Unreformed presents "5-4: Tanner v. United States."

the show. Five to four is a podcast about how much the Supreme Court sucks. Every week, five to four takes on the Supreme Court's worst decisions about the most important issues like police abuse, abortion access, the Second Amendment, and voting rights. Each episode covers a Supreme Court case that reveals the ways in which the justices contort the law, make stupid legal errors, and generally hack away at our democracy as the Court shifts further and further to the right.

Five to four is your guide to how this supposedly a political institution wields its power. Fine five to four wherever you get your podcasts, and we're going to drop one of their episodes here for you to listen, to enjoy and meet us back here on Wednesday, March eighth for the series finale of Unreformed. Well here. Argument First This morning at number eighty six one seventy seven Anthony rat Tanner and William M conover Petitioners versus the United States.

Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of five to four, Peter Rhannon and Michael are talking about Tanner v. United States. It's a sixth Amendment case about whether or not you're right to a trial by jury has been compromised if the jurors were consuming large amounts of alcohol. We're utilizing and dealing in marijuana, and we're ingesting cocaine throughout the course

of a complex criminal proceeding. In a five to four decision written by Justice Sandra Day O'Connor, and the Court proclaimed that the receeedings of a jury room are so sacrosanct that even if more than half the jury is high and drunk, their verdict must stand. This is five to four, a podcast about how much the Supreme Court suns. Welcome to five to four, where we dissect and analyze the Supreme Court cases that have infested our law, like lantern flies have infested New York. I am Peter, I'm

here with Michael everybody and Rhiannon. Hello. What is a lantern fly? Like a lightning bug? They're a big problem in like Philly, New York right now. Oh, they're the ones that, like the Philly local government was like on site. You fucking kill these things when you see that? Yeah, yeah, So they're like indigenous to China. Every like decade or so, some insect that has no natural predators makes its way over from China and just like ruin some ecosystems, and

they're all over New York right now. And like I had to change my route the grocery store because there is a building that is like teeming with them, like a almost a skyscraper, and when you walk by it, like the ground is littered with their corpses. One fell into my like collar, oh god, And I had to try to act like I was not absolutely losing my mind. It's like, oh one of them fell, I guess I'll just casually get this out. And I was like internally

just absolutely losing my ship. Anyway, kill them all. Yeah, I've been stomping on them doing my best. Today's case Tanner v. United States. This case is sort of about the right to a jury, but specifically, you know, it's about if you're on trial and the jury deliberating over your guilt or innocence is just wasted out of their minds, absolutely rips on alcohol, cocaine, and marijuana. Is that a violation of your right to a jury trial? And you

maybe get some testimony about that? The court, in a five to four decision written by Sandra Day O'Connor, because this is nineteen eighty seven, said no, you cannot get any testimony about that, and this is maybe even okay, this is hard. They harped on an evidentiary rule to hold that the evidence of the jury's rampant drug and alcohol use was not admissible in court, making this another in the long list of cases where the court prioritizes

procedural technicality over substantive constitutional rights. I'm gonna let you run wild on the background. Here are you turning this over? Yeah? Okay, all right. This case comes out of a federal criminal trial took place in Florida. That's right, Florida man strikes again. Homestead Yeah, this time, it isn't the criminal defendants who are being Florida man, It is the jury, that's right, all right. So Anthony Tanner and William Conover were on

trial for mail fraud and conspiracy to commit fraud. They were convicted by the jury, but before they were sentenced, one of the lawyers for Tanner and Conover got an alarming phone call. A juror named Vera Asbell called defense counsel and told him that she needed to get something off her conscience. This was a confession of sorts, father,

I have witnessed some sin. She told the attorney that at the trial, some of the mail jurors were drinking during the day, you know, as the trial is going on, and then a few of them would sleep through the afternoons while the trial is happening in the courthouse. Men, am I right? Yeah, it was the mail jurors that she pointed out. Yeah. She told defense counsel that another juror, Tina Franklin, could confirm these accusations, could confirm what she

was saying. The ladies on the jury are a guest, you know, there's one who gets into it. Well, yeah, at least at first that's how it seems, right, yeah, exactly. Now, the district court refused to have an evidentiary hearing on this. This would be the type of hearing where the court digs into what happened, here's testimony from people who were there, who know what happened, and the court would be deciding

