. You know, look, Judge, this ship is fucking crazy. 140 00:08:58,400 --> 00:09:01,400 Speaker 1: The court needs to hear about it decide whether something 141 00:09:01,480 --> 00:09:04,840 Speaker 1: really serious enough happened to call the verdict into question, 142 00:09:05,000 --> 00:09:09,200 Speaker 1: right right, The court said no again, testimony from any 143 00:09:09,240 --> 00:09:13,800 Speaker 1: of the jurors is inadmissible, and so the defense lawyers 144 00:09:13,840 --> 00:09:17,240 Speaker 1: appealed all the way to the Supreme Court. And people 145 00:09:17,280 --> 00:09:22,000 Speaker 1: complain about getting stuff with I know, right, imagine like 146 00:09:22,080 --> 00:09:31,679 Speaker 1: just being like, oh, jury time, right, I forgot the code. 147 00:09:32,000 --> 00:09:37,320 Speaker 1: Jury's gonna suck today. Okay, we're laughing about all of 148 00:09:37,360 --> 00:09:40,520 Speaker 1: this stuff. I think it's objectively funny that some people 149 00:09:40,559 --> 00:09:44,160 Speaker 1: got zuited to like watch a trial or whatever. But yeah, 150 00:09:44,160 --> 00:09:46,880 Speaker 1: we should clarify, like, obviously this kind of scares me 151 00:09:47,040 --> 00:09:50,160 Speaker 1: as as a defense attorney, Like this is a really 152 00:09:50,200 --> 00:09:53,520 Speaker 1: serious matter. These people were deciding the fate of these 153 00:09:53,520 --> 00:09:56,559 Speaker 1: two men's lives, and yeah, we don't think it's cool 154 00:09:56,760 --> 00:09:59,720 Speaker 1: that the jury took it this way. That's right. The 155 00:10:00,000 --> 00:10:02,720 Speaker 1: the denial of civil rights is not funny. But sometimes 156 00:10:02,960 --> 00:10:06,240 Speaker 1: when you're going from civil rights to no civil rights, 157 00:10:06,920 --> 00:10:09,840 Speaker 1: some funny stuff happens along the way. That's all We're exactly. 158 00:10:10,400 --> 00:10:14,480 Speaker 1: It's a good way to put it all, right, So 159 00:10:14,559 --> 00:10:18,400 Speaker 1: let's zoom way out here. The sixth Amendment guarantees the 160 00:10:18,520 --> 00:10:20,920 Speaker 1: right to a trial by jury, and not just a jury, 161 00:10:20,920 --> 00:10:24,360 Speaker 1: but an impartial jury. Yeah. Of course, there may, in 162 00:10:24,440 --> 00:10:27,160 Speaker 1: some circumstances be a question of whether the jury was 163 00:10:27,200 --> 00:10:31,480 Speaker 1: acting appropriately where they subject to undue influence, for example, 164 00:10:32,000 --> 00:10:36,440 Speaker 1: or perhaps just demonstrably incompetent in some way that would 165 00:10:36,480 --> 00:10:40,920 Speaker 1: functionally deny you your constitutional right to an impartial jury. 166 00:10:41,520 --> 00:10:44,640 Speaker 1: So there are avenues by which you can impeach the jury, 167 00:10:45,040 --> 00:10:50,880 Speaker 1: meaning challenge the validity of the jury's findings. Fundamentally, this 168 00:10:50,920 --> 00:10:53,640 Speaker 1: case is about the defendant attempting to impeach the jury 169 00:10:53,720 --> 00:10:57,439 Speaker 1: verdict on the basis that the jury was wasted right, 170 00:10:57,480 --> 00:11:01,720 Speaker 1: that perhaps his right to a jury trial was being 171 00:11:01,800 --> 00:11:06,120 Speaker 1: violated here. Yeah, But the threshold question, as Rhannon mentioned, 172 00:11:06,600 --> 00:11:09,600 Speaker 1: is actually about the rules of evidence, the Federal Rules 173 00:11:09,600 --> 00:11:12,880 Speaker 1: of Evidence Rule six H six B. The Federal Rules 174 00:11:12,880 --> 00:11:15,880 Speaker 1: of Evidence are the laws governing the use of evidence 175 00:11:15,880 --> 00:11:20,200 Speaker 1: in federal court, and this rule establishes some pretty stringent 176 00:11:20,400 --> 00:11:24,560 Speaker 1: guidelines for when you can use a juror's own testimony 177 00:11:24,640 --> 00:11:27,640 Speaker 1: to impeach a jury verdict. Remember, the only evidence we 178 00:11:27,679 --> 00:11:31,360 Speaker 1: have here is testimony from other jurors, and there are 179 00:11:31,440 --> 00:11:36,040 Speaker 1: rules governing when jurors can testify about the jury itself, 180 00:11:36,400 --> 00:11:39,560 Speaker 1: because you know, sanctity of the jury, etc. Peter, you 181 00:11:39,600 --> 00:11:42,400 Speaker 1: just said, like the sanctity of the jury, We should 182 00:11:42,400 --> 00:11:45,080 Speaker 1: probably explain that a little bit. So, Yeah, there's this 183 00:11:45,160 --> 00:11:48,720 Speaker 1: kind of principle in the law that like what happens 184 00:11:48,760 --> 00:11:50,800 Speaker 1: in the jury room is is sort of this this 185 00:11:50,960 --> 00:11:55,000 Speaker 1: sacred thing, and that like outside interrogation, interrogation after the 186 00:11:55,080 --> 00:11:58,320 Speaker 1: fact over like what people talked about in the jury 187 00:11:58,400 --> 00:12:01,400 Speaker 1: room to reach their deliverer ration. You know, that's kind 188 00:12:01,400 --> 00:12:05,480 Speaker 1: of inappropriate because you want the jury to be respected, 189 00:12:05,520 --> 00:12:08,720 Speaker 1: a jury's verdict to be respected. You know. The idea 190 00:12:08,800 --> 00:12:12,240 Speaker 1: is that a jury of someone's peers, you know, people 191 00:12:12,280 --> 00:12:15,600 Speaker 1: who come from the public, who have all different kinds 192 00:12:15,600 --> 00:12:21,400 Speaker 1: of experiences, come together and decide on somebody's guilt in 193 00:12:21,440 --> 00:12:23,960 Speaker 1: a trial. So when the court talks about like the 194 00:12:24,000 --> 00:12:26,720 Speaker 1: sanctity of the jury, all of that kind of stuff, 195 00:12:26,760 --> 00:12:30,720 Speaker 1: it's it's this idea really that jury deliberations are supposed 196 00:12:30,760 --> 00:12:35,840 Speaker 1: to be respected because it is an intensive thing that 197 00:12:35,920 --> 00:12:39,320 Speaker 1: the jury goes through, and intensive questions that they answer, 198 00:12:39,800 --> 00:12:43,360 Speaker 1: which should be respected and shouldn't be picked apart after 199 00:12:43,400 --> 00:12:45,920 Speaker 1: the fact. That's right. So that's what the majority, written 200 00:12:45,960 --> 00:12:51,280 Speaker 1: by Sandrada O'Connor grabs onto here. The allegations about the 201 00:12:51,360 --> 00:12:55,000 Speaker 1: jury being drunk and high, they come from juror testimony, 202 00:12:55,040 --> 00:12:58,600 Speaker 1: meaning they come from the jury itself, and the Federal 203 00:12:58,679 --> 00:13:02,439 Speaker 1: Rules of Evidence allow for the admission of juror testimony 204 00:13:02,760 --> 00:13:06,880 Speaker 1: in very limited circumstances. So let's walk through the rule 205 00:13:06,920 --> 00:13:10,520 Speaker 1: a little bit, and I admit it's a little bit confusing. 206 00:13:11,160 --> 00:13:13,600 Speaker 1: Don't worry about it. You don't need to like completely 207 00:13:13,600 --> 00:13:16,760 Speaker 1: comprehend it. Right. So Rule six or six B of 208 00:13:16,800 --> 00:13:20,280 Speaker 1: the Federal Rules of Evidence says that jurors cannot testify about, 209 00:13:20,360 --> 00:13:25,240 Speaker 1: quote the effect of anything on his or another juror's 210 00:13:25,240 --> 00:13:29,960 Speaker 1: mind or emotions as influencing him to assent or descent 211 00:13:30,200 --> 00:13:34,319 Speaker 1: from the verdict. So, okay, that's a little weird, right, 212 00:13:34,360 --> 00:13:38,000 Speaker 1: The effect of anything on his or another juror's mind 213 00:13:38,440 --> 00:13:41,920 Speaker 1: as influencing him to assent or descent from the verdict. 214 00:13:42,559 --> 00:13:47,040 Speaker 1: Does that apply to drugs? Sort of unclear? Right? Right? 