March 7, 2023 • 48 mins
Hey folks, Josie here! We wanted to share a show that we think you might like. It's called 5-4, and it's about how much the Supreme Court sucks. 5-4 is all about how the Supreme Court DOESN'T provide justice, and we think that will resonate with Unreformed listeners.
If you like it, you can subscribe wherever you get your podcasts.
About 5-4: A podcast about how much the Supreme Court sucks. It’s a progressive and occasionally profane take on the ideological battles at the heart of the Court’s most important landmark cases and an irreverent tour of all the ways in which the law is shaped by politics.
Listen each week as hosts Peter, Michael, and Rhiannon dismantle the Justices’ legal reasoning on hot-button issues like affirmative action, gun rights, and campaign finance, and use dark humor to reveal the high court’s biases.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Hi, everyone, It's me Josi Duffie Rice, host of Unreformed.
Ahead of our last episode, which airs on March eighth,
we're sharing an episode of another podcast. I'm a huge
fan of five to four. This one is a favorite
of mine. The three hosts are amazing, so funny and
incredible at talking about how terrible the Supreme Court is.
(00:20):
Five to four is totally a bit different from Unreformed,
but it tackles some of the same issues like access
to justice, race, etc. Here's a little bit more about
the show. Five to four is a podcast about how
much the Supreme Court sucks. Every week, five to four
takes on the Supreme Court's worst decisions about the most
important issues like police abuse, abortion access, the Second Amendment,
(00:41):
and voting rights. Each episode covers a Supreme Court case
that reveals the ways in which the justices contort the law,
make stupid legal errors, and generally hack away at our
democracy as the Court shifts further and further to the right.
Five to four is your guide to how this supposedly
a political institution wields its power. Fine five to four
(01:02):
wherever you get your podcasts, and we're going to drop
one of their episodes here for you to listen, to
enjoy and meet us back here on Wednesday, March eighth
for the series finale of Unreformed. Well here. Argument First
This morning at number eighty six one seventy seven Anthony
rat Tanner and William M conover Petitioners versus the United States.
(01:25):
Hey everyone, this is Leon from Fiasco and Prologue Projects.
On this week's episode of five to four, Peter Rhannon
and Michael are talking about Tanner v. United States. It's
a sixth Amendment case about whether or not you're right
to a trial by jury has been compromised if the
jurors were consuming large amounts of alcohol. We're utilizing and
(01:47):
dealing in marijuana, and we're ingesting cocaine throughout the course
of a complex criminal proceeding. In a five to four
decision written by Justice Sandra Day O'Connor, and the Court
proclaimed that the receeedings of a jury room are so
sacrosanct that even if more than half the jury is
high and drunk, their verdict must stand. This is five
(02:08):
to four, a podcast about how much the Supreme Court suns.
Welcome to five to four, where we dissect and analyze
the Supreme Court cases that have infested our law, like
lantern flies have infested New York. I am Peter, I'm
here with Michael everybody and Rhiannon. Hello. What is a
(02:31):
lantern fly? Like a lightning bug? They're a big problem
in like Philly, New York right now. Oh, they're the
ones that, like the Philly local government was like on site.
You fucking kill these things when you see that? Yeah, yeah,
So they're like indigenous to China. Every like decade or so,
some insect that has no natural predators makes its way
over from China and just like ruin some ecosystems, and
(02:56):
they're all over New York right now. And like I
had to change my route the grocery store because there
is a building that is like teeming with them, like
a almost a skyscraper, and when you walk by it,
like the ground is littered with their corpses. One fell
into my like collar, oh god, And I had to
(03:19):
try to act like I was not absolutely losing my mind.
It's like, oh one of them fell, I guess I'll
just casually get this out. And I was like internally
just absolutely losing my ship. Anyway, kill them all. Yeah,
I've been stomping on them doing my best. Today's case
(03:41):
Tanner v. United States. This case is sort of about
the right to a jury, but specifically, you know, it's
about if you're on trial and the jury deliberating over
your guilt or innocence is just wasted out of their minds,
absolutely rips on alcohol, cocaine, and marijuana. Is that a
(04:04):
violation of your right to a jury trial? And you
maybe get some testimony about that? The court, in a
five to four decision written by Sandra Day O'Connor, because
this is nineteen eighty seven, said no, you cannot get
any testimony about that, and this is maybe even okay,
this is hard. They harped on an evidentiary rule to
(04:29):
hold that the evidence of the jury's rampant drug and
alcohol use was not admissible in court, making this another
in the long list of cases where the court prioritizes
procedural technicality over substantive constitutional rights. I'm gonna let you
run wild on the background. Here are you turning this over? Yeah? Okay,
(04:50):
all right. This case comes out of a federal criminal
trial took place in Florida. That's right, Florida man strikes again.
Homestead Yeah, this time, it isn't the criminal defendants who
are being Florida man, It is the jury, that's right,
all right. So Anthony Tanner and William Conover were on
(05:11):
trial for mail fraud and conspiracy to commit fraud. They
were convicted by the jury, but before they were sentenced,
one of the lawyers for Tanner and Conover got an
alarming phone call. A juror named Vera Asbell called defense
counsel and told him that she needed to get something
off her conscience. This was a confession of sorts, father,
(05:35):
I have witnessed some sin. She told the attorney that
at the trial, some of the mail jurors were drinking
during the day, you know, as the trial is going on,
and then a few of them would sleep through the
afternoons while the trial is happening in the courthouse. Men,
am I right? Yeah, it was the mail jurors that
(05:56):
she pointed out. Yeah. She told defense counsel that another juror,
Tina Franklin, could confirm these accusations, could confirm what she
was saying. The ladies on the jury are a guest,
you know, there's one who gets into it. Well, yeah,
at least at first that's how it seems, right, yeah, exactly. Now,
(06:17):
the district court refused to have an evidentiary hearing on this.
This would be the type of hearing where the court
digs into what happened, here's testimony from people who were there,
who know what happened, and the court would be deciding
whether the defendant's rights were violated. Right. They said no, because,
according to the court, the jurors testimony would be inadmissible
(06:39):
under a certain federal evidentiary rule. But that wasn't the
end of it. It wasn't just that they were drinking.
A few months later, the initial allegations by Vera Asbell
were supplemented by another juror named Daniel Hardy. Hardy told
the defense counsel that fully seven members of the jury
(07:01):
out of twelve people solid majority more than half, including himself,
with drinking alcohol during lunch. Four male jurors shared up
to three pitchers of beer on a daily basis. Okay,
Hardy himself said that he quote consumed alcohol all the time.
The female juror, who was four person, would drink a
(07:25):
leader of wine at lunch every day. The men did
take it up a notch though. The four jurors, the
four dudes who were drinking pitchers every day at lunch.
They also smoked marijuana during the trial about every day.
One of the jurors allegedly sold sold a qpe a
(07:47):
quarter pound of marijuana to another juror inside the courthouse.
The lord, this is the eighties. You could like get
the death penalty for that. Two of the jurors nor
died a couple lines of cocaine on several occasions during
the trial. Sometimes during the trial, two of the jurors
were ripped off of all three substances. They were drinking,
(08:11):
they were smoking marijuana, and they were snorting coke. Good.
The eighties were wild, you know what a time one
of the jurors talked about how he was quote flying
during the trial. That was his characterization. And I think
he's the one where Hardy said like he would go
(08:31):
to the bathroom and come back sniffling like he had
a cold. Yeah, all the time. And then he had
like a little contract and he had a little container
being like in court on trial for your life, and
you like glance over at the jury and you to
see a dude in a khole. We're not far from
that here. Drooling a little bit. Yeah, yeah, yeah. At
this point, the defense lawyers file another request for an
(08:53):
evidentiary hearing. You know, look, Judge, this ship is fucking crazy.
The court needs to hear about it decide whether something
really serious enough happened to call the verdict into question,
right right, The court said no again, testimony from any
of the jurors is inadmissible, and so the defense lawyers
appealed all the way to the Supreme Court. And people
(09:17):
complain about getting stuff with I know, right, imagine like
just being like, oh, jury time, right, I forgot the code.
Jury's gonna suck today. Okay, we're laughing about all of
(09:37):
this stuff. I think it's objectively funny that some people
got zuited to like watch a trial or whatever. But yeah,
we should clarify, like, obviously this kind of scares me
as as a defense attorney, Like this is a really
serious matter. These people were deciding the fate of these
two men's lives, and yeah, we don't think it's cool
that the jury took it this way. That's right. The
(10:00):
the denial of civil rights is not funny. But sometimes
when you're going from civil rights to no civil rights,
some funny stuff happens along the way. That's all We're exactly.
It's a good way to put it all, right, So
let's zoom way out here. The sixth Amendment guarantees the
right to a trial by jury, and not just a jury,
(10:20):
but an impartial jury. Yeah. Of course, there may, in
some circumstances be a question of whether the jury was
acting appropriately where they subject to undue influence, for example,
or perhaps just demonstrably incompetent in some way that would
functionally deny you your constitutional right to an impartial jury.
