Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 476, and that means it’s no intro day! Wooo!
Thomas: Andrew and I haven’t heard it yet, because I still have to make it.
Thomas: But it was probably so good, thanks to everybody who gave me those amazing Simpsons and/or Futurama and/or some obscure British comedy I’ve never heard of quotes. [Laughs]
Andrew: [Laughs] This is one of the fun moments every 25 episodes, getting to change out the intro quote. I know some people complain about the length of the intro, but you know?
Thomas: If they do, I’ve never heard that.
Andrew: It’s exactly two “skip ahead 30’s” on your Podcast-
Thomas: I’ve never heard anyone complain about it, and if thy do you’re totally right, that’s on them, just skip it, I don’t care.
Andrew: Yup! [Laughs]
Thomas: Anyway, so much to talk about today. Oh, man, I don’t even have time to summarize it! With the Sidney Powell stuff, oh, jeez, there’s so much there. We’ve got Derek Chauvin, big updates in the Trial, and maybe we might get to some gun control stuff? We’ll see how that goes because this seems like a jampacked episode.
Andrew: It does, so let’s get to work.
Thomas: Oh, sorry, we do have to tease one thing. We got a lot of people asking us about Julia Galef’s episode on originalism on Rationally Speaking Podcast, and yes. [Laughs]
Thomas: Andrew has thoughts.
Andrew: Yes, I do.
Thomas: The answer to all of your questions is yes. Andrew has thoughts, and you are gonna get those thoughts. It’s not even gonna be one episode, it has to be a two-parter, it’s that many thoughts. Look for that Tuesday and then the following Tuesday. The whole breakdown on why originalism is bad and you should feel bad. That’s coming.
Andrew: Can’t wait to do that. It’s long, look, it might be the through-line of this podcast, but we’ve never done a standalone episode.
Andrew: I am very, very excited. Yeah.
Thomas: Oh. I would’ve sworn on a stack of bibles in front of a court that we had!
Andrew: Me too!
Andrew: I would have thought – our original intent was to – anyway.
Thomas: Yeah. [Laughs]
Andrew: Alright, let’s get to work.
Thomas: Alrighty, let’s do it!
[3:21.2] [Segment Intro]
Thomas: So, what did Sidney Powell do? [Laughs]
Thomas: You teased this on the Stereo Q&A that it’s even worse than people are reporting. That everybody is reporting this wrong, because they’re talking about “oh, remember the time that Tucker Carlson said you can’t take anything he says seriously?” and people have been drawing that comparison, but I believe you teased for us, for everybody who was there at the Stereo Q&A last night, that that’s not even quite right. It’s even worse?
Andrew: Yeah. It is even worse than that. To understand we have to kind of dive into – a little mini deep dive, if you will – the law of defamation, and that involves reading Dominion’s lawsuit against Sidney Powell backwards, as we all know. I do want – we don’t have time to go down the rabbit trail. I’ve linked on our website and in the show notes, in addition to filing a lawsuit against Sidney Powell you have to serve that person with process. You have to give them an authorized copy. Sidney Powell evaded process.
Andrew: She went across State lines – literally.
Andrew: Dominion had to hire multiple private investigators-
Thomas: What in the-
Andrew: Then, once she was served she filed a motion to request additional time to answer the lawsuit. Dominion’s lawyers responded in the only, and best way, possible, which was “you know, if you’d have just asked-
Thomas: [Laughing] Yeah.
Andrew: -we would have been happy to extend the time as a courtesy.” That’s what lawyers do, even when you’re opposing counsel, and that’s 100% true.
Thomas: Oh, I thought you were gonna say if you put more time into whatever work you think you have to do for this and less time into evading being served-
Thomas: -you wouldn’t need extra time. That’s where I would’ve gone.
Andrew: [Laughing] Well, they did kind of say that.
Andrew: They said as a professional courtesy to opposing counsel, Dominion does not oppose the motion for extension of time. But the record should reflect that one, Powell refused to respond to requests from Plaintiff’s counsel about executing waivers of service of process, which would have extended the time to respond to the complaint; and two, Powell evaded service of process for weeks-
Andrew: -forcing Dominion to occur unnecessary expenses for extraordinary measures to affect service, including hiring private investigators-
Andrew: [Laughs] and pursuing Powell across State lines.
Thomas: What a – to quote the aforementioned obscure British comedy, although not really obscure, what a strange person! [Laughs]
Andrew: [Laughs] Yeah, exactly.
Thomas: What in the world is her deal?
Andrew: Yeah. Yeah. That’s all true, look, it is common practice, no matter how much you hate each other, that you know, you accept service of process, you don’t evade. There have been times when I’ve had clients who have said “no, I want them to actually send it to the Florida office because they’re playing some jurisdictional games.” Okay. But you don’t – you don’t evade and then cheekily turn around and be like “and also we’re gonna need a lot more time,” because if you had executed those waivers, as it pointed out, you get extra time under the federal rules. That’s part of the incentive for saying “hey, we know we’re interstate, lawyer emailed it to us, yeah, you don’t have to go hire a PI to walk this paper to us, no.” But that’s not Sidney Powell.
Anyway, now let’s look at the defamation complaint. This was filed on January 8th, you know, two days after the insurrection. Good work on Dominion on that. They sued Sidney Powell and her entities, her professional corporation and her tradename group that she uses to grift, which is called Defending the Republic, Inc. They sued her for two counts.
The second we’re not gonna talk about, it is a Georgia unfair trade practices claim, and it’s really, really smart, because one of the things you can’t do in many States – California has a really robust unfair trade practices act, for example, is, generally speaking, you can’t lie about either yourself or other people as a way of gaining business. We open Thomas Smith’s Hamburger Shack-
Andrew: You can’t say “eat at Thomas Smith’s Hamburger Shack because McDonald’s is full of worms.”
Thomas: [Laughs] Banque worms or regular worms?
Andrew: Right. That makes sense and you can see how it would parallel a defamation suit. They have demonstrated – I think this is a slam dunk that they’re gonna win on the unfair trade practices. Over and over again, Sidney Powell has profited by saying false things about Dominion.
Andrew: Yeah, of course. We’re not even gonna talk about that, but we are gonna do the OA “read the complaint backwards.” You look at page 124, signature page, count 2 begins on page 123, then we page backwards to find count 1, which is just gonna recite the elements of defamation. Count 2 begins on page 123. Where do you think Count 1 begins? Go head, take a wild guess!
