 Welcome to Free Thoughts. I'm Trevor Burris, and I'm Aaron Powell. Joining us today again is Peter Van Doran, a guest we like so much that we gave him his own theme music. He's a senior fellow at the Caden Institute, an editor of Regulation Magazine. Welcome back to Free Thoughts, Peter. Thanks for having me. Now a few months ago, what has it been? About two months now, you had an interesting experience of jury duty. Everyone gets called for jury duty at some point, but you actually got to serve on a jury. So give us a little bit of background on that. On February 20th, 2018, I reported to the Federal District Court for the Southern District of Maryland in Greenbelt, Maryland for possible federal jury duty, and there were 500 jurors and my, we were assigned random numbers. I was zero, two, six, seven. I think. And you sit in numerical order, and Vaudeer took all day. And the joke at Cato, of course, is that when we carry our jury nullification books to Vaudeer, we will never be allowed to serve on a jury. I did not carry a book, but during Vaudeer, I did, I was at, or the, there were all sorts of questions they asked. Is anyone a member of law enforcement? Is anyone a lawyer? Is anyone, so then there was a question, is anyone work on behalf of victim rights? And so I said, all right, I should disclose that I'm an analyst at the Cato Institute, and we advocate for less criminalization of, of lots of things. And I thought, sure, the prosecution would say, oh, we don't want him on the jury. Well, the, the judge simply said, fine. And would that affect your ability to hear the case before you fairly and judge only on the case and, and the law? And I said, no, it would not affect me. And he said, stand back and you're still in. And so, so it took all day. So four o'clock in the afternoon, they start picking in random number order the people who are left after all the people have been, well, they actually, I guess, at some point, I should describe what this trial was about. Well, you didn't know. Did they tell you what the type of trial it was during Vaudier? Yes, they did. Was it just that it was MS-13 in a conspiracy case or? They said this involves gangs and MS-13. And, and so one of the Vaudier questions was, has anyone have any personal experiences with gang activity? My goodness, a hundred, a hundred people stood up and that questioning took hours. And the jury was drawn from the southern district of Maryland, which is everything south of Baltimore, those counties. And apparently, in PG County, which is where the Spanish immigration immigrants tend to live in this area, as well as Virginia, there is a tremendous amount of gang activity. And I was personally unaware of it, although I've read a bit about it in the newspaper. So they did ask whether anyone was engaged in victim rights. And I sort of said, maybe that's me. And then that we were for less criminalization of activity. But anyway, I was, I was picked. I was the 12th juror. And you raised your hand and I was sworn in. And I said, oh my goodness, because they told us this trial was going to last four weeks. And I said, oh, wow, my life has changed. And, and I'm not going to be able to go to Cato for a while. And this is a big deal. This is a murder conspiracy Rico case. And I then said, I'm going to learn a lot about the law. And so that's what we're here today to talk about. So what were the specifics of the alleged crime? The defendant was charged with being a member of an ongoing criminal conspiracy, which is Rico, the Racketeering Influence and Corrupt Practices Act of 1973. Something around there. And I didn't, I sort of knew a little about that. And we weren't supposed to look up right at night. We're not supposed to look up anything about gangs or anything. Oh man, that would really kill me. And I'm used to doing homework. So anyway, I did not. So part of what we're going to talk about today is conspiracy law and how it differs from probably Cato approved notions of individual causation. So this, this person, the defendant was charged with participation in ongoing criminal enterprise, i.e. MS 13 and participation in a series of murders in particular one in Frederick, where sadly a recent El Salvador immigrant who was a teenager who was fleeing El Salvador because of gang activity to live with relatives in Frederick, Maryland, was targeted for killing and in fact was killed by a branch of MS 13 in this area. And the defendant was charged with participation in that crime. And lots of other bad things, which were then part of the charge of being a member of an ongoing criminal conspiracy. So the defense argued that this person was peripherally involved. And here was the interesting thing that the murder in question, the shooter involved what had already been deported. So the defendant was charged with just participating in knifing the victim 13 times after the shooting took place with a single gunshot wound to the head. And the defense lawyer raised the issue of whether brain death had already occurred and thus stabbing a corpse isn't murder. Well, it technically is not murder. Well, the vice against it though still. Yeah, it's desecration of a corpse at the maximum if they are in fact dead. There was no physical evidence linking the defendant to the crime. There were no knives recovered. There were no fingerprints. There were no there was no DNA evidence. So why did they think he was why did they think he stabbed him? The all the witnesses in the trial were a gang members who had pleaded guilty in return for sentence reductions out of all the gang members. This was the only person who did not plead guilty and requested a trial. And so the so the week how how go should was from to actually request a trial. Everyone else pleaded out. Come on. They must have been kind of upset. They being the prosecutors. I mean, oftentimes they as most of most criminal prosecutions do not go to trial and requesting a trial is is can be I mean prosecutors like them, but they would rather get rid of stuff before going to trial about upward of 95% of criminal charges are cut out. Exactly. And when I spoke when I gave a Cato seminar about my experience and said the people