Speaker 1: Hi, everyone, It's me Josi Duffie Rice, host of Unreformed.
Speaker 1: Ahead of our last episode, which airs on March eighth,
Speaker 1: we're sharing an episode of another podcast. I'm a huge
Speaker 1: fan of five to four. This one is a favorite
Speaker 1: of mine. The three hosts are amazing, so funny and
Speaker 1: incredible at talking about how terrible the Supreme Court is.
Speaker 1: Five to four is totally a bit different from Unreformed,
Speaker 1: but it tackles some of the same issues like access
Speaker 1: to justice, race, etc. Here's a little bit more about
Speaker 1: the show. Five to four is a podcast about how
Speaker 1: much the Supreme Court sucks. Every week, five to four
Speaker 1: takes on the Supreme Court's worst decisions about the most
Speaker 1: important issues like police abuse, abortion access, the Second Amendment,
Speaker 1: and voting rights. Each episode covers a Supreme Court case
Speaker 1: that reveals the ways in which the justices contort the law,
Speaker 1: make stupid legal errors, and generally hack away at our
Speaker 1: democracy as the Court shifts further and further to the right.
Speaker 1: Five to four is your guide to how this supposedly
Speaker 1: a political institution wields its power. Fine five to four
Speaker 1: wherever you get your podcasts, and we're going to drop
Speaker 1: one of their episodes here for you to listen, to
Speaker 1: enjoy and meet us back here on Wednesday, March eighth
Speaker 1: for the series finale of Unreformed. Well here. Argument First
Speaker 1: This morning at number eighty six one seventy seven Anthony
Speaker 1: rat Tanner and William M conover Petitioners versus the United States.
Speaker 1: Hey everyone, this is Leon from Fiasco and Prologue Projects.
Speaker 1: On this week's episode of five to four, Peter Rhannon
Speaker 1: and Michael are talking about Tanner v. United States. It's
Speaker 1: a sixth Amendment case about whether or not you're right
Speaker 1: to a trial by jury has been compromised if the
Speaker 1: jurors were consuming large amounts of alcohol. We're utilizing and
Speaker 1: dealing in marijuana, and we're ingesting cocaine throughout the course
Speaker 1: of a complex criminal proceeding. In a five to four
Speaker 1: decision written by Justice Sandra Day O'Connor, and the Court
Speaker 1: proclaimed that the receeedings of a jury room are so
Speaker 1: sacrosanct that even if more than half the jury is
Speaker 1: high and drunk, their verdict must stand. This is five
Speaker 1: to four, a podcast about how much the Supreme Court suns.
Speaker 1: Welcome to five to four, where we dissect and analyze
Speaker 1: the Supreme Court cases that have infested our law, like
Speaker 1: lantern flies have infested New York. I am Peter, I'm
Speaker 1: here with Michael everybody and Rhiannon. Hello. What is a
Speaker 1: lantern fly? Like a lightning bug? They're a big problem
Speaker 1: in like Philly, New York right now. Oh, they're the
Speaker 1: ones that, like the Philly local government was like on site.
Speaker 1: You fucking kill these things when you see that? Yeah, yeah,
Speaker 1: So they're like indigenous to China. Every like decade or so,
Speaker 1: some insect that has no natural predators makes its way
Speaker 1: over from China and just like ruin some ecosystems, and
Speaker 1: they're all over New York right now. And like I
Speaker 1: had to change my route the grocery store because there
Speaker 1: is a building that is like teeming with them, like
Speaker 1: a almost a skyscraper, and when you walk by it,
Speaker 1: like the ground is littered with their corpses. One fell
Speaker 1: into my like collar, oh god, And I had to
Speaker 1: try to act like I was not absolutely losing my mind.
Speaker 1: It's like, oh one of them fell, I guess I'll
Speaker 1: just casually get this out. And I was like internally
Speaker 1: just absolutely losing my ship. Anyway, kill them all. Yeah,
Speaker 1: I've been stomping on them doing my best. Today's case
Speaker 1: Tanner v. United States. This case is sort of about
Speaker 1: the right to a jury, but specifically, you know, it's
Speaker 1: about if you're on trial and the jury deliberating over
Speaker 1: your guilt or innocence is just wasted out of their minds,
Speaker 1: absolutely rips on alcohol, cocaine, and marijuana. Is that a
Speaker 1: violation of your right to a jury trial? And you
Speaker 1: maybe get some testimony about that? The court, in a
Speaker 1: five to four decision written by Sandra Day O'Connor, because
Speaker 1: this is nineteen eighty seven, said no, you cannot get
Speaker 1: any testimony about that, and this is maybe even okay,
Speaker 1: this is hard. They harped on an evidentiary rule to
Speaker 1: hold that the evidence of the jury's rampant drug and
Speaker 1: alcohol use was not admissible in court, making this another
Speaker 1: in the long list of cases where the court prioritizes
Speaker 1: procedural technicality over substantive constitutional rights. I'm gonna let you
Speaker 1: run wild on the background. Here are you turning this over? Yeah? Okay,
Speaker 1: all right. This case comes out of a federal criminal
Speaker 1: trial took place in Florida. That's right, Florida man strikes again.
Speaker 1: Homestead Yeah, this time, it isn't the criminal defendants who
Speaker 1: are being Florida man, It is the jury, that's right,
Speaker 1: all right. So Anthony Tanner and William Conover were on
Speaker 1: trial for mail fraud and conspiracy to commit fraud. They
Speaker 1: were convicted by the jury, but before they were sentenced,
Speaker 1: one of the lawyers for Tanner and Conover got an
Speaker 1: alarming phone call. A juror named Vera Asbell called defense
Speaker 1: counsel and told him that she needed to get something
Speaker 1: off her conscience. This was a confession of sorts, father,
Speaker 1: I have witnessed some sin. She told the attorney that
Speaker 1: at the trial, some of the mail jurors were drinking
Speaker 1: during the day, you know, as the trial is going on,
Speaker 1: and then a few of them would sleep through the
Speaker 1: afternoons while the trial is happening in the courthouse. Men,
Speaker 1: am I right? Yeah, it was the mail jurors that
Speaker 1: she pointed out. Yeah. She told defense counsel that another juror,
Speaker 1: Tina Franklin, could confirm these accusations, could confirm what she
Speaker 1: was saying. The ladies on the jury are a guest,
Speaker 1: you know, there's one who gets into it. Well, yeah,
Speaker 1: at least at first that's how it seems, right, yeah, exactly. Now,
Speaker 1: the district court refused to have an evidentiary hearing on this.
