0:00:00.0 Speaker 1: We'll hear argument first, this morning, in number 86-177, Anthony R. Tanner and William M. Conover, petitioners, versus the United States.

0:00:12.8 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Tanner v. United States. It's a 6th Amendment case about whether or not your right to a trial by jury has been compromised if:

0:00:29.8 Speaker 3: The jurors were consuming large amounts of alcohol, were utilizing and dealing in marijuana, and were ingesting cocaine throughout the course of a complex criminal proceeding.

0:00:42.6 Leon: In a 5-4 decision, written by Justice Sandra Day O'Connor, the Court proclaimed that the proceedings 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 5-4, a podcast about how much the Supreme Court sucks.

0:01:03.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have infested our law like lanternflies have infested New York. I am Peter. I'm here with Michael.

0:01:15.6 Michael: Hey, everybody.

0:01:16.7 Peter: And Rhiannon.

0:01:17.6 Rhiannon: Hello. What is a lanternfly? Like a lightning bug?

0:01:20.9 Michael: They're a big problem in Philly and New York right now.

0:01:23.0 Rhiannon: Oh, they're the ones that the Philly local government was like, "On sight, you fucking kill these things when you see them." Yeah.

0:01:28.6 Michael: Yes.

0:01:29.3 Peter: Yeah, so they're indigenous to China. Every decade or so, some insect that has no natural predators makes it way over from China and just ruins some ecosystems. And they're all over New York right now. I had to change my route to the grocery store because there is a building that is teeming with them, like almost a skyscraper. And when you walk by it, the ground is littered with their corpses. One fell into my collar.

0:02:02.2 Rhiannon: Oh god. Oh no. No, no, no.

0:02:04.9 Peter: And I had to try to act like I was not absolutely losing my mind in public. It's like, "Oh, one of them fell. I guess I'll just casually get this out." And I was like, "Ugh," just internally, just absolutely losing my shit.

0:02:22.1 Rhiannon: Great. Okay.

0:02:22.6 Peter: Anyway.

0:02:23.0 Rhiannon: Kill them all.

0:02:23.8 Peter: 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, 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 ripped on alcohol, cocaine, and marijuana, is that a violation of your right to a jury trial? And can you maybe get some testimony about that? The Court, in a 5-4 decision, written by Sandra Day O'Connor because this is 1987...

0:03:04.9 Rhiannon: Right.

0:03:05.3 Peter: Said, "No, you cannot get any testimony about that." And this is maybe even, okay, this is fine.

0:03:11.9 Rhiannon: Right.

0:03:13.8 Peter: 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. Rhi, I'm gonna let you run wild on the background here.

0:03:34.5 Rhiannon: Are you turning this over? Yeah, okay. Alright, this case comes out of a federal criminal trial. Took place in Florida.

0:03:43.1 Michael: That's right.

0:03:43.9 Rhiannon: Florida man strikes again.

0:03:47.0 Michael: My home state.

0:03:48.5 Rhiannon: Yeah. This time it isn't the criminal defendants who are being Florida man. It is the jury.

0:03:54.0 Michael: That's right.

0:03:54.9 Rhiannon: Alright, 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 Asbel 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 male jurors were drinking during the day, 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.

0:04:40.6 Peter: Men. Am I right? The men.

0:04:42.4 Rhiannon: Yeah, it was the male 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.

0:04:53.4 Peter: The ladies on the jury are aghast.

0:04:57.0 Rhiannon: There's one who gets into it. We'll... Yeah.

0:04:58.5 Michael: Yeah. Well, at least at first, that's how it seems.

0:05:02.8 Rhiannon: 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, hears testimony from people who were there, who know what happened. And the court would be deciding whether the defendants' rights were violated, right? They said no because, according to the court, the juror's 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 Asbel were supplemented by another juror named Daniel Hardy. Hardy told the defense counsel that fully seven members of the jury, out of 12 people...

0:05:50.7 Peter: Solid majority.

0:05:51.7 Michael: More than half.