(10:41):
So there are avenues by which you can impeach the jury,
meaning challenge the validity of the jury's findings. Fundamentally, this
case is about the defendant attempting to impeach the jury
verdict on the basis that the jury was wasted right,
that perhaps his right to a jury trial was being
(11:01):
violated here. Yeah, But the threshold question, as Rhannon mentioned,
is actually about the rules of evidence, the Federal Rules
of Evidence Rule six H six B. The Federal Rules
of Evidence are the laws governing the use of evidence
in federal court, and this rule establishes some pretty stringent
guidelines for when you can use a juror's own testimony
(11:24):
to impeach a jury verdict. Remember, the only evidence we
have here is testimony from other jurors, and there are
rules governing when jurors can testify about the jury itself,
because you know, sanctity of the jury, etc. Peter, you
just said, like the sanctity of the jury, We should
probably explain that a little bit. So, Yeah, there's this
(11:45):
kind of principle in the law that like what happens
in the jury room is is sort of this this
sacred thing, and that like outside interrogation, interrogation after the
fact over like what people talked about in the jury
room to reach their deliverer ration. You know, that's kind
of inappropriate because you want the jury to be respected,
(12:05):
a jury's verdict to be respected. You know. The idea
is that a jury of someone's peers, you know, people
who come from the public, who have all different kinds
of experiences, come together and decide on somebody's guilt in
a trial. So when the court talks about like the
sanctity of the jury, all of that kind of stuff,
(12:26):
it's it's this idea really that jury deliberations are supposed
to be respected because it is an intensive thing that
the jury goes through, and intensive questions that they answer,
which should be respected and shouldn't be picked apart after
the fact. That's right. So that's what the majority, written
by Sandrada O'Connor grabs onto here. The allegations about the
(12:51):
jury being drunk and high, they come from juror testimony,
meaning they come from the jury itself, and the Federal
Rules of Evidence allow for the admission of juror testimony
in very limited circumstances. So let's walk through the rule
a little bit, and I admit it's a little bit confusing.
Don't worry about it. You don't need to like completely
(13:13):
comprehend it. Right. So Rule six or six B of
the Federal Rules of Evidence says that jurors cannot testify about,
quote the effect of anything on his or another juror's
mind or emotions as influencing him to assent or descent
from the verdict. So, okay, that's a little weird, right,
(13:34):
The effect of anything on his or another juror's mind
as influencing him to assent or descent from the verdict.
Does that apply to drugs? Sort of unclear? Right? Right?
In the most literal sense, you could say that maybe
it does. However, it's also pretty clear if you look
at the context of the rule that what it's really
(13:56):
trying to get at is like juror's mental the liberations
one way or another, right, right, right, And in terms
of quote, anything on the juror's mind that influences them
to assent or discent. You know, I read that kind
of in a plain language way to mean like anything
(14:16):
from the trial, right, A piece of evidence, a witness
is demeanor. Right, those are the things on the mind
of a juror that would influence them to assent or
dissent from the verdict. And I think that's what the
rule is talking about. And there's also a question of
whether drugs or alcohol influence someone to assent or descent
(14:36):
from the verdict. Right. They don't push you in one direction.
What they do is influence your decision making, right, right,
which seems like it's a separate thing. Yeah. Now there's
other parts of this rule. It also says they can't
testify about a juror's mental processes, and there are exceptions.
There can be juror testimony about whether outside influence was
(14:58):
brought to bear on any juror. Presumably that mostly means
bribes and threats. There's also a question here of whether
outside influence in the most literal sense would include drugs. So,
but the fundamental question is whether all of this means
that a juror cannot provide testimony about drug and alcohol
use by other jurors. If the testimony is admissible, then
(15:20):
Tanner probably needs a new trial at the end of
the day, right. If not, he's out of luck. And
so what the majority does is look at the common
law history of juror testimony admissibility. In other words, the
rules of evidence are a federal law, but the court
is looking back at what courts did historically in order
to interpret that law, which is always a little awkward, right,
(15:41):
because if we're going to use the historical common law
to interpret the statute, it starts to defeat the purpose
of having a statute at all at some point. But whatever. Anyway,
the Court says that historically there's an important dichotomy here.
There are things that happen internally within the jury room,
and those are private matters that can't be testified about,
(16:03):
and then there are things that happen external to the
jury room, like bribes or threats, and those can be
testified about drug and alcohol uses within the walls of
the jury room, according to Sandra Day O'Connor, So jurors
can't testify about it. Now, by contrast, what the descent
says is No, that's not the relevant distinction. What the
(16:24):
rule is meant to do is protect the confidentiality of
jury deliberations. So the distinction that we should be worried
about is not whether it's in the jury room or
outside of the jury room, but whether the testimony in
question is about jury deliberation or not. And this is
not right. This is about drug and alcohol use during
(16:45):
the trial before deliberation, right, So the rule doesn't apply
and the jurors testimony should be admitted into evidence. Yeah, Peter,
I'm glad that you explain what Sandra day O'Connor is
kind of doing here. She's saying that something that happened
inside the jury room internal to jury deliberations, that there
cannot be testimony about what happened there in those circumstances.
(17:10):
Something that happens outside external to the jury room, those
things the court can here testimony about, right. But I
just want to point out, like the descent obviously explains that,
like this internal external distinction doesn't really work. You know,
the distinction should be whether or not the testimony is
about deliberations or not. But I also think it's worth
(17:30):
highlighting this internal external distinction that the majority does is
not only kind of silly because as the Descent points out,
it's not a sort of meaningful distinction in the way
that it should be, but Sandra Day O'Connor is also
applying this rule that she just made up. She's applying
it incorrectly because we're not talking about events that happened
(17:52):
inside the jury We literally are talking about events that
are external to the jury room. They were doing drugs
and drinking during the trial outside of the jury room.
They were not deliberated, right, they were still in the
metaphorical jury room. That's what you're not. I'm sorry, I'm
not in the brain jury room that Sandra day O'Connor is.
(18:14):
That's genuinely what she must mean, right, that it's like
they're in the jury space, you know, right, right, exacternal
external distinction was so sort of dumb because it's like
it's clear what she's trying to get at, which is
like you can't come out afterwards and be like, well, yeah,
we let this guy off. But that's because a lot
of the jurors were sexist and so they thought all
(18:35):
the female witnesses were lying or whatever, right, right, but
somebody got intimidated like in their home or something. Of course,
you can testify about that. That that makes perfect sense
and is sort of internal external, But is it a
deliberation or not? Is I think the more important thing, right,
(18:57):
like exactly, and what Justice Marshall is saying, yeah, that's
what you're trying to capture here, and not only is
she not capturing it, but then her like bad heuristic
is being applied stupidly, right, Like that's like this is
all happening outside the jury room. They're getting trashed at
Applebee's or whatever. You know. You can conceptualize the sanctity
(19:19):
of the jury quote unquote in different ways. I think
the more obvious way is the way that the descents
doing it, where you're saying, yeah, like the jury deliberation
is important and needs to be protected, and we can't
have everyone testifying about what goes on, right yeah, right.
What O'Connor is doing is being like, yeah, anything the
jury does is sacred, and it's like, why would that
(19:42):
be the rule that it just doesn't make a lot
of practical sense. Smoking a joint in the fucking loading
bay at the Ramada Inn or whatever down the street,
that's external, right, Exactly if a juror got threatened outside
of the courtroom, right at home concerning the jury, or
saw something on the news that might prejudice them, right,
(20:03):
are those really internal? You can make the argument that
they're external. Right, So this distinction is doing no work.
It just doesn't make a lot of sense. And more importantly,
you can almost sort of put it aside, right, because
it does feel like it's beside the point here. The
point should be that this is a violation of Tanner's
(20:23):
constitutional right to a jury right. The jury was impaired
to the point where most of them probably wouldn't be
allowed to legally operate a forklift, let alone decide whether
or not someone should be a free human being, you know. Right,
And there's this pretty basic reality here that the majority
seems to ignore. If the jury were literally unconscious from
(20:45):
drugs and drinking pass that on the floor, not able
to process information at all for the duration of the trial,
I would hope that we could all agree. Sanderday O'Connor
included that that does not satisfy the constitutional right to
a jury. So there must be some place on the
spectrum between stone sober jury and completely unconscious jury where
(21:07):
we all have to admit that this no longer qualifies
as a constitutionally adequate jury. Right. Where exactly on the
spectrum that line is might not be an easy question
to answer, but it's the court's obligation to answer it,
not when the federal rules of evidence stand. Well, yeah,
that's what's happening is the court is essentially acting like
this is just a case about evidentiary rules when it's not.
(21:31):
It's about whether this man received a constitutionally fair trial,
and if he didn't, then it doesn't matter or shouldn't
matter what the federal rules of evidence say. Yeah. Right.
One thing I wanted to point out is like, this
is nineteen eighty seven when this case is coming down,
and there's just like there's no textualism at all. Right now,
we've talked about how the conservative legal movement sort of
(21:52):
built up these ideas like textualism and originalism over time,
and this is like mid to late eight, and you
have a statute and you're trying to interpret it, and
at no point does someone just say, well, let's look
at the words of the statute and like think about
what the most literal meaning of it is and then
we'll work from there. That just wasn't how the analysis
(22:14):
was done. And it's just sort of jarring when you've
been reading like modern jurisprudence that you just don't see
it at all, and goes to show how successful the
conservatives have been at influencing the way that the laws analyze.
It's just sort of wild. Yeah, extensive discussion of legislative
history of pages of it, yes, which they found conclusive. Yeah,
but including in the Descent Right. The Descent has a
(22:37):
pretty extensive treatment of legislative history as well, but comes
out the other way. One final item worth discussing the
opinion wraps up by saying that although allowing for investigations
into jer misconduct would sometimes uncover misconduct, it's not worth
it because it would basically be such an administrative hassle.
