Transcript of OA485: What If Your Client Tells You They’re Guilty?

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 485.  You know, we’re closing in on 500, Andrew.  We’d better do something cool, I don’t know what.

Andrew:         Alright.

Thomas:         We’ll figure out – we’ll do a backflip.  That’s the first thing-

Andrew:         [Laughs] I nominate you to do that.

Thomas:         Not it! [Laughs]  Only got 15 episodes to try to be able to do a backflip.  I’ll start working on it, I may be broadcasting from one of those cartoon full body casts next time, but I’ll have Lydia position the mic real well for me.

Andrew:         [Laughs] You’re pretty much broadcasting from one of those already.

Thomas:         [Laughs] I do play hockey, so yeah.  How is it going, everybody, how’s it going Andrew?

Andrew:         Fantastic as always, how’s it going with you?

Thomas:         Going great.  I’m excited.  Great listener questions today, there’s so much to talk about.  I’m seeing just an absolutely full spreadsheet, here, Andrew, so we’ll see if you can get through it.  [Laughs]  

Andrew:         Keep your fingers crossed, but yeah, we have a backlog of some really fantastic questions that I thought was high time for us to devote an episode to those listener Q’s.

Thomas:         Can’t wait.  Some updates, yeah.  [Sighs] The Amazon stuff, man.  What the heck?  I mean, we covered that.

Andrew:         [Sighs]

Thomas:         I heard it, not just us, lots of people were covering it, obviously.  It was a huge story, and then the unionizing effort was easily defeated.  What is the – what?  How did that happen?

Andrew:         To me it was not just – it was defeated two to one.  It’s much less the margin of victory by Amazon, which was like 1500 to 750, but the fact that there were 5,000 eligible workers that did not cast a ballot, and there are a ton of stories about the kinds of intimidation that Amazon used in connection with its workers, I am sifting through all that you know, because look, we don’t just [Laughs]  report on other people’s reports; but putting that into the context of what an employer is permitted to do to rebut when a petition to organize has been made with the NLRB. 

What remedies the union has with respect to that, because they don’t just go away right now, and also something that is very likely to come up in the Senate close to within when this episode airs is the PRO, Protecting the Right to Organize Act which is backed by President Biden, has the support, has passed the House of Representatives and the question is is it going to get past the most conservative members of the Democratic Senate caucus?  Joe Manchin has already come out in favor of it, but we are waiting in addition to the most predictable terrible Democrat, Kyrsten Sinema, also Mark Kelly, also from Arizona, and Mark Warner have indicated that they need to be persuaded, at least.

Thomas:         [Sighs]

Andrew:         Yeah, so we’ve got a show on labor organizing coming up, which I am very, very excited to do.

Thomas:         Well, in better news I think- [Laughs]  

Andrew:         [Laughs]  

Thomas:         You had some bad people getting what’s coming to them updates.

Andrew:         [Laughs] I do!  There’s so much here.  Again, it’s kind of unfolding and we’re in the middle.  We could cover it in the middle or we could sort of wait for whether my predictions come true, but I mean this is a rogue’s gallery, who’s who.  We got the response that Sidney Powell’s lawyers filed in the ongoing sanctions case in Wisconsin.  Spoiler alert, it’s terrible.  [Laughs]  And too, by the way, because they continue to reply in support of their motion to strike, which is ridiculous, and then they filed 25 page opposition to the motion for sanctions on the merits.  Spoiler, it talks very little about the merits because they’re bad lawyers. 

We got the MyPillow guy, Mike Lindell, hired Alan Dershowitz to sue Dominion Voting Systems on the grounds that Dominion Voting Systems is the government?  Spoiler alert, that’s stupid and bad.  We have Liberty University is suing Jerry Falwell Jr., that’s delightful.  There can be no winners in that.  We have the U.S. Government pursing a civil action for tax forfeitures against Roger Stone, which is great because-

Thomas:         God.

Andrew:         -it’s not a criminal tax – so civilly burden of proof is much lower.  A lot of bad people getting ready to get what’s coming to them.

Thomas:         Long overdue on Roger Stone, holy moly!

Andrew:         Yup.

Thomas:         How is that guy a free man? 

Andrew:         Oh!  Yeah.  Hard agree on that.  And speaking of no longer being a free person, a conservative judge, perhaps the most conservative judge in the District Court for the District of Columbia, somebody I have argued and lost in front of, Royce C. Lamberth, revoked Rachel Powell’s bail in connection with the insurrection.  That’s the person who was released on bail subject to wearing a mask and then, you know, made that mesh mask.

Thomas:         Subject to wearing a mask?

Andrew:         Yup, yup.

Thomas:         Huh.

Andrew:         Then wore this mesh mask and posted about it on right wing media-

Thomas:         Uh-huh.

Andrew:         -and was like “ha ha suckers.”

Thomas:         [Laughs]  

Andrew:         And the judge was like no reasonable person would interpret this court’s order-

Thomas:         Yeah.

Andrew:         -as saying that you can wear something that air can pass through.

Thomas:         It’s almost like the law isn’t magic words with weird tricks and stuff, as we’ve covered on this show for years now, Andrew.

Andrew:         By the way, again, cannot be overemphasized, the most conservative judge out there saying yeah, knock it off.  Lots of good news in the sense of bad people getting what’s coming to them, and I for one could not be more excited to bring that to you.

