0:00

Hi, everyone, It's me Josi Duffie Rice,

0:02

host of Unreformed. Ahead

0:04

of our last episode, which airs on March

0:06

eighth, we're sharing an episode of another

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podcast. I'm a huge fan of five

0:11

to four. This one is

0:13

a favorite of mine. The three hosts are amazing,

0:16

so funny and incredible at talking about

0:18

how terrible the Supreme Court is. Five

0:20

to four is totally a bit different from Unreformed,

0:23

but it tackles some of the same issues like access

0:25

to justice, race, etc. Here's

0:28

a little bit more about the show. Five

0:30

to four is a podcast about how much the Supreme

0:32

Court sucks. Every week, five

0:34

to four takes on the Supreme Court's worst decisions

0:37

about the most important issues like

0:39

police abuse, abortion access, the Second

0:41

Amendment, and voting rights. Each

0:43

episode covers a Supreme Court case that reveals

0:46

the ways in which the justices contort

0:48

the law, make stupid legal errors,

0:50

and generally hack away at our democracy

0:53

as the Court shifts further and further to the right.

0:55

Five to four is your guide to how this supposedly

0:58

a political institution wields its

1:00

power. Fine five to four wherever

1:02

you get your podcasts, and we're going to drop one

1:04

of their episodes here for you to listen, to enjoy

1:07

and meet us back here on Wednesday, March eighth for

1:09

the series finale of Unreformed.

1:12

Well here. Argument First This morning at number

1:15

eighty six one seventy seven Anthony

1:17

rat Tanner and William M conover Petitioners

1:20

versus the United States. Hey

1:25

everyone, this is Leon from Fiasco

1:27

and Prologue Projects. On this

1:30

week's episode of five to four, Peter

1:32

Rhannon and Michael are talking about Tanner

1:35

v. United States. It's

1:37

a sixth Amendment case about whether or not you're

1:39

right to a trial by jury has been compromised

1:42

if the jurors were consuming

1:44

large amounts of alcohol. We're

1:46

utilizing and dealing in marijuana,

1:49

and we're ingesting cocaine throughout

1:52

the course of a complex criminal proceeding.

1:55

In a five to four decision written by Justice

1:57

Sandra Day O'Connor, and the Court proclaimed

1:59

that the receeedings of a jury room are so sacrosanct

2:02

that even if more than half the jury is high

2:04

and drunk, their verdict must stand.

2:07

This is five to four, a podcast

2:10

about how much the Supreme Court suns. Welcome

2:17

to five to four, where we dissect

2:19

and analyze the Supreme Court cases that have

2:21

infested our law, like lantern flies

2:23

have infested New York. I

2:25

am Peter, I'm here with Michael

2:28

everybody and Rhiannon. Hello.

2:30

What is a lantern fly? Like a lightning

2:33

bug? They're a big problem in like Philly, New York

2:35

right now. Oh, they're the ones that, like the Philly local

2:37

government was like on site. You fucking

2:40

kill these things when you see that? Yeah, yeah,

2:42

So they're like indigenous to China. Every

2:44

like decade or so, some

2:47

insect that has no natural predators

2:49

makes its way over from China

2:52

and just like ruin

2:54

some ecosystems, and they're

2:56

all over New York right now. And like

2:58

I had to change my route the grocery store

3:01

because there is a building that is

3:03

like teeming with them, like a

3:05

almost a skyscraper, and when you walk

3:07

by it, like the ground is

3:09

littered with their corpses. One

3:11

fell into my like collar,

3:14

oh god, And

3:17

I had to try

3:19

to act like I was not absolutely losing

3:21

my mind. It's

3:24

like, oh one of them fell, I guess I'll just casually

3:26

get this out. And I was like internally

3:31

just absolutely losing my ship. Anyway,

3:35

kill them all. Yeah, I've been stomping

3:37

on them doing my best. Today's

3:40

case Tanner v. United

3:43

States. This case is

3:46

sort of about the right to a jury,

3:48

but specifically, you know, it's about if you're on

3:51

trial and the jury deliberating

3:53

over your guilt or innocence is

3:56

just wasted out of their minds,

3:59

absolutely rips on alcohol,

4:01

cocaine, and marijuana. Is

4:04

that a violation of your right to a jury

4:06

trial? And you maybe get

4:08

some testimony about that? The

4:11

court, in a five to four decision

4:13

written by Sandra Day O'Connor, because

4:16

this is nineteen eighty seven, said

4:18

no, you cannot get any testimony

4:20

about that, and this is maybe even okay,

4:23

this is hard. They

4:26

harped on an evidentiary

4:28

rule to hold that the evidence of

4:30

the jury's rampant drug and alcohol

4:33

use was not admissible in court,

4:35

making this another in the long list of cases

4:38

where the court prioritizes procedural

4:40

technicality over substantive

4:42

constitutional rights. I'm

4:45

gonna let you run wild on the background. Here are

4:47

you turning this over? Yeah? Okay,

4:50

all right. This case comes out of a

4:52

federal criminal trial took place

4:54

in Florida. That's right, Florida

4:57

man strikes again. Homestead

5:01

Yeah, this time, it isn't the criminal

5:03

defendants who are being Florida man, It

5:05

is the jury, that's right, all

5:07

right. So Anthony Tanner and William

5:09

Conover were on trial for mail

5:12

fraud and conspiracy to commit fraud.

5:14

They were convicted by the jury, but

5:17

before they were sentenced, one

5:19

of the lawyers for Tanner and Conover got

5:21

an alarming phone call. A

5:24

juror named Vera Asbell called

5:27

defense counsel and told him

5:29

that she needed to get something off

5:31

her conscience. This was a confession

5:33

of sorts, father, I

5:36

have witnessed some sin. She

5:38

told the attorney that at the trial, some

5:41

of the mail jurors were drinking during

5:44

the day, you know, as the trial is going

5:46

on, and then a few of them would

5:48

sleep through the afternoons while

5:50

the trial is happening in the courthouse. Men,

5:53

am I right? Yeah, it was the mail

5:55

jurors that she pointed out. Yeah.

5:58

She told defense counsel that another

6:00

juror, Tina Franklin, could confirm

6:02

these accusations, could confirm what she was saying.