Thomas: [Laughs] That sounds like a lot of … uh, 122.
Andrew: Yeah, right!
Andrew: It begins on page 74.
Thomas: [Laughing] Yeah!
Andrew: The reason that it’s 50 pages long-
Thomas: I just like to play the straight- my new rule with you asking me stuff is I’m gonna walk right into the rake.
Andrew: Good, yeah!
Thomas: Have it smash me in the face. That’s what I’m here for, I’m the listener who doesn’t know what you’re up to. So, yes, I thought it was page 122. [Laughs]
Andrew: Yeah. Again, that would be the informed – the legally informed listeners guess.
Andrew: Because the counts, you have long sections. This is why we read the complaint backwards. You have long sections that lay out the facts and everything else.
Thomas: Right, yeah.
Andrew: The count section just repeats the legally required elements of the crime, except that here the legally required elements of the crime include paragraph 181, which are the following false and defamatory statements of fact made by Sidney Powell against Dominion Voting Systems, and there are 40 separate subparagraphs. The reason there are 40 separate subparagraphs is because Sidney Powell has defamed Dominion Voting Systems over and over and over and over again. These subparagraphs include color photographs of her appearances on C-Span and Fox News. Just – it is – I will tell you as somebody who has been on both sides as plaintiff and defendant of defamation and fraud cases. Having 40 individual instances of “these are your defamatory statements-”
Andrew: Is … you never get that. That is – I litigated an entire defamation case right up, we settled on the eve of trial, in which we’d identified three defamatory things-
Andrew: -that were said about us. And look, that’s all you need.
Andrew: But Sidney Powell can’t help it. Over and over again she says specific allegations which are identified as false and defamatory statements of fact about Dominion Voting Systems. They include things like, let’s read some of these, “Dominion and its software was created in Venezuela to rig elections for Hugo Chavez.” That’s a very specific factual allegation.
Andrew: Subparagraph (b) with Maria Bartiromo, “They” (meaning Dominion) “used an algorithm to calculate the votes they would need to flip and they used the computers to flip those votes from Trump to Biden and from other Republican candidates to their competitors also.”
Thomas: Boy, that’s weird that we lost so much, then.
Andrew: [Laughs] Yeah.
Thomas: We can’t even win when we’re cheating! We barely win. Gosh!
Andrew: [Laughs] Bartiromo: “We talked about the Dominion software. I know that there were voting irregularities. Tell me about that.” Powell: “Well that’s to put it mildly. The computer glitches could not and should not have happened at all. [This] is where the fraud took place where they were flipping votes in the computer system or adding votes that did not exist.”
Thomas: Wow. Those are very specific statements of fact, it sounds like.
Andrew: Yeah! That’s exactly right. I have to read you what she said to Lou Dobbs, and again, this was on November 13th. I mean, you know, yeah. Right after the election, has been saying it consistently ever since. (Quote) “Well, I can hardly wait to put forth all the evidence we’ve collected on Dominion-
Andrew: – starting with the fact it was created to produce altered voting results in Venezuela for Hugo Chávez and then shipped internationally to manipulate votes for purchase in other countries including this one.”
Andrew: Okay. These are the kinds of things that Sidney Powell has said over and over again. Now, she is-
Thomas: And I know from you that when you’re gonna defame somebody you want to say “Dominion is an assclown.” You know?
Thomas: And just leave it at that. Dominion is an assclown. Then you’re like I don’t know what that means for a voting system to be an assclown, how do I evaluate that? Not, oh, well here’s the multistep process they use for fraud. [Laughs] They specifically changed these dah dah di dah. A bunch of stuff that is very specific to evaluate the truth or falsity of.
Andrew: Exactly right. You have articulated precisely the area that Sidney Powell’s lawyers have tried to weigh in on, but their argument is insane.
Andrew: This begins at page 27 of their Motion to Dismiss, and I should add this is argument number 3. Arguments 1 and 2 are the case should be dismissed because the District of Columbia lacks personal jurisdiction over Sidney Powell, who is barred in the District of Columbia and represented the President of the United States – the former President of the United States – who lived in the District of Columbia. The argument on personal jurisdiction is you have not availed yourself of a jurisdiction such to put yourself under its laws. It’s why you couldn’t sue – you couldn’t sue me personally in Idaho right now, because I’ve never been to Idaho and it has no jurisdiction against me, personally.
Thomas: I don’t believe it exists, actually.
Andrew: [Laughs] You might be able, however, to sue Opening Arguments in Idaho.
Andrew: Because we have Idaho listeners.
Thomas: Oh, yeah. No, I specifically block Idaho in the backend. You don’t know about this.
Andrew: Ah, there go those 7 Idaho patrons. Please come back at some point, okay?
Andrew: And if you live in a State other than Idaho-
Thomas: I blocked Idaho and somehow our downloads went up.
Thomas: I don’t know how, there’s negative people.
Andrew: Head on over to patreon.com/law, put in the box “I’m giving because you’re losing Idaho patrons.”
Andrew: Anyway, this is an area I think needs to be settled because it has swung in the age of internet commerce, it has swung hugely in favor of courts having jurisdiction over anybody who’s ever sold anything on the internet being liable in all 50 States. But those decisions exist. We probably could be sued in Idaho, that is Opening Arguments Media, LLC, in connection with any tort that Opening Arguments Media, LLC commits in Idaho, which is probably contained in this episode.
Andrew: Please don’t sue us.
Thomas: Is disrespect a tort? Just asking for a tortfeasor! [Laughs]
Andrew: Yeah, it is not! It is not, it is not. So, we’re good.
Andrew: First argument, no personal jurisdiction. Second argument is a motion for a change of venue to Texas, and the argument seems to be “because the courts will be more conservative down there.” This is in the United States District Court for the District of Columbia, and belongs there.
Thomas: Yeah. Is that a normal thing you get to do when you reply to a thing? Is just be like “I’d rather be sued here because … I’d rather.” Does that work?
Andrew: Not often?
Thomas: [Laughs] You’d have to have a good reason, I assume.