Speaker 1: This would be the type of hearing where the court
Speaker 1: digs into what happened, here's testimony from people who were there,
Speaker 1: who know what happened, and the court would be deciding
Speaker 1: whether the defendant's rights were violated. Right. They said no, because,
Speaker 1: according to the court, the jurors testimony would be inadmissible
Speaker 1: under a certain federal evidentiary rule. But that wasn't the
Speaker 1: end of it. It wasn't just that they were drinking.
Speaker 1: A few months later, the initial allegations by Vera Asbell
Speaker 1: were supplemented by another juror named Daniel Hardy. Hardy told
Speaker 1: the defense counsel that fully seven members of the jury
Speaker 1: out of twelve people solid majority more than half, including himself,
Speaker 1: with drinking alcohol during lunch. Four male jurors shared up
Speaker 1: to three pitchers of beer on a daily basis. Okay,
Speaker 1: Hardy himself said that he quote consumed alcohol all the time.
Speaker 1: The female juror, who was four person, would drink a
Speaker 1: leader of wine at lunch every day. The men did
Speaker 1: take it up a notch though. The four jurors, the
Speaker 1: four dudes who were drinking pitchers every day at lunch.
Speaker 1: They also smoked marijuana during the trial about every day.
Speaker 1: One of the jurors allegedly sold sold a qpe a
Speaker 1: quarter pound of marijuana to another juror inside the courthouse.
Speaker 1: The lord, this is the eighties. You could like get
Speaker 1: the death penalty for that. Two of the jurors nor
Speaker 1: died a couple lines of cocaine on several occasions during
Speaker 1: the trial. Sometimes during the trial, two of the jurors
Speaker 1: were ripped off of all three substances. They were drinking,
Speaker 1: they were smoking marijuana, and they were snorting coke. Good.
Speaker 1: The eighties were wild, you know what a time one
Speaker 1: of the jurors talked about how he was quote flying
Speaker 1: during the trial. That was his characterization. And I think
Speaker 1: he's the one where Hardy said like he would go
Speaker 1: to the bathroom and come back sniffling like he had
Speaker 1: a cold. Yeah, all the time. And then he had
Speaker 1: like a little contract and he had a little container
Speaker 1: being like in court on trial for your life, and
Speaker 1: you like glance over at the jury and you to
Speaker 1: see a dude in a khole. We're not far from
Speaker 1: that here. Drooling a little bit. Yeah, yeah, yeah. At
Speaker 1: this point, the defense lawyers file another request for an
Speaker 1: evidentiary hearing. You know, look, Judge, this ship is fucking crazy.
Speaker 1: The court needs to hear about it decide whether something
Speaker 1: really serious enough happened to call the verdict into question,
Speaker 1: right right, The court said no again, testimony from any
Speaker 1: of the jurors is inadmissible, and so the defense lawyers
Speaker 1: appealed all the way to the Supreme Court. And people
Speaker 1: complain about getting stuff with I know, right, imagine like
Speaker 1: just being like, oh, jury time, right, I forgot the code.
Speaker 1: Jury's gonna suck today. Okay, we're laughing about all of
Speaker 1: this stuff. I think it's objectively funny that some people
Speaker 1: got zuited to like watch a trial or whatever. But yeah,
Speaker 1: we should clarify, like, obviously this kind of scares me
Speaker 1: as as a defense attorney, Like this is a really
Speaker 1: serious matter. These people were deciding the fate of these
Speaker 1: two men's lives, and yeah, we don't think it's cool
Speaker 1: that the jury took it this way. That's right. The
Speaker 1: the denial of civil rights is not funny. But sometimes
Speaker 1: when you're going from civil rights to no civil rights,
Speaker 1: some funny stuff happens along the way. That's all We're exactly.
Speaker 1: It's a good way to put it all, right, So
Speaker 1: let's zoom way out here. The sixth Amendment guarantees the
Speaker 1: right to a trial by jury, and not just a jury,
Speaker 1: but an impartial jury. Yeah. Of course, there may, in
Speaker 1: some circumstances be a question of whether the jury was
Speaker 1: acting appropriately where they subject to undue influence, for example,
Speaker 1: or perhaps just demonstrably incompetent in some way that would
Speaker 1: functionally deny you your constitutional right to an impartial jury.
Speaker 1: So there are avenues by which you can impeach the jury,
Speaker 1: meaning challenge the validity of the jury's findings. Fundamentally, this
Speaker 1: case is about the defendant attempting to impeach the jury
Speaker 1: verdict on the basis that the jury was wasted right,
Speaker 1: that perhaps his right to a jury trial was being
Speaker 1: violated here. Yeah, But the threshold question, as Rhannon mentioned,
Speaker 1: is actually about the rules of evidence, the Federal Rules
Speaker 1: of Evidence Rule six H six B. The Federal Rules
Speaker 1: of Evidence are the laws governing the use of evidence
Speaker 1: in federal court, and this rule establishes some pretty stringent
Speaker 1: guidelines for when you can use a juror's own testimony
Speaker 1: to impeach a jury verdict. Remember, the only evidence we
Speaker 1: have here is testimony from other jurors, and there are
Speaker 1: rules governing when jurors can testify about the jury itself,
Speaker 1: because you know, sanctity of the jury, etc. Peter, you
Speaker 1: just said, like the sanctity of the jury, We should
Speaker 1: probably explain that a little bit. So, Yeah, there's this
Speaker 1: kind of principle in the law that like what happens
Speaker 1: in the jury room is is sort of this this
Speaker 1: sacred thing, and that like outside interrogation, interrogation after the
Speaker 1: fact over like what people talked about in the jury
Speaker 1: room to reach their deliverer ration. You know, that's kind
Speaker 1: of inappropriate because you want the jury to be respected,
Speaker 1: a jury's verdict to be respected. You know. The idea
Speaker 1: is that a jury of someone's peers, you know, people
Speaker 1: who come from the public, who have all different kinds
Speaker 1: of experiences, come together and decide on somebody's guilt in
Speaker 1: a trial. So when the court talks about like the
Speaker 1: sanctity of the jury, all of that kind of stuff,
Speaker 1: it's it's this idea really that jury deliberations are supposed
Speaker 1: to be respected because it is an intensive thing that
Speaker 1: the jury goes through, and intensive questions that they answer,
Speaker 1: which should be respected and shouldn't be picked apart after
Speaker 1: the fact. That's right. So that's what the majority, written
Speaker 1: by Sandrada O'Connor grabs onto here. The allegations about the
Speaker 1: jury being drunk and high, they come from juror testimony,
Speaker 1: meaning they come from the jury itself, and the Federal
Speaker 1: Rules of Evidence allow for the admission of juror testimony
Speaker 1: in very limited circumstances. So let's walk through the rule
Speaker 1: a little bit, and I admit it's a little bit confusing.
