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658: The Unhappy Deciders

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Prologue: Prologue

Ira Glass

Remember when the news was boring, and politics was boring? That happened, right? I'm not imagining that. You were there. I was there. That happened in our lives. I miss it. I didn't appreciate what a good thing it was when we had it.

I don't know about you, but me-- I've spent a full week obsessively reading about Judge Kavanaugh, and watching videos online, and calling people to discuss it. And I know this is just daily life in our totally divided country these days, but can I say, for me-- again, for me-- of all the moments we've had these last few years where red America and blue America look at the exact same event and come to radically different conclusions-- to me, this one feels the worst.

I think because the original hearing itself with Dr. Ford and Judge Kavanaugh-- the testimony was just so long. It was so many hours. And then both witnesses were so emotionally raw that even watching it was emotional. It was upsetting. And then since that hearing, we've had this week of waiting for the FBI report, which held us all for a week in that same state of agitation and disbelief-- Republican disbelief at the Democrats, Democrats' disbelief at the Republicans. But even in moments like this one, there are people who haven't picked a side.

And incredibly, sometimes, those people are the ones who have to decide. They have to cast a vote in the United States Senate. And it does not seem fun for them.

Today on our show, we have somebody in that situation in our first act-- Arizona Senator Jeff Flake. In our second act, we leave Washington behind. We have somebody who's literally deciding on a man's life or death, with no real experience or understanding of how to do it. Both those people, having to make these huge decisions-- they are not comfortable at all.

From WBEZ Chicago, it's This American Life. I'm Ira Glass. Stay with us.

Act One: Judge

Ira Glass

Act One. Judge.

So Senator Jeff Flake was one of the central players in the drama on Capitol Hill this last week. Turn on the TV and you'd see his tortured face. He dragged his decisions down to the wire over and over. He was undecided, then seemed like a no on Kavanaugh, then was a yes, then was a let's wait a week. It was Jeff Flake who made the Senate wait for a new FBI investigation. Then he was a yes again.

Our producer, Zoe Chace, has spent a lot of time with Jeff Flake over the last year. You may remember the hour-long episode she did, recording him for months as he tried to pass some kind of DACA bill. And she was with him in the days before and after the Kavanaugh hearing, watching what he was going through and talking to him about how he made his choices. Here's Zoe.

Zoe Chace

The first thing I want to talk about is the elevator. It's a big story-- how Jeff Flake changed his mind because two women accosted him on an elevator. I'm here to tell you that's not a true story. That's not what changed his mind.

Woman

Look at me when I'm talking to you! You're telling me that my assault doesn't matter!

Zoe Chace

I was there, right behind the women yelling. That's why my recording isn't as clear as what you heard on CNN. I'm just staring at Flake, peering out from the elevator. He had just stood me up for an interview.

Jeff Flake's face can be a little deceiving. He looks kind of miserable a lot of the time when inside, he's just humming a little tune. In this case, though, I think he was miserable. He had just released a statement saying he was going to vote for Kavanaugh. He had dashed right past a bunch of CNN reporters, and around the corner to get to the elevator, to get to the vote. And now he was stuck.

Woman 1

You are allowing someone who is unwilling to take responsibility--

Woman 2

Ma'am, I'd be happy to take you--

Woman 1

--for his own actions--

Woman 2

Talk-- ma'am?

Woman 1

--to sit in the higher court of the country.

Zoe Chace

And then he went to the meeting, where he asked for an FBI investigation for one week.

Man 1

And what they said in that elevator door appears to have led a US senator to change his mind. Their words have now reverberated around this country.

Man 2

Flake had declared that he would be voting for Kavanaugh's nomination. Then he was confronted by a mob of screaming protesters, the youth wing of the Democratic Party. Jeff Flake crumbled.

Woman

Archila was one of the two women in that confrontation with Senator Flake. Good morning.

Archila

Good morning.

Woman

When that elevator door closed with Senator Flake, did you think that history might change?

Zoe Chace

Archila and Maria Gallagher-- the other woman at the elevator-- they always hedge how influential they were. But lots of others don't. I'm reading things like, it was the elevator pitch that altered the trajectory of American history. An online site, "Support the heroes who convinced Flake," raised over $30,000 in a couple days.

Lots of people love this version of events, and I think it's because they just want to believe protest works. So much of these last two weeks has been people watching the same stuff on TV, and seeing what they want to see. Here's how I know that story about the elevator, about how it changed Jeff Flake's mind, is not true. First of all, I saw him shake his head no when asked about it by other reporters.

Woman

And did the women who confronted you this morning, did they have any role in changing your mind?

Zoe Chace

Also, we talked about it.

Jeff Flake

That wasn't the thing. It was a thing.

Zoe Chace

It was a thing-- just not the thing that convinced him. Protesters don't affect him like that. I've seen him confronted by protesters over the health care bill, the tax vote, the Dreamers. And for days now, the Capitol building has been choked with them. They're stopping senators as they move through the halls-- sometimes chanting, sometimes telling horrific, very personal stories of sexual assault.

It's everywhere, and it's a lot. Just the day before, Flake and I got in an elevator on the other side of the building. He was in the middle of a story about Lindsey Graham.

Jeff Flake

Lindsey pulled me aside last night.

Zoe Chace

Women jumped on the elevator with us. They wore "be a hero" T-shirts, and "I believe women" T-shirts. They were filming him and calling out, "Do you believe women, Senator Flake?"

Woman 1

Do you believe them? Do you support women?

Woman 2

We support women.

Woman 1

Do you believe women?

Woman 3

We support women.

Woman 2

We support women.

Woman 3

We believe women.

Woman 2

Do you believe women?

Woman 1

Thank you. Thank you.

Woman 2

We believe survivors.

Woman 1

Senator Flake? What do you have to say? Please? Do you have something you can say to women right now, and the survivors?

Jeff Flake

Glad we're having this hearing today.

Woman 3

Yes.

Woman 1

Are you going to do the right thing?

Jeff Flake

I'm glad we're having the hearing.

Woman

Because it's not your body!