Thomas:         Well, and by the way, what’s coming to them is not even vindictive horrible, it’s just like the barest amount of consequences, you know?  [Laughs]  

Andrew:         Right, right right.  [Laughs]  

Thomas:         These people aren’t – like a giant rock isn’t falling on ‘em, it’s like finally Roger Stone might lose a little bit of his money for being a [Laughing] criminal this whole time! 

Andrew:         [Laughs]  

Thomas:         Crazy.  Oh well. 

Andrew:         Yup.

Listener Questions

[7:50.0] [Segment Intro]

Question 1:  What If Your Client Tells You They’re Guilty?

Thomas:         Alright, the first of our fantastic listener question here for this listener question episode is patron Jonathan asks, “While it’s true that even criminals are entitled to a defense, is it legal for a lawyer to refuse to continue to defend a client once it becomes clear their client is guilty?  I.e. before taking the case, the client claimed innocence, but once trial starts the client admits in private they are guilty but doesn’t change the plea expecting a defense anyway.”  So, this is the devil’s advocate, I think, rule.  You know?

Andrew:         Yeah.

Thomas:         Back when we – that was one of the early Law’d Awful Movies with Heath!  This is when Keanu Reeves realizes Craig T. Nelson-

Andrew:         [Laughs]  

Thomas:         -actually did kill his wife rule.  I think that’s what they call it in law school, right?

Andrew:         Let me ask you this, Thomas, what do you think?

Thomas:         Hmm.

Andrew:         Let’s take the precise parameters here.

Thomas:         Okay.

Andrew:         Which is you’re the lawyer, client comes to you and says “I’m innocent and I want you to defend me.”

Thomas:         [Laughs] Hi!  You may remember me from the show Coach.  [Laughing] that’s what they say.

Andrew:         [Laughs] Right, yeah.  Somebody who may or may not be Craig T. Nelson comes to you and says “I want you to defend me,” and you take on the representation and then at some point-

Thomas:         Mm-hmm.

Andrew:         -during the course of the representation you discover that he had lied to you and you confront him and he says “yeah, no, you’re right, I did do it after all, but I still want you to defend me.”  What are your thoughts?

Thomas:         Okay, well, here’s some – I know that we’ve talked about this before and I think in some Law’d Awful Movies, which, by the way, not just advertising Law’d Awful Movies for patrons, they’re actually really fun and I’ve learned a lot of law from Law’d Awful Movies, FYI.  I know that it’s not the easiest thing to just quit representing a client, because obviously there’s some interest in the legal system in wanting to make sure people are represented, and it’s a tough thing.  I think it’s a really big burden on the defendant, if they are a defendant, to lose their lawyer in the middle of a thingy.  I think the judge doesn’t let you do this willy-nilly, but if I had to guess, I would guess that you would say “Your Honor, I can no longer represent this client,” then I imagine, I dunno, if it were a jury trial, for example, I imagine that’s a super prejudicial thing so you probably in camera or whatever, you’d have to go tell the judge yeah, here’s the thing, he did it.  [Laughs]  He’s gonna make a liar out of me.  I imagine that, I dunno, if it was that extreme I feel like the judge would let you do it, right?  But I dunno, what’s the right answer here?

Andrew:         Well, I think there are really two separate questions here.  The first is must you withdraw?

Thomas:         Hmm.

Andrew:         The second is if you’re comfortable going ahead, if you’re like yeah, alright, check’s good with me!  [Laughs]  

Thomas:         Well, can you do a “well I’ll try to get you the lightest sentence, I guess.”  Can you kinda transition into that mode?  Or are you required to try to prove their innocence?

Andrew:         Let’s talk about that.

Thomas:         [Laughs]  

Andrew:         [Laughs] I’ll give you what I think is the best answer.  Again, I want to bracket this by saying that [Sighs] my view of legal ethics is greatly influenced by someone who was a mentor when I was in law school-

Thomas:         Don’t say it.  Don’t-

Andrew:         -Alan Dershowitz.

Thomas:         Aah.  Maybe reexamine your ethics.

Andrew:         No, I – these come up as hypotheticals that have not changed much in my career because by and large I don’t do criminal cases.

Thomas:         Right.

Andrew:         I do want to flag that because I want to say I could be wrong about this, this could be too scumbaggy on the side of representing a guilty client.  Let me give you the bottom line.  In my view even in this case where the client lies to you and then changes their story midstream, I do not think as a lawyer you have to withdraw.  I do think that you have grounds that you may withdraw on the grounds that the client has been substantially withholding information.  I’m gonna go through each of the three applicable rules in the Model Rules of Professional Conduct, that’s our legal code of ethics, and I would add in the case where the client comes to you and says “oh, I’m super guilty but I want you to get me off,” [Laughs]  you can represent that client as well. 

I will start with the Dershowitz position.  Because things change based on your knowledge as the lawyer, Alan Dershowitz gives as the intro discussion “hey, I don’t want you to tell me that you are guilty or innocent.  I will never ask you that terminal question, and I do not want you to answer it.  Understood?”  Because that way, as we’ll talk about what your requirements are, that makes it easier for you to comply with certain ethical requirements.