Speaker 1: Don't worry about it. You don't need to like completely
Speaker 1: comprehend it. Right. So Rule six or six B of
Speaker 1: the Federal Rules of Evidence says that jurors cannot testify about,
Speaker 1: quote the effect of anything on his or another juror's
Speaker 1: mind or emotions as influencing him to assent or descent
Speaker 1: from the verdict. So, okay, that's a little weird, right,
Speaker 1: The effect of anything on his or another juror's mind
Speaker 1: as influencing him to assent or descent from the verdict.
Speaker 1: Does that apply to drugs? Sort of unclear? Right? Right?
Speaker 1: In the most literal sense, you could say that maybe
Speaker 1: it does. However, it's also pretty clear if you look
Speaker 1: at the context of the rule that what it's really
Speaker 1: trying to get at is like juror's mental the liberations
Speaker 1: one way or another, right, right, right, And in terms
Speaker 1: of quote, anything on the juror's mind that influences them
Speaker 1: to assent or discent. You know, I read that kind
Speaker 1: of in a plain language way to mean like anything
Speaker 1: from the trial, right, A piece of evidence, a witness
Speaker 1: is demeanor. Right, those are the things on the mind
Speaker 1: of a juror that would influence them to assent or
Speaker 1: dissent from the verdict. And I think that's what the
Speaker 1: rule is talking about. And there's also a question of
Speaker 1: whether drugs or alcohol influence someone to assent or descent
Speaker 1: from the verdict. Right. They don't push you in one direction.
Speaker 1: What they do is influence your decision making, right, right,
Speaker 1: which seems like it's a separate thing. Yeah. Now there's
Speaker 1: other parts of this rule. It also says they can't
Speaker 1: testify about a juror's mental processes, and there are exceptions.
Speaker 1: There can be juror testimony about whether outside influence was
Speaker 1: brought to bear on any juror. Presumably that mostly means
Speaker 1: bribes and threats. There's also a question here of whether
Speaker 1: outside influence in the most literal sense would include drugs. So,
Speaker 1: but the fundamental question is whether all of this means
Speaker 1: that a juror cannot provide testimony about drug and alcohol
Speaker 1: use by other jurors. If the testimony is admissible, then
Speaker 1: Tanner probably needs a new trial at the end of
Speaker 1: the day, right. If not, he's out of luck. And
Speaker 1: so what the majority does is look at the common
Speaker 1: law history of juror testimony admissibility. In other words, the
Speaker 1: rules of evidence are a federal law, but the court
Speaker 1: is looking back at what courts did historically in order
Speaker 1: to interpret that law, which is always a little awkward, right,
Speaker 1: because if we're going to use the historical common law
Speaker 1: to interpret the statute, it starts to defeat the purpose
Speaker 1: of having a statute at all at some point. But whatever. Anyway,
Speaker 1: the Court says that historically there's an important dichotomy here.
Speaker 1: There are things that happen internally within the jury room,
Speaker 1: and those are private matters that can't be testified about,
Speaker 1: and then there are things that happen external to the
Speaker 1: jury room, like bribes or threats, and those can be
Speaker 1: testified about drug and alcohol uses within the walls of
Speaker 1: the jury room, according to Sandra Day O'Connor, So jurors
Speaker 1: can't testify about it. Now, by contrast, what the descent
Speaker 1: says is No, that's not the relevant distinction. What the
Speaker 1: rule is meant to do is protect the confidentiality of
Speaker 1: jury deliberations. So the distinction that we should be worried
Speaker 1: about is not whether it's in the jury room or
Speaker 1: outside of the jury room, but whether the testimony in
Speaker 1: question is about jury deliberation or not. And this is
Speaker 1: not right. This is about drug and alcohol use during
Speaker 1: the trial before deliberation, right, So the rule doesn't apply
Speaker 1: and the jurors testimony should be admitted into evidence. Yeah, Peter,
Speaker 1: I'm glad that you explain what Sandra day O'Connor is
Speaker 1: kind of doing here. She's saying that something that happened
Speaker 1: inside the jury room internal to jury deliberations, that there
Speaker 1: cannot be testimony about what happened there in those circumstances.
Speaker 1: Something that happens outside external to the jury room, those
Speaker 1: things the court can here testimony about, right. But I
Speaker 1: just want to point out, like the descent obviously explains that,
Speaker 1: like this internal external distinction doesn't really work. You know,
Speaker 1: the distinction should be whether or not the testimony is
Speaker 1: about deliberations or not. But I also think it's worth
Speaker 1: highlighting this internal external distinction that the majority does is
Speaker 1: not only kind of silly because as the Descent points out,
Speaker 1: it's not a sort of meaningful distinction in the way
Speaker 1: that it should be, but Sandra Day O'Connor is also
Speaker 1: applying this rule that she just made up. She's applying
Speaker 1: it incorrectly because we're not talking about events that happened
Speaker 1: inside the jury We literally are talking about events that
Speaker 1: are external to the jury room. They were doing drugs
Speaker 1: and drinking during the trial outside of the jury room.