6:06

The ladies on the jury are a guest,

6:07

you know, there's

6:10

one who gets into it. Well, yeah,

6:13

at least at first that's how it seems, right,

6:16

yeah, exactly. Now, the district

6:18

court refused to have an evidentiary

6:20

hearing on this. This would be the type of hearing

6:22

where the court digs into what happened,

6:25

here's testimony from people who

6:27

were there, who know what happened, and the

6:29

court would be deciding whether the defendant's

6:31

rights were violated. Right. They

6:34

said no, because, according to the court, the

6:36

jurors testimony would be inadmissible

6:39

under a certain federal evidentiary

6:41

rule. But that wasn't

6:43

the end of it. It wasn't just that

6:46

they were drinking. A few months

6:48

later, the initial allegations

6:50

by Vera Asbell were supplemented by

6:52

another juror named Daniel Hardy.

6:55

Hardy told the defense counsel that

6:57

fully seven members of the jury

7:01

out of twelve people solid majority

7:04

more than half, including himself, with drinking

7:06

alcohol during lunch. Four

7:09

male jurors shared up to

7:11

three pitchers of beer on a daily

7:14

basis. Okay, Hardy

7:16

himself said that he quote consumed

7:19

alcohol all the time. The

7:21

female juror, who was four person,

7:24

would drink a leader of wine

7:26

at lunch every day.

7:32

The men did take it up a notch though.

7:34

The four jurors, the four dudes

7:37

who were drinking pitchers every day at

7:39

lunch. They also smoked marijuana

7:41

during the trial about every day.

7:44

One of the jurors allegedly sold sold

7:46

a qpe a quarter pound of marijuana

7:49

to another juror inside

7:51

the courthouse. The lord,

7:54

this is the eighties. You could like get the death penalty

7:56

for that. Two of

7:58

the jurors nor died a couple lines

8:01

of cocaine on several occasions during

8:03

the trial. Sometimes during the

8:05

trial, two of the jurors were ripped

8:08

off of all three substances. They were

8:10

drinking, they were smoking marijuana,

8:12

and they were snorting coke. Good. The

8:15

eighties were wild, you know

8:18

what a time one

8:21

of the jurors talked about how he was quote

8:24

flying during the trial. That

8:27

was his characterization. And I think he's

8:29

the one where Hardy said like he would go

8:31

to the bathroom and come back sniffling like he

8:33

had a cold. Yeah, all the time. And then

8:35

he had like a little contract and he had a little container

8:38

being like in court on trial for

8:40

your life, and you like glance over at

8:42

the jury and you to see a dude in a khole.

8:46

We're not far from that here. Drooling a little

8:49

bit. Yeah, yeah, yeah. At this point,

8:51

the defense lawyers file another request

8:53

for an evidentiary hearing. You know, look,

8:56

Judge, this ship is fucking crazy.

8:58

The court needs to hear about it decide

9:00

whether something really serious enough happened

9:03

to call the verdict into question, right

9:05

right, The court said no again,

9:08

testimony from any of the jurors is

9:10

inadmissible, and so the

9:12

defense lawyers appealed all the way

9:15

to the Supreme Court. And people complain

9:17

about getting stuff with I

9:19

know, right, imagine

9:21

like just being like, oh, jury time,

9:27

right, I forgot

9:31

the code. Jury's gonna suck today.

9:35

Okay, we're laughing about all of this stuff.

9:38

I think it's objectively funny that some

9:40

people got zuited to like watch a trial

9:42

or whatever. But yeah, we should clarify,

9:45

like, obviously this kind of scares me as

9:47

as a defense attorney, Like this

9:49

is a really serious matter. These people were

9:51

deciding the fate of these two

9:53

men's lives, and yeah, we don't think

9:55

it's cool that the jury took

9:58

it this way. That's right. The the

10:00

denial of civil rights is not funny. But sometimes

10:02

when you're going from civil rights

10:05

to no civil rights, some funny

10:07

stuff happens along the way. That's all We're exactly.

10:10

It's a good way to put it all,

10:13

right, So let's zoom way

10:15

out here. The sixth Amendment

10:17

guarantees the right to a trial by jury,

10:20

and not just a jury, but an impartial jury.

10:22

Yeah. Of course, there may, in some circumstances

10:25

be a question of whether the jury was acting

10:27

appropriately where they subject to

10:29

undue influence, for example, or

10:32

perhaps just demonstrably incompetent

10:34

in some way that would functionally

10:37

deny you your constitutional right

10:39

to an impartial jury. So

10:41

there are avenues by which you can impeach

10:44

the jury, meaning challenge the

10:46

validity of the jury's findings.