Andrew: Well, right. Even in a civil lawsuit you can move for a change of venue and it is on – the catchall grounds are called forum non conveniens-
Andrew: Means kind of what it sounds like. If the gravamen of the case took place in a different area, and most of the witnesses are going to be there. There are all these factors that say yeah, this is really a Texas case and not a D.C. case. Sometimes courts will say okay, we’ll do that, but by and large courts give tremendous weight to a principle we’ve talked about before, which is-
Andrew: -the plaintiff is the master of her complaint.
Thomas: I was just gonna say that. As seen on the only bar question I’ve gotten right in 20 years, recently.
Thomas: There you go!
Andrew: Those two arguments were thrown up first. Before we get to the “and also this is not meet the legal definition of defamation.” You may be thinking well that seems like a hard argument for Sidney Powell to prove.
Andrew: And you would be correct. She correctly states – her lawyers correctly state, this is page 27 of the brief, “determining whether a statement is protected involves a two-step inquiry. Is the statement one which can be proved true or false? And would reasonable people conclude that the statement is one of fact in light of its phrasing, context, and the circumstances surrounding its publication.”
Thomas: Yes. Yes, and yes. Okay.
Andrew: And so they’ve seized on that second half and said that Sidney Powell’s statements are not ones that an average person would think are either capable of being proven true or false, or are in fact being alleged to be true in light of the context and circumstances. The reasoning they use to get here is completely bonkers. We do get this sentence, “analyzed under these factors, assuming arguendo that each of the statements alleged in the complaint could be proved true or false, no reasonable person would conclude that the statements were truly statements of fact.” That is what everybody has seized on, that’s the language that people have used to say oh, this is the Tucker Carlson, Alex Jones defense. This is just a character that she’s putting on.
But that’s not the argument she makes. The argument she makes is these statements are about the 2020 election, which was (quote) “both bitter and controversial.” [Laughs] “She’s made them as an advocate for her preferred candidate-
Andrew: -thus the highly charged and political nature underscores their partisan nature. Powell alleged that Democrats were trying to steal the vote from Trump and that they had developed a computer system to alter votes electronically. She appeared at a rally called Stop the Steal. Reasonable people often understand that the language of the political arena is vituperative, abrasive, abusive, and inexact.”
Andrew: Yeah, you cannot square that circle! [Laughs] Those kinds of claims, those cases that she’s citing, are cases in which you do not accept a politically charged statement that is literally one of fact as meaning a question of fact in the context in which it’s uttered. Let me give you a perfect example: Donald Trump repeatedly called Joe Biden a communist and a socialist. Joe Biden could not sue Donald Trump for defamation, even though Joe Biden is plainly neither a communist nor a socialist. The reason that Donald Trump would have an ironclad defense is, yeah yeah, okay, fine, I called him “Communist Joe.” But we all know in the context of a political argument that I really mean a subset of that.
Thomas: Right, except that’s wrong. But fine. Legally I get the standard, but honestly all his intended audience is like “no, he’s a communist.” [Laughs]
Thomas: I exactly understand that he is actually Karl Marx and that’s how I’m receiving this information.
Andrew: [Laughs] And that goes a long way towards discussing whether these standards are appropriate standards.
Thomas: A little outdated? Yeah. I dunno.
Andrew: Yeah, yeah. But that’s the way in which they get applied. Okay, you called him a Marxist.
Andrew: But we know what that means is he favors increasing one tax by 7 cents. But now, take the statement “Dominion Voting Systems was created in Venezuela-
Andrew: -to help Hugo Chavez rig the election.” What’s the lesser included fact in that?
Andrew: Oh, sorry, what we meant by that was “Dominion Voting Systems was created to … help … somebody else steal the-” there isn’t a similar-
Thomas: Well, who gets protected by that? Is my question, I guess. In the political arena, if this were a legitimate defense that she’s putting up, who actually gets – am I allowed as just a fan, [Laughing] a voter, of a candidate, to defame companies just because I’m somehow doing so to defend my political candidate, then it’s all okay?
Andrew: So, yes. Let’s give an example of that. You go on another podcast representing yourself and not Opening Arguments Media, LLC, a Maryland limited liability company.
Thomas: [Laughs] I know, you give me a strict talking to! [Laughs] I get it, okay?
Andrew: And you say “I think Chick-fil-A is run by fascists.”
Andrew: You can do that.
Thomas: Well, yeah, but can I say I think Chick-fil-A got their recipe from Venezuela and they put, you know, socialist spices into the chicken in an explicit process, and I detail out what it is, and it’s poisonous or something. You know?
Andrew: Yeah. That distinction is precisely the distinction that appears nowhere-
Andrew: In Sidney Powell’s Motion to Dismiss. Then we get to this non-dichotomy in which they say look, the plaintiffs themselves have characterized these statements as wild accusations, outlandish, inherently improbable, and impossible. So, such characterizations (quote) “further support defendants’ position that reasonable people would not accept such statements as fact, but view them only as claims that await testing by the courts through the adversary process.” You will not be surprised to learn that that argument is not followed by a citation to any case because that is just made up.
Andrew: If I sue you and claim that X-
Andrew: I claim that Thomas is a murderer.
Thomas: Okay, sure. Yeah.
Andrew: And I sue you for it and I go out and I tell everybody “Thomas is a murderer and I’m going to prove that in court,” that remains a statement of fact.
Andrew: One which can be proven true or false.
Andrew: And the fact that you are alleging it in court is a prima facie case that you believe it to be true, because in order to sign the papers in federal court your lawyer has to sign, under Rule 11, has to sign the document saying they believe the facts alleged are true to the best of their knowledge, information, and belief, and that the law is either a good faith representation of the law or there is a good faith basis to extend or modify or change the law. This idea that the opposite of fact is “oh, we don’t know anything until the court hands it down-
Andrew: -and we’re not taking a position.” You are taking a position! You have alleged, in print, in 64 different lawsuits-
Andrew: -that Dominion changed votes!
Andrew: You solicited a dude named Spyder-
Andrew: -to prepare his secret affidavit. It is just …
Thomas: Plus, there was another component in there that sounded like you were saying – so say you say I’m a murderer, you call me a murderer, and I go “that’s ridiculous!” then when I sue you for defamation you’re like “well he said it was ridiculous.”
Thomas: “So he acknowledges that that was a ridiculous claim.” What?