involved didn't seem to be to me to be exude the expertise that I would have thought Clark one of our colleagues who's a lawyer said, Oh, well, this may have been their first trial. Like they're there's so few trials anymore that the fact that they seem like rookies to you. They may have in fact been rookies even though they spent years as as federal prosecutors. And this guy assume had public defenders. The we thought so but we got to talk to the judge after the trial was over and we asked the judge that because the defense seemed pretty competent. And so we said, is that a public defender? And he said, no, this person was the the all the witnesses who had pleaded guilty had public defenders. And so I guess under federal procedure or the law, I'm not sure this last defendant could not have a public defender. The judge said and instead received in effect private defense counsel at some high hourly rate at government expense. There's probably conflict of interest, interest amongst the public defender's office in that district and all the other defendants who had public defenders would be my guess. That seemed what would the conflict be? They're in the same office. So that's, that's, you don't remember, you don't remember legal profession class, Aaron. He's blocked law school out of his mind. Yeah. They're being in the same office to require screening or just actually using a voucher or something. Oh yeah. Okay. Yeah, I remember that stuff. See, I see. He barely remembers any of us three years of his life. But anyway, so what, first of all, what was the criminal procedure was just a semester of my life. That's true. That's legal ethics. But anyway, going back to the trial, what was it? I'm just digging myself deeper. Exactly. What was the most surprised is someone who's economist who doesn't do law, what was your first reaction to the trial in the sense of that this is not like television or this is not what you expected and as the trial moved forward? I guess the first, I have some reactions to trials as processes and then I'll have some substantive things about the law. The first was the trial because it was a long trial and because it involved conspiracy, my experience may not be typical at all of what normal criminal trials are. This may be specific to my experience, but it felt like a very, very mysterious Dickens novel done in installments. And I wrote notes. We were all given notebooks. Many of us took notes. There was an engineer on the jury. He and I were the kind of note taking nerds that you might suspect, but those who were more ordinary background on the jury also seemed very interested and took notes. Some weren't paying attention, but I got a sense that the citizens were taking this very seriously and we all wrote notes. And as someone who's taught college classes for 35 years or so, I found the trial to be a mystery where I didn't know how much I had to hang on to in my head because you presented the charges and the jury instructions at the end. You are given a prosecution view and a defendant view up front with the opening statements, but through all the introduction of mayhem and testimony and knives and ballistic evidence and this and that and the other thing and you're writing and trying to figure out which of this do I have to hang on to for what purpose. So here was the biggest puzzle which is during our deliberations we were puzzled on some things and our own notes disagreed and did you get that? Can you find right? We were asking each other. So we said, all right, let's ask for a transcript. Let's ask for a readout of who said what and why on this. A couple hours later we get the judge replied to us that a transcript doesn't exist and we go, what? And it turns out at least in this court, I don't know in general, but in this federal district court in Greenbelt, Maryland, all the stuff we see on TV about transcripts and reading back the transcripts, that's not possible. Transcripts are produced not in real time, but later and they take months, we were told by the judge. So they have a court reporter? Yes, she was there taking, in fact, because the testimony often involves Spanish and then translation, there were ish and gang slang and gang words. The court reporter was often asking what, you know, how to spell this Spanish word or whatever and I can't think of a reason why that would be except for maybe fighting over the contents of them. Not being a trial attorney, but lawyers can fight forever over whether or not the transcript is accurate when a jury asks for it to be read back to them or played back to them. So it wasn't just me, all of us, all jurors were shocked that we were reliant on our notes, which we weren't told would be the only thing we had. The judge said, just rely on your recall. Well, it was four weeks of testimony. And so going way back to week one where they were fussing about this bullet and that bullet and who was there and who wasn't and who said what to whom in Spanish, you know, we were, so anyway, the jurors, we were shocked that we were so dependent on our notes. And as an instructor and when I was a student, I always rewrote, we reworked my notes at night after class. You take them in real time, but it's so fast that you can't digest it all. And then it's the reworking of the notes to make a coherent story, at least in your mind, even if it's totally wrong. That for me wasn't possible in the trial. We weren't allowed to take our notes home. And I sort of get that it's, you can't discuss or do anything about the trial offsite, but that looking and reworking and then thinking of questions to ask, I mean, I started to want to raise my hand and ask some questions along the way about what the heck's going on here. And I'll give you an example. I mean, on day two of the trial, we, it was clear they were laying out all these gang members and their Spanish names and their gang names. And then there were photos and then we were lost. And I said so. We sent a note to the judge, can we have a play bill? I mean, can we have a list of all the players here and what's going on and who's in what's photo and what their names are? And afterwards the judge said, that was really good. That