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Thomas: Hello and welcome to Opening Arguments, this is episode 484. I’m Thomas, that’s Andrew, how’re you doing my friend?
Andrew: I am fantastic, Thomas, how are you?
Thomas: You know? Fantastic.
Thomas: There’s so many different reactions, there’s so many different ways to react and word games and things we’re doing with this, but let’s be fair, we got justice here. We got justice, Derek Chauvin is a murderer, he’s guilty on all three counts. That’s major news. Should be status quo, but it isn’t. Can’t take anything for granted. [Laughs]
Andrew: Yeah, no, that’s exactly right. As we’ve said here and elsewhere, I get the Negatron position of well, if you can’t get a guilty verdict when the crime is-
Andrew: -completely recorded on video, when are you ever gonna get one? I get that, but we got one.
Andrew: Let’s focus on that. Also, a huge shoutout, somebody that is going lesser appreciated in this, to Darnella Frazier.
Andrew: That’s the 17-year-old who recorded the entirety of the event.
Andrew: She is a hero and deserves that shout out.
Thomas: Yeah, it’s just – there’s so much to sit with at once. So many emotions, obviously. The trial was gut wrenching, it was awful.
Andrew: [Sighs] Yeah.
Thomas: I still – my Twitter question stands to you, sir, I feel like some of these witnesses should have a civil case against Chauvin for what he essentially did, obviously to George Floyd, but what he did to them by making them witness a horrific thing. That’s all awful, but sitting on top of that in this giant stew that I think is going in all our brains right now is the fact that we got a guilty verdict which I think, in retrospect is the most clear-cut case imaginable. It really – it’s amazing. I was thinking about this the other day. If you were to watch this from a totally naïve brain, just assume it’s like a kid who, because of our public schooling system doesn’t know anything about racism, you know? So, just a kid in America. [Laughs]
Thomas: If you were watching this you would have just seen, well, a person murdered someone, it got caught on video, and then they obviously convicted them right away. That’s what – you know what I mean? But without the tension of “oh my god, are we gonna get a conviction here?” it’s a whole different movie when you go back and watch it. Because the case was so obvious the entire time, and the defense was so terrible, because there was no defense. [Laughs]
Thomas: There’s nothing you could say, the guy did it, it was on camera, we all saw it. In retrospect it will probably look like a really straightforward thing, even though it absolutely wasn’t. We were white-knuckling it the whole time.
Andrew: I can’t add anything to it, so I will just endorse it.
Thomas: Well, sorry, I just couldn’t hold it in. I know we’ve got stuff to talk about.
Thomas: But that’s the major news, and even though yes, it is a clear-cut case, just the precedent of a police officer was found guilty of murder for killing a black man, which just almost never happens in the history of our country, right? There’s gotta be a handful of this has ever happened.
Andrew: I cannot find a single example of white cop convicted for murder for excessive force on a Black defendant. I can’t find a single – that’s not to say there isn’t.
Andrew: But I can’t find one.
Andrew: There you go.
Thomas: I already know they said in Minnesota never had happened. In the country it’s gotta be super rare. That’s gotta be a big deal going forward. Every officer, every prosecutor, knows this now. It just feels like a really big deal, so I’m just – I don’t know, I don’t wanna say I’m excited or something, it’s good news. I mean, it’s good news in this day and age.
Thomas: Okay, alright. Sorry I went out of order; I just couldn’t hold it in. [Laughs]
Thomas: I know you wanted to tell people about our Tuesday show.
Andrew: Yeah, it’s been a while and there’s been a little bit of a backlog and we’re gonna have – because they’re just fantastic listener questions that have come in, so we’re gonna do an all-listener questions episode on Tuesday. A couple of people have asked what’s the best way to get your attention to pose a question? There are really three ways to do that. First, if you have a short question, a single question with a single answer, post it on our monthly Patreon Q&A’s. If it gets sufficiently upvoted-
Thomas: Yeah, you could have the Russian bots upvote it.
Andrew: Yeah, exactly.
Thomas: Oh, but they’ll have to be patrons. Oh, oh! Okay.
Andrew: But, you know, a whole lot of Russian bot patrons, we will gladly accept Rubles, yeah.
Thomas: Andrew, there’s no rule that says a Russian bot can’t be a patron of OA! [Laughs]
Andrew: That is very true. Secondly, if it’s a longer form, our monthly Q&A’s we try and knock out a dozen questions. Sometimes we get through five …
Andrew: [Laughs] But you know, we try and do a short form. If you have an involved question and you know that it’s a deep dive question, the single best way to get that to us is to send us a message on Patreon. Head on over, patreon.com/law, and do send a message to us. We check in with those as frequently as we can. We read every single message that comes in on Patreon. Sometimes it takes a couple of weeks because, you know, I have a law practice.
Andrew: You know, but we do. We get through each and every one of those. Finally, the third way, you can email us at firstname.lastname@example.org. We read the Patreon messages first.
Andrew: That shouldn’t surprise you on that! [Laughs]
Thomas: Yeah, there’s an order. I mean, it’s a lot. Nobody ever be terribly offended if we don’t get to a thing. Also, you can feel free, you know, if you feel like it’s been a while and it’s been a good question, you know, you can feel free to try again, remind us.
Thomas: It’s nothing personal, it’s just we do get a lot of [Laughs] messages.
Andrew: We get hundreds a month.
Thomas: And I can’t really help Andrew out because I’m not a lawyer, so it’s the best excuse in the world. I’m like sorry, Andrew, you’ve gotta read that because you’re the lawyer. What am I gonna say? They don’t want my answer. [Laughs]
Andrew: Yeah. But we do try and –
Thomas: That was a very resentful “yeah.” [Laughs]
Andrew: [Laughs] Our listeners are fantastic, and now that we’re not living in the shadow of Trump where it’s like “must cover this right now-
Andrew: -or else, you know, the news will have broken to 8 other things. Now we’re in kind of this normal pattern where we can say oh, yeah, we’ll cover this in due course. It just frees us up to do a lot of kind of how we initially planned the show back in – how we planned, once the show went bi-weekly. The idea was that this Friday episodes are gonna be breaking news and the Tuesday episodes are gonna be more of a deep dive and I think people like that. Trump, everything was on fire and now everything’s not on fire again. Our listeners are amazing, and that’s the best way to get ahold of us.