Andrew: Yeah, no reasonable person-
Thomas: Isn’t that kind of what she was saying?
Andrew: Yes. That is 100% what she is saying. Now, look, there is one way out of my defamation lawsuit, and that is if I win – and, again, I don’t even get out if I-
Thomas: If you prove I’m a murderer?
Andrew: Yeah, if I prove you’re a murderer-
Thomas: Yeah! [Laughing] Good thing you … can’t …. Just one minute.
Andrew: It is just bizarre, but I thought it was worth spending a little bit of time in crazy town, but I definitely thought it was worth clarifying, because I have seen other lawyers misrepresent this on television. What this is is a nonspecific desperation attempt to throw every other case that has ever tossed out a defamation lawsuit on grounds that it was political speech, or speech in connection with a lawsuit, or whatever, just into a ground-
Andrew: Into a ground beef sausage grab bag of nonsense. It does not contain the admission that, you know, Sidney Powell knew she was lying in those lawsuits-
Thomas: I was just gonna ask-
Andrew: -or was playing a character.
Thomas: How- what’s that distinction there, that it’s not like the Tucker Carlson thing? Because it still sounds like that to me.
Andrew: Because it does not say – Tucker Carlson said, and Alex Jones said “I’m playing a character on TV and on the radio.”
Andrew: These are not statements that I intend anyone to take as true or false, and no one does take them as true or false.
Andrew: Here it says these are statements made in a political context so you should sort of err in favor of allowing them, and you can’t decide whether they’re true or false until the court decides whether they’re true or false. (Citation needed at the end of that one).
Thomas: Yeah. Okay. So, slightly different.
Andrew: There you go, slightly different, and worse.
Andrew: If I – I’m gonna set you up to walk into the rake again.
Thomas: Oh, okay.
Andrew: Of those 40 paragraphs over 50 pages that includes screenshots of specific statements that Sidney Powell is alleged to have said that are defamatory, how many do you think are refuted or even addressed in this Motion to Dismiss?
Thomas: Uh, all 40-whatever of ‘em!
Andrew: [Laughs] Yeah. Zero.
Thomas: Ah, dang! That rake got me again!
Andrew: [Laughs] The rake got you again.
Thomas: Who put these rakes everywhere? [Laughs]
Andrew: The idea that you could file a 54-page Motion to Dismiss alleging that they have not pled all of the elements of defamation, and not respond to the 40 separate allegations of false things that you’ve said one by one!
Andrew: That’s what you have to do as a competent lawyer, because again, if I’m writing the opposition brief to this it is “look, if even one of these meets the definition-
Andrew: -of a statement of fact, then I get to go forward.”
Andrew: You want to say three of these are hyperbole? Cool.
Andrew: But she doesn’t even tell us. She’s just like “no, no, no, they all don’t count.”
Thomas: It’s a freaking rounding error on the number of [Laughing] defamatory statements.
Andrew: It really is.
Thomas: Dominion could be like “you know what? You can take five of ‘em for you. We’ll give you five.” [Laughs]
Andrew: [Laughs] Just now, the first five defamatory statements are on the house.
Andrew: You know, folks on Twitter, when we were sort of going back and forth, have asked me the “what would you do if this is your client?” The answer, the very serious answer is, don’t represent Sidney Powell.
Andrew: If you’re in this case, you immediately say okay, I will represent you and get you the best possible outcome. This involves you immediately agreeing to shut the hell up, retract all these statements-
Thomas: No, I’ve got better advice. Here’s what you do. You do an extreme makeover. Change her into the most normal – I’m not trying to look shame, but she’s … she’s got a crazy look.
Thomas: She looks a little off. I’m saying total change of the haircut, total change, whatever, and then go back and be like “yes, this was a character. Of course!” [Laughs]
Thomas: Look at what I looked like! Psh, you think that was a real person? No, I was just playing this character! It was a bit! That’s what I would do.
Andrew: That’s not…
Thomas: Not bad, right?
Andrew: For evil Thomas, that’s not bad.
Thomas: Total button-down, completely change the look.
Thomas: Have her dress like an actress from L.A. or something and just be like, “yeah, it’s a bit I did! Come on, it’s not real.”
Andrew: Aah, I like it, I like it!
Andrew: I did want to underscore, the idea that everybody deserves representation, not sure that’s true in civil cases.
Andrew: And everybody deserves zealous advocacy, sure, but at some point the dividing line between that and your lawyer’s obligation not to suborn perjury, that wall becomes paper thin.
Andrew: I think if you’re an ethical lawyer you don’t take this case. Shockingly, one of her lawyers is right wing grifter Jesse Binnall. It’s the same group of loons who do this.
Thomas: I think you’re totally right. And that’s an interesting distinction between the civil and the criminal in terms of having a right to representation, I’ve never thought about that. But, also, I think this is a way that lawyers who want to profit off of stuff often talk themselves into – oh everyone deserves a blahbity blah. Yeah, well, if you’re an ethical lawyer the thing to do here would be like oh, Sidney Powell, sure, I will be your attorney for this case and help you completely concede to it and form some sort of settlement. I’ll do the paperwork for you.
Thomas: Because you obviously defamed them a lot.
Thomas: That’s the representation you’re entitled to, I will help you do that. But you’re not entitled to somebody flat out lying for you, are you?
Andrew: Yup, exactly right. That gets to the second half which is yeah, if you want to litigate Dominion’s damages? I would have no argument, even on behalf of Sidney Powell, to say okay, we’re gonna concede liability, but we’re gonna litigate damages. That’s a fair thing to do.
Andrew: Those are open questions. That’s a thing an ethical lawyer can go home and sleep at night. But to make these kinds of nonsense, grabbing all the poo you can and throwing it at the wall, is – well, that’s why you get pleadings that look like this.
Thomas: I dunno.
Andrew: There you go.
Thomas: I think my defense strategy makes more sense than anything that they have done.
Andrew: I agree, I agree.
Andrew: I think it’s good.
Breakin’ Down the Law: Derek Chauvin Trial Update
[34:37.7] [Segment Intro]
Thomas: Alright, big updates on the Derek Chauvin trial. Oof.
Andrew: Yup. So, here’s what you need to know. A couple of things, number one we have now chosen a jury in the Derek Chauvin trial. Opening statements begin on Monday. The trial is being livestreamed.