whether the defendant's rights were violated. Right. They said no, because, according to the court, the jurors testimony would be inadmissible under a certain federal evidentiary rule. But that wasn't the end of it. It wasn't just that they were drinking. A few months later, the initial allegations by Vera Asbell

were supplemented by another juror named Daniel Hardy. Hardy told the defense counsel that fully seven members of the jury out of twelve people solid majority more than half, including himself, with drinking alcohol during lunch. Four male jurors shared up to three pitchers of beer on a daily basis. Okay, Hardy himself said that he quote consumed alcohol all the time. The female juror, who was four person, would drink a leader of wine at lunch every day. The men did

take it up a notch though. The four jurors, the four dudes who were drinking pitchers every day at lunch. They also smoked marijuana during the trial about every day. One of the jurors allegedly sold sold a qpe a quarter pound of marijuana to another juror inside the courthouse. The lord, this is the eighties. You could like get the death penalty for that. Two of the jurors nor died a couple lines of cocaine on several occasions during the trial. Sometimes during the trial, two of the jurors

were ripped off of all three substances. They were drinking, they were smoking marijuana, and they were snorting coke. Good. The eighties were wild, you know what a time one of the jurors talked about how he was quote flying during the trial. That was his characterization. And I think he's the one where Hardy said like he would go to the bathroom and come back sniffling like he had

a cold. Yeah, all the time. And then he had like a little contract and he had a little container being like in court on trial for your life, and you like glance over at the jury and you to see a dude in a khole. We're not far from that here. Drooling a little bit. Yeah, yeah, yeah. At this point, the defense lawyers file another request for an evidentiary hearing. You know, look, Judge, this ship is fucking crazy.

The court needs to hear about it decide whether something really serious enough happened to call the verdict into question, right right, The court said no again, testimony from any of the jurors is inadmissible, and so the defense lawyers appealed all the way to the Supreme Court. And people complain about getting stuff with I know, right, imagine like just being like, oh, jury time, right, I forgot the code. Jury's gonna suck today. Okay, we're laughing about all of

this stuff. I think it's objectively funny that some people got zuited to like watch a trial or whatever. But yeah, we should clarify, like, obviously this kind of scares me as as a defense attorney, Like this is a really serious matter. These people were deciding the fate of these two men's lives, and yeah, we don't think it's cool that the jury took it this way. That's right. The the denial of civil rights is not funny. But sometimes when you're going from civil rights to no civil rights,

some funny stuff happens along the way. That's all We're exactly. It's a good way to put it all, right, So let's zoom way out here. The sixth Amendment guarantees the right to a trial by jury, and not just a jury,

but an impartial jury. Yeah. Of course, there may, in some circumstances be a question of whether the jury was acting appropriately where they subject to undue influence, for example, or perhaps just demonstrably incompetent in some way that would functionally deny you your constitutional right to an impartial jury. So there are avenues by which you can impeach the jury,

meaning challenge the validity of the jury's findings. Fundamentally, this case is about the defendant attempting to impeach the jury verdict on the basis that the jury was wasted right, that perhaps his right to a jury trial was being

violated here. Yeah, But the threshold question, as Rhannon mentioned, is actually about the rules of evidence, the Federal Rules of Evidence Rule six H six B. The Federal Rules of Evidence are the laws governing the use of evidence in federal court, and this rule establishes some pretty stringent guidelines for when you can use a juror's own testimony

to impeach a jury verdict. Remember, the only evidence we have here is testimony from other jurors, and there are rules governing when jurors can testify about the jury itself, because you know, sanctity of the jury, etc. Peter, you just said, like the sanctity of the jury, We should

probably explain that a little bit. So, Yeah, there's this kind of principle in the law that like what happens in the jury room is is sort of this this sacred thing, and that like outside interrogation, interrogation after the fact over like what people talked about in the jury room to reach their deliverer ration. You know, that's kind of inappropriate because you want the jury to be respected,

a jury's verdict to be respected. You know. The idea is that a jury of someone's peers, you know, people who come from the public, who have all different kinds of experiences, come together and decide on somebody's guilt in

a trial. So when the court talks about like the sanctity of the jury, all of that kind of stuff, it's it's this idea really that jury deliberations are supposed to be respected because it is an intensive thing that the jury goes through, and intensive questions that they answer, which should be respected and shouldn't be picked apart after the fact. That's right. So that's what the majority, written