Related to that, I wanted to try and systematize this. I’ll go ahead and add it on the Patreon. Every week (with an asterisk, occasionally it doesn’t happen) I’m going to post for all patrons, a dollar and up, Miss Ashley’s notes. We have tons of stories that we research and links, and she’ll write snarky comments in there. If you’re not following along with Miss Ashley’s you should, they’re great. It’s a great way to do your own deep dives on stories that came up that we just couldn’t cover this week. I’m gonna do that every week for any patron at any level. Secondly, I’m gonna upload my notes, you know, the ones that you see, Thomas.
Andrew: For all patrons. We have a newsletter level, it’s a very small tier. It’s for people who are $3 and up, it’s kind of in between. You’re past the “I get my Law’d Awful Movies,” you’re not quite at the hall of fame. They’ve been our neglected middle children for a while, and every week if you’re at that $3 range I’m gonna give you my notes. Now, those notes range from sometimes and episode is mostly scripted, particularly if it’s a subject I know less about, to bullet points and links and stuff if it’s a subject I know a lot about. But they’re usually 8-15 pages long, they’re pretty in depth. I know the folks who read them enjoy having them.
Thomas: Yeah. I think we call this level the producers who work on other shows level. [Laughs]
Thomas: The John Oliver/Maddow level, you know, when they want to come and scoop your research. [Laughs]
Andrew: Yeah, that’s exactly right. For those that steal the stuff we do and want to know where we get that information from. I’m gonna give that away every week, like I said, to our newsletter level patrons because I have not written a newsletter in a long time. Now, in fairness, I haven’t promised to write a newsletter in a long time.
Andrew: But realistically, I think this is a good way to make it up to those folks in that middle Brady kid tier. [Laughs]
Andrew: So, there we go.
Thomas: No more Brady violations on those- no, never mind.
Thomas: Alright, that’s a little patron update, it’s a good thing. Glad we’ve got that shored up, and now it’s time to go on with the show.
Breakin’ Down the Law: Chauvin Guilty Verdict
[10:57.4] [Segment Intro]
Thomas: We’ve talked a little bit about the Chauvin trial. Guess what? We’ve got more about the Chauvin trial because it’s huge news and there’s so much about it. We’ve gotta talk about sentencing, you know, there’s a lot of stuff. But where do you want to start us off?
Andrew: Well, I want to start off with two things where I was wrong in our Facebook discussion group as kind of an instant reaction. Now, it turns out these are not material errors [Laughs] for reasons I will explain, but it’s really important to me and 90% of our listening audience, 95% has no idea, but I was wrong and it’s interesting so I want to own up to those errors.
Andrew: First was you posted right out of the gate in our Facebook group, which is the Opening Arguments Community if you’re on Facebook, go look that up.
Thomas: Yeah, go join. It’s fun. It’s a great place.
Andrew: Yeah, absolutely. We’ve got about 5,000 listeners who are members and we have a good time. You posted right 4:30, hey, verdict is coming down, I’ve been pretty optimistic about this. You turned out to be 100% correct.
Thomas: Oh, thank you.
Andrew: A couple of folks on there said well, do we know that this isn’t a mistrial or a hung jury? And I posted very, very quickly no, there would have been an Allen charge.
Thomas: Oh, that’s funny because I was thinking that was part of what I based my reasoning on, so I can’t wait to have been right for the wrong reasons.
Andrew: [Laughs] Yeah.
Thomas: I thought – isn’t there the thing where the judge has got to be like “alright, ya rascals. If you’re not unanimous.” Because that’s what I predicted. I knew it had to be unanimous, I knew that this trial, as I already said, was the most obvious thing in the history of trials, it was a case closed thing, and I knew if it was coming in this fast – and you can tell me if my assumptions were wrong. If it was coming in this fast there was no way that it was like a unanimous not guilty. If they were still split, wouldn’t the judge say “take a little more time, give it another try.” Wouldn’t it have had to have been unanimous either way for the decision to come in at that time?
Andrew: Here is an example of where you not being a lawyer and me being a lawyer means you were 100% correct.
Andrew: But I was wrong.
Thomas: Okay, that’s this week’s bar question, everybody! I got it right, that counts for this week.
Andrew: [Laughs] No, but it’s true. Because an Allen charge is more serious than a judge just saying-
Andrew: -come on guys, it’s been a day, go talk it out some more.
Andrew: This turns out to be highly relevant in Minnesota law, which I then went and looked up. What’s an Allen charge? What the hell are we talking about? In federal court – remember the Chauvin trial is a State court trial. In federal court, which also has a unanimous jury requirement, this stems from a case called Allen v. U.S. from 1896, and the question is if the jury comes back and reports that they are unable to reach a unanimous verdict, can you – and I’m not kidding, it’s called this among criminal defense practitioners, and probably among prosecutors as well. Can you bring the hammer down?
Andrew: That’s what happened in that case.
Thomas: Please tell me this is like a second gavel that the judge has that’s in like a case-
Andrew: [Laughs] It’s a comically oversized, yeah.
Thomas: Break in case of emergency, yeah. [Laughs]
Andrew: It is the judge exhorting the jury to compromise.
Andrew: To reach a unanimous verdict. Here is how – these are from the model jury pattern instructions. You can get this in any federal case. You just say yeah, I want the pattern instructions on an Allen charge. Goes like this, this is word for word, “Members of the jury, I’m going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case.” That’s the part that you said. Keep at it.
Andrew: “And I have a few additional comments that I would like for you to consider as you do so,” this is what makes it uniquely an Allen charge. “This is an important case. This trial has been expensive in time, effort, money, and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and it may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you. Any future jury must be selected in the same manner and from the same source as you were chosen, and there’s no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it-”
Andrew: “-or that more or clearer evidence could be produced.”
Thomas: Might I add a better-looking jury, too, would not be found!