Thomas: Oh, wow.
Andrew: If you want to follow along you can do that. That is how, actually, I’m gonna talk a little bit about jury selection. The reason we know all this is because the proceedings are up on YouTube. Trials are open to the public and this one is being broadcast on the internet. I wanted to throw in one last, because it just – I wanted to button down this argument. We talked about how, last week, the ruling of the Minnesota State Supreme Court allowed the prosecution to add back in the 3rd degree murder charge.
Thomas: We have to do a shoutout to Dave Rubin. Stupidest man on the internet.
Thomas: Did you see this?
Andrew: I did not, so please share.
Thomas: Really? Oh, it was posted in the OA community and I tweeted it. Dave Rubin, stupidest man on the internet, has a theory. He thinks it’s like degrees of burn?
Thomas: And he thinks that third is like the highest?
Thomas: I’m not joking.
Andrew: Oh god!
Thomas: Andrew. I am dead effing serious.
Thomas: Because his whole thing is “oh, they’re trying to set this up for the Black Lives Matter crowd to riot because it would have been fine to get 1st and 2nd degree, but they want to go for that 3rd degree.”
Thomas: And then when they fail. Andrew. I am not straw-manning this person.
Thomas: This is his actual statement on News Max interview, or whatever it was. So, just thought you might enjoy that, Andrew.
Andrew: I am loving that. I came prepared to refute the exact opposite of that statement.
Thomas: [Laughs] Yeah, yeah!
Andrew: This also applies. But there were folks saying, and this is not implausible on face. There were folks saying well, putting in the 3rd degree murder charge will allow the jury to split the baby and go for this middle, and it’s gonna be a less serious offense.
Andrew: I want to tell you, to evaluate that statement – and I looked at that and I thought okay, well, what is that risk? What’s the comparative risk versus having nothing if the jury is uncertain about intentionality? I looked up Minnesota’s sentencing guidelines, are very much like the federal sentencing guidelines. You get a severity level from one to eleven.
Thomas: [Laughs] This one goes to eleven, sure.
Andrew: Then you match that opposite your criminal history score.
Thomas: Why don’t you have the severity just go to ten and make ten more severe, Andrew? [Laughs]
Andrew: [Laughs] Well, as it turns out, 2nd degree, unintentional murder, and 3rd degree depraved-mind murder, which is the two charges that are here, are both severity level ten, and they both carry the same base criminal, on the criminal history score zero, would carry the same base presumptive sentence of 150 months, which is 12 and a half years with a discretionary of 128-180. Now, you can depart upwards or downwards from the sentencing guidelines in the same way you can in the federal system, and there is theoretically some more upward departure room on the murder 2 charge as opposed to the murder 3, but I want to tell you that everything I’ve been able to research is, in general, if you prove either murder 2 or murder 3, Derek Chauvin is basically gonna get the same amount of jail time for each of those.
Andrew: If you saw any of that, if you were thinking about it, and look, again, it’s not an implausible argument to make, it’s just not backed up by the facts of how – they’re literally treated on exactly the same line in Minnesota. That’s what we’ll be following along on.
Thomas: Every sign is this is a good faith effort-
Thomas: -to get the most. Throw everything at and do the lesser included charges, essentially, and try to get whatever you can.
Andrew: Exactly right. I believe that this case is being prosecuted in good faith.
Andrew: I believe that the presiding judge is making rulings in good faith. That transitions over into the voir dire. We saw jury selection in a case with, you know, 100% public exposure.
Andrew: For example, it was not a disqualifying question if individuals have seen the video of Derek Chauvin kneeling on George Floyd’s neck.
Thomas: Would that normally maybe be? If it was a lower profile case?
Andrew: Yeah, that’s right.
Thomas: Maybe you’d be able to say aw, we don’t even want people who know anything about it, but in this case you kind of have to make that adjustment. Well, everybody’s gonna have seen this.
Andrew: Yup, that is exactly right. This question came up in the Q&A last night, and in fact with the exact citation to the case [Laughing] that I had just finished annotating in my notes, about the role of preemptory challenges, challenges for cause, in overall jury selection. That case is a Supreme Court case called Batson v. Kentucky from 1986. What happened in that case, that was Petitioner Batson was indicted in Kentucky on 2nd degree burglary and receipt of stolen goods, then as the prosecution was going through voir dire excused some of the jurors for cause and then after jurors were struck for cause, that left four African Americans in the, what’s called the venire, the remaining jury pool.
Andrew: And the prosecutor used his preemptory challenges to strike all four of the Black jurors.
Andrew: You were left with an all-white jury trying Batson for 2nd degree burglary. His counsel said that violates your 6th Amendment right to a jury of your peers-
Andrew: -as protected out to the States through the 14th Amendment that it must be drawn from a cross section of the community. The Supreme Court, 1986!
Andrew: You might think about how our court comes out today. Smack dab in the middle of the Reagan revolution, fairly conservative court, held yeah.
Andrew: Using your peremptory challenges to strike all of the Black jurors from the pool clearly violates the 6th Amendment, and here’s the holding of that case. In application it’s gone a little bit further, it said “if the trial court decides that the facts establish prima facie purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedence require that petitioner’s conviction be reversed.” That has been the post-Batson application. Which is to say when it looks as thought one side is dismissing members of the jury in ways that are racist, the court can call upon you to say you have to give a non-neutral explanation for what you’re doing here.
Thomas: Wait, a non-neutral?
Andrew: Sorry, I misspoke. A neutral-
Andrew: A non-racist explanation for what you’re doing here. Additionally, States have curtailed the use of peremptory challenges. The question we got last night was Thurgood Marshall’s concurrence in that case said “we won’t be fine until we get rid of all peremptory challenges,” which is, I think, a really, really interesting position. It’s hard for me as a lawyer, like I said last night, because I love my peremptory challenges. [Laughs]
Andrew: The handful that I get, because I think I’m pretty good at looking over a jury pool and being like “oh, I’m never gonna convince Uncle Frank over there, I’d like to just get rid of him.”
Andrew: Why? Well, I feel like he would be terrible for my case!
Thomas: But is it – [Laughs] It’s terrible for my case!
Thomas: Is it kind of an arms race thing?
Thomas: Doesn’t both sides get those? So, maybe it’s better to just cancel that out?