by Sandrada O'Connor grabs onto here. The allegations about the jury being drunk and high, they come from juror testimony, meaning they come from the jury itself, and the Federal Rules of Evidence allow for the admission of juror testimony in very limited circumstances. So let's walk through the rule a little bit, and I admit it's a little bit confusing. Don't worry about it. You don't need to like completely

comprehend it. Right. So Rule six or six B of the Federal Rules of Evidence says that jurors cannot testify about, quote the effect of anything on his or another juror's mind or emotions as influencing him to assent or descent from the verdict. So, okay, that's a little weird, right, The effect of anything on his or another juror's mind as influencing him to assent or descent from the verdict. Does that apply to drugs? Sort of unclear? Right? Right?

In the most literal sense, you could say that maybe it does. However, it's also pretty clear if you look at the context of the rule that what it's really trying to get at is like juror's mental the liberations one way or another, right, right, right, And in terms of quote, anything on the juror's mind that influences them to assent or discent. You know, I read that kind of in a plain language way to mean like anything from the trial, right, A piece of evidence, a witness

is demeanor. Right, those are the things on the mind of a juror that would influence them to assent or dissent from the verdict. And I think that's what the rule is talking about. And there's also a question of whether drugs or alcohol influence someone to assent or descent from the verdict. Right. They don't push you in one direction. What they do is influence your decision making, right, right, which seems like it's a separate thing. Yeah. Now there's

other parts of this rule. It also says they can't testify about a juror's mental processes, and there are exceptions. There can be juror testimony about whether outside influence was brought to bear on any juror. Presumably that mostly means bribes and threats. There's also a question here of whether outside influence in the most literal sense would include drugs. So, but the fundamental question is whether all of this means that a juror cannot provide testimony about drug and alcohol

use by other jurors. If the testimony is admissible, then Tanner probably needs a new trial at the end of the day, right. If not, he's out of luck. And so what the majority does is look at the common

law history of juror testimony admissibility. In other words, the rules of evidence are a federal law, but the court is looking back at what courts did historically in order to interpret that law, which is always a little awkward, right, because if we're going to use the historical common law to interpret the statute, it starts to defeat the purpose of having a statute at all at some point. But whatever. Anyway, the Court says that historically there's an important dichotomy here.

There are things that happen internally within the jury room, and those are private matters that can't be testified about, and then there are things that happen external to the jury room, like bribes or threats, and those can be testified about drug and alcohol uses within the walls of the jury room, according to Sandra Day O'Connor, So jurors can't testify about it. Now, by contrast, what the descent

says is No, that's not the relevant distinction. What the rule is meant to do is protect the confidentiality of jury deliberations. So the distinction that we should be worried about is not whether it's in the jury room or outside of the jury room, but whether the testimony in question is about jury deliberation or not. And this is not right. This is about drug and alcohol use during the trial before deliberation, right, So the rule doesn't apply

and the jurors testimony should be admitted into evidence. Yeah, Peter, I'm glad that you explain what Sandra day O'Connor is kind of doing here. She's saying that something that happened inside the jury room internal to jury deliberations, that there cannot be testimony about what happened there in those circumstances. Something that happens outside external to the jury room, those

things the court can here testimony about, right. But I just want to point out, like the descent obviously explains that, like this internal external distinction doesn't really work. You know, the distinction should be whether or not the testimony is

about deliberations or not. But I also think it's worth highlighting this internal external distinction that the majority does is not only kind of silly because as the Descent points out, it's not a sort of meaningful distinction in the way that it should be, but Sandra Day O'Connor is also applying this rule that she just made up. She's applying it incorrectly because we're not talking about events that happened inside the jury We literally are talking about events that

are external to the jury room. They were doing drugs and drinking during the trial outside of the jury room. They were not deliberated, right, they were still in the metaphorical jury room. That's what you're not. I'm sorry, I'm not in the brain jury room that Sandra day O'Connor is.

