OA107: Adnan Syed Obviously Did It (Also: You Can Learn About Patents!)

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

[0:00:03] Is that why you hit your wife? Withdrawn? Is that why you drink and pop pills? Withdrawn? Are you a virgin? Withdrawn! [0:00:21] Since here you, uh, robbed a hospital? Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said. [0:00:32] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow. You, sir, are a mouthful. [0:00:46] The jury is instructed to disregard its own testimony. Your Honor, the prosecution rests. [0:00:56] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast. [0:01:18] podcast.

0:01:19 Thomas: Hello, and welcome to Opening Arguments. This is episode 107. I'm your host, Thomas Smith. That over there is your other host, Andrew Torrez. How

[0:01:25] are you doing today, Andrew? I am fantastic. I have been waiting for the opportunity to do this episode. I'm glad we're getting a chance to do it today. Yeah, I can't wait. I hope that, obviously, if you haven't listened to Serial, you're the only person, first off. Um, we're not going to be able to explain the entire thing, I don't think. So we might, may have to, you know, speak as though you at least are somewhat familiar with it,

[0:01:50] but uh, but I think, I think you will enjoy this show even if you haven't seen Serial. Um, yeah, write us if you don't, give us, give it a shot, and if you're totally confused, uh, send us an email or pop

0:02:02 Andrew: On to the Opening Arguments community and say, "I didn't get that at all." Uh, but I, I think the principles will be, uh, will

[0:02:09] be pretty clear and enjoyable. All right. But before that, let's remind people that the 26th, that's

0:02:15 Thomas: This Thursday, it's 7 p.m. Eastern, 4 p.m. for real people time, Pacific time that I'm in. And that's our Q&A, Patreon Q&A live video. You want to go to patreon.com/law, pledge as little as a dollar a show, and you get access to that. It is the most fun. So much interaction between and among listeners and questions for Andrew. I'm sure your serial geeks will have a lot of questions for Andrew this week. I can't wait. That is one of my favorite things we do. So Q&A coming up, be there or be square. And then also let's talk about today's agenda. Oh, no, sorry. And then also let's mention Lot Awful

[0:02:52] Movies. It's every month. We're on what? I think 11 is coming up. Yeah. Yeah. Geez. Can't believe we're on 11 of these horrible, horrendous movies. We watch them so that you don't have to.

0:03:04 Thomas: And yeah, this This next movie is The Trial of the Incredible Hulk, right?

[0:03:10] Oh, man. It is spectacular in every respect. And I should point out

0:03:17 Andrew: That Thomas, as many of our listeners know, hates superhero movies. So this

[0:03:23] was a twofer that our fans inflicted on us. Thanks, guys. Lawed Awful and also 1980s superhero. You know what? Actually, the most pressing question for me is going to be, is this movie better than Jury Duty? Because this has got to be a really bad movie, like a really bad movie. All right, listen and find out. There you go. There you go. All right, so that's

0:03:42 Thomas: Coming up. But coming up on today's show, we've got to go over the Brett Weinstein lawsuit. That's settled. And so what does that say about the case there? And of course, we've already mentioned it. The main segment's going to be about Serial. Andrew's going to give us his legal, scholarly, legally opinions on what went on there. And finally, we've got an interesting segment on Allergan. They've transferred their patents to an Indian tribe, really interesting, gonna find out more about what's going on there, so that's our agenda, let's get going.

[0:04:14] Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no, I thought that was just a figure of speech. Case closed. All right, Andrew, well, they settled. Evergreen University settled with Brett Weinstein. I guess that means he had a great case, right? Yeah. So let's talk a little bit about the threatened lawsuit and the settlement. After Brett Weinstein grotesquely

0:04:40 Andrew: Misrepresented what happened on Evergreen College campus, he then

[0:04:46] was the subject of – protests is a fair way to put it – by students on the college campus. You and I have both said publicly – this is a straw man that's often brought by Weinstein's supporters. We have said, you know, some of those kids went too far, you know, said and

[0:05:05] did things that were not appropriate. Weinstein then took to the right wing press because that's where he hangs out these days. He is happy to do interviews with Tucker Carlson, not happy to do interviews with us, we have asked. And uh, he took to the right-wing media to claim that he was about to file a $3.8 million dollar lawsuit, uh, against Evergreen College. That was then reported uncritically in those same

[0:05:32] right-wing media sources as the lawsuit had been filed, but the lawsuit was never filed. He just threatened. We were asked. Yeah.

