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Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 416. I’m Thomas, that’s Andrew. How’re you doing?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: Uh, let me see, let me check the air quality map. It looks like we finally have oxygen here. [Deep breaths] Ah! Okay! I was holding my breath for that whole two weeks but I can finally breath because we have oxygen, I checked the map.
Andrew: Oxygen I have always thought was overrated but, you know, if you’re a triggered little snowflake that needs oxygen that’s fine.
Thomas: [Laughs] Yeah, I mean I’m sure this is just the wildfires are taking a break. They’re just like “eh, getting a little tired!”
Thomas: I’ve been at this a long time! [Laughs]
Andrew: They’re all watching the RNC right now! [Laughs]
Thomas: [Laughs] They’re like “we’re just taking a couple days off, we’ll make up for it, we’ll burn even more! Don’t worry.” It’s suspicious. We’re in the eye of the … fire, I think!
Andrew: Didn’t know fire had eyes! Anyway.
Thomas: Wow. Announcements before we get started?
Andrew: Yeah. As I just alluded there, most of what’s going on this week with respect to the RNC is just political stories, which, you know, there are lots of great places to go for political coverage. Probably recommend some here, SIO, Skepticrat, that sort of thing. But a lot of folks have been wondering, since if you randomly turn on the Republican National Convention, your odds of coming across a speaker whose surname is “Trump,” seem to be about 50/50.
Andrew: Looks a little weird.
Thomas: Not to mention the Secretary of … State, was it?
Andrew: Yeah. You know, a lot of people in their official capacities endorsing the President, so we got questions about the Hatch Act. We are going to do a deep dive on the Hatch Act next week.
Andrew: Look for that on Tuesday’s show.
Thomas: Hatch would be rolling over in his grave, whoever that is.
Andrew: [Laughs] It’s not-
Thomas: Hatch gave us the most useless act, of all the acts. That’s gotta be one of the most useless.
Andrew: Yeah, and it is not Utah Senator Orin Hatch.
Andrew: This is slightly older – well, it’s not older than Orin Hatch, but it does predate-
Thomas: Yeah, nothing is.
Andrew: [Laughs] -predate his service in governance from 1939, so.
Andrew: It’s only 81 years old. I think Orin Hatch is older than that, right?
Andrew: [Laughs] Sorry! I was looking to you to fact check Orin Hatch age.
Thomas: Well, he’s a billion.
Thomas: Yeah, no I have personally-
Andrew: That seems legit.
Thomas: I haven’t messed with the coverage of the RNC because it’s just really loud fascism. It’s fascism, it’s lying, and it’s really shouty. I don’t really – [Laughing] what more analysis do we need? I don’t – unless they’re gonna break down which particular uppers Donald Trump Jr. and his girlfriend are on? That’s the only analysis, I think, that is outstanding.
Andrew: I will say, it matters – I have been unable to convince Republicans with whom I have conversed that it is kind of a big deal that, you know, the Republican party, which was created in 1854, has put out a platform-
Andrew: Every election since 1856, except not this one because it’s just “we support Donald Trump.” That should – if you’re a registered Republican that should terrify you. It would terrify me if in 2012 the Democratic party was just like “nope, all we are is Obama 2012.” That’s crazy pants!
Thomas: I saw – you tweeted that and, you know, every time I’m like “shouldn’t be surprised anymore.” But they didn’t even have a platform! It just said on the website “see 2016.” They just redid the – [Sighs] wow.
Andrew: And the running campaign ads featuring footage of people rioting in America-
Andrew: Saying “this is what will happen in Joe Biden’s America,” and it’s just … at some point you’re the President!
Thomas: Ah, that’s enough.
Andrew: Let’s get on with the show.
Thomas: I’m so glad you brought that up because I was flabbergasted and I’ve re-gasted my flabber and now I’m flabbergasted again. I’m all over again. They didn’t even do a platform! [Sighs] Okay.
Thomas: Anyway, let’s get on to our delightful show! [Laughs]
Postal Service Follow-Up
Thomas: Updates from the last show, which was a deep dive on the Postal Service, what’ve you got?
Andrew: A couple of things, and these all qualify as good news. The first is we got an email from a listener who works for the United States Postal Service and is (quote) “incredibly active in their Union,” the National Association of Letter Carriers. I am not going to mention this person by name, [Laughing] for reasons that will become clear on next Tuesday’s show. But here’s what that person said, he said “during your show you make numerous points about the Postal Service that are accurate, and I sincerely appreciate you discussing the issues that we’re facing,” well thank you! “I wanted to share some additional information. One, overtime has not been changed in any meaningful way.”
Andrew: Well, that is certainly good to know from that person’s experience. I put that out there for context. Obviously, there have been reports that there have been meaningful denials of overtime in certain metropolitan areas, but again, good for context. “Two, carriers do not make second trips through their routes anymore and haven’t since I began working for the Postal Service in 2014. If you receive mail for a second time in a day, it’s typically because the carrier missed that mail on their first delivery and we don’t bring deliverable mail back to the office barring an emergency. The directive that is in place holds mail at distribution plants, not Post Offices. Any mail that enters a Post Office and is processed before the distribution time – it tends to be 8:30 a.m. – is sorted to carriers and delivered that day. If the mail is not delivered it must be reported as delayed and failure to report leaves both the carrier and the supervisor open to a criminal charge under 18 U.S.C. § 1703.”
