SwatTalk: "The Role of Juries in Social Change"
with Sonali Chakravarti '00
Recorded on Tuesday, Jan. 31, 2023
View the powerpoint presentation for this talk [PDF].
TRANSCRIPT
Dina Zingaro ’13 Again, welcome to SwatTalks, the Role of Juries in Social Change. My name is Dina Zingaro from the class of 2013. I'm also a member of Alumni Council, and I help to organize and run our SwatTalks, which is an alumni council initiative. It's a monthly virtual speaker series featuring alumni and also professors and members of the college to speak about their expertise, their professions on topics that are of interest to our broader community. Tonight's talk will be recorded and you'll be able to find it on the SwatTalks recordings webpage within the next two or three weeks. You can also go to our SwatTalks recording webpage to also view our most recent talks with Stephen Lang about the new "Avatar" film, and Arlie Hochschild. And she gave us a talk on the State of American democracy. For full transparency, I'm a dual degree candidate studying law and religion right now, so I first learned about jury nullification this past fall in my criminal law course. So I'm just so thrilled to have Professor Chakravarti here to speak with us tonight about juries. So a little bit about our speaker tonight. Professor Chakravarti is a member of the class of 2000. She's a professor of government and director of the Albritton Center for the Study of Public Life at Wesleyan University. Her work focuses on public participation in legal institutions, and she's the author of two books, Radical Enfranchisement in the Jury Room and Public Life from 2019 and Sing The Rage: Listening to Anger After Mass Violence from 2014, which is about the South African Truth and Reconciliation Commission. Professor Chakravarti is also the author of numerous peer reviewed articles and chapters in publications, including Political Theory and the Journal of Law, Culture, and the Humanities. Her public writing has appeared in The Guardian, the Atlantic, Dissent, and the Boston Review. She was awarded the Binswanger Prize for Excellence in Teaching at Wesleyan in 2021 and has been the Ann Plato postdoctoral fellow at Trinity College and Laurance S Rockefeller visiting faculty fellow at Princeton University. In 2022, she received a Mellon Foundation grant entitled Carceral Connecticut to study slavery, abolition, and punishment in the Connecticut River Valley. So tonight's talk will work like this. Professor Chakravarti will speak for about a half hour, which will be followed by about 30 minutes of your questions. So please use the question and answer feature. So again, that's the question and answer feature to submit your questions. If you remember, please include your name and class year, 'cause we'd love to just to hear the year when folks graduated. And so with that, I'm gonna hand it over to Professor Chakravarti.
Sonali Chakravarti ’00 Thanks Dina for inviting me. I'm very happy to be here. Thanks also to Megan for setting this up and providing the logistical foundation for this. I feel very honored to give a talk at Swarthmore to the alumni community, as is the case for so many other people. It was the professors that I had at Swarthmore that made me want to be a professor. It was their intellectual ethos, the way they combined in teaching and research that I found inspiring. So I also just wanted to say a special thank you to a few of them. Tyrene White, Cindy Halpern, Ray Hopkins, and Donald Swearer continue to be role models for me. So I want to get into my talk, the role of juries in social change. First by talking a little bit about my book, and I'm just gonna share the screen here. Okay. In my book, radical Enfranchisement in the Jury Room and Public Life, I argue that there are three critical moments in the criminal trial that are most useful for creating jurors who are aware of the power and responsibility they have for the application of the law. And these three moments are when they consider the standard reasonable doubt, the moment of the hung jury, and the awareness and debate around the possibility of nullification. And jury nullification, as Dina mentioned in passing, is the power the juries have to render a not guilty verdict apart from the evidence, meaning that they could think that the law itself is unjust, that the application of the law is unjust, or that they want to show mercy or compassion to the defendant. And this is something that I'll be talking about later. But in my book, I argue that jury service is the other side of enfranchisement. We think about voting as the critical aspect of enfranchisement, but with juries, we are not just called to express our preferences, but we make decisions about other people's lives. So it is the most intense form of civic participation that we encounter. And I think as much as people might hear about juries through, you know, civics in schools or through true crime entertainment podcasts and TV shows, I think there's a like a long way to go to help American citizens become the jurors that we can be and we need them to be. And I think that the humanity of jurors and what they're supposed to bring to the defendant is one of the critical reasons we have them. And it's also a reason why we would never want to outsource jury decisions to artificial intelligence mechanisms. We need both the messiness, but also the humanity of others to make wise decisions about criminal punishments. So in this talk, I am going to talk in detail about two important trials to put forward an argument about what juries do for social change. The first one is the Black Panther trials in New Haven in 1971. And then I'll be talking about the trial of Derek Chauvin in 2021. And then I'm going to move to a different topic, which is should we teach jurors about the power of nullification? And I'll be using examples from a jury nullification during the Fugitive Slave Act of 1850, and consider whether a jury nullification might be appropriate and useful if we see criminal prosecutions involving illegal abortions. Given that, you know, 14 states have an almost total ban on abortion. So my argument is that jury trials can influence social change in three ways. They serve a pedagogical function for the communities in which they