215 00:13:47,520 --> 00:13:49,600 Speaker 1: In the most literal sense, you could say that maybe 216 00:13:49,600 --> 00:13:53,120 Speaker 1: it does. However, it's also pretty clear if you look 217 00:13:53,120 --> 00:13:56,160 Speaker 1: at the context of the rule that what it's really 218 00:13:56,200 --> 00:14:00,920 Speaker 1: trying to get at is like juror's mental the liberations 219 00:14:01,040 --> 00:14:04,400 Speaker 1: one way or another, right, right, right, And in terms 220 00:14:04,400 --> 00:14:09,559 Speaker 1: of quote, anything on the juror's mind that influences them 221 00:14:09,600 --> 00:14:12,360 Speaker 1: to assent or discent. You know, I read that kind 222 00:14:12,360 --> 00:14:16,199 Speaker 1: of in a plain language way to mean like anything 223 00:14:16,440 --> 00:14:20,280 Speaker 1: from the trial, right, A piece of evidence, a witness 224 00:14:20,360 --> 00:14:23,640 Speaker 1: is demeanor. Right, those are the things on the mind 225 00:14:23,720 --> 00:14:27,680 Speaker 1: of a juror that would influence them to assent or 226 00:14:27,800 --> 00:14:30,680 Speaker 1: dissent from the verdict. And I think that's what the 227 00:14:30,760 --> 00:14:32,640 Speaker 1: rule is talking about. And there's also a question of 228 00:14:32,640 --> 00:14:36,800 Speaker 1: whether drugs or alcohol influence someone to assent or descent 229 00:14:36,880 --> 00:14:39,600 Speaker 1: from the verdict. Right. They don't push you in one direction. 230 00:14:40,520 --> 00:14:43,680 Speaker 1: What they do is influence your decision making, right, right, 231 00:14:43,800 --> 00:14:46,040 Speaker 1: which seems like it's a separate thing. Yeah. Now there's 232 00:14:46,080 --> 00:14:48,280 Speaker 1: other parts of this rule. It also says they can't 233 00:14:48,280 --> 00:14:52,680 Speaker 1: testify about a juror's mental processes, and there are exceptions. 234 00:14:53,040 --> 00:14:58,120 Speaker 1: There can be juror testimony about whether outside influence was 235 00:14:58,200 --> 00:15:01,840 Speaker 1: brought to bear on any juror. Presumably that mostly means 236 00:15:01,920 --> 00:15:05,200 Speaker 1: bribes and threats. There's also a question here of whether 237 00:15:05,800 --> 00:15:09,600 Speaker 1: outside influence in the most literal sense would include drugs. So, 238 00:15:10,280 --> 00:15:12,680 Speaker 1: but the fundamental question is whether all of this means 239 00:15:12,680 --> 00:15:16,280 Speaker 1: that a juror cannot provide testimony about drug and alcohol 240 00:15:16,400 --> 00:15:20,480 Speaker 1: use by other jurors. If the testimony is admissible, then 241 00:15:20,520 --> 00:15:22,720 Speaker 1: Tanner probably needs a new trial at the end of 242 00:15:22,760 --> 00:15:25,680 Speaker 1: the day, right. If not, he's out of luck. And 243 00:15:25,720 --> 00:15:28,360 Speaker 1: so what the majority does is look at the common 244 00:15:28,400 --> 00:15:32,960 Speaker 1: law history of juror testimony admissibility. In other words, the 245 00:15:33,040 --> 00:15:35,280 Speaker 1: rules of evidence are a federal law, but the court 246 00:15:35,320 --> 00:15:38,280 Speaker 1: is looking back at what courts did historically in order 247 00:15:38,360 --> 00:15:41,760 Speaker 1: to interpret that law, which is always a little awkward, right, 248 00:15:41,800 --> 00:15:44,560 Speaker 1: because if we're going to use the historical common law 249 00:15:45,000 --> 00:15:48,760 Speaker 1: to interpret the statute, it starts to defeat the purpose 250 00:15:48,760 --> 00:15:52,400 Speaker 1: of having a statute at all at some point. But whatever. Anyway, 251 00:15:52,920 --> 00:15:56,840 Speaker 1: the Court says that historically there's an important dichotomy here. 252 00:15:57,120 --> 00:16:00,280 Speaker 1: There are things that happen internally within the jury room, 253 00:16:00,400 --> 00:16:03,240 Speaker 1: and those are private matters that can't be testified about, 254 00:16:03,800 --> 00:16:05,800 Speaker 1: and then there are things that happen external to the 255 00:16:05,880 --> 00:16:08,920 Speaker 1: jury room, like bribes or threats, and those can be 256 00:16:09,040 --> 00:16:13,040 Speaker 1: testified about drug and alcohol uses within the walls of 257 00:16:13,080 --> 00:16:16,440 Speaker 1: the jury room, according to Sandra Day O'Connor, So jurors 258 00:16:16,440 --> 00:16:20,800 Speaker 1: can't testify about it. Now, by contrast, what the descent 259 00:16:20,880 --> 00:16:24,640 Speaker 1: says is No, that's not the relevant distinction. What the 260 00:16:24,720 --> 00:16:27,720 Speaker 1: rule is meant to do is protect the confidentiality of 261 00:16:27,880 --> 00:16:32,000 Speaker 1: jury deliberations. So the distinction that we should be worried 262 00:16:32,000 --> 00:16:35,120 Speaker 1: about is not whether it's in the jury room or 263 00:16:35,200 --> 00:16:38,040 Speaker 1: outside of the jury room, but whether the testimony in 264 00:16:38,120 --> 00:16:42,080 Speaker 1: question is about jury deliberation or not. And this is 265 00:16:42,120 --> 00:16:45,120 Speaker 1: not right. This is about drug and alcohol use during 266 00:16:45,160 --> 00:16:49,520 Speaker 1: the trial before deliberation, right, So the rule doesn't apply 267 00:16:50,040 --> 00:16:54,280 Speaker 1: and the jurors testimony should be admitted into evidence. Yeah, Peter, 268 00:16:54,320 --> 00:16:57,280 Speaker 1: I'm glad that you explain what Sandra day O'Connor is 269 00:16:57,360 --> 00:17:00,120 Speaker 1: kind of doing here. She's saying that something that happened 270 00:17:00,520 --> 00:17:05,000 Speaker 1: inside the jury room internal to jury deliberations, that there 271 00:17:05,040 --> 00:17:10,200 Speaker 1: cannot be testimony about what happened there in those circumstances. 272 00:17:10,200 --> 00:17:13,320 Speaker 1: Something that happens outside external to the jury room, those 273 00:17:13,359 --> 00:17:16,240 Speaker 1: things the court can here testimony about, right. But I 274 00:17:16,280 --> 00:17:20,239 Speaker 1: just want to point out, like the descent obviously explains that, 275 00:17:20,280 --> 00:17:24,040 Speaker 1: like this internal external distinction doesn't really work. You know, 276 00:17:24,119 --> 00:17:27,119 Speaker 1: the distinction should be whether or not the testimony is 277 00:17:27,160 --> 00:17:30,440 Speaker 1: about deliberations or not. But I also think it's worth 278 00:17:30,520 --> 00:17:36,320 Speaker 1: highlighting this internal external distinction that the majority does is 279 00:17:36,359 --> 00:17:40,080 Speaker 1: not only kind of silly because as the Descent points out, 280 00:17:40,160 --> 00:17:43,000 Speaker 1: it's not a sort of meaningful distinction in the way 281 00:17:43,040 --> 00:17:45,200 Speaker 1: that it should be, but Sandra Day O'Connor is also 282 00:17:45,240 --> 00:17:48,240 Speaker 1: applying this rule that she just made up. She's applying 283 00:17:48,280 --> 00:17:52,880 Speaker 1: it incorrectly because we're not talking about events that happened 284 00:17:52,920 --> 00:17:56,679 Speaker 1: inside the jury We literally are talking about events that 285 00:17:56,720 --> 00:17:59,840 Speaker 1: are external to the jury room. They were doing drugs 286 00:18:00,040 --> 00:18:03,359 Speaker 1: and drinking during the trial outside of the jury room. 287 00:18:03,359 --> 00:18:05,679 Speaker 1: They were not deliberated, right, they were still in the 288 00:18:05,760 --> 00:18:10,640 Speaker 1: metaphorical jury room. That's what you're not. I'm sorry, I'm 289 00:18:10,680 --> 00:18:13,919 Speaker 1: not in the brain jury room that Sandra day O'Connor is. 290 00:18:14,040 --> 00:18:17,080 Speaker 1: That's genuinely what she must mean, right, that it's like 291 00:18:17,520 --> 00:18:21,160 Speaker 1: they're in the jury space, you know, right, right, exacternal 292 00:18:21,240 --> 00:18:24,000 Speaker 1: external distinction was so sort of dumb because it's like 293 00:18:24,480 --> 00:18:26,479 Speaker 1: it's clear what she's trying to get at, which is 294 00:18:26,560 --> 00:18:30,760 Speaker 1: like you can't come out afterwards and be like, well, yeah, 295 00:18:30,840 --> 00:18:33,120 Speaker 1: we let this guy off. But that's because a lot 296 00:18:33,119 --> 00:18:35,719 Speaker 1: of the jurors were sexist and so they thought all 297 00:18:35,760 --> 00:18:39,400 Speaker 1: the female witnesses were lying or whatever, right, right, but 298 00:18:39,920 --> 00:18:45,080 Speaker 1: somebody got intimidated like in their home or something. Of course, 299 00:18:45,080 --> 00:18:47,879 Speaker 1: you can testify