Zoe Chace

Does it affect you when people yell at you like that?

Jeff Flake

The benefits of being shallow.

Zoe Chace

That's Flake making fun of himself. We've talked about this before. Like lots of men his age, he doesn't connect too well to emotions.

Woman

John McCain would have done the right thing.

Zoe Chace

And he walked into the hearing to listen to Dr. Ford and Judge Kavanaugh, not sure what to do.

Before I explain what happened next, I want to just say, going into a day like this undecided is both very rare for a senator, and very rare for everyone in America right now. I don't think being undecided could have been more scarce that day. Think about it. Do you know anybody who didn't already know who they would believe, and who they would not? The one time he spoke in the hearing, he sounded just as unsure as he had going in. And it was at the end of the day.

Jeff Flake

This is not a good process, but it's all we've got. And I would just urge my colleagues to recognize that, in the end, we are 21 very imperfect senators trying to do our best to provide advice and consent. And in the end, there is likely to be as much doubt as certainty going out of this room today. And just have a little humility on that front. So thank you.

Zoe Chace

If you watch the news, you know at least the outlines of what followed. But just to explain-- because I think you can't understand what happens at the end with Jeff Flake unless you know what happens here-- the night after the Ford-Kavanaugh testimony, Thursday night, Flake stays up all night, freaking out over what to do. Some close friends told him about their own sexual assaults. He talked to advisors. He talked to lawyers, going over what was said.

He found Ford credible and convincing, but he came back, over and over, to the fact that there was nothing corroborating her testimony. No one else could put him in the room that night. He found Kavanaugh credible also, and his anger wasn't as off-putting to him as I thought it might be. His staff said they'd never seen him like this.

Jeff Flake

It was agonizing, I have to say. It really was-- more so than anything, any decision, on a vote. I've had debates with staff, and discussions late last night, too. And it was pretty raw, you know?

Zoe Chace

The next morning, of course, Flake finally releases the statement. He's going to vote yes on the judge.

Jeff Flake

Whatever you do, they say, in the end, you've got to come back to presumption of innocence.

Zoe Chace

He goes to the elevator, gets yelled at on TV, then to the committee meeting. You know that part.

Meanwhile, Chris Coons, Democratic senator from Delaware, is on his way to the meeting with a bunch of reporters. And he gets the news that Flake's a yes. He chokes up, reportedly, says, "Oh, fuck," and then, "We each make choices for our own reason. I'm struggling. Sorry." A lot of tears in the Capitol those two days.

The meeting begins. The two sides rail against each other. Flake's stressing, gets up and makes a call. He probably checks Twitter, because he usually does. But he says he did not see how viral the elevator video was going, and the bad PR of it. He says he wasn't thinking about that at all.

So he comes back. And then Coons gives a speech at the committee meeting that he said was directed at one man-- Jeff Flake. They're actually friends. They're on the Foreign Relations Committee together. They've been all over Africa together, too. And they have breakfast almost every week at the prayer breakfast. Coons is Presbyterian, Flake reminds me, while he's a Mormon. And there was something very Presbyterian, he said-- just unadorned and practical-- about the way Coons was speaking.

Chris Coons

And I will say, briefly, at the outset, that before yesterday began, I prayed. I prayed for Dr. Ford and her family. I prayed for Judge Kavanaugh. And I prayed for all who would watch yesterday, uncertain whether we could conduct ourselves respectfully.

I know since the day that my Democratic colleagues and I learned of these allegations, we've had one consistent request-- to allow the FBI to investigate them in a nonpartisan, professional, even-handed manner, and deliver their findings to us so that we could reach a conclusion.

Zoe Chace

Flake and I talked about that moment on the phone.

Jeff Flake

That it had an impact, and the biggest impact, I'm sure. That is far more accurate than this narrative out there that it was the protesters that moved it.

Zoe Chace

That day at the meeting, Flake gets up, walks across the room, taps Coons on the shoulder, and they're on their way to a deal. Later, he explained what was going through his head.

Jeff Flake

I wasn't at peace with where I was. And when I got over there and then saw the food fight-- just resumption of yesterday's-- I said, we can't-- I can't do this. I know how this is being viewed out there, that people see this rush to judgment, and as Republicans move through and not look at the facts, and just try to get this done as quickly as possible-- and that's not good. It's not good. Long term, look what it does to the institution, it's just horrible.

Zoe Chace

Preserving the integrity of the process on the Senate Judiciary Committee is a much less romantic story than the one about two survivors of sexual assault changing a senator's mind at the last second. That's what happened, though.

And finally, that day, the world sees Jeff Flake find a third way. It's something he's been looking for for a long time on a lot of issues-- a way to vote with his Republican colleagues, but stand for certain principles with the Democrats. It's the weirdest niche. But he's a weirdo right now-- a ghost Republican. He doesn't really have a constituency he's speaking for, being anti-Trump but pro his policies.

He's retiring from the Senate in a few months. As he says, he could never have done something like this if he were still running for office. There's no value to reaching across the aisle, he says. There's no currency for that anymore. If you do that, you'll lose. So there is not much crossing over to the other side ever, by anybody-- which is maybe why, when you do cross over, this is what happens.

Man

How you doing, Senator?

Jeff Flake

Doing well. How are you?

Man

Good for you, man.

Jeff Flake

Thanks.

Man

God bless you.

Jeff Flake

Appreciate it.

Zoe Chace

This is the consequence-- New York City loves Senator Jeff Flake. I know, because the day after the committee vote, I picked him up at Penn Station and got him a taxi.

Zoe Chace

But I also called a car.

Jeff Flake

Oh, you did?

Zoe Chace

Yeah.

Jeff Flake

Oh, well don't.

Zoe Chace

Because I was like, the Senator? I don't know if he wants to wait in a taxi line. I don't know if that's a thing you're used to doing.

Jeff Flake

Yeah, I'll be all right.

Zoe Chace

No Capitol police protection, no staff-- just me, and a lot of new Jeff Flake fans.

Woman

Could we take a picture with you?

Jeff Flake

Sure. You bet.

Zoe Chace

I end up taking pictures for them.