was a good request. And they did fulfill our request and indeed introduced that into testimony. But the defense argued strenuously against this play bill because it was created by the person who testified and introduced it into testimony was a Homeland Security agent. And so I get it. The defense is saying in effect that this play bill, this list makes, reifies this notion that in fact there was a gang and here are all the players. And in fact, the, the, my defense is that this is a fiction or that it's sort of not a fiction, but this defendant's name who's on there as a member of this thing will now it's in print and new jurors are all going to see this as in effect evidence that isn't in the defense interest to admit is true. And so I now understand all this scrum over that, but in real time, we were lost. And I don't know how we would have dealt with things in deliberations if we didn't have this, like who is who and who said this and oh yeah, they were in El Salvador and they were in prison and they weren't, you know, et cetera, et cetera. Do you think that your lostness benefited one side versus the other? Well, since it was remedied early, I can't, I have to do the counterfactual, which is, I don't know. It's just Peter's logical nature. I felt like if our job is to try facts based on evidence, then what I said in the Cato seminar was I would introduce the charges at the start. And so we, and then we would, every day they would say, well, this testimony is related to this charge. And then you end up, you will end up having to decide the veracity of this testimony vis a vis this charge. Whereas at the end of five, four weeks, five weeks, we were given this three-page list of charges and then saying to ourselves what parts of who said what are linked to these things. But I can see the argument against doing it the way that you've proposed, which is when people, you would have fixated upon the charges and then you would have seen all of the testimony through light of that and would have been looking for things. The same as like, to some extent, you buy a red car and then all of a sudden you start noticing all the red cars on the road. You wouldn't have been assessing all of the evidence, but only the evidence that spoke to what you thought was important. Whereas if you put it at the end, then you have all of the presented testimony and evidence in mind and kind of... I think, yeah, it's what I think defense attorneys would agree with that because a lot of times you spar over jury instructions. In federal court, from what I understand, they're a little bit more regimented, but some of my friends who practice in state courts, after though everything is done, they're like, what are the jury instructions? Sometimes they're standardized, but what you tell a jury is very leading to a jury and when you tell it to a jury is very leading to a jury. So after my first year law school, the summer of my first year law school, I was called on to a jury for a homicide case that was substantially less complex than this one, but we had in the jury room at the end as we were deliberating after, I think, two days of testimony, we had a couple of questions of clarification about jury instructions, like just weren't 100% sure, and sent a note to the judge and the response was, you have to use what's there. That's what? That's what we got. And it was because if he had clarified that would have been something else that the counsels, putting counsels would have had to agree on. We got the same treatment jumping ahead during our deliberations. Twice we asked for help and the judge after hours just replied, please read the instructions and we kind of just throw our heads and pencils up in the air and go, that wasn't helpful. And particularly because we were dealing with layman's conceptions of conspiracy. Which are not the same as the federal government's. Exactly. And we were mostly because of me. The collective was hung up because I was resisting, convicting this person of conspiracy. I was willing to convict on gang membership, but then I said conspiracy means before they went to Frederick and did all these bad things, they sort of talked about it in some way that there's evidence of. And it turns out under the definition of Rico and conspiracy and things like that, that really wasn't necessary and I, and then the others didn't understand that. And then we gradually did and realized that once we found the person defended to be a member of an ongoing criminal conspiracy, all the rest of the charges sort of logically follow. And we didn't really have the right to not convict given the way the laws written and the instructions were given. And I asked the judge specifically about this after the fact. And he said, because during the deliberation, my logical preposition, the logical thing I just stated, which is we didn't have any choice once we did the first thing. Everyone said, oh, no, we have to go through and talk about all these individually. And I said, it's already happened whether you realize it or not. And the judge afterwards basically said to me when I asked him, he said, yeah, you're right. So I said, why are there all these other charges? And he said, because prosecutors pile on so that the sentence goes way up so that we then don't have to do this, IEA trial. You're going to your question about just add some of my knowledge here about the mystery of being on a jury. Historically, it wasn't always that way. Actually, in the in common law era, England, the jury was actually investigative. They would go to the and sometimes they will take a jury to a crime scene and stuff like that. I think they did that in the OJ trial, but they would the jury would actually investigate the facts and give its own wisdom slowly over the years. I won't go into that. The jury, everything about the trial has been turned into keeping the jury as sort of like much children as we can possibly keep them in turn with rules of evidence and saying, what will the jury hear and what won't they hear and what inflames the jury and what doesn't inflame the jury. In the very, I think Aaron and I, I remember this, we had evidence class together in the first case. I