about that. That that makes perfect sense 300 00:18:48,040 --> 00:18:51,639 Speaker 1: and is sort of internal external, But is it a 301 00:18:51,720 --> 00:18:57,159 Speaker 1: deliberation or not? Is I think the more important thing, right, 302 00:18:57,240 --> 00:19:00,560 Speaker 1: like exactly, and what Justice Marshall is saying, yeah, that's 303 00:19:00,600 --> 00:19:03,600 Speaker 1: what you're trying to capture here, and not only is 304 00:19:03,600 --> 00:19:06,600 Speaker 1: she not capturing it, but then her like bad heuristic 305 00:19:06,720 --> 00:19:11,240 Speaker 1: is being applied stupidly, right, Like that's like this is 306 00:19:11,280 --> 00:19:13,800 Speaker 1: all happening outside the jury room. They're getting trashed at 307 00:19:13,800 --> 00:19:19,280 Speaker 1: Applebee's or whatever. You know. You can conceptualize the sanctity 308 00:19:19,359 --> 00:19:21,840 Speaker 1: of the jury quote unquote in different ways. I think 309 00:19:21,840 --> 00:19:23,840 Speaker 1: the more obvious way is the way that the descents 310 00:19:23,920 --> 00:19:27,440 Speaker 1: doing it, where you're saying, yeah, like the jury deliberation 311 00:19:28,440 --> 00:19:31,880 Speaker 1: is important and needs to be protected, and we can't 312 00:19:31,920 --> 00:19:34,959 Speaker 1: have everyone testifying about what goes on, right yeah, right. 313 00:19:35,080 --> 00:19:37,840 Speaker 1: What O'Connor is doing is being like, yeah, anything the 314 00:19:37,920 --> 00:19:42,119 Speaker 1: jury does is sacred, and it's like, why would that 315 00:19:42,160 --> 00:19:43,840 Speaker 1: be the rule that it just doesn't make a lot 316 00:19:43,880 --> 00:19:47,920 Speaker 1: of practical sense. Smoking a joint in the fucking loading 317 00:19:47,960 --> 00:19:50,840 Speaker 1: bay at the Ramada Inn or whatever down the street, 318 00:19:51,040 --> 00:19:55,879 Speaker 1: that's external, right, Exactly if a juror got threatened outside 319 00:19:55,880 --> 00:19:59,760 Speaker 1: of the courtroom, right at home concerning the jury, or 320 00:20:00,240 --> 00:20:03,119 Speaker 1: saw something on the news that might prejudice them, right, 321 00:20:03,160 --> 00:20:06,119 Speaker 1: are those really internal? You can make the argument that 322 00:20:06,119 --> 00:20:10,960 Speaker 1: they're external. Right, So this distinction is doing no work. 323 00:20:11,040 --> 00:20:14,240 Speaker 1: It just doesn't make a lot of sense. And more importantly, 324 00:20:14,400 --> 00:20:17,119 Speaker 1: you can almost sort of put it aside, right, because 325 00:20:17,800 --> 00:20:20,240 Speaker 1: it does feel like it's beside the point here. The 326 00:20:20,359 --> 00:20:23,840 Speaker 1: point should be that this is a violation of Tanner's 327 00:20:23,960 --> 00:20:27,640 Speaker 1: constitutional right to a jury right. The jury was impaired 328 00:20:27,840 --> 00:20:30,320 Speaker 1: to the point where most of them probably wouldn't be 329 00:20:30,359 --> 00:20:34,680 Speaker 1: allowed to legally operate a forklift, let alone decide whether 330 00:20:34,800 --> 00:20:38,640 Speaker 1: or not someone should be a free human being, you know. Right, 331 00:20:38,840 --> 00:20:41,400 Speaker 1: And there's this pretty basic reality here that the majority 332 00:20:41,720 --> 00:20:45,760 Speaker 1: seems to ignore. If the jury were literally unconscious from 333 00:20:45,800 --> 00:20:48,679 Speaker 1: drugs and drinking pass that on the floor, not able 334 00:20:48,680 --> 00:20:51,919 Speaker 1: to process information at all for the duration of the trial, 335 00:20:52,160 --> 00:20:55,080 Speaker 1: I would hope that we could all agree. Sanderday O'Connor 336 00:20:55,119 --> 00:20:59,040 Speaker 1: included that that does not satisfy the constitutional right to 337 00:20:59,080 --> 00:21:02,320 Speaker 1: a jury. So there must be some place on the 338 00:21:02,400 --> 00:21:07,480 Speaker 1: spectrum between stone sober jury and completely unconscious jury where 339 00:21:07,520 --> 00:21:10,440 Speaker 1: we all have to admit that this no longer qualifies 340 00:21:10,640 --> 00:21:14,399 Speaker 1: as a constitutionally adequate jury. Right. Where exactly on the 341 00:21:14,480 --> 00:21:17,119 Speaker 1: spectrum that line is might not be an easy question 342 00:21:17,200 --> 00:21:20,399 Speaker 1: to answer, but it's the court's obligation to answer it, 343 00:21:20,720 --> 00:21:25,120 Speaker 1: not when the federal rules of evidence stand. Well, yeah, 344 00:21:25,119 --> 00:21:27,479 Speaker 1: that's what's happening is the court is essentially acting like 345 00:21:27,520 --> 00:21:31,040 Speaker 1: this is just a case about evidentiary rules when it's not. 346 00:21:31,200 --> 00:21:34,320 Speaker 1: It's about whether this man received a constitutionally fair trial, 347 00:21:34,680 --> 00:21:37,760 Speaker 1: and if he didn't, then it doesn't matter or shouldn't 348 00:21:37,800 --> 00:21:40,800 Speaker 1: matter what the federal rules of evidence say. Yeah. Right. 349 00:21:41,400 --> 00:21:42,800 Speaker 1: One thing I wanted to point out is like, this 350 00:21:42,840 --> 00:21:44,960 Speaker 1: is nineteen eighty seven when this case is coming down, 351 00:21:44,960 --> 00:21:49,600 Speaker 1: and there's just like there's no textualism at all. Right now, 352 00:21:49,680 --> 00:21:52,679 Speaker 1: we've talked about how the conservative legal movement sort of 353 00:21:52,720 --> 00:21:56,720 Speaker 1: built up these ideas like textualism and originalism over time, 354 00:21:57,440 --> 00:22:01,439 Speaker 1: and this is like mid to late eight, and you 355 00:22:01,520 --> 00:22:05,080 Speaker 1: have a statute and you're trying to interpret it, and 356 00:22:05,240 --> 00:22:07,800 Speaker 1: at no point does someone just say, well, let's look 357 00:22:07,800 --> 00:22:10,040 Speaker 1: at the words of the statute and like think about 358 00:22:10,080 --> 00:22:12,080 Speaker 1: what the most literal meaning of it is and then 359 00:22:12,119 --> 00:22:14,879 Speaker 1: we'll work from there. That just wasn't how the analysis 360 00:22:14,920 --> 00:22:16,840 Speaker 1: was done. And it's just sort of jarring when you've 361 00:22:16,880 --> 00:22:19,920 Speaker 1: been reading like modern jurisprudence that you just don't see 362 00:22:19,920 --> 00:22:22,199 Speaker 1: it at all, and goes to show how successful the 363 00:22:22,200 --> 00:22:26,080 Speaker 1: conservatives have been at influencing the way that the laws analyze. 364 00:22:26,119 --> 00:22:29,280 Speaker 1: It's just sort of wild. Yeah, extensive discussion of legislative 365 00:22:29,320 --> 00:22:34,399 Speaker 1: history of pages of it, yes, which they found conclusive. Yeah, 366 00:22:34,440 --> 00:22:37,159 Speaker 1: but including in the Descent Right. The Descent has a 367 00:22:37,200 --> 00:22:40,920 Speaker 1: pretty extensive treatment of legislative history as well, but comes 368 00:22:40,960 --> 00:22:44,960 Speaker 1: out the other way. One final item worth discussing the 369 00:22:45,000 --> 00:22:49,080 Speaker 1: opinion wraps up by saying that although allowing for investigations 370 00:22:49,160 --> 00:22:54,800 Speaker 1: into jer misconduct would sometimes uncover misconduct, it's not worth 371 00:22:54,840 --> 00:22:57,720 Speaker 1: it because it would basically be such an administrative hassle. 372 00:22:58,480 --> 00:23:02,640 Speaker 1: O'Connor says that frequent challenging of verdicts based on juror 373 00:23:02,720 --> 00:23:07,360 Speaker 1: misconduct would quote disrupt the finality of the process. Yeah, 374 00:23:07,359 --> 00:23:10,720 Speaker 1: and just to jump in here, the Court does reference 375 00:23:10,800 --> 00:23:15,399 Speaker 1: this sort of principle of like finality of a verdict, right, 376 00:23:15,440 --> 00:23:18,040 Speaker 1: that we have to be able to trust that the 377 00:23:18,160 --> 00:23:23,240 Speaker 1: jury's decision is final, that we can't go back after 378 00:23:23,280 --> 00:23:26,160 Speaker 1: the fact and pick apart what the jury did in 379 00:23:26,200 --> 00:23:30,480 Speaker 1: the jury room and you know, sort of upend jury verdicts. Right. 