Andrew: [Laughs] There’s a little bit of-
Thomas: I love this form letter that’s like your call is very important to us. [Laughs]
Andrew: And now here was the constitutional issue that the Supreme Court said was okay. “If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one, since it appears to have made no effective impression on the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt. Remember that at all times no juror is expected to give up an honest belief that he or she may have to the weight or the effect of the evidence, but after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.”
Andrew: “You must also remember that if the evidence in the case fails to establish guilt the defendant should have your unanimous verdict of not guilty. You may be as leisurely in your deliberations as the occasion may require and take all time which you feel is necessary. I will ask that you retire once again and continue your deliberations with these additional comments in mind, to be applied, of course, in conjunction with all the other instructions I have previously given to you.” That’s a standard form Allen charge. The kicker is it applies in all federal criminal jury cases, but about 20 States have prohibited that second part of the Allen charge in State criminal prosecutions, and, as it turns out, Minnesota’s one of those cases. [Laughs]
Andrew: The case is a case called State v. Martin from 1973 that says you may not exhort to jurors that they have a duty to reach a unanimous verdict.
Andrew: And that if you’re in the substantial majority that should persuade the minority of holdouts or vice versa. But you can do that first part. This is why it’s not a material mistake on my part. Minnesota has also made it clear, there’s a case called State v. Knox from 2003, recent by post-Ali McBeal standards. [Laughs]
Andrew: That says yeah, one day of deliberations? Yeah, keep at it. In fact, in that case the jury came back after one day and the judge was like “I appreciate that you’re deadlocked, keep trying,” and did not say the other part of the Allen charge. The Minnesota appellate court said that is totally fine after 24 hours. While a hung jury is a legitimate outcome, the language of the decision was the Supreme Court said that supplemental instructions to a jury that has indicated it is unable to reach a decision on a charge cannot be coercive. In other words, the trial court cannot use language that instructs the jury that it must reach a verdict of either guilty or not guilty. Here the record indicates that the trial court properly instructed the jury using the pattern instructions, was given to the jury prior to deliberations, and again after a day when they informed the trial court they were at an impasse. Since they were not commanded to reach a verdict, doesn’t violate the State prohibition on an Allen charge.
So, no Allen charges in Minnesota, but after a day, Thomas, you were 100% correct that the State could give a non-Allen charge of “come on!”
Thomas: [Laughs] Okay. Come onnn! That’s what they’re allowed to give?
Andrew: Yup! Exactly.
Thomas: Alright, so I lucked into that one, I suppose, but either way.
Andrew: Then I’ve got a second Andrew Was Wrong to confess to, and that is I have been using the language of “lesser included offenses” to describe the three charges against Derek Chauvin. When folks asked “hey, he was found guilty on all three counts, are those counts going to run consecutively?” I have been saying oh, no no, he’s only going to get sentenced on the first count because they merge. As it turns out that may be technically incorrect, but again the outcome is still the same.
Andrew: But it’s really – again, we want to get this right. A lesser included offense is one in which the elements are entirely contained within the larger offense.
Andrew: Let me give you the textbook example that we learn as law students in criminal procedure. That is consider theft, robbery, both at common law, and then statutory armed robbery. Theft is the wrongful taking of the personal property of another with the intent to steal. Robbery is the wrongful taking of the personal property of another with the intent to steal and the use of actual or constructive force. Armed robbery is the wrongful taking, blah blah blah blah blah, and the use of actual constructive force with a deadly weapon. If I rob the convenience store at gunpoint that is common law theft, it’s common law robbery, and, assume for purposes of this hypothetical, it’s State law armed robbery. But the other two offenses merge into the armed robbery offense, because each and every element is repeated in the top-level offense.
Andrew: Another classic example of that is that you cannot sentence somebody separately for possession of drugs and possession of drugs with intent to distribute those drugs because, again, 100% of the elements of the lesser crime-
Andrew: -are included within the greater.
Thomas: We just lock people away for 400 years for the top crime is what you’re saying.
Andrew: Right, exactly. Such is the case here. Classically, different degrees of murder, and murder and manslaughter, are also the examples you give in criminal law of offenses that merge, but the way in which the Minnesota statutes define those offenses a couple of people have pointed out and I think they’re right, that there might not be a merger here.
The murder two statute, subdivision two, the unintentional murders, of which Derek Chauvin was convicted, says “whoever causes the death of a human being without the intent to affect the death of any person while committing or attempting to commit a felony offense” other than criminal sexual assault or violence or a drive by shooting is then guilty. That’s the classic felony murder description here, and the underlying assault, obviously, is the assault of kneeling on George Floyd’s neck. Number one, Minnesota, there’s a subdivision of the merger doctrine as to whether it can be the same underlying – but yes in Minnesota, that’s how their murder two statute is written.
Well, murder three is whoever, without the intent to affect the death of a person, (so that’s the same) causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind without regard for human life. That element is separate from the murder two. It’s not contained, arguably-
Andrew: -within the larger charge. There’s nothing – you can be guilty of felony murder without having a depraved mind. The fact that the jury found that Derek Chauvin had a depraved mind is, I think, an element that’s not included, so the murder three would not necessarily merge into the murder two.
Andrew: Similarly, the manslaughter says “whoever causes the death of another by the person’s culpable negligence whereby the person creates an unreasonable risk and consciously takes chances of causing death or great bodily harm,” it’s arguable whether that merges into the murder two and three.
Thomas: But you’re saying that doesn’t mean that he’s gonna serve all these sentences separately, still? I guess we might get to that in the sentencing part. [Laughs]
Andrew: Yeah. Well, we’re about to, that’s a perfect transition to sentencing.
Thomas: Oh, okay.
Andrew: The sentencing guidelines tell you that you only sentence on the topline offense.
Thomas: Hmm. I guess I’m a little confused, though.
Thomas: Let’s say, just to ask a question to clarify here. If you’re saying they don’t fold into each other or whatever, how is there a topline offense? I mean, hypothetically let’s say I commit a robbery and I kill somebody, just hypothetically. [Laughs] I don’t have any immediate plans.
Thomas: But you know, those are unrelated. Wouldn’t I serve sentences probably for both of those things together? Combined?
Andrew: But you would serve them concurrently.
Andrew: That’s absolutely right.