Zoe Chace

Do you think they know that you're going to vote for Kavanaugh?

Jeff Flake

I don't know. I think that will all go away if I do.

Zoe Chace

86th and Central Park West.

Man

OK.

Jeff Flake

I don't know. I think people are so starved for any sign of bipartisanship.

Zoe Chace

I'm going to go ahead and say bipartisan, in New York, means you agree with the Democrats.

This is all happening because on my way back to New York from Washington on Saturday, I ran into Chris Coons on Amtrak. He told me Flake was on the Acela right behind us. That Flake had invited himself, along with Coons, to the Global Citizen Concert at The Great Lawn in Central Park, broadcast live on MSNBC. I can't think of a bluer place, to be honest-- a more on-the-nose location for the hashtag resistance.

So I'm surprised to hear Flake's coming too, and I text him to see if I can go. He gets me credentials, and I take him uptown. I get a little lost. Because I'm from here, I think I know where everything is, but I don't. And then we're running across the 86th Street transverse.

Man

Senator Flake? Good work.

Jeff Flake

Thank you.

Zoe Chace

New York loves you, Senator Flake.

Zoe Chace

And we head to a little trailer backstage to meet up with Chris Coons. Outside, tens of thousands of people are already out on the lawn. These two senators are going to deliver a short, impromptu speech about bipartisanship to this crowd.

Zoe Chace

Can I ask you who's performing before them, and who's performing after?

Woman

Cardi B.

Zoe Chace

Cardi B?

Woman

Is after.

Zoe Chace

Is after?

Woman

Yeah.

Zoe Chace

You guys are the opening act for Cardi B. I don't know if he knows who Cardi B is.

This is where Flake's reaching across the aisle gesture gets epically surreal-- and it's hard to top how surreal the week has been already. All these famous people keep popping into the trailer.

Robert Di Niro

What you did-- you're a hero. And it's so funny that other people don't know how simple it is to be a hero.

Zoe Chace

It's Robert Di Niro, who steps to Flake with a finger in his face, like a scene from Goodfellas.

Robert Di Niro

We rely on you. Too much had gone down with this guy. He's got to go. I know it's because they want the midterms, and this, and that. But we're beyond all that. We're beyond all that.

Zoe Chace

It's weird to hear Robert Di Niro say the word midterms.

Robert Di Niro

I'm telling you, you're a hero, man.

Zoe Chace

John Legend.

John Legend

I appreciate what you all did this week. And we just know that we're all watching and hoping that you make the right decision for the country. OK? That's all I'm saying. [LAUGHTER] You know how I feel about it.

Zoe Chace

The director Ava DuVernay.

Ava Duvernay

So thank you so much for listening to women.

Zoe Chace

Katie Holmes and Suri. Coons does not know who that is.

Chris Coons

That's great.

Jeff Flake

I don't know how to answer that question.

Chris Coons

Bring her on in.

Zoe Chace

She's the actress who was--

Jeff Flake

Used to be married to Tom Cruise.

Zoe Chace

--married to Tom Cruise.

Chris Coons

That's great. I've heard of him. I am so useless.

Jeff Flake

Come in, Katie.

Katie Holmes

Hi, you.

Jeff Flake

Good to see you.

Katie Holmes

Thank you.

Zoe Chace

To be fair, neither of the senators seems to know who any of these people are-- except Di Niro. Everyone wants a picture with the senators.

Soon Coons and Flake are rushed towards the stage, continuing to be mobbed by the Hollywood resistance. Darren Aronofsky yells to them, "I'm a film maker. I made Black Swan."

Darren Aronofsky

I'm a filmmaker. I made Black Swan. Thank you for everything you're doing right now.

Zoe Chace

I go around to the front, to see how thousands of non-famous New Yorkers are receiving this still-Republican senator.

Jeff Flake

Thanks to all of you global citizens--

Woman

Fuck you!

Jeff Flake

--who have contacted us--

Zoe Chace

That's a real New York "fuck you." The call for bipartisanship is drowned out by calls for Cardi B.

Jeff Flake

We're standing here, united for democracy.

Crowd

Cardi! Cardi!

Zoe Chace

As soon as they're offstage, though, the star treatment starts again. The Reverend Al Sharpton catches him, like we're on a red carpet.

Jeff Flake

Hey, Al.

Al Sharpton

Senator Coons just called you a hero.

Jeff Flake

Naw. Naw, he's the guy. He's the guy. He's the guy.

Zoe Chace

"Do you think we can bring this country together?" Al says. It's like a left-wing farce at this point. Random bit players keep popping out to cast liberal spells. Chris Martin, from Coldplay, gives Flake a magic pin of some sort to keep in his pocket.

Chris Martin

Oh, yeah. Jeff, here. Take this. Put it in your pocket in times of trouble. All right?

Jeff Flake

Thank you. Oh!

Zoe Chace

Flake drops it. Chris Martin leaves. We have a moment to sit down.

Zoe Chace

What is it like?

Jeff Flake

It's intimidating.

Zoe Chace

Was it?

Jeff Flake

Yeah. Well I mean, it's not something you know. This is different than a conference on Social Security reform or-- you know?

Zoe Chace

It's not the Cato Institute.

Jeff Flake

Different. No, it's not. [LAUGHTER] Far from.

Zoe Chace

What's it like having people like Robert Di Niro and John Legend be like, you're a hero? For a week-long FBI investigation?

Jeff Flake

Well, it'll last a week, too. My next vote, for Kavanaugh or for something they don't like, and I'm a pariah again.

[LAUGHTER] So you enjoy it for a week.

Zoe Chace

Do you think they know you're still a Republican?

Jeff Flake

You know, I think probably so. You enjoy it while you can.

[LAUGHTER]

Zoe Chace

Jeff Flake's had a rough few years. They hate him on the right, and he keeps disappointing the left. It feels good, for once, to be popular.

Zoe Chace

Are you happy? Do you like it?

[LAUGHTER]

Jeff Flake

Oh, yeah. Every politician does. We like it. Politicians-- we feed on it. That's a-- whether we admit it or not.