0:05:38 Andrew: He just threatened. We were asked multiple times, "Hey, you're gonna cover the Weinstein, uh, lawsuit?" And our answer was, "Yeah, we'll cover it as soon as he actually files." Then all of a sudden, we got some, I think it was actually his brother, tweeted at you

[0:05:51] on Twitter, that he and his brother have tweeted at me. Yeah, that uh, they were mediating the case, which, uh, you know, look, there's nothing wrong, I am pro-mediation, right? Like, I, I

[0:06:03] am, as a business lawyer, when you have a business dispute, very often my first instinct is, look, these are business parties, this is about money, let's get this done. So, so,

[0:06:16] I'm not, I'm not going to cast any aspersions, I am going to say that when you go to mediation before filing a lawsuit, that's a pretty strong indication that you're not interested in filing a lawsuit. I think that's fair to say. And then, uh, we just got noticed a couple days ago that that lawsuit has been settled. So the news broke a couple days ago, uh, two days ago as of when we recorded this. And shockingly, all the stories is breaking this are

[0:06:40] Breitbart, The American Conservative. This is, uh, Weinstein went back to his friends, his newly found friends in the conservative media. He received a five hundred thousand dollar settlement, so you

[0:06:53] know, doesn't that indicate that the university placed some value on his lawsuit? I, I went out and tweeted immediately that this meant that the university valued his lawsuit at zero, or

[0:07:05] perhaps negative dollars. And here's why. Because as a part of the settlement, Brett Weinstein, tenured professor at Evergreen, and his wife, Heather Haying, also tenured professor at Evergreen, agreed to resign and move on. We do not know they were paid, but it is incredibly difficult to fire a tenured professor. I don't think, by the way, I don't think Evergreen had grounds.

[0:07:32] I mean, they, they didn't claim they were going to fire him, and I don't think they have grounds. I think the president said he, you know, he could come back to work, there was no problem. Yep. So if Weinstein were correct, he would be a $3.8 million dollars and he and his wife would still work for Evergreen College under the settlement, Weinstein gets $500,000 and the college does not have to pay the salary of two tenured professors. You can fix

[0:07:56] in your own head what that what those salaries might be but that is in perpetuity, right? They don't have to pay at all now. They're, in my view, and I have done some work for colleges and universities in the past, in my view, the financial value of being able to terminate without question two tenured professors from a college or university is

[0:08:21] probably worth at least $500,000 in cash. So that means that all of the other claims of harassment and mistreatment and violation of First Amendment and wah,

[0:08:34] wah, wah, wah, wah, that the university put a value of zero dollars on that. And I suspect the reason is because any lawsuit would immediately introduce into evidence what Brett Weinstein is afraid to do, which is Weinstein's description of the events related to the day of absence at Evergreen State College were flat out false in a number of ways. I would refer you back to the episode you did on Serious Inquiries Only, in which I think you very thoroughly dismantled those claims. That would be part of any lawsuit that

[0:09:11] Weinstein brought. And I think that the mediator, having mediated cases and having been in mediated cases, a good mediator will sort of pull you into the room, meet with the party and say, "Okay, you're seeking this." Uh, here's what the other side's gonna do, many mediators are former judges and will say, "You know, look, like I don't know which judge you're gonna draw, but if it were me looking at this case, uh, and somebody comes in and shows that you, you know, blatantly misrepresented what the school did, XYZ, like that's

[0:09:43] gonna make it so..." Let's talk about just, just quickly hypothetic, because I believe, if I have this right, I believe he was gonna try

0:09:49 Thomas: To sue for like an unsafe work environment like. Like, they didn't do enough to stop all these protests. And to be as fair as possible here, it is true that things went nuts at Evergreen. Like, there was a bunch of protests. There were kids carrying bats, even though I think that was a very limited thing that they asked them to stop doing and they stopped doing it. But still, like, things happened that, I get it, like, it seemed dangerous. There were crowds, there were mobs, there were, I don't think there was any actual violence. The worst that there was was I think there was a little property damage that they couldn't even tie to the protesters. But what would have to happen? I'm just curious. What would have to happen, hypothetically, maybe a different case, maybe you can relate it to this one, for there to be some sort of liability for the school in what went on there? Again,

0:10:38 Andrew: When you think tort lawsuits, think negligence, right? What is the duty of care that Evergreen owes to

[0:10:44] its professors to maintain a safe working environment? And did their actions breach or did they fall within that standard of care? And so I think the analysis here that was done that was clearly persuasive to Weinstein was, yeah, the university has done what they need to do under the law to make this a safe campus,

[0:11:10] right? Like that is – it's the difference between a strict liability claim where you're responsible for everything that happens versus a negligence claim where you're responsible for maintaining the

[0:11:22] appropriate standard of care. Okay. So he would have had to prove that they made some misstep that- Yeah, that they failed. Because there's the campus police too. Wouldn't they be the ones- Well, the university is going to be responsible over the campus police. Right. You would sue everybody. But again, the best way to understand this is to look at what what the parties leave with. Right. And if you leave with a check for $500,000 and no job and no job for your wife, I, that tells me you were not supremely confident in your ability to get four million dollars at the end of litigation, right? They didn't meet in the middle, uh, they, they

[0:12:06] Didn't, you know, they, they met at. That's gotta be like a couple years salary and benefits at most. That's like nothing. Yeah. I would, I would think that that's the case. Yeah. Wow. So that's why you value that at roughly nothing. You value that lawsuit. Yeah. That is the, I'm going to write that a second smaller number on this piece of paper, and you write the big zero and pass it across the table. All right. Well, I mean, think about what that takes. If you came to me and said, "I demand $4 million," and I said to you back, "How about you quit and go away and I never hear from you again?"