Andrew: This is section 2(f) of the Minnesota sentencing guidelines and it says, “When an offender is convicted of multiple current offenses,” (that’s here) “or there is a prior felony sentence that has not expired or been discharged, concurrent sentencing is presumptive.” The way in which you figure out what’s the topline offense is what has the longest sentence?
Thomas: Oh, okay.
Andrew: Then the others you are serving concurrently at the same time. Now, that is the presumption. You can overcome that presumption by a motion for departure, which we’re gonna talk about, and I do not know whether in the motion for departure that the State has said it intends to file, I do not know whether they will say that the sentences should be served consecutively rather than concurrently. They will probably ask, because as a lawyer you sort of cover the landscape, but I don’t think the argument there is as strong as the argument for departure for aggravating factors.
Andrew: Which we’re gonna get to. The bottom line is whether or not these offenses merge is not relevant because when you’re convicted of a whole bunch at the same time you are preserved to serve them concurrently rather than consecutively. But again, I love that little sort of mini deep dive into the merger doctrine, and I fired off an answer on Facebook that, uh, was less than accurate. Gotta hold myself accountable there.
Thomas: [Laughs] You’re the only one holding yourself accountable for things you said on the internet, but that’s good, that’s what we like.
Thomas: Let’s talk sentencing. Why does it take eight weeks to get to sentencing? Seems like a long time.
Andrew: It does, although keep in mind if you didn’t – and I know you watched the verdict, but if you didn’t you missed at the conclusion the prosecution moved to revoke Derek Chauvin’s bail, that was granted because he’s a murderer.
Andrew: And you don’t get bail when you’ve murdered somebody. Derek Chauvin was handcuffed and led away and is in jail right now in Minnesota awaiting sentencing. You know, it’s not like the Roger Stone case where-
Andrew: You know, or the Michael Flynn case where they were just home kickin’ it, writing right wing screeds and going on Infowars. Derek Chauvin will not be doing any of those things for the eight weeks. What’s gonna happen? Usually, it is a quicker time to sentencing because the primary documents that you are preparing at this time are the pre-sentence investigation report, or PSI, the victim impact statements, and here the additional time is baked in because the prosecution has announced that it intends to file a motion for a departure from the sentencing guidelines, which is really, really significant. We’re gonna talk about all that.
Andrew: The other stuff I’m gonna include – I could not find a sample form PSI report from Minnesota, but I’m gonna include one in the show notes from Vermont and they’re all basically the same. What happens is you have to write up as the now guilty defendant, we enter the stage where you get to get sentenced. You have to write up a statement of what your background is and why you think you deserve the lowest possible sentence that the court can give.
Andrew: You turn that over to the presentence investigative officer and that person then gets to go verify whether you’ve told the truth or not. If you say “I am a loving husband and father of four,” they get to go talk to your wife. [Laughs] And if the wife is like “well actually we have three kids,” you know, that would be real bad if you put that in.
Andrew: I make the joke, but they do drill down and they ask. They’ve got your statement and they will ask your family, your employers, to validate what you’ve written on that report. This, by the way – a lot of folks have asked where does his, Derek Chauvin’s history of violence come in? It comes in on the PSI. It is the job of the presentencing investigation officer to uncover and report on that kind of information. I will be very, very interested in seeing that report when it comes out, if it’s a public part of the trial, because I know the diligence with which these kinds of reports are prepared in ordinary, you know, non-police officer defendant cases, and it will be interesting to see whether they use the same level of diligence with a cop. Hopefully they will. All defendants should be treated alike, particularly even if you’re a cop. So, there’s the PSI, there are victim impact statements. I have no doubt that the prosecution already has those, because we talked about how in this trial you were able to give that spark of life testimony.
Andrew: Which is highly unusual and sort of borders on victim impact testimony anyway. You now get to give the victim impact statements, and again this is a lot of States, most States follow this practice where you just say “hey, here’s the consequences to us and to society of the crime that you’ve committed.” They are preparing that. Those two factors will then guide the judge in terms of giving a sentence that is within the guidelines range. Again, Minnesota uses a procedure, we’ve talked about this on the show so I won’t overly go into it, but I’ll include the matrix in the show notes, where your row is the base offense level of the highest offense that you’ve committed, and your column is your criminal history. Here, Derek Chauvin is in the zero criminal history column, and has the second highest possible offense level, which is offense level ten for second degree unintentional murder. That gives you a number of 150, that’s the presumptive sentence, that’s why everybody is saying twelve and a half years. There’s a little italicized set of numbers below that, that is the discretionary range given this case within the guidelines that the judge can sentence without having to write a report.
Andrew: You really do. The primary disincentive for departing from the guidelines-
Thomas: You’ve gotta do a little paperwork, huh?
Andrew: -is you have to do more work. Yeah, you do. That range is 128 to 180 months. Basically, almost eleven years to fifteen years. When you hear twelve and a half, you could go as high as fifteen years, and what’s supposed to guide that are the PSI’s and the victim impact statements.
Andrew: You would say alright, we presume that when somebody is guilty of second-degree murder, they should get 150 months, and within that presumption this seems a little worse than normal, so we can go up as high as 180 months. If you want to go above 180 months, that is a departure, and you have to write, as the judge, a departure memorandum. The State here has said they’re going to move for a departure. There are 13 different factors that can support a motion for departure. I will also add, you can as a defendant, move for a downward departure. You can say hey, look, this person committing this crime is not like other criminal defendants-
Andrew: -who commit this crime, there are reasons to think you should be more lenient. The same kinds of conditions apply. I would be very, very shocked-
Thomas: Yeah. I don’t think we’re seeing that here.
Andrew: -if Chauvin’s lawyers tried to do that here, but you can.
Thomas: Well, there’s certainly cases where that would make sense.
Thomas: What’s the literal long and the short of it, Andrew?
Andrew: [Laughs] It’s gonna be eleven to fifteen unless there’s a departure, and that’s really gonna be controlling here. If there is a departure, the judge can go way above fifteen.
Thomas: Oh, wow.
Andrew: The three aggravating factors that apply are – this is section 2(d)(3), it’s pages 44-50 of the sentencing guidelines are, number one, that the victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity and the offender knew or should have known of this vulnerability. Here’s an example where all the evidence they put in about, you know, his fragile heart and his drug use and all of that-
Thomas: Yeah, that’s gonna come back to bite him in the ass a little bit.