Andrew: It certainly could be, and you also have what I call the Thomas Smith process argument, the well, yeah, sorry, if we make it harder for Andrew Torrez to try cases but in the end that does more to promote overall racial justice-
Andrew: I’m willing to take that.
Thomas: Yeah, sorry Andrew. [Laughing] You gotta work a little harder!
Andrew: Yeah, no! It’s a good argument, which is why I made it. There is also hidden and not-so-hidden racism in excusals for cause.
Andrew: [Laughing] Right? I don’t share the view-
Thomas: But at least – that’s not gonna be perfect, but when you say “for cause” at least you have to say a thing that it is, and then that could be evaluated better, right?
Andrew: Yup, yup. Yup.
Andrew: I want to talk quickly about the jury, the makeup of the jury. 6 men, 9 women. 9 white, 4 who identify as Black, 2 who identify as multi-racial. These were some of the voir dire questions that were asked.
The first juror that was seated was asked about his opinion on Black Lives Matter and says “I support the message that every life should matter equally. I don’t believe that the organization Black Lives Matter necessarily stands for that.” This is a white dude in his 20s. Okay. You look at that and go that probably seems like maybe a more defense-oriented witness.
You have a white man in his 30s who indicated in his questionnaire that his view of Officer Chauvin was somewhat negative because he didn’t resuscitate Floyd, and that he supports Black Lives Matter in a general context, and said that he has some unfavorable views of blue lives matter. He says he has a friend of a friend who is a Minneapolis K-9 officer but hasn’t spoken to him about the case or seen him since the pandemic. He’s seen the bystander video two or three times, but not in full, imbedded into news articles. In other words, you see the wide margin that the court has allowed – I’m not gonna go through all of these – in saying yeah, we can’t – I mean, we could change the venue to Mars-
Andrew: -to find people who haven’t seen the video, I’m not gonna do that. There was a motion by the prosecution for a change of venue and the judge said look, I think what we need to do here is identify overt biases, find people who are honest about their ability to listen to this trial in light of what they’ve seen.
Thomas: Yeah. [Sighs] I’m just so scared. Having heard some of these clips, and I didn’t listen to all of voir dire straits album. [Laughs]
Thomas: Having listened to a lot of it, you could hear the people who were like “well, this is a MAGA person or a blue lives matter person who’s trying to sound a little more reasonable.” I’m sitting here thinking, does this come down to there’s 9 people in a jury, did we get 5 MAGAs and 4 Black Lives Matters? Or did we get 5 Black Lives Matters and 4 MAGAs. Honestly, is that – has everything in our partisan society crumbled down to that level? Or do you believe, precious cinnamon bun Andrew, [Laughing] that there’s still some way to get something that looks a little more fair than that? Because I’m a little pessimistic about this.
Andrew: I’m gonna answer both questions the same way, and that is Minnesota has a unanimous jury verdict requirement.
Thomas: Oh, okay. There’s no chance. Alright.
Andrew: But, but, but – so. Your reasons for being pessimistic are noted and agreed with. I will tell you, on the precious little cinnamon bun side, I do believe – and look, we saw this in the Paul Manafort trial. They had a couple of MAGA hat idiots who hung on 8 of the charges, but looked at the other 10 and were like well, yeah.
Thomas: Yeah, no that’s true.
Andrew: That really seems totally clear. So, you know.
Thomas: I’m hoping it’s this clear in this case, or that clear in this case, which is okay, well, he definitely showed a real disregard for this man’s life. Hopefully blue lives matter jurors can be like yeah, this guy shouldn’t go free. But I don’t know.
Andrew: Chauvin’s lawyers have telegraphed, and again, rightly so. I expect to see this in their opening statements on Monday. They’ve telegraphed where they intend to go. They intend to challenge the cause of death, and they’re going to say it was caused by-
Thomas: Mm-hmm. Something other than having your neck being knelt on for an hour.
Andrew: They are gonna say-
Thomas: Okay, cool.
Andrew: He was trying to hide drugs and swallowed a whole bunch right before he was pulled out. He has an underlying heart condition, and took a whole bunch of fentanyl, and they’re gonna put up a medical expert that says fentanyl can cause respiratory problems and pulmonary edema. That’s their argument, and that’s what you need to be focusing in on. If you’re watching the trial, to figure out how this is going, their argument is an alt cause argument. I do not – well, we will see how the testimony develops. This is not a great argument. [Laughs]
Andrew: You know, we’ll see, but that’s what you want to be keeping your eyes on.
Recent Shooting Tragedies/Gun Control
Andrew: We could talk much more about that, but I do want to talk a little bit about the recent shooting tragedies and gun control.
Thomas: Yeah, sure. A little bit of time to talk about, you know, Biden really wants to get gun control done, so – speaking of rakes that we’re stepping into, how’s this gonna go?
Andrew: Yeah. So, I just want to clarify on the law aspect because I have captured – you can put it in the show notes or not, I don’t know that we need to give Fox News any traffic. But there was [Laughs] in 90-point font a header that says “Biden aides, Harris, call for gun control that includes seizing assault weapons.” Then under it in 6-point font “Biden does not support mandatory gun buybacks.”
Andrew: Notice that they had to use two different definitions of the same thing.
Andrew: Mandatory gun buybacks are seizing assault weapons.
Andrew: Because you owned the assault weapons, you then have a constitutional right to be recompensed if the government takes your property. Those are two words for the same thing. To put in 90-point font “Biden’s stealing your guns!” Well no, no he isn’t at all. We have already seen the weaponization of this by the right. I want to tell you just how limited we are in terms of what we’re even considering as an option in response to mass shootings.
There are two-gun control bills that have passed Congress. One is H.R. 8; it is called The Bipartisan Background Checks Act of 2021. It is kind of bipartisan, it got 8 Republican votes in the House of Representatives. You know, thumbs up to you 8. It does one thing, that bill requires that every sale or transfer of a gun, and there are like 5 exceptions, like your know, dad gives the bb gun to his son.
Andrew: No, seriously, that’s a thing that’s in there. Or we’re in the house and there’s a shootout and I toss you a weapon from across the room so you can-
Thomas: Yeah, that always happens. Constantly, yeah.
Andrew: I do not know why they’d-
Thomas: And you shout “no time for backup.”