10:49

Fundamentally, this case is about the defendant

10:52

attempting to impeach the jury verdict on

10:54

the basis that the jury was wasted

10:57

right, that perhaps his right

10:59

to a jury trial was being

11:01

violated here. Yeah,

11:03

But the threshold question, as Rhannon mentioned,

11:06

is actually about the rules of evidence, the

11:08

Federal Rules of Evidence Rule six

11:11

H six B. The Federal Rules of Evidence

11:13

are the laws governing the use

11:15

of evidence in federal court, and

11:17

this rule establishes some pretty stringent

11:20

guidelines for when you can use a

11:22

juror's own testimony

11:24

to impeach a jury verdict. Remember,

11:26

the only evidence we have here is testimony

11:29

from other jurors, and there

11:31

are rules governing when jurors can

11:33

testify about the jury

11:35

itself, because you know, sanctity of

11:37

the jury, etc. Peter, you just said,

11:39

like the sanctity of the jury, We

11:42

should probably explain that a little bit. So, Yeah,

11:44

there's this kind of principle in the law

11:47

that like what happens in the jury

11:49

room is is sort of this this sacred

11:51

thing, and that like outside interrogation,

11:53

interrogation after the fact over like

11:56

what people talked about in the jury

11:58

room to reach their deliverer ration. You

12:00

know, that's kind of inappropriate because you

12:03

want the jury to be respected,

12:05

a jury's verdict to be respected. You

12:08

know. The idea is that a jury of

12:10

someone's peers, you know, people who

12:12

come from the public, who have all

12:15

different kinds of experiences, come

12:17

together and decide

12:19

on somebody's guilt in a

12:21

trial. So when the court talks about

12:23

like the sanctity of the jury, all

12:25

of that kind of stuff, it's it's this idea

12:28

really that jury deliberations

12:30

are supposed to be respected because

12:33

it is an intensive thing

12:35

that the jury goes through, and intensive

12:38

questions that they answer, which

12:40

should be respected and shouldn't be

12:42

picked apart after the fact. That's right. So

12:44

that's what the majority, written by Sandrada

12:47

O'Connor grabs onto here. The

12:49

allegations about the jury

12:51

being drunk and high, they come from

12:54

juror testimony, meaning they come from

12:56

the jury itself, and the

12:58

Federal Rules of Evidence allow

13:00

for the admission of juror testimony

13:02

in very limited circumstances. So

13:05

let's walk through the rule a little bit, and

13:08

I admit it's a little bit confusing.

13:11

Don't worry about it. You don't need to like completely

13:13

comprehend it. Right. So Rule six

13:15

or six B of the Federal Rules of Evidence

13:17

says that jurors cannot testify

13:20

about, quote the effect of

13:22

anything on his or another

13:24

juror's mind or emotions

13:26

as influencing him to assent

13:29

or descent from the verdict. So,

13:32

okay, that's a little weird, right, The

13:34

effect of anything on his or

13:36

another juror's mind as influencing

13:39

him to assent or descent from the verdict.

13:42

Does that apply to drugs?

13:45

Sort of unclear? Right? Right? In the

13:47

most literal sense, you could say that maybe it does.

13:50

However, it's also pretty

13:52

clear if you look at the context of the

13:54

rule that what it's really trying

13:56

to get at is like juror's

13:59

mental the liberations one way

14:01

or another, right, right, right, And

14:03

in terms of quote, anything

14:06

on the juror's mind that

14:08

influences them to assent or discent.

14:11

You know, I read that kind of in a plain

14:13

language way to mean like

14:15

anything from the trial, right,

14:18

A piece of evidence, a witness is demeanor.

14:21

Right, those are the things on the

14:23

mind of a juror that would

14:25

influence them to assent or dissent

14:28

from the verdict. And I think that's

14:30

what the rule is talking about. And there's also a question

14:32

of whether drugs or alcohol influence

14:35

someone to assent or descent from the verdict.

14:37

Right. They don't push you in one direction.

14:40

What they do is influence your decision

14:42

making, right, right, which seems like it's

14:44

a separate thing. Yeah. Now there's other parts of this

14:46

rule. It also says they can't testify about

14:48

a juror's mental processes,

14:51

and there are exceptions. There can

14:53

be juror testimony about

14:56

whether outside influence was

14:58

brought to bear on any juror. Presumably

15:01

that mostly means bribes and threats.

15:03

There's also a question here of whether outside

15:06

influence in the most literal sense would include

15:08

drugs. So, but the fundamental

15:11

question is whether all of this means that a juror

15:13

cannot provide testimony about drug

15:15

and alcohol use by other jurors.

15:18

If the testimony is admissible, then

15:20

Tanner probably needs a new trial at the end

15:22

of the day, right. If not, he's

15:24

out of luck. And so what the majority does

15:27

is look at the common law history

15:29

of juror testimony admissibility.

15:32

In other words, the rules of evidence are a federal

15:34

law, but the court is looking back at what courts

15:36

did historically in order to

15:38

interpret that law, which is

15:40

always a little awkward, right, because if we're

15:43

going to use the historical common law to

15:45

interpret the statute, it starts to

15:47

defeat the purpose of having a statute

15:49

at all at some point. But whatever.

15:52

Anyway, the Court says that historically

15:55

there's an important dichotomy here. There

15:57

are things that happen internally within

15:59

the jury room, and those are private matters

16:01

that can't be testified about, and

16:03

then there are things that happen external to the jury

16:06

room, like bribes or threats, and those

16:08

can be testified about drug

16:11

and alcohol uses within the walls of

16:13

the jury room, according to Sandra Day O'Connor,

16:15

So jurors can't testify about

16:17

it. Now, by

16:19

contrast, what the descent says is No, that's

16:22

not the relevant distinction. What

16:24

the rule is meant to do is protect the confidentiality

16:27

of jury deliberations.

16:29

So the distinction that we should be worried

16:32

about is not whether it's in

16:34

the jury room or outside of the jury room,

16:36

but whether the testimony in question is

16:38

about jury deliberation or not. And

16:41

this is not right. This is about drug and alcohol

16:44

use during the trial before

16:46

deliberation, right, So the

16:48

rule doesn't apply and the jurors

16:50

testimony should be admitted into

16:52

evidence. Yeah, Peter, I'm glad that you explain

16:55

what Sandra day O'Connor is kind

16:57

of doing here. She's saying that something that

16:59

happened inside the jury room

17:02

internal to jury deliberations,

17:04

that there cannot be testimony

17:07

about what happened there

17:09

in those circumstances. Something that happens outside

17:11

external to the jury room, those things the

17:14

court can here testimony about, right. But

17:16

I just want to point out, like the descent obviously

17:19

explains that, like this internal external

17:21

distinction doesn't really work. You

17:23

know, the distinction should be whether

17:26

or not the testimony is about deliberations

17:28

or not. But I also think it's worth

17:30

highlighting this internal external

17:33

distinction that the majority does is

17:36

not only kind of silly because

17:38

as the Descent points out, it's not a sort

17:40

of meaningful distinction in the way

17:43

that it should be, but Sandra Day O'Connor is also

17:45

applying this rule that she just made

17:47

up. She's applying it incorrectly because

17:50

we're not talking about events that happened

17:52

inside the jury We literally

17:55

are talking about events that are external

17:57

to the jury room. They were doing drugs

18:00

and drinking during the trial outside

18:02

of the jury room. They were not deliberated, right,

18:04

they were still in the metaphorical jury room.