take place and the broader nation and educate citizens about the legal process and the foundations of democracy. And with the second one, I think they advance new ways of thinking about complex political issues through the Voir dire process, which is the interview process, judges and attorneys put potential jurors through. And I say that the Voir dire and answers that jurors give require the ability to hold multiple truths at the same time in a way that is unusual for political life. And I'll give some examples of what I mean by that. And lastly, for jurors, trials serve as a crucible for forging the skills necessary for the most challenging aspects of enfranchisement, including what to do when the law and justice diverge. So the first thing I wanna talk about are the Black Panther trials in New Haven from 1969 to 1971, there were two trials. And just by way of background, right, the Black Panther Party was founded in 1966 by Huey Newton. And the New Haven chapters started shortly thereafter with Ericka Huggins, whose husband, John Huggins, was a Black Panther who was killed in Los Angeles in 1969. And so she moved back to his hometown and a new Black Panther chapter started in New Haven. They had a breakfast program they also advocated for housing and for poverty related programs. And they found a willing audience in New Haven because of the failures of some of the civil rights initiatives at that time. Also, New Haven was going through a period of intense urban renewal and where neighborhoods were being raised to make way for highways, and there was a lot of displacement. So the Panthers came in and provided services at a time when they were badly needed. But from the beginning, the Black Panthers attracted you know, intense scrutiny of law enforcement to both local law enforcement, to the New Haven Police Department, but also the FBI and the Black Panthers in New Haven experienced around the clock surveillance. And both the FBI and the local police used informants and undercover police officers to track the activities of the Panthers very closely as they were doing in other cities like Chicago and New York. The crime that led to these trials was that of the killing of Alex Rackley. Alex Rackley was a Black Panther who came to New Haven from New York, and he was suspected of being an informant and he was tortured and then killed. And, but both the person who kind of orchestrated the killing, that person was known to be working with the FBI. The car that was used to transport Alex Rackley to where he was killed belonged to the informant for the New Haven Police Department. So law enforcement was very involved in, you know, ensuring that this killing happened, which made this a very complex case to bring to trial. But in that first trial where Lonnie McLucas and Warren Kimbro, both people who were involved in actually pulling the trigger that killed Alex Rackley, when they were tried, they were found guilty. They ended up cooperating with the state, and saying that they would testify against higher level Black Panther leaders such as Bobby Seale who was the head of the Black Panther party. And Ericka Huggins, who was the head of the New Haven chapter. But what I want to draw attention to is how much you know, public attention there was to the Black Panther trials in New Haven at this time. So on May 1st, 1970, 15,000 people gathered in on the New Haven Green for a mayday rally in support of the Panthers. There were also anti-war protestors. There was a sense that there might be violence at the protest, the National Guard was called in, but it ended up being a peaceful protest. And that was very important to people who were in support of the Panthers because of the negative image the Black Panthers had of being a violent organization in much of the mainstream press. It was important to supporters to have a peaceful demonstration. But you know, from all accounts, the trial of the Black Panthers, particularly the second trial with Bobby Seale and Ericka Huggins was really all consuming for Yale University and the broader New Haven community. As you can see, some of the material that circulated at that time, the prosecutor in the case of Bobby Seale and Ericka Huggins did not say that they were seeking the death penalty, but left that possibility open. And so that was used as well. So what I was saying was that there really wasn't a strong connection between these Black Panther leaders and the trial itself. And what it looked like was that the prosecution of these two leaders was trying to get rid of a political adversary through using the legal system. And I think that is why so many people got involved. And so many people, especially young people, supported the Black Panthers in this. But what I wanna suggest is that the jury trial of the Panthers really acted as an educational moment for New Haven and the surrounding areas that, you know, one of the insights I think we can take from this is that anyone who like heard about this case had to confront the issue of surveillance of a political party, of the kind of intimidation that the Black Panthers faced by law enforcement. And it was impossible to be neutral on this issue, neutral on the issue of how they're treated. But also people were very invested in the idea of would they be able to get a fair trial. The president of Yale University, Kingman Brewster even said at the time that he didn't think that Black revolutionaries would be able to get a fair trial anywhere in the United States. And so I think that having a trial in this way brought some of the ideas of Black Panthers from the margins to the center of the conversation in a way that would not have happened otherwise. Another thing that happened with the great interest in this trial was that it allowed a community to form even a temporary one and respond to other needs of the community at that time, for example, like a childcare center was founded at Yale for Yale staff members who needed childcare during this time coming out of some of the connections and alliances that were connected to supporting the Panthers. The trial brought people together around a set of causes and it had an impact beyond just the trial itself. And the last thing I wanna talk about is jury selection for the Black