Speaker 1: They were not deliberated, right, they were still in the
Speaker 1: metaphorical jury room. That's what you're not. I'm sorry, I'm
Speaker 1: not in the brain jury room that Sandra day O'Connor is.
Speaker 1: That's genuinely what she must mean, right, that it's like
Speaker 1: they're in the jury space, you know, right, right, exacternal
Speaker 1: external distinction was so sort of dumb because it's like
Speaker 1: it's clear what she's trying to get at, which is
Speaker 1: like you can't come out afterwards and be like, well, yeah,
Speaker 1: we let this guy off. But that's because a lot
Speaker 1: of the jurors were sexist and so they thought all
Speaker 1: the female witnesses were lying or whatever, right, right, but
Speaker 1: somebody got intimidated like in their home or something. Of course,
Speaker 1: you can testify about that. That that makes perfect sense
Speaker 1: and is sort of internal external, But is it a
Speaker 1: deliberation or not? Is I think the more important thing, right,
Speaker 1: like exactly, and what Justice Marshall is saying, yeah, that's
Speaker 1: what you're trying to capture here, and not only is
Speaker 1: she not capturing it, but then her like bad heuristic
Speaker 1: is being applied stupidly, right, Like that's like this is
Speaker 1: all happening outside the jury room. They're getting trashed at
Speaker 1: Applebee's or whatever. You know. You can conceptualize the sanctity
Speaker 1: of the jury quote unquote in different ways. I think
Speaker 1: the more obvious way is the way that the descents
Speaker 1: doing it, where you're saying, yeah, like the jury deliberation
Speaker 1: is important and needs to be protected, and we can't
Speaker 1: have everyone testifying about what goes on, right yeah, right.
Speaker 1: What O'Connor is doing is being like, yeah, anything the
Speaker 1: jury does is sacred, and it's like, why would that
Speaker 1: be the rule that it just doesn't make a lot
Speaker 1: of practical sense. Smoking a joint in the fucking loading
Speaker 1: bay at the Ramada Inn or whatever down the street,
Speaker 1: that's external, right, Exactly if a juror got threatened outside
Speaker 1: of the courtroom, right at home concerning the jury, or
Speaker 1: saw something on the news that might prejudice them, right,
Speaker 1: are those really internal? You can make the argument that
Speaker 1: they're external. Right, So this distinction is doing no work.
Speaker 1: It just doesn't make a lot of sense. And more importantly,
Speaker 1: you can almost sort of put it aside, right, because
Speaker 1: it does feel like it's beside the point here. The
Speaker 1: point should be that this is a violation of Tanner's
Speaker 1: constitutional right to a jury right. The jury was impaired
Speaker 1: to the point where most of them probably wouldn't be
Speaker 1: allowed to legally operate a forklift, let alone decide whether
Speaker 1: or not someone should be a free human being, you know. Right,
Speaker 1: And there's this pretty basic reality here that the majority
Speaker 1: seems to ignore. If the jury were literally unconscious from
Speaker 1: drugs and drinking pass that on the floor, not able
Speaker 1: to process information at all for the duration of the trial,
Speaker 1: I would hope that we could all agree. Sanderday O'Connor
Speaker 1: included that that does not satisfy the constitutional right to
Speaker 1: a jury. So there must be some place on the
Speaker 1: spectrum between stone sober jury and completely unconscious jury where
Speaker 1: we all have to admit that this no longer qualifies
Speaker 1: as a constitutionally adequate jury. Right. Where exactly on the
Speaker 1: spectrum that line is might not be an easy question
Speaker 1: to answer, but it's the court's obligation to answer it,
Speaker 1: not when the federal rules of evidence stand. Well, yeah,
Speaker 1: that's what's happening is the court is essentially acting like
Speaker 1: this is just a case about evidentiary rules when it's not.
Speaker 1: It's about whether this man received a constitutionally fair trial,
Speaker 1: and if he didn't, then it doesn't matter or shouldn't
Speaker 1: matter what the federal rules of evidence say. Yeah. Right.
Speaker 1: One thing I wanted to point out is like, this
Speaker 1: is nineteen eighty seven when this case is coming down,
Speaker 1: and there's just like there's no textualism at all. Right now,
Speaker 1: we've talked about how the conservative legal movement sort of
Speaker 1: built up these ideas like textualism and originalism over time,
Speaker 1: and this is like mid to late eight, and you
Speaker 1: have a statute and you're trying to interpret it, and
Speaker 1: at no point does someone just say, well, let's look
Speaker 1: at the words of the statute and like think about
Speaker 1: what the most literal meaning of it is and then
Speaker 1: we'll work from there. That just wasn't how the analysis
Speaker 1: was done. And it's just sort of jarring when you've
Speaker 1: been reading like modern jurisprudence that you just don't see
Speaker 1: it at all, and goes to show how successful the
Speaker 1: conservatives have been at influencing the way that the laws analyze.
Speaker 1: It's just sort of wild. Yeah, extensive discussion of legislative
Speaker 1: history of pages of it, yes, which they found conclusive. Yeah,
Speaker 1: but including in the Descent Right. The Descent has a
Speaker 1: pretty extensive treatment of legislative history as well, but comes
Speaker 1: out the other way. One final item worth discussing the
Speaker 1: opinion wraps up by saying that although allowing for investigations
Speaker 1: into jer misconduct would sometimes uncover misconduct, it's not worth
Speaker 1: it because it would basically be such an administrative hassle.
Speaker 1: O'Connor says that frequent challenging of verdicts based on juror
Speaker 1: misconduct would quote disrupt the finality of the process. Yeah,
Speaker 1: and just to jump in here, the Court does reference
Speaker 1: this sort of principle of like finality of a verdict, right,
Speaker 1: that we have to be able to trust that the
Speaker 1: jury's decision is final, that we can't go back after
Speaker 1: the fact and pick apart what the jury did in
Speaker 1: the jury room and you know, sort of upend jury verdicts. Right.