Andrew: [Laughing] Can come around and bite him in the ass, that’s exactly right. Number two, the victim was treated with particular cruelty for which the individual offender should be held responsible.
Thomas: Yeah. Yeah, for sure.
Andrew: And number – sorry, four of these. Number eleven, the offender intentionally selected the victim against which the offense was committed in whole or in part because of the victim’s actual or perceived race, color, religion, sex, sexual orientation, disability, age, or national origin. That’s pretty straightforward. Finally, number thirteen – so that’s eleven. Number thirteen is the offense was committed in the presence of a child. We know. It was videotaped by a 17-year-old.
Andrew: That’s a pretty strong case for an aggravated departure. That’s why it’s gonna take eight weeks, they’ve gotta do the background for the PSI and they’ve gotta brief this issue. To the extent that those documents are public, we will obviously talk about them on the show.
Thomas: Alright. Wow. Makes sense it takes that long, then. I feel like in shows and movies and stuff they’re just like “guilty! Ten years.” [Laughs]
Andrew: Yeah. [Laughs]
Thomas: I guess that’s not how it works in real life.
Thomas: Finally, well [Sighs] I really – I know you talked about this a little bit on Aisle 45, but the Maxine Waters comments. People are very worried, and I know our listeners are worried, that this is some sort of instant appeal that’s gonna be the way the good news is actually bad news somehow. What do you make of that?
Andrew: Yeah, I have talked about this in other places, and I guess I deviate a little from kind of what I’ve seen on left wing Twitter.
Andrew: And a little bit on MSNBC. I think it was 100% appropriate for the judge to have excoriated the Maxine Waters comments. I say that as a lawyer. [Laughs]
Thomas: Yeah. You brought up the example of Trump, you know. We got really, really upset when Trump would do this thing of trying to influence cases, and honestly this doesn’t mean this is as bad as that, I don’t think it is, but we probably shouldn’t go down that road, you know? We probably shouldn’t take any steps down that road toward the “being as bad as Trump.” You know, not even a little bit.
Andrew: I think that’s a really good way of putting it. I do not believe that Maxine Waters was-
Andrew: -attempting to influence any member of the jury.
Thomas: Whereas Trump absolutely was. [Laughs]
Andrew: Well, of course.
Thomas: So, not – I want to make absolutely clear; I’m not saying what she did was as bad. I was just saying we should hold ourselves to a higher standard than the right. This only applies to elected representatives in our government, you know. Elected Senators and represe- you and I can say this all day.
Andrew: Yeah. [Laughs] And we should.
Thomas: [Laughs] And we will.
Andrew: And we did. [Laughs] Yeah, no, that is exactly correct.
Thomas: Should we – sorry, just in case anybody didn’t hear, do you have the actual comments she made handy?
Andrew: Yeah. So, remember, the trial concluded on Friday in terms of the defense resting and then on Saturday night, with closing arguments forthcoming on Monday, on Saturday night Maxine Waters said that protestors should (quote) “Stay on the street” and (quote) “get more confrontational” (end of quote) if the verdict was not guilty, if Chauvin were to be acquitted. Now, there are a million things we could say about this statement. Does Tucker Carlson say fifteen more inflammatory things-
Andrew: -before breakfast? Of course. Is this an example of hypocrisy from the right-wing outrage brigade? Of course it is.
Thomas: Of course.
Andrew: That’s not the point. But again, I am in favor of a bright line that says if you’re an elected official and a trial is pending, you should not say anything which could be interpreted-
Andrew: -as trying to influence either the judge or the jury. It is not unreasonable to say if a juror heard that to go oh man, okay well maybe I should double think whether I’m going to acquit or not because I don’t want extra violence on the streets. Is that a chain – it sure is, but it’s not an unreasonable chain of inferences. It’s not – you would not be completely misconstruing or – you know, get more confrontational has a pretty circumscribed set of meaning to it. I agreed with the judge, because, again remember here now you have to put yourself in the mindset of the judge, which is something I’m pretty good at doing because, you know-
Andrew: For a very long period of my career, I wanted to be a judge. [Laughs] I would still like to be a judge. I will never get to be one, that makes me sad. As a trial judge, the metric by which you are evaluated is how often do you get reversed?
Andrew: He’s sitting there looking at this going oh man, if I presided over this case and it gets reversed because of something that was beyond my control, I’m gonna be super mad about that. And super mad, not just from a personal perspective because then this verdict goes away and you have to retry the case and it’s bad for everybody.
Andrew: I 100% understood where he was coming from. Now let me give you the ice cream to follow there. [Laughs] Having kind of built that all up, the question of whether or not to grant a mistrial is committed to the sound discretion of the trial court judge, and here he said look, I agree, this is bad, but I told the jurors to avoid the news, not to watch it, not to consider outside media. I believe that they’ve been impartial, and there’s no reason to think – there’s no reason to know that any of them violated that instruction-
Andrew: -and consumed external media, and there’s certainly no reason on top of that to think the fact that one congressman said something I wish they hadn’t said would have influenced them in any way. I trust that this jury is being openminded. Look, we’ve admitted from the start that they’ve had a ton of external influence, every single person coming in already saw the tape. We already knew all of that. Bad comment, not worthy of granting a motion for a mistrial. Now on appeal you will certainly see this issue raised. You will also see it coupled with references in other media that came up during this motion being argued. I dunno, I guess it was on some kind of sitcom or something, who knows. I will tell you that the standard here is abuse of discretion. You have to show that the judge did not have the authority to do so. I think it will be well-nigh impossible-
Andrew: -to say that the judge couldn’t have made that determination that this was not something that could be corrected or had already been corrected by instruction. The rest of the arguments that are gonna be raised on appeal have to do with the particular instructions that were given, the sufficiency of the evidence. There was the “did the prosecution get too much leeway in their closing argument?” And with all of that, similar standards apply. The standard is that the error that – you must not only show that the judge made a mistake of law, but that that error was clearly erroneous. That’s just the first step. Yeah, you let the prosecution say X in their statement, that was clearly wrong. Not just wrong but indefensibly wrong. High burden.