[0:12:45] And then what we negotiate is not on the $4 million, but we negotiate on what I have to pay to make you quit and go away and for me to never hear from you again. Get to hire behind him a non-tenured, you

0:12:58 Thomas: Know, low paid, like starting salary kind of professor. They're saving money, so that's why. Yeah, anyway, I think you've covered it, that that definitely makes sense to me. Case closed. Let's get on to, uh, let's find, let's get on to Adnan.

[0:13:22] All right, Andrew, the time has come. You got, we got, you and it's just you and I here, we got plenty of time, we got cereal. When Everybody wants to know, did, in your expert legal, uh, lawyerly view, your Harvard Law education, over there, you're not a criminal lawyer, but did, uh, did Adnan do it? Is, was this reasonable? Was this conviction? There's all kinds of questions. Was the trial reasonable? There's lots of stuff we could answer. So lots to talk about. I mean, we can't obviously summarize the whole thing, but you know, you know Serial Season 1 by now. You know, we're not going to try to summarize it. Serial

0:14:00 Andrew: Season 1 has, at my last check, 70 million downloads, which is 67

[0:14:07] and a half million more downloads than we do. So I was gonna say, we have 68 million listeners, so I'm sure you know that, that means there's enough overlap. Yeah, so Serial Season one is really fantastic storytelling, it, it's, um, they don't need my endorsement

[0:14:26] that it's really interesting, uh, because again, 70 million downloads versus, yeah, let's try to help those guys out, but yeah, right, uh, but no, it's, it's great, it's super interesting. I want to say a thanks to, uh, one of our long-standing patrons, Amanda Lipnack, who was the first person to, uh, call me up and say, "You should be listening to the Serial thing." Well,

[0:14:44] I mean, I told you way before that, but she did. No, she did before then. But well, I told you, like, as our show started, so I don't. Right, yeah, no, it took me a long time to listen, so, uh, I still haven't gotten around to The Wire. I can't wait to get that. Thank you. Here's how I I would summarize my claim, okay? And I've said this publicly and on Twitter and Facebook. I've used the shorthand of Adnan obviously did it. I stand by that. Here's what I mean by that. That is, given everything we know, if I were sitting on

[0:15:16] a jury, I would vote to convict. I would vote for guilty. Let me explain what that doesn't cover, which is both serial and a follow-up podcast called Undisclosed, which I'll talk about in a minute. Mix together arguments about actual innocence, right? Adnan did not do this with arguments about the legal process, right? So, for example, in 2016 on post-conviction relief, the Maryland Court of Appeals directed that Adnan's conviction be thrown out and that there be a new trial. And the grounds for doing so was ineffective assistance of counsel and

[0:15:54] was the failure of Adnan's lawyer to investigate, follow up in any way on a potential alibi witness, Asia McLean, okay? I agree with that post -conviction relief, right? So in other words, I think that that was ineffective assistance of counsel. You can simultaneously believe that that meets the requirements within the procedural

[0:16:19] element that who knows if they'd followed up, maybe it would have uncovered X, Y, or Z. Maybe the jury would have come to a different verdict. He had that right to a full and zealous advocacy that went down,

[0:16:31] particularly in a case like this where there's not a lot of physical evidence, having an alibi witness would have been a really, really good thing. I can believe that while still believing sort of on the facts that the balance sort of strongly favors believing in Adnan's guilt. So when I say that, I'm not saying that I approve of how the Baltimore police investigated the case or how the prosecutors handled themselves or how

[0:16:56] defense counsel handled themselves. I'm saying I'm not convinced, and I don't think you should be convinced either. And so let me kind of give the rough summary for why I'm not convinced, and then we'll go into kind of the arguments that are put against that. And so they fall into a couple of categories. The first thing I would say, and again, it's why I differentiate between what you could do at trial, what you could even, what is permissible for a juror to opine about. And in the back of your mind, your belief on the ultimate guilt or innocence of

[0:17:27] Adnan Syed, anybody who believes that Adnan didn't do it needs to struggle and come to terms with why Adnan didn't testify, right? Again, that's not a permissible inference that you can draw a trial. It's not something you can even speculate to as a juror. It's one of the grounds for invading the jury room. But if you're just asking yes or no, the fact that he didn't

[0:17:52] testify is something that you can think about outside the legal system. I didn't expect you to say that because I thought you have

0:17:58 Thomas: Always said that any good defense attorney doesn't have the defendant testify, that kind of stuff. Yeah,

0:18:05 Andrew: That's because almost all defendants are guilty.