Panther trials, it was the longest jury selection process in Connecticut history. Over 1000 jurors were questioned and they just had trouble finding jurors who the judge and the attorneys thought could be impartial in this case. And one of the ways they tested for impartiality was asking, you know, have you seen anything about this case? Do you have an impression of the Black Panthers? One of the things that the prosecutor would ask people is, do you support the death penalty? And if anybody said that they did not, the prosecutor would, you know, would ask that they were dismissed because, you know, at that time, and even today, if you were against the death penalty in all situations, you are not allowed to be a juror on a case that is a capital case. My current research is about what legal impartiality means. And I think that, you know, one model of it is you want jurors who don't know anything about a trial. And what I am investigating and trying to put forward is that actually maybe knowledge about racial prejudice in the legal system, different types of inequality and its impact on the lives of citizens is actually a prerequisite for legal impartiality. It's not that you don't know anything, it's that you understand the conditions under which law is enforced in America, which is one of the reasons we have juries in the first place. That juries unlike judges, are close to the lived application of the law. And to be impartial means both to know the conditions that people live under, but also to know what is expected in a trial. And I think people can hold both these things that you can think that, you know, that the conditions that gave rise to the Black Panthers are you know, sort of steeped in prejudice, but also think that the rules of the trial need to be followed. And one of the outcomes of this long jury process was a jury that was more racially diverse than many juries in this country today, many times we have black defendants who are tried by all white juries. That did not happen. And with the Black Panthers, surprisingly, it was a jury of 6 black people out of the 14, which included two alternates. And while two of the people closest to the killing were found guilty, Bobby Seale and Ericka Huggins, the jury could not reach a verdict in their case, it was a hung jury. And the judge decided to drop the charges after that saying that it would be impossible to seat another impartial jury. And so I think we can take a few things from this outcome. One is no one expected the Panthers to get a fair trial, yet the jury that was selected, you know, was not unable to, you know, reach a conviction or an acquittal suggesting that juries do surprising things that even in periods, if it tends prejudice against the defendant, sometimes juries do not follow that. Another thing is that the mistrial, which is what happens with a hung jury led the judge to say that it didn't make sense to go forward with another one. And what scholars think is that the judge really was not comfortable with using a trial to take out political leaders, that this was not the way it should go. And dropping the charges was his way of responding to it. And the last thing I wanted to mention is something about juror misconduct during that case. In one account, I've read that a juror was happy to tell Ericka Huggins afterward that they were very, very much in support of her. And another judge said that a juror had threatened her in the jury room saying something like, you know, let these defendants go, you know you don't have any evidence if you want to confine 'em to prison for the rest of their lives, go on and try it, but I swear I will kill you to death. So this kind of language we don't usually hear from jurors jury trials are usually very heated, but we don't hear these kind of threats kind of from one juror to another juror. And one of the things I want to draw attention to is how being an activist and being a juror are two different ways of engaging in political life. And those kind of threats don't even necessarily connect with being an activist, but it felt that in highly politicized trials, there can be this slippage from the idea of being a peer of the defendant and considering their fate and then, you know, sort of making threats being a different type of ally to the defendant. So this is the sort of what the jury did in this case both shows the power of the jury, but I think also shows some of the complexity of highly political cases. Next I want to move to the trial of Derek Chauvin in 2021. And one of the things that was surprising after the death of George Floyd was not only the number of protests in all 50 states that happened, but also the attention to the trial that happened in the spring of 2021. You know, many commentators said that like, not since, you know, the OJ Simpson case was there that much intense attention to it, especially the day of the verdict. Everyone was waiting to hear what happened. And I think that, you know, that attention to that case again brought issues of a police violence to the fore. It taught people like what police are supposed to do in different situations, what they failed to do. And one of the other things that was notable about the Derek Chauvin case, especially kind of in contrast to the case that we're all thinking about now of Tyre Nichols, is that bystanders tried to help, you know, first responder in the crowd wanted to help George Floyd. And so there was this sense that citizens knew, you know, saw something happening and they tried to intervene and kind of and everyone who was passing by, he kind of was motivated to kinda do the right thing in that situation. And I think trials are also where we learn what the right thing is to do in these situations. But for me, one of the most interesting things about the Chauvin trial was the jury selection process. And in this and in jury selection, there was much more candid discussion of both systemic racism, like the way racism pervades legal institutions and the rest of collective life as well as critiques of law enforcement. The judge allowed there to be many instances of candid critiques of law enforcement in the Chauvin trial. And this was unusual because in previous cases when people said that they supported Black Lives Matter, they