do remember taking evidence class. Yes. The first case that we read in evidence class, which are the rules of what you can present to a jury. The first case that you read in that case book was a case about a horribly dysfunctional jury. Remember this case? Where the juror came to the judge or after the jury had given their verdict, he said, I can't in good conscience say because no one was paying attention. People were sleeping. People were doing drugs in the jury room. I want to upset this jury verdict by saying that this jury was dysfunctional. They have all these hearings about the jury and say, are we going to overturn this jury verdict? They say no. It takes a lot to overturn a jury verdict from a juror testifying that the deliberations were problematic. That illustrates the fact that to what we think about in the trials of the jury is a black box. We generally do not want to look inside that box to see how that box operates. We want to feed things into that box that are clean when they get in there and make sure the jury doesn't know anything else that we don't feed into the jurors, including things that might be very, very probative of guilt, like prior bad acts that this person was convicted before of rape, so they probably raped today. That's not allowed in all these things. We keep you in mystery. If you're not a lawyer, it's even more mysterious because then you don't understand why they're doing these processes in this way. It's just part of the general trial. It's not surprising to me that it was so mysterious to you as an economist and not a lawyer. I asked the judge lots of questions. We all did actually afterwards and mostly about this mystery and what we felt like we didn't know what to do. He said he still taught law school classes and he'd been a federal judge 30 some odd years, very experienced. Then every time I said, maybe you ought to consider and he said, no, no, we don't do that. Whatever common sense my arguments might make, they're going to have no effect on anything as best I can tell. Well, the law is inherently conservative. It's, as my property law professor used to say, it's agents of the dead ruling over the living. But I wonder how much those things would change. I mean, so there are just their discrete reforms that we at Cato have offered. There are legitimate concerns people have about the veracity by witness testimony and all sorts of things like that, the medical bite, the bite examiners and forensics and stuff like that. But as far as the more procedural stuff, I mean, my sense from when the jury I was on first went back to the jury room and I was foreman and so they had me, I took a vote. At that point, we hadn't really talked through much of the evidence that we hadn't been presented. We hadn't talked through it at all. And it was so more people were just kind of based on their general perspective from sitting through two days. They had a response and that was the one they gave, which in our case was almost everyone said not guilty. Everyone but one person said not guilty. And then the deliberations didn't budge anyone on that. And so I wonder if, I mean, you could make these procedural things to fix it, but it makes me think of like there's those studies done where they'll give people a very systematic matrix for grading of papers. And then the last other people just give the paper a quick read and pick the grade that kind of their gut says. And they end up getting the two groups end up getting basically the same grades. And so I just wonder if it's kind of just this general impression you get, but these kind of changes wouldn't actually affect much in the outcome. And in our case, the one person who disagreed with the group, it wasn't any sort of principal disagreement. It was simply she that this was a case where a guy had gone to a party, he brought a gun with him, someone ended up being shot at the party. It wasn't clear whether it was him who had whether he'd done the shooting, but her response was nice people don't bring guns to parties. So therefore he's guilty. So that wasn't like an instance of, you know, like different interpretations would have changed anything. So I just kind of wonder how much like the jury is such a black box. And I just wonder how much all any sorts of tinkering on the margins would matter much at all. The nerds on the jury sort of had my sentiments, whereas other people just had impressions of these people were good or bad or and et cetera, et cetera. So the, I guess, I mean, when I've talked to my Kato colleagues subsequently to this experience, they've said on average, people like you are never allowed on juries ever. And so this, this very nerdy, very make sure everything's right. We worry about convicting someone who's not guilty and all that. I mean, that's a very intellectual perspective and the ordinary people on the street just want to make sure there are no gang guys out there that are marauding in their neighborhoods, not much more abstract intellectual way of dealing with things that is common around here. How did, so the deliberations during your trial, as you said, as soon as you kind of realized that conspiracy meant being a member of an organization that carried on criminal predicate acts, which is what basically it means in the RICO statute, the deliberation was over basically because it was clear he wasn't- Well, no, I was, I mean, I, we have the charging form in front of us. So I, based on the evidence said he was guilty of being member of a criminal ongoing criminal enterprise, but then I wasn't sure whether he conspired in my sense of the word to commit this murder. But then you learned that conspiracy meant something different. I learned that my kind of narrow grammatically common, and the other jurors also said, yeah, Peter, make a conspiracy that, yeah, you sort of have to whatever. And so that's when we asked for testimony about there was a disagreement among the witnesses, i.e., the other gang members, as to whether a phone call did or did not come from an El Salvador prison and whether the defendant was there when that phone call came in ordering the hit on this person. And I said, that doesn't that matter? And it