0:05:52.5 Rhiannon: Including himself, were drinking alcohol during lunch. Four male jurors shared up to three pitchers of beer on a daily basis. Okay? Hardy himself said that he, "Consumed alcohol all the time." The female juror who was foreperson would drink a liter of wine at lunch every day.

[laughter]

0:06:17.4 Rhiannon: 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 a QP, a quarter pound of marijuana, to another juror inside the courthouse.

[laughter]

0:06:40.6 Peter: Good Lord. This is the '80s, you could get the death penalty for that.

[laughter]

0:06:45.9 Rhiannon: Two of the jurors snorted a couple of 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.

0:07:01.5 Peter: Good Lord. The '80s were wild.

[laughter]

0:07:06.2 Peter: What a time.

0:07:08.6 Rhiannon: One of the jurors talked about how he was "flying" during the trial. That was his characterization.

0:07:16.0 Michael: And I think he's the one where Hardy said he'd go to the bathroom and come back sniffling like he had a cold all the time.

0:07:21.9 Rhiannon: Yes, that's right.

0:07:22.9 Michael: And then he had like a little contraption.

0:07:23.0 Rhiannon: Yeah, he had a little container.

0:07:25.2 Peter: Imagine being in court on trial for your life, and you glance over at the jury only to see a dude in a K-hole.

[laughter]

0:07:34.4 Peter: We're not far from that here.

0:07:35.7 Rhiannon: Drooling a little bit. Yeah, yeah, yeah. At this point, the defense lawyers file another request for an evidentiary hearing. Look, Judge, this shit is fucking crazy, the court needs to hear about it and decide whether something really serious enough happened to call the verdict into question. 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.

0:08:04.1 Michael: And people complain about getting stuck with jury duty, man.

0:08:07.0 Peter: I know.

0:08:07.9 Rhiannon: Right.

0:08:08.6 Peter: Imagine just being like, Oh, jury time.

[laughter]

0:08:14.0 Peter: Off to court, baby.

0:08:14.2 Michael: Calling up your dealer. Like fuck, I'm gonna be on jury.

0:08:18.2 Peter: Uh, I forgot the coke. Jury's gonna suck today.

[laughter]

0:08:22.9 Rhiannon: Okay. We're laughing about all of this stuff. I think it's objectively funny that some people got zooted to watch a trial or whatever, but yeah, we should clarify. Obviously, this kind of scares me as a defense attorney, 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.

0:08:46.1 Michael: That's right.

0:08:47.2 Peter: The denial of civil rights is not funny, but sometimes when you're going from civil rights to no civil rights.

0:08:55.1 Rhiannon: [laughter] Yeah, there you go.

0:08:55.2 Peter: Some funny stuff happens along the way. That's all we're saying.

0:08:57.1 Rhiannon: Exactly. It's a really good way to put it.

0:08:58.5 Michael: Yeah.

0:09:05.1 Peter: Alright, so let's zoom way out here, the Sixth Amendment guarantees the right to a trial by a jury, and not just a jury, but an impartial jury. Of course, there may, in some circumstances, be a question of whether the jury was acting appropriately, were 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. That perhaps his right to a jury trial was being violated here.

0:09:50.8 Rhiannon: Yeah.

0:09:51.3 Peter: But the threshold question, as Rhiannon mentioned, is actually about the rules of evidence, the federal rules of evidence. Rule 606-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 sanctity of the jury, etcetera.

0:10:26.4 Rhiannon: Peter, you just said 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 what happens in the jury room is sort of this sacred thing, and that outside interrogation, interrogation after the fact, over what people talked about in the jury room to reach their deliberation, that's kind of inappropriate. Because you want the jury to be respected, a jury's verdict to be respected. The idea is that a jury of someone's peers, 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 the sanctity of the jury, all of that kind of stuff, 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.

0:11:31.0 Michael: That's right.

0:11:31.4 Peter: So that's what the majority written by Sandra Day O'Connor grabs on to 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 only 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 completely comprehend it.