18:07

That's what you're not. I'm

18:10

sorry, I'm not in the brain jury room

18:12

that Sandra day O'Connor is. That's

18:14

genuinely what she must mean, right, that it's

18:16

like they're in the jury space, you know,

18:19

right, right, exacternal external distinction

18:22

was so sort of dumb because it's like it's

18:24

clear what she's trying to get at, which is like

18:27

you can't come out afterwards and be like,

18:29

well, yeah, we let

18:31

this guy off. But that's because a lot of the jurors

18:33

were sexist and so they thought all the

18:35

female witnesses were lying or whatever,

18:38

right, right, but somebody got

18:41

intimidated like in their home

18:43

or something. Of course, you can testify

18:45

about that. That that makes perfect sense

18:48

and is sort of internal external,

18:50

But is it a deliberation

18:53

or not? Is I think the more

18:55

important thing, right, like exactly,

18:58

and what Justice Marshall is saying, yeah,

19:00

that's what you're trying to capture

19:02

here, and not only is she not capturing it, but then

19:05

her like bad heuristic is being applied

19:08

stupidly, right, Like that's like

19:10

this is all happening outside the jury room. They're

19:13

getting trashed at Applebee's or whatever.

19:16

You know. You can conceptualize the

19:18

sanctity of the jury quote unquote in different

19:21

ways. I think the more obvious way is the way

19:23

that the descents doing it, where you're

19:25

saying, yeah, like the jury deliberation

19:28

is important and needs to be protected,

19:31

and we can't have everyone testifying about

19:33

what goes on, right yeah, right. What

19:35

O'Connor is doing is being like, yeah, anything

19:37

the jury does is sacred, and

19:39

it's like, why would

19:42

that be the rule that it just doesn't make a lot of practical

19:44

sense. Smoking a joint in the fucking

19:47

loading bay at the Ramada Inn

19:49

or whatever down the street, that's external,

19:52

right, Exactly if a juror got threatened

19:55

outside of the courtroom, right at home

19:58

concerning the jury, or saw

20:00

something on the news that might prejudice

20:02

them, right, are those really internal? You

20:05

can make the argument that they're external. Right,

20:07

So this distinction is doing

20:10

no work. It just doesn't make a lot of sense. And

20:13

more importantly, you can almost sort of put

20:15

it aside, right, because it

20:18

does feel like it's beside the point here. The

20:20

point should be that this is a violation

20:23

of Tanner's constitutional right to a

20:25

jury right. The jury was impaired

20:27

to the point where most of them probably wouldn't

20:30

be allowed to legally operate a forklift,

20:32

let alone decide whether or

20:34

not someone should be a free human

20:37

being, you know. Right, And there's

20:39

this pretty basic reality here that the majority

20:41

seems to ignore. If the jury were

20:44

literally unconscious from drugs

20:46

and drinking pass that on the floor, not

20:48

able to process information at all

20:50

for the duration of the trial, I would hope

20:52

that we could all agree. Sanderday O'Connor

20:55

included that that does not satisfy

20:57

the constitutional right to a jury.

21:00

So there must be some place on the spectrum

21:03

between stone sober jury

21:05

and completely unconscious jury where

21:07

we all have to admit that this no longer

21:09

qualifies as a constitutionally

21:12

adequate jury. Right. Where exactly

21:14

on the spectrum that line is might not be

21:16

an easy question to answer, but it's

21:18

the court's obligation to answer it, not

21:20

when the federal rules of evidence stand. Well,

21:24

yeah, that's what's happening is the court is essentially acting

21:27

like this is just a case about evidentiary

21:30

rules when it's not. It's about whether this

21:32

man received a constitutionally fair trial,

21:34

and if he didn't, then it doesn't matter

21:37

or shouldn't matter what the federal rules of

21:39

evidence say. Yeah. Right. One

21:41

thing I wanted to point out is like, this is nineteen eighty

21:43

seven when this case is coming down, and there's just

21:45

like there's no textualism at

21:47

all. Right now, we've

21:49

talked about how the conservative legal

21:52

movement sort of built up these ideas

21:54

like textualism and originalism over time,

21:57

and this is like mid

21:59

to late eight, and you have

22:01

a statute and you're trying

22:03

to interpret it, and at no point

22:06

does someone just say, well, let's look at the words

22:08

of the statute and like think about what the most

22:10

literal meaning of it is and then we'll work

22:12

from there. That just wasn't how the analysis

22:14

was done. And it's just sort of jarring when you've been

22:17

reading like modern jurisprudence that

22:19

you just don't see it at all, and goes to

22:21

show how successful the conservatives have been at

22:23

influencing the way that the

22:25

laws analyze. It's just sort of wild. Yeah, extensive

22:28

discussion of legislative history of

22:30

pages of it, yes, which

22:32

they found conclusive. Yeah, but including

22:35

in the Descent Right. The Descent has a pretty

22:37

extensive treatment of legislative

22:39

history as well, but comes out the other way.

22:42

One final item worth discussing the

22:45

opinion wraps up by saying that

22:47

although allowing for investigations into

22:49

jer misconduct would sometimes

22:52

uncover misconduct, it's

22:54

not worth it because it would basically be such

22:56

an administrative hassle. O'Connor

22:59

says that frequent challenging

23:01

of verdicts based on juror misconduct

23:03

would quote disrupt the

23:05

finality of the process. Yeah, and just

23:07

to jump in here, the Court does

23:10

reference this sort of principle of like finality

23:13

of a verdict, right, that we have

23:15

to be able to trust that the

23:18

jury's decision is final,

23:21

that we can't go back after

23:23

the fact and pick apart what the jury

23:25

did in the jury room and

23:27

you know, sort of upend jury verdicts.