(22:58):
O'Connor says that frequent challenging of verdicts based on juror
misconduct would quote disrupt the finality of the process. Yeah,
and just to jump in here, the Court does reference
this sort of principle of like finality of a verdict, right,
that we have to be able to trust that the
jury's decision is final, that we can't go back after
(23:23):
the fact and pick apart what the jury did in
the jury room and you know, sort of upend jury verdicts. Right.
The public has to be able to trust that jury
decisions are the decisions. And so that's what the kind
of finality principle means. But we've mentioned before that especially
(23:43):
in criminal law, judges the Supreme Court over the course
of years generations have referenced this kind of you know,
high minded principle of finality of jury verdicts, but only
in service of a higher principle to federal judges, which
is not wanting to review these cases. Right, That's right.
(24:07):
You see it kind of trotted out and used by
the Supreme Court in many different kinds of cases basically
as like a reason why we can't review what happened, right, right.
Conservative judges love it because it is something that it
makes sense that eventually you run out of bites at
the apple, right, that process runs out, you've done all
your state appeals, you've done your constitutional peels, blah blah
(24:29):
blah blah blah all that. With conservatives sometimes they're like,
that's it right, right, Like you have one bite at
the apple and they're like, that's it's done, right exactly.
Finality is just to them, it's an excuse to put
an end to the proceedings. Yes, it's just like a
vocabulary that they speak when they want to end the proceeding.
For some like someone is claiming that their civil rights
are being violated, and conservatives are like, well, that would
(24:51):
be against the principle of finality, which means I don't
want to keep going with this shit, right exactly, I
don't want to look at this. Yeah. It's also I
should I should mention that it's a little bit adjacent
to like victims rights movements, which are very aligned with
like prosecutors and stuff. Right, there are sort of groups
that are basically aggressive prosecution advocacy organizations that sort of
(25:18):
portray themselves as being about victims rights, right, And then
the argument is like, well, the victims and their families
need finalities so they can sort of move on, yes, right,
which is not you know, in and of itself totally untrue,
but the idea that it should trump someone's civil rights, right,
I just invest bullshit? Right. Also funny here where the
(25:41):
victim is like the federal government getting defrauded out of
a few million dollars, Like it's some like grieving widow
at home or anything. The government needs to move on.
The AG's office needs to be able to sleep it,
you know, they need they need to put us behind them. Yeah.
And they also say that public trust in the jury
(26:03):
system would be undermined if we scrutinize juror conduct too much,
which is just another way of saying like, if we
revealed how much jurm as conduct there is, people would
not trust the system. And it's like, yeah, that does
sound right, yeah, yeah, right, yeah yeah. If we said
that getting absolutely lit during a trial is a problem
(26:27):
for the jury, then yeah, people might question the efficacy
of jury. It's I mean, I do agree that that
would undermine trust in the jury system. I guess I
don't agree that the solution to that is to bury
all the evidence of misconduct and say it's inadmissible. That's
right to each his or her own. Sandra Day O'Connor,
(26:48):
this is a good spot. It feels like to take
a break and we're back. We should talk about the descent.
This is written by Thurgood Marshall. He's joined by Justices Stevens,
Blackman and Brent In. So, you know, just want to
point out this is a five four decision. The court
is really split here, and you know the Conservatives take
the day once again. But you know, Marshall really responds
(27:11):
to the rules six or six B analysis that the
majority goes with with his own, like I mentioned, his
own intensive analysis of the rule, but he comes out differently.
He goes through legislative history, he goes through the policy considerations,
he goes through the notes on the legislative history, the
comments on the adoption of the rule. I mean, there's
(27:31):
really sort of a picking a part of this rule,
how it came to be, the purpose of the rule,
you know all of that. And you know what I
like too is that Marshall points out these allegations about
what the jury was doing. These are provable allegations, Like
you're not talking about what's going on in someone's head
in terms of how they think about the case. You're
(27:52):
not talking about the jury deliberations, the deliberations about the case,
their conversations about the facts that evidence that they heard,
their thought processes, their agreements and disagreements in the jury
room as they came to their verdict, whether or not
the jury was ingesting substances, whether they were pardon me,
but gone off that loud Again, Marshall says, we can
(28:18):
hear testimony about that and determine whether or not it happened. Right,
there's a good quote here from the descent. Petitioners are
not asking for a perfect jury. They're seeking to determine
whether the jury that heard their case behaved in a
manner consonant with the minimum requirements of the sixth Amendment.
If we deny them this opportunity, the jury system may survive,
(28:39):
but the constitutional guarantee on which it is based will
become meaningless. So just as Marshall does put in this
sort of a reference to the constitution, a reference to
the sixth Amendment, which is, you know, your right to
an impartial jury trial, among other things. But we should
note that, like Peter said, uptime with the court kind
(29:01):
of latching on to the evidentiary rule and having their
analysis come out of the rule means that the constitution
is kind of ignored here, And there is the point that, like,
the question presented to the court is not whether Tanner
and Conover got their constitutional rights violated, it's just whether
(29:22):
the court should have given them an evidentiary hearing about
ger misconduct. But still, I mean that really obvious skates
the really intense, substantial risks to constitutional rights that this
case brings up, right, And nowhere in the majority is
that really discussed the sixth Amendment. Marshall includes it in
(29:43):
what I would say is like dicta of the dissent right.
But there isn't an intensive constitutional analysis here. This is
about the rules of evidence, and that's kind of it. Yeah,
And I thought like this also tied into he had
a pretty good point about the majority very much down
laying the sort of severity of this jer misconduct, right, like,
(30:05):
oh yeah, questioning whether like these jurors, even if you
know this evidence was admissible, whether this would be sufficient
to prove death A jurors were not competent, right, right.
And O'Connor does so by really trying to sweep under
the rug all the marijuana, cocaine and other more salacious
allegations and and rely on just like, oh, so what
(30:29):
some people had a few beers sort of sort of
maybe somebody knotted off here and there. But it's like, look,
even if one person was ripped for one day, like
that's that's a day where your juror, you had a
juror who was not present mentally right, was not was
not there like right, And so that's like, I don't
(30:51):
know how that could be anything but a constitutional violation. Right,
a juror so fucked up that they are not like
mentally present, you're not getting your six Amendment rights vindicated. Yeah,
And then another thing is just that, like, you know,
you make the point, Michael, that O'Connor really downplays the
juror misconduct. That's completely true. You only get the details
(31:13):
about the allegations what the jurors were actually up to.
You only get that in Marshall's dissent. And then I
also wanted to point out that again we've seen this
numerous times, especially in criminal cases. O'Connor's majority starts with
a detailed rundown of the crimes that Tanner and Conover
(31:34):
are accused of. The First, I want to say, you know,
maybe ten paragraphs of this opinion are about the mail
fraud and the conspiracy to commit fraud, which is what
the defendants are accused of. It has nothing to do
with this Supreme Court case and the question in front
of them. Right, sure, you might feel bad for this guy.
What if I told you he committed mail fraud? Maybe
(31:58):
you feel bad for him now, well I do. I
do think they affirmed the convictions as well, although I
think it's like very much a side side thing. So right, right,
it's not whether somebody is guilty or not guilty. It's
whether the trial that they received, right, It's whether the
jury that they got who assessed these allegations against them
and will determine, right, whether or not these people go
(32:19):
to prison. It's about whether that jury was a fair
jury for them. Yes, right, So all the facts that
she's restating as if they are true are in fact
contingent upon whether or not the trial that we're talking
about was a valid one. And that's the whole thing,
exactly right, just backwards whatever. That's exactly right. And I
think the majority does this kind of smoke and mirrors
(32:42):
thing where it's emphasizing and highlighting and saying that it's
respecting the sanctity of the jury room. Right. This is
like a concept in right about the jury, about trial
level cases where what goes on behind closed doors as
a jury is delivery about a case is ultimately respected,
(33:03):
right because of the importance of having a jury of
your peers, of sort of a public accountability for somebody's wrongs.
This is in theory I don't I certainly don't agree
with like the way we're we're metting out so called
justice in our system. But that is part of the
point too, that like the sanctity, the supposed sanctity of
(33:24):
the jury room and juries, deliberations are worthy of the
utmost respect right, and that we shouldn't turn that over,
we shouldn't threaten that in any way. But there's no
treatment at all about the jurors themselves disrespecting the sanctity
(33:45):
of the process that they're called to do. Right, The
court is concerned about undermining trust in the system public
trust in juries, but allowing for cocaine use, allowing for
jurors to beletely intoxicated during a trial during deliberations, we
can assume. And so this sort of concern about undermining trust,
(34:07):
about respecting the sanctity they're talking in this really flowery
sort of mythologizing language about the processes that we have,
the legal processes that we have. But it's really in
order to subvert an argument about you know, what these
jurors were doing was wrong. It was against the sanctity
that we supposedly think we have right right. That's what's
(34:29):
so like jarring about this case is it's like a
direct contrast between like the mysticism surrounding the idea of
a jury of your peers in American legal rhetoric and
the reality of the situation, which is, you know, somewhere
between seven and twelve complete freaks being shoved into a
(34:51):
room and being told to like interpret laws that they
just learned right, apply them to complex sets off facts.