Andrew: Yeah! That is true, that law says: “Whoever, being a Postal Service … employee, unlawfully … delays mail entrusted to him or which shall come into his possession … shall be fined … or imprisoned not more than five years.” So-
Thomas: Those Postal Agents’ll come getcha!
Andrew: Yeah! “Three, thank you for covering the idiocy of PAEA” (that’s the Postal Accountability Act that we talked about in episode 415) “while also correcting the misconception that it is [Laughing] the only reason that the Postal Service has $160 billion in unpaid liabilities.”
Andrew: This person than says “PAEA was passed by a vote of 410-20 in the House.” I don’t know where that’s coming from, because I looked at the history and according to the federal government it shows a voice vote.
Andrew: But nevertheless, that would be consistent with the story. This was lame duck session by Republicans that was kind of crammed through in December and that total does not surprise me in any way. 201 out of 202 Democrats voted for the bill. Love to know who the one was not, and I kind of picture that feeble – it being the voice vote and there being like “All those in favor,” [Loudly] “Aye!” “Those opposed?” And there’s this tiny little-
Thomas: [Indifferent] “Nay.”
Andrew: “Naaaay” in the background. Anyway, “Five, the Postal Service has a universal service obligation and as you covered does not have any direct control on setting the price of its own goods. As a result, its current structure cannot turn a profit. The House has passed a bill to repeal the prefunding mandate, but Mitch is doing Mitch things.” That is certainly true. Then the last two points that I think are worth pointing out, although I’m not sure that I agree with point number six, which says “the Postal Service will have no problem handling the volume of mail-in ballots. 160 million mail-in ballots, the approximate number of delivery points made by the USPS each day being mailed out, is functionally the same as when we delivered stimulus checks as a result of the CARES Act or delivered the numerous census notifications and surveys.” Yeah, what I would add to that is I’m not worried about people not receiving the ballots? I’m worried about delays in the ballots being sent back in.
Andrew: That’s – when you look at the pattern of lawsuits that Trump has filed in states like Nevada it is in areas where they have a rule of reason that allows ballots to come in that don’t have a clear identifying postmark. Again, think about how that works in a practical sense. At some point either the race is not close and there’s nothing you can do about it, or the race is close, at which point you have an incentive to say, just like in the 2000 Presidential election, “okay, my guy is ahead so we’re gonna stop counting ballots at this point.”
Andrew: What I think is really, really important, and again I can’t believe I’m having this argument in the United States in 2020, is let’s develop that rule in advance so that we don’t know who stands to benefit from “let’s continue to do X, Y, or Z.”
Thomas: Well, wouldn’t the rule already be that we count the votes that happened? Or what do you mean? Just the specific timing of how late?
Andrew: Right. So, let’s look at, for example – and let me answer that in this way. I’m arguing for more than just “let’s have the rule in advance. That is a component of it. I’m also arguing for “let’s have the most expansive rule that we can.”
Andrew: Even knowing that in some places, in Nevada for example, you may have a congressional candidate, a Democratic congressional candidate who’s ahead by several thousand votes and that lead gets eaten into or erased by counting votes that come in via mail. I don’t care, my principal is I want to count as many votes as possible, and I wanna put that rule into place before the election. What Nevada did, for example, is say the existing law says that if your ballot is postmarked on the day of the election and received within 3 days of election day then it’s valid, and they added if the postmark is not legible but it’s received within 3 days of the election that will also be valid. That is one of the provisions that Donald Trump is challenging in Court. I think we ought to err in favor of counting more ballots.
Thomas: Mm-hmm, yeah. That sounds good.
Andrew: Yup! And in last point, this is a really good piece of information, the ESAS – that is the Expedited to Street / Afternoon Sortation Initiative that DeJoy put into effect was a test pilot program implemented in approximately 400 Post Offices across the country. It has not gone well! [Laughs] And has been discontinued in many sites, though I don’t have a number on just that yet. Again, that all seems plausible. I would add, if this wasn’t clear from our episode 415, I think the fact that DeJoy, at the directive of Donald Trump, wants to dismantle the Post Office is a happy coincidence with the fact that we have voting by mail as a result of this pandemic. This has been something Republicans have been cooking up for decades. [Laughs] The fact that Trump can kill two birds with one stone I think is certainly something that DeJoy and Trump are really very happy about, but I don’t think that everything that DeJoy has done was designed with an eye on interfering with voting by mail.
Andrew: I think it’s designed to undermine the Post Office.
Thomas: Yeah, a lot of it is just “woah, we have something in the government that’s helping people? Augh, we gotta get rid of that!”