Speaker 1: The public has to be able to trust that jury
Speaker 1: decisions are the decisions. And so that's what the kind
Speaker 1: of finality principle means. But we've mentioned before that especially
Speaker 1: in criminal law, judges the Supreme Court over the course
Speaker 1: of years generations have referenced this kind of you know,
Speaker 1: high minded principle of finality of jury verdicts, but only
Speaker 1: in service of a higher principle to federal judges, which
Speaker 1: is not wanting to review these cases. Right, That's right.
Speaker 1: You see it kind of trotted out and used by
Speaker 1: the Supreme Court in many different kinds of cases basically
Speaker 1: as like a reason why we can't review what happened, right, right.
Speaker 1: Conservative judges love it because it is something that it
Speaker 1: makes sense that eventually you run out of bites at
Speaker 1: the apple, right, that process runs out, you've done all
Speaker 1: your state appeals, you've done your constitutional peels, blah blah
Speaker 1: blah blah blah all that. With conservatives sometimes they're like,
Speaker 1: that's it right, right, Like you have one bite at
Speaker 1: the apple and they're like, that's it's done, right exactly.
Speaker 1: Finality is just to them, it's an excuse to put
Speaker 1: an end to the proceedings. Yes, it's just like a
Speaker 1: vocabulary that they speak when they want to end the proceeding.
Speaker 1: For some like someone is claiming that their civil rights
Speaker 1: are being violated, and conservatives are like, well, that would
Speaker 1: be against the principle of finality, which means I don't
Speaker 1: want to keep going with this shit, right exactly, I
Speaker 1: don't want to look at this. Yeah. It's also I
Speaker 1: should I should mention that it's a little bit adjacent
Speaker 1: to like victims rights movements, which are very aligned with
Speaker 1: like prosecutors and stuff. Right, there are sort of groups
Speaker 1: that are basically aggressive prosecution advocacy organizations that sort of
Speaker 1: portray themselves as being about victims rights, right, And then
Speaker 1: the argument is like, well, the victims and their families
Speaker 1: need finalities so they can sort of move on, yes, right,
Speaker 1: which is not you know, in and of itself totally untrue,
Speaker 1: but the idea that it should trump someone's civil rights, right,
Speaker 1: I just invest bullshit? Right. Also funny here where the
Speaker 1: victim is like the federal government getting defrauded out of
Speaker 1: a few million dollars, Like it's some like grieving widow
Speaker 1: at home or anything. The government needs to move on.
Speaker 1: The AG's office needs to be able to sleep it,
Speaker 1: you know, they need they need to put us behind them. Yeah.
Speaker 1: And they also say that public trust in the jury
Speaker 1: system would be undermined if we scrutinize juror conduct too much,
Speaker 1: which is just another way of saying like, if we
Speaker 1: revealed how much jurm as conduct there is, people would
Speaker 1: not trust the system. And it's like, yeah, that does
Speaker 1: sound right, yeah, yeah, right, yeah yeah. If we said
Speaker 1: that getting absolutely lit during a trial is a problem
Speaker 1: for the jury, then yeah, people might question the efficacy
Speaker 1: of jury. It's I mean, I do agree that that
Speaker 1: would undermine trust in the jury system. I guess I
Speaker 1: don't agree that the solution to that is to bury
Speaker 1: all the evidence of misconduct and say it's inadmissible. That's
Speaker 1: right to each his or her own. Sandra Day O'Connor,
Speaker 1: this is a good spot. It feels like to take
Speaker 1: a break and we're back. We should talk about the descent.
Speaker 1: This is written by Thurgood Marshall. He's joined by Justices Stevens,
Speaker 1: Blackman and Brent In. So, you know, just want to
Speaker 1: point out this is a five four decision. The court
Speaker 1: is really split here, and you know the Conservatives take
Speaker 1: the day once again. But you know, Marshall really responds
Speaker 1: to the rules six or six B analysis that the
Speaker 1: majority goes with with his own, like I mentioned, his
Speaker 1: own intensive analysis of the rule, but he comes out differently.
Speaker 1: He goes through legislative history, he goes through the policy considerations,
Speaker 1: he goes through the notes on the legislative history, the
Speaker 1: comments on the adoption of the rule. I mean, there's
Speaker 1: really sort of a picking a part of this rule,
Speaker 1: how it came to be, the purpose of the rule,
Speaker 1: you know all of that. And you know what I
Speaker 1: like too is that Marshall points out these allegations about
Speaker 1: what the jury was doing. These are provable allegations, Like
Speaker 1: you're not talking about what's going on in someone's head
Speaker 1: in terms of how they think about the case. You're
Speaker 1: not talking about the jury deliberations, the deliberations about the case,
Speaker 1: their conversations about the facts that evidence that they heard,
Speaker 1: their thought processes, their agreements and disagreements in the jury
Speaker 1: room as they came to their verdict, whether or not
Speaker 1: the jury was ingesting substances, whether they were pardon me,
Speaker 1: but gone off that loud Again, Marshall says, we can
Speaker 1: hear testimony about that and determine whether or not it happened. Right,
Speaker 1: there's a good quote here from the descent. Petitioners are
Speaker 1: not asking for a perfect jury. They're seeking to determine
Speaker 1: whether the jury that heard their case behaved in a
Speaker 1: manner consonant with the minimum requirements of the sixth Amendment.
Speaker 1: If we deny them this opportunity, the jury system may survive,
Speaker 1: but the constitutional guarantee on which it is based will
Speaker 1: become meaningless. So just as Marshall does put in this
Speaker 1: sort of a reference to the constitution, a reference to
Speaker 1: the sixth Amendment, which is, you know, your right to
Speaker 1: an impartial jury trial, among other things. But we should
Speaker 1: note that, like Peter said, uptime with the court kind
Speaker 1: of latching on to the evidentiary rule and having their
Speaker 1: analysis come out of the rule means that the constitution
Speaker 1: is kind of ignored here, And there is the point that, like,
Speaker 1: the question presented to the court is not whether Tanner
Speaker 1: and Conover got their constitutional rights violated, it's just whether
Speaker 1: the court should have given them an evidentiary hearing about
Speaker 1: ger misconduct. But still, I mean that really obvious skates
Speaker 1: the really intense, substantial risks to constitutional rights that this
Speaker 1: case brings up, right, And nowhere in the majority is
Speaker 1: that really discussed the sixth Amendment. Marshall includes it in
Speaker 1: what I would say is like dicta of the dissent right.