[0:18:08] And particularly, so let me expand on that a little bit. Part of the story of Serial, definitely a large part of the story of Undisclosed, and the basis for the post-conviction relief is

[0:18:21] the notion that in the second trial, Adnan's lawyer, who by all accounts was a well-respected, not somebody I knew, but by all accounts was a respected criminal defense attorney in Baltimore. She was sick, she died shortly thereafter, and the implication is that she checked out right

[0:18:40] yeah, well, I want to know if there's a legal remedy called like, "Hi, my attorney's voice makes me want to die." Is that a... because I, they played the audio of her and I would have just jumped out of the building if I had to listen to that, it was non-stop. So what you're saying is, how would anyone listen to that for an extended period of time, that is the number one ineffective counsel immediately. Not since - thank you, thank you for recreating it on our podcast so people will click off this one, but um, you know, is that a common like lawyer strategy of

[0:19:20] just being the most irritating possible person? Is that... um, let me give you a serious answer to that question. A serious answer to that question is, sometimes, I have done this on occasion, if you think that the jury is going to be angry at your client, you can be obnoxious

[0:19:43] as a lawyer, so that they transfer that anger to you, as the lawyer, as opposed to your client. Now, I don't have any insight that that's what, you know, Ms. Gutierrez was doing in this case. But yeah, like there certainly have been times when in court and in depositions where I've done something kind of jerky to sort of draw attention away from my client, and, and to me, interesting

[0:20:08] because maybe that was what she was doing, maybe it was a brilliant, maybe plan, but okay, maybe. So, if you have advanced the thesis that Adnan's lawyer had checked out and was just sort of going through the motions, then you really have to answer, like, people who are innocent, the number one thing that they want to do is testify and

[0:20:28] tell their story, right? Like, we know this as a, as a psychological fact, and so you you could, you could postulate the lawyer saying, "No, no, here's the strategy for why we're not going to put you on the stand"

[0:20:40] right, that - that is, I've talked about that before, there are reasons even why you would want to not have an innocent client testify on the stand, but I don't think you can maintain Adnan wanting to testify and his lawyer having checked out simultaneously, right? Like, that's - that's in... Now,

[0:20:59] again, who knows? Maybe she had broad strategy and was just sort of falling apart at the margins. You may be able to come up with something. But I put that out there just

[0:21:11] as something to think about. That forms no part, because, as I said, when I say Adnan obviously did it, this is what I would say in jury deliberations. You can't bring up failure to testify, you have an absolute right, uh, not - not to testify, I wholeheartedly defend that, but if you were thinking about what

[0:21:30] the facts are, you do have to come to grips with that. All right, but let's - but you said, if you were on, now let's go. Right, so now let's go to the case I would start the case with, and this is kind of poo-pooed in, uh, season one episode 12 of Serial, where Sarah says, this is what Dana, who is the Mr. Spock of our podcast, kind of says, in terms of the case against Adnan, and then, and, and describes it as, if he didn't do it, then my god, that guy is ridiculously unlucky, and I think that's, I

[0:22:00] think that's a fair way of putting it. So, so here are the four points that Dana makes, and then I'm going to add a half dozen to those, so Dana says says, here's a guy who lent his car and his cell phone to Jay, the guy who would accuse him of the murder, and who knew where the victim's car was, right? That's pretty unlucky if you didn't do it. Number two, he asked the victim, hey, Min Lee, for a ride that day, and everybody, right, that's a well-attested fact. Well, that's pretty unlucky to ask somebody to, you know,

[0:22:31] spend time alone with you on the day in which they go missing. Number three, uh, his - that - that, uh, Adnan's phone had a record of a call to a friend who didn't know Jay during the time when Adnan testified that

[0:22:44] Jay had his phone. This is the so-called Nisha call, right, occurred at 3:32 p.m. and uh Adnan testified and testifies to this day that he's been separated from his phone until about 5 p.m., and then Dana doesn't make this point, but I would add on to it, uh, we hear some of Nisha's testimony during Serial, she - mostly you can nitpick around it, but she basically corroborates the story, she says, "Yeah, no, there was definitely a time in which Adnan called me and then he put Jay on the phone," and there - and nobody thinks that Nisha has any reason to lie, yeah, right. Like, so that's - that's kind of fact three. And then fact four, we're

[0:23:22] going to get into this, because, uh, Undisclosed goes through this, but - but the phone records kind of roughly corroborate the prosecution witnesses account, Jay's account, from 6 p.m. to 8 p.m., uh, which is a

[0:23:34] time in which Adnan testifies that he has no memory of the events, right, his dad has testified that he's at a mosque, Jay says they're together getting stoned, Adnan says, "I don't know," right and again adnan doesn't testify so but but has talked to sarah koenig of serial and uh

[0:23:52] and she says, "What were you doing between six and eight?" And he says, "I don't know." Yeah, so so those are four pretty bad, uh, facts that - that it's really, really difficult to imagine how those things, and you're saying, like