0:12:01.6 Rhiannon: Right.

0:12:02.9 Peter: So Rule 606-B of the federal rules of evidence says that jurors cannot testify about "the effect of anything on his or another juror's mind or emotions as influencing him to assent or dissent from the verdict."

0:12:18.9 Peter: 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 dissent from the verdict, does that apply to drugs? Sort of unclear, right?

0:12:33.9 Rhiannon: Right.

0:12:34.9 Peter: 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 deliberations one way or another. Right?

0:12:50.0 Rhiannon: Right. And in terms of 'anything' on the juror's mind that influences them to ascent or dissent. 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 ascent or dissent from the verdict, and I think that's what the rule is talking about.

0:13:19.1 Peter: There's also a question of whether drugs or alcohol influence someone to ascend or descend from the verdict, right? They don't push you in one direction, what they do is influence your decision-making, right? Which seems like it's a separate thing.

0:13:32.9 Rhiannon: Yeah.

0:13:33.1 Peter: 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 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 day, if not, he's out of luck. And so what the majority does is look at the common law history of juror testimony admissibility.

0:14:19.5 Peter: 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? 'Cause if we're gonna use the historical common law to interpret the statute, it starts to defeat the purpose of having a statute at all at some point. [laughter] But 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 use is within the walls of the jury room, according to Sandra Day O'Connors, jurors can't testify about it.

0:15:05.9 Peter: Now, by contrast, what the dissent 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.

0:15:32.3 Michael: During the trial before deliberation.

0:15:35.0 Rhiannon: Right.

0:15:35.8 Peter: So the rule doesn't apply, and the jury's testimony should be admitted into evidence.

0:15:41.3 Rhiannon: 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 hear testimony about, right? But I just wanna point out, the dissent obviously explains that like, this internal external distinction doesn't really work. 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. The majority does, is not only kind of silly because as the dissent 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.

0:16:36.9 Michael: Yeah.

0:16:37.0 Rhiannon: Because we're not talking about events that happened inside the jury room, 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?

0:16:52.5 Peter: They were still in the metaphorical jury room, that's what you're not... [laughter]

0:16:57.4 Rhiannon: I'm sorry, I'm not in the brain jury room that Sandra Day O'Connor is...

0:17:01.9 Peter: That's genuinely what she must mean, right? That it's like, "They're in the jury space."

0:17:06.8 Michael: [laughter] Yes.

0:17:07.0 Rhiannon: Right, right. Exactly.

0:17:08.5 Michael: Internal 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 female witnesses were lying or whatever. But somebody got intimidated in their home or something. Of course, who can testify about that? That makes perfect sense and is sort of internal external, but is it a deliberation or not? I think the more important thing, right?

0:17:45.0 Rhiannon: Exactly. And what Justice Marshall is saying. Yeah.

0:17:47.5 Michael: That's what you're trying to capture here, and not only is she not capturing it, but then her bad heuristic is being applied stupidly, right? That like this is all happening outside the jury room they're getting trashed at Applebee's or whatever. [laughter]

0:18:04.3 Peter: You can conceptualize the sanctity of the jury quote-unquote in different ways. I think the more obvious way is the way that the dissent's doing it, where you're saying, "Yeah, the jury deliberation is important and needs to be protected." And we can't have everyone testifying about what goes on, right?

0:18:21.8 Rhiannon: Yeah.

0:18:22.4 Peter: What O'Connor is doing is being like, "Yeah, anything the jury does is sacred." And it's like, "What? [laughter] Why would that be the rule that it just doesn't make a lot of practical sense?"

0:18:32.4 Michael: Smoking a joint in the fucking loading bay at the Ramada Inn or whatever down the street, that's external.

0:18:39.1 Rhiannon: Right. Exactly.

0:18:40.4 Peter: 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, are those really internal?

0:18:51.4 Rhiannon: Yeah.

0:18:52.1 Michael: You're right.

0:18:52.4 Peter: 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, because it does feel like it's beside the point here. The point should be that this is a violation of Tanners constitutional right to a jury, right?