23:30

Right. The public has to be able to

23:32

trust that jury decisions

23:34

are the decisions. And so

23:37

that's what the kind of finality principle

23:40

means. But we've mentioned before

23:42

that especially in criminal

23:44

law, judges the Supreme

23:46

Court over the course of years generations

23:49

have referenced this kind of you

23:51

know, high minded principle of finality

23:54

of jury verdicts, but only

23:57

in service of a higher

23:59

principle to federal judges,

24:01

which is not wanting to review these

24:03

cases. Right, That's

24:06

right. You see it

24:08

kind of trotted out and used

24:11

by the Supreme Court in many different kinds

24:13

of cases basically as like

24:15

a reason why we can't review

24:17

what happened, right, right. Conservative judges

24:19

love it because it is something that

24:21

it makes sense that eventually you run

24:24

out of bites at the apple, right, that process

24:26

runs out, you've done all your state appeals, you've done

24:28

your constitutional peels, blah blah blah blah blah

24:30

all that. With conservatives sometimes

24:33

they're like, that's it right, right,

24:35

Like you have one bite at the apple and they're like, that's it's done,

24:37

right exactly. Finality is just to them, it's an

24:39

excuse to put an end to the proceedings.

24:42

Yes, it's just like a vocabulary that they

24:44

speak when they want to end the proceeding.

24:46

For some like someone is claiming that their civil rights are

24:48

being violated, and conservatives are like, well, that

24:50

would be against the principle of

24:52

finality, which means I

24:55

don't want to keep going with this shit,

24:57

right exactly, I don't

24:59

want to look at this. Yeah. It's also I should I

25:01

should mention that it's a little bit

25:03

adjacent to like victims rights movements,

25:06

which are very aligned with like prosecutors

25:08

and stuff. Right, there are sort of groups

25:11

that are basically aggressive

25:14

prosecution advocacy organizations

25:17

that sort of portray themselves as being

25:19

about victims rights, right, And then

25:21

the argument is like, well, the

25:24

victims and their families need finalities

25:27

so they can sort of move on, yes,

25:29

right, which is not you know, in and of itself

25:32

totally untrue, but the idea

25:34

that it should trump someone's civil

25:36

rights, right, I just invest bullshit? Right.

25:40

Also funny here where the victim

25:42

is like the federal government getting defrauded

25:44

out of a few million dollars,

25:48

Like it's some like grieving widow at

25:50

home or anything. The government

25:52

needs to move on. The AG's office needs

25:54

to be able to sleep it, you know, they need

25:56

they need to put us behind them. Yeah.

26:00

And they also say that public trust

26:02

in the jury system would be undermined

26:05

if we scrutinize juror conduct too much,

26:07

which is just another way of saying like, if we revealed

26:10

how much jurm as conduct there is,

26:12

people would not trust the system.

26:14

And it's like, yeah, that does sound right,

26:17

yeah, yeah, right,

26:19

yeah yeah. If we said

26:21

that getting absolutely lit

26:24

during a trial is a problem

26:27

for the jury, then yeah, people

26:29

might question the efficacy of jury. It's

26:31

I mean, I do agree that that would undermine trust

26:33

in the jury system. I guess I don't

26:35

agree that the solution to that is

26:38

to bury all the evidence of

26:40

misconduct and

26:43

say it's inadmissible. That's right to each his or

26:45

her own. Sandra Day O'Connor, this

26:48

is a good spot. It feels like to take a break

26:51

and we're back. We should talk about the descent.

26:54

This is written by Thurgood Marshall. He's

26:56

joined by Justices Stevens,

26:58

Blackman and Brent In. So, you

27:00

know, just want to point out this is a five four

27:03

decision. The court is really split here,

27:05

and you know the Conservatives take the

27:07

day once again. But you know, Marshall

27:10

really responds to the rules six

27:12

or six B analysis that the majority goes

27:14

with with his own, like I mentioned,

27:17

his own intensive analysis of the

27:19

rule, but he comes out differently.

27:21

He goes through legislative history, he goes through

27:23

the policy considerations, he

27:26

goes through the notes on the legislative

27:28

history, the comments on the adoption

27:30

of the rule. I mean, there's really sort of a picking

27:33

a part of this rule, how

27:35

it came to be, the purpose of the rule, you

27:38

know all of that. And you know what I

27:40

like too is that Marshall points out

27:42

these allegations about what the jury was doing.

27:45

These are provable allegations, Like

27:47

you're not talking about what's going on in someone's

27:50

head in terms of how they think about the case. You're

27:52

not talking about the jury deliberations,

27:55

the deliberations about the case, their

27:57

conversations about the facts

27:59

that evidence that they heard, their thought processes,

28:02

their agreements and disagreements in the jury

28:04

room as they came to their verdict, whether

28:07

or not the jury was ingesting substances,

28:10

whether they were pardon me, but

28:12

gone off that loud Again,

28:16

Marshall says, we can hear testimony

28:19

about that and determine whether or not

28:21

it happened. Right, there's a

28:23

good quote here from the descent. Petitioners

28:25

are not asking for a perfect jury.

28:28

They're seeking to determine whether the jury

28:30

that heard their case behaved in a

28:32

manner consonant with the minimum requirements

28:34

of the sixth Amendment. If we deny them

28:36

this opportunity, the jury system may

28:38

survive, but the constitutional guarantee

28:41

on which it is based will become meaningless.