0:24:05 Thomas: It's not like any one of those necessarily is like, like, you're guilty. It's just, wow, what are the odds that all these things happen

0:24:11 Andrew: To this guy? All happen at the same time to a guy. Because one of the things that is put forth in all sincerity, at the end of Serial and in Undisclosed, it's actually two different people, is, well, maybe there was a serial killer on the loose. Right. Right. And there was. There were two different serial killers that

[0:24:30] could potentially cross over. But if it's - if it's a serial killer, if it's somebody outside this kind of realm of - of - of the cast of characters of the show, how do you explain the car and stuff? Yeah, yeah, you're left with, boy, this guy got awfully unlucky, right, and maybe, maybe it did, but you got to weigh it out, right? Yeah, well, then we're gonna talk about how would Jay know where the car is, so, like, Jay

0:24:54 Thomas: Was working with the, I think, you know, and I know there are some people say like, oh, the police told Jay where the car was or something

[0:25:01] I don't know, I guess there's no evidence of that, the - the - the best kind of quasi argument that - that is made is made in Undisclosed, that says Jay, between - that the - that the area where the car

0:25:13 Andrew: Was found was in between sort of on the drive from Jay's house to where he worked

[0:25:19] at the porn store, and he could have driven by and seen the car, that, again, very way that argument, yeah, weigh it however you want, right, but that's the argument. That's the best argument for getting around how Jay knows

[0:25:31] where the car is. So, to those four facts, I would add the following. Number one, far and away the most important, Adnan knew the victim, Heyman Lee, intimately and had a discernible motive. Whether you agree with it or not, that is where criminal investigations start. And you hear this in Serial where, when Sarah Koenig talks to Don, the new boyfriend, Don says,

[0:25:56] oh, hey, Leia, I knew when this girl went missing, I'd been her boyfriend for two and a half weeks. I knew the police were going to want to talk to me. Like that's most people who go missing, go missing because of malfeasance

[0:26:08] by somebody who knew them. Right. Number two, Adnan has no account for where he was at the crucial time when the victim disappeared and no story about it. And I would

[0:26:21] add, I'd broken these out, but I think they kind of belong together. The evidence is clear that after Hay went missing, January 13th, 1999, Adnan never tries to contact. That was the biggest one of the biggest things for me, that's again, you got to deal with that, how could you even fathom that you wouldn't try to call her, like, because, yeah, right, unless you know she's dead, yeah. Next, uh, you have the physical evidence from the car, again, remember, I'm going to talk about this, Serial is presented as a defense brief. Right? Sarah Caning is very, very she's apologetic to Adnan directly. We hear that in calls, and to the audience, in the times when she feels doubtful of Adnan's story, right? So this

[0:27:05] is it's a very well-crafted, trying to be neutral, but but yeah, I definitely feel like she leans toward trying to exonerate him, right? And so these so this fact comes up in, I think it's episode six, and then it's just sort of buried again, that there is a map in the back of Hayes car that

[0:27:24] uh, has the page ripped out that has Park on it, and Adnan's palm print is found on the back of the map, and the that page is missing, right? So again, that's some physical, corroborative evidence. Adding to that, and this is this is mentioned only like once in the entire Serial and then kind of passed on, is found at Adnan's house was Hayes letter to Adnan, which basically said, like, "Dude, you got to get over me," really. And then on the top of it, in red pen, is written, "I'm going to kill" right really? Um, I don't even remember that. Yeah, right, exactly, because it comes up exactly once and they talk about it with uh, uh,

[0:28:04] between uh, Adnan and his friend, and and and uh, and she doesn't say like, oh, that's definitely like just him screwing around. What she says is, oh, no, we were kind of talking back and forth, but I never saw it with that, with those words on, on the top of it. But it

[0:28:20] is right, it is so minimized that like you don't remember it from just going back, right? And, and again, does it mean at, what, I I I wouldn't, the reason we're talking about this as a cumulative case is that I wouldn't vote to convict on any, any one of these facts, but, but boy, you know, and, and you could certainly, if that's all there was, right. You could pull up notes that I passed in high school, right. That

[0:28:45] said, I'm going to kill that, right. Like, I'm sure you could, right. You don't want to make too much of it, but in, in the, in the course of not making too much out of something, you don't want to turn it to zero. And then finally, related to sort of how

[0:28:57] you process that is the fact that the jury who heard both sides rendered a verdict of guilty beyond a reasonable doubt. And they're the only people that have heard both sides of this, that have heard the story from the defense point of view and also the story from the prosecution's

[0:29:16] point of view. The 70 million people who have downloaded Serial have only ever heard the defense's point of view. People who listen to Undisclosed have listened to not just the defense's point of view, but then a follow-up that thinks that wasn't sufficiently defense-oriented enough. We're going to talk about it in a second. And so I do give some deference to the fact that the people who heard in an adversarial way both sides of the story put together came out and concluded that Jay was guilty. So those are,