could have been kicked off juries. There was a case in California where a woman said she supported Black Lives Matter, and the judge asked, one of the attorneys asked her, does this mean that you support the destruction of property? And she said, no, but she was removed by one of the attorneys. And the judge kind of supported that because the judge said, you know, being a support of Black Lives Matter might mean that you can't support, you know, you can't follow the rules of this trial. And so seeing the judge in the Chauvin case speak, you know, allow juror to speak really openly about Black Lives Matter, about their perceptions of the police. Marked a change in how these questions were talked about during the Voir dire process. And I think it was very influential in getting the more racially diverse jury that we got in the Chauvin trial. It was more diverse than the county with which the trial took place. Again, you know, almost half the jurors were people of color. And since one of the problems that we continued to have is that jurors who, especially black jurors who say that they have negative perceptions of the police or you know, are sympathetic to Black Lives Matter. They are dismissed by attorneys usually. What we saw in the Chauvin case is that when jurors of different races, not black jurors, talk about this very openly, it makes it more difficult to single out black jurors for these beliefs. And so what I saw in the Chauvin trial was a new understanding of what impartiality means. It means like a kind of a empirically informed awareness of the implications of racism. But also the judge would ask about, you know, can you, protect the defendant in all the ways that a trial does that including the presumption of innocence and including protecting the right to remain silent. And that these parts of the trial are also part of impartiality. But the judge created a path for people who I think would've been excluded otherwise. And now the last thing I wanna talk about is about the topic of jury nullification. As I mentioned that this is often the most kind of controversial thing that I write about and teach about because, you know, in its crude form, you could see jury nullification as allowing jurors to disregard the law and not pay attention. But some people call nullification conscientious acquittal, like the jurors know they are offering a not guilty verdict for reasons other than the evidence, but they have a reason for doing it. And one thing I also wanna say is that it's very hard to know when jury nullification happens because one, we don't have a transcript of what goes on in the jury room. And unless a juror tells us, we just understand what was the verdict in the case. And the second reason why nullification is hard to learn about is because it oftentimes jurors who say not guilty are also not convinced by the evidence, right? That even in their own minds, it is both the evidence and maybe something else about the law or the way it was applied that leads to a not guilty verdict. And some people think about the OJ Simpson case in this way as well, that some jurors did not, you know, did not wanna convict him because of who he was. And also like all the other things that the Los Angeles Police Department had done to black citizens, but other jurors, and this is what we saw in more interviews just said, I wasn't convinced by the evidence in that case. And so that kind intermingling of the two reasons for not guilty, it creates a lot of uncertainty around when jury nullification happens. But one moment in history where we saw several instances of jury nullification was in 1850 after the Fugitive Slave Act. So this was, you know, a Federal act during a time of intense conflict between slave holding states and the North. And it was an act that increased the penalties for harboring fugitives, harboring slaves who ran away. And it made the penalty six months in prison or up to a thousand dollars. It also deployed new commissioners with new police powers to capture slaves, made it illegal to not follow the orders of a commissioner. So it kind of tightened the vice of around fugitive slaves and anyone who helped them. And one notable case in the north was that of Shadrach Minkins who escaped from Virginia to Boston and was living there working in a coffee shop when a warrant for his arrest, because as fugitive slave came out, the Boston police captured him and he was being held in a courthouse in downtown Boston when six abolitionists, black abolitionists in Boston broke into the courthouse and released him and then hid him for the next several days until he could escape to Canada. So this was a very high profile case, the first of its kind in the North and in Massachusetts. And so the federal government insisted that the local authorities try as many of the abolitionists as possible. And so they ended up having six trials of all the people involved in this. And in each trial there was either a hung jury or an acquittal. And what happened at the end of this was it was clear that it would be difficult to find 12 people in Boston to convict someone for helping a slave escape. And so this is seen to be an example of jury nullification that it wasn't about the evidence, it was about an opposition to slavery. And another moment that feels more clear in terms of jury nullification, it happened in Canada. So, and it was that of a physician, Henry Morgentaler, who in the 1970s had clinics in Quebec that were providing reproductive health services to women while there was a constitutional ban in Canada on abortions. And Dr. Morgentaler went to trial three times in the 1970s. And each time the jury refused to convict and did not want to punish him for providing these services. And even after this happened, the Supreme Court of Canada affirmed the ban on abortion in 1976. It was later overturned. And Dr. Morgentaler was seen as a kind of an important figure and kind of ahead of his time. I find this case to be a model perhaps for what the US is encountering now, and that one thing we can learn from the 1850s is that education about abolition and education about the role and powers of juries can happen together. And for example, like in Faneuil Hall in Boston, there was a meeting of 6,000 abolitionists