Andrew: Yeah. That’s the game plan. So that was a fantastic email, there was more that I could read but I thought that that was really informative to get the-
Thomas: While we have this fine listener on the line, I need to ask them, how can I complain about junk mail without getting very strongly worded crunch wraps from every Postal Carrier that listens to my shows? It’s the weirdest thing. I can’t remember if I’ve mentioned it on this show, but I just complained about the level of junk – because all I do is open the mailbox and then there needs to be a recycling right under my mailbox and I could just clear it out, just [Sound effects] just all the stuff straight in, every single day. Then people take that really personally like I’m blaming the mail carrier?
Thomas: Usually they’re like “well I wouldn’t have a job if it weren’t for all that.” I dunno. [Laughs] It just seems weird to me. There must be some other way! [Laughs] It shouldn’t be that I have to get a bunch of papers stuffed in my thing that I just throw away, because it’s just all garbage. So get back to us on that one.
Andrew: Please do! No, this is great and we love hearing from our listeners. I also want to add, my takeaway from that is that part of what we’re doing on this show, what you’re doing as listeners, in terms of being active, being informed, demonstrating, protesting. It makes a difference. Let me add to that an additional thing that makes a difference, yet more lawsuits continue to be filed by states Attorneys General with respect to the Post Office. These are the same kinds of claims. One was filed yesterday by Tish James in New York, she’s amazing, that was joined by the Attorneys General for Hawaii, New Jersey, and the City of San Francisco. I dunno why all of California didn’t join, but-
Andrew: And it’s the same theory. It is that the Trump administration was in violation of the administrative requirements for promulgating changes at the USPS, they failed to follow the appropriate procedures, and again I will point out, I went to the site to which we keep referring regarding the Trump administration’s scorecard in administrative cases. They are, as of today, [Laughing] 18 of 125 which is a win rate of 14.4%. That is up, they were below 10 but they won two cases out of the last 7 so that doubled their success rate. [Laughs] By the way, just for context, typically the administration wins 70% of these cases, that’s the historical success rate. Being sub 15% tells you what we’ve been telling you on the show which is, objectively speaking, the people running Trump administration executive agencies are incompetent and/or they simply don’t care about what the law requires. I think we’re likely to get good results in these cases as well, it certainly, you know, if you’re betting it’s 85/15 in favor of the good guys.
Andrew: So, that’s our update on episode 415 and the Post Office.
Thomas: And that’s an official end to happiness for the day. Okay!
Andrew: [Sighs] No, we’re gonna do a happy segment for the C segment.
Thomas: Well never mind, I take it all back. But remember this happy feeling because now we’re gonna talk about the worse things in the world.
The Kenosha Terrorist
So for our next segment we’re going to be talking about the horribleness that is Wisconsin.
Andrew: Yeah. I hate doing these kinds of stories. I hate it for a lot of reasons, I hate being a white guy trying to explain the law in an objective way when it is objectively true that that law treats white people and black people differently. I also hate having to do these kinds of stories where, at the end of the day, folks who are out there – we have a patron who crashed their truck into somebody who was trying to run over protestors. We’ve had patrons and listeners who went out and risked getting shot in Portland. It’s super hard for me to say do this thing where the result of doing that thing could be you getting shot by the police. But by the same token, you made this point to me, Thomas, and I think that it’s right that this is a story about the law that is consuming all of us right now and we need to talk about it whether it’s comfortable or not.
So here’s what we know: Jacob Blake, African American, was shot in the back 7 times in Kenosha, Wisconsin by a police officer. That officer has now been identified by the BBC as Rusten Sheskey, R-U-S-T-E-N S-H-E-S-K-E-Y. As far as we can tell, Blake was breaking up a fight. I have now read the incident report, and the Kenosha Police Department responded to a call from an unknown woman who said that it was a domestic disturbance. Said her boyfriend was illegally on the premises, and that was not Blake, he was not the woman’s boyfriend. As far as we can tell, was being a good Samaritan, broke up a fight, the police showed up and Blake did everything that somebody like me might tell somebody like him to do during an arrest. Listened to the officers, disclosed that he had a weapon, not on his person but that had a knife in his car, and he was shot anyway. As far as we can tell the family anticipates that he will be paralyzed for the rest of his life.
So in response to that, there were subsequent protests in Wisconsin and sympathy protests across the country. Again, the optimist in me, I wanna tell you a couple of things. These protests, they are changing minds. You probably saw this yesterday, Thomas, the baseball game between the San Francisco Giants and the L.A. Dodgers was cancelled. The teams jointly got together and said “yeah, we’re not gonna get together and play this game in solidarity with the Black Lives Matter movement in Wisconsin.” I love how far we’ve come for that.
Thomas: Yeah, and it’s – they stopped all the NBA games.
Thomas: Now I’m seeing today, I was gonna say something about this and then today I’m seeing that they’re gonna resume playing, so I don’t know. What I was gonna say, and it’s unclear right now as of recording what’s going on, they might be striking. I also wanna say, too, AOC had a really interesting tweet last night because everybody kept calling this a boycott by the NBA? She pointed out, no, the NBA players are workers. This is a strike, it’s not a boycott.