380 00:23:30,560 --> 00:23:33,840 Speaker 1: The public has to be able to trust that jury 381 00:23:33,840 --> 00:23:38,280 Speaker 1: decisions are the decisions. And so that's what the kind 382 00:23:38,280 --> 00:23:43,800 Speaker 1: of finality principle means. But we've mentioned before that especially 383 00:23:43,920 --> 00:23:47,880 Speaker 1: in criminal law, judges the Supreme Court over the course 384 00:23:47,880 --> 00:23:51,760 Speaker 1: of years generations have referenced this kind of you know, 385 00:23:51,960 --> 00:23:57,000 Speaker 1: high minded principle of finality of jury verdicts, but only 386 00:23:57,080 --> 00:24:01,800 Speaker 1: in service of a higher principle to federal judges, which 387 00:24:01,840 --> 00:24:06,600 Speaker 1: is not wanting to review these cases. Right, That's right. 388 00:24:07,560 --> 00:24:11,200 Speaker 1: You see it kind of trotted out and used by 389 00:24:11,240 --> 00:24:14,720 Speaker 1: the Supreme Court in many different kinds of cases basically 390 00:24:14,760 --> 00:24:18,560 Speaker 1: as like a reason why we can't review what happened, right, right. 391 00:24:18,640 --> 00:24:21,919 Speaker 1: Conservative judges love it because it is something that it 392 00:24:21,960 --> 00:24:25,000 Speaker 1: makes sense that eventually you run out of bites at 393 00:24:25,000 --> 00:24:27,520 Speaker 1: the apple, right, that process runs out, you've done all 394 00:24:27,520 --> 00:24:29,960 Speaker 1: your state appeals, you've done your constitutional peels, blah blah 395 00:24:29,960 --> 00:24:33,639 Speaker 1: blah blah blah all that. With conservatives sometimes they're like, 396 00:24:34,160 --> 00:24:36,359 Speaker 1: that's it right, right, Like you have one bite at 397 00:24:36,359 --> 00:24:38,199 Speaker 1: the apple and they're like, that's it's done, right exactly. 398 00:24:38,280 --> 00:24:40,840 Speaker 1: Finality is just to them, it's an excuse to put 399 00:24:40,880 --> 00:24:43,119 Speaker 1: an end to the proceedings. Yes, it's just like a 400 00:24:43,200 --> 00:24:46,680 Speaker 1: vocabulary that they speak when they want to end the proceeding. 401 00:24:46,720 --> 00:24:48,680 Speaker 1: For some like someone is claiming that their civil rights 402 00:24:48,680 --> 00:24:51,160 Speaker 1: are being violated, and conservatives are like, well, that would 403 00:24:51,160 --> 00:24:55,560 Speaker 1: be against the principle of finality, which means I don't 404 00:24:55,600 --> 00:24:58,800 Speaker 1: want to keep going with this shit, right exactly, I 405 00:24:59,480 --> 00:25:01,320 Speaker 1: don't want to look at this. Yeah. It's also I 406 00:25:01,359 --> 00:25:04,520 Speaker 1: should I should mention that it's a little bit adjacent 407 00:25:04,560 --> 00:25:07,640 Speaker 1: to like victims rights movements, which are very aligned with 408 00:25:07,680 --> 00:25:11,040 Speaker 1: like prosecutors and stuff. Right, there are sort of groups 409 00:25:11,080 --> 00:25:17,840 Speaker 1: that are basically aggressive prosecution advocacy organizations that sort of 410 00:25:18,200 --> 00:25:21,480 Speaker 1: portray themselves as being about victims rights, right, And then 411 00:25:21,720 --> 00:25:26,120 Speaker 1: the argument is like, well, the victims and their families 412 00:25:26,240 --> 00:25:29,680 Speaker 1: need finalities so they can sort of move on, yes, right, 413 00:25:29,880 --> 00:25:33,520 Speaker 1: which is not you know, in and of itself totally untrue, 414 00:25:33,680 --> 00:25:37,679 Speaker 1: but the idea that it should trump someone's civil rights, right, 415 00:25:37,760 --> 00:25:41,480 Speaker 1: I just invest bullshit? Right. Also funny here where the 416 00:25:41,600 --> 00:25:44,639 Speaker 1: victim is like the federal government getting defrauded out of 417 00:25:44,640 --> 00:25:49,919 Speaker 1: a few million dollars, Like it's some like grieving widow 418 00:25:50,000 --> 00:25:52,919 Speaker 1: at home or anything. The government needs to move on. 419 00:25:53,080 --> 00:25:55,919 Speaker 1: The AG's office needs to be able to sleep it, 420 00:25:56,280 --> 00:26:00,000 Speaker 1: you know, they need they need to put us behind them. Yeah. 421 00:26:00,200 --> 00:26:03,439 Speaker 1: And they also say that public trust in the jury 422 00:26:03,480 --> 00:26:07,400 Speaker 1: system would be undermined if we scrutinize juror conduct too much, 423 00:26:07,800 --> 00:26:09,560 Speaker 1: which is just another way of saying like, if we 424 00:26:09,600 --> 00:26:13,080 Speaker 1: revealed how much jurm as conduct there is, people would 425 00:26:13,119 --> 00:26:16,440 Speaker 1: not trust the system. And it's like, yeah, that does 426 00:26:16,480 --> 00:26:21,520 Speaker 1: sound right, yeah, yeah, right, yeah yeah. If we said 427 00:26:21,720 --> 00:26:27,040 Speaker 1: that getting absolutely lit during a trial is a problem 428 00:26:27,080 --> 00:26:30,879 Speaker 1: for the jury, then yeah, people might question the efficacy 429 00:26:30,920 --> 00:26:32,800 Speaker 1: of jury. It's I mean, I do agree that that 430 00:26:32,840 --> 00:26:35,600 Speaker 1: would undermine trust in the jury system. I guess I 431 00:26:35,680 --> 00:26:38,840 Speaker 1: don't agree that the solution to that is to bury 432 00:26:39,040 --> 00:26:44,520 Speaker 1: all the evidence of misconduct and say it's inadmissible. That's 433 00:26:44,600 --> 00:26:46,920 Speaker 1: right to each his or her own. Sandra Day O'Connor, 434 00:26:48,160 --> 00:26:50,080 Speaker 1: this is a good spot. It feels like to take 435 00:26:50,080 --> 00:26:54,000 Speaker 1: a break and we're back. We should talk about the descent. 436 00:26:54,200 --> 00:26:58,679 Speaker 1: This is written by Thurgood Marshall. He's joined by Justices Stevens, 437 00:26:58,760 --> 00:27:01,720 Speaker 1: Blackman and Brent In. So, you know, just want to 438 00:27:01,760 --> 00:27:03,960 Speaker 1: point out this is a five four decision. The court 439 00:27:04,119 --> 00:27:07,640 Speaker 1: is really split here, and you know the Conservatives take 440 00:27:07,720 --> 00:27:11,320 Speaker 1: the day once again. But you know, Marshall really responds 441 00:27:11,400 --> 00:27:14,080 Speaker 1: to the rules six or six B analysis that the 442 00:27:14,080 --> 00:27:17,359 Speaker 1: majority goes with with his own, like I mentioned, his 443 00:27:17,440 --> 00:27:21,640 Speaker 1: own intensive analysis of the rule, but he comes out differently. 444 00:27:21,680 --> 00:27:25,680 Speaker 1: He goes through legislative history, he goes through the policy considerations, 445 00:27:25,720 --> 00:27:29,399 Speaker 1: he goes through the notes on the legislative history, the 446 00:27:29,560 --> 00:27:31,920 Speaker 1: comments on the adoption of the rule. I mean, there's 447 00:27:31,920 --> 00:27:35,000 Speaker 1: really sort of a picking a part of this rule, 448 00:27:35,320 --> 00:27:37,240 Speaker 1: how it came to be, the purpose of the rule, 449 00:27:38,000 --> 00:27:40,280 Speaker 1: you know all of that. And you know what I 450 00:27:40,320 --> 00:27:43,840 Speaker 1: like too is that Marshall points out these allegations about 451 00:27:43,880 --> 00:27:47,480 Speaker 1: what the jury was doing. These are provable allegations, Like 452 00:27:47,800 --> 00:27:50,360 Speaker 1: you're not talking about what's going on in someone's head 453 00:27:50,400 --> 00:27:52,640 Speaker 1: in terms of how they think about the case. You're 454 00:27:52,680 --> 00:27:57,119 Speaker 1: not talking about the jury deliberations, the deliberations about the case, 455 00:27:57,359 --> 00:28:01,000 Speaker 1: their conversations about the facts that evidence that they heard, 456 00:28:01,040 --> 00:28:04,720 Speaker 1: their thought processes, their agreements and disagreements in the jury 457 00:28:04,800 --> 00:28:07,600 Speaker 1: room as they came to their verdict, whether or not 458 00:28:07,640 --> 00:28:12,280 Speaker 1: the jury was ingesting substances, whether they were pardon me, 459 00:28:12,359 --> 00:28:18,000 Speaker 1: but gone off that loud Again, Marshall says, we can 460 00:28:18,080 --> 00:28:22,200 Speaker 1: hear testimony about that and determine whether or not it happened. Right, 461 00:28:22,760 --> 00:28:25,720 Speaker 1: there's a good quote here from the descent. Petitioners are 462 00:28:25,760 --> 00:28:29,440 Speaker 1: not asking for a perfect jury. They're seeking to determine 463 00:28:29,480 --> 00:28:32,359 Speaker 1: whether the jury that heard their case behaved in a 464 00:28:32,400 --> 00:28:35,480 Speaker 1: manner consonant with the minimum requirements of the sixth Amendment. 