First let’s talk about can you withdraw?  I think you can withdraw.  That comes from Rule 1.16 of the Model Rules of Professional Conduct; lawyer-client relationship.  That sets forth, subsection (a) says a lawyer shall not represent a client, or when representation is commenced shall withdraw from the representation if, one, that representation will result in a violation of the rules of professional conduct; two, the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or three, the lawyer is discharged.  Those are the cases where you have to withdraw.

Thomas:         Hmm.

Andrew:         That first one, by the way, is when the representation, you know, forces you to aide in the commission of a future crime.  As long as we’re talking about Law’d Awful Movies, let’s talk about The Firm.

Thomas:         Yeah.

Andrew:         Oh, hey, Morgan Stringer, Ace Associate, by the way, client number 12397-0001 is the mob and every month they’re gonna put in a deposit and we have to launder that money.  Thanks!  Welcome to the firm!

Thomas:         [Laughs]  

Andrew:         Yeah, Morgan gets to withdraw from the case-

Thomas:         What?

Andrew:         [Laughs] Withdraw from the firm and have me arrested, because that is not just, you know-

Thomas:         So what you’re saying is that Grisham doesn’t know how the law works?!

Andrew:         [Laughs]  

Thomas:         It’s the weirdest thing.

Andrew:         So weird, so weird.  Those are the three conditions under which you have to withdraw.

Thomas:         Okay.

Andrew:         Ongoing crime; you’re not mentally capable; or the client fires you.  Again, that’s something – [Sighs] it’s such a trope in movies, but it’s so poorly explored.

Thomas:         Yeah.

Andrew:         You know, because it’s always this heel turn for eight seconds and it’s like “I fire you as my- okay you can come back.”

Thomas:         Yeah.

Andrew:         I think that would be really interesting.  Those are the only things that are mandatory under the rules.  Here are the permissive.  A lawyer may withdraw from representing a client in seven circumstances:  One, if withdrawal can be accomplished without material adverse effects on the interests of the client.  By the way, I read this one first because having been in a noncriminal but similar situation where I had a client, we were about to go to trial, I did not want to represent said client any longer, and what I did was I said hey, look, this lawyer over here is a really, really good lawyer in this area and you will be well served by being represented by Ms. Smith over here and not me.  Let’s voluntarily part ways.  That is the – and I know it’s not the answer that Jonathan is looking for, but that’s the real answer.  If somebody changed horses midstream and was like hey, by the way, I’m super guilty, the first thing you would do is say okay, well, you understand that I can’t be your lawyer anymore, but let me find you adequate replacement counsel, and that gets you out under number one.

Alternatively, and these are all disjunctive; number two, you may withdraw if the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.  That is – let’s play the scenario out.  I say to you, Mr. Smith, you’ve changed your story, that’s fine, I can continue to rep- let me get you somebody else.  And you say “nope, I don’t want anybody else, I only want you, Andrew Torrez.”  I say okay, well I’ve got to change my strategy now, knowing that you’re guilty.

Thomas:         [Laughs]  

Andrew:         And we’re gonna do X, Y, and Z.  And you say “nope!  I want you to put me on the stand and I’m gonna insist that I’m innocent.”  Well, that’s fraudulent.  I can’t do that, that would violate the rules.  So I could withdraw by saying – and you’d have to couch it very carefully to the court by saying that the client is persisting in a course of action that I believe is criminal or fraudulent. 

Third exception is pretty much the same.  The client has used the lawyer’s services to perpetrate a crime or fraud.  Think any episode of Breaking Bad with Saul Goodman in it.

Thomas:         Right [Laughs]  

Andrew:         Four, and this is really where you would go to the court, you would combine – I would be very nervous to go to the court on number two, but number four, the client insists upon taking action that the lawyer considers repugnant, or with which the lawyer has a fundamental disagreement.  Again, you would say look, no, we’re not.  “I want you to destroy them and let’s go to trial,” and I’m gonna say to you no.  Look, man, you did it, this case is real bad, and let’s get you the best deal we can, and you say “nope, I refuse to take any deals.”  Then I can go to the court and say yeah, they want me to consider to go forward with something that’s really terrible and is going to result in my client losing at trial and getting a 20 year sentence instead of the 3 years they’re being offered.

Number five, the client fails substantially to fulfil an obligation to the lawyer regarding the lawyer’s services (hint, paid money).

Thomas:         [Laughs]  

Andrew:         And has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.  Again, we’ve talked about that before, these are not all equal.  The court will often say “we’re three days from the end of trial, Mr. Torrez you’re going to continue for the next three days.  I don’t care that you haven’t been paid in a year and a half.”

Number six, the representation will result in an unreasonable financial burden on the lawyer, or has been rendered unreasonably difficult by the client, same thing.  Or, number seven, other good cause for withdrawal exists.  That’s sort of how the voluntary withdrawal would work, you don’t have to stop representing the client, but in that kind of situation you probably meet the criteria for being able to say hey, look, there’s just a fundamental disagreement on how to proceed.  Why would there be that fundamental disagreement?  Here, this is the clash between Rule 1.3, which is the duty of zealous advocacy, and Rule 3.3, which is the duty of candor to the court.  [Laughs]  

1.3, zealous advocacy, you may be surprised Thomas to know this is the sum of the rule:  “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Thomas:         What?

Andrew:         That’s literally all it says. 

Thomas:         Okay.