That's genuinely what she must mean, right, that it's like they're in the jury space, you know, right, right, exacternal external distinction was so sort of dumb because it's like it's clear what she's trying to get at, which is like you can't come out afterwards and be like, well, yeah, we let this guy off. But that's because a lot of the jurors were sexist and so they thought all the female witnesses were lying or whatever, right, right, but

somebody got intimidated like in their home or something. Of course, you can testify about that. That that makes perfect sense and is sort of internal external, But is it a deliberation or not? Is I think the more important thing, right, like exactly, and what Justice Marshall is saying, yeah, that's what you're trying to capture here, and not only is she not capturing it, but then her like bad heuristic is being applied stupidly, right, Like that's like this is

all happening outside the jury room. They're getting trashed at Applebee's or whatever. You know. You can conceptualize the sanctity of the jury quote unquote in different ways. I think the more obvious way is the way that the descents doing it, where you're saying, yeah, like the jury deliberation is important and needs to be protected, and we can't have everyone testifying about what goes on, right yeah, right.

What O'Connor is doing is being like, yeah, anything the jury does is sacred, and it's like, why would that be the rule that it just doesn't make a lot of practical sense. Smoking a joint in the fucking loading bay at the Ramada Inn or whatever down the street, that's external, right, Exactly if a juror got threatened outside of the courtroom, right at home concerning the jury, or saw something on the news that might prejudice them, right,

are those really internal? You can make the argument that they're external. Right, So this distinction is doing no work. It just doesn't make a lot of sense. And more importantly, you can almost sort of put it aside, right, because it does feel like it's beside the point here. The point should be that this is a violation of Tanner's

constitutional right to a jury right. The jury was impaired to the point where most of them probably wouldn't be allowed to legally operate a forklift, let alone decide whether or not someone should be a free human being, you know. Right, And there's this pretty basic reality here that the majority seems to ignore. If the jury were literally unconscious from drugs and drinking pass that on the floor, not able to process information at all for the duration of the trial,

I would hope that we could all agree. Sanderday O'Connor included that that does not satisfy the constitutional right to a jury. So there must be some place on the spectrum between stone sober jury and completely unconscious jury where we all have to admit that this no longer qualifies as a constitutionally adequate jury. Right. Where exactly on the spectrum that line is might not be an easy question to answer, but it's the court's obligation to answer it,

not when the federal rules of evidence stand. Well, yeah, that's what's happening is the court is essentially acting like this is just a case about evidentiary rules when it's not. It's about whether this man received a constitutionally fair trial, and if he didn't, then it doesn't matter or shouldn't matter what the federal rules of evidence say. Yeah. Right. One thing I wanted to point out is like, this is nineteen eighty seven when this case is coming down,

and there's just like there's no textualism at all. Right now, we've talked about how the conservative legal movement sort of built up these ideas like textualism and originalism over time, and this is like mid to late eight, and you have a statute and you're trying to interpret it, and at no point does someone just say, well, let's look at the words of the statute and like think about what the most literal meaning of it is and then we'll work from there. That just wasn't how the analysis

was done. And it's just sort of jarring when you've been reading like modern jurisprudence that you just don't see it at all, and goes to show how successful the conservatives have been at influencing the way that the laws analyze. It's just sort of wild. Yeah, extensive discussion of legislative history of pages of it, yes, which they found conclusive. Yeah, but including in the Descent Right. The Descent has a pretty extensive treatment of legislative history as well, but comes

out the other way. One final item worth discussing the opinion wraps up by saying that although allowing for investigations into jer misconduct would sometimes uncover misconduct, it's not worth it because it would basically be such an administrative hassle. O'Connor says that frequent challenging of verdicts based on juror

misconduct would quote disrupt the finality of the process. Yeah, and just to jump in here, the Court does reference this sort of principle of like finality of a verdict, right, that we have to be able to trust that the jury's decision is final, that we can't go back after the fact and pick apart what the jury did in the jury room and you know, sort of upend jury verdicts. Right. The public has to be able to trust that jury decisions are the decisions. And so that's what the kind

of finality principle means. But we've mentioned before that especially in criminal law, judges the Supreme Court over the course of years generations have referenced this kind of you know, high minded principle of finality of jury verdicts, but only in service of a higher principle to federal judges, which is not wanting to review these cases. Right, That's right.