[0:29:47] what, 10 or 11 things. That's kind of the case against Adnan. And I would add, while you're evaluating sources, we talked about how Serial is a defense brief. Undisclosed is a follow-up podcast. I've referenced it a couple of times. It was started by lawyer Rabia Chowdhury. Rabia Chowdhury was the person who brought the Adnan case to Sarah Koenig. So she's mentioned a little bit in serial. If you go back in and re-listen as I did in preparation for this episode, there are

[0:30:17] references to her. She's the older sister of Adnan's best friend, Saad Chowdhury. And to her credit, in episode one of Undisclosed, she says, I strongly, right, I'm Adnan's best friend's sister. I've been living with this case. It is emotionally important to me. And I've assembled other people on this podcast. I guess they raise money. There's a fundraiser for Adnan's defense fund that was, you know, at the time then raising money for his petition for ineffective assistance to counsel. So they make no bones about the fact that they are presenting, you know, unequivocally the evidence that is presented in a way that is totally one-sided. That's okay, right? Again, you know, we flag our political beliefs on the show.

[0:31:01] But again, you have to understand that that's where the evidence is coming in. I think there was a little bit like when I first said on Twitter, obviously there are people who are like, well, have you listened to Undisclosed? And I was really shocked when I was like, no, I haven't. And I downloaded it and I started listening and I'm like, well,

[0:31:20] they're really upfront about telling you what they're trying to do. Well, but at the same time, I mean, if they bring something up that's good counter evidence, then it doesn't really matter, does it? Right. No, no, it doesn't, except when you get the drumbeat of, you know, so for example, right, the way in which they refer to Jay throughout Undisclosed is akin to, you know, Donald Trump's "Lion Ted" or "Crooked Hillary," right? Like it is literally every time, go back and listen and it will start to get under your nails a little bit. If you're like me, I mean, maybe it won't, but it is, you know, Jay and then there's a like eye rolling moment that comes through in the vocal intonation who, you know, can't keep his story straight from moment to moment. Every time, like, they never say, "Jay says X." They They always say,

[0:32:09] Jay, who's the lyingest liar who ever lied, did X. So now, with that kind of as a background in mind, what does it mean? We talked about this in a prior episode of what it means to have reasonable doubt, right? And our friend, Sharon Franco, actually did a nice follow-up podcast episode of Habeas Humor in which she kind of went through the court cases. But you were a little bit surprised to learn that there is no fixed definition of reasonable doubt. Uh, lawyers, lawyers hear different things. I was always told that, you know, it's kind of in the nineties, right? Like you have from 90% certain to 99

[0:32:48] % certain. And the way in which I have always conceptual, and again, I'm not a criminal defense attorney. So, You know, take that for whatever it means. I've always conceptualized reasonable doubt kind of in, in using these two sort of

[0:33:00] touchstones. The first is, I think I've asked you this before. Did you ever hear the episode of, uh, it was the old Pendulet podcast, where he had Joe Rogan, who denies that we landed on the moon, on to debate Phil Plate, the bad astronomer? Oh, wow, no, I haven't heard that. Yeah, uh, don't, because what happened, like, they had to do a follow-up episode because in ordinary, Joe Rogan destroys Phil Plate, right? Like, it is, it's not even close, right? Like, and, and what he does is, the like, just assaults Fill with, like, well, Gish Gallop, or whatever, too many, I'm just explaining, it's a Gish Gal, but it, but it is, look, I'm

[0:33:40] just asking you to explain, like, why did the Nazis, uh, or why did, the why did NASA bring over the Nazis' chief scientist, Werner, Werner von Braun, who used slave labor to build V2s, and put him in charge of our rocket program, if they didn't want to have somebody that they could blackmail? And why did Werner von Braun take a trip, paid by NASA, to, to Antarctica, to

[0:34:02] collect rock samples a year and a half before, all they brought back from the moon was rock sample? Now, look, I'm not saying that Werner von Braun, but wait, I didn't know this, maybe we didn't land on the moon, shit, right? Yeah, no. And you listen to that and, like, particularly when it's made aggressively, and that you're, like, well, I don't know why the hell did Werner von

[0:34:20] Braun go to Antarctica, like, why did we take this, like, Nazi guy who used, right? Like, they're, they're They're tough questions. But the fact that you don't have an answer to that doesn't mean that we didn't go to the moon,

[0:34:33] right? Yeah. So I always start with the premise that reasonable doubt means you look at the questions, you acknowledge that there may be questions that you can't answer, but you always are comparing a question against some sort of competing hypothesis. And that's where, and then my second kind of touchstone on that, you'll face this very soon as a new dad. But it's kind of the, like, me and my son are home, right? There's a, let's assume this was, he's about to turn 15, so he's, he's past, like, stealing cookies from the cookie jar, but, like, assuming this was seven or eight years ago, right, so he's seven or eight years old, I am taping