465 00:28:35,760 --> 00:28:39,120 Speaker 1: If we deny them this opportunity, the jury system may survive, 466 00:28:39,400 --> 00:28:42,240 Speaker 1: but the constitutional guarantee on which it is based will 467 00:28:42,280 --> 00:28:46,080 Speaker 1: become meaningless. So just as Marshall does put in this 468 00:28:46,160 --> 00:28:49,720 Speaker 1: sort of a reference to the constitution, a reference to 469 00:28:49,760 --> 00:28:51,840 Speaker 1: the sixth Amendment, which is, you know, your right to 470 00:28:52,480 --> 00:28:56,600 Speaker 1: an impartial jury trial, among other things. But we should 471 00:28:56,680 --> 00:29:01,000 Speaker 1: note that, like Peter said, uptime with the court kind 472 00:29:01,040 --> 00:29:05,160 Speaker 1: of latching on to the evidentiary rule and having their 473 00:29:05,160 --> 00:29:08,800 Speaker 1: analysis come out of the rule means that the constitution 474 00:29:08,960 --> 00:29:12,920 Speaker 1: is kind of ignored here, And there is the point that, like, 475 00:29:13,240 --> 00:29:17,479 Speaker 1: the question presented to the court is not whether Tanner 476 00:29:17,520 --> 00:29:22,000 Speaker 1: and Conover got their constitutional rights violated, it's just whether 477 00:29:22,040 --> 00:29:26,120 Speaker 1: the court should have given them an evidentiary hearing about 478 00:29:26,360 --> 00:29:30,000 Speaker 1: ger misconduct. But still, I mean that really obvious skates 479 00:29:30,160 --> 00:29:35,440 Speaker 1: the really intense, substantial risks to constitutional rights that this 480 00:29:35,520 --> 00:29:38,840 Speaker 1: case brings up, right, And nowhere in the majority is 481 00:29:38,880 --> 00:29:43,120 Speaker 1: that really discussed the sixth Amendment. Marshall includes it in 482 00:29:43,200 --> 00:29:46,600 Speaker 1: what I would say is like dicta of the dissent right. 483 00:29:46,760 --> 00:29:50,960 Speaker 1: But there isn't an intensive constitutional analysis here. This is 484 00:29:51,000 --> 00:29:53,800 Speaker 1: about the rules of evidence, and that's kind of it. Yeah, 485 00:29:53,840 --> 00:29:56,360 Speaker 1: And I thought like this also tied into he had 486 00:29:56,400 --> 00:29:59,680 Speaker 1: a pretty good point about the majority very much down 487 00:30:00,040 --> 00:30:05,240 Speaker 1: laying the sort of severity of this jer misconduct, right, like, 488 00:30:05,280 --> 00:30:09,000 Speaker 1: oh yeah, questioning whether like these jurors, even if you 489 00:30:09,040 --> 00:30:13,360 Speaker 1: know this evidence was admissible, whether this would be sufficient 490 00:30:13,440 --> 00:30:16,840 Speaker 1: to prove death A jurors were not competent, right, right. 491 00:30:16,920 --> 00:30:20,080 Speaker 1: And O'Connor does so by really trying to sweep under 492 00:30:20,160 --> 00:30:25,000 Speaker 1: the rug all the marijuana, cocaine and other more salacious 493 00:30:25,080 --> 00:30:28,960 Speaker 1: allegations and and rely on just like, oh, so what 494 00:30:29,160 --> 00:30:31,400 Speaker 1: some people had a few beers sort of sort of 495 00:30:31,600 --> 00:30:37,200 Speaker 1: maybe somebody knotted off here and there. But it's like, look, 496 00:30:37,320 --> 00:30:41,200 Speaker 1: even if one person was ripped for one day, like 497 00:30:41,280 --> 00:30:44,080 Speaker 1: that's that's a day where your juror, you had a 498 00:30:44,160 --> 00:30:47,880 Speaker 1: juror who was not present mentally right, was not was 499 00:30:47,920 --> 00:30:51,120 Speaker 1: not there like right, And so that's like, I don't 500 00:30:51,120 --> 00:30:54,560 Speaker 1: know how that could be anything but a constitutional violation. Right, 501 00:30:55,080 --> 00:30:58,720 Speaker 1: a juror so fucked up that they are not like 502 00:30:58,840 --> 00:31:04,320 Speaker 1: mentally present, you're not getting your six Amendment rights vindicated. Yeah, 503 00:31:04,320 --> 00:31:06,360 Speaker 1: And then another thing is just that, like, you know, 504 00:31:06,440 --> 00:31:09,040 Speaker 1: you make the point, Michael, that O'Connor really downplays the 505 00:31:09,120 --> 00:31:13,160 Speaker 1: juror misconduct. That's completely true. You only get the details 506 00:31:13,240 --> 00:31:16,520 Speaker 1: about the allegations what the jurors were actually up to. 507 00:31:16,640 --> 00:31:19,680 Speaker 1: You only get that in Marshall's dissent. And then I 508 00:31:19,720 --> 00:31:22,880 Speaker 1: also wanted to point out that again we've seen this 509 00:31:23,040 --> 00:31:28,200 Speaker 1: numerous times, especially in criminal cases. O'Connor's majority starts with 510 00:31:28,680 --> 00:31:34,080 Speaker 1: a detailed rundown of the crimes that Tanner and Conover 511 00:31:34,280 --> 00:31:36,719 Speaker 1: are accused of. The First, I want to say, you know, 512 00:31:36,800 --> 00:31:40,640 Speaker 1: maybe ten paragraphs of this opinion are about the mail 513 00:31:40,720 --> 00:31:43,680 Speaker 1: fraud and the conspiracy to commit fraud, which is what 514 00:31:43,880 --> 00:31:46,760 Speaker 1: the defendants are accused of. It has nothing to do 515 00:31:46,880 --> 00:31:49,440 Speaker 1: with this Supreme Court case and the question in front 516 00:31:49,480 --> 00:31:52,280 Speaker 1: of them. Right, sure, you might feel bad for this guy. 517 00:31:52,440 --> 00:31:55,960 Speaker 1: What if I told you he committed mail fraud? Maybe 518 00:31:58,000 --> 00:32:00,680 Speaker 1: you feel bad for him now, well I do. I 519 00:32:00,720 --> 00:32:03,280 Speaker 1: do think they affirmed the convictions as well, although I 520 00:32:03,280 --> 00:32:07,280 Speaker 1: think it's like very much a side side thing. So right, right, 521 00:32:07,520 --> 00:32:09,680 Speaker 1: it's not whether somebody is guilty or not guilty. It's 522 00:32:09,680 --> 00:32:12,920 Speaker 1: whether the trial that they received, right, It's whether the 523 00:32:13,000 --> 00:32:17,160 Speaker 1: jury that they got who assessed these allegations against them 524 00:32:17,320 --> 00:32:19,760 Speaker 1: and will determine, right, whether or not these people go 525 00:32:19,840 --> 00:32:22,920 Speaker 1: to prison. It's about whether that jury was a fair 526 00:32:23,040 --> 00:32:25,600 Speaker 1: jury for them. Yes, right, So all the facts that 527 00:32:25,680 --> 00:32:28,960 Speaker 1: she's restating as if they are true are in fact 528 00:32:29,040 --> 00:32:32,960 Speaker 1: contingent upon whether or not the trial that we're talking 529 00:32:33,000 --> 00:32:34,880 Speaker 1: about was a valid one. And that's the whole thing, 530 00:32:34,960 --> 00:32:38,800 Speaker 1: exactly right, just backwards whatever. That's exactly right. And I 531 00:32:38,840 --> 00:32:42,680 Speaker 1: think the majority does this kind of smoke and mirrors 532 00:32:42,720 --> 00:32:47,040 Speaker 1: thing where it's emphasizing and highlighting and saying that it's 533 00:32:47,080 --> 00:32:50,840 Speaker 1: respecting the sanctity of the jury room. Right. This is 534 00:32:50,840 --> 00:32:54,360 Speaker 1: like a concept in right about the jury, about trial 535 00:32:54,480 --> 00:32:58,960 Speaker 1: level cases where what goes on behind closed doors as 536 00:32:59,000 --> 00:33:03,000 Speaker 1: a jury is delivery about a case is ultimately respected, 537 00:33:03,080 --> 00:33:06,160 Speaker 1: right because of the importance of having a jury of 538 00:33:06,200 --> 00:33:10,120 Speaker 1: your peers, of sort of a public accountability for somebody's wrongs. 