You see it kind of trotted out and used by the Supreme Court in many different kinds of cases basically as like a reason why we can't review what happened, right, right. Conservative judges love it because it is something that it makes sense that eventually you run out of bites at the apple, right, that process runs out, you've done all your state appeals, you've done your constitutional peels, blah blah

blah blah blah all that. With conservatives sometimes they're like, that's it right, right, Like you have one bite at the apple and they're like, that's it's done, right exactly. Finality is just to them, it's an excuse to put an end to the proceedings. Yes, it's just like a vocabulary that they speak when they want to end the proceeding.

For some like someone is claiming that their civil rights are being violated, and conservatives are like, well, that would be against the principle of finality, which means I don't want to keep going with this shit, right exactly, I don't want to look at this. Yeah. It's also I should I should mention that it's a little bit adjacent to like victims rights movements, which are very aligned with

like prosecutors and stuff. Right, there are sort of groups that are basically aggressive prosecution advocacy organizations that sort of portray themselves as being about victims rights, right, And then the argument is like, well, the victims and their families need finalities so they can sort of move on, yes, right, which is not you know, in and of itself totally untrue, but the idea that it should trump someone's civil rights, right,

I just invest bullshit? Right. Also funny here where the victim is like the federal government getting defrauded out of a few million dollars, Like it's some like grieving widow at home or anything. The government needs to move on. The AG's office needs to be able to sleep it, you know, they need they need to put us behind them. Yeah.

And they also say that public trust in the jury system would be undermined if we scrutinize juror conduct too much, which is just another way of saying like, if we revealed how much jurm as conduct there is, people would not trust the system. And it's like, yeah, that does sound right, yeah, yeah, right, yeah yeah. If we said that getting absolutely lit during a trial is a problem for the jury, then yeah, people might question the efficacy of jury. It's I mean, I do agree that that

would undermine trust in the jury system. I guess I don't agree that the solution to that is to bury all the evidence of misconduct and say it's inadmissible. That's right to each his or her own. Sandra Day O'Connor, this is a good spot. It feels like to take a break and we're back. We should talk about the descent. This is written by Thurgood Marshall. He's joined by Justices Stevens, Blackman and Brent In. So, you know, just want to

point out this is a five four decision. The court is really split here, and you know the Conservatives take the day once again. But you know, Marshall really responds to the rules six or six B analysis that the majority goes with with his own, like I mentioned, his own intensive analysis of the rule, but he comes out differently. He goes through legislative history, he goes through the policy considerations, he goes through the notes on the legislative history, the

comments on the adoption of the rule. I mean, there's really sort of a picking a part of this rule, how it came to be, the purpose of the rule, you know all of that. And you know what I like too is that Marshall points out these allegations about what the jury was doing. These are provable allegations, Like you're not talking about what's going on in someone's head

in terms of how they think about the case. You're not talking about the jury deliberations, the deliberations about the case, their conversations about the facts that evidence that they heard, their thought processes, their agreements and disagreements in the jury room as they came to their verdict, whether or not the jury was ingesting substances, whether they were pardon me, but gone off that loud Again, Marshall says, we can

hear testimony about that and determine whether or not it happened. Right, there's a good quote here from the descent. Petitioners are not asking for a perfect jury. They're seeking to determine whether the jury that heard their case behaved in a manner consonant with the minimum requirements of the sixth Amendment. If we deny them this opportunity, the jury system may survive, but the constitutional guarantee on which it is based will

become meaningless. So just as Marshall does put in this sort of a reference to the constitution, a reference to the sixth Amendment, which is, you know, your right to

an impartial jury trial, among other things. But we should note that, like Peter said, uptime with the court kind of latching on to the evidentiary rule and having their analysis come out of the rule means that the constitution is kind of ignored here, And there is the point that, like, the question presented to the court is not whether Tanner and Conover got their constitutional rights violated, it's just whether the court should have given them an evidentiary hearing about

ger misconduct. But still, I mean that really obvious skates the really intense, substantial risks to constitutional rights that this case brings up, right, And nowhere in the majority is that really discussed the sixth Amendment. Marshall includes it in what I would say is like dicta of the dissent right. But there isn't an intensive constitutional analysis here. This is

about the rules of evidence, and that's kind of it. Yeah, And I thought like this also tied into he had a pretty good point about the majority very much down laying the sort of severity of this jer misconduct, right, like, oh yeah, questioning whether like these jurors, even if you know this evidence was admissible, whether this would be sufficient to prove death A jurors were not competent, right, right.