But you’ve gotta do more than that to get a mistrial. You also have to show that that failure made a material difference in the outcome and that there were not adequate and independent grounds to affirm even if it did. This is why it’s significant that the jury, in nine hours, returned guilty verdicts on all three counts. As the State will clearly point out, to the extent that there was any claimed error, one, no there wasn’t. Two, couldn’t possibly have made a material difference in the jury’s outcome. And three, even if it had in that corner of the deliberation, there were adequate and independent grounds for the jury to also reach the verdict that they did, even had they come out a different way on that particular question. I think they’re in great position on all of that. I know people are concerned about the appeal, I know there’s been the back and forth on the Maxine Waters comment, what the judge said, but at the end of the day this is not – in my view, I would be shocked if this case is not affirmed in its entirety on appeal.
Thomas: Well, I’m glad to hear there’s no chance – or not a chance, but unlikely successful appeal there. Thanks for the break down.
[48:49.3] [Segment Intro]
Thomas: So, Andrew, we got a little shoutout. Want to tell us about it?
Andrew: We did! I don’t know if we have the permission to use this person’s name and I will keep them semi-anonymous. It’s a small pool, but we received a shout out from a member of the Maryland legislature who said “listened to the latest podcast this afternoon, appreciate the full overview of our police reform package that passed during the session. It was the hardest policy issue I’ve ever worked on in the legislature, but I believe we made real progress.” Yeah, us too. “Keep up the great work and always feel free to shout out Maryland’s great general assembly.” Let us know if you don’t want to be anonymous, if you’d like to be acknowledged by name, I’d be happy to do that. If you’d like your OA listening to maybe be separate from your public career, we are happy to respect that as well. But that made my day.
Andrew: I was glad that they thought we did a fair job in explaining it, and I thought that was good insight.
Thomas: Me too. That was super cool, thanks for reaching out to us.
Andrew: Then we got – and I want to read some of this. We usually don’t read really lengthy stories on the air, but this is – let me just start. It says, “Thomas and Andrew, I’m a longtime listener and fan. Probably one of your few listeners who are also an active law enforcement officer.”
Andrew: “I happen to live in Idaho” this is Officer M, we’re gonna conceal this person’s name. “I’m a liberal democrat, atheist humanist, I believe that Black lives matter and that trans rights are human rights.” There’s more, we get it. You’re bona fides are good with us. “I have been in corrections law enforcement for 22 years. For most of my career I’ve carried a firearm and exercised arrest authority. I’ve effected upwards of 500 felony arrests but have never written a speeding ticket. I have written use of force policy based upon Graham v. Connor,” that’s the case we broke down, “and have been a police firearms instructor since 2012. I’ve read Graham v. Connor many times and taught lessons plans based upon its principles. I did not know until I listened to your episode that Graham was a Black man who was assaulted by white officers. I find that very disconcerting.”
Andrew: “It is such an egregious example of bias in policing, the failure to exercise even a basic level of care for him is just infuriating. Their neglect of his medical needs and excessive use of force was unconscionable.” Yeah, we also had folks, wrote in, I hedged a bit on the diabetes aspect, and folks wrote in to say oh yeah, the running around and that sort of behavior is 100% typical and consonant with-
Andrew: With a diabetic suffering from critical low blood sugar. Then he gives an example, I’m gonna skip the example because I don’t want to give away too many details. This person asked us to obscure their identity, and I’m gonna respect that. Next, and here’s, you know, we want to engage and push back a little bit. “I struggle with the stereotype of cops that I hear repeated again and again.” He’s gonna give a couple, and some of these are interesting. I hadn’t really thought about it. “First,” they say, “that most cops are union members with all the protections that affords them. That may be true on the coasts and in some of the large midwestern cities, but it leaves out the fact that much of America, the south, much of the west, and the southwest, is policed by officers who don’t benefit from union protection.”
Andrew: I thought that was an interesting point, it’s not something I’d thought about.
Andrew: Yeah, exactly. “The second part of that stereotype” this is one you will probably find more familiar as a pushback, “is that all cops are bastards and just out to hurt people, and obviously the few good cops that aren’t just don’t say anything. While this is obviously the truth in some cases, it’s not the norm in my experience. Law enforcement work is often much less closely supervised than one would think. The number of rural law enforcement officers that do the majority of their work alone is often overlooked.” Here I thought, and I know you have some thoughts on this as well, I thought it was worth pointing out a couple of things.
First, I don’t use the ACAB acronym, not because I don’t support the folks who do, but because I’m not a huge fan of the branding. I’ll give you a classic example, nobody who uses ACAB thinks that Officer Eugene Goodman, the Capitol police officer who led the rioters away-
Thomas: Didn’t I do this exact-
Andrew: Yeah, yeah.
Thomas: I did this exact thing on something, was that not this show?
Andrew: Uh, may have been-
Thomas: Oh, maybe it was on a Q&A, it might have been the Q&A.
Thomas: Yeah, sorry. I was just like didn’t I say exactly this? [Laughs]
Andrew: You did, you did.
Andrew: I am endorsing and reiterating and extending your point. I’m not a huge fan of the branding, but I will say that I think you’re maybe not thinking about where the objection is directed when you say that it’s about, you know, oh, I’m sticking up for my buddies and your point is well, much police work is done without your buddies being around. It’s much more about the structural benefits that are there and the background conditions. Perfect example, this dovetails with the immediate feedback, I did not know that the Maryland procedures for disciplining police officers in connection with abuse of force investigations was before a board of three police officers-
Andrew: -two of whom could be that officer’s subordinate. That’s as big – and I suspect you’re nodding along with us. That’s as big a joke as you could possibly imagine. The point is not “did Officer X see Officer Y and then lie to cover up?” The point is there are tons of these sorts of structural benefits that are built – Maryland, one of the five most liberal States in the country – that are built in that protect officers at the expense of the public, that swing the balance in my view too far. I don’t know if you wanted to add anything beyond that, I agree you made that point.