Speaker 1: But there isn't an intensive constitutional analysis here. This is
Speaker 1: about the rules of evidence, and that's kind of it. Yeah,
Speaker 1: And I thought like this also tied into he had
Speaker 1: a pretty good point about the majority very much down
Speaker 1: laying the sort of severity of this jer misconduct, right, like,
Speaker 1: oh yeah, questioning whether like these jurors, even if you
Speaker 1: know this evidence was admissible, whether this would be sufficient
Speaker 1: to prove death A jurors were not competent, right, right.
Speaker 1: And O'Connor does so by really trying to sweep under
Speaker 1: the rug all the marijuana, cocaine and other more salacious
Speaker 1: allegations and and rely on just like, oh, so what
Speaker 1: some people had a few beers sort of sort of
Speaker 1: maybe somebody knotted off here and there. But it's like, look,
Speaker 1: even if one person was ripped for one day, like
Speaker 1: that's that's a day where your juror, you had a
Speaker 1: juror who was not present mentally right, was not was
Speaker 1: not there like right, And so that's like, I don't
Speaker 1: know how that could be anything but a constitutional violation. Right,
Speaker 1: a juror so fucked up that they are not like
Speaker 1: mentally present, you're not getting your six Amendment rights vindicated. Yeah,
Speaker 1: And then another thing is just that, like, you know,
Speaker 1: you make the point, Michael, that O'Connor really downplays the
Speaker 1: juror misconduct. That's completely true. You only get the details
Speaker 1: about the allegations what the jurors were actually up to.
Speaker 1: You only get that in Marshall's dissent. And then I
Speaker 1: also wanted to point out that again we've seen this
Speaker 1: numerous times, especially in criminal cases. O'Connor's majority starts with
Speaker 1: a detailed rundown of the crimes that Tanner and Conover
Speaker 1: are accused of. The First, I want to say, you know,
Speaker 1: maybe ten paragraphs of this opinion are about the mail
Speaker 1: fraud and the conspiracy to commit fraud, which is what
Speaker 1: the defendants are accused of. It has nothing to do
Speaker 1: with this Supreme Court case and the question in front
Speaker 1: of them. Right, sure, you might feel bad for this guy.
Speaker 1: What if I told you he committed mail fraud? Maybe
Speaker 1: you feel bad for him now, well I do. I
Speaker 1: do think they affirmed the convictions as well, although I
Speaker 1: think it's like very much a side side thing. So right, right,
Speaker 1: it's not whether somebody is guilty or not guilty. It's
Speaker 1: whether the trial that they received, right, It's whether the
Speaker 1: jury that they got who assessed these allegations against them
Speaker 1: and will determine, right, whether or not these people go
Speaker 1: to prison. It's about whether that jury was a fair
Speaker 1: jury for them. Yes, right, So all the facts that
Speaker 1: she's restating as if they are true are in fact
Speaker 1: contingent upon whether or not the trial that we're talking
Speaker 1: about was a valid one. And that's the whole thing,
Speaker 1: exactly right, just backwards whatever. That's exactly right. And I
Speaker 1: think the majority does this kind of smoke and mirrors
Speaker 1: thing where it's emphasizing and highlighting and saying that it's
Speaker 1: respecting the sanctity of the jury room. Right. This is
Speaker 1: like a concept in right about the jury, about trial
Speaker 1: level cases where what goes on behind closed doors as
Speaker 1: a jury is delivery about a case is ultimately respected,
Speaker 1: right because of the importance of having a jury of
Speaker 1: your peers, of sort of a public accountability for somebody's wrongs.
Speaker 1: This is in theory I don't I certainly don't agree
Speaker 1: with like the way we're we're metting out so called
Speaker 1: justice in our system. But that is part of the
Speaker 1: point too, that like the sanctity, the supposed sanctity of
Speaker 1: the jury room and juries, deliberations are worthy of the
Speaker 1: utmost respect right, and that we shouldn't turn that over,
Speaker 1: we shouldn't threaten that in any way. But there's no
Speaker 1: treatment at all about the jurors themselves disrespecting the sanctity
Speaker 1: of the process that they're called to do. Right, The
Speaker 1: court is concerned about undermining trust in the system public
Speaker 1: trust in juries, but allowing for cocaine use, allowing for
Speaker 1: jurors to beletely intoxicated during a trial during deliberations, we
Speaker 1: can assume. And so this sort of concern about undermining trust,
Speaker 1: about respecting the sanctity they're talking in this really flowery
Speaker 1: sort of mythologizing language about the processes that we have,
Speaker 1: the legal processes that we have. But it's really in
Speaker 1: order to subvert an argument about you know, what these
Speaker 1: jurors were doing was wrong. It was against the sanctity
Speaker 1: that we supposedly think we have right right. That's what's
Speaker 1: so like jarring about this case is it's like a
Speaker 1: direct contrast between like the mysticism surrounding the idea of
Speaker 1: a jury of your peers in American legal rhetoric and
Speaker 1: the reality of the situation, which is, you know, somewhere
Speaker 1: between seven and twelve complete freaks being shoved into a
Speaker 1: room and being told to like interpret laws that they
Speaker 1: just learned right, apply them to complex sets off facts.