Thomas: It’s interesting. It’s not a huge deal, but at the same time it might show a little bit of the bias of how we think of these players. If you’re thinking of them as like customers who are boycotting the NBA? [Laughs] It’s like no, no! No no no, they’re workers, they’re striking. I was gonna say, people talk about “oh, these celebrities who have all their millions and they don’t really care and they just do this stuff to be woke and blah blah blah blah blah.” I can’t imagine that there’s anything I care about in my life as much as these professional athletes care about trying to win a championship, you know?
Andrew: [Laughs] Yeah.
Thomas: It might sound silly, but they don’t get to have a career forever. They don’t get to win championships forever, not many of them get to win championships, and they were willing to just be like “we’re stopping the playoffs, we’re just not gonna do it.” I found it incredible, personally. I was blown away by it. I don’t know what’s gonna happen, maybe they will find a way to resume, I had seen that they had voted, there were some players that were voting to just stop the season which would be incredible. I mean, it would suck. [Laughs] I really don’t want a season to stop, but at the same time what a statement. What a showing of how important this is to them.
Thomas: To just be like “we’re not doing this.” After, by the way, after the NBA has gone to all these lengths to have the bubble and figuring out how they’re gonna do it with COVID and making sure everyone is quarantined. All this stuff and it’s like “no, we’re not gonna do it.” I thought it was incredible.
Andrew: I couldn’t agree more, and I couldn’t have said it better than that so I’m just gonna agree with that.
Andrew: So at the same time in which individuals in Wisconsin and around the country were protesting, striking in solidarity – I love that addition and point there from AOC, I agree with that. A group called the Kenosha Guard put out a call on the internet. It was shared out from InfoWars, I have seen the screenshot. [Laughing] Not even in incognito browsers will I go to the InfoWars website.
Andrew: But I’ve seen screenshots from reliable sources that called for armed vigilantes to show up and (quote) “defend lives and property” in Wisconsin. I’ll put the cite for that in the show notes. At that point we enter Kyle Rittenhouse, a radical 17-year-old right wing Trump supporter. Those are facts, by the way, that is taken from – on his TikTok page is a video of him in the front row at a Trump rally. He is 17 years old; he has been arrested, we’re gonna talk about the charges. Again, this is somebody who, across his social media, is pro-Trump, pro-police, blue lives matter. Also 17 and illegally in possession of an AR-15 assault rifle.
Andrew: When I say illegally in possession, in the State of Wisconsin you must be 18 in order to buy or possess a long gun. But Kyle Rittenhouse is from Illinois.
Andrew: And you must be 21 in Illinois to purchase or possess an AR-15.
Andrew: Unlike many rural states there is not parental exemption “you can do it if your dad says its okay” or whatever. You also must be 21 in both states to open carry, even in Wisconsin, even if you can buy it. You can buy it, you can take it to a range, but you can’t just walk around with a gun when you’re 18 years old in Wisconsin, you certainly can’t if you’re 17. I wanna add one thing here, I want to be a little bit careful on. [Laughing] As a big guy myself I’m not trying to body shame this kid when I say this is a pudgy baby-faced kid. This is somebody you look at who looks 15, 16, 17.
Thomas: You’re saying it’s obvious that this is a person who’s not the age that should be-
Andrew: That is right, yeah. It is instantly obvious that this person is at least – the kind of person you would card if they were buying cigarettes.
Thomas: Yeah, he looks like a kid.
Thomas: You know, just going off of if you’re trying to gauge. If your job, you know, maybe as a police officer, somebody who would enforce the law, is to visually make a judgment about “okay, is this person old enough to be doing whatever.”
Thomas: Any objective person-
Andrew: You would not sell this person cigarettes without asking for ID.
Thomas: No. Any objective person would be like “well no, this is a kid.”
Andrew: So as far as we can tell, we have to infer this, but Kyle apparently answered the call from Kenosha Guard. Drove from Antioch, Illinois, which is just across the border, into Wisconsin. I should be saying Ill-inois because it’s northern. Illinois. [Laughs]
Thomas: Oh yeah, because northern is part of the entire thing which should all be Illinois? Is that what you’re saying?
Andrew: Right, exactly. And definitely committed the crime of illegal transport of an unauthorized firearm across state lines. Then multiple sources, including a video that I have watched, show the local cops thanking this militia.
Thomas: Yeah. It’s out-[Clownhorn]-rageous. [Sighs]
Andrew: Yeah. Throwing a bottle of water to Kyle Rittenhouse for – yeah, thanks for showing up with an assault rifle.
Thomas: Now I’m unclear, was this before or after the murders?
Andrew: This is before, this is before.
Thomas: I have seen a thing that was like after he already murdered some people, he tried to turn himself in and the cops were like “hey buddy.” There’s nothing a white person with a gun can do, apparently, to be perceived as more dangerous or even as dangerous as a black protestor with anything.
Andrew: I do not have the evidence that they assisted them after he shot-
Thomas: No, didn’t assist him, but the story I saw that I don’t know if you saw as well, was they told him to like get out of the street. He tried to turn himself in kind of and they were like “get out of the street, kid.”