Zoe Chace

And then it happens, just like he predicted. After seven days of being treated as a Democrat-- or at least a Republican defector-- Flake comes home to the GOP. On Thursday, the FBI releases the report that he called for. On Friday, Flake announced his decision. He's a yes on Kavanaugh. I reached Chris Coons that afternoon.

Chris Coons

Look, Jeff and I both went to the same place, and read the same report. And I appreciate his friendship. We are viewing this through a different lens. Jeff is a conservative senator. He has always wanted a conservative on the Supreme Court. I am not, and I don't.

Zoe Chace

Coons thought the FBI report was a disgrace, basically. They didn't follow up on any leads, he said. It was not the investigation he had asked for last week. He was mad. Frustrated. Kept going off the record and raging. He would not tell me about his conversations with Jeff Flake after they both read the FBI report.

Chris Coons

I'm really trying not to either put words in his mouth or criticize him, because-- I am restraining myself from saying something that is not appropriate here.

Zoe Chace

As soon as Flake voted Friday, he fled the Capitol. I talked to him in the car. People are mad at you again, I said. Well, that's how it goes, he said. Why did you vote yes, I asked him? Presumption of innocence, he told me, over and over. He was satisfied with the FBI report.

Zoe Chace

Do you feel better now? You're kind of back among your people. You had kind of a week with the Democrats celebrating you, but you're back among your people.

Jeff Flake

Do I have people? I guess so. I am a man, temporarily, without a party.

Zoe Chace

There is no bipartisan right now. There is no aisle to stand in the middle of. To quote a film that Robert Di Niro was not in, but kind of-- "Don't ever take sides with anyone against the family. Ever."

Ira Glass

Zoe Chace is one of the producers of our program. Let's turn now to this recording that we found of Justice Anthony Kennedy. Kennedy, of course, is the retiring judge whose seat Brett Kavanaugh was nominated for, the swing vote on the Supreme Court for years. This is him being questioned in a Q&A back in 2010.

Woman

As you stand here today, Justice, a potential colleague is starting the confirmation process. How has the process changed since you went through it?

Anthony Kennedy

Well, I liked my own.

[LAUGHTER]

Remember, the Senate is a political body, and they have to act in a political way. The framers knew that. And it's really not for me to tell the Senate how to structure that process. I do think it has the obligation to recognize the necessity of preserving the neutrality, and the independence, and the integrity of our court.

What you should ask is whether the judge has the temperament, the commitment, the character, the learning. I think the judge should be broadly read. I, myself, was fascinated with political theory. If you ask what makes a good judge, you're going to get an autobiography, so you have to be careful about that.

[LAUGHTER]

So the Senate has a-- really, very difficult position.

Ira Glass

Kennedy was speaking to an audience including high school students. People asked him about his favorite cases, if he had always wanted to be on the Supreme Court-- no, by the way. He was funny. He was a good talker. And he explained his job-- how it works.

Anthony Kennedy

We will meet, just the nine of us, and discuss the case. We begin in order of seniority, from the most senior judge to the least senior. And if the case is one in which there are great issues of public policy involved, we know that we're required to make a decision. The courts have been divided on it. And let's assume that it's a five-four case, and it's not just reverse or affirm. It's a question of the rationale, the principal, the reasons that you give.

And let's say it's five to four. The five in the majority don't have a lot of back slaps, and high fives, and thumbs up. There's a moment of awe as we realize, one of us will have to write an opinion that commands the allegiance of the American people. An opinion that explains, that teaches the principles of law, the principles of the Constitution, that control the result.

And when we issue that opinion in, say, an unpopular case, we draw down on a capital of trust. We make a withdrawal on the trust that the public has in our constitution. And it is our job always to replenish that trust by adhering to our judicial oath, by adhering to the principles of neutrality, and independence, and fairness, and quiet discussion, and decency, and courtesy, and scholarship. That's the way our court works.

Ira Glass

OK, one more story. I don't know if this tells us anything profound about Anthony Kennedy or the Supreme Court, but it's just fun to hear how he talks about this.

Anthony Kennedy

I was meeting, one time, with our judges and attorneys in Alabama. And I think it was a Saturday morning. And for my schedule or theirs or both, it was at 9 o'clock in the morning. And they were dressed casually, ready to play golf or tennis. And they were gracious enough to hear me for a few minutes.

And so I said, well, do you have any questions? And one attorney raised his hand and said, now, you have all that tremendous amount of reading to do-- all of those briefs. How do you possibly do that? I said, well, I have four clerks, and I divide them up among the clerks. Of course, I have to read them all.

And if they're very difficult cases, I will take them home and read the briefs a second time over the weekend, just before argument. And I like music. I have opera playing in the background. And I sometimes have cases that are one-opera cases, sometimes two-opera cases.

[LAUGHTER]

Well, the minute I said that, I kind of knew I lost the audience. They were too polite to roll their eyes, but it sounded kind of, what, intellectually pretentious? You know, here's some eastern guy talking about the opera. So I thought I'd lost the audience, but I was saved because an attorney in the room raised his hand. He said, well, I have a rule like that when I write those briefs. I said oh, yes? He said, I have a one six-pack brief and a two six-pack brief.

[LAUGHTER]

I said, I think I remember your last one. It was a three six-pack brief.

[LAUGHTER]

Ira Glass

Who'da thunk? Lawyer likes beer.

Thanks to the Forum Club of the Palm Beaches for that recording of Anthony Kennedy. Coming up, a total and complete amateur has to decide a death sentence. His only previous experience in these matters? Watching Law & Order. That's in a minute from Chicago Public Radio, when our program continues.

This American Life. I'm Ira Glass. Today's program, "The Unhappy Deciders"-- stories of people who are saddled with difficult, momentous decisions to make-- decisions that will determine someone's fate for the rest of their life, decisions that weigh on them.

Act one of our program today was about a judge. Act Two is about a jury. And we'll just get right to it.