Speaker 1: I mean, it's a ludicrous system. I'm not saying there's
Speaker 1: a better one, but I mean the system in operation
Speaker 1: is chaotic, full of misconduct and bad outcomes, and subject
Speaker 1: to the whims of like any given person's psychological biases,
Speaker 1: and the core to sort of engage in the project
Speaker 1: of shoving away those sort of gross realities and trying
Speaker 1: to maintain the mythos of the incredible magic of our
Speaker 1: jury system, and how sort of naturally just it is, yeah, Peter,
Speaker 1: And there was a part in the majority opinion that
Speaker 1: was like I was just sort of like laughing when
Speaker 1: I was reading, because towards the end when O'Connor is like,
Speaker 1: you know, still trying to like avoid just admitting what
Speaker 1: was going on here. And so she's talking a lot
Speaker 1: about like this first affidavit from Vera where she was like, yeah,
Speaker 1: a few people had beers and maybe napped. And then
Speaker 1: she's like yes, And there was the second testimony, right,
Speaker 1: this second thing she's like, but that was gathered in
Speaker 1: violation of court order and local rules, like so what
Speaker 1: like like who gives a shit? Like it's not really
Speaker 1: like well, you know, you weren't supposed to talk to
Speaker 1: them about that. First of all, the juror came to
Speaker 1: the guy's door, like knocked on the fucking attorney's door
Speaker 1: and was like, I'm feeling like I gotta get this
Speaker 1: off my chest, right, yeah, yeah, I asked it. By
Speaker 1: the way, the foeman, the fore woman who was drinking
Speaker 1: wine every day, right, she called to the courthouse and
Speaker 1: was like when's the hearing. I want to testify. I
Speaker 1: feel I feel bad, like yes, and they're just like, yeah,
Speaker 1: but but you weren't supposed to talk to them. The
Speaker 1: court said not to talk to them after your last attempt.
Speaker 1: So we're just going to ignore this. We're just going
Speaker 1: to pretend like this didn't happen. You know. That's sort
Speaker 1: of the court's whole mode here, is like we don't
Speaker 1: want to know prioritizing local court rules over the sixth
Speaker 1: Amendment of the Federal Constitution, right, putting their hands over
Speaker 1: their years and going naa, na, na, I can't I
Speaker 1: can't hear you. Yeah, yeah, exactly. And so the other
Speaker 1: thing is like just reading this case and reading the
Speaker 1: majority talking about the sanctity of the jury and deliberations
Speaker 1: and all that. I can't help but think about jury nullification.
Speaker 1: Jury nullification is this concept in American law, and I
Speaker 1: think it's common in a lot of Western judicial systems. Actually,
Speaker 1: the idea that juries have the power to essentially nullify
Speaker 1: a law in specific instances or even generally. And they
Speaker 1: can do that by just declining to convict someone, right,
Speaker 1: they can return a not guilty verdict, right. Yeah. Instances
Speaker 1: of this, like sort of historical instances that are I
Speaker 1: think admirable, are like during like you know, the abolition era,
Speaker 1: there were juries that would refuse to convict people under
Speaker 1: the Fugitive Slave Act. You know, people who were charged
Speaker 1: with aiding escaped slaves. They wouldn't convict them, right, And
Speaker 1: you can imagine similar things happening now. I think it
Speaker 1: actually did happen with people aiding migrants, right, leaving water
Speaker 1: in the desert in Arizona and stuff like that, to
Speaker 1: migrants crossing the border and things like that. This is
Speaker 1: something that is like, uncontroversially within the power of American juries. Yes,
Speaker 1: it's just in the nature of what powers they do have,
Speaker 1: what protections they do have, a lot of what these
Speaker 1: rules describe, protect people from coming out and saying, yeah, well,
Speaker 1: jurors four and seven refuse to convict because they think
Speaker 1: the laws unjust right, that's literally, like the rules we
Speaker 1: are just discussing. That's precisely what they prevent juries from
Speaker 1: testifying about to impeach their verdict and whatever. And yet
Speaker 1: this is something that is actually like very strictly, I
Speaker 1: don't want to say outright prohibited, but courts go to
Speaker 1: a great extent to prevent Like if you say you're
Speaker 1: familiar with jury nullification during vorder, you will not be
Speaker 1: seated on that jury, right, right. And similarly, a defense
Speaker 1: lawyer cannot tell the jury pool during vardier or during
Speaker 1: a closing argument, for instance, about jury nullification. They can't
Speaker 1: call for the jury to nullify. Yea, and yeah, just
Speaker 1: so everyone knows, warder is jury selection they selection. Yes, Yes,
Speaker 1: that's the part where they interviewed the jurors and asked
Speaker 1: them a bunch of questions and stuff like that. And
Speaker 1: jury instructions from the judges will often be done in
Speaker 1: a way where they don't mention jury nullification but will
Speaker 1: essentially say, if you nullify this, you are either violating
Speaker 1: the law or violating the oaths you took. Put people
Speaker 1: in a position where if you're aware of jury nullification beforehand,
Speaker 1: you either have to lie under oaths in order to
Speaker 1: get on the jury or not be seated at all.
Speaker 1: Or if you learn about jury nullification while you're on
Speaker 1: the jury, that is actually is admissible as like outside influence. Right,
Speaker 1: That's something that courts will hear test Teimoni about it.
Speaker 1: Sort of infamously happened in the trials a few years ago,
Speaker 1: where you know, the Trump administration was trying to prosecute
Speaker 1: all those protesters for his inauguration, and one of the
Speaker 1: jurors and when those trials came back and said, hey,
Speaker 1: somebody had written Google jury nullification on the inside of
Speaker 1: a bathroom stall, and I did, and then I told
Speaker 1: all the other jurors about it, and the judge was like, oh,
Speaker 1: that's that's interesting. It was grounds for a mistrial actually,
Speaker 1: just learning about what jury nullification is. Yeah, it's like
Speaker 1: you get disqualified from a jury for learning about any
Speaker 1: leftist concept. It's like, right, where use your hand? If
Speaker 1: you're familiar with Karl Marx, you can leave like that.
Speaker 1: By the way, that then end up being a mistrial
Speaker 1: just because the prosecution didn't press it, but they were
Speaker 1: losing everything. There was a lot of misconduct. It's that's
Speaker 1: its own whole story. But here's the thing, like, if
Speaker 1: you are even considering jury nullification, you are someone who
Speaker 1: is taking your duty seriously right as a citizen, as
Speaker 1: a juror, you're considering the lawed issue, it's impact on society,
Speaker 1: you're considering the defendant, you're considering the circumstances. It is
Speaker 1: thoughtful whether or not you agree with the concept of
Speaker 1: jury nullification or its specific context in which it might
Speaker 1: be applied right, Like, I think some people might argue,
Speaker 1: like you know, O. J. Simpson getting off was an
Speaker 1: instance of jury nullification that they don't agree with. Maybe not,
Speaker 1: I don't know. Regardless, the main point is those jurors
Speaker 1: are taking their duties seriously. Yes, like you don't have
Speaker 1: to agree with their rationale or their conclusions to concede
Speaker 1: that point. But that is not really protected in our system.