Andrew:         Yeah.  So, all of the “I have a duty to do the utmost to my clie-” Well, you know, that’s not what the rules say.  It is what many lawyers personally will say, and I will often say this to my clients.  I take very seriously and will always act in the best interests of the client, in particular I say this and I mean it when I represent a business entity, a corporation or an LLC.  I’ll be talking to the partners, and I will say you’ll notice my engagement letter is on behalf of Smith Corp., LLC, and that means that I am obligated to look out for the best interests of Smith Corp, and that means even as against the two of you. 

Thomas:         Hmm.

Andrew:         When we go forward, we’re gonna talk about the things I’m going to do on behalf of Smith Corp., and one of it is to keep it safe from the two of you bickering and squandering all of the assets of this going business.  You may feel different ethical obligations to your client, but the model rules say you should act with reasonable diligence and promptness.  Then there are some notes that say, you know, a lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.  You know, that’s kind of how the concept of zealous advocacy is embedded into the ethical rules.  I will tell you, these cases and the rules far more so than the criminal “he did it, can I-” What they really focus on and what is a major problem for lawyers is they focus on workload, procrastination.  Did you miss deadlines?

Thomas:         Hmm.

Andrew:         Did you do the stuff for your client at the time that you said you would?  It turns out that’s a really big deal in terms of professional conduct.  It’s less glamorous, but again it’s another kind of candidate for our real life Law’d Awful Movie – Law’d Great Movie, I should say.

Thomas:         [Laughs]  

Andrew:         [Laughs] Now you match all that up against what Rule 33 says which is “A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct the false statement of material fact or law previously made to the tribunal by the lawyer, or” (and then we’re gonna skip some other stuff) “offer evidence that the lawyer knows to be false.”  Then the Rule says, “If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.  A lawyer may refuse to offer evidence other than testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”

That’s pretty unambiguous, and they write it into the rules that say, you know, you may not suborn perjury.  You know, when somebody says to you – and think about what suborning perjury – that the lawyer knows to be false.  Thomas, you hire me, you say yes, I definitely stabbed Morgan at 5 pm on December 5th, 2021 – this is prospective, we’re coming back from the future for this.  Not only can I not put you on the stand and say “Mr. Smith, did you stab Morgan?” and elicit a perjurious response, but I now can’t put an alibi witness on the stand, because if the alibi witness says, you know, your brother says “oh, yeah, no.  December 5th Thomas was with me the whole time, he got super rip roaring drunk and spent the night, that’s how I know he was there, the whole day of December 5th and all of December 6th, it was a bad hangover and, in fact, into part of December 7th.”

Thomas:         [Laughs]  

Andrew:         I can’t put Sam on the stand because I know he’s lying, because I know you weren’t there, because you told me you killed Morgan.  Yeah, really does constrain your ability to be an effective advocate once you know that your client has committed the murder.  I leave open for discussion, I will tell you again, the Dershowitz solution is don’t ask that question.

Thomas:         Yeah, which feels like kind of just a cheap way to get around having any ethics, doesn’t it?

Andrew:         I know that it would come off that way, and again, subject to all the caveats-

Thomas:         Especially now that we’ve learned that Dershowitz is a snake.

Andrew:         Yup.  The counterargument is no, the rules say I may not offer evidence that I know to be false. 

Thomas:         [Laughs]  

Andrew:         I may offer evidence that I suspect to be false.  You know, I throw that out there.

Thomas:         [Laughs] You just really lawyered the lawyer rules about being a lawyer, is what you’re saying.

Andrew:         [Laughs] Yeah, indeed.  I love that question and hopefully we did a good deep dive on it.

Thomas:         Wait, we got pretty far field from Craig T. Nelson.  What happens – what happens?  What was the answer?

Andrew:         So, what happens is if I am comfortable continuing to represent Craig T. Nelson that will confine the ways in which I may do so.

Thomas:         Okay.

Andrew:         I may not offer testimony that I know to be false.  I can’t illicit the – we switched from Craig T. Nelson to Thomas Smith, and who could blame me?

Thomas:         Never do that.  Never switch from Craig T. Nelson-

Andrew:         You’re so interchangeable.  [Laughs]  

Thomas:         -to Thomas Smith.  [Laughs]  

Andrew:         Uh, if I want to withdraw there probably will be grounds because I will probably want to withdraw because-

Thomas:         Yeah.

Andrew:         -Craig T. Nelson is no longer taking my advice.

Thomas:         Well but was I right about that process?  I mean, it’s not a casual thing, right?

Andrew:         Yup, you are 100% correct.  Again, that’s why I emphasize that it’s in the “permissible” phase.

Thomas:         Mm-hmm.

Andrew:         The court gets to decide whether you can withdraw or not, and that can be a challenge.  They will weigh the harm, the prejudice to the defendant about you withdrawing.  Now that’s why “Your Honor, my client will no longer listen to my advice or follow my instructions” is usually a really strong argument.  It’s not hard to get from there to the client firing you.

Thomas:         Yeah, well, we could- while we’re on the actors thing, we could talk about the Robert Duvall rule.

Andrew:         [Laughs]  

Thomas:         Of “this client will not listen to me and wants to just give a speech in front of the court.”  [Laughs]  Probably involving the gold fringe on the flag, I’m guessing.

Andrew:         Yeah, the hobo army rule?  [Laughs]  

Thomas:         More Law’d Awful Movies fun.