Andrew: Here’s what I can speak to with that. So let me try and put together this on the timeline, there’s also – it is included in the show notes. There was a really, really good article from the New York Times that came out this morning that pieced together a lot of the time. Of course, you know, after I spent several hours last night trying to do that myself, but-
Thomas: [Laughs] Already doing that exact thing?
Andrew: But you know, hey, I’m happy to let other people do good work too. I wanna say, by the way, the tossing the kid a bottle of water thing – the Kenosha County Sherriff, David Beth, conceded that that happened.
Andrew: Answered at the press conference, said “our deputies would toss a water to anybody. If someone came walking past, I don’t care if they’re a protestor or who they are, they would pass water. We have cases. People come to our command posts in this building, we have pallets of water and Gatorade.” So that really happened. Again, there is video, Shannon Watts, the journalist, tweeted out video of cops looking at the armed militia vigilantes saying “hey, we appreciate you guys, we really do.” Then we get to the video that you probably have seen. I want to steel man as much as possible, it’s a challenge.
Thomas: Steel man who? What?
Andrew: In terms of what we can and cannot determine from the video.
Andrew: It certainly appears to me that we have video of Rittenhouse fleeing, in which someone says “hey, that guy shot someone.”
Andrew: Then he trips and falls and then as people are closing in on him, he turns and opens fire again. That second half is being used to craft a narrative of self defense that we are going to talk about.
Thomas: Oh my god.
Andrew: Because we are gonna get to-
Thomas: I hadn’t even gotten to that particular thing.
Andrew: Yeah. We then also have video, and this me be to what you were referring, of him running down the street, with an assault rifle kinda hugged to his chest, with shots having gone off, and the cops run past him.
Thomas: Yeah. Couldn’t be that kid!
Andrew: He was allowed to – yeah, he was allowed-
Thomas: That’s a white person with a gun, let’s run to what actually must be the problem.
Andrew: He was allowed to leave the scene, with an assault rifle, after shooting people. That is not a thin that should be allowed to happen. I can’t believe I have to say this on the air, but I’m saying it on the air.
Thomas: Yeah, I – quick thing.
Thomas: I mean, I dunno where everybody listening is on this kind of stuff, and I know that I myself used to be more conservative and centrist kind of thing, but this is the kind of stuff that once you start noticing it really shows you that there is a problem. If you’re on the fence, take a look at the video where the police hear shooting and run past the kid with the gun who did it! Why? Why do you think they did that? Weird.
Andrew: I never know the moment that is going to be the wakeup call for people who say “I’m not racist so I don’t have white privilege.” I think I agree with what you’ve just said and I never know sort of where the moment of “oh hey, yeah.” This is the same police department! [Laughs]
Andrew: The police department that three days earlier, if you’re on the conservative blue lives matter side, you’re like well, you know, he was holding his t-shirt so he could’ve had a firearm. Okay.
Andrew: This guy was running down the street hugging a smoking assault rifle, having heard shots fired, and the cops were like “yeah, yeah, you can go on past.” If that isn’t a juxtaposition for you then I just … [Laughs] Right? I dunno what could be. It’s the same people. A much worse action and a much less-
Thomas: It couldn’t be a more scientific experiment! [Laughs]
Andrew: Exactly right.
Thomas: Isolated all the variables! [Laughs]
Andrew: Yeah. And already we heard Jacob Blake being described as “armed” for having a knife in his car.
Thomas: In his car, yeah.
Andrew: Not for having an illegal firearm hugged to his chest. So yeah, okay.
Thomas: With which he just committed double murder, by the way.
Andrew: So an arrest warrant was issued. This is the part that we do not know.
Andrew: I have been able to figure this out from looking at the court records. An arrest warrant was issued in Wisconsin. So, at some point between Rittenhouse leaving the scene and the end of the evening, somebody figured it out and said “oh hey, look, that kid shot somebody, don’t let him leave.” But he was already gone, and so he has since been extradited, went back home and has since been extradited from Illinois back into Wisconsin. I will include a copy of the extradition order in the show notes, which says “Said defendant, after having been charged in Kenosha, state of Wisconsin, with the offense of first degree intentional homicide, fled from the state of Wisconsin to avoid prosecution for that offense.” That is what the official extradition order charges Rittenhouse with.
The reason that he has been charged with first degree murder – and now we get into the actual law component of this segment – is that Wisconsin’s murder law is a little bit weird. You charge somebody with first degree murder, and it is defined as “whoever causes the death of another human being with intent to kill that person or another” – so in other words, I shoot at you intending to kill you, but I’m a terrible shot and I miss and hit somebody else instead, I’m still guilty of first degree murder of the person that I actually killed. Because I had the requisite intent to kill somebody and the fact that I suck at it is not gonna be a defense under Wisconsin law, and lots of states are like that.
But then the first-degree murder statute has four statutory mitigating circumstances. The two that are likely to be at issue here, that are likely to be raised by Rittenhouse’s lawyer are B) unnecessary defensive force. Let me read that to you: “death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person if either belief was unreasonable.” Let me unpack that a little bit. If you have the reasonable belief that force is necessary to defend yourself or someone else-
Andrew: That’s an affirmative defense. That’s self-defense. That is a complete defense in most jurisdictions to the crime of homicide. The key element of a self-defense, assuming the facts actually happened, is then whether that belief was reasonable or not.