And O'Connor does so by really trying to sweep under the rug all the marijuana, cocaine and other more salacious allegations and and rely on just like, oh, so what some people had a few beers sort of sort of maybe somebody knotted off here and there. But it's like, look, even if one person was ripped for one day, like that's that's a day where your juror, you had a juror who was not present mentally right, was not was not there like right, And so that's like, I don't

know how that could be anything but a constitutional violation. Right, a juror so fucked up that they are not like mentally present, you're not getting your six Amendment rights vindicated. Yeah, And then another thing is just that, like, you know, you make the point, Michael, that O'Connor really downplays the juror misconduct. That's completely true. You only get the details about the allegations what the jurors were actually up to.

You only get that in Marshall's dissent. And then I also wanted to point out that again we've seen this numerous times, especially in criminal cases. O'Connor's majority starts with a detailed rundown of the crimes that Tanner and Conover are accused of. The First, I want to say, you know, maybe ten paragraphs of this opinion are about the mail fraud and the conspiracy to commit fraud, which is what

the defendants are accused of. It has nothing to do with this Supreme Court case and the question in front of them. Right, sure, you might feel bad for this guy. What if I told you he committed mail fraud? Maybe you feel bad for him now, well I do. I do think they affirmed the convictions as well, although I think it's like very much a side side thing. So right, right,

it's not whether somebody is guilty or not guilty. It's whether the trial that they received, right, It's whether the jury that they got who assessed these allegations against them and will determine, right, whether or not these people go to prison. It's about whether that jury was a fair jury for them. Yes, right, So all the facts that she's restating as if they are true are in fact contingent upon whether or not the trial that we're talking about was a valid one. And that's the whole thing,

exactly right, just backwards whatever. That's exactly right. And I think the majority does this kind of smoke and mirrors thing where it's emphasizing and highlighting and saying that it's

respecting the sanctity of the jury room. Right. This is like a concept in right about the jury, about trial level cases where what goes on behind closed doors as a jury is delivery about a case is ultimately respected, right because of the importance of having a jury of your peers, of sort of a public accountability for somebody's wrongs. This is in theory I don't I certainly don't agree with like the way we're we're metting out so called

justice in our system. But that is part of the point too, that like the sanctity, the supposed sanctity of the jury room and juries, deliberations are worthy of the utmost respect right, and that we shouldn't turn that over, we shouldn't threaten that in any way. But there's no treatment at all about the jurors themselves disrespecting the sanctity

of the process that they're called to do. Right, The court is concerned about undermining trust in the system public trust in juries, but allowing for cocaine use, allowing for jurors to beletely intoxicated during a trial during deliberations, we can assume. And so this sort of concern about undermining trust, about respecting the sanctity they're talking in this really flowery sort of mythologizing language about the processes that we have,

the legal processes that we have. But it's really in order to subvert an argument about you know, what these jurors were doing was wrong. It was against the sanctity

that we supposedly think we have right right. That's what's so like jarring about this case is it's like a direct contrast between like the mysticism surrounding the idea of a jury of your peers in American legal rhetoric and the reality of the situation, which is, you know, somewhere between seven and twelve complete freaks being shoved into a room and being told to like interpret laws that they just learned right, apply them to complex sets off facts.

I mean, it's a ludicrous system. I'm not saying there's a better one, but I mean the system in operation is chaotic, full of misconduct and bad outcomes, and subject to the whims of like any given person's psychological biases, and the core to sort of engage in the project of shoving away those sort of gross realities and trying to maintain the mythos of the incredible magic of our jury system, and how sort of naturally just it is, yeah, Peter, And there was a part in the majority opinion that

was like I was just sort of like laughing when I was reading, because towards the end when O'Connor is like, you know, still trying to like avoid just admitting what was going on here. And so she's talking a lot about like this first affidavit from Vera where she was like, yeah, a few people had beers and maybe napped. And then she's like yes, And there was the second testimony, right, this second thing she's like, but that was gathered in violation of court order and local rules, like so what

like like who gives a shit? Like it's not really like well, you know, you weren't supposed to talk to them about that. First of all, the juror came to the guy's door, like knocked on the fucking attorney's door and was like, I'm feeling like I gotta get this off my chest, right, yeah, yeah, I asked it. By the way, the foeman, the fore woman who was drinking wine every day, right, she called to the courthouse and