Act Two: Jury

Ira Glass

This story comes to us from the podcast Heavyweight. If you haven't heard Heavyweight, it's hosted by one of our regular contributors here, and a former producer of This American Life, Jonathan Goldstein. And the premise of the show is that each episode, people come to Jonathan with something in their life that they want to fix, they want to deal with, they want to make right with another person. Usually it's something they've been living with for a long time, and they're uncomfortable with.

And Jonathan plays a kind of bumbling Detective Columbo figure, but one who actually is kind of bumbling and awkward. But he gets the people to sit down, and talk, and hash things out. Many of the episodes are really funny. The one that we have today is a more serious one. Anyway, here's Jonathan Goldstein.

Jonathan Goldstein

In 2008, Sven received a letter for jury duty.

Sven Berger

Lots of people would say, oh, this is such a boring thing. Oh no, I hope I don't get jury duty. But I was more curious and interested in the process. And I liked watching stuff like Law & Order, and other things like that.

Jonathan Goldstein

SVU, Criminal Intent-- Sven liked them all. He was a software developer, newly married. And he and his wife had just bought a new house-- his first. The house had a flagpole in the front and a hammock out back. After work he'd come home, relax on the couch, and watch his legal dramas. Jury duty was going to offer an inside view of the TV shows he loved.

Sven Berger

I wasn't fooled into thinking it was some weird, glamorous thing like that. But I thought juries were interesting-- the idea of judging your peers right or wrong. I've always sort of had a sense of civic responsibility.

Jonathan Goldstein

In my book, the only thing that makes responsibility less appealing is adding the word civic to it. Paying your taxes, appearing before a zoning board-- not for me. Like most, when I appeared for jury duty, I prayed for dismissal.

Not Sven, though. During the selection process, he engaged with the questions the lawyers posed as best he could. And when he was asked how he felt about capital punishment, he answered candidly.

Sven Berger

I believe bad people should be punished in that way, or could be punished in that way. And so I wouldn't say I was strongly for it, but I wasn't against it. And consequently, I got on the jury.

Jonathan Goldstein

The case was The State of Texas versus Paul David Storey. Storey was a 22-year-old accused of the murder of Jonas Cherry, the manager of a mini golf course in Hurst, Texas. Storey and an accomplice forced Cherry into the back office, made him unlock the safe, and put the money-- a few hundred dollars-- in a bag. And then they shot him multiple times.

Storey's trial lasted two weeks, and would have felt familiar to anyone who watches TV courtroom dramas. There were lawyers with thick binders full of ballistics reports and medical examinations, character witnesses were called, and disturbing photographs of the victim's body were shown. The only thing missing was any suspense about the verdict.

Sven Berger

There was no doubt that he was guilty of murder and robbery. And so really, as a jury, all we had to worry about was sentencing.

Jonathan Goldstein

The jury had to decide between life imprisonment or the death penalty. It seemed the victim's family knew what they wanted. "It should go without saying," the prosecutor announced to Sven and the other jurors, "that all of Jonas's family and everyone who loved him believe the death penalty is appropriate."

The prosecutor asked the jurors to sentence Paul Storey to death. The instructions stated that for the death penalty to be imposed, the jurors must judge three things to be true-- that Paul Storey was guilty, that there were no mitigating circumstances-- like, say, mental illness or provocation-- and lastly, that Storey posed a future threat to his community.

Sven Berger

That was the one I had issue with. I seriously doubted that he would be a continuing threat to the prison community.

Jonathan Goldstein

And what was it about Paul Storey that made you feel like you just didn't necessarily see him as a continued threat?

Sven Berger

A couple of things. His testimony--

Jonathan Goldstein

The young man Sven saw in the courtroom appeared confused, in over his head, and remorseful. This was his first offense. And some of the evidence suggested that it was Storey's accomplice who had been the mastermind behind the horrible crime, as well as the one who had fired first. Sven was certain that Paul Storey should be punished, but he didn't think he should be put to death.

Sven Berger

But in the jury chambers, there was a very different feel. Everyone else was in favor of the death penalty. And so faced with almost a dozen other people who already felt strongly, I didn't think I could convince anyone of what I was thinking. I'll be honest-- I was scared.

Jonathan Goldstein

At 27, Sven was the youngest juror by several years. And he was the kind of guy who avoided speaking up at all costs. At home, if his neighbor parked in his space, he let it go. At the office, if his boss told him to do something, even if he disagreed, he did it without question. In other words, even though he'd been looking forward to being a juror, when he found himself in the jury room, Sven wasn't exactly Henry Fonda in 12 Angry Men.

The way he understood it, the jurors had to reach a unanimous decision. And the idea of swaying 11 strangers over to his way of thinking seemed impossible. He was also afraid that if he opposed the group, it would result in a hung jury and a mistrial. They'd have to start the whole process over again with a new jury. Everyone would be mad at him. So Sven said nothing.

An hour and a half later, Paul Storey was sentenced to death by lethal injection.

Sven Berger

It was hard to look at him during the sentencing. We sat waiting for the judge to ask us, what's the sentencing? And everyone was really tense. And the woman next to me-- another juror-- began crying. She was trying to hide it. And I gave her my handkerchief. And she just wept.

Then the foreman announced the verdict, and I think his mother cried out. They had an exit for us to go through after we collected our things. And we were out of that courtroom fast.

It felt like a mistake right away.

Jonathan Goldstein

Sven went over to his parents' house, where he had dinner and drank scotch with his dad. He told his family about the trial. And then he went home, where he had more to drink before bed.

Sven Berger

And then that was that. Then it was over. And then I went on with my life.

Jonathan Goldstein

Or at least he tried to.

Sven Berger

But what did you do with these feelings? I was just stuck. It was done. It was cast in stone. And-- yeah, no, I felt terrible. I felt massive amounts of regret. I felt guilty, sending someone to death row.

Jonathan Goldstein

When you think about the people that a trial effects, you think of the victims and their loved ones. And you think of the accused, their families, and what they're going through. You don't usually think about what it does to the jurors. But for Sven, the trial wasn't something you could put behind him at the crack of a gavel.

In the days and weeks after the verdict, he read every article about the case he could find. But the more he read, the more shame he felt. So eventually he just stopped.