[0:35:11] down here, I know Alex is upstairs, uh, and then I come upstairs and there's a, there's a bag of Oreos, it's open, their, they're cookie crumbs all look strewn across the kitchen. And Alex is sitting in the kitchen and he's got a little black smudge on his face. And I go, Alex,

[0:35:30] did you eat the cookies? And he says, no, Daddy, I definitely didn't eat the cookies. And there's nobody else. There's just me and Alex here in the house. And I say, well, Alex, who ate the cookies if you didn't eat the cookies? And he says, no, I didn't eat the

[0:35:42] cookies. I don't know who ate the cookies, but I didn't eat the cookies. And then let's assume he starts crying, right? Like, and I know, and, and let's, let's build as big a case as you can, right? Someone came in and always cookies, it's a frame job, and suppose he's always truthful to me, right, like, just he's not a kid who lied, which is true, like, my son is not a kid who lies, right? Suppose, you know, he's, I, I suspect to be truthful, I've never seen him. He usually, when I say, come on, buddy, did you eat the cookies? He usually breaks down and he insists and he

[0:36:13] gets defiant and he's crying and he says, no, I definitely didn't eat the cookies. And yeah, I live next door to my sister, right? And she has a son who's a couple of years younger than Alex.

0:36:23 Andrew: So let's say I even go next door and I rule them out. They were off at the mall at the time when the

[0:36:29] cookies went missing. At some point, I look at it and I say, I got to have a theory for who ate the cookie, right? And maybe I can't explain. And maybe I discovered that that little black smudge in the corner of Alex's mouth really was from biting down on a pen cap, right? It's not cookie crumbs. It's black ink, right? So something I thought was contributing to his guilt is

[0:36:54] not contributing to his guilt. But at the end of the day, if my options are Alex ate the cookies or there's a cereal cookie, somebody broke it to my house and ate all the cookies and ran out and Alex didn't notice it. And also, you know, their cookie crumbs around out like at the end of the day, I say, look, there's some things I can't quite explain. I can't explain why he's chosen to cry and get upset about this accusation of eating the cookies when he's usually a truthful kid. But at the end of the day, I got

[0:37:25] to make a decision about who ate the cookies. And it's not reasonable to – so you're saying there's no reasonable doubt there. I don't think there's any reasonable doubt that he ate the cookies in that situation, right?

0:37:36 Andrew: And now how does that translate into a criminal defense case? You are under no obligation as a

[0:37:42] criminal defense attorney to advance a competing hypothesis of the case. You don't have to do that. And in a well-publicized trial where the defense really never did that was the O.J. Simpson trial. Now, again, mind you, most people think O.J. did it, notwithstanding the verdict. But you can, in rare cases, have successful criminal defense attorneys just try and pick apart the prosecution's case. That's not often. That doesn't happen very often. Usually. Oh, usually. Oh, okay. You do have to have a trial. Because the way we think about things is reasonable, right? It's unreasonable.

0:38:19 Andrew: Like, we don't have to prove somebody guilty beyond an unreasonable doubt. Yeah. Because you could always say, well, maybe aliens, you know, materialized down and killed this person while your back was turned, right? Like, you know, you can always construct – you can't ever prove anything, you know, beyond all doubt, right? You can only prove it, you know, beyond a reasonable doubt. And the way in which our brains work is typically, you know, with kind of the cookie story. One of the things I actually did this, if you go to YouTube and type in defense opening statements, watch a couple, and you will see defense opening statements present a theory of the case, right? And they tell a compelling narrative, as compelling as you can, that explains the facts in such a way that allows the jury to be comfortable with rendering a verdict of not guilty. One that comes up that we should

[0:39:09] talk about, given your love of like real crime stories, is the Casey Anthony trial, right? Oh, yeah. And that was the mother who allegedly murdered her daughter, right? And if you watch the opening argument that the defense lawyer, and by the way, she was acquitted, right? But she was acquitted. The jury returned a not guilty verdict. And there was tremendous outrage of people watching it on court TV going, well,

[0:39:34] Obviously Casey Anthony was guilty, right? And what the lawyer does in that case is he answers the question of why this woman would act as if nothing was wrong, when her child supposedly went missing, right? So answering kind of the Adnan question, right? Yeah. And

[0:39:52] So the arguments he gives in the opening statement are, first, he gives an alternative explanation.

0:39:58 Andrew: He says, look, she was never missing. Kaylee Anthony drowned in the swimming pool, okay? And then number two, the reason why Casey Anthony didn't display any public remorse over this is because she was a victim of sexual abuse. And so she acted as if nothing had happened because that's how she was conditioned to act, that it was going to be her fault if something went wrong in her family. Now, you can evaluate that theory of the case however you want to evaluate that theory of the case.