Andrew: I don’t know why they decided to put a-
Thomas: Fantasy world that these people live in.
Andrew: Yeah. A law and order type Hollywood thing.
Thomas: But you have – hold on, the law says you have to say “Do you know how to use one of these?”
Thomas: Then the other person has to do the [Gun cocking noises] You know, the little thing. Unload, you know.
Thomas: Take out the clip, put it back in. Does that answer your question?
Andrew: The little cock-back that, yeah, absolutely would rip the skin off on your thumb, yeah.
Thomas: I want to do [Laughs] there should be a different version that’s like “You know how to use one of those?” Well, I think- BAM! Just shoot yourself in the foot right away.
Thomas: Ow! I guess not, you know?
Andrew: We’ve gotta put that into our next Law’d Great Movie. That is absolutely – you ever used one of these before? No, but I’m sure I can pbth-
Thomas: What is it? [Laughs]
Andrew: [Laughs] Oh god, that would be hysterical. Alright, so leaving aside these five teeny tiny minor exceptions that don’t matter at all, this would require every sale or transfer of a gun, must pass a background check. That’s it! No confiscation, no nothing. Just hey, are you a convicted felon or are you a danger to yourself or others?
Andrew: Oh, I can’t sell you this gun, then. You may be thinking that’s not currently the law? That’s not currently the law because we have decided that open air tent giveaways are more important than stopping people from gunning people down in public, so yeah. There are huge loopholes whereby guns get trafficked to people who could not pass a background check. And before – I know you weren’t gonna necessarily bring it up, but before Uncle Frank brings up the, you know, NRA talking point here of “well, but how would that have stopped any of these mass shooting?”
Thomas: It’s true that it wouldn’t have stopped the Arizona one, I think?
Thomas: He had no anything, prior – anyway, yeah, there’s always the “well this wouldn’t have stopped this specific thing so let’s do nothing” and the obvious answer is you know, it’s actually a lot like I just remembered the swiss cheese argument for the masks.
Thomas: Oh, if this thing isn’t gonna stop 100% of coronavirus, why do it? And it’s like well, you do this combination of things and it should reduce the transmission. Same goes here, if we did a combination of things – I’m the one person who actually does want to take your guns away? I hate guns, I don’t want them at all, so I’m tired of this conversation because I just actually do want to take away virtually all guns and have, just like very limited use, extremely permitted, like driving a car or flying a plane.
Andrew: Or being on MythBusters? Yeah.
Thomas: Yeah. You should – I mean, I don’t believe in zero-gun ownership, but it’s a weapon that kills people. Things that – I don’t believe that we should have a right to easy access to things that kill a lot of people instantly. I just don’t. Sorry. But anyway, that position aside, at least if we do a number of no-nonsense, obvious things we could greatly reduce the number of gun deaths. It doesn’t have to stop every single one.
Andrew: Think of how minimal this is. I actually went and looked up and I only had to get back, like, four or five mass shootings-
Andrew: From Wikipedia to wind up at-
Thomas: So, is that yesterday or is the day before yesterday? Just chronologically, I’m trying to think. Went back to last Tuesday, maybe?
Andrew: I actually – well, I actually went back to 2019.
Andrew: It was more than that. But I don’t know if you remember, because again there are so many of these, the Odessa, Texas highway shooting? The perpetrator in that shooting was turned down for a background check and then bought his weapons via private sale. Used exactly this loophole to get the guns that he used to kill ten people. That is – you want a “well it wouldn’t have solved-
Andrew: No. But it would’ve solved Odessa, Texas.
Andrew: That’s H.R. 8. Maybe every time a gun is transferred there should be a background check. H.R. 1446 is the Enhanced Background Checks Act of 2021. You can probably tell from the title, it also does not confiscate your guns or ban any type of ammunition, or high capacity magazines, or any other number of, you know, very sensible, moderate gun control that like 80% of the country supports. No, what this does is fixes – as far as I can tell, an AOL style dial-up bug in the FBI’s National Instant Criminal Background Check System.
Andrew: I really researched the hell out of this to try and figure it out. It’s called the National Instant Criminal Background Check System, but it’s not instant. Only 37 States actually use it the way it’s supposed to, and the District of Columbia. 13 other States use this kind of weird hybrid mechanism that I’m sure is designed to just slow it down even further. Basically, you type in “Thomas Smith” and it does not-
Thomas: [Laughs] Good luck with that!
Andrew: [Laughs] I type in “Thomas Smith,” and it does not, like, ring a little green light or, you know.
Andrew: What it does is it starts looking and it’s like “searching… searching… searching.”
Andrew: When it finds something, it puts up a red light, but lots of times it just does nothing. Because it’s like “sorry, lots of dudes out there named Thomas Smith, gotta figure this one out.” Under the current law, a federally licensed gun dealer can sell a gun to an unlicensed person, to Thomas Smith, if he’s plugged him into the NICS-
Andrew: -and has gone 3 days with no answer.
Andrew: Again, that’s a “we haven’t found anything yet. There might not be anything.” This bill would extend that AOL dial up phase to 10 days. So, it says go ahead, great, you get a “do not sell guns to this person because they’re a danger to themselves or others,” that’s a no, don’t do that. But if you want to go on the “well, we haven’t found anything yet, I’m sure you’re probably okay.” You’ve gotta give it 10 days instead of 3. That bill got 2 Republicans.
Those are the only two bills that Congress has passed, that’s what’s headed to the Senate right now. Modifications to how we run background checks at the most basic level. That is it. So, if Uncle Frank or Aunt Cathy is talking about how “Biden’s using that to come steal your guns blah blah.” Say “show me the bill.” Show me what passed Congress, show me what’s pending. Lots of people can say whatever they want, but what Congress will be voting on is literally the most minimal thing I can imagine.
Thomas: Cool. Plus, the Supreme Court in this day and age, I wonder what they might have to say on stuff like this. I dunno.
Andrew: I have some thoughts.
Andrew: And that might dovetail nicely with next week’s episode.
Thomas: Oh, okay. Bad note to go out on, but remember my funny Sidney Powell bits. Those were, you know.
Andrew: I did, those were great!
Thomas: [Laughs] She should pretend she’s a … wrestler. [Laughs]
Thomas: She’s actually just WWE or whatever it is nowadays.