0:19:13.3 Michael: Yes.

0:19:13.5 Peter: 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...

0:19:26.2 Rhiannon: Right.

0:19:27.1 Peter: 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 out on the floor, not able to process information at all for the duration of the trial. I would hope that we could all agree Sandra Day O'Connor included that that does not satisfy the constitutional right to a jury.

0:19:46.2 Rhiannon: Right.

0:19:47.6 Peter: 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.

0:20:01.1 Rhiannon: Right.

0:20:01.2 Peter: 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.

0:20:08.0 Rhiannon: Yes.

0:20:08.7 Michael: Not when the Federal Rules of Evidence say. [laughter]

0:20:14.4 Peter: 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.

0:20:26.1 Rhiannon: Yeah.

0:20:26.6 Michael: Right.

0:20:28.4 Peter: One thing I wanted to point out is like, This is 1987, when this case is coming down and there's just like, there's no textualism at all, right?

0:20:35.3 Michael: No.

0:20:35.5 Rhiannon: No, yeah.

0:20:37.6 Peter: 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 80s, 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 then like think about what the most literal meaning of it is, and then we'll work from there".

0:21:00.4 Rhiannon: Yeah.

0:21:01.0 Peter: 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 law is analyzed. It is just sort of wild.

0:21:15.5 Rhiannon: Yeah.

0:21:16.7 Michael: Extensive discussion of legislative history, extensive.

0:21:17.5 Peter: Yeah.

0:21:19.0 Michael: Pages, what pages of it, which they found conclusive.

0:21:22.0 Rhiannon: Yeah, but including in the dissent, right. The dissent has a pretty extensive treatment of legislative history as well, but comes out the other way.

0:21:29.3 Peter: One final item worth discussing, the opinion wraps up by saying that although allowing for investigations into juror 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, "Disrupt the finality of the process".

0:21:54.1 Rhiannon: Yeah, and just to jump in here, the court does reference this sort of principle of 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 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 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.

0:22:51.6 Michael: Right, that's right.

0:22:55.1 Rhiannon: You see it, kind of, trotted out and used by the Supreme Court in many different kinds of cases, basically as a reason why we can't review what happened.

0:23:06.8 Michael: Right.

0:23:06.9 Peter: Right.

0:23:06.9 Michael: Conservative judges love it because it is something that, it makes sense. That eventually you run out of bites at the apple.

0:23:13.8 Rhiannon: Sure.

0:23:13.9 Michael: That process runs out, you've done all of your State appeals, you've done your constitutional appeals, blah, blah, blah, blah, blah, all that. With conservatives sometimes they're like, "That's it", right.

0:23:22.4 Rhiannon: Right. Right.

0:23:23.3 Michael: Like you have one bite at the apple and they're like, "It's done".

0:23:26.6 Rhiannon: Exactly.

0:23:27.0 Peter: Finality is just to them, it is an excuse to put an end to the proceedings.

0:23:29.1 Rhiannon: Yes.

0:23:29.9 Peter: 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.

0:23:46.5 Rhiannon: Exactly.

0:23:46.8 Peter: I wanna go home.

0:23:47.7 Rhiannon: Exactly. I don't wanna look at this. Yeah.

0:23:48.7 Peter: It's also, I should mention that it's a little bit adjacent to victims rights movements, which are very aligned with prosecutors and stuff, right.

0:23:57.6 Rhiannon: Sure.

0:24:00.5 Peter: And 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 finality so that they can sort of move on.

0:24:16.5 Rhiannon: Yes.

0:24:17.2 Michael: Right.

0:24:18.0 Peter: Which is not, you know, in and of itself totally untrue, but the idea that it should trump someone's civil rights.

0:24:25.3 Rhiannon: Right.

0:24:25.3 Peter: I just think that's bullshit.

0:24:27.0 Michael: Right.

0:24:27.1 Rhiannon: Yeah.