539 00:33:10,280 --> 00:33:13,640 Speaker 1: This is in theory I don't I certainly don't agree 540 00:33:13,680 --> 00:33:18,040 Speaker 1: with like the way we're we're metting out so called 541 00:33:18,080 --> 00:33:20,200 Speaker 1: justice in our system. But that is part of the 542 00:33:20,200 --> 00:33:24,160 Speaker 1: point too, that like the sanctity, the supposed sanctity of 543 00:33:24,720 --> 00:33:29,680 Speaker 1: the jury room and juries, deliberations are worthy of the 544 00:33:29,880 --> 00:33:32,960 Speaker 1: utmost respect right, and that we shouldn't turn that over, 545 00:33:33,400 --> 00:33:36,880 Speaker 1: we shouldn't threaten that in any way. But there's no 546 00:33:36,960 --> 00:33:45,160 Speaker 1: treatment at all about the jurors themselves disrespecting the sanctity 547 00:33:45,440 --> 00:33:48,120 Speaker 1: of the process that they're called to do. Right, The 548 00:33:48,240 --> 00:33:51,960 Speaker 1: court is concerned about undermining trust in the system public 549 00:33:52,000 --> 00:33:58,160 Speaker 1: trust in juries, but allowing for cocaine use, allowing for 550 00:33:58,280 --> 00:34:03,600 Speaker 1: jurors to beletely intoxicated during a trial during deliberations, we 551 00:34:03,600 --> 00:34:07,520 Speaker 1: can assume. And so this sort of concern about undermining trust, 552 00:34:07,800 --> 00:34:12,160 Speaker 1: about respecting the sanctity they're talking in this really flowery 553 00:34:12,719 --> 00:34:16,200 Speaker 1: sort of mythologizing language about the processes that we have, 554 00:34:16,280 --> 00:34:19,239 Speaker 1: the legal processes that we have. But it's really in 555 00:34:19,360 --> 00:34:22,640 Speaker 1: order to subvert an argument about you know, what these 556 00:34:22,719 --> 00:34:26,120 Speaker 1: jurors were doing was wrong. It was against the sanctity 557 00:34:26,400 --> 00:34:29,359 Speaker 1: that we supposedly think we have right right. That's what's 558 00:34:29,400 --> 00:34:32,719 Speaker 1: so like jarring about this case is it's like a 559 00:34:32,800 --> 00:34:38,640 Speaker 1: direct contrast between like the mysticism surrounding the idea of 560 00:34:38,680 --> 00:34:42,960 Speaker 1: a jury of your peers in American legal rhetoric and 561 00:34:43,080 --> 00:34:47,440 Speaker 1: the reality of the situation, which is, you know, somewhere 562 00:34:47,520 --> 00:34:51,120 Speaker 1: between seven and twelve complete freaks being shoved into a 563 00:34:51,239 --> 00:34:54,080 Speaker 1: room and being told to like interpret laws that they 564 00:34:54,160 --> 00:34:57,439 Speaker 1: just learned right, apply them to complex sets off facts. 565 00:34:57,520 --> 00:35:00,399 Speaker 1: I mean, it's a ludicrous system. I'm not saying there's 566 00:35:00,400 --> 00:35:03,640 Speaker 1: a better one, but I mean the system in operation 567 00:35:04,400 --> 00:35:11,000 Speaker 1: is chaotic, full of misconduct and bad outcomes, and subject 568 00:35:11,040 --> 00:35:15,160 Speaker 1: to the whims of like any given person's psychological biases, 569 00:35:15,719 --> 00:35:18,440 Speaker 1: and the core to sort of engage in the project 570 00:35:19,160 --> 00:35:23,520 Speaker 1: of shoving away those sort of gross realities and trying 571 00:35:23,520 --> 00:35:28,440 Speaker 1: to maintain the mythos of the incredible magic of our 572 00:35:28,520 --> 00:35:33,359 Speaker 1: jury system, and how sort of naturally just it is, yeah, Peter, 573 00:35:33,480 --> 00:35:35,759 Speaker 1: And there was a part in the majority opinion that 574 00:35:35,960 --> 00:35:38,200 Speaker 1: was like I was just sort of like laughing when 575 00:35:38,200 --> 00:35:42,279 Speaker 1: I was reading, because towards the end when O'Connor is like, 576 00:35:43,440 --> 00:35:46,839 Speaker 1: you know, still trying to like avoid just admitting what 577 00:35:46,880 --> 00:35:49,279 Speaker 1: was going on here. And so she's talking a lot 578 00:35:49,280 --> 00:35:54,320 Speaker 1: about like this first affidavit from Vera where she was like, yeah, 579 00:35:54,360 --> 00:35:58,040 Speaker 1: a few people had beers and maybe napped. And then 580 00:35:58,120 --> 00:36:02,000 Speaker 1: she's like yes, And there was the second testimony, right, 581 00:36:02,080 --> 00:36:04,840 Speaker 1: this second thing she's like, but that was gathered in 582 00:36:04,960 --> 00:36:09,560 Speaker 1: violation of court order and local rules, like so what 583 00:36:10,160 --> 00:36:12,839 Speaker 1: like like who gives a shit? Like it's not really 584 00:36:12,880 --> 00:36:15,600 Speaker 1: like well, you know, you weren't supposed to talk to 585 00:36:15,640 --> 00:36:19,000 Speaker 1: them about that. First of all, the juror came to 586 00:36:19,040 --> 00:36:22,279 Speaker 1: the guy's door, like knocked on the fucking attorney's door 587 00:36:22,280 --> 00:36:24,799 Speaker 1: and was like, I'm feeling like I gotta get this 588 00:36:24,840 --> 00:36:27,239 Speaker 1: off my chest, right, yeah, yeah, I asked it. By 589 00:36:27,280 --> 00:36:30,600 Speaker 1: the way, the foeman, the fore woman who was drinking 590 00:36:30,920 --> 00:36:33,239 Speaker 1: wine every day, right, she called to the courthouse and 591 00:36:33,320 --> 00:36:35,560 Speaker 1: was like when's the hearing. I want to testify. I 592 00:36:35,600 --> 00:36:38,280 Speaker 1: feel I feel bad, like yes, and they're just like, yeah, 593 00:36:38,320 --> 00:36:41,279 Speaker 1: but but you weren't supposed to talk to them. The 594 00:36:41,280 --> 00:36:44,480 Speaker 1: court said not to talk to them after your last attempt. 595 00:36:44,560 --> 00:36:47,400 Speaker 1: So we're just going to ignore this. We're just going 596 00:36:47,440 --> 00:36:50,120 Speaker 1: to pretend like this didn't happen. You know. That's sort 597 00:36:50,120 --> 00:36:52,600 Speaker 1: of the court's whole mode here, is like we don't 598 00:36:52,600 --> 00:36:57,120 Speaker 1: want to know prioritizing local court rules over the sixth 599 00:36:57,120 --> 00:37:00,279 Speaker 1: Amendment of the Federal Constitution, right, putting their hands over 600 00:37:00,320 --> 00:37:02,319 Speaker 1: their years and going naa, na, na, I can't I 601 00:37:02,360 --> 00:37:06,000 Speaker 1: can't hear you. Yeah, yeah, exactly. And so the other 602 00:37:06,040 --> 00:37:09,520 Speaker 1: thing is like just reading this case and reading the 603 00:37:09,560 --> 00:37:13,200 Speaker 1: majority talking about the sanctity of the jury and deliberations 604 00:37:13,200 --> 00:37:16,600 Speaker 1: and all that. I can't help but think about jury nullification. 605 00:37:17,120 --> 00:37:21,920 Speaker 1: Jury nullification is this concept in American law, and I 606 00:37:21,920 --> 00:37:25,560 Speaker 1: think it's common in a lot of Western judicial systems. Actually, 607 00:37:26,080 --> 00:37:29,080 Speaker 1: the idea that juries have the power to essentially nullify 608 00:37:29,120 --> 00:37:34,920 Speaker 1: a law in specific instances or even generally. And they 609 00:37:34,920 --> 00:37:39,359 Speaker 1: can do that by just declining to convict someone, right, 610 00:37:39,520 --> 00:37:42,320 Speaker 1: they can return a not guilty verdict, right. Yeah. Instances 611 00:37:42,360 --> 00:37:45,000 Speaker 1: of this, like sort of historical instances that are I 612 00:37:45,040 --> 00:37:48,760 Speaker 1: think admirable, are like during like you know, the abolition era, 613 00:37:49,280 --> 00:37:51,600 Speaker 1: there were juries that would refuse to convict people under 614 00:37:51,640 --> 00:37:55,040 Speaker 1: the Fugitive Slave Act. You know, people who were charged 615 00:37:55,080 --> 00:37:58,640 Speaker 1: with aiding escaped slaves. They wouldn't convict them, right, And 616 00:37:58,680 --> 00:38:01,680 Speaker 1: you can imagine similar things happening now. I think it 617 00:38:01,800 --> 00:38:05,240 Speaker 1: actually did happen with people aiding migrants, right, leaving water 618 00:38:05,280 --> 00:38:07,279 Speaker 1: in the desert in Arizona and stuff like that, to 619 00:38:07,800 --> 00:38:12,360 Speaker 1: migrants crossing the border and things like that. This is 620 00:38:12,360 --> 00:38:18,000 Speaker 1: something that is like, uncontroversially