[1:00:27.2] [Patron Shout Outs]
[1:03:02.6] [Segment Intro]
Thomas: Now it’s time for T3BE, alright Andrew. I’m gonna try something different. I’m gonna get it right. Stop the mind games. Look, the test proved to me last week that it’s maybe not necessarily fully porked.
Thomas: Maybe there’s a little bit of room for just, stop playing games.
Andrew: [Laughs] It’s like vegan bacon.
Andrew: It’s got a kind of liquid smoke sort of taste, paprika to it.
Thomas: [Laughs] Yeah.
Andrew: Not actual pig pork.
Thomas: I’m just gonna get it right, here we go. Get it right.
Andrew: Alright. Thomas, A sporting goods shop contracted with a publisher to buy, for sale in its store, 1,200 posters featuring a professional golfer.
Thomas: Oh, okay.
Andrew: During production, the image oi the golfer was inadvertently reversed and the right-handed golfer appeared to be left-handed. When the posters were delivered on the date provided in the contract, the sporting goods shop noticed the discrepancy, which had no provable significant impact on the effectiveness of the poster.
Andrew: In the opinion of the shop management, however, the posters did not look as good as they had in the catalog from which the shop had ordered them.
Andrew: So, is the sporting goods shop legally entitled to reject the posters?
Andrew: (A) No, because the nonconformity does not materially alter the value of the posters to the sporting goods shop; (B) No, because the publisher must be given an opportunity to cure the nonconformity-
Andrew: -before the sporting goods shop can reject the posters; (C) Yes, because the posters do not conform to the contract; or (D) Yes, because the publisher has breached an implied warranty of fitness for a particular purpose.
Thomas: Oh man! Alright. I’m gonna try something different. I’m gonna just get it wrong.
Thomas: Sorry, I’m gonna go back and edit that, put that in. Yeah, I don’t think I’m getting this one. You know, normally the contract law was my specialty, but there was that one we had recently that – what was it, the one where it was like the stuff was delivered and it wasn’t – oh, that was like it was damaged on delivery and you had to take it up with the delivery company. That really threw me for a loop because it felt – but yeah, I guess that’s not really the same here. Let’s see, what’ve we got? You have reversed – you’ve turned Tiger Woods into Phil Mickelson, essentially!
Thomas: Although that would involve a number of other modifications.
Thomas: But [Laughs] Old Leftie! That’s for anybody who knows golf. I’m trying to think of other left-handed golfers. I can’t think of other left-handed golfers, I know there are some, but you know, there’s only one called “Leftie” and that’s Phil Mickelson, so that’s all I’ve got. So, in the opinion of the shop management the posters did not look as good as they had. Look as good. That strikes me as pretty weak. This is a weird thing because it has no provable significant impact on the effectiveness of the poster. You’ve got the opinion of the guy who bought them being like “nah, this looked better in the catalogue,” but that sounds like nothing to me. [Laughs] I order all kinds of stuff that doesn’t look as good as it did in the catalogue. That’s everything you order online now is like “wow, that ad made this seem way better than it is,” and I don’t know what you can do.
Is the sporting good shop legally entitled to reject the posters? On one hand, it’s like I don’t know, you’ve inverted the image. You’ve messed something up. But it does throw in, there’s no provable … impact? I think the question makes it feel a little bit more significant, because if you’re changing the righty to the lefty, that feels like it’s more of a thing, but if the question is also stipulating that this has no provable significant impact on the effectiveness, then I think I have to treat this in my mind as thought it’s a printing error that’s kind of insignificant. That’s kind of where I’m looking here. Oh, there’s a little bit of a red dot on a thing that doesn’t do anything.
I dunno, I think I’m leaning toward no. I think I’m leaning toward a no answer. Okay, A, no because – and that’s a no to the sporting goods shop being able to legally reject the posters. No because the nonconformity does not materially alter the value of the posters to the sporting goods shop. I mean, that’s a pretty no-nonsense answer. [Laughs] Now how non-porked do I think this exam is? Because A is a very no-nonsense, non-pork answer.
B, no because the publisher must be given an opportunity to cure the nonconformity … before the sporting – this one doesn’t really make any sense to me. How would you have – where would – B says no because the publisher must be given an opportunity to cure the nonconformity before the sporting goods shop can reject the posters. But how would that work, here? Wouldn’t that just be the next step anyway? You would reject the posters and then they’d be like “oh, here, let’s fix it.” I don’t get how this would – I’m very confused how this would work. Let’s see … during production, when the posters were delivered. Yeah, because they’re delivered on the date. I don’t think it’s B. I don’t think that – if it’s delivered on the date and you can’t reject them and you have to accept them but then say cure the nonconformity? I dunno, B seems totally wrong to me and if it’s B then I’m just screwed.
C, yes because the posters do not conform to the contract. You know, yeah. It’s possible.
D, yes because the publisher has breached an implied warranty of fitness for a particular purpose. Well, I don’t know what that would be. I think it’s not D. I’m solidly not D and not B. I think it’s between A and C, and we’re faced with a classic porkage dilemma here. A seems like a no-porkage, no-nonsense answer. C seems like … well, you know, C’s not porkage. Maybe this is a basic question. It’s between A and C. The posters do not conform to the contract. The image is reversed. This is why I think I’m not gonna get this right, because I’ve been confusing past contract questions of, like, what’s a material breach? Is anything a material breach? This feels significant, but again, the question said there’s no provable significant impact on the effectiveness of the poster and that feels like, alright, you’ve answered the question.
Look, I’m going with A, Andrew. I’m going with A, you know. Just seems that it doesn’t materially alter the value. I don’t know. I think it’s A, I don’t see any other answer. The other answer maybe is C. D doesn’t seem right at all, and B doesn’t seem right so I’m between A and C and I’m going with A.
Andrew: Alright! If you’d like to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag #T3BE; include your guess, your reasons therefore. We will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: And that’s our show! Reminder, hop onto that Stereo app. Get it on your phone, download that Stereo app. Follow @Torrez, follow @SeriousPod, catch us every Wednesday for a Q&A. It’s a ton of fun, we did one just last night.
Andrew: Except not next Wednesday, remember.
Thomas: Except not next Wednesday because Andrew is gone. So, make sure to do that, and have a great weekend, we’ll see you next time!