Andrew: We’ve seen this. Again, obviously that interplays with race issues in America just as well. But this is what happens if the court decides you actually – you, Kyle Rittenhouse, actually had a belief that you needed to kill somebody in order to defend yourself or somebody around you, but that was an inherently unreasonable belief. The answer is, while that’s not a defense to homicide, it does reduce the first-degree murder to a second-degree murder charge. I’ll explain the significance of that in a minute. I would be shocked if that were not raised as a defense.
Thomas: Okay. To which any prosecutor I would think, would he be able to say “hey, you travelled across state lines to this thingy with a gun.”
Thomas: “I need to protect myself by going into a protest and actively shooting people” to me doesn’t really work. I’m not the lawyer of the show-
Andrew: No no no no no, I tend to agree with you. I want to cover the arguments you are likely to hear.
Andrew: Because this case is going to obviously attract a lot of attention. The second one – well let me lay the second one on you, and that is prevention of felony. “Death was caused because the actor” (Rittenhouse) “believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony if that belief was unreasonable.” Again, it’s like self defense except its self – it’s defense in anticipation that that person is going to commit a felony. There, again, almost all of the provocation is then going to be used to describe how Rittenhouse had the belief that, you know, these protestors were looters and rioters and they were going to commit some dangerous felony and that’s why he had to shoot them. Again, I anticipate we will hear that argument.
I need to tell you that the Wisconsin statute operates in a very weird way with respect to the burden of proof on mitigating circumstances.
Andrew: Let me read this one to you. So subsection 1 defines causing the death of another human being with intent to kill that person. Subsection 2 contains the mitigating circumstances that I just talked about and I read the two relevant ones. Then subsection 3 says “when the existence of an affirmative defense” under subsection 2, those arguments that I just made, “has been placed in issue by the trial evidence” and again that includes testimonial evidence. That includes putting Kyle on the stand and having him say “I was afraid of my life and I was afraid these violent looters were going to burn down a building.” The state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under subsection 1.
Andrew: Yeah, I have never-
Thomas: So it like flips the burden?
Andrew: I’ve never, ever seen – not just flips the burden, but flips the burden to “proof beyond a reasonable doubt” that it doesn’t exist?
Andrew: I’m befuddled as to how anybody gets convicted of first-degree murder in the state of Wisconsin. If we have criminal defense attorneys or prosecutors – again, here’s another great example of why just knowing that somebody’s a prosecutor doesn’t mean that they’re necessarily on the side of the bad guys. In any event, if you are involved with the criminal justice system in the State of Wisconsin in terms of violent crimes, write into the show. That’s email@example.com, because this seems crazy to me. I suspect that the way it plays out in practice is that pro se defendants and defendants who are represented by public defenders wind up with murder 1 and then it’s used as leverage in plea negotiations and very rarely convicted, if ever. But that’s just a supposition, so please do, write in, let me know.
Here’s the difference, and it’s a big, big difference. Wisconsin has nine degrees of felony that rate from A to the letter I. A, B, C, D, E, F, G, H, I. An A felony, first degree murder, is life imprisonment. That’s because Wisconsin also does not have the death penalty. If it is reduced to second degree murder, the felony is then reduced from an A to a B felony, which is imprisonment not to exceed 60 years. Notice that that – and all the remaining felonies give complete discretion to the judge to award any sentence up to that amount. Cannot be more than 60 years, but there are no mandatory minimums even for a B felony.
So the final thing to keep on the lookout for in this case, in the event that it goes to trial, is that the trial judge will have considerable discretion. Way more so than what you have in the federal system to say “yes, he’s guilty, the jury convicted but I’m gonna sentence him to five years in jail instead of 60.”
Andrew: And you will see the arguments made of “oh, he’s 17, he’s a kid.” You’ll have to evaluate those how you evaluate those, but those arguments are coming.
Thomas: Well yeah, honestly, he is 17.
Thomas: You know, in a perfect world of justice – which we obviously don’t have – what would the right response to this be hypothetically? I wanna ask you about the parents. Do they have any culpability in supplying a deadly weapon to a murderer who was underage?
Andrew: There are criminal charges that you could bring against the parents. There are also federal charges that you could bring here.
Thomas: Oh, that’s gonna be on Illinois to do that, right?
Andrew: It will be on Illinois to bring charges against the parents, but federal prosecutors could bring either the 18 U.S.C. 1073, that is flight across state lines to avoid prosecution.
Andrew: That then becomes a federal offense. He’s also violated several federal gun laws by transporting an illegal firearm across state lines. There are potential federal charges, but I will tell you the practice in these situations is typically to step aside in favor of the jurisdiction that has the more serious offenses.
Andrew: Obviously, first degree murder way more serious than interstate transportation of an illegal firearm or flight to avoid prosecution.
Thomas: Right, but that’s not the parents?
Andrew: No no no no, that’s right.