I mean, it's a ludicrous system. I'm not saying there's
a better one, but I mean the system in operation
is chaotic, full of misconduct and bad outcomes, and subject
to the whims of like any given person's psychological biases,
(35:15):
and the core to sort of engage in the project
of shoving away those sort of gross realities and trying
to maintain the mythos of the incredible magic of our
jury system, and how sort of naturally just it is, yeah, Peter,
And there was a part in the majority opinion that
(35:35):
was like I was just sort of like laughing when
I was reading, because towards the end when O'Connor is like,
you know, still trying to like avoid just admitting what
was going on here. And so she's talking a lot
about like this first affidavit from Vera where she was like, yeah,
a few people had beers and maybe napped. And then
(35:58):
she's like yes, And there was the second testimony, right,
this second thing she's like, but that was gathered in
violation of court order and local rules, like so what
like like who gives a shit? Like it's not really
like well, you know, you weren't supposed to talk to
them about that. First of all, the juror came to
(36:19):
the guy's door, like knocked on the fucking attorney's door
and was like, I'm feeling like I gotta get this
off my chest, right, yeah, yeah, I asked it. By
the way, the foeman, the fore woman who was drinking
wine every day, right, she called to the courthouse and
was like when's the hearing. I want to testify. I
feel I feel bad, like yes, and they're just like, yeah,
but but you weren't supposed to talk to them. The
(36:41):
court said not to talk to them after your last attempt.
So we're just going to ignore this. We're just going
to pretend like this didn't happen. You know. That's sort
of the court's whole mode here, is like we don't
want to know prioritizing local court rules over the sixth
Amendment of the Federal Constitution, right, putting their hands over
their years and going naa, na, na, I can't I
(37:02):
can't hear you. Yeah, yeah, exactly. And so the other
thing is like just reading this case and reading the
majority talking about the sanctity of the jury and deliberations
and all that. I can't help but think about jury nullification.
Jury nullification is this concept in American law, and I
think it's common in a lot of Western judicial systems. Actually,
(37:26):
the idea that juries have the power to essentially nullify
a law in specific instances or even generally. And they
can do that by just declining to convict someone, right,
they can return a not guilty verdict, right. Yeah. Instances
of this, like sort of historical instances that are I
think admirable, are like during like you know, the abolition era,
(37:49):
there were juries that would refuse to convict people under
the Fugitive Slave Act. You know, people who were charged
with aiding escaped slaves. They wouldn't convict them, right, And
you can imagine similar things happening now. I think it
actually did happen with people aiding migrants, right, leaving water
in the desert in Arizona and stuff like that, to
migrants crossing the border and things like that. This is
(38:12):
something that is like, uncontroversially within the power of American juries. Yes,
it's just in the nature of what powers they do have,
what protections they do have, a lot of what these
rules describe, protect people from coming out and saying, yeah, well,
jurors four and seven refuse to convict because they think
(38:33):
the laws unjust right, that's literally, like the rules we
are just discussing. That's precisely what they prevent juries from
testifying about to impeach their verdict and whatever. And yet
this is something that is actually like very strictly, I
don't want to say outright prohibited, but courts go to
a great extent to prevent Like if you say you're
(38:56):
familiar with jury nullification during vorder, you will not be
seated on that jury, right, right. And similarly, a defense
lawyer cannot tell the jury pool during vardier or during
a closing argument, for instance, about jury nullification. They can't
call for the jury to nullify. Yea, and yeah, just
so everyone knows, warder is jury selection they selection. Yes, Yes,
(39:19):
that's the part where they interviewed the jurors and asked
them a bunch of questions and stuff like that. And
jury instructions from the judges will often be done in
a way where they don't mention jury nullification but will
essentially say, if you nullify this, you are either violating
the law or violating the oaths you took. Put people
in a position where if you're aware of jury nullification beforehand,
(39:42):
you either have to lie under oaths in order to
get on the jury or not be seated at all.
Or if you learn about jury nullification while you're on
the jury, that is actually is admissible as like outside influence. Right,
That's something that courts will hear test Teimoni about it.
Sort of infamously happened in the trials a few years ago,
(40:05):
where you know, the Trump administration was trying to prosecute
all those protesters for his inauguration, and one of the
jurors and when those trials came back and said, hey,
somebody had written Google jury nullification on the inside of
a bathroom stall, and I did, and then I told
all the other jurors about it, and the judge was like, oh,
that's that's interesting. It was grounds for a mistrial actually,
(40:27):
just learning about what jury nullification is. Yeah, it's like
you get disqualified from a jury for learning about any
leftist concept. It's like, right, where use your hand? If
you're familiar with Karl Marx, you can leave like that.
By the way, that then end up being a mistrial
just because the prosecution didn't press it, but they were
losing everything. There was a lot of misconduct. It's that's
(40:48):
its own whole story. But here's the thing, like, if
you are even considering jury nullification, you are someone who
is taking your duty seriously right as a citizen, as
a juror, you're considering the lawed issue, it's impact on society,
you're considering the defendant, you're considering the circumstances. It is
(41:08):
thoughtful whether or not you agree with the concept of
jury nullification or its specific context in which it might
be applied right, Like, I think some people might argue,
like you know, O. J. Simpson getting off was an
instance of jury nullification that they don't agree with. Maybe not,
I don't know. Regardless, the main point is those jurors
are taking their duties seriously. Yes, like you don't have
(41:31):
to agree with their rationale or their conclusions to concede
that point. But that is not really protected in our system.
But getting fucking ripped, treating your duties so unseriously that
you are getting so fucked up that you need to
either snore a bunch of lines of cocaine to stay
(41:52):
awake or you're just passing out in the middle of trial.
That's something the court is more than willing to look past, right, yep.
Just to like circle back as a final thought. You know,
something we've talked about before is part of the conservative
legal project involves shifting discussions of substantive rights over to
(42:13):
discussions of procedure right, and the function of that is
to avoid having to defend directly the myriad injustices that
you see, especially in our criminal justice system every day.
In some cases, that means court's creating complex networks of
immunities for government officials and institutions accused of wrongdoing, which
keeps those cases out of court altogether. And in some
(42:36):
like this, it just means ignoring these substantive question and
focusing on the procedural one. If you ask most law
professors what this case is about, they'd say, it's about
the admissibility of juror testimony under the federal rules of evidence, right, Yeah,
But it's not really, it's about the fairness of this
guy's trial. And that's a discussion that conservatives just don't
(42:57):
want to have because the reality is that our criminal
justice system is grossly unfair and unjust in all sorts
of ways. And you can see the true locus of
the court's concern in the closing portion of the opinion
I mentioned earlier, where O'Connor is talking about how allowing
convictions to be challenged would undermine trust in the system.
(43:18):
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
(43:39):
that the goal of these procedural technicalities is to avoid
any dissection of the fairness of our legal system. And
you know this is in nineteen eighty seven. Over the
next sort of twenty years, judges like Scalia went even further,
not only rigidly focusing on proceduralism in criminal law, but
(43:59):
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
(44:21):
the law is to focus on technicality and ignore your
normative conception of what constitutional rights should actually be. A
big part of the left legal project, if there is one,
has to be inverting that and talking about like a
rights centric jurisprudence, like centralizing constitutional rights what we believe
(44:46):
a broad conception of those rights should be, and making
them superior to a procedure, which they absolutely must be
if you believe in the Constitution, as like you know,
the preeminent document in our law. It's the only way
you could possibly conceive of it in a way that
makes any sense. And conservatives have sort of quietly done
(45:07):
away with that, especially in areas of the constitution that
happened to benefit criminal defendants. That's right, all right, Well
that was the story of the world's coolest jury. Damn
what a this is such an eighties thing. Yeah, we
did let the ladies off easy. By the way, we
(45:29):
didn't mention in the facts that there were also two
ladies who were drinking mixed drinks. Oh that's right, Yeah, yeah,
the cocktail got to get that in there. I love that.
There was just like a wide array, Like it's not
like someone brought beer a couple of days and they're like,
whoa dude, that dude's bringing beer. Like, right, someone's got beer,
(45:49):
someone's got wine. Someone's like, you know what, no, I'm
gonna bring mixers. This is a full on house party, dude. Yeah, yeah,
we've got to be bro We got wine, we got
tequila and soda. Like what is going on? People drink
so much that they know each other's drink orders. Harry, Hank,
(46:11):
John and Terry they split beer vera gets the cab,
they see gets the cosmos. How do you get so
comfortable with the rest of the jury that you're like
yodio party, Yeah, let's turn it out. It's unbelievable. Next
(46:36):
week premium episode an update on the state of legal journalism.
Last summer summer twenty twenty one, we did an episode
about how fucking awful how legal media coverage had been
that year, and we're gonna do a quick update because
in some ways it's gotten materially better. I think they listened.
(46:56):
That's right, we're famous now and people are listening. Then
there's been some setbacks, shall we say, the exposure of
Nina Tottenberg as a complete and utter access journalism hack.
You know, some CNN panels that are perhaps not the
most impressive lineups I've ever seen in my life. But
we're gonna We're gonna convene and discuss talk about who's
(47:20):
smart and who's stupid. Follow us on Twitter at five
to four Pod, Subscribe to our Patreon, Patreon, dot com,
slash five four pod all spelled out access to premium
and add free episodes, special events, access to our slack.
(47:40):
We'll see you next week. Five to four is presented
by prolog Projects. Rachel Ward is our producer, Leon Nafak
and Andrew Parsons provide editorial support. Our production manager is
Percio Arlin and our assistant producer is our lean A Revelo.
Our artwork is by ten Blanks at Chips and why in.