within the power of American juries. Yes, 621 00:38:18,160 --> 00:38:21,160 Speaker 1: it's just in the nature of what powers they do have, 622 00:38:21,320 --> 00:38:23,919 Speaker 1: what protections they do have, a lot of what these 623 00:38:24,000 --> 00:38:28,879 Speaker 1: rules describe, protect people from coming out and saying, yeah, well, 624 00:38:29,440 --> 00:38:33,319 Speaker 1: jurors four and seven refuse to convict because they think 625 00:38:33,320 --> 00:38:35,719 Speaker 1: the laws unjust right, that's literally, like the rules we 626 00:38:35,760 --> 00:38:40,080 Speaker 1: are just discussing. That's precisely what they prevent juries from 627 00:38:40,120 --> 00:38:44,040 Speaker 1: testifying about to impeach their verdict and whatever. And yet 628 00:38:44,160 --> 00:38:48,560 Speaker 1: this is something that is actually like very strictly, I 629 00:38:48,600 --> 00:38:52,160 Speaker 1: don't want to say outright prohibited, but courts go to 630 00:38:52,520 --> 00:38:56,479 Speaker 1: a great extent to prevent Like if you say you're 631 00:38:56,719 --> 00:39:00,560 Speaker 1: familiar with jury nullification during vorder, you will not be 632 00:39:00,640 --> 00:39:04,280 Speaker 1: seated on that jury, right, right. And similarly, a defense 633 00:39:04,400 --> 00:39:08,200 Speaker 1: lawyer cannot tell the jury pool during vardier or during 634 00:39:08,320 --> 00:39:12,080 Speaker 1: a closing argument, for instance, about jury nullification. They can't 635 00:39:12,120 --> 00:39:14,719 Speaker 1: call for the jury to nullify. Yea, and yeah, just 636 00:39:15,000 --> 00:39:19,399 Speaker 1: so everyone knows, warder is jury selection they selection. Yes, Yes, 637 00:39:19,480 --> 00:39:21,560 Speaker 1: that's the part where they interviewed the jurors and asked 638 00:39:21,600 --> 00:39:24,080 Speaker 1: them a bunch of questions and stuff like that. And 639 00:39:24,239 --> 00:39:26,400 Speaker 1: jury instructions from the judges will often be done in 640 00:39:26,440 --> 00:39:29,000 Speaker 1: a way where they don't mention jury nullification but will 641 00:39:29,120 --> 00:39:34,040 Speaker 1: essentially say, if you nullify this, you are either violating 642 00:39:34,040 --> 00:39:37,680 Speaker 1: the law or violating the oaths you took. Put people 643 00:39:37,719 --> 00:39:41,960 Speaker 1: in a position where if you're aware of jury nullification beforehand, 644 00:39:42,360 --> 00:39:45,440 Speaker 1: you either have to lie under oaths in order to 645 00:39:45,480 --> 00:39:48,239 Speaker 1: get on the jury or not be seated at all. 646 00:39:48,560 --> 00:39:51,920 Speaker 1: Or if you learn about jury nullification while you're on 647 00:39:51,960 --> 00:39:58,200 Speaker 1: the jury, that is actually is admissible as like outside influence. Right, 648 00:39:58,280 --> 00:40:01,080 Speaker 1: That's something that courts will hear test Teimoni about it. 649 00:40:01,200 --> 00:40:04,440 Speaker 1: Sort of infamously happened in the trials a few years ago, 650 00:40:05,239 --> 00:40:08,160 Speaker 1: where you know, the Trump administration was trying to prosecute 651 00:40:08,160 --> 00:40:12,160 Speaker 1: all those protesters for his inauguration, and one of the 652 00:40:12,280 --> 00:40:14,399 Speaker 1: jurors and when those trials came back and said, hey, 653 00:40:15,040 --> 00:40:18,040 Speaker 1: somebody had written Google jury nullification on the inside of 654 00:40:18,040 --> 00:40:21,439 Speaker 1: a bathroom stall, and I did, and then I told 655 00:40:21,480 --> 00:40:24,200 Speaker 1: all the other jurors about it, and the judge was like, oh, 656 00:40:24,239 --> 00:40:27,680 Speaker 1: that's that's interesting. It was grounds for a mistrial actually, 657 00:40:27,920 --> 00:40:31,680 Speaker 1: just learning about what jury nullification is. Yeah, it's like 658 00:40:32,040 --> 00:40:35,759 Speaker 1: you get disqualified from a jury for learning about any 659 00:40:35,840 --> 00:40:38,120 Speaker 1: leftist concept. It's like, right, where use your hand? If 660 00:40:38,160 --> 00:40:40,520 Speaker 1: you're familiar with Karl Marx, you can leave like that. 661 00:40:42,320 --> 00:40:43,840 Speaker 1: By the way, that then end up being a mistrial 662 00:40:43,920 --> 00:40:45,680 Speaker 1: just because the prosecution didn't press it, but they were 663 00:40:45,719 --> 00:40:48,160 Speaker 1: losing everything. There was a lot of misconduct. It's that's 664 00:40:48,160 --> 00:40:51,239 Speaker 1: its own whole story. But here's the thing, like, if 665 00:40:51,280 --> 00:40:55,840 Speaker 1: you are even considering jury nullification, you are someone who 666 00:40:56,239 --> 00:41:00,200 Speaker 1: is taking your duty seriously right as a citizen, as 667 00:41:00,200 --> 00:41:04,560 Speaker 1: a juror, you're considering the lawed issue, it's impact on society, 668 00:41:04,560 --> 00:41:08,400 Speaker 1: you're considering the defendant, you're considering the circumstances. It is 669 00:41:08,520 --> 00:41:12,400 Speaker 1: thoughtful whether or not you agree with the concept of 670 00:41:12,480 --> 00:41:16,239 Speaker 1: jury nullification or its specific context in which it might 671 00:41:16,239 --> 00:41:19,279 Speaker 1: be applied right, Like, I think some people might argue, 672 00:41:19,400 --> 00:41:21,799 Speaker 1: like you know, O. J. Simpson getting off was an 673 00:41:21,840 --> 00:41:25,040 Speaker 1: instance of jury nullification that they don't agree with. Maybe not, 674 00:41:25,080 --> 00:41:28,320 Speaker 1: I don't know. Regardless, the main point is those jurors 675 00:41:28,360 --> 00:41:31,200 Speaker 1: are taking their duties seriously. Yes, like you don't have 676 00:41:31,239 --> 00:41:36,160 Speaker 1: to agree with their rationale or their conclusions to concede 677 00:41:36,200 --> 00:41:41,480 Speaker 1: that point. But that is not really protected in our system. 678 00:41:41,520 --> 00:41:47,520 Speaker 1: But getting fucking ripped, treating your duties so unseriously that 679 00:41:47,600 --> 00:41:50,319 Speaker 1: you are getting so fucked up that you need to 680 00:41:50,360 --> 00:41:52,279 Speaker 1: either snore a bunch of lines of cocaine to stay 681 00:41:52,320 --> 00:41:55,680 Speaker 1: awake or you're just passing out in the middle of trial. 682 00:41:56,280 --> 00:42:00,520 Speaker 1: That's something the court is more than willing to look past, right, yep. 683 00:42:01,120 --> 00:42:03,880 Speaker 1: Just to like circle back as a final thought. You know, 684 00:42:03,920 --> 00:42:07,920 Speaker 1: something we've talked about before is part of the conservative 685 00:42:08,000 --> 00:42:12,800 Speaker 1: legal project involves shifting discussions of substantive rights over to 686 00:42:13,040 --> 00:42:16,640 Speaker 1: discussions of procedure right, and the function of that is 687 00:42:16,680 --> 00:42:21,120 Speaker 1: to avoid having to defend directly the myriad injustices that 688 00:42:21,200 --> 00:42:24,919 Speaker 1: you see, especially in our criminal justice system every day. 689 00:42:25,320 --> 00:42:28,920 Speaker 1: In some cases, that means court's creating complex networks of 690 00:42:28,960 --> 00:42:32,879 Speaker 1: immunities for government officials and institutions accused of wrongdoing, which 691 00:42:32,960 --> 00:42:36,480 Speaker 1: keeps those cases out of court altogether. And in some 692 00:42:36,800 --> 00:42:40,319 Speaker 1: like this, it just means ignoring these substantive question and 693 00:42:40,520 --> 00:42:43,879 Speaker 1: focusing on the procedural one. If you ask most law 694 00:42:43,880 --> 00:42:46,239 Speaker 1: professors what this case is about, they'd say, it's about 695 00:42:46,280 --> 00:42:50,000 Speaker 1: the admissibility of juror testimony under the federal rules of evidence, right, Yeah, 696 00:42:50,040 --> 00:42:52,640 Speaker 1: But it's not really, it's about the fairness of this 697 00:42:52,680 --> 00:42:57,200 Speaker 1: guy's trial. And that's a discussion that conservatives just don't 698 00:42:57,239 --> 00:43:00,120 Speaker 1: want to have because the reality is that our criminal 699 00:43:00,160 --> 00:43:03,400 Speaker 1: justice system is grossly unfair and unjust in all sorts 700 00:43:03,400 --> 00:43:06,880 Speaker 1: of ways. And you can see the true locus of 701 00:43:06,920 --> 00:43:09,640 Speaker 1: the court's concern in the closing portion of the opinion 702 00:43:09,680 --> 00:43:13,200 Speaker 1: I mentioned earlier, where O'Connor is talking about how allowing 703 00:43:13,280 --> 00:43:17,040 Speaker 1: convictions to be challenged would undermine trust in the system. 