28:43

So just as Marshall does put in

28:45

this sort of a reference to the

28:48

constitution, a reference to the sixth

28:50

Amendment, which is, you know, your right to an

28:52

impartial jury trial, among

28:54

other things. But we should note

28:57

that, like Peter

28:59

said, uptime with the court kind of latching

29:01

on to the evidentiary

29:04

rule and having their analysis come out

29:06

of the rule means that the constitution

29:08

is kind of ignored here, And

29:11

there is the point that, like, the question

29:14

presented to the court is

29:16

not whether Tanner and Conover got

29:19

their constitutional rights violated, it's

29:21

just whether the court should have given

29:23

them an evidentiary hearing about

29:26

ger misconduct. But still, I

29:28

mean that really obvious skates the really

29:31

intense, substantial risks

29:33

to constitutional rights that this case

29:35

brings up, right, And nowhere in

29:37

the majority is that really discussed the

29:40

sixth Amendment. Marshall includes

29:42

it in what I would say is like dicta

29:45

of the dissent right. But there

29:47

isn't an intensive constitutional

29:49

analysis here. This is about the rules

29:51

of evidence, and that's kind of it. Yeah, And

29:54

I thought like this also tied into he

29:56

had a pretty good point about

29:58

the majority very much down laying the

30:01

sort of severity of this jer

30:03

misconduct, right, like, oh yeah, questioning

30:06

whether like these jurors, even if

30:08

you know this evidence was admissible, whether

30:11

this would be sufficient

30:13

to prove death A jurors were not competent,

30:16

right, right. And O'Connor

30:18

does so by really trying to sweep under the

30:20

rug all the marijuana,

30:22

cocaine and other more salacious

30:25

allegations and

30:27

and rely on just like, oh, so what some

30:29

people had a few beers sort of sort

30:31

of maybe somebody knotted

30:33

off here and there. But it's like,

30:36

look, even if one person was

30:39

ripped for one day, like that's

30:41

that's a day where your juror, you

30:43

had a juror who was not present

30:45

mentally right, was not was not

30:48

there like right, And so that's

30:50

like, I don't know how that could be anything but a

30:52

constitutional violation. Right, a

30:55

juror so fucked up that

30:57

they are not like mentally present,

31:00

you're not getting your six

31:02

Amendment rights vindicated. Yeah, And then another

31:04

thing is just that, like, you know, you make the point,

31:07

Michael, that O'Connor really downplays the juror

31:09

misconduct. That's completely

31:11

true. You only get the details about

31:13

the allegations what the jurors were

31:15

actually up to. You only get that in Marshall's

31:18

dissent. And then I also

31:20

wanted to point out that again

31:22

we've seen this numerous times, especially

31:24

in criminal cases. O'Connor's majority

31:27

starts with a detailed

31:29

rundown of the crimes that

31:32

Tanner and Conover are

31:34

accused of. The First, I want to say,

31:36

you know, maybe ten paragraphs of this

31:38

opinion are about the mail

31:40

fraud and the conspiracy to commit

31:42

fraud, which is what the defendants are accused

31:45

of. It has nothing to do with

31:47

this Supreme Court case and the question in

31:49

front of them. Right, sure, you might feel

31:51

bad for this guy. What if I told you he

31:54

committed mail fraud? Maybe you

31:58

feel bad for him now, well I do. I

32:00

do think they affirmed the convictions as well,

32:02

although I think it's like very much a side

32:05

side thing. So right, right, it's

32:07

not whether somebody is guilty or not guilty. It's whether

32:10

the trial that they received, right,

32:12

It's whether the jury that they got who

32:15

assessed these allegations against them

32:17

and will determine, right, whether or not these

32:19

people go to prison. It's about whether

32:21

that jury was a fair jury for them.

32:23

Yes, right, So all the facts that she's

32:25

restating as if they are true are

32:28

in fact contingent upon whether or

32:30

not the trial that we're

32:32

talking about was a valid one. And that's the whole

32:34

thing, exactly right, just backwards

32:36

whatever. That's exactly right. And I think

32:39

the majority does this

32:41

kind of smoke and mirrors thing where it's emphasizing

32:44

and highlighting and saying

32:46

that it's respecting the sanctity

32:49

of the jury room. Right. This is like a

32:51

concept in right about the jury,

32:53

about trial level cases where

32:56

what goes on behind closed doors

32:58

as a jury is delivery about a case

33:01

is ultimately respected, right because

33:04

of the importance of having a jury of your

33:06

peers, of sort of a public accountability

33:09

for somebody's wrongs. This is in theory

33:11

I don't I certainly don't

33:13

agree with like the

33:15

way we're we're metting out so called

33:18

justice in our system. But that is part of

33:20

the point too, that like the sanctity,

33:22

the supposed sanctity of the

33:24

jury room and juries, deliberations

33:28

are worthy of the utmost

33:30

respect right, and that we shouldn't turn

33:32

that over, we shouldn't threaten that in

33:34

any way. But there's no treatment

33:37

at all about

33:40

the jurors themselves

33:43

disrespecting the sanctity

33:45

of the process that they're called to do. Right,

33:48

The court is concerned about undermining

33:50

trust in the system public trust in

33:52

juries, but allowing

33:55

for cocaine use, allowing

33:58

for jurors to beletely

34:00

intoxicated during a trial during

34:02

deliberations, we can assume. And so

34:05

this sort of concern about undermining

34:07

trust, about respecting the sanctity

34:09

they're talking in this really flowery

34:12

sort of mythologizing language

34:14

about the processes that we have, the legal

34:17

processes that we have. But it's really in

34:19

order to subvert an argument about

34:22

you know, what these jurors were doing was wrong.

34:24

It was against the sanctity that

34:26

we supposedly think we have right right.

34:28

That's what's so like jarring

34:31

about this case is it's like a direct contrast

34:34

between like the mysticism

34:36

surrounding the idea of

34:38

a jury of your peers in

34:41

American legal rhetoric and the

34:43

reality of the situation, which

34:45

is, you know, somewhere between

34:48

seven and twelve complete freaks

34:50

being shoved into a room and being told

34:52

to like interpret laws that they just learned

34:55

right, apply them to complex sets off

34:57

facts. I mean, it's a ludicrous system.

34:59

I'm not saying there's a better one, but I mean the system

35:02

in operation is chaotic,

35:05

full of misconduct and

35:08

bad outcomes, and subject

35:11

to the whims of like any given person's

35:13

psychological biases, and

35:16

the core to sort of engage in the project

35:19

of shoving away those sort of

35:21

gross realities and trying

35:23

to maintain the mythos

35:25

of the incredible magic

35:28

of our jury system,

35:29

and how sort of

35:31

naturally just it is, yeah, Peter, And

35:33

there was a part in the majority opinion that

35:35

was like I was just sort of like laughing

35:38

when I was reading, because towards the

35:40

end when O'Connor is like,

35:43

you know, still trying to like avoid just

35:46

admitting what was going on here. And

35:48

so she's talking a lot about like this first

35:51

affidavit from Vera where

35:53

she was like, yeah, a few people had beers

35:56

and maybe napped. And then she's

35:58

like yes, And there was the second

36:01

testimony, right, this second thing she's

36:03

like, but that was gathered in violation

36:05

of court order and local rules,

36:08

like so what like like

36:10

who gives a shit? Like it's not really

36:12

like well, you know, you weren't supposed

36:15

to talk to them about that. First of all,

36:17

the juror came to the guy's

36:19

door, like knocked on the fucking attorney's

36:22

door and was like, I'm feeling like

36:24

I gotta get this off my chest, right, yeah,

36:26

yeah, I asked it. By the way, the foeman,

36:28

the fore woman who was drinking wine

36:31

every day, right, she called to the courthouse and was

36:33

like when's the hearing. I want to testify. I

36:35

feel I feel bad, like yes, and they're

36:37

just like, yeah, but but you weren't

36:40

supposed to talk to them. The court said not to

36:42

talk to them after your last attempt.