(48:02):
Our theme song is by Spatial Relations. It is funny
that someone thought of the idea you only get so
many bites at the apple. It's like, I feel like
people should be allowed to take as many bites of
an apple as they want. Frankly, it seems like a
(48:24):
waste of an apple. Who do they think they are
that they can finish that? I think you get that
right now, and you whip it at someone on the
side of the road and U
Hi, everyone, It's me Josi Duffie Rice, host of Unreformed.
Ahead of our last episode, which airs on March eighth,
we're sharing an episode of another podcast. I'm a huge
fan of five to four. This one is a favorite
of mine. The three hosts are amazing, so funny and
incredible at talking about how terrible the Supreme Court is.
(00:20):
Five to four is totally a bit different from Unreformed,
but it tackles some of the same issues like access
to justice, race, etc. Here's a little bit more about
the show. Five to four is a podcast about how
much the Supreme Court sucks. Every week, five to four
takes on the Supreme Court's worst decisions about the most
important issues like police abuse, abortion access, the Second Amendment,
(00:41):
and voting rights. Each episode covers a Supreme Court case
that reveals the ways in which the justices contort the law,
make stupid legal errors, and generally hack away at our
democracy as the Court shifts further and further to the right.
Five to four is your guide to how this supposedly
a political institution wields its power. Fine five to four
(01:02):
wherever you get your podcasts, and we're going to drop
one of their episodes here for you to listen, to
enjoy and meet us back here on Wednesday, March eighth
for the series finale of Unreformed. Well here. Argument First
This morning at number eighty six one seventy seven Anthony
rat Tanner and William M conover Petitioners versus the United States.
(01:25):
Hey everyone, this is Leon from Fiasco and Prologue Projects.
On this week's episode of five to four, Peter Rhannon
and Michael are talking about Tanner v. United States. It's
a sixth Amendment case about whether or not you're right
to a trial by jury has been compromised if the
jurors were consuming large amounts of alcohol. We're utilizing and
(01:47):
dealing in marijuana, and we're ingesting cocaine throughout the course
of a complex criminal proceeding. In a five to four
decision written by Justice Sandra Day O'Connor, and the Court
proclaimed that the receeedings of a jury room are so
sacrosanct that even if more than half the jury is
high and drunk, their verdict must stand. This is five
(02:08):
to four, a podcast about how much the Supreme Court suns.
Welcome to five to four, where we dissect and analyze
the Supreme Court cases that have infested our law, like
lantern flies have infested New York. I am Peter, I'm
here with Michael everybody and Rhiannon. Hello. What is a
(02:31):
lantern fly? Like a lightning bug? They're a big problem
in like Philly, New York right now. Oh, they're the
ones that, like the Philly local government was like on site.
You fucking kill these things when you see that? Yeah, yeah,
So they're like indigenous to China. Every like decade or so,
some insect that has no natural predators makes its way
over from China and just like ruin some ecosystems, and
(02:56):
they're all over New York right now. And like I
had to change my route the grocery store because there
is a building that is like teeming with them, like
a almost a skyscraper, and when you walk by it,
like the ground is littered with their corpses. One fell
into my like collar, oh god, And I had to
(03:19):
try to act like I was not absolutely losing my mind.
It's like, oh one of them fell, I guess I'll
just casually get this out. And I was like internally
just absolutely losing my ship. Anyway, kill them all. Yeah,
I've been stomping on them doing my best. Today's case
(03:41):
Tanner v. United States. This case is sort of about
the right to a jury, but specifically, you know, it's
about if you're on trial and the jury deliberating over
your guilt or innocence is just wasted out of their minds,
absolutely rips on alcohol, cocaine, and marijuana. Is that a
(04:04):
violation of your right to a jury trial? And you
maybe get some testimony about that? The court, in a
five to four decision written by Sandra Day O'Connor, because
this is nineteen eighty seven, said no, you cannot get
any testimony about that, and this is maybe even okay,
this is hard. They harped on an evidentiary rule to
(04:29):
hold that the evidence of the jury's rampant drug and
alcohol use was not admissible in court, making this another
in the long list of cases where the court prioritizes
procedural technicality over substantive constitutional rights. I'm gonna let you
run wild on the background. Here are you turning this over? Yeah? Okay,
(04:50):
all right. This case comes out of a federal criminal
trial took place in Florida. That's right, Florida man strikes again.
Homestead Yeah, this time, it isn't the criminal defendants who
are being Florida man, It is the jury, that's right,
all right. So Anthony Tanner and William Conover were on
(05:11):
trial for mail fraud and conspiracy to commit fraud. They
were convicted by the jury, but before they were sentenced,
one of the lawyers for Tanner and Conover got an
alarming phone call. A juror named Vera Asbell called defense
counsel and told him that she needed to get something
off her conscience. This was a confession of sorts, father,
(05:35):
I have witnessed some sin. She told the attorney that
at the trial, some of the mail jurors were drinking
during the day, you know, as the trial is going on,
and then a few of them would sleep through the
afternoons while the trial is happening in the courthouse. Men,
am I right? Yeah, it was the mail jurors that
(05:56):
she pointed out. Yeah. She told defense counsel that another juror,
Tina Franklin, could confirm these accusations, could confirm what she
was saying. The ladies on the jury are a guest,
you know, there's one who gets into it. Well, yeah,
at least at first that's how it seems, right, yeah, exactly. Now,
(06:17):
the district court refused to have an evidentiary hearing on this.
This would be the type of hearing where the court
digs into what happened, here's testimony from people who were there,
who know what happened, and the court would be deciding
whether the defendant's rights were violated. Right. They said no, because,
according to the court, the jurors testimony would be inadmissible
(06:39):
under a certain federal evidentiary rule. But that wasn't the
end of it. It wasn't just that they were drinking.
A few months later, the initial allegations by Vera Asbell
were supplemented by another juror named Daniel Hardy. Hardy told
the defense counsel that fully seven members of the jury
(07:01):
out of twelve people solid majority more than half, including himself,
with drinking alcohol during lunch. Four male jurors shared up
to three pitchers of beer on a daily basis. Okay,
Hardy himself said that he quote consumed alcohol all the time.
The female juror, who was four person, would drink a
(07:25):
leader of wine at lunch every day. The men did
take it up a notch though. The four jurors, the
four dudes who were drinking pitchers every day at lunch.
They also smoked marijuana during the trial about every day.
One of the jurors allegedly sold sold a qpe a
(07:47):
quarter pound of marijuana to another juror inside the courthouse.
The lord, this is the eighties. You could like get
the death penalty for that. Two of the jurors nor
died a couple lines of cocaine on several occasions during
the trial. Sometimes during the trial, two of the jurors
were ripped off of all three substances. They were drinking,
(08:11):
they were smoking marijuana, and they were snorting coke. Good.
The eighties were wild, you know what a time one
of the jurors talked about how he was quote flying
during the trial. That was his characterization. And I think
he's the one where Hardy said like he would go
(08:31):
to the bathroom and come back sniffling like he had
a cold. Yeah, all the time. And then he had
like a little contract and he had a little container
being like in court on trial for your life, and
you like glance over at the jury and you to
see a dude in a khole. We're not far from
that here. Drooling a little bit. Yeah, yeah, yeah. At
this point, the defense lawyers file another request for an
(08:53):
evidentiary hearing. You know, look, Judge, this ship is fucking crazy.
The court needs to hear about it decide whether something
really serious enough happened to call the verdict into question,
right right, The court said no again, testimony from any
of the jurors is inadmissible, and so the defense lawyers
appealed all the way to the Supreme Court. And people
(09:17):
complain about getting stuff with I know, right, imagine like
just being like, oh, jury time, right, I forgot the code.
Jury's gonna suck today. Okay, we're laughing about all of
(09:37):
this stuff. I think it's objectively funny that some people
got zuited to like watch a trial or whatever. But yeah,
we should clarify, like, obviously this kind of scares me
as as a defense attorney, Like this is a really
serious matter. These people were deciding the fate of these
two men's lives, and yeah, we don't think it's cool
that the jury took it this way. That's right. The
(10:00):
the denial of civil rights is not funny. But sometimes
when you're going from civil rights to no civil rights,
some funny stuff happens along the way. That's all We're exactly.
It's a good way to put it all, right, So
let's zoom way out here. The sixth Amendment guarantees the
right to a trial by jury, and not just a jury,
(10:20):
but an impartial jury. Yeah. Of course, there may, in
some circumstances be a question of whether the jury was
acting appropriately where they subject to undue influence, for example,
or perhaps just demonstrably incompetent in some way that would
functionally deny you your constitutional right to an impartial jury.