Andrew:         Oh man, so good.  Alright, there we go.  Thank you, hopefully we did justice to that.

[26:08.6] [Commercial]


Question 2:  Does Janus v. AFSCME Disregard Garcetti v. Ceballos?

Thomas:         Time for our next one.  Brian asks, “You mentioned the bane of my existence, the Janus decision.  I am a union leader representing public employees.  This was topic number one at my union for many years both before and after this decision came down.  What always struck me in the decision was that they complete disregarded Garcetti v. Ceballos.” or Cebai-ohs, I’m not sure how you pronounce that.  “I am not a lawyer, but do you think my analysis is correct?”  Oh, okay.

Andrew:         Yeah, so, love this question.  Janus v. AFSCME, we’ve talked about this a lot, most recently in our discussion of originalism, and it is the obvious example because there was a previous Supreme Court case from 50 years ago on the exact same facts – from 40 years previously – called Abood v. Detroit Board of Education that said yeah, hard case but not that hard.  Abood was a nine-nothing decision that says yeah, unions, where they are required to represent an entire bargaining population within – public sector unions – can be required, because they are required to represent everybody, they can spread their administrative, but not their political lobbying costs, to nonmembers who are beneficiaries of the class.  That was pitted against the free speech rights of the nonmembers to not have to pay their money to be associated with political positions that the union would take.

The Supreme Court in 1977 said yeah, well, we get it.  There is some sort of association here, but no, the larger idea of vindicating the collective bargaining rights, of allowing by statute – and again, you could pass a law that stopped that, but we’re not going to say that constitutionally you have some kind of inherent free speech right that trumps the reasonable ability of a democratic populace to say we’re gonna let people collectively bargain and if we don’t spread the costs then you quickly eviscerate the strength of the union by encouraging free ridership.  If they have to bargain on behalf of you anyway no matter what and they can’t spread any costs to you, well then the economic rational decision is for everybody to withdraw from the union.

Thomas:         Yeah.

Andrew:         Not pay any dues, and then be like okay, go ahead, represent us.  We voted you in.  Yeah.  Right.  In fact, that is why conservatives want to do this.  That’s Janus.  Great question, because when this was litigated before the Supreme Court the response was not just “hey, you decided this case and it controls.”  That was the first line of response, but also “by the way, you got it right the first time around.”  Because the free speech rights of the public union participants here are less than free speech in general.  One of the cases routinely decided in the briefs, and distinguished, by the way, in the Janus decision.  When Brian says they disregarded Garcetti v. Ceballos, that does not mean that the case doesn’t mention the Garcetti case, it does.  I should add, just for you Thomas, that that is Gil Garcetti and not [Laughs] Mayor Eric Garcetti.

Thomas:         Oh, it’s his dad.

Andrew:         Yup.  And this, by the way, is a conservative 5-4 opinion that ruled that public officials have a lesser expectation of their free speech rights.  Facts of the case, Ceballos, longstanding Deputy District Attorney.  There’s a particular prosecution.  He gets contacted by a defense attorney that says hey man, in this case you executed a search warrant, it was supported by this particular affidavit and you should know there are a lot

 of problems with that affidavit and the things that are said are patently not true.  So Ceballos investigated that, did what a good District Attorney should do.  Looked at it and said okay, is this affid- okay, got an outside tip, says the affidavit’s full of lies, is that the case?  He went and investigated it personally and came to the conclusion, yeah, you’re right.  This affidavit seems not great.  And so he submitted a memorandum to his superior and said “we should dismiss this case.”  The facts underlying getting this search warrant are not as they appear to be, it looks like there were major misrepresentations by the officers and other problems, so we should not go ahead.  Then there were a couple meetings and, as you might imagine, superior not very happy about this, so the prosecutor decided they were gonna go ahead with the case anyway, and then the defense called Ceballos as a defense witness.  That was part of a hearing as to whether to exclude the warrant.  Ceballos came in and testified for the defense adverse to his own office. 

By the way, did not result in getting the affidavit thrown out, so [Laughing] when we talk about deference to police and the like, another data point here.  Then Ceballos said look, I was subjected to retaliatory attacks the moment that I testified.  This is not hard to imagine.

Thomas:         Yeah.

Andrew:         I’ll quote from the case.  “These actions included reassignment from his calendar deputy position to a trial deputy position.  Transfer to another courthouse, denial of a promotion.  He then initiated an employment grievance which was denied based on a finding that he had not suffered any retaliation.”  (That’s internally). 

Then he sued under section 1983, he said you have violated my 1st Amendment rights to free speech by retaliating against that in the course of my employment.  The Supreme Court said – first I should say the Court of Appeals said okay, we should strike the balance here that your 1st Amendment rights, Ceballos’ 1st Amendment rights, were clearly established, that the petitioner’s actions – that is, that the District Attorney’s Office’s actions were not objectively reasonable.  Then the Supreme Court granted cert and reversed.  They said yet it was, a public employee’s speech is deprived of 1st Amendment protection whenever those views are expressed to government workers or others pursuant to an employment responsibility. 