was like when's the hearing. I want to testify. I feel I feel bad, like yes, and they're just like, yeah, but but you weren't supposed to talk to them. The court said not to talk to them after your last attempt. So we're just going to ignore this. We're just going

to pretend like this didn't happen. You know. That's sort of the court's whole mode here, is like we don't want to know prioritizing local court rules over the sixth Amendment of the Federal Constitution, right, putting their hands over their years and going naa, na, na, I can't I can't hear you. Yeah, yeah, exactly. And so the other thing is like just reading this case and reading the majority talking about the sanctity of the jury and deliberations

and all that. I can't help but think about jury nullification. Jury nullification is this concept in American law, and I think it's common in a lot of Western judicial systems. Actually, the idea that juries have the power to essentially nullify a law in specific instances or even generally. And they can do that by just declining to convict someone, right,

they can return a not guilty verdict, right. Yeah. Instances of this, like sort of historical instances that are I think admirable, are like during like you know, the abolition era, there were juries that would refuse to convict people under the Fugitive Slave Act. You know, people who were charged with aiding escaped slaves. They wouldn't convict them, right, And

you can imagine similar things happening now. I think it actually did happen with people aiding migrants, right, leaving water in the desert in Arizona and stuff like that, to migrants crossing the border and things like that. This is

something that is like, uncontroversially within the power of American juries. Yes, it's just in the nature of what powers they do have, what protections they do have, a lot of what these rules describe, protect people from coming out and saying, yeah, well, jurors four and seven refuse to convict because they think the laws unjust right, that's literally, like the rules we are just discussing. That's precisely what they prevent juries from

testifying about to impeach their verdict and whatever. And yet this is something that is actually like very strictly, I don't want to say outright prohibited, but courts go to a great extent to prevent Like if you say you're familiar with jury nullification during vorder, you will not be seated on that jury, right, right. And similarly, a defense lawyer cannot tell the jury pool during vardier or during a closing argument, for instance, about jury nullification. They can't

call for the jury to nullify. Yea, and yeah, just so everyone knows, warder is jury selection they selection. Yes, Yes, that's the part where they interviewed the jurors and asked them a bunch of questions and stuff like that. And jury instructions from the judges will often be done in a way where they don't mention jury nullification but will essentially say, if you nullify this, you are either violating

the law or violating the oaths you took. Put people in a position where if you're aware of jury nullification beforehand, you either have to lie under oaths in order to get on the jury or not be seated at all. Or if you learn about jury nullification while you're on the jury, that is actually is admissible as like outside influence. Right, That's something that courts will hear test Teimoni about it.

Sort of infamously happened in the trials a few years ago, where you know, the Trump administration was trying to prosecute all those protesters for his inauguration, and one of the jurors and when those trials came back and said, hey, somebody had written Google jury nullification on the inside of a bathroom stall, and I did, and then I told all the other jurors about it, and the judge was like, oh, that's that's interesting. It was grounds for a mistrial actually,

just learning about what jury nullification is. Yeah, it's like you get disqualified from a jury for learning about any leftist concept. It's like, right, where use your hand? If you're familiar with Karl Marx, you can leave like that. By the way, that then end up being a mistrial just because the prosecution didn't press it, but they were losing everything. There was a lot of misconduct. It's that's

its own whole story. But here's the thing, like, if you are even considering jury nullification, you are someone who is taking your duty seriously right as a citizen, as a juror, you're considering the lawed issue, it's impact on society,

you're considering the defendant, you're considering the circumstances. It is thoughtful whether or not you agree with the concept of jury nullification or its specific context in which it might be applied right, Like, I think some people might argue, like you know, O. J. Simpson getting off was an instance of jury nullification that they don't agree with. Maybe not, I don't know. Regardless, the main point is those jurors

are taking their duties seriously. Yes, like you don't have to agree with their rationale or their conclusions to concede that point. But that is not really protected in our system. But getting fucking ripped, treating your duties so unseriously that you are getting so fucked up that you need to either snore a bunch of lines of cocaine to stay awake or you're just passing out in the middle of trial. That's something the court is more than willing to look past, right, yep.