0:24:27.5 Michael: Also funny here, where the victim is like the federal government getting defrauded out of a few million dollars. [laughter] It's not something like a grieving widow at home or anything. They are like...

0:24:39.5 Peter: Right.

0:24:40.0 Michael: The government needs to move on.

0:24:40.1 Peter: The AG's office needs to be able to sleep at night, you know, they need to put this behind them. [laughter]

0:24:46.0 Rhiannon: Yeah.

0:24:46.5 Peter: 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 juror misconduct there is, people would not trust the system", and it's like, "Yeah, that does sound, right"

0:25:06.1 Rhiannon: Yeah. Yeah. Right.

0:25:07.7 Michael: Yeah.

0:25:08.7 Rhiannon: If we said that getting absolutely lit during a trial is a problem for the jury, then... Yeah, people might question the efficacy of the jury.

0:25:18.8 Peter: Yeah, 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.

0:25:27.0 Michael: Yes.

0:25:30.2 Rhiannon: And say it's inadmissible, that's right.

0:25:32.0 Peter: To each his or her own Sandra Day O'Connor.

0:25:34.4 Rhiannon: This is a good spot, it feels like to take a break.

0:25:38.8 Peter: And we're back...

0:25:40.1 Rhiannon: We should talk about the dissent, this is written by Thurgood Marshall. He's joined by justices Stevens, Blackman and Brennan. So just wanna point out, this is a 5-4 decision. The court is really split here, and the conservatives take the day once again, but Marshall really responds to the rule 606 [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, there's really sort of a picking apart of this rule, how it came to be, the purpose of the rule, all of that. And what I like too, is that Marshall points out these allegations about what the jury was doing, these are provable allegations, 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...

0:26:42.2 Rhiannon: The deliberations about the case, their conversations about the facts, the 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 dissent. "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."

0:27:26.3 Rhiannon: "But the constitutional guarantee on which it is based will become meaningless." Yeah, so justice Marshall does put in this sort of a reference to the Constitution, a reference to the Sixth Amendment, which is your right to an impartial jury trial, among other things, but we should know that. Like Peter said up top with the Court 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 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 juror misconduct, but still, I mean that really obfuscates the really intense substantial risks to constitutional rights that this case brings up...

0:28:23.4 Rhiannon: 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.

0:28:40.3 Michael: Yeah, and I thought this also tied into... He had a pretty good point about the majority, very much downplaying the sort of severity of this juror misconduct... Right. Questioning whether these jurors, even if the evidence was admissible, whether this would be sufficient to prove... That the jurors were not competent. Right.

0:29:03.0 Rhiannon: Right.

0:29:04.2 Michael: And OConnor does so by really trying to sweep under the rug all the marijuana, cocaine and other more salacious allegations and rely on just like, Oh, so what? Some people had a few beers, sort of maybe somebody... Nodded off here and there. But it's like, Look, even if one person was ripped for one day, that's a day where your juror... You had a juror who was not present mentally... Right. Was not there.

0:29:34.7 Rhiannon: Exactly Right.

0:29:36.9 Michael: 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 sixth Amendment rights vindicated.

0:29:51.1 Rhiannon: Yeah, and then another thing is just that like... 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 run down of the crimes that...

0:30:18.8 Michael: Yes yes.

0:30:20.6 Rhiannon: Tanner and Conover are accused of. The first, I wanna say, maybe 10 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 the Supreme Court case and the question in front of them, right?

0:30:37.2 Peter: Sure, you might feel bad for this guy, what if I told you he committed mail fraud, maybe do you feel bad for him now.

0:30:46.0 Michael: Well I do think they affirm the convictions as well, although I think it's very much a side... Side thing.

0:30:53.7 Rhiannon: Right, right. It's not whether somebody is guilty or not guilty it's whether the trial that they received it's whether the jury that they got who assessed these allegations against them, and will determine whether or not these people go to prison, it's about whether that jury was a fair jury for them.

0:31:10.8 Peter: Yes. Right, so all the facts that she's restating as if they are true are in fact.