That was 5-4, scathing liberal dissent from Justice Souter that said public employees have just as many free speech rights as private sector employees, you don’t lose that simply by virtue of serving the public, and the majority opinion was like, “oh, yeah you kind of do.”  What I love – now put that back into context here.  Absolutely this decision was relied on heavily by the State of Illinois on appeal at the Supreme Court and rejected by the majority opinion in Janus, which is the argument was right, look, we’ve said this is a tough case, we’ve said you’ve got multiple interests at stake here, and Supreme Court if you’re not persuaded by the fact that you’ve already ruled on this case 40 years ago, and we’re guessing you’re not because you’re filled with activist howler monkeys; in evaluating the relative rights at stake, keep in mind that you were talking about the ancillary monetary free speech component of public sector employees, and by the way, this Court said a decade ago that public sector employees get less free speech rights than anybody else.

But, the Supreme Court crafted a little exception to that and was like well, no no no no no, what we were really saying in Garcetti was that you’re more responsible for speech that is related to your profession, that is related to your job duties, and giving money to the unions is somehow a different kind – that’s not speech that is related to your job duties.  How that is, I don’t know, they just say that it isn’t. [Laughs]  

Thomas:         [Laughs]  

Andrew:         Yes, I wanted to validate you, listener Brian not a lawyer, really excellent to go back and get the free speech case that we have not talked about-

Thomas:         Hmm.

Andrew:         -in the context of Janus, you know, and to show the sort of originalism lets you have your cake and eat it too.

Thomas:         Yeah, originalism lets you have your cake and not make it for a gay person, too.  That should be the phrase.

Andrew:         [Laughs] Yes, yes.  But, yeah, when back in Garcetti the conservative outcome was “yeah yeah yeah, of course you should be able to retaliate against that prosecutor for telling the truth to defense counsel,” that was the result they were able to reach, and doesn’t that suggest that the free speech rights are not this flaming pillar in the sky that Sam Alito describes in the Janus opinion?   Well shhhhh on that. 

Thomas:         [Laughs]  

Andrew:         [Laughs] Great question-

Thomas:         [Sighs]

Andrew:         -and there’s our little breakdown.

[38:30.5] [Commercial]


Question 3: Can Electors Report Fractional Votes?

Thomas:         Alright, French listener – oh great, more – is this more Banque Worms?  Let’s find out.  [Laughs]  Patron Adrian asks, “Could you expand on why you think one electoral vote equals one person and the constitutional issues with fractional allocation?  The Supreme Court has ruled that electors are not free to vote, but are legally obliged to just report what their State told them to.  To me it’s just a small step to say that they can report fractions of vote if their State tells them to.  That being said, I am from a country with national popular vote for the President and the electoral college seems bizarre and outdated.”

Andrew:         Yeah, thanks for rubbin’ it in. [Laughs]  

Thomas:         Outdated is a weird word for something that never made sense, you know?  [Laughs]  

Andrew:         Right.  [Laughs]  Yeah.

Thomas:         Yeah.

Andrew:         Agreed and despite rubbing it in there, Adrian, I do want to answer your question.  First let me correct a little bit of the premise.  The Supreme Court in the Baca decision did not rule that mandatorily electors are not free to vote.  What they ruled was that State laws that direct an elector to vote in a particular way are constitutional.  But States are not required to pass those kinds of laws.  In other words, those were the faithless elector cases brought by our friend Larry Lessig, and the ruling was not that electors must vote a certain way, it was States can legitimately tell electors to vote a certain way and thus prohibit by statute faithless electors.  I think that’s an important distinction. 

Here’s why I don’t think that matters in my analysis of Lessig’s fractional allocation, which, you know, again the idea was to compel – or is, the cases are pending – to compel a State to allocate fractionally the proportion of the votes multiplied by the number of electoral votes to those candidate.  If you get 49% of the vote and the State has 10 electoral votes, you get 4.9 electoral votes.  I initially said, thought, in evaluating that proposal that you’d round up to 5-

Thomas:         Hmm.

Andrew:         -and it was pointed out to me that no, no, Lessig’s argument is you get 4.9.  I think that faces major constitutional hurdles on the text of the Constitution.

Thomas:         Yeah.

Andrew:         Again, you know, [Laughs] we get to go back to the strawman of originalism.  Like, wow, you’re just making up stuff.  No no no, you look to the text first.  Anyway.  [Laughs]  

Thomas:         Yeah!

Andrew:         Here are the things.  Number one, the Constitution does not mention electoral votes at all. 

Thomas:         Hmm.

Andrew:         It mentions electors.

Thomas:         Yeah.

Andrew:         Meaning people, who then cast a vote, which is in the singular, for a candidate, which is in the singular.  It does not make sense to me to tabulate a fraction of a person, and we know that it does not comply with the text – if an elector were to say “okay, well, I’m gonna vote and half of my vote is gonna go to Clinton and half of my vote is gonna go to Trump,” that makes no sense.  You can’t split a single person’s-

Thomas:         Yeah.

Andrew:         -un-splitable vote. 

Thomas:         Well, shoot, is this a constitutional argument against ranked choice voting?

Andrew:         [Laughs] Um, that’s – let’s table that.

Thomas:         Yeah.

Andrew:         I hadn’t thought about that question.  I don’t think that it is, even at the constitutional level, because what you would do is you would resolve the ranked choice before it gets to the casting of the electoral vote.

Thomas:         Right.

Andrew:         It certainly is another good argument against having an electoral college, which, you know, I don’t know that we need any more of those.

Thomas:         Yeah.  There are no good arguments for having an electoral college.