Sven Berger

I realized it wasn't really healthy.

Jonathan Goldstein

At the time, Sven was a regular drinker.

Sven Berger

And it only got worse after the trial. It got a lot worse after the trial.

Jonathan Goldstein

He was drinking more, beginning as soon as he got home from work, and spending more days hungover. His wife didn't understand what was going on.

Sven Berger

It may have contributed to my divorce, which was the following year.

Jonathan Goldstein

A year after the trial, and Sven's life had changed. The new house with the hammock and the flagpole was sold, and Sven moved out of Texas.

Sven settled in Olympia, Washington, to start his life over. He found an apartment for himself and his cat, Niku. But he couldn't shake his memories of the trial. When a friend bought a secondhand silver Nissan, Sven couldn't stop thinking about how that was the same car the victim, Jonas Cherry, had driven. When addressing coworkers, the name Jonas would accidentally slip from Sven's lips. And Paul Storey, who still was on death row, was never far from Sven's mind.

He tried to escape through alcohol, but it didn't free him from his shame. Sometimes, after a night out drinking, he'd return to a Facebook page Paul Storey's mother had made for her son. One mother had already lost her son. And now, because Sven had been too afraid to speak up, another mother was going to, as well.

Sven Berger

I'm not trying to excuse his crime. It was terrible. But to send a guy to death? The presence in your mind, the recurring thoughts about it-- can that go away?

Jonathan Goldstein

For all the bad rap it gets, shame offers a certain safety. It provides a comfortable hole to hide in, away from the judgment of others. But it can also lead to isolation and inertia. And for eight years-- eight years in which Paul Storey sat on death row, awaiting an execution date-- Sven barely talked about the trial with anybody.

But then, in 2016, the year after Paul Storey's federal appeal had been denied, a reporter writing a series of articles about the judicial system approached Sven about his experience as a juror. Sven was tired of being all alone with his regrets. And so, for the first time, he opened up about his feelings.

"I felt guilty," he told the reporter, "and sad, and a little helpless. I don't think I made the right call." Sven had hoped that talking about the trial might help. And it did-- up until the article was published. That was when Sven received an uncomfortable phone call from a lawyer who had read the article.

Sven was at work. Fearing his coworkers might overhear, he took the call outside, behind his office building. It was there that he learned that, eight years earlier, he had misunderstood a key part of the jury instructions.

Sven Berger

I thought incorrectly, essentially. I believed I would have to convince everyone to choose life imprisonment when, in fact, all I had to do was decline the death penalty. And that's all it would have taken.

Jonathan Goldstein

Preventing the death sentence only required one dissenting vote-- a vote Sven could have cast. So there would have been no mistrial, no hung jury. And instead of the death penalty, Paul Storey would have gotten life in prison without parole.

Sven Berger

That would have been nice to know. I could have changed-- well, I could have let him live.

Jonathan Goldstein

After the article was published, something else happened-- something Sven never expected or wanted. Paul Storey's mother, Marilyn, got in touch.

Sven Berger

She reached out with an email filled with sentiments of forgiveness. She had forgiven me. And if I wanted to, I could reach out and talk with her. And knowing that there is that forgiveness-- it felt so weird, like it wasn't something I could completely understand.

Jonathan Goldstein

For Sven, it didn't make sense. Why would Marilyn want to speak with him? How could she, of all people, forgive him for something he couldn't forgive himself for?

Sven Berger

I didn't know how to deal with-- I still kind of don't know how to deal with that. And I couldn't match her message.

Jonathan Goldstein

How do you mean?

Sven Berger

Well, I wasn't sure how to reply with something as powerful as that. It just floored me. I didn't know what to say.

Jonathan Goldstein

Sven was never able to write Marilyn back.

Sven Berger

I did-- began a reply, but I didn't have the courage to finish or send it. It's just, there's so much pain in there, and-- I feel like I really wrecked things up.

Jonathan Goldstein

A few months after Sven received Marilyn's email, an execution date was set. The state would put Paul Storey to death on April 12 of 2017. But then something unexpected happened. Glenn and Judith Cherry, the parents of the victim, came forward.

It seems that, at the trial, the prosecution had lied. The Cherrys, in spite of their son's murder, are and always have been against capital punishment. In a video they released publicly, Judith Cherry presents a statement which reads in part, "We do not want Paul Storey's family, especially his mother, to witness the purposeful execution of their son. They are innocent of his deeds."

Based on this testimony, with only five days to spare, Paul Storey's execution was postponed. When news of the stay of execution reached Sven, it felt like a second chance, an opening to finally respond to Marilyn's email. But he didn't.

It's now been over two years. He's remarried, doesn't drink anymore-- but he still hasn't contacted Marilyn.

Jonathan Goldstein

And so at this point, what do you want?

Sven Berger

I need to apologize for not doing what I should have done to begin with, for not following my gut, for not trying.

Jonathan Goldstein

Shame leads to inertia. And as even the most casual reader of the fundamentals of physics will tell you, an inert object will remain inert until it is acted upon by an external force. In other words, it takes a little nudge. And who better to supply a little nudge than a little "nudge?"

And so I write Marilyn a letter. "I know this is a really sensitive and deeply personal issue," it reads, "and I hope I'm not being too forward." I ask Marilyn if she remembers a juror by the name of Sven Berger. About a week later, I receive a note back via email-- "Thank you so much for your letter," Marilyn writes. "I have no ill will toward Mr. Berger. I have offered him my email address, as well as my phone number, with no reply."

She also forwards her original email to Sven-- the one she sent two years ago, the one he can't stop thinking about. When I read it, I'm expecting a grand gesture of forgiveness. But Marilyn never mentions forgiveness-- never even uses the word. Instead, it's just six short sentences in which Marilyn thanks Sven for the article, and says she shared it with her son. Her tone is breezy. She ends with, "have a great day," exclamation mark.

I understand that Sven, consumed by guilt, would read so much into so little. But what I don't understand is why Marilyn sent him the email in the first place.

Jonathan Goldstein

I know you had jokingly mentioned breakfast.