(10:41):
So there are avenues by which you can impeach the jury,
meaning challenge the validity of the jury's findings. Fundamentally, this
case is about the defendant attempting to impeach the jury
verdict on the basis that the jury was wasted right,
that perhaps his right to a jury trial was being
(11:01):
violated here. Yeah, But the threshold question, as Rhannon mentioned,
is actually about the rules of evidence, the Federal Rules
of Evidence Rule six H six B. The Federal Rules
of Evidence are the laws governing the use of evidence
in federal court, and this rule establishes some pretty stringent
guidelines for when you can use a juror's own testimony
(11:24):
to impeach a jury verdict. Remember, the only evidence we
have here is testimony from other jurors, and there are
rules governing when jurors can testify about the jury itself,
because you know, sanctity of the jury, etc. Peter, you
just said, like the sanctity of the jury, We should
probably explain that a little bit. So, Yeah, there's this
(11:45):
kind of principle in the law that like what happens
in the jury room is is sort of this this
sacred thing, and that like outside interrogation, interrogation after the
fact over like what people talked about in the jury
room to reach their deliverer ration. You know, that's kind
of inappropriate because you want the jury to be respected,
(12:05):
a jury's verdict to be respected. You know. The idea
is that a jury of someone's peers, you know, people
who come from the public, who have all different kinds
of experiences, come together and decide on somebody's guilt in
a trial. So when the court talks about like the
sanctity of the jury, all of that kind of stuff,
(12:26):
it's it's this idea really that jury deliberations are supposed
to be respected because it is an intensive thing that
the jury goes through, and intensive questions that they answer,
which should be respected and shouldn't be picked apart after
the fact. That's right. So that's what the majority, written
by Sandrada O'Connor grabs onto here. The allegations about the
(12:51):
jury being drunk and high, they come from juror testimony,
meaning they come from the jury itself, and the Federal
Rules of Evidence allow for the admission of juror testimony
in very limited circumstances. So let's walk through the rule
a little bit, and I admit it's a little bit confusing.
Don't worry about it. You don't need to like completely
(13:13):
comprehend it. Right. So Rule six or six B of
the Federal Rules of Evidence says that jurors cannot testify about,
quote the effect of anything on his or another juror's
mind or emotions as influencing him to assent or descent
from the verdict. So, okay, that's a little weird, right,
(13:34):
The effect of anything on his or another juror's mind
as influencing him to assent or descent from the verdict.
Does that apply to drugs? Sort of unclear? Right? Right?
In the most literal sense, you could say that maybe
it does. However, it's also pretty clear if you look
at the context of the rule that what it's really
(13:56):
trying to get at is like juror's mental the liberations
one way or another, right, right, right, And in terms
of quote, anything on the juror's mind that influences them
to assent or discent. You know, I read that kind
of in a plain language way to mean like anything
(14:16):
from the trial, right, A piece of evidence, a witness
is demeanor. Right, those are the things on the mind
of a juror that would influence them to assent or
dissent from the verdict. And I think that's what the
rule is talking about. And there's also a question of
whether drugs or alcohol influence someone to assent or descent
(14:36):
from the verdict. Right. They don't push you in one direction.
What they do is influence your decision making, right, right,
which seems like it's a separate thing. Yeah. Now there's
other parts of this rule. It also says they can't
testify about a juror's mental processes, and there are exceptions.
There can be juror testimony about whether outside influence was
(14:58):
brought to bear on any juror. Presumably that mostly means
bribes and threats. There's also a question here of whether
outside influence in the most literal sense would include drugs. So,
but the fundamental question is whether all of this means
that a juror cannot provide testimony about drug and alcohol
use by other jurors. If the testimony is admissible, then
(15:20):
Tanner probably needs a new trial at the end of
the day, right. If not, he's out of luck. And
so what the majority does is look at the common
law history of juror testimony admissibility. In other words, the
rules of evidence are a federal law, but the court
is looking back at what courts did historically in order
to interpret that law, which is always a little awkward, right,
(15:41):
because if we're going to use the historical common law
to interpret the statute, it starts to defeat the purpose
of having a statute at all at some point. But whatever. Anyway,
the Court says that historically there's an important dichotomy here.
There are things that happen internally within the jury room,
and those are private matters that can't be testified about,
(16:03):
and then there are things that happen external to the
jury room, like bribes or threats, and those can be
testified about drug and alcohol uses within the walls of
the jury room, according to Sandra Day O'Connor, So jurors
can't testify about it. Now, by contrast, what the descent
says is No, that's not the relevant distinction. What the
(16:24):
rule is meant to do is protect the confidentiality of
jury deliberations. So the distinction that we should be worried
about is not whether it's in the jury room or
outside of the jury room, but whether the testimony in
question is about jury deliberation or not. And this is
not right. This is about drug and alcohol use during
(16:45):
the trial before deliberation, right, So the rule doesn't apply
and the jurors testimony should be admitted into evidence. Yeah, Peter,
I'm glad that you explain what Sandra day O'Connor is
kind of doing here. She's saying that something that happened
inside the jury room internal to jury deliberations, that there
cannot be testimony about what happened there in those circumstances.
(17:10):
Something that happens outside external to the jury room, those
things the court can here testimony about, right. But I
just want to point out, like the descent obviously explains that,
like this internal external distinction doesn't really work. You know,
the distinction should be whether or not the testimony is
about deliberations or not. But I also think it's worth
(17:30):
highlighting this internal external distinction that the majority does is
not only kind of silly because as the Descent points out,
it's not a sort of meaningful distinction in the way
that it should be, but Sandra Day O'Connor is also
applying this rule that she just made up. She's applying
it incorrectly because we're not talking about events that happened
(17:52):
inside the jury We literally are talking about events that
are external to the jury room. They were doing drugs
and drinking during the trial outside of the jury room.
They were not deliberated, right, they were still in the
metaphorical jury room. That's what you're not. I'm sorry, I'm
not in the brain jury room that Sandra day O'Connor is.
(18:14):
That's genuinely what she must mean, right, that it's like
they're in the jury space, you know, right, right, exacternal
external distinction was so sort of dumb because it's like
it's clear what she's trying to get at, which is
like you can't come out afterwards and be like, well, yeah,
we let this guy off. But that's because a lot
of the jurors were sexist and so they thought all
(18:35):
the female witnesses were lying or whatever, right, right, but
somebody got intimidated like in their home or something. Of course,
you can testify about that. That that makes perfect sense
and is sort of internal external, But is it a
deliberation or not? Is I think the more important thing, right,
(18:57):
like exactly, and what Justice Marshall is saying, yeah, that's
what you're trying to capture here, and not only is
she not capturing it, but then her like bad heuristic
is being applied stupidly, right, Like that's like this is
all happening outside the jury room. They're getting trashed at
Applebee's or whatever. You know. You can conceptualize the sanctity
(19:19):
of the jury quote unquote in different ways. I think
the more obvious way is the way that the descents
doing it, where you're saying, yeah, like the jury deliberation
is important and needs to be protected, and we can't
have everyone testifying about what goes on, right yeah, right.
What O'Connor is doing is being like, yeah, anything the
jury does is sacred, and it's like, why would that
(19:42):
be the rule that it just doesn't make a lot
of practical sense. Smoking a joint in the fucking loading
bay at the Ramada Inn or whatever down the street,
that's external, right, Exactly if a juror got threatened outside
of the courtroom, right at home concerning the jury, or
saw something on the news that might prejudice them, right,
(20:03):
are those really internal? You can make the argument that
they're external. Right, So this distinction is doing no work.
It just doesn't make a lot of sense. And more importantly,
you can almost sort of put it aside, right, because
it does feel like it's beside the point here. The
point should be that this is a violation of Tanner's
(20:23):
constitutional right to a jury right. The jury was impaired
to the point where most of them probably wouldn't be
allowed to legally operate a forklift, let alone decide whether
or not someone should be a free human being, you know. Right,
And there's this pretty basic reality here that the majority
seems to ignore. If the jury were literally unconscious from
(20:45):
drugs and drinking pass that on the floor, not able
to process information at all for the duration of the trial,
I would hope that we could all agree. Sanderday O'Connor
included that that does not satisfy the constitutional right to
a jury. So there must be some place on the
spectrum between stone sober jury and completely unconscious jury where
(21:07):
we all have to admit that this no longer qualifies
as a constitutionally adequate jury. Right. Where exactly on the
spectrum that line is might not be an easy question
to answer, but it's the court's obligation to answer it,
not when the federal rules of evidence stand. Well, yeah,
that's what's happening is the court is essentially acting like
this is just a case about evidentiary rules when it's not.
(21:31):
It's about whether this man received a constitutionally fair trial,
and if he didn't, then it doesn't matter or shouldn't
matter what the federal rules of evidence say. Yeah. Right.
One thing I wanted to point out is like, this
is nineteen eighty seven when this case is coming down,
and there's just like there's no textualism at all. Right now,
we've talked about how the conservative legal movement sort of
(21:52):
built up these ideas like textualism and originalism over time,
and this is like mid to late eight, and you
have a statute and you're trying to interpret it, and
at no point does someone just say, well, let's look
at the words of the statute and like think about
what the most literal meaning of it is and then
we'll work from there. That just wasn't how the analysis
(22:14):
was done. And it's just sort of jarring when you've
been reading like modern jurisprudence that you just don't see
it at all, and goes to show how successful the
conservatives have been at influencing the way that the laws analyze.
It's just sort of wild. Yeah, extensive discussion of legislative
history of pages of it, yes, which they found conclusive. Yeah,
but including in the Descent Right. The Descent has a
(22:37):
pretty extensive treatment of legislative history as well, but comes
out the other way. One final item worth discussing the
opinion wraps up by saying that although allowing for investigations
into jer misconduct would sometimes uncover misconduct, it's not worth
it because it would basically be such an administrative hassle.
(22:58):
O'Connor says that frequent challenging of verdicts based on juror
misconduct would quote disrupt the finality of the process. Yeah,
and just to jump in here, the Court does reference
this sort of principle of like finality of a verdict, right,
that we have to be able to trust that the
jury's decision is final, that we can't go back after
(23:23):
the fact and pick apart what the jury did in
the jury room and you know, sort of upend jury verdicts. Right.