704 00:43:18,000 --> 00:43:20,880 Speaker 1: The real concern should be about whether the system should 705 00:43:20,920 --> 00:43:23,960 Speaker 1: be trusted, whether we have built a system good enough 706 00:43:24,040 --> 00:43:27,920 Speaker 1: to be trusted, like whether it's actually just. But she 707 00:43:28,040 --> 00:43:32,640 Speaker 1: is fairly openly discussing shrouding the reality of the system 708 00:43:33,040 --> 00:43:36,120 Speaker 1: in order to maintain the lie that it is fair 709 00:43:36,160 --> 00:43:39,080 Speaker 1: and just which means she's all but saying out loud 710 00:43:39,200 --> 00:43:43,160 Speaker 1: that the goal of these procedural technicalities is to avoid 711 00:43:43,239 --> 00:43:47,680 Speaker 1: any dissection of the fairness of our legal system. And 712 00:43:47,760 --> 00:43:49,920 Speaker 1: you know this is in nineteen eighty seven. Over the 713 00:43:49,960 --> 00:43:54,120 Speaker 1: next sort of twenty years, judges like Scalia went even further, 714 00:43:54,880 --> 00:43:59,200 Speaker 1: not only rigidly focusing on proceduralism in criminal law, but 715 00:43:59,320 --> 00:44:03,480 Speaker 1: also chastising those who didn't right, claiming that they were 716 00:44:03,560 --> 00:44:08,520 Speaker 1: unserious and driven by policy objectives because they were prioritizing 717 00:44:09,040 --> 00:44:14,319 Speaker 1: rights over procedure. That outlook has been very influential in 718 00:44:14,360 --> 00:44:17,640 Speaker 1: the academy, and it's become a sort of common wisdom 719 00:44:17,680 --> 00:44:21,800 Speaker 1: among lawyers that the proper and serious way to analyze 720 00:44:21,800 --> 00:44:25,719 Speaker 1: the law is to focus on technicality and ignore your 721 00:44:25,760 --> 00:44:30,400 Speaker 1: normative conception of what constitutional rights should actually be. A 722 00:44:30,480 --> 00:44:34,640 Speaker 1: big part of the left legal project, if there is one, 723 00:44:35,239 --> 00:44:40,040 Speaker 1: has to be inverting that and talking about like a 724 00:44:40,160 --> 00:44:46,760 Speaker 1: rights centric jurisprudence, like centralizing constitutional rights what we believe 725 00:44:46,800 --> 00:44:51,080 Speaker 1: a broad conception of those rights should be, and making 726 00:44:51,120 --> 00:44:55,520 Speaker 1: them superior to a procedure, which they absolutely must be 727 00:44:55,680 --> 00:44:58,759 Speaker 1: if you believe in the Constitution, as like you know, 728 00:44:58,880 --> 00:45:01,680 Speaker 1: the preeminent document in our law. It's the only way 729 00:45:01,719 --> 00:45:03,480 Speaker 1: you could possibly conceive of it in a way that 730 00:45:03,520 --> 00:45:07,239 Speaker 1: makes any sense. And conservatives have sort of quietly done 731 00:45:07,239 --> 00:45:10,719 Speaker 1: away with that, especially in areas of the constitution that 732 00:45:10,760 --> 00:45:15,399 Speaker 1: happened to benefit criminal defendants. That's right, all right, Well 733 00:45:15,440 --> 00:45:24,040 Speaker 1: that was the story of the world's coolest jury. Damn 734 00:45:24,080 --> 00:45:26,600 Speaker 1: what a this is such an eighties thing. Yeah, we 735 00:45:26,680 --> 00:45:29,080 Speaker 1: did let the ladies off easy. By the way, we 736 00:45:29,120 --> 00:45:32,359 Speaker 1: didn't mention in the facts that there were also two 737 00:45:32,400 --> 00:45:36,160 Speaker 1: ladies who were drinking mixed drinks. Oh that's right, Yeah, yeah, 738 00:45:36,560 --> 00:45:39,560 Speaker 1: the cocktail got to get that in there. I love that. 739 00:45:39,600 --> 00:45:42,799 Speaker 1: There was just like a wide array, Like it's not 740 00:45:42,880 --> 00:45:45,719 Speaker 1: like someone brought beer a couple of days and they're like, 741 00:45:45,719 --> 00:45:49,320 Speaker 1: whoa dude, that dude's bringing beer. Like, right, someone's got beer, 742 00:45:49,840 --> 00:45:52,319 Speaker 1: someone's got wine. Someone's like, you know what, no, I'm 743 00:45:52,360 --> 00:45:58,719 Speaker 1: gonna bring mixers. This is a full on house party, dude. Yeah, yeah, 744 00:45:59,239 --> 00:46:02,799 Speaker 1: we've got to be bro We got wine, we got 745 00:46:02,840 --> 00:46:06,760 Speaker 1: tequila and soda. Like what is going on? People drink 746 00:46:06,800 --> 00:46:11,319 Speaker 1: so much that they know each other's drink orders. Harry, Hank, 747 00:46:11,440 --> 00:46:17,240 Speaker 1: John and Terry they split beer vera gets the cab, 748 00:46:18,880 --> 00:46:21,160 Speaker 1: they see gets the cosmos. How do you get so 749 00:46:21,640 --> 00:46:24,080 Speaker 1: comfortable with the rest of the jury that you're like 750 00:46:24,360 --> 00:46:36,800 Speaker 1: yodio party, Yeah, let's turn it out. It's unbelievable. Next 751 00:46:36,840 --> 00:46:42,680 Speaker 1: week premium episode an update on the state of legal journalism. 752 00:46:42,840 --> 00:46:46,840 Speaker 1: Last summer summer twenty twenty one, we did an episode 753 00:46:46,880 --> 00:46:50,239 Speaker 1: about how fucking awful how legal media coverage had been 754 00:46:50,280 --> 00:46:53,960 Speaker 1: that year, and we're gonna do a quick update because 755 00:46:54,120 --> 00:46:56,720 Speaker 1: in some ways it's gotten materially better. I think they listened. 756 00:46:56,880 --> 00:47:00,520 Speaker 1: That's right, we're famous now and people are listening. Then 757 00:47:00,520 --> 00:47:04,239 Speaker 1: there's been some setbacks, shall we say, the exposure of 758 00:47:04,320 --> 00:47:08,279 Speaker 1: Nina Tottenberg as a complete and utter access journalism hack. 759 00:47:09,080 --> 00:47:11,759 Speaker 1: You know, some CNN panels that are perhaps not the 760 00:47:11,800 --> 00:47:15,920 Speaker 1: most impressive lineups I've ever seen in my life. But 761 00:47:16,040 --> 00:47:20,520 Speaker 1: we're gonna We're gonna convene and discuss talk about who's 762 00:47:20,520 --> 00:47:24,080 Speaker 1: smart and who's stupid. Follow us on Twitter at five 763 00:47:24,120 --> 00:47:28,200 Speaker 1: to four Pod, Subscribe to our Patreon, Patreon, dot com, 764 00:47:28,360 --> 00:47:33,759 Speaker 1: slash five four pod all spelled out access to premium 765 00:47:34,120 --> 00:47:39,840 Speaker 1: and add free episodes, special events, access to our slack. 766 00:47:40,719 --> 00:47:43,800 Speaker 1: We'll see you next week. Five to four is presented 767 00:47:43,840 --> 00:47:49,240 Speaker 1: by prolog Projects. Rachel Ward is our producer, Leon Nafak 768 00:47:49,360 --> 00:47:53,840 Speaker 1: and Andrew Parsons provide editorial support. Our production manager is 769 00:47:53,880 --> 00:47:57,880 Speaker 1: Percio Arlin and our assistant producer is our lean A Revelo. 770 00:47:58,560 --> 00:48:02,200 Speaker 1: Our artwork is by ten Blanks at Chips and why in. 771 00:48:02,280 --> 00:48:14,120 Speaker 1: Our theme song is by Spatial Relations. It is funny 772 00:48:14,160 --> 00:48:17,239 Speaker 1: that someone thought of the idea you only get so 773 00:48:17,280 --> 00:48:19,960 Speaker 1: many bites at the apple. It's like, I feel like 774 00:48:20,000 --> 00:48:21,440 Speaker 1: people should be allowed to take as many bites of 775 00:48:21,440 --> 00:48:24,719 Speaker 1: an apple as they want. Frankly, it seems like a 776 00:48:24,760 --> 00:48:27,120 Speaker 1: waste of an apple. Who do they think they are 777 00:48:27,320 --> 00:48:31,360 Speaker 1: that they can finish that? I think you get that 778 00:48:31,480 --> 00:48:34,680 Speaker 1: right now, and you whip it at someone on the 779 00:48:34,719 --> 00:48:35,840 Speaker 1: side of the road and U