36:44

So we're just going to ignore

36:46

this. We're just going to pretend like this didn't happen.

36:49

You know. That's sort of the court's whole mode

36:51

here, is like we don't want to know prioritizing

36:54

local court rules over the sixth

36:57

Amendment of the Federal Constitution, right, putting

36:59

their hands over their years and going naa, na, na, I

37:01

can't I can't hear you. Yeah, yeah,

37:04

exactly. And so the other thing is like

37:07

just reading this case and reading the

37:09

majority talking about the sanctity of the

37:11

jury and deliberations and all that.

37:14

I can't help but think about jury nullification.

37:17

Jury nullification is this

37:19

concept in American law, and I

37:21

think it's common in a lot of Western

37:24

judicial systems. Actually, the idea

37:26

that juries have the power to essentially nullify

37:29

a law in specific

37:31

instances or even

37:33

generally. And they can do that by just declining

37:37

to convict someone, right,

37:39

they can return a not guilty verdict, right. Yeah.

37:41

Instances of this, like sort of historical instances

37:44

that are I think admirable, are

37:46

like during like you know, the abolition era, there

37:49

were juries that would refuse to convict people under

37:51

the Fugitive Slave Act. You know, people

37:53

who were charged with aiding

37:56

escaped slaves. They wouldn't convict them,

37:58

right, And you can imagine similar

38:00

things happening now. I think it actually did happen

38:02

with people aiding migrants, right, leaving

38:04

water in the desert in Arizona and stuff like

38:07

that, to migrants crossing

38:09

the border and things like that. This

38:12

is something that is like, uncontroversially

38:15

within the power of American

38:17

juries. Yes, it's just in the nature

38:19

of what powers they do have, what

38:21

protections they do have, a lot of

38:23

what these rules describe, protect

38:26

people from coming out and saying, yeah,

38:28

well, jurors four and seven

38:31

refuse to convict because they think

38:33

the laws unjust right, that's literally, like the

38:35

rules we are just discussing. That's precisely

38:37

what they prevent juries from

38:40

testifying about to impeach their verdict

38:42

and whatever. And yet this is

38:44

something that is actually like very

38:47

strictly, I don't want to

38:49

say outright prohibited, but courts

38:51

go to a great extent to prevent

38:54

Like if you say you're familiar

38:57

with jury nullification during vorder,

38:59

you will not be seated on that jury,

39:02

right, right. And similarly, a defense

39:04

lawyer cannot tell the jury

39:06

pool during vardier or during a closing

39:08

argument, for instance, about jury nullification.

39:11

They can't call for the jury to nullify.

39:13

Yea, and yeah, just so everyone knows, warder

39:16

is jury selection they selection.

39:19

Yes, Yes, that's the part where they interviewed the

39:21

jurors and asked them a bunch of questions and stuff

39:23

like that. And jury instructions

39:25

from the judges will often be done in a way where they don't

39:27

mention jury nullification but will essentially

39:29

say, if you nullify this,

39:32

you are either violating the law or

39:35

violating the oaths you took. Put

39:37

people in a position where if you're aware of jury

39:39

nullification beforehand,

39:42

you either have to lie under oaths

39:44

in order to get on the jury or

39:47

not be seated at all. Or if you learn

39:49

about jury nullification while

39:51

you're on the jury, that is actually

39:54

is admissible as

39:56

like outside influence. Right, That's something

39:58

that courts will hear test Teimoni about it.

40:01

Sort of infamously happened in the

40:03

trials a few years ago, where

40:05

you know, the Trump administration was trying to prosecute

40:08

all those protesters for his inauguration,

40:11

and one of the jurors and when those trials

40:13

came back and said, hey, somebody

40:15

had written Google jury nullification on

40:17

the inside of a bathroom stall, and I

40:19

did, and then I told all the other

40:21

jurors about it, and the judge was like,

40:24

oh, that's that's interesting. It was grounds

40:26

for a mistrial actually, just learning

40:28

about what jury nullification is. Yeah,

40:31

it's like you get disqualified

40:33

from a jury for learning about

40:35

any leftist concept. It's like, right, where

40:37

use your hand? If you're familiar with Karl Marx, you can

40:39

leave like that. By

40:42

the way, that then end up being a mistrial just because the prosecution

40:44

didn't press it, but they were losing everything. There

40:46

was a lot of misconduct. It's that's its own whole

40:49

story. But here's the thing, like, if

40:51

you are even considering jury

40:53

nullification, you are someone who

40:56

is taking your duty seriously right

40:58

as a citizen, as a juror,

41:00

you're considering the lawed issue,

41:03

it's impact on society, you're considering the defendant,

41:05

you're considering the circumstances. It

41:08

is thoughtful whether or not you

41:10

agree with the concept of jury nullification

41:13

or its specific context

41:15

in which it might be applied right, Like,

41:18

I think some people might argue, like you

41:20

know, O. J. Simpson getting off was an instance

41:22

of jury nullification that they don't agree with.