Marilyn Storey

Oh, I was joking.

Jonathan Goldstein

I have a couple little things, if you get peckish at all-- some croissant, some of this stuff. I don't know, some cookies.

Marilyn Storey

No, I'm fine.

Jonathan Goldstein

Yeah? OK.

Marilyn lives in Fort Worth, Texas. The two of us meet in a hotel suite downtown where I can't stop offering her food that she can't stop refusing.

Jonathan Goldstein

Do you want to have a coffee, or a tea?

Marilyn Storey

No.

Jonathan Goldstein

Marilyn is tall and stately, with smiling eyes. She's in slacks, boots, and a cropped blazer, all in black. She sits on the end of the couch, next to an empty armchair, and tries to give me a sense of what her life was like before the trial.

Marilyn Storey

I was always the life of the party. I mean, I was a jokester-- oh, make sure you have Marilyn there, because she's going to keep the party going. I was always kind of the one that everybody went to. People knew you can call me in the middle of the night. If you need somebody to come pick you up, call Marilyn. She'll get up. She'll go do it.

Jonathan Goldstein

Since the trial, Marilyn doesn't feel like the same person. Every day, she's reckoning with the horror of her son's crime, and worrying endlessly about his safety in prison. Her friends have fallen away. The thing that's hardest, though, is how the people who remain-- the people closest to her-- now look upon her son.

She says that everyone's passed judgment on Paul, written him off as worthless and un-redeemable. And they blame him for her pain.

Marilyn Storey

And I even had a family member where-- Paul is the cause of all of this. And that was very hurtful. It's like they wanted everything to be OK, but that's my child. And I love him. And I'm not going to ever stop fighting for him.

Jonathan Goldstein

Fighting for him meant working with her son's lawyers to change his sentence to life in prison.

Marilyn Storey

Paul's appeals were exhausting.

Jonathan Goldstein

It took up all of her time and energy, which affected the hospitality job she worked out for over 30 years.

Marilyn Storey

It became extremely hard for me to concentrate at work. And I feel like it cost me my job.

Jonathan Goldstein

After losing her job, Marilyn then lost her house. She was forced to move in with her younger son.

Marilyn Storey

So it's like, at my age, where I thought that I'd be getting ready to retire, I'm starting over. So that's a hard thing.

Jonathan Goldstein

10 years after the trial, and everyone-- her friends, her family-- have all moved on. So when Marilyn read Sven's article, she saw in him someone like her-- someone who had never gotten past that final day of the trial.

Marilyn Storey

When they actually gave the sentence-- the death penalty-- I thought I had died. I thought I had literally died. It didn't even register. Because I'm just like, what just happened? What have they done? My whole time there, I was just looking at the jurors to try to read, OK, what are they thinking? What are they doing? I wanted them to know, if I could only tell them what kind of person he is.

And I want people to know-- they assume that if you're involved in a heinous crime like that, that you're a monster. But he wasn't a monster.

[PHONE RINGING]

Jonathan Goldstein

I think that might be him. So he's going to come up.

Marilyn and I have been talking for about an hour and a half when the front desk phones.

Jonathan Goldstein

I think it probably--

Marilyn Storey

Now, how do you pronounce his name?

Jonathan Goldstein

Sven.

Marilyn Storey

Is it "Sven?"

Jonathan Goldstein

Sven-- S-V-E-N.

Marilyn Storey

Sven, yeah. Sven.

Jonathan Goldstein

Sven, yeah.

Marilyn Storey

Sven. I hope I get that before he gets here.

Jonathan Goldstein

But before we get a chance to practice our Svens, Sven is at the door.

Sven Berger

Hi.

Jonathan Goldstein

Hi, Sven. I'm Jonathan. It's very nice to meet you.

Sven Berger

It's nice to meet you in person.

Jonathan Goldstein

Marilyn is here.

Sven Berger

Hi.

Marilyn Storey

Now, how do you pronounce your name?

Sven Berger

Sven.

Marilyn Storey

Sven.

Jonathan Goldstein

Sven lingers in the door of the hotel room.

Jonathan Goldstein

Here, sit down. Have a seat over there.

He's bespectacled, and neatly dressed in a collared shirt and sweater. He looks around and clears his throat.

Sven Berger

I'm a little nervous. So there was--

Jonathan Goldstein

The last time Marilyn and Sven had been in the same room was 10 years ago, at the trial. Marilyn was seated behind the bar. Sven sat in the jury box. But today, he sits down in the empty armchair beside her. He can't quite bring himself to look at her. As he tells Marilyn what it was like to receive her email, he gazes down at his lap.

Sven Berger

It was very surprising. And I read it, and I reread it. And I even began several letters that never went anywhere. I didn't know what to say. What do you say about that? I don't want to write a letter that's trying to make me feel better. Do you know what I mean?

Marilyn Storey

Mmm hmm.

From the moment the vote was cast, I had regret. I thought, I am doing the wrong thing. And although it was great hearing that you forgave me, I couldn't forgive myself, exactly. And I can't even imagine how you must feel.

Marilyn Storey

First of all, I want to say I don't want you to feel shame, because my son was involved in a crime. He made a wrong choice. And I don't ever want you to feel that you did anything wrong. You did what you felt you had to do at the time. But you came back. And for you to come out, and for you to say hey, I made a mistake-- you right your wrong.

Jonathan Goldstein

I can tell by Sven's face that he isn't convinced. He doesn't feel like he's righted anything. This is because for years, Sven has been avoiding all traces of the case-- no googling, no newspapers. He never even read the article he'd been interviewed for. So he doesn't know what Marilyn knows, which is the chain of events that his article set in motion.

The jury instructions for Paul Storey's case were written in dense legalize, and nowhere in their nine pages did they state that a single dissenting vote can prevent the death penalty. In fact, courts in Texas are prohibited from telling jurors that. In theory, that's to encourage them to arrive at a consensus. But what it means is Sven's confusion wasn't his fault.

For years, legal advocates had wanted to bring a bill before the legislature that would clarify the instructions. But they needed someone who could say, I would have done things differently if I had understood. Marilyn explains to Sven that with him, and the things he'd said in the article, they had finally found that person.