turns out it doesn't. And so then they said, well, Peter, the cell phone evidence, which we can talk about, the cell phone evidence placed all the gang members involved in that day. They went to one guy's house, and you can see the phone movement. And then they went up 270 to Frederick. And then all the phones were around where the murder happened. And then all the phones, including the victims, went down 270. And then halfway towards DC on 270, the victim's phone disappears, i.e., it was smashed and thrown out the car by the testimony we received. And that's when the cell phone records for that phone end. And so I said, that's pretty, I mean, the notion that all these guys just happened to, oh, they had cell phone evidence 30 days before and 30 days after this event, because the defense claim was that they just happened to go to Frederick to smoke marijuana in the woods with their friend. And based on the fact that they hadn't gone there before, after in a month, and then all this cell phone evidence during the time of the murder seemed, I said, I'm convinced this person was present at the murder. Okay, so then I didn't know legally what I should, what did that, could I contain it and say that there were lesser charges possible? Because the charge, the jury instructions actually talked about second degree murder and this and that and the other thing. But in fact, we weren't given that choice. And I still don't actually know why about that. So we asked the judge for some of these things. And he just sent back, please read the instructions. And it was like this. So eventually I realized this 11 people wanted to convict and Peter was asking questions and not getting very far. And I didn't know what to do. So you eventually voted to convict or yes, yes, because even though it may not make sense in terms of what you would comment, since a conspiracy isn't in the RICO sense, count one here, I'm looking at the counts. It does qualify under RICO, which is a stunningly capacious statute that can pretty much get anyone who is a member of any organization that is doing underlying criminal activity, which is, which they always say racketeer. It means racketeering. Racketeering does not mean your classic running numbers, any underlying criminal enterprise. It's I think I've read this in the charges. It says murder in the aid of racketeering. Commit murder in the aid of racketeering. Now, again, racketeering is this old term meaning, you know, who's who's running numbers. It really means anything from accounting fraud to large mafioso, which is why this statute was passed. It was passed purportedly to fight organized crime as part of the omnibus act of 1970 and so they could go after large criminal organizations and it's been misused since then to go after anyone who is a member of an organization that does anything vaguely criminal. I did ask my colleague Clark about whether there was a the legal equivalent of market failure. In other words, if he had been around, then if Cato had existed at this time, what would we have said about the need for this statute? And he said, well, there really was evidence that lots of juries and queens weren't convicting lots of people who had done very bad things and thus even Cato at the time may have said there was a reason for collective responsibility as it were, which I was surprised. He said that, that he didn't just dismiss this as made up, but rather there was perhaps a need for it and then New York prosecutors aggressively used it and the mafia as we know it has been disbanded, but he then, now the Cato perspective is that it's now being used in lots of ways, mostly white collar that never intended to be used and he hadn't actually thought about whether reviving it for El Salvador gangs was valid or not and whether it was necessary or not. How does mens rea play out in RICO? It does not. So some of these counts have mens rea. There's a civil and a criminal side of RICO and so conspiracy though is a difficulty because the underlying predicate act, you don't have to intend to... It's not a specific intent time. You just have to intend to be a member of the organization. Do you have to know that the organization is criminal? So like in that novel, The Firm, when he joins that law firm, that's actually a criminal organization but doesn't know it. The intent has to be to be a member of the organization. That's the problem here with the separation between whether or not you know that they're carrying out illegal things and I mean, I would say that you do to some extent. In this particular context... But I'm not a trial attorney. Probably like in this particular case, you kind of know that MS-13 is a criminal organization. Well, testimony was introduced in this particular case about the defendant wearing a hat made in a prison in El Salvador which said MS-13 and Normandy click on it and Facebook photos with gang signs and tattoos. That was a week of testimony about that and then gang experts saying that if you use these tattoos or use the signs without permission, then you'll be killed, i.e. kind of a brand name, misuse kind of thing and then the defense lawyer was saying... Like enforce your trademark? Yeah, they're really big on trademarks. The defense lawyer was saying, well, in this particular case now and then there are people who aren't members who do display gang signs and things like that. So trying to introduce the possibility that this was just a winter ski cap that the defendant was wearing prominently in Facebook photos and really wasn't a sign of gang membership. Well, to Aaron's question, I mean, that's part of the issue about knowing. So let's take the firm, that's a really good analogy. What the prosecutors really love about RICO is that it's insanely vague and that means that they can threaten a lot of people in an organization with criminal activity and incredibly bring charges and say, you know, so you do to know your member of the organization and then the organization, you would have to know that it somehow criminality is being... If you're just working in the accounting pool at a criminal law firm and you literally know nothing, technically that should not be illegal, but