0:31:14.7 Rhiannon: Yes.

0:31:16.6 Peter: Contingent upon whether or not the trial that we're talking about was a valid one, and that's the whole question.

0:31:22.1 Michael: Yes.

0:31:22.7 Rhiannon: Exactly, right.

0:31:24.2 Peter: Just backwards, whatever.

0:31:24.3 Rhiannon: 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, This is like a concept about the jury about trial level cases, where what goes on behind closed doors as the jury is deliberating about a case is ultimately respected 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 certainly don't agree with.

0:32:01.7 Rhiannon: The way we're meting out the so-called justice in our system, but that is part of the point too, that the supposed sanctity of the jury room and jury's deliberations are worthy of the utmost respect, 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 be completely 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...

0:33:15.2 Peter: Right, right, that's what's so like jarring about this case is it's like a direct contrast between the mysticism surrounding the idea of a jury of your peers in American legal rhetoric and the reality of the situation, which is somewhere between seven and 12 complete freaks being shoved into a room and being told to interpret law that they just learned, apply them to complex sets of facts, it's a ludicrous system.

0:33:45.4 Rhiannon: Exactly.

0:33:45.7 Peter: 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 any given person's psychological biases, and the court is sort of engaged 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.

0:34:19.7 Michael: Yeah, Peter. And there was a part in the majority opinion that was like... I was just sort of laughing when I was reading because is towards the end when O'Connor is still trying to avoid just admitting what was going on here, and so she's talking a lot about this first affidavit from Vera where she was like... Yeah, a few people had beers and may be napped, and then she's like, Yes, and there was this second testimony, the second thing, she was like, But that was gathered in violation of court order and local rules, like... So what...

0:34:57.8 Rhiannon: Right.

0:34:58.3 Michael: Who gives a shit? Exactly. Like certainly you weren't supposed to talk to them about that. And first of all, the jury came to the guy's door, knocked down the fucking attorneys door and it was like... I'm feeling like I gotta get this off my chest. Right.

0:35:15.0 Rhiannon: Yeah, yeah.

0:35:15.1 Michael: I asked it by the way, The forewoman who was drinking wine every day, she called to the court house and was like, When is the hearing? I wanna testify, I feel bad. Like.

0:35:24.0 Rhiannon: Yes.

0:35:24.4 Michael: 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 gonna ignore this, we're just gonna pretend like this didn't happen, that's sort of the court's whole mode here is we don't wanna know prioritizing Local Court rules over the Sixth Amendment of the federal constitution, right? Putting their hands over the years and going, Nah nah nah. I can't hear you.

0:35:49.3 Rhiannon: Yeah, yeah exactly.

0:35:52.3 Michael: And so the other thing is, she's 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 it's actually, it's 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.

0:36:26.0 Rhiannon: Right. They can return a not guilty verdict, right.

0:36:28.5 Michael: Yeah, instances of this sort of historical instances that are I think admirable or during the abolition era, there were juries that would refuse to convict people under the Fugitive Slave Act.

0:36:40.0 Rhiannon: Yes.

0:36:40.8 Michael: 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 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 un-controversially within the power of American juries.

0:37:05.5 Rhiannon: 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, juries four and seven refuse to convict because they think the law is unjust, that's literally like the rules we were 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 very strictly I don't wanna say outright prohibited, but courts go to a great extent to prevent... If you say you're familiar with jury nullification during for voir dire you will not be seated on that jury.

0:37:49.2 Rhiannon: Right, right, right. And similarly, a defense lawyer cannot tell the jury pool during voir dire or during the closing argument, for instance, about jury nullification, they can't call for the jury to nullify...

0:38:01.8 Michael: Yeah.

0:38:02.9 Peter: And just so everyone knows voir dire is jury selection. The jury selection process.

0:38:07.0 Michael: Yes, yes. That's the part where they interview the jurors and ask 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 oath 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 outside influence, right? That's something that courts will hear testimony about.

0:38:48.2 Rhiannon: Yes.