Andrew: I was saying with respect to – in terms of – we had a question that came up, maybe you didn’t see it, in the Facebook group and online about “could you have federal charges as well as state charges?” You could, but you’re unlikely to in this case because the state charges are more serious. There could be, and it would be up to the state of Illinois to bring charges against the parents. I certainly agree with you that I would want to know an awful lot more about this story than we’re seeing. We are seeing a kid, active on social media, posing with this gun which – look, this is really personal for me. I have a son who is 17 years old. If he committed a felony on social media I would really, really want to know that! [Laughs] I would take responsibility for my son – I don’t think he’s likely to be-
Thomas: Well again, but they had to buy him the gun, right?
Andrew: Yeah. Yeah!
Thomas: It’s one thing if your kid, unbeknownst to you, goes and commits a crime. It’s another if you have provided the weapon illegally to a child, right?
Andrew: Yeah. I’m not saying this well, so that’s right. I’m saying two things: number one, yes, they would have had to have purchased the firearm; and number two, it strains credulity to think that they were not aware because this kid’s very public social media presence included him posing with the gun and all that sort of stuff. In other words, I’m agreeing with you and I’m saying the typical kind of defense that you might expect to offer in this situation of “oh, well, we didn’t know,” would not available.
Thomas: Well, um, thanks for giving us the legal breakdown there, Andrew. Yeah, I’m sure we’ll see all that and I for one think hopefully the parents or whoever bought him the gun, underage person illegally bought them the gun, I hope they are perhaps punished by the law as well.
Thomas: Final question that you’re not gonna be able to answer. Is there any possibility of anything happening with whoever online? If it’s InfoWars or whatever, is there any link to be made there? Encouraging, inciting violence kind of thing?
Andrew: That is a really, really good question. Can I do some research and come back?
Thomas: Oh, okay. Cool! I assigned you homework, I guess.
Andrew: Yeah, there we go!
Thomas: Wow. [Laughs] My job’s a lot easier than yours.
Andrew: But equally fun. Yeah, no it’s a great question, I’ll look into it. I don’t think I know enough to offer an opinion off the top of my head.
Andrew: And I think we’ll also know more about how involved right-wing media was. Right now, I’ve seen some of the reports and it seems consistent, I think we’re gonna piece this out. And Tucker Carlson should be fired, but you know.
Thomas: Oh god, yes.
Andrew: But that’s a general principle, so-
Thomas: It’s always true, yeah. Okay, well with that said we have left time to try to give us a little bit of good news just to help us out in these psychologically difficult times, so we’ve got an update on the Gavin Grimm case.
Good News – Gavin Grimm Case Update
Andrew: Yeah! This is great news. We have been covering this since the show’s inception. We first talked about the case of Gavin Grimm, he’s now a young man, a trans man who in high school was just the target of reprisals from the community regarding [Sighs] where everybody freaks out regarding bathrooms. I don’t have time to break down the story, we’ll do that, I’m gonna include a link to the 4th Circuit opinion in the show notes, read it. I have a lot of thoughts about this opinion. This is a panel opinion, it is 2-1. So, you know, for all of – it’s a good opinion and it shows what I anticipate is going to happen, which is in light of the Supreme Court’s decision in Bostock v. Clayton County, that was the decision that held that Title 7 of the Civil Rights Act of 1964, the prohibition of discrimination on the basis of sex, applied to sexual orientation and gender identity.
This is a similar case, this involved Title 9 of the Education Amendments of 1972, which it’s written a little bit differently. It says “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any educational program or activity receiving federal financial assistance.” Gavin’s argument was really simple, “I’m a boy and I don’t get to go to the boy’s bathroom.” It’s been 5 years of litigation, we discussed last in episode 306 a year ago at this point in time, August of 2019, where he won at the district court level.
The school board inexplicably appealed to the 4th Circuit and during that time the Supreme Court came out with the Bostock v. Clayton case, so the 4th Circuit not only affirmed on the grounds preferred by the district court, but also said, look, it’s pretty clear that the same analysis that applies on the basis of sex in Title 9 cases is the same as discrimination because of sex in Title 7 of the Civil Rights Act of 1964 cases. Seems pretty straightforward, but again, this was a 2-1 decision so if you’re up for it read Judge Niemeyer’s dissent. Seriously, self-care, don’t read it, it’s gross. We’re still facing that. It is still an uphill battle, but we continue to move forward slowly.
This is a great decision; the Supreme Court is not gonna take this even if the school board is stupid enough to petition for cert.
Thomas: Is this an en banc scenario, though? Because you said it was a panel.
Andrew: They might petition for review, but if you’re the 4th Circuit I don’t see why you would vote to rehear this en banc.
Andrew: It’s a straightforward application of a case that Gavin was likely to win even if the Supreme Court had gone the other way, and once the Supreme Court ruled that because of sex meant because of sex-
Andrew: That application was gonna be straightforward in this case as well. I think now – again, my predictions go wrong a lot, but I think the school board is gonna give up and go home and if they don’t it’s the end of the line anyway, thankfully.
Thomas: Well good news.