they can certainly threaten you very, very harshly. And what they really want is the ability to threaten as many people with credible conviction possibilities to get testimony out of them, which is part of the problem with RICO. And that comes up in your trial that they're really... All the people who testified against him were given plea deals. Right. And the defense... The main component of the defense was that and that we shouldn't trust any of what these folks say because they've all admitted to doing very bad things and they were facing life and now they're facing less than life. Therefore, everything they said was a lie. How did you feel about that? I don't know. The testimony of all the witnesses, the gang members, was fairly consistent and we were told that they had not been in contact with each other. And so the story, but they did have rehearsals with the prosecutors. So they basically said that this defendant was a member of the gang and it had done these things because he knew he hadn't done a murder because you need to do a murder in order to be elevated from a lower level status to a higher level status and that's what this thing in Frederick was all about. And the defendant never testified. There were no defense witnesses. The defense rested after the prosecution rested. The only defense side we saw was the cross, right? The defense attorney crossing the prosecution witnesses, i.e. the other gang members. That testimony question is very, very important and I guess never having watched someone on trial and decided whether I believe them, but I would be... If someone said you could... I'll knock 20 years off of a 30-year sentence for you to do something and I was already not a very upstanding citizen, I'm not sure why I wouldn't just lie about it. And that does seem to be often the case of the jailhouse snitch problem is pretty bad, but I mean like that's... They're doing some pretty serious sentence reductions in these. And the irony is that if you're a defense attorney and you offered to pay someone the value of 20 years of their life or five years of their life to have them testify, you would be criminally prosecuted and disbarred immediately, but the prosecutors do it all the time. Do you have any idea how much these sentences were reduced for testimony? Yes, they were. In fact, the defense made a big deal about this that basically they were, oh goodness, this is federal sentence guideline 44 down to level 36, and we were scratching our heads. Basically it seemed like these were all men in their 20s, right? And so they were... Instead of facing life, they would be facing 20 or 25 years or something like that. So that's pretty substantial. But then they would be deported back to... I mean they were all illegal except one. They would all be then deported back to El Salvador and then killed if the gang was still... I mean the weird thing is some of us wondered, do you really want to get out? And then, yes, and then would witness protection work and is that credible? And and all I know is what I see in the movies which is sometimes it seems to work and sometimes it doesn't. And so I don't... We didn't have any independent empirical evidence about that. It was very weird. I mean in some sense it seemed like we were in a movie but it was a very slow movie. Did that surprise you at all that you didn't see anyone saying I want the truth or just very clinical kind of questioning? No, that leads me to one of my other procedural observations which is this trial I was in, even though the stakes were momentous, was incredibly boring. We spent mountains and mountains and mountains of time on chain of evidence procedures, i.e. plastic bags filled with gang hats and bullets and guns and then the questions would be like, and I wrote, do you recognize this plastic bag? Yes. How do you recognize this plastic bag? Would you please open this plastic bag? What is in the plastic bag? This is all just teeing up appeal stuff, right? They're not expecting you, the jury, to go lean one way or another or care much about that. Well, it's the prosecution trying to avoid the appeal stuff. Right, that's right. So then you ask all of that. So then if he's found guilty, the defense can say, well, wait a second, at this point, you didn't ask, you asked that guy about the plastic bag and you asked that guy about the plastic bag, but you only asked that guy about a bag, but maybe it wasn't the plastic bag. We didn't realize all that. Lawyers weren't on the jury. Lawyers are never on the jury. Subsequent to being on it in my Cato seminar of the lawyers at Cato said exactly what you have said, which is the point of all this boredom is so that the prosecution messes up. So in effect, the defense wants all of this because if someone messes up, then they can perhaps... Oh, so it wasn't the prosecution asking about the chain of evidence, but it was the defense? Yes. Okay. Well, either way, because the prosecutors, they want to make sure that that's good too, but I guess to make the defense would be asking that. Again, never having done a trial, but only on appellate work, it makes sense. And my reaction to that is simply the two scandals I know of as a layperson reading the newspapers are the Harris County, Texas Lab Tech scandal, and the same in Massachusetts, where thousands and thousands of cases involved fraudulent plastic bags and or blood samples and or testimony about the chain of evidence and the accuracy of it. And my only feeling is that as a juror, the procedure I saw didn't stop all this in Texas. In other words, all this elaborate, trying to make the person accused only responsible for things that are accurate and displayed and shown in public. I sort of get all that, but this procedure hasn't stopped the two biggest scandals I know in the U.S. in recent history. And to me, it seemed like a waste of time. And I wish the prosecution and defense could stipulate that we agree that all of these things exist and we'll just focus our attention on other things we don't agree on. They would never do that. Why would they stipulate to that? Every lawyer I've met said exactly what you said, which is... You stipulate to like, you know, January 