where they talked about the evils of slavery. But also, if you were called as a juror, what should you know about this? And I suggest that we might be in a similar moment that in addition to learning about different types of mutual aid for women seeking abortion or other ways for those of us in states that have greater access to support women in other states, I think education about what to do if you were called as a juror would be useful. And if you were in a state that does not have a ban on abortion, you will not be the juror in this case. But I think it can be part of a more national conversation about the role of juries in this moment. And I think especially if we don't think that the court is going to change its position in any time soon, that jury nullification can be this short-term solution on particular cases for a community, for a group, the group of jurors to express their opinion about the law and to say that, you know, despite the legislature passing this, we don't think it would be a fair outcome to punish this person for it. So I want to leave you with the idea that juries can be seen as a vanguard of the law. They're not just, you know, kind of functionaries who do whatever attorneys tell them to do. Legal change is slow, but juries with their ability to decide on particular cases and nullify, it can show us what the law could be in the future. And I've said that juries can educate the public across some of the most polarizing issues. And also that through thinking about what potential jurors say during Voir dire we can gain clarity about what we believe and why. And I wanted to end by saying that I'm often asked why I care about juries when so few cases actually go to jury. Less than 5% of cases go to jury. And I say that juries are like love, they are both fleeting and rare, but that they structure so much of our lives. They structure what is possible, what we believe in, what we think other people should do. And so I think jury decisions have a similar type of outsized importance in the legal system and they are the kind of the last, you know, stop before punishment and I think we shouldn't lose sight of what they're able to achieve. So, I look forward to answering questions. Thank you very much.
Dina Zingaro ’13 Thank you so much, Sonali. That was wonderful. I love that last point about love and yeah, like the fleetingness and the rarity. So before I get started, we have a couple of folks who would love to be able to see some of the slides.
Sonali Chakravarti ’00 Yes. Okay.
Dina Zingaro ’13 Sort of, well just to let folks know who have written in about that. We will try to figure that out 'cause there was a lot of good nuggets on those slides. So I'm going to selfishly start off with a question of my own before I start reading off some of the great questions that came in from our audience. As I was preparing for the talk, I saw a quote from Thomas Jefferson: "I consider the trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution". And I think it's interesting that there's nothing in the constitution about jury nullification, but I'm sort of curious if there are ways that you see jury nullification expressing some core American values or sort of what is the argument for it for those who might say, well, it's not in the constitution.
Sonali Chakravarti ’00 Right, so yeah, that's a good question. That the right to jury is in the Constitution and the right to a jury in a criminal trial and the sixth Amendment and to an impartial jury and as civil trials in the Seventh Amendment. But you know, for the founding fathers, the jury was extremely important, right? That for the jury was a place in the colonial period where Americans said like, we don't wanna follow the British laws anymore. Like, don't make us punish people that we don't wanna punish. And so local control over the application of the law was one of the key like key reasons that, you know, America was founded. And so it's very important to get juries into the constitution. And I see nullification, which is really about jury independence. Like you can't bully a jury into giving you the verdict that you want, you know, and you can't say like, you know, the evidence says this, you have to say you have this outcome. So I see, you know, jury nullification as coming from that idea of juries aren't just supposed to mimic what judges do. They are supposed to bring in a different type of decision making skill and that means that like no one can control them and you can't, you might be disappointed in what they do, but they have the power to do that. And I just think in some ways, it is the epitome in some ways of democratic decision making, right? That in difficult situations where it could go either way, we have to decide somehow. And in some parts of our government, we have an executive that decides, we have representatives that decide, but having 12, you know, people selected by lot is a democratic way of deciding. And so I think that it really, you know, speaks to kind of the core of it as a democratic institution, I always say that if we hadn't, you know, started this country with juries, it would've been very difficult to get them in later because people would be suspicious of them. And when I speak in other countries, this is often, people are often like, really, like, you let your people, you don't give them a, you know, education test and you just let people decide on this? So it is, you know, in some ways the like the most ambitious way we have in American life to make decisions. But it just speaks to what we believe citizens should be capable of.
Dina Zingaro ’13 It's interesting that you brought up the interest in locality and the interest of like a one's local community being sort of the judges of one's situation. And we were talking about this a little bit before we got on the talk, but sort of this jury nullification coming down to a question of who do you trust, whether it's your peers or a judge. And I'm kind of curious, and this is the last question I'll ask before we turn to the audience members, but in your conversations with people about jury nullification, do you see more people responding that if they were being tried, whether they would prefer sort of a judge or a jury to be sort of deciding the law?