Andrew:         [Laughs] There are not.  That’s the answer, I thought this was a good – and a good one to end on, because it doesn’t require a lot of deep dive.

Thomas:         [Laughs]  

Andrew:         [Laughs]  But those are the difficulties that I see in fashioning a fractional allocation, is it seems to conflict with the plain meaning of the original words in the Constitution, and having said that I wanted to give ammunition for all of our originalist listeners to come back and say “see?! You’re an originalist after all!”  Professor Baude, that one’s for you.

Thomas:         Yeah.  Well, like you said, like we broke down in these originalist episodes, it’s not about all the easy cases, it’s not that everybody on Andrew’s side of the argument is like “whatever the Constitution says, we just get to make up what we think it means.”  There are plenty of clear cut cases, and I think you’re right, Andrew, this seems pretty tough to argue.  You do go to the language of the Constitution first, right?

Andrew:         Yup.

Thomas:         It’s not like you completely disregard that in your jurisprudence.

Andrew:         Exactly right.

Thomas:         Alright, well, thanks for the great questions and reminder those were patron questions.  Andrew said last episode, the good way to get ‘em answered is to send us a patron message, but also email can work and we’re just amazed we have so many smart listeners with so many amazing questions.  Thanks very much for that.

[44:58.4] [Commercial]

[46:41.9] [Patron Shout Outs]

T3BE Answer

[58:41.3] [Segment Intro]

Thomas:         And now it’s time for T3BE, answer time!  Real propertay, here we go.

Andrew:         [Laughs] Yeah, nothing like a real property question to pork a bad streak.  This was two sisters own a single tract of land as tenants in common.  They each own one half of an interest.  The younger sister enters into a three year lease with a tenant for a particular portion of the land which is about 40% of the total tract, and then there is a meets and bounds description dividing out the land, then that tenant goes into sole possession of the leased portion of the land.  Older sister sues the younger sister and the tenant to establish the older sister’s right to possess that leased portion of the land.  Who is likely to prevail? 

You did the thing I love in answering the question, you said I want to pick the older sister prevailing, that’s the A and B answers, and I’m going to eliminate the C and D answers.  The idea that the younger sister could would prevail in partitioning and leasing out the property, and I want to tell you, good elimination.

Thomas:         Alright.  [Laughs]  

Andrew:         So, the only question is, is it A, that the older sister will prevail because the younger sister cannot unilaterally partition the land without the older sister’s consent.

Thomas:         Mm-hmm.

Andrew:         Or is it B, the older sister because the younger sister may not lease her undivided interest in the land without the older sister’s consent.  You picked B, thinking that B was sort of more inclusive, and … the answer’s A.

Thomas:         What?

Andrew:         Yeah.  Here’s why, okay? 

Thomas:         Oh my god! 

Andrew:         Yeah, no, look.  You were fairly warned up front that it’s a real property question and real property’s tough.  There are three different ways [Laughs] of – and you started off, you were like I dunno what tenancy in common is but it’s probably like Lydia and I own my house.  It’s actually not.

Thomas:         Okay.

Andrew:         Well, but [Laughs] here’s the thing.  It’s a way that you and Lydia could own your house, but I am almost certain, almost positive, that you and Lydia own your house as tenants by the entirety.  That is one of the three ways that multiple people can own the same piece of property.  You can be joint tenants, you can be tenants in common, or you can have a tenancy by the entirety.  Tenancy by the entirety is a special rule that applies only to married couples.

Thomas:         Oh.

Andrew:         What really happens is a question of survivorship.  Tenancy by the entirety for married couples says you die, Lydia gets the house; Lydia dies, you get the house, regardless of whether you have a will or not. 

Thomas:         I can’t even will it out to anybody else?  I can’t be like [Laughs] if the marriage is on the rocks-

Andrew:         [Laughs]  

Thomas:         -I can’t be like “I will this house to Andrew.”

Andrew:         [Laughs] Don’t take legal advice from a podcast?  But no. 

Thomas:         Also don’t take marriage advice from a podcast.

Andrew:         Yeah. 

Thomas:         Okay.

Andrew:         Definitely.

Thomas:         Okay.

Andrew:         Now, so the diff- leave aside tenancy by the entirety, it’s kind of a corner case.  The difference between a joint tenancy or a tenancy in common is also on this survivorship.  If you are joint tenants and one of you dies then the other person is entitled to the entirety of the property.  If you are tenants in common then during your lifetime you both have a right to possess the property, but you have a specified percentage interest in the property itself.  By the way, doesn’t have to be 50/50, that’s why it says they each hold one half interest, because that’s the key to a tenancy in common. 

We could enter into a tenancy in common in which you have a 99% interest and I have a 1% interest, and that means we both have a right to occupy the property at the same time.  If you want to kick me out of the property, you have to pay me to surrender my right to the property, or you can petition for us to partition the property according to our ownership interests, and if we can’t come up with an agreement then we go to court.  That also gets around the “I own 1% of the property but I take the most valuable 1% and partition that for myself and the other 99% goes to you, but it’s all the scrub brush and garbage.”  No, I own a 1% interest in the property. 

It provides with the unique situation where a tenant in common, because you and I own the property in common, that means I have the right to live there.  It also means I have to right to lease out my right to live there to somebody else.

Thomas:         Uh-huh.

Andrew:         What the sister did that was wrong, here, was not entering into a lease without the consent of the older sister.