28 was a Sunday, but if there's any possibility that January 28 was not a Sunday, you do not stipulate to that. Well, you'll love this, which is there were two stipulations in the trial. And they were ironic or funny or something, which is the witnesses were, you know, El Salvador immigrants with sixth and seventh grade educations. And the one witness that kept having a dispute about whether he had a child or not, and it turns out he did, but he didn't want people back in El Salvador, i.e. his other wife or something to know this. And so he testified, no, I don't have a son. And then the next day we were quietly told that the defense and prosecution do stipulate that in fact the witness does have a child. The second thing was there's this gang initiation ritual involving beating the the initiate for 13 seconds. And so there was testimony about did the defendant beat up or witness someone else being beat up as a part of gang initiation. And they went through the count. And the prosecutor said one, two, three, and then asked the witness, how long was that? And he goes three minutes. And then the prosecution goes one, two, three, four, and he goes five minutes. And you realize he doesn't know the difference between minutes and seconds. So maybe it's a language problem. No, this was all Spanish translation. And the next day we were stipulated that the beating took 13 seconds, not 13 minutes. And the the witness does understand that, whatever that. So it was, I mean, those were the two stipulations. And I said, how come not other things? Did you get a sense? Because this is something that I noticed almost immediately in the trial that I was on was that one of the sides, the sides kind of knew what their chances were. We knew that the prosecution knew that they didn't have much of a case in our like you could just tell. Did you get a sense at all of whether one side? Well, the defense was flailing and bringing up. She would ask like, how do you know that that's your testimony? Well, because my initials are, are you reading or are you recalling? And is your read, you know, this all those are all really important legal rules that I look it into, but like whether or not you're recalling something you said and like that matters and things that may be different kind of testimonies of like maybe five years ago. Well, all these murders are five years ago. So you ask an officer to write down a statement and then you want to, if you want to be sure, you know, you can enter their statement and evidence possibly or have them read it to the court. And then these be very clear that they're reading to the court or they're remembering because then you can attack their recollection or you can attack the provenance of the paper and just a bunch of rules around that that I won't get into. But that's why the law is boring. We didn't, we didn't understand. They did a lot of that the defense attorney did and so it seemed like to that it's interesting that that seems like flailing to you when they're actually doing a good job. That would be making sure that you ask every, every witness that this is your statement. Do you recognize this? Do you recognize your signature? I'd like to, you know, submit to the court that this is the statement, that kind of thing. It's that that's a good defense attorney. Let me get to the most substantively interesting thing, which I questioned during deliberations and then we asked questions and then we were kind of left tie and drive, which was, was this murder and what the defendant did not, did not use the gun that everyone admitted to that the, the person who just real quickly then why are there questions on the, on the charge sheet? There are questions about whether he used a gun. No, not he, but whether a gun was used in this thing where he was present. Oh, use of a firearm in relation. Was brandished during, oh, so, oh, yeah, right. It's the one thing we found him innocent on was brandishing a firearm. And I raised, I said, there was no testimony one way or the other about brandishing. And I, again, I said to me, brandishing is you're showing the gun to try to achieve something. And A, it was dark. If this was at night and B, there, there was no testimony one way or the other about brandishing. All that was said was the shooter who was not here and was deported suddenly turned quickly, put a gun to the guy's head and shot. Well, that's not brandishing, is it? So we found the defendant not guilty on the charge of brandishing. That was the only. So there was this question here. How do you find the defendant as to the charge of use of a firearm during and in relation to a crime of violence in Cal 4, that there was literally no evidence and contradicted that he even had a firearm or used it to kill the guy because it was admitted that the shooter who was in El Salvador was the one who had the gun? It wasn't that. It's just that no one, neither the shooter nor the defendant brandished. That was the basis of our thinking. And again, Clark in the Cato seminar said, oh, jurors feel bad about stuff. And they try to find something that they can do to help the defendant, no matter how bad the defendant is. And you, jury that I was on, did exactly that. You found one thing. And when we talked to the judge, we asked brandishing and we explained why we didn't think that there was any evidence one way or the other about that. And we thought that was important. Oh, he said, yeah, you know, he, he, it was funny. I think I'm not sure the judge was paying attention to the trial. He was writing all the time. He was just looking like he was doing homework. And again, I've talked to lawyers at Cato since the end and they've said, oh, yeah, you're probably right. He probably, judges are busy. They've got lots of stuff to do because when, when objections were raised and things, sometimes he would go, Oh, well, tell me what you were talking about and why you're objecting. And it's like. So how did they deal with this question of stabbing a guy 13 times? The medical examiner for the state of Maryland or assistant medical examiner, whatever he was, he said the official, his official finding was death by gunshot wound and stabbing