Sonali Chakravarti ’00 Yeah, no, I think it is this kind of fascinating question and I find that it, especially, it puts people who think of themselves as like liberals or progressives in a kind of awkward spot. Like they don't like having to say like, actually I would prefer a judge, you know, but I have found that. But I think people of color, you know, I think are much more skeptical of what a judge would see. But I think the first question people ask when I give them this hypothetical is did I actually do it? So like, are you trying to fool the person or are you trying to, you know, like have a kinda authentic exchange with the judge or the jury. And that seems to influence people. But in my book, I argue for more robust forms of civic education for jurors, and I think social movements should be more involved in doing this. Community organizations, we should have more at the college level, we should be doing more. And I feel like if people knew more about juries and they saw other people learning more about juries, that they would increase their, you know, appreciation of them. And one thing that we do know is that studies have found that after serving jury duty, people say that they have more respect for the legal system, that it has its problems, but that they see how much trouble goes into trying to kind of, you know, give defendants their rights and also to make, you know, wise decisions and people like have a little bit more faith in their fellow citizens. And one thing I think about in this, you know, period of intense polarization in American life is that juries are one of the few places where like you have to figure out a way to communicate with strangers and come up with a joint decision. Like you can't just like be in your bubble and not talk and not, you know, and so there's like, it's a really high stakes way for citizens to come together. And people generally say that they like enjoyed it, they learned a lot, they end up being more likely to vote in the next election and you know, follow the news. So, and I feel like if more people knew about this, they might think that juries are, you know, like they might have more faith in juries.
Dina Zingaro ’13 Hmm. Thank you. So I'm going to combine two questions that we have here. One is from James Becker. Thank you James. And the second one is from Bruce Rockwood, the class of '68 history and political science honors. Cool. So Bruce and James sort of similarly have questions about sort of what does it look like right now in the courtrooms? How are juries either instructed, not instructed about their power to nullify, sort of what does it look like, you know, how are lawyers sort of trying to perhaps suggest or sort of suggest against jury nullification? So if you could paint us a picture of what that looks like inside courtrooms right now, and then perhaps what you suggest for the future? And the third question I'm gonna tack onto that is outside of US courtrooms, this is getting to one of James' questions. Are you aware of other legal systems that have jury nullification?
Sonali Chakravarti ’00 Right? So maybe I'll just take the last part first in that any, the jury system comes, you know, from the common law tradition from England and even, but America uses juries more than other places that like, you know, England uses them less, and other former English colonies, many of them have done away with them, not really the juries, but it is interesting that some countries are trying to bring juries into democratic life. For example, Japan in recent years has tried to get more lay participation in the legal system, but they have more of a system of a couple of judges and lay people sitting together to make decisions. I'll be doing a research trip to Argentina in a few months to look at their recently implemented a jury system that in Argentina, it was in their constitution, but they, up until seven years ago, they never used juries for criminal trials. And they've started that. And one thing I'll be looking at is that in Argentina they have a provision that six of the 12 jurors have to be women in all cases. And so that's a type of representation that we don't have in the US. So I think what Argentina's trying to do is like learn from some of America's mistakes and shortcomings with representation on juries and make it, you know, make it better in their system. But sort of any system that has juries have in some ways has nullification in it, right? Because the only way to get rid of nullification is to monitor what is said in the jury room, right? Because when jurors come out they say guilty or not guilty. And so if you aren't gonna go fishing around as to what led to that, you have a system that allows you jury nullification. But the harder question is when can we talk about it? And right now in, you know, the vast majority of states, the judge tells jurors, your job is to decide on the facts of the case. You are to apply the law to the evidence. And somebody to say if the evidence meets the burden of the state, which is to prove their case beyond a reasonable doubt, you may convict right? That you may convict them may part opens up a little window in that you don't have to convict if there is overwhelming evidence, but you may convict. So that's kind of where we're at in some places, some dare to say you must convict, if you have some you must convict. And then a few states, and New Hampshire being one of them, tells jurors that your job is to decide on the facts as well as the law in this case. And by this language of deciding on the law refers to like, do you think the law itself might be unjust and you can do something about it. But as you can see, like it's all done in very coded language. And if you aren't listening for it, you won't necessarily understand what that means. But what I've heard is that in some cases there'll be someone in the jury room, like one or two people who have heard podcasts about during an nullification, and they'll bring it up and try to convince the other jurors about it. And I think this is not a good way to make a decision as significant as a nullification decision. I would rather have everyone or 10 of the 12 people come in knowing about it and understanding that it can be misused. One of the most common ways and distressing ways it was misused was in the Jim Crow South, juries nullified people who were accused of lynching. When everyone knew that they had done it, you know, they said that we don't wanna punish that person for that. And so null education can lead to people who did, you know, violent acts go free and you need to know that, you know. And so my argument is that nullification needs to be discussed just like we discussed civil disobedience. Like when do you break the law in a conscientious way? And jury nullification is not breaking the law, but it has the same kind of exceptional quality to it, needs to be done, you know, in a thoughtful way. And so I feel like we should just have more discussions about the different ways it can be used such that when people are called for jury duty, it's not a new thing for them. They're not, it's not surprising for them. And strategically also, if everybody knows about it, then the fact that you bring it up during Voir dire won't be the red flag that it is now. So like as you know, some of you know, like the quickest way to get off of jury duty is to say that you are a proponent of jury nullification. Like nobody wants you on the jury then, and the judge doesn't want you. And so, but I feel like if everybody had a thoughtful way of talking about it, which is, you know, we live in a system of laws and you know, and I follow the law that is given to me, but, you know, but there are exceptions when the just outcome would mean a not guilty verdict. And I will do that if we had a thoughtful way of discussing it, it would be different. And I'm hoping that with these, like with the abortion cases, like we can kind of get to like, we can have those conversations before people are called in those states that have criminalized abortions.