Andrew: Gavin is now a freshman in college, he is fighting on behalf of everyone else. Again, it’s – expressing gratitude seems a little inadequate, but thanks for fighting for five years for that. Now we’ve got a situation where we haven’t made it easier for the community and school administrators to bully kids in high school, knowing that kids get bullied in high school. It’s a great result, and I’m really happy.
Thomas: Maybe Gavin can just, like, you know, get on with his life. That would be awesome, we could let-
Thomas: Trans people just live their lives and not have to go through extended five-year legal battles to go to the bathroom.
Andrew: Yeah. Again, I’m gonna give a shoutout to Neil Gorsuch here, but the majority opinion in this case is not exactly super woke. It uses constructions that I’m not gonna be repeat, that would be offensive in the trans community, and again it just highlights that there’s not a lot with which I agree with Neil Gorsuch, but he crafted a respectful opinion in the Bostock case and it stands out in contrast even where, you know, even when you’ve reached the right result of the kind of work that we have to do in order to ensure that trans women are treated as women and trans men are treated as men in society. Obviously, an issue we care very passionately about and I wanted to at least get a couple of mentions in there and bookend with some good news in this episode.
Thomas: Alright. Good news achievement unlocked! Thank you for that!
[Patron Shout Outs]
Thomas: Alright and now it’s time for T3BE! Will I screw it up again? Let’s find out.
Andrew: Yeah, and this is a rather unfortunate question because this is super duper easy if you’re a lawyer and you’re just gonna have to guess.
Andrew: But I feel good about it. Yeah, there’s no nuance.
Thomas: That’s fair, I feel like there should be more of those, honestly.
Thomas: It is a lawyer test.
Andrew: Yeah, there’s shockingly few.
Andrew: Yeah, this is just what does the Federal Rules of Evidence say about discovery, so here we go!
Thomas: Alright, read the question! [Laughs]
Andrew: The attorney for a plaintiff in an action filed in federal district court served the defendant with the summons, the complaint, and 25 interrogatories asking questions about the defendant’s contentions in the case.
Andrew: The interrogatories stated that they were to be answered within 30 days after service. The defendant is likely to succeed in obtaining a protective order on which of the following grounds?
Andrew: A) Interrogatories are proper only to discover facts, not contentions; B) Interrogatories may not be served until an answer to the complaint is filed;
Andrew: C) Interrogatories may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan;
Andrew: Or D) The interrogatories exceed the number permitted without permission from the court or an agreement between the parties.
Thomas: [Laughs] Oh man, yeah. That pretty much … not much reasoning I can do here. Served the defendant with summons, the complaint, and 25 interrogatories asking questions about the defendants’ contentions in the case. So why is this wrong? We get the following guesses here. [Laughs] A, interrogatories are proper only to discover facts, not contentions. Could be, actually. I mean, don’t you think the defendant’s contentions in the case, you’d think that would come out in the trial or something, I don’t know why the defendant would need that.
B, interrogatories may not be served until an answer to the complaint is filed. That’s another good point, you know. What if they served the complaint and then what if the person’s just like “I plead guilty, we’re guilty,” you know? Then why would you need all these interrogatories about the defense. Yeah, so it could be that maybe.
C, interrogatories may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan. Yeah, that I have no idea. Would you already need to answer the complaint first before that? I guess it’s gonna be a question of which of these things – maybe these are all correct and it’s just like which one would come first or something? If you were responding you would say the one that is the most, you know, obvious or comes first in priority or something.
Then D, the interrogatories exceed the number permitted without permission from the court or an agreement between the parties. That could also be true, I have no idea, but if any of the other ones are true, I feel like the other ones would take precedence. If this is just too early in the process to be issuing interrogatories, I feel like that would be the answer more so than also there’s too many interrogatories. So I dunno, or I’m completely full of it on any of this.
Um, I’m gonna go ahead and assume all of these might be valid reasons but it’s just about finding the ones that are the first thing that’s wrong with it, so that’s what you would respond with? I’m gonna say that would be between B and C. B is interrogatories may not be served until an answer to the complaint is filed. That seems pretty solid to me, I think. C, interrogatories may not be served until the parties have conferred to arrange for initial disclosures. So which would happen first?
Eh, you’re right, this is impossible. I’m probably wrong, but I found a way to answer it and I’m gonna go with B, interrogatories may not be served until an answer to the complaint is filed. That makes sense to me? I dunno, we’ll hope that’s the right answer. Law dogs you’re gonna have an easy time, probably, answering this one.
Andrew: Yeah, and I am going to restrict the responses to nonlawyers. I really want someobody who’s not a lawyer, not a law student, reason your way through this one and we’ll pick the winner from there.
Andrew: I mean, you could lie, I would have no way of knowing.
Andrew: But you know [Laughs] If you wanna lie to win T3BE that is precisely the kind of characteristics we’re looking for-
Thomas: Very prestigious-
Andrew: -in a lawyer! [Laughs]
Thomas: [Laughs] It’s a very prestigious prize, so. Okay, thanks so much for listening everybody and yeah, stay safe out there. What a week. We will see you next episode, we get to hear all about the Hatch Act and how it’s likely being violated every single day of this RNC.
Thomas: So that’ll be super cool, look forward to that, we’ll see you then!