41:24

Maybe not, I don't know. Regardless, the

41:26

main point is those jurors are taking

41:28

their duties seriously. Yes, like you

41:30

don't have to agree with their rationale

41:33

or their conclusions to

41:35

concede that point. But that

41:38

is not really protected in

41:40

our system. But getting fucking

41:43

ripped, treating your duties

41:46

so unseriously that you are getting

41:48

so fucked up that you need to

41:50

either snore a bunch of lines of cocaine to stay awake

41:53

or you're just passing out in the middle

41:55

of trial. That's something the court is

41:57

more than willing to look past, right,

42:00

yep. Just to like circle back as

42:02

a final thought. You know, something we've talked about

42:04

before is part of the

42:07

conservative legal project involves

42:09

shifting discussions of substantive

42:11

rights over to discussions of procedure

42:14

right, and the function of that is to avoid

42:17

having to defend directly the

42:19

myriad injustices that you see, especially

42:22

in our criminal justice system every

42:24

day. In some cases, that means court's

42:27

creating complex networks of immunities

42:29

for government officials and institutions accused

42:31

of wrongdoing, which keeps those cases out of

42:34

court altogether. And in

42:36

some like this, it just means ignoring

42:38

these substantive question and focusing

42:41

on the procedural one. If you ask

42:43

most law professors what this case is about, they'd

42:45

say, it's about the admissibility of juror testimony

42:48

under the federal rules of evidence, right, Yeah,

42:50

But it's not really, it's about the fairness

42:52

of this guy's trial. And

42:54

that's a discussion that conservatives

42:56

just don't want to have because the reality

42:59

is that our criminal justice system is grossly

43:01

unfair and unjust in all sorts of ways.

43:04

And you can see the true

43:06

locus of the court's concern in the closing

43:08

portion of the opinion I mentioned earlier,

43:10

where O'Connor is talking about how allowing

43:13

convictions to be challenged would

43:15

undermine trust in the system. The

43:18

real concern should be about whether the system

43:20

should be trusted, whether we have built

43:22

a system good enough to be trusted,

43:25

like whether it's actually just. But

43:27

she is fairly openly discussing shrouding

43:30

the reality of the system in

43:33

order to maintain the lie that

43:35

it is fair and just which means

43:37

she's all but saying out loud that the goal

43:39

of these procedural technicalities is

43:42

to avoid any dissection of

43:44

the fairness of our legal system. And

43:47

you know this is in nineteen eighty seven. Over

43:49

the next sort of twenty years, judges

43:52

like Scalia went even further, not

43:55

only rigidly focusing on proceduralism

43:57

in criminal law, but also chastising

44:00

those who didn't right, claiming

44:03

that they were unserious and driven

44:05

by policy objectives because

44:07

they were prioritizing rights

44:09

over procedure. That

44:11

outlook has been very influential

44:14

in the academy, and it's become a sort

44:16

of common wisdom among lawyers

44:18

that the proper and serious

44:20

way to analyze the law is to

44:22

focus on technicality and ignore

44:25

your normative conception of what constitutional

44:27

rights should actually be. A

44:30

big part of the

44:32

left legal project, if there is one,

44:35

has to be inverting that

44:38

and talking about like a rights

44:40

centric jurisprudence,

44:43

like centralizing constitutional

44:45

rights what we believe a broad conception

44:47

of those rights should be, and making

44:51

them superior to a procedure,

44:53

which they absolutely must be if

44:55

you believe in the Constitution, as

44:58

like you know, the preeminent document in our

45:00

law. It's the only way you could possibly conceive

45:02

of it in a way that makes any sense. And conservatives

45:05

have sort of quietly done

45:07

away with that, especially in

45:09

areas of the constitution that happened to benefit

45:11

criminal defendants. That's right, all

45:15

right, Well that was the story of the world's

45:17

coolest jury.

45:23

Damn what a this is such an eighties

45:25

thing. Yeah, we did let the ladies off

45:28

easy. By the way, we didn't mention in

45:30

the facts that there were also two ladies

45:32

who were drinking mixed drinks. Oh

45:35

that's right, Yeah, yeah, the cocktail

45:37

got to get that in there. I

45:39

love that. There was just like a wide array, Like

45:42

it's not like someone brought beer a

45:44

couple of days and they're like, whoa dude, that dude's bringing

45:46

beer. Like, right, someone's got

45:49

beer, someone's got wine. Someone's

45:51

like, you know what, no, I'm gonna bring mixers. This

45:55

is a full on house party, dude. Yeah,

45:58

yeah, we've got to be bro We

46:01

got wine, we got tequila

46:03

and soda. Like what is

46:05

going on? People drink so much that they

46:07

know each other's drink orders. Harry,

46:10

Hank, John and Terry

46:12

they split beer vera

46:16

gets the cab, they

46:19

see gets the cosmos. How do you get so

46:21

comfortable with the rest of the jury that

46:23

you're like yodio party, Yeah,

46:28

let's turn it out. It's

46:30

unbelievable. Next

46:36

week premium episode

46:39

an update on the state of legal journalism.

46:42

Last summer summer twenty twenty one,

46:44

we did an episode about

46:47

how fucking awful how legal

46:49

media coverage had been that year, and

46:52

we're gonna do a quick update because in

46:54

some ways it's gotten materially better. I think they

46:56

listened. That's right, we're famous now and

46:58

people are listening. Then there's been

47:01

some setbacks, shall we say, the

47:03

exposure of Nina Tottenberg as

47:05

a complete and utter access journalism

47:08

hack. You know, some CNN

47:10

panels that are perhaps not the most impressive

47:12

lineups I've ever seen in my life.

47:15

But we're gonna We're gonna convene

47:18

and discuss talk about

47:20

who's smart and who's stupid. Follow

47:22

us on Twitter at five to four Pod,

47:25

Subscribe to our Patreon, Patreon,

47:27

dot com, slash five four pod

47:29

all spelled out access

47:32

to premium and

47:34

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47:37

events, access to our slack.

47:40

We'll see you next week. Five to

47:42

four is presented by prolog Projects.

47:45

Rachel Ward is our producer, Leon

47:48

Nafak and Andrew Parsons provide

47:50

editorial support. Our production

47:53

manager is Percio Arlin and our

47:55

assistant producer is our lean A

47:57

Revelo. Our artwork is

47:59

by ten Blanks at Chips and why

48:02

in. Our theme song is by Spatial

48:04

Relations. It

48:13

is funny that someone thought of the

48:15

idea you only get so many bites

48:17

at the apple. It's like, I feel

48:19

like people should be allowed to take as many bites of an apple as

48:21

they want. Frankly, it

48:24

seems like a waste of an apple. Who

48:26

do they think they are that they can finish that?

48:28

I think you get that

48:31

right now, and you whip

48:33

it at someone on the side of the road and U