Dina Zingaro ’13 Hmm. This is a great follow up from John Castile who asks, could a state legislature pass a law forbidding nullification or is it constitutionally protected? Which it sounds like we have discussed as not so, or is it just unstoppable as a practical matter, which I'm guessing based off of what you have just shared that it is, but if you could just sort of clarify that, cause I think...
Sonali Chakravarti ’00 Yeah, right. No, I think it would be, you could, you know, the like a legislature could try to pass it, right? Could say, you know, and I think all that would mean is that it, you just clamped down even further on you teaching about it or anybody saying it during the potential during jury selection process. But you know, essentially you can't, again, like there's no way to stop it really. You had this campaign against, you know, don't be a deviant juror or something like that. But you know, but I think oftentimes the line that, you know that, you know, one of the appellate court decisions that's important in this topic says that, you know, jury nullification is a power not a right. So you can do it, you know, just like you have the power to do many, many things, but you don't have a right to do it. And so for me, I don't feel like I need to like articulate it as a right, but it is a part of the power of the jury and they should understand it as such. But you know, to John's question, like I think yeah, there are people who yeah, are concerned about it. But one of the things that I enjoy about studying it is that it's a topic that yeah, that, you know, creates kind of strange bedfellows. Like it's an issue that has adherence on the right and the left. And so if we are going to enfranchise jurors in this way to know when they can do conscientious acquittals, like we are going to get a range of verdicts in different places that might use it. But I think that's better than what we have now, which is the secrecy around it.
Dina Zingaro ’13 Hmm. So this question comes from, looks like a classmate, I'm sorry if I mispronounce your name, but Lauren Nelson, thanks for the talk Sonali, you talked about ways in which the jury selection process can be used to stack the deck against the defendants. Do you think the concept of weeding out potential jurors is inherently regressive? I wonder whether systemically excluding victims makes it difficult to address systemic harms, or would you say the selection process is essential and we just need to do it well, as you described in the Derek Chauvin trial? Great question.
Sonali Chakravarti ’00 Yeah. So, with Lauren's question yeah, kind of makes me think that there is one school of thought that's like we shouldn't ask very many questions at all. You know, like, let's make it even more just basically like, basically you're in, like, unless you know the defendant or know any of the lawyers, like, you know, you have to be 18 years old and you have to be a citizen and you have to be comfortable with English as the language of the trial, if you've got that. I'm not quite willing to go with that just because I worry that there are people with deep prejudices that might get on juries in that way. So, but to Lauren's question about victims serving, I do I think like actually more discussion like will help us see people who are victims of crimes. Like for example, in the Ghislaine Maxwell trial there was a juror who had experienced sexual abuse as a child. And it turned out that he didn't say it during Voir dire it came out later, which was, you know, a bit of a kind of messy legal issue. But what ideally should have happened was like, it should have come out during the Voir Dire process that he had had this in his background, but that he would also be asked a series of questions afterward about like how that might influence his decision making process. And I think that during in the Black Panthers trials, a lot of jurors were asked, can you be impartial? Okay. You know, and I think saying I can be impartial is this kind of speech act that's saying like, I will follow the laws of the trial and is good in that way. But I actually think that that's a very bad way of doing it, you know, because I think that jurors are made not found essentially. And that you saying that you can be impartial is different than saying like, are you a fair person like in your family or are you good at making decisions? Impartiality is a legal concept and I think jurors can be made to be impartial through the process of Voir dire and as someone who's a victim of a crime can be, you know, can go through it. But I think it is the judge's call about like whether they think they can actually go through it and this is very tricky, right? So I think that decision of whether a juror should serve, some of it has to do with the juror's willingness and some of it has to do with what the judge sees. But I think that actually more expansive Voir dire, what I'm calling for on questions of race and questions of gender and questions of your status as a victim. I think that's where we need to go to have this more contextual understanding of legal impartiality and to seek more diverse parties.