0:38:49.8 Michael: It sort of infamously happened in the trials a few years ago. Where the Trump administration was trying to prosecute all those protesters for his inauguration. And one of the jurors, one of 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 interesting. It was grounds for a mistrial actually.

0:39:15.7 Peter: Just Learning about what jury nullification is. It's like you get disqualified from a jury for learning about any leftist concept. It's like, raise your hand if you're familiar with Karl Marx, you can leave. Like that's.

[laughter]

0:39:28.4 Michael: By the way, that didn't end up being a mistrial, just because the prosecution didn't press it, but they were losing everything. There was a lot of misconduct. 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 law at 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, OJ 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. 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 snort 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.

0:40:47.7 Peter: Right. Just to like circle back on as a final thought, something we've talked about before is part of the conservative legal project involves shifting discussions of substantive rights over to discussions of procedure. And the function of that is to avoid having to defend directly the myriad justices that you see, especially in our criminal justice system every day. In some cases that means courts 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 the substantive question and focusing on the procedural one. If you asked 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?

0:41:37.2 Rhiannon: Yeah.

0:41:37.8 Peter: 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.

0:41:51.7 Rhiannon: Yeah.

0:41:52.8 Peter: 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.

0:42:34.7 Peter: And you know, this is 1987. Over the next sort of 20 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 like 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 procedure, which they absolutely must be. If you believe in the constitution as like 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 happen to benefit criminal defendants.

0:44:00.7 Michael: That's right.

0:44:01.4 Peter: All right, well that was the story of the world's coolest jury.

0:44:05.7 Michael: [laughter]

0:44:10.8 Peter: Damn. What a... This is such an 80s thing.

0:44:13.8 Michael: 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 at...

0:44:21.9 Rhiannon: Oh, that's right. Yeah. Couple of cocktail at lunch.

0:44:24.6 Michael: You gotta get that in there. There were two ladies having cocktails.

0:44:26.7 Peter: I love that there was just like a wide array, like Right. It's not like someone brought beer a couple days and they were like, Whoa, dude, that dude's bringing beer. Like someone's got beer, someone's got wine. Someone's like, you know what, no, I'm gonna bring mixers.

[laughter]

0:44:42.8 Peter: This is a full on house party dude.

[laughter]

0:44:44.8 Peter: We've got beer bro, We got wine, we got tequila and soda. Like what is going on?

0:44:52.7 Michael: These people drink so much that they know each other's drink orders too.

[laughter]

0:44:57.6 Michael: Harry hank, John, and Terry. They split beer. Vera gets the cab [laughter], Stacey gets the Cosmo.

0:45:07.9 Peter: How do you get so comfortable with the rest of the jury that you're like, Yo, do you party like?

[laughter]

0:45:14.8 Rhiannon: Yeah. Let's turn it up.

0:45:17.1 Michael: It's unbelievable.

0:45:23.4 Peter: Next week, premium episode, an update on the state of legal journalism, Last summer, summer 2021, we did an episode about how fucking awful legal media coverage had been that year. And we're gonna do a quick update because in some ways it's gotten materially better.

0:45:41.9 Michael: I think they listened.

0:45:43.0 Peter: That's right. We're famous now and people are listening. Then there's been some setbacks, shall we say. The exposure of Nina Totenberg 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 convene and discuss, talk about who's smart and who's stupid, Follow us on Twitter @fivefourPod, subscribe to our patreon, patreon.com/fivefourpod, all spelled out access to premium and ad free episodes, special events, access to our Slack. We'll see you next week.

0:46:29.7 Michael: Five to four is presented by prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks that chips and why and our theme song is by spatial relations.

0:47:00.4 Peter: 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.

[laughter]

0:47:10.1 Michael: Right. It seems like a waste of an apple. Who do they think they are? That they can finish that apple? You get one two bites back.

0:47:18.1 Rhiannon: Stop that right now.

0:47:19.1 Peter: [laughter] eat two bites and you whip it at someone on the side of the road and.