The public has to be able to trust that jury
decisions are the decisions. And so that's what the kind
of finality principle means. But we've mentioned before that especially
(23:43):
in criminal law, judges the Supreme Court over the course
of years generations have referenced this kind of you know,
high minded principle of finality of jury verdicts, but only
in service of a higher principle to federal judges, which
is not wanting to review these cases. Right, That's right.
(24:07):
You see it kind of trotted out and used by
the Supreme Court in many different kinds of cases basically
as like a reason why we can't review what happened, right, right.
Conservative judges love it because it is something that it
makes sense that eventually you run out of bites at
the apple, right, that process runs out, you've done all
your state appeals, you've done your constitutional peels, blah blah
(24:29):
blah blah blah all that. With conservatives sometimes they're like,
that's it right, right, Like you have one bite at
the apple and they're like, that's it's done, right exactly.
Finality is just to them, it's an excuse to put
an end to the proceedings. Yes, it's just like a
vocabulary that they speak when they want to end the proceeding.
For some like someone is claiming that their civil rights
are being violated, and conservatives are like, well, that would
(24:51):
be against the principle of finality, which means I don't
want to keep going with this shit, right exactly, I
don't want to look at this. Yeah. It's also I
should I should mention that it's a little bit adjacent
to like victims rights movements, which are very aligned with
like prosecutors and stuff. Right, there are sort of groups
that are basically aggressive prosecution advocacy organizations that sort of
(25:18):
portray themselves as being about victims rights, right, And then
the argument is like, well, the victims and their families
need finalities so they can sort of move on, yes, right,
which is not you know, in and of itself totally untrue,
but the idea that it should trump someone's civil rights, right,
I just invest bullshit? Right. Also funny here where the
(25:41):
victim is like the federal government getting defrauded out of
a few million dollars, Like it's some like grieving widow
at home or anything. The government needs to move on.
The AG's office needs to be able to sleep it,
you know, they need they need to put us behind them. Yeah.
And they also say that public trust in the jury
(26:03):
system would be undermined if we scrutinize juror conduct too much,
which is just another way of saying like, if we
revealed how much jurm as conduct there is, people would
not trust the system. And it's like, yeah, that does
sound right, yeah, yeah, right, yeah yeah. If we said
that getting absolutely lit during a trial is a problem
(26:27):
for the jury, then yeah, people might question the efficacy
of jury. It's I mean, I do agree that that
would undermine trust in the jury system. I guess I
don't agree that the solution to that is to bury
all the evidence of misconduct and say it's inadmissible. That's
right to each his or her own. Sandra Day O'Connor,
(26:48):
this is a good spot. It feels like to take
a break and we're back. We should talk about the descent.
This is written by Thurgood Marshall. He's joined by Justices Stevens,
Blackman and Brent In. So, you know, just want to
point out this is a five four decision. The court
is really split here, and you know the Conservatives take
the day once again. But you know, Marshall really responds
(27:11):
to the rules six or six B analysis that the
majority goes with with his own, like I mentioned, his
own intensive analysis of the rule, but he comes out differently.
He goes through legislative history, he goes through the policy considerations,
he goes through the notes on the legislative history, the
comments on the adoption of the rule. I mean, there's
(27:31):
really sort of a picking a part of this rule,
how it came to be, the purpose of the rule,
you know all of that. And you know what I
like too is that Marshall points out these allegations about
what the jury was doing. These are provable allegations, Like
you're not talking about what's going on in someone's head
in terms of how they think about the case. You're
(27:52):
not talking about the jury deliberations, the deliberations about the case,
their conversations about the facts that evidence that they heard,
their thought processes, their agreements and disagreements in the jury
room as they came to their verdict, whether or not
the jury was ingesting substances, whether they were pardon me,
but gone off that loud Again, Marshall says, we can
(28:18):
hear testimony about that and determine whether or not it happened. Right,
there's a good quote here from the descent. Petitioners are
not asking for a perfect jury. They're seeking to determine
whether the jury that heard their case behaved in a
manner consonant with the minimum requirements of the sixth Amendment.
If we deny them this opportunity, the jury system may survive,
(28:39):
but the constitutional guarantee on which it is based will
become meaningless. So just as Marshall does put in this
sort of a reference to the constitution, a reference to
the sixth Amendment, which is, you know, your right to
an impartial jury trial, among other things. But we should
note that, like Peter said, uptime with the court kind
(29:01):
of latching on to the evidentiary rule and having their
analysis come out of the rule means that the constitution
is kind of ignored here, And there is the point that, like,
the question presented to the court is not whether Tanner
and Conover got their constitutional rights violated, it's just whether
(29:22):
the court should have given them an evidentiary hearing about
ger misconduct. But still, I mean that really obvious skates
the really intense, substantial risks to constitutional rights that this
case brings up, right, And nowhere in the majority is
that really discussed the sixth Amendment. Marshall includes it in
(29:43):
what I would say is like dicta of the dissent right.
But there isn't an intensive constitutional analysis here. This is
about the rules of evidence, and that's kind of it. Yeah,
And I thought like this also tied into he had
a pretty good point about the majority very much down
laying the sort of severity of this jer misconduct, right, like,
(30:05):
oh yeah, questioning whether like these jurors, even if you
know this evidence was admissible, whether this would be sufficient
to prove death A jurors were not competent, right, right.
And O'Connor does so by really trying to sweep under
the rug all the marijuana, cocaine and other more salacious
allegations and and rely on just like, oh, so what
(30:29):
some people had a few beers sort of sort of
maybe somebody knotted off here and there. But it's like, look,
even if one person was ripped for one day, like
that's that's a day where your juror, you had a
juror who was not present mentally right, was not was
not there like right, And so that's like, I don't
(30:51):
know how that could be anything but a constitutional violation. Right,
a juror so fucked up that they are not like
mentally present, you're not getting your six Amendment rights vindicated. Yeah,
And then another thing is just that, like, you know,
you make the point, Michael, that O'Connor really downplays the
juror misconduct. That's completely true. You only get the details
(31:13):
about the allegations what the jurors were actually up to.
You only get that in Marshall's dissent. And then I
also wanted to point out that again we've seen this
numerous times, especially in criminal cases. O'Connor's majority starts with
a detailed rundown of the crimes that Tanner and Conover
(31:34):
are accused of. The First, I want to say, you know,
maybe ten paragraphs of this opinion are about the mail
fraud and the conspiracy to commit fraud, which is what
the defendants are accused of. It has nothing to do
with this Supreme Court case and the question in front
of them. Right, sure, you might feel bad for this guy.
What if I told you he committed mail fraud? Maybe
(31:58):
you feel bad for him now, well I do. I
do think they affirmed the convictions as well, although I
think it's like very much a side side thing. So right, right,
it's not whether somebody is guilty or not guilty. It's
whether the trial that they received, right, It's whether the
jury that they got who assessed these allegations against them
and will determine, right, whether or not these people go
(32:19):
to prison. It's about whether that jury was a fair
jury for them. Yes, right, So all the facts that
she's restating as if they are true are in fact
contingent upon whether or not the trial that we're talking
about was a valid one. And that's the whole thing,
exactly right, just backwards whatever. That's exactly right. And I
think the majority does this kind of smoke and mirrors
(32:42):
thing where it's emphasizing and highlighting and saying that it's
respecting the sanctity of the jury room. Right. This is
like a concept in right about the jury, about trial
level cases where what goes on behind closed doors as
a jury is delivery about a case is ultimately respected,
(33:03):
right because of the importance of having a jury of
your peers, of sort of a public accountability for somebody's wrongs.
This is in theory I don't I certainly don't agree
with like the way we're we're metting out so called
justice in our system. But that is part of the
point too, that like the sanctity, the supposed sanctity of
(33:24):
the jury room and juries, deliberations are worthy of the
utmost respect right, and that we shouldn't turn that over,
we shouldn't threaten that in any way. But there's no
treatment at all about the jurors themselves disrespecting the sanctity
(33:45):
of the process that they're called to do. Right, The
court is concerned about undermining trust in the system public
trust in juries, but allowing for cocaine use, allowing for
jurors to beletely intoxicated during a trial during deliberations, we
can assume. And so this sort of concern about undermining trust,
(34:07):
about respecting the sanctity they're talking in this really flowery
sort of mythologizing language about the processes that we have,
the legal processes that we have. But it's really in
order to subvert an argument about you know, what these
jurors were doing was wrong. It was against the sanctity
that we supposedly think we have right right. That's what's
(34:29):
so like jarring about this case is it's like a
direct contrast between like the mysticism surrounding the idea of
a jury of your peers in American legal rhetoric and
the reality of the situation, which is, you know, somewhere
between seven and twelve complete freaks being shoved into a
(34:51):
room and being told to like interpret laws that they
just learned right, apply them to complex sets off facts.