Marilyn Storey

There are senators in the state of Texas who have introduced a bill based on you to change the way the instructions are given to a death penalty jury.

Jonathan Goldstein

Sven, slumped in his chair, straightens up.

Sven Berger

Really?

Marilyn Storey

Yeah. You have no idea what sort of impact you had.

Sven Berger

I don't know anything about that.

Marilyn Storey

You were very instrumental.

Sven Berger

This is-- I'm shocked.

Jonathan Goldstein

While his eyes have tended to dart around the room, looking at me or down at his hands, right now Sven is looking directly at Marilyn. She tells him that had he in fact voted against the death penalty at her son's trial, these attempts at reform might never have happened.

Marilyn Storey

I'm a firm believer that things happen for a reason, because this is not just about my son. It's about other mothers' sons that are on death row, as well. So if this can help any other case outside of Paul's, then we've served our purpose. You came forward. So I look at you as my hero.

Jonathan Goldstein

Sven physically shrinks from the word hero. It's as though she's placed a large, awkward crown atop his head.

Sven Berger

Wow. That's not the way I'd considered myself, or my actions in any way. I don't feel that special.

Marilyn Storey

Oh, to me.

Sven Berger

But I appreciate all your words.

Marilyn Storey

To me, you are.

Sven Berger

That's a lot to process. I had no idea.

Jonathan Goldstein

You didn't know any of this?

Sven Berger

No.

Marilyn Storey

Oh, the articles-- there is a really good one in The Texas Tribune. I actually printed it out for you, but I wasted Coca-Cola on it, so I didn't want to give you an article that was-- but you should look it up.

Sven Berger

This blows my mind. Sorry, I'm a little at a loss for words. Walking in here, I didn't know what to expect. And I was a little nervous. I do feel, even just now, a little bit of weight taken off my shoulders.

Marilyn Storey

I can tell.

Sven Berger

This helps. This helps so much. Oh, this helps so much.

Jonathan Goldstein

After all these years, Sven is finally able to accept Marilyn's forgiveness, even if he still isn't ready to forgive himself.

Sven Berger

It chews me up, today, that I didn't express a dissenting opinion. I should have spoken up, at least. I mean, I didn't think he would be a danger to the prison community. I didn't see a hardened criminal there. I got the impression of sort of a kid who was in a situation he didn't know how to handle. I saw someone who made a terrible mistake, and someone I did not believe would do it again.

Jonathan Goldstein

As Sven speaks, Marilyn's eyes well up.

Marilyn Storey

I kept looking at the jurors, and I was like, it has to be somebody on there that feels, and that can see through all of this that the prosecutor is presenting, and everything, to know that my son is not a monster.

Sven Berger

No. No, never. I never saw Paul as a monster.

Jonathan Goldstein

After the crime, Marilyn's family never saw her son the same way again. From that moment on, he was nothing more than a murderer. And on the final day of the trial, 12 jurors confirmed that judgment. Her hope had been that maybe someone had seen something else. It wasn't a hope for someone to recognize in her son anything special or good. She just wanted them to see him as something other than a monster.

Sven Berger

I didn't see that.

Marilyn Storey

Thank you. I appreciate that so much.

Sven Berger

Throughout the trial, I never saw that once.

Jonathan Goldstein

Paul Storey is still on death row, and Sven still can't reverse the sentence. But in speaking aloud the words that Marilyn's been repeating to herself for so long, Sven's made her feel less alone.

Marilyn Storey

You have-- some of the hurt that I have carried on my heart for the last 12 years. You just lifted it. You have no earthly idea what that meant to me. It meant a lot. And for you to say that-- it really eased my heart.

Jonathan Goldstein

After years of worry over what to say to Marilyn, Sven's finally found the right words.

Sven Berger

I'm sorry I never wrote back.

Marilyn Storey

That's OK. I totally understood. That's a lot.

Jonathan Goldstein

Since Sven and Marilyn's meeting, a judge made an official recommendation that, based on Glenn and Judith Cherry's testimony, his sentence be changed to life in prison without parole. Though the Court of Criminal Appeals still has to make a final ruling, Storey's lawyers are hopeful-- and so is Marilyn.

As for Sven, after finally responding to Marilyn, he decided to send a letter of apology to Paul Storey. "I couldn't find the strength to speak up in the jury room," he wrote, "and that is a mistake I will carry forever." Sven has yet to hear anything back.

Ira Glass

Jonathan Goldstein is the host of Heavyweight. His producer for this story was Stevie Lane. Heavyweight just started their third season with an episode about comedian Rob Corddry. You can find their podcast at gimletmedia.com/heavyweight. Or you can just Google or just get it wherever you get your podcasts.

Credits

Ira Glass

Our program was produced today by Diane Wu. People who put together today's show include Zoe Chace, Dana Chivvis, Neil Drumming, Damian Grave, David Kestenbaum, Anna Martin, Miki Meek, Nadia Reiman, Robyn Semien, Alissa Shipp, Lilly Sullivan, Christopher Swetala, Matt Tierney, and Julie Whitaker. Our senior producer is Brian Reed. Our managing editor is Susan Burton.

Special thanks today to Victoria Camp, Seung Min Kim, Meagan Shepard, Ben Terris, Kalila Holt, Peter Bresnan, Jorge Just, Alex Blumberg, Maurice Chammah, Amanda Marzullo, Elie Mystal, Lawrence Stengel, Richard Holwell, Pamela Bresnahan, and Nina Totenberg.

Our website, ThisAmericanLife.org, where you can listen to our archive of over 600 episodes for absolutely free. This American Life is delivered to public radio stations by PRX, The Public Radio Exchange.

Thanks, as always, to our program's co-founder, Mr. Torey Malatia. Every time he and I play tennis, he makes me so mad the way he serves. And when I get mad, he always reminds me--

Torey Malatia

Quiet discussion, and decency, and courtesy. That's the way our court works.

Ira Glass

I'm Ira Glass. Back next week with more stories of This American Life.

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