Thomas:         Mm-hmm.

Andrew:         That’s totally fine.  It was partitioning off-

Thomas:         Yeah.

Andrew:         -the 40% of the property and kicking the older sister out.  You notice the specific grammar of the question says “to establish the older sister’s right to possession of the leased portion of the land.”

Thomas:         Mm-hmm.

Andrew:         That doesn’t mean kicking out the tenant, that means the older sister-

Thomas:         Yeah.

Andrew:         -also has a right to be on that 40%.

Thomas:         And I got all that, I just thought B – if B was also true then it would’ve kicked into effect before this and would’ve been the better answer.

Andrew:         Yup.

Thomas:         But B is just not true, so… [Laughs]  

Andrew:         Yeah, and this is another one of those bar questions where it represents something that is not remotely possible in reality.

Thomas:         Oh, really?

Andrew:         Because you’re sitting there and you’re about to ask the question of, well, wait a minute, you’re saying I can lease it out without – you and I jointly own this property, you own 1% on the property and Andrew you can lease out your right to occupy the property to somebody else?  It’s like yeah, I can, but I can’t promise the tenant an exclusive right to the property.

Thomas:         Huh.

Andrew:         [Laughing] So, you know, I’d be like okay, Morgan, I’ve got a great piece of property that I’m going to lease to you and she’s gonna say “fantastic.”  And I’m gonna say now, it’s possible that Thomas Smith may wander through the property at all hours.

Thomas:         Yeah.

Andrew:         Is that cool for you?

Thomas:         I like to pretend I’m a ghost and just do some casual haunting, just for fun.  Who doesn’t?

Andrew:         And she’s gonna say no.

Thomas:         I dunno, I feel like Morgan would be cool with it, but I get your point, I get your point.

Andrew:         Right, right.

Thomas:         Most people wouldn’t.

Andrew:         Most people would say I would like an exclusive right to the place that I’m going to rent.

Thomas:         Yeah.

Andrew:         And I would say oh, well yeah, I can’t give you that.

Thomas:         Yeah, can’t give you that.  Okay.

Andrew:         Then you know, that’s what provides-

Thomas:         This is a hard one.

Andrew:         That’s what practically prevents you from younger sistering it here.  So, uh, hard question.  Good answer, but just not quite there.

Thomas:         Thomas’ Second Chance, still in the 90s I think.

Andrew:         Yeah.

Thomas:         Probably.

Andrew:         Absolutely.

Thomas:         But, uh, getting that last freakin’ step is very difficult.

Andrew:         I know, I know!

Thomas:         It’s very difficult.  It’s especially difficult on the new porked exam.  I used to be able to do it-

Andrew:         [Laughs]  

Thomas:         52% of the time or something, now I do it zero percent of the time!  Pretty cool!

Andrew:         [Laughs] [Sighs] Oh, we still love you.

Thomas:         I should start – should I – okay, real question.  Should I start flipping a coin on Second Chance?  Should I second chance it and then just flip a coin?

Andrew:         [Laughs]  

Thomas:         And just – then I’ll justify it after the fact and be like yup, that’s the reason, then I’ll come up with a reason.  I mean, honestly, that might be a better test taking method.  Like, I could at least hope for 50%.  Serious question, should I start doing that? [Laughs]  

Andrew:         [Laughs] I feel as the test administrator that I’m ethically prohibited from-

Thomas:         You know what, here’s what we do.  T-Gomez, okay, we’re gonna keep two sets of books.  [Laughs]  Here’s what we’re gonna do.  I’ll do it the normal way and then after I do that I’ll flip a coin and we’ll see if I can beat the coin.  [Laughing] We’ll have the Thomas answer and then we’ll have the coin answer, and we’ll see what the coin gets.  Okay.  Starting from here on out if I remember next week, that’s what we’re gonna do.  [Laughs]  

Andrew:         Ah, well you heard it here, folks, new add-on to the T3BE segment, I can’t wait.  I’m looking forward to it.

Thomas:         You don’t sound nearly as excited about this as I am.  That’s okay.

Andrew:         I love it, I love it.

Thomas:         Here’s something you’re excited about, tell us who is this week’s big winner!

Andrew:         Well, Thomas, gotta be honest with you, a lot of people had trouble with this question.  There were a lot of incorrect answers.  I’m going to pick a winner this time from the Opening Arguments Facebook community, because I don’t know that we’ve done that before.  If you haven’t, head on over to  It’s a fantastic place, we’ve got about 5,000 folks who are really enjoying hanging out together, and there’s a great discussion on the T3BE question. 

The winner is Timothy Noel who says, “I think Thomas was on the right track when he was analogizing the question with his wife.  You can tell your spouse to stay out of your man cave all you want, but ultimately it’s their property also.  The tenant taking sole possession of the divided property limits the access to one of the rightful owners. The answer is A.”

Pretty good answer, again there’s a specific type of property that likely covers when you have a husband and wife owning a parcel of real property, but I’m giving you full credit for the use of the word “analogize,” and you got it exactly right.  There’s a fun discussion under that.  Congratulations Timothy Noel on being this week’s winner.

Thomas:         And that’s our show!  Thanks so much for listening, everybody, we will see you for Rapid Response Friday, take care!

Andrew:         You’re damn right!

Thomas:         [Laughs]  

[Show Outro]

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