Dina Zingaro ’13 Hmm, thank you. So this question comes from Steven Cargman from the class of '82. So Steve is sort of pointing out a point that you made earlier about how jury nullification has been used in the past in cases that are deeply troubling. For example, he's referencing Emmett Till, Medgar Evers where those tried for murder were acquitted by all white juries despite overwhelming evidence against the defendants. And I think probably all of us who are watching can think of cases in our minds that we would have loved for there to have been jury nullification or cases where we would've would have really disliked if there had been jury nullification. So I'm wondering if, this is sort of branching off of Steve's question. Are there criteria, sort of like a framework with which one could think about when it's appropriate to apply one's power of jury nullification? Again, because we all have biases and preferences and sort of how do you contain those or apply jury nullification responsibly?
Sonali Chakravarti ’00 Yeah, no, that's a good question. I mean, I think even if we do have those criteria, I think we'll still get some verdicts that we don't like. And in my book I talk about those verdicts being basically a type of alarm for like other things that are going on in that place. You know, if a jury is acquitting, you know, someone for the killing of Emmett Till there's a larger legal problem happening there. And that's small consolation on that one issue. But I just think like, you know, and we get information from nullifications that we are disturbed by as well. But to your question about the criteria, I mean I think the two most kind of defensible reasons to nullify is if you answer the question, do you think the the law itself is unjust? And if you say yes to that, then that might be a good candidate to give a not guilty verdict because you don't want to apply that law. The second question is, do you think it was applied in an unfair way? The law itself is not unjust, but the way it was applied in this, and this is also where juror's knowledge of like the ordinary lives comes in. Like if you know like that no one else gets convicted by this law, but this one person happened to, then you then a not guilty verdict, you know, a nullification seems to be appropriate. I'd say the third appropriate reason is do you think the prosecution is corrupt? Right? And you know, that gets close to what maybe some people thought in the Black Panthers trials, like the ways that they got evidence, the ways they were involved in the crime itself through entrapment. Like, that might be a reason for not guilty. But what you shouldn't base nullification on is, you know, prejudice, right? I think people, you kind of agree on that one, I mean, the trickiest one is should you be able to show mercy or compassion for the defendant just because? Just because, you know, I think if we say just because they're a celebrity, we think that's a bad reason, but if just like, just because they seem like a really good person and they got caught up in, you know, a bad situation. Like, so I think that's the trickiest one. And this question of mercy, right? Is a part of any punishment system and there needs to be opportunities for mercy. Do we wanna think about nullification in that way or not?
Dina Zingaro ’13 Hmm, the last question I wanna ask before the final question I think is important just to put out there, this comes anonymously, but how can jurors in abortion related trials be educated about jury nullification? And so the question really is are there names of groups who are funded to do this type of work that you would sort of flag for folks?
Sonali Chakravarti ’00 I don't know names of groups, sometimes my students at Wesleyan and tell me that they saw something on TikTok or Instagram or just like a little like thing about it. But so I'm thinking of like, you know, kind of practical support networks and things like that, like might have something about it, but I don't have any names and but if people do know, I'd love to hear about them because it just feels, again, it's not the only thing we should be talking about, but I just wish it were one of the ten things that we're talking about in relation to sort of questions of abortion access right now.
Dina Zingaro ’13 Hmm. So the last question to wrap up tonight's talk, we're just gonna go over about two, three minutes. This feels like an important question. It feels important to talk a little bit about your time at Swarthmore and sort of the idea that, you know, for a lot of people their life's work is in pursuit of, you know, a set of questions that they've been sort of grappling with for years, decades. And so I'm sort of wondering if there were questions that were with you all the way back at Swarthmore that have sort of led you to this area of expertise in study and research.
Sonali Chakravarti ’00 Thank you. I think, at Swarthmore, I was a political science major and an Asian studies minor. And I think I was drawn to political science because it was a way to think about political community and I feel like as like the daughter of immigrants as someone who didn't have like a religious community or some other communities like, it felt like a political community, that's the thing that I want to be a part of. And that citizenship feels like could be a full identity. And I feel like that's also just kind of what does that mean to the juries? And I think like when you were one of twelve on a jury, like your voice and your vote always matters. Like you can stop someone from going to prison, just as one person. So I think it is that building up what we think of as political community and also thinking about what we do with strangers. Like where and how can we do meaningful work with people that we don't know well, is something that comes up for me with juries.
Dina Zingaro ’13 That's fascinating. Thank you so much. Thank you so much to our audience. I'm so sorry I've never moderated a SwatTalk where I could have gotten to all of the great questions. But thank you to everyone for sending them in. We will try our best to figure out distributing the slides or making something available. We will figure that out. But thank you all again. Sonali, thank you so much.
Sonali Chakravarti ’00 Thank you.
Dina Zingaro ’13 Bye everyone.