Just to like circle back as a final thought. You know, something we've talked about before is part of the conservative legal project involves shifting discussions of substantive rights over to discussions of procedure right, and the function of that is to avoid having to defend directly the myriad injustices that you see, especially in our criminal justice system every day.

In some cases, that means court's creating complex networks of immunities for government officials and institutions accused of wrongdoing, which keeps those cases out of court altogether. And in some like this, it just means ignoring these substantive question and

focusing on the procedural one. If you ask most law professors what this case is about, they'd say, it's about the admissibility of juror testimony under the federal rules of evidence, right, Yeah, But it's not really, it's about the fairness of this guy's trial. And that's a discussion that conservatives just don't want to have because the reality is that our criminal justice system is grossly unfair and unjust in all sorts

of ways. And you can see the true locus of the court's concern in the closing portion of the opinion I mentioned earlier, where O'Connor is talking about how allowing convictions to be challenged would undermine trust in the system. The real concern should be about whether the system should be trusted, whether we have built a system good enough

to be trusted, like whether it's actually just. But she is fairly openly discussing shrouding the reality of the system in order to maintain the lie that it is fair and just which means she's all but saying out loud that the goal of these procedural technicalities is to avoid any dissection of the fairness of our legal system. And

you know this is in nineteen eighty seven. Over the next sort of twenty years, judges like Scalia went even further, not only rigidly focusing on proceduralism in criminal law, but also chastising those who didn't right, claiming that they were unserious and driven by policy objectives because they were prioritizing

rights over procedure. That outlook has been very influential in the academy, and it's become a sort of common wisdom among lawyers that the proper and serious way to analyze the law is to focus on technicality and ignore your

normative conception of what constitutional rights should actually be. A big part of the left legal project, if there is one, has to be inverting that and talking about like a rights centric jurisprudence, like centralizing constitutional rights what we believe a broad conception of those rights should be, and making them superior to a procedure, which they absolutely must be if you believe in the Constitution, as like you know,

the preeminent document in our law. It's the only way you could possibly conceive of it in a way that makes any sense. And conservatives have sort of quietly done away with that, especially in areas of the constitution that happened to benefit criminal defendants. That's right, all right, Well that was the story of the world's coolest jury. Damn what a this is such an eighties thing. Yeah, we did let the ladies off easy. By the way, we didn't mention in the facts that there were also two

ladies who were drinking mixed drinks. Oh that's right, Yeah, yeah, the cocktail got to get that in there. I love that. There was just like a wide array, Like it's not like someone brought beer a couple of days and they're like, whoa dude, that dude's bringing beer. Like, right, someone's got beer, someone's got wine. Someone's like, you know what, no, I'm gonna bring mixers. This is a full on house party, dude. Yeah, yeah, we've got to be bro We got wine, we got

tequila and soda. Like what is going on? People drink so much that they know each other's drink orders. Harry, Hank, John and Terry they split beer vera gets the cab, they see gets the cosmos. How do you get so comfortable with the rest of the jury that you're like yodio party, Yeah, let's turn it out. It's unbelievable. Next week premium episode an update on the state of legal journalism.

Last summer summer twenty twenty one, we did an episode about how fucking awful how legal media coverage had been that year, and we're gonna do a quick update because in some ways it's gotten materially better. I think they listened. That's right, we're famous now and people are listening. Then there's been some setbacks, shall we say, the exposure of Nina Tottenberg as a complete and utter access journalism hack. You know, some CNN panels that are perhaps not the

most impressive lineups I've ever seen in my life. But we're gonna We're gonna convene and discuss talk about who's smart and who's stupid. Follow us on Twitter at five to four Pod, Subscribe to our Patreon, Patreon, dot com, slash five four pod all spelled out access to premium and add free episodes, special events, access to our slack. We'll see you next week. Five to four is presented by prolog Projects. Rachel Ward is our producer, Leon Nafak

and Andrew Parsons provide editorial support. Our production manager is Percio Arlin and our assistant producer is our lean A Revelo. Our artwork is by ten Blanks at Chips and why in. Our theme song is by Spatial Relations. It is funny that someone thought of the idea you only get so many bites at the apple. It's like, I feel like people should be allowed to take as many bites of an apple as they want. Frankly, it seems like a waste of an apple. Who do they think they are

that they can finish that? I think you get that right now, and you whip it at someone on the side of the road and U