Speaker 1: But getting fucking ripped, treating your duties so unseriously that
Speaker 1: you are getting so fucked up that you need to
Speaker 1: either snore a bunch of lines of cocaine to stay
Speaker 1: awake or you're just passing out in the middle of trial.
Speaker 1: That's something the court is more than willing to look past, right, yep.
Speaker 1: Just to like circle back as a final thought. You know,
Speaker 1: something we've talked about before is part of the conservative
Speaker 1: legal project involves shifting discussions of substantive rights over to
Speaker 1: discussions of procedure right, and the function of that is
Speaker 1: to avoid having to defend directly the myriad injustices that
Speaker 1: you see, especially in our criminal justice system every day.
Speaker 1: In some cases, that means court's creating complex networks of
Speaker 1: immunities for government officials and institutions accused of wrongdoing, which
Speaker 1: keeps those cases out of court altogether. And in some
Speaker 1: like this, it just means ignoring these substantive question and
Speaker 1: focusing on the procedural one. If you ask most law
Speaker 1: professors what this case is about, they'd say, it's about
Speaker 1: the admissibility of juror testimony under the federal rules of evidence, right, Yeah,
Speaker 1: But it's not really, it's about the fairness of this
Speaker 1: guy's trial. And that's a discussion that conservatives just don't
Speaker 1: want to have because the reality is that our criminal
Speaker 1: justice system is grossly unfair and unjust in all sorts
Speaker 1: of ways. And you can see the true locus of
Speaker 1: the court's concern in the closing portion of the opinion
Speaker 1: I mentioned earlier, where O'Connor is talking about how allowing
Speaker 1: convictions to be challenged would undermine trust in the system.
Speaker 1: The real concern should be about whether the system should
Speaker 1: be trusted, whether we have built a system good enough
Speaker 1: to be trusted, like whether it's actually just. But she
Speaker 1: is fairly openly discussing shrouding the reality of the system
Speaker 1: in order to maintain the lie that it is fair
Speaker 1: and just which means she's all but saying out loud
Speaker 1: that the goal of these procedural technicalities is to avoid
Speaker 1: any dissection of the fairness of our legal system. And
Speaker 1: you know this is in nineteen eighty seven. Over the
Speaker 1: next sort of twenty years, judges like Scalia went even further,
Speaker 1: not only rigidly focusing on proceduralism in criminal law, but
Speaker 1: also chastising those who didn't right, claiming that they were
Speaker 1: unserious and driven by policy objectives because they were prioritizing
Speaker 1: rights over procedure. That outlook has been very influential in
Speaker 1: the academy, and it's become a sort of common wisdom
Speaker 1: among lawyers that the proper and serious way to analyze
Speaker 1: the law is to focus on technicality and ignore your
Speaker 1: normative conception of what constitutional rights should actually be. A
Speaker 1: big part of the left legal project, if there is one,
Speaker 1: has to be inverting that and talking about like a
Speaker 1: rights centric jurisprudence, like centralizing constitutional rights what we believe
Speaker 1: a broad conception of those rights should be, and making
Speaker 1: them superior to a procedure, which they absolutely must be
Speaker 1: if you believe in the Constitution, as like you know,
Speaker 1: the preeminent document in our law. It's the only way
Speaker 1: you could possibly conceive of it in a way that
Speaker 1: makes any sense. And conservatives have sort of quietly done
Speaker 1: away with that, especially in areas of the constitution that
Speaker 1: happened to benefit criminal defendants. That's right, all right, Well
Speaker 1: that was the story of the world's coolest jury. Damn
Speaker 1: what a this is such an eighties thing. Yeah, we
Speaker 1: did let the ladies off easy. By the way, we
Speaker 1: didn't mention in the facts that there were also two
Speaker 1: ladies who were drinking mixed drinks. Oh that's right, Yeah, yeah,
Speaker 1: the cocktail got to get that in there. I love that.
Speaker 1: There was just like a wide array, Like it's not
Speaker 1: like someone brought beer a couple of days and they're like,
Speaker 1: whoa dude, that dude's bringing beer. Like, right, someone's got beer,
Speaker 1: someone's got wine. Someone's like, you know what, no, I'm
Speaker 1: gonna bring mixers. This is a full on house party, dude. Yeah, yeah,
Speaker 1: we've got to be bro We got wine, we got
Speaker 1: tequila and soda. Like what is going on? People drink
Speaker 1: so much that they know each other's drink orders. Harry, Hank,
Speaker 1: John and Terry they split beer vera gets the cab,
Speaker 1: they see gets the cosmos. How do you get so
Speaker 1: comfortable with the rest of the jury that you're like
Speaker 1: yodio party, Yeah, let's turn it out. It's unbelievable. Next
Speaker 1: week premium episode an update on the state of legal journalism.
Speaker 1: Last summer summer twenty twenty one, we did an episode
Speaker 1: about how fucking awful how legal media coverage had been
Speaker 1: that year, and we're gonna do a quick update because
Speaker 1: in some ways it's gotten materially better. I think they listened.
Speaker 1: That's right, we're famous now and people are listening. Then
Speaker 1: there's been some setbacks, shall we say, the exposure of
Speaker 1: Nina Tottenberg as a complete and utter access journalism hack.
Speaker 1: You know, some CNN panels that are perhaps not the
Speaker 1: most impressive lineups I've ever seen in my life. But
Speaker 1: we're gonna We're gonna convene and discuss talk about who's
Speaker 1: smart and who's stupid. Follow us on Twitter at five
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Speaker 1: that someone thought of the idea you only get so
Speaker 1: many bites at the apple. It's like, I feel like
Speaker 1: people should be allowed to take as many bites of
Speaker 1: an apple as they want. Frankly, it seems like a
Speaker 1: waste of an apple. Who do they think they are
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