Thomas: Yeah, I did that thing on the Q&A, I stand by it. I think the “all cops are bastards” this is probably about, while I get the sentiment and I agree with the sentiment that too many police defend – I don’t think it’s just a couple of bad apples, I think the whole culture is broken, but I choose to target the culture because when you do the “all cops” something, from a messaging standpoint it’s about the worst thing. It couldn’t be more poorly designed to reach people, is all I’m saying. If you’re just trying to express yourself, I get it, I understand it. If you want to have any impact on anybody maybe don’t use a message that “all people are a thing.”
Thomas: Then every single person is like well I have an uncle who’s a cop, he’s actually good. It’s not gonna work. But whatever, it’s fine, I get it. Some people just want to be angry and that’s fair. Because they should be.
Andrew: No, that’s right. Let’s validate that. You and I are definitely not in a position to tell people of color who are angry that they should not be angry. Yeah.
Thomas: Well, I see it from almost entirely the white left. I don’t really… [Sighs]
Andrew: [Laughing] Yeah, I know. I know.
Thomas: It’s a weird, I dunno. Anyway, there’s one more question we’ve got to get to that’s something important because I want to make sure that people aren’t with the wrong impression, and honestly, I could do probably a whole SIO about this, and I almost did, [Laughs] but it’s just a tough topic. Here’s a question we got, and I hope some other people don’t have this impression as well.
From Natalie, who says “You guys are lefties, I’m a lefty, we all think cops killing unarmed Black men is wrong, but I do want to push back on your characterization of Daunte Wright’s failure to appear as missing a court thingy. He had been charged with armed robbery, trying to steal money from a woman at gunpoint. Not that what the officer did was okay, but it hurts our case when we seem to be sweeping under the rug the deceased’s bad behavior. Maybe the officer knew he had been charged with armed robbery, which is why she thought force was necessary, we don’t really know, but all these articles portraying him as a good dude are harmful to the overall cause. No, there are no perfect victims, but I think we are doing ourselves a disservice by not at least mentioning the underlying charges.”
Yeah, this is – so, you’re factually wrong. This is the most important thing I want to get out of this is that you’re factually wrong. The warrant was not a warrant for his arrest for the armed robbery. That’s factually incorrect. The warrant was, as Andrew said, for a bad court thingy. The armed robbery, and you can look this up if you want to make sure, he absolutely was accused of this armed robbery, and it seems like he did it, in my opinion, but he’s absolutely accused of this armed robbery. The warrant was not about that, the warrant was for missing a court thingy, exactly what Andrew said.
Here I will read from Snopes, which has a great article on this. It says “Officers with the neighboring Minneapolis Police Department cited Wright for carrying a pistol without a permit and trying to evade their directions, both misdemeanor offenses. Here’s the probable cause statement,” it shows that. “Because those alleged infractions violated the terms of his jail release,” he was released from the armed robbery thingy mentioned above, “and his probation officer said he stopped checking in per the documents, Wright was detained again and released on bond in September 2020. Then, just weeks before his death, Wright did not show up for his first court appearance on April 2nd to discuss his alleged offenses in Minneapolis. It was unknown why Wright missed the court hearing.”
He was not on the run from a robbery, not even close. The warrant was because he missed a court thingy, literally to discuss the alleged offenses. The first – Andrew, you can tell us, but that sounds like a very preliminary hearing thing.
Andrew: Yeah, indeed. That is in fact what it’s called, a preliminary hearing.
Thomas: There you go, yeah. That is missing a court thingy, and I don’t think that has anything to do – all this is to say, I wanted to correct that record just in case a lot of people out there are under the false impression that he was on the run from a robbery or whatever. That’s just not true at all, please look up the facts and get them right, but there’s a separate conversation that I think is a valid one that I struggle with where this is someone who is guilty of choking a woman and robbing her at gunpoint, and it is a little – I’m a little uncomfortable with trying to – that balance of yeah, it doesn’t matter what the person is guilty of in terms of the police. The police don’t know, the police have no idea who people are when they arrest them, they see there’s a warrant or whatever. It’s a separate conversation. Doesn’t matter who the victim is, that all doesn’t matter. What matters is the police officer’s conduct in this case.
At the same time, there is a weird thing that I’m uncomfortable with, which is minimizing, trying to recast people. If this was a Hollywood celebrity who got caught robbing a woman at gunpoint and choking her, there wouldn’t be a whole thing of well look at how great of a person this guy – there wouldn’t be that re-writing. It’s an uncomfortable conversation, it’s a separate conversation. I wanted to correct the factual record, but I do agree partially with the point it is a bit weird when you see somebody who has committed violence toward women then being kind of lionized after they are a victim of a police shooting. It’s a weird, tough thing. I don’t have an answer for it, but that is – I grant that that is a tough subject. But, factually speaking your email is incorrect and I hope nobody else was under the impression that he was on the run from a robbery because that is a Sean Hannity talking point, it’s not what happened.
Andrew: Yeah, and I will add as a lawyer when I talk about this, if the general point is not to mislead about crime victims by painting them in a light that, you know, is not fully representative of their entire character, fair.
Andrew: I would say the biggest reason for that is because you don’t want to walk into an Uncle Frank-
Andrew: -buzzsaw where he’s like “oh, yeah, you think he’s a boy scout but turns out X, Y, Z.” Look, let’s be honest, the right wing – that is such a right-wing talking point that on multiple occasions Fox News has printed false photographs of people, just-
Andrew: Horrible, horrible stuff. Yeah, I do want you to be fully aware of the complete background so you don’t hit an Uncle Frank buzzsaw. But I guess, subconsciously as a lawyer, I’m applying my own internal Rule 403 standards.
Thomas: [Laughs] Such a lawyer way to put it! We’re all just applying our internal Rule 403, right everybody? Right? Yeah. Who among us isn’t applying their own internal 403 – what, no hands come up? Just me? That’s just a me thing? Okay.
Andrew: Yeah, just me.
Andrew: But Rule 403 is the one that says you don’t admit relevant evidence-
Andrew: -if its probative value is substantially outweighed-
Andrew: -by its prejudicial value.