on cross. The defense attorney said, if the gunshot had not occurred, it's your testimony that none of the stat 12 stab wounds hit anything vital, correct? And he said, correct, they did not. And it is your testimony that if the shooting had not occurred and the def, and only the stabbing had occurred and the defendant had received proper medical attention, the defendant would have survived. Or was it possible that the defendant could have survived? And the medical examiner said, yes. So in deliberations, I said, well, what are we to make of this? So there's an official finding by the medical examiner. And then on cross, there's this admission that if some things had occurred. So the gunshot wound itself was not then fatal, is what you're saying? No, it was. But if the gunshot had not occurred, would the stabbings, which is what the defendant was charged with directly. But then even still like I could, that doesn't seem to get to the, the heart of the matter, which is, was he stabbing a guy who was already dead? Oh, that's the question he's asking. Right. But how so, but if the gunshot wound is, was fatal, the, the medical examiner didn't want to, in other words, he's not there at the time to diagnose brain death. Yeah, he would. The medical examiner would not be allowed to comment on that thing that he doesn't have the knowledge of. Bleeding occurred subsequent to the gunshot wound. He said the heart was beating, which is why the wounds had this kind of blood and not that kind of blood. So you can't say that the heart had stopped. Brain death is impossible to scientifically discuss ex-post. So the question was, unless you were there at the time and do an EEG, right? So the question was, if the gunshot wound had not occurred, would the defendant have died from the stabbings alone if the victim had received medical attention? And what did you determine on that? Well, the, the medical examiner said, yes, that the victim could have survived the stabbings if he had received. Or how did that affect your deliberations? Do that mean? Well, I didn't, I said, is this, I mean, I, I said in my notes, I said the defense attorney wants us to say murder is not possible here. Instead, he should be charged with desegration of, of corpse. And in fact, sort of said that in, in closing. So we asked the judge what, you know, we didn't know the legal standing of what the medical examiner said in his official statement versus then what was stated in cross. Were they of equal legal value? Did we have the discretion to whatever? And what we got back was, please read the instructions. That makes sense. Frustrating. It reminds me though of a case where in law school, in criminal law, the question was based on a guy, one guy shooting a guy while and what person a shooting person B while person C is there and then person C waiting a few minutes and then going to get a gun and then also shooting the guy who had been shot. And the question was in that case was whether or not he was still alive without any knowledge of whether or not person B was still alive. And, and did he either, you know, did he intend to kill him or did he finish him off or did he just shoot a dead body for fun? And it's, in that case, they said, you know, there's least a reasonable doubt that the guy was, was dead. I mean, it's okay for, but it creates complex situations clearly. So what is your biggest takeaway from, from this, this experience that I'm sure was, was fascinating. We wanted to bring you on to talk about them. We were joking even in the office about, I would love to watch Peter Vandoren be on a jury. It would be, it would be really fun to watch. And you've already described yourself as being the person demanding more than the other jurors. Yeah, was it, was it fun for the other jurors? Yeah, it was, well, I, I did ask them, I, I said, I mean, I did hold things up for two days and I stay, said mostly the women on the jury said, you were, we, we appreciated all your thoughts and it was important to hear that the men seem less interested. And I don't know. I mean, I, I do have more respect for the criminal justice system, do you think, or less? Or is it hard to categorize in such a way that it seems more random and puzzled? I hope I don't know. I mean, I've told my story to a seminar and, and Cato colleagues now and now the wider world in this podcast. And I don't worry at night that I did the right thing by eventually deciding to convict, but sometimes I wonder, could I imagine again, what you're taught as a kid, put yourself in someone's shoes and would you want to be treated that way? And the, you know, we're all taught that this jury institution is seven or 800 years old and it's important part of western civilization. And that's why we send people to fight wars and because of jury system and Declaration of Independence and stuff like that. And so I got to experience it. And in some ways, it was an enormous expense of public resources to pursue what for most people would seem like the conviction of someone that obviously probably wasn't up to much good. On the other hand, part of me wonders whether some of the concerns that I've raised today, we that I didn't hold out long enough or longer or, or whether I should have pursued, it would have been a mistrial. I mean, I don't think anybody would have changed their mind. And even if I achieve that, what I have been doing good by that, given that this appears to be by all descriptions, a set of young men that were up to much, much mischief in mayhem and disrupting lots of other people's lives. And I hadn't, we haven't talked about, there was Facebook test Facebook pictures and messaging after the fact in the year, there was a year after these events before the defendant was actually arrested. And if he was trying to escape the gang and you know, lay low and not brag about what happened, he was not doing a good job of it. So I think that helped me also in effect, stop objecting and go with what everyone else wanted to do. Thanks for listening. Free Thoughts is produced by Test Terrible. If you enjoy Free Thoughts, please rate and review us on iTunes. To learn more, visit us on the web at www.libertarianism.org.