I mean, it's a ludicrous system. I'm not saying there's
a better one, but I mean the system in operation
is chaotic, full of misconduct and bad outcomes, and subject
to the whims of like any given person's psychological biases,
(35:15):
and the core to sort of engage in the project
of shoving away those sort of gross realities and trying
to maintain the mythos of the incredible magic of our
jury system, and how sort of naturally just it is, yeah, Peter,
And there was a part in the majority opinion that
(35:35):
was like I was just sort of like laughing when
I was reading, because towards the end when O'Connor is like,
you know, still trying to like avoid just admitting what
was going on here. And so she's talking a lot
about like this first affidavit from Vera where she was like, yeah,
a few people had beers and maybe napped. And then
(35:58):
she's like yes, And there was the second testimony, right,
this second thing she's like, but that was gathered in
violation of court order and local rules, like so what
like like who gives a shit? Like it's not really
like well, you know, you weren't supposed to talk to
them about that. First of all, the juror came to
(36:19):
the guy's door, like knocked on the fucking attorney's door
and was like, I'm feeling like I gotta get this
off my chest, right, yeah, yeah, I asked it. By
the way, the foeman, the fore woman who was drinking
wine every day, right, she called to the courthouse and
was like when's the hearing. I want to testify. I
feel I feel bad, like yes, and they're just like, yeah,
but but you weren't supposed to talk to them. The
(36:41):
court said not to talk to them after your last attempt.
So we're just going to ignore this. We're just going
to pretend like this didn't happen. You know. That's sort
of the court's whole mode here, is like we don't
want to know prioritizing local court rules over the sixth
Amendment of the Federal Constitution, right, putting their hands over
their years and going naa, na, na, I can't I
(37:02):
can't hear you. Yeah, yeah, exactly. And so the other
thing is like just reading this case and reading the
majority talking about the sanctity of the jury and deliberations
and all that. I can't help but think about jury nullification.
Jury nullification is this concept in American law, and I
think it's common in a lot of Western judicial systems. Actually,
(37:26):
the idea that juries have the power to essentially nullify
a law in specific instances or even generally. And they
can do that by just declining to convict someone, right,
they can return a not guilty verdict, right. Yeah. Instances
of this, like sort of historical instances that are I
think admirable, are like during like you know, the abolition era,
(37:49):
there were juries that would refuse to convict people under
the Fugitive Slave Act. You know, people who were charged
with aiding escaped slaves. They wouldn't convict them, right, And
you can imagine similar things happening now. I think it
actually did happen with people aiding migrants, right, leaving water
in the desert in Arizona and stuff like that, to
migrants crossing the border and things like that. This is
(38:12):
something that is like, uncontroversially within the power of American juries. Yes,
it's just in the nature of what powers they do have,
what protections they do have, a lot of what these
rules describe, protect people from coming out and saying, yeah, well,
jurors four and seven refuse to convict because they think
(38:33):
the laws unjust right, that's literally, like the rules we
are just discussing. That's precisely what they prevent juries from
testifying about to impeach their verdict and whatever. And yet
this is something that is actually like very strictly, I
don't want to say outright prohibited, but courts go to
a great extent to prevent Like if you say you're
(38:56):
familiar with jury nullification during vorder, you will not be
seated on that jury, right, right. And similarly, a defense
lawyer cannot tell the jury pool during vardier or during
a closing argument, for instance, about jury nullification. They can't
call for the jury to nullify. Yea, and yeah, just
so everyone knows, warder is jury selection they selection. Yes, Yes,
(39:19):
that's the part where they interviewed the jurors and asked
them a bunch of questions and stuff like that. And
jury instructions from the judges will often be done in
a way where they don't mention jury nullification but will
essentially say, if you nullify this, you are either violating
the law or violating the oaths you took. Put people
in a position where if you're aware of jury nullification beforehand,
(39:42):
you either have to lie under oaths in order to
get on the jury or not be seated at all.
Or if you learn about jury nullification while you're on
the jury, that is actually is admissible as like outside influence. Right,
That's something that courts will hear test Teimoni about it.
Sort of infamously happened in the trials a few years ago,
(40:05):
where you know, the Trump administration was trying to prosecute
all those protesters for his inauguration, and one of the
jurors and when those trials came back and said, hey,
somebody had written Google jury nullification on the inside of
a bathroom stall, and I did, and then I told
all the other jurors about it, and the judge was like, oh,
that's that's interesting. It was grounds for a mistrial actually,
(40:27):
just learning about what jury nullification is. Yeah, it's like
you get disqualified from a jury for learning about any
leftist concept. It's like, right, where use your hand? If
you're familiar with Karl Marx, you can leave like that.
By the way, that then end up being a mistrial
just because the prosecution didn't press it, but they were
losing everything. There was a lot of misconduct. It's that's
(40:48):
its own whole story. But here's the thing, like, if
you are even considering jury nullification, you are someone who
is taking your duty seriously right as a citizen, as
a juror, you're considering the lawed issue, it's impact on society,
you're considering the defendant, you're considering the circumstances. It is
(41:08):
thoughtful whether or not you agree with the concept of
jury nullification or its specific context in which it might
be applied right, Like, I think some people might argue,
like you know, O. J. Simpson getting off was an
instance of jury nullification that they don't agree with. Maybe not,
I don't know. Regardless, the main point is those jurors
are taking their duties seriously. Yes, like you don't have
(41:31):
to agree with their rationale or their conclusions to concede
that point. But that is not really protected in our system.
But getting fucking ripped, treating your duties so unseriously that
you are getting so fucked up that you need to
either snore a bunch of lines of cocaine to stay
(41:52):
awake or you're just passing out in the middle of trial.
That's something the court is more than willing to look past, right, yep.
Just to like circle back as a final thought. You know,
something we've talked about before is part of the conservative
legal project involves shifting discussions of substantive rights over to
(42:13):
discussions of procedure right, and the function of that is
to avoid having to defend directly the myriad injustices that
you see, especially in our criminal justice system every day.
In some cases, that means court's creating complex networks of
immunities for government officials and institutions accused of wrongdoing, which
keeps those cases out of court altogether. And in some
(42:36):
like this, it just means ignoring these substantive question and
focusing on the procedural one. If you ask most law
professors what this case is about, they'd say, it's about
the admissibility of juror testimony under the federal rules of evidence, right, Yeah,
But it's not really, it's about the fairness of this
guy's trial. And that's a discussion that conservatives just don't
(42:57):
want to have because the reality is that our criminal
justice system is grossly unfair and unjust in all sorts
of ways. And you can see the true locus of
the court's concern in the closing portion of the opinion
I mentioned earlier, where O'Connor is talking about how allowing
convictions to be challenged would undermine trust in the system.
(43:18):
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
(43:39):
that the goal of these procedural technicalities is to avoid
any dissection of the fairness of our legal system. And
you know this is in nineteen eighty seven. Over the
next sort of twenty years, judges like Scalia went even further,
not only rigidly focusing on proceduralism in criminal law, but
(43:59):
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
(44:21):
the law is to focus on technicality and ignore your
normative conception of what constitutional rights should actually be. A
big part of the left legal project, if there is one,
has to be inverting that and talking about like a
rights centric jurisprudence, like centralizing constitutional rights what we believe
(44:46):
a broad conception of those rights should be, and making
them superior to a procedure, which they absolutely must be
if you believe in the Constitution, as like you know,
the preeminent document in our law. It's the only way
you could possibly conceive of it in a way that
makes any sense. And conservatives have sort of quietly done
(45:07):
away with that, especially in areas of the constitution that
happened to benefit criminal defendants. That's right, all right, Well
that was the story of the world's coolest jury. Damn
what a this is such an eighties thing. Yeah, we
did let the ladies off easy. By the way, we
(45:29):
didn't mention in the facts that there were also two
ladies who were drinking mixed drinks. Oh that's right, Yeah, yeah,
the cocktail got to get that in there. I love that.
There was just like a wide array, Like it's not
like someone brought beer a couple of days and they're like,
whoa dude, that dude's bringing beer. Like, right, someone's got beer,
(45:49):
someone's got wine. Someone's like, you know what, no, I'm
gonna bring mixers. This is a full on house party, dude. Yeah, yeah,
we've got to be bro We got wine, we got
tequila and soda. Like what is going on? People drink
so much that they know each other's drink orders. Harry, Hank,
(46:11):
John and Terry they split beer vera gets the cab,
they see gets the cosmos. How do you get so
comfortable with the rest of the jury that you're like
yodio party, Yeah, let's turn it out. It's unbelievable. Next
(46:36):
week premium episode an update on the state of legal journalism.
Last summer summer twenty twenty one, we did an episode
about how fucking awful how legal media coverage had been
that year, and we're gonna do a quick update because
in some ways it's gotten materially better. I think they listened.
(46:56):
That's right, we're famous now and people are listening. Then
there's been some setbacks, shall we say, the exposure of
Nina Tottenberg as a complete and utter access journalism hack.
You know, some CNN panels that are perhaps not the
most impressive lineups I've ever seen in my life. But
we're gonna We're gonna convene and discuss talk about who's
(47:20):
smart and who's stupid. Follow us on Twitter at five
to four Pod, Subscribe to our Patreon, Patreon, dot com,
slash five four pod all spelled out access to premium
and add free episodes, special events, access to our slack.
(47:40):
We'll see you next week. Five to four is presented
by prolog Projects. Rachel Ward is our producer, Leon Nafak
and Andrew Parsons provide editorial support. Our production manager is
Percio Arlin and our assistant producer is our lean A Revelo.
Our artwork is by ten Blanks at Chips and why in.
(48:02):
Our theme song is by Spatial Relations. It is funny
that someone thought of the idea you only get so
many bites at the apple. It's like, I feel like
people should be allowed to take as many bites of
an apple as they want. Frankly, it seems like a
(48:24):
waste of an apple. Who do they think they are
that they can finish that? I think you get that
right now, and you whip it at someone on the
side of the road and U
Host
Josie Duffy Rice
Popular Podcasts
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com