Thomas: This is absolutely about the cultural conversation. When I mention that – when it comes to the case, the police have to be able to apprehend people, or not apprehend them, or deescalate, without killing them regardless of who they are. It doesn’t matter who they are. It is absolutely irrelevant to the case, I want to emphasize that a million percent, this is just about the cultural conversation. It’s just a little weird when you see, okay, [Sighs] you want to fight back against the “no one has to be a perfect victim,” and also you want to fight back, as you say, against the Uncle Frank, Hannity, right wing machine that tries to find everything wrong they ever did and make that the focus. That’s wrong as well. But it’s a tough thing, it’s a really tough thing. The person who he robbed at gunpoint, it’s not a great story. They let him stay in their apartment because they had no place to go and then he steals her rent money that she had like saved up to pay her rent for that month. It’s a grim story. It’s uncomfortable to be like this person’s now a saint. I don’t like that casting; I feel like we need to do neither of those things somehow.
Andrew: I agree with that 100%.
Thomas: But anyway, thank you for that feedback, listeners, and as Andrew said in the beginning of the show, we do take the feedback, we do read the emails and the questions and refer back to the beginning of the episode if you want to know how to get to us, how to reach us.
[1:03:28.5] [Patron Shout Outs]
[1:04:50.2] [Segment Intro]
Thomas: Alright, and now it’s time for T3BE.
Thomas: Time to pork my one question wrong streak. [Laughs]
Andrew: [Laughs] Alright. There’s no better question to pork a losing streak than real property, right?
Thomas: Oh god. [Sighs] This is like – like the Shark’s playoff chances, they have an impossible schedule and they’re not gonna make the playoffs. If they’re gonna make the playoffs they’re gonna have to beat the best damn teams in the league to do it, and so you really gotta earn it. It’s exactly the same thing, let’s go.
Andrew: Can you beat the best damn question that I have to throw at you?
Andrew: Alright, Thomas, two sisters own a single tract of land as tenants in common, each holding a one-half interest. The younger sister entered into a three-year written lease with a tenant; the lease described by metes and bounds a specified portion of the land-
Thomas: Oh god. [Laughs]
Andrew: – which consisted of about [Laughing] 40% of the total tract. You have to let me read this without laughing.
Thomas: I’m sorry.
Andrew: [Laughs] The tenant went into sole possession of the leased portion of the land.
Andrew: The older sister has sued both the younger sister and the tenant to establish the older sisters right to possession of the leased portion of the land.
Andrew: Who is likely to prevail?
Andrew: (A) The older sister, because the younger sister cannot unilaterally partition the land without the older sister’s consent; (B) The older sister, because the younger sister may not lease her undivided interest in the land without the older sister’s consent.
Thomas: Okay, okay.
Andrew: (C) The younger sister and the tenant because the older sister has been excluded only from the specified portion of the land subject to the lease-
Andrew: – which makes up less than one-half of the land’s total area; or (D) The younger sister and the tenant, because the younger sister’s lease to the tenant was necessarily for less than a fee simple interest.
Thomas: What the f- [Laughs] Okay. Uh, alright, interesting. Let me get the facts here. Two sisters own a single tract of land as tenants in common. So, they each hold a one-half interest. It doesn’t sound like there’s any division already, like “I own this side and you own that side.” Sounds like we both just own, I guess, me and my wife own our house or something. It’s not like I own half of it, she owns the other half. So, the younger sister then tries to lease out, and specifically leases out a specified portion of the land, which is 40%. So, they’re trying to say yeah, 40%, I’m leasing out less than half so that should be cool, but … okay.
So, the tenant went into sole possession of the leased portion of the land. Yeah, that doesn’t – it sounds like you’d have to run that by the older sister to me. The older sister sues both the younger sister and the tenant. That’s kind of interesting. I’m not sure that matters but it’s weird you sue both of them. I guess Andrew’s philosophy is always sue everybody and let god sort it out, as you say. To establish the older sisters right to possession of the leased portion oi the land.
Okay, who’s going to prevail? The older sister because the younger sister cannot unilaterally partition the land without the older sister’s consent. Right off the bat when you read ‘em I liked A and B, I think the older sister should prevail, so I’m kind of between A and B prima facia, but I’ll read through – that one’s good, but deciding between A and B, the older sister because the younger sister may not lease her undivided interest in the land without the older sister’s consent. That’s interesting. Hoo. If that’s true, what are the rules? If I own something with somebody, can I just lease it out without the other person if we’re 50/50 owners? You would think no. You would think there’s gotta be some sort of consent process, you know? Augh.
That’s gonna be tricky. I think I would go with B over – so, the older sister because – B was the older sister because the younger sister may not lease her undivided interest in the land without the older – yeah. Common, each owning one half interest. That seems right to me.
Okay, C, the younger sister and the tenant because the older sister has been excluded only from the specified portion of the land subject to the lease, which makes up less than one-half of the land’s total area. That’s an attractive distracter, but not really to me because I feel like it’s unfair to be like Andrew, you and I own this land together. I’m gonna lease out, just decide this 40%, I’m leasing out to somebody. What if I take all the good parts of the land? What if there’s nothing – the rest of it is just lava, you know? Like, wait a minute, how do you get to lease out the only part that could have anything built on it or something? That doesn’t seem fair. I don’t think C is right.
D, the younger sister and the tenant, because the younger sister’s lease to the tenant was necessarily for less than a fee simple interest. That’s the extreme porkage answer, I can’t even make sense of that, honestly. I don’t think it’s D. That’s extreme porkage. If it’s D I get it wrong, it’s extreme porkage, so I think we’re between A and B. Is it that you can’t unilaterally partition the land? Or is it that you can’t even lease your undivided interest in the land without the older sister’s consent? I think it’s B. I think those are both good, but I think B is like, you know, kind of above in the pecking order. B, I don’t know what the right word for that is. B is true before A or something. It sits above it. I’m gonna go B, final answer, I don’t think you can lease your undivided interest in the land without, you know, the consent of the person who also owns the thing 50%. That seems right to me and we’ll find out how I got it wrong on next week’s [Laughs] T3BE!
Andrew: [Laughs]And if you wanna 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, we love you so much. That was uh, that was an episode. There was a lot of info in that one, Andrew. Good stuff. We’re looking forward to the listener Q episode on Tuesday. Can’t wait, we’ll see you then.