[0:40:29] But it's at least an argument to explain your alternative. Yeah, so you're saying they

0:40:35 Thomas: At least made like a a storyline that at least made sense, a narrative, that a competing narrative that you could

[0:40:41] at least say, "Oh, maybe that is true." Right? What Serial and Undisclosed do is pick holes in the prosecution's evidence, but there's never anything to kind of tie it all back, and there's a whole

0:40:54 Andrew: Bunch of stuff that is, you know, quite frankly contradictory, or which for which the the competing hypothesis is

[0:41:00] preposterous, right? Like the, the, the serial killer hypothesis is preposterous. It's preposterous because, at, in the same breath you have said over and over again, we have to impeach Jay as a witness because he's the lyingest liar who ever lied. Well, why in the hell is Jay lying? Yeah. If he's a stranger to these events, right? Like, people do not go through and concoct elaborate 20 year lies for crimes in which they had no part, right? So it, and you can

0:41:31 Thomas: Say the biggest competing hypothesis that I'm seeing that people have, I think we already touched on it, but involves, you know, Jay actually did it, but, uh, you know, the police kind of led him to the car, the or they, they fed him the cell tower evidence so he made it corroborate. And my thought is always like, look, if Jay, assume Jay did it, and But the police are so, what, dumb or backwards that they don't want to convict the drug dealer, porn shop worker guy who did it, who's, by the way, who's black. Like, they don't want to, they're not going to do that. They're going to find another person like his friend and help Jay frame the friend. I just,

[0:42:15] it's, that's a weird, why would they possibly want to do that? Well, and expand, expand onto that. Like, again, you go back to the unluckiest man who ever lived, yeah, Adnan just happened to loan his car and his cell phone to the guy who killed his ex-girlfriend on the day he killed his ex-girlfriend, like that's, that's a staggering coincidence, and, and look, this is why, this is why I went through all of

0:42:39 Andrew: The setup, because if that were a good theory of the case, right, if Jay killed Hay

[0:42:46] was a good theory of the case, then the defense would have have put that on, yeah, right, the reason that they didn't put that on is because it's an unbelievably stupid theory of the case because there's absolutely no motivation for Jay to kill Hay whatsoever, and despite the characters, I, I find the like the drug characterizations between

[0:43:04] uh Adnan and Jay in in Serial and then Undisclosed like really, what do you mean, I don't even, I'm, I'm not sure, yeah, well, like Jay is, you know, the shady, you know, yeah, they never use the word thug, but like they imply it, right? Yeah, because he's the guy that

[0:43:23] Adnan goes to to get weed, right? But then Adnan is smoking plenty of weed and drinking, and they both have to drive around for several hours by testimony to find, you know, sort of the actual drug dealer.

0:43:36 Andrew: So, you know, this idea that the rhetoric, rhetoric of, well, Adnan is just, he's a good kid who occasionally drinks and smokes weed, but, you know, Jay is, you know, the thug, like it just, as somebody

[0:43:48] who was a dork in high school and who didn't drink or smoke weed, like, you know what I mean, like, it was, it was kind of that, that, that stood out to me, as there was a little bit of a selective characterization. And for me, like, the thing that explains Jay's, because Jay did say some

0:44:07 Thomas: Weird stuff, and, like, I think he probably, well, I think he probably lied about some stuff or had stuff wrong. And it, to me, it makes way more sense, as you said, he has no motivation to have killed Hay whatsoever. I guess you could maybe argue that he was so scared of, like, the real killer who was somebody else, that

[0:44:26] that he was framing Adnan instead or something, but then it goes back to - How does that protect him? But anyway, what I was going to say is, even though he's not a perfect witness, and he's dishonest, and all that, for me, that fits pretty easily into the theory of, well, he was A, doing drugs, was smoking, was doing some possibly illegal stuff. He saw the body. He was freaked out by it. He might have helped. He might have aided and abetted in burying her, like he might have some culpability that he was trying to cover up, versus

[0:44:57] you know, he masterminded this whole plot and then lent, you know, borrowed the car and all that. Yeah, let's go, let's go beyond that. Suppose Jay, we have some testimony from people who knew him, uh,

0:45:10 Andrew: The guy who worked with him at the porn star, that he was kind of a, he was kind of a story topper, right? He was kind of a, kind of a big shot, talked a big game, and nobody, you know, and so when he was bragging about having, having seen a body, at the porn shop, nobody believed him, because that's the kind of stuff he would say, right? So now let's suppose that

[0:45:28] his level of culpability is much higher. Suppose Adnan called Jay and said, "Hey, I'm thinking about killing Hay," right? And now suppose Jay supports him, talks him into it, right? He's like, "Oh, yeah, that's a great idea. You'll never, you know, I'm not going to supply the dialogue, but you can do that, right? Now, his level of guilt and culpability is much higher. He's become a co-conspirator. He's potentially chargeable with conspiracy to commit murder. So you could totally understand why

[0:46:00] he would be willing to do sort of whatever, cooperate maximally with the police and try and curry favor and change his story. And I want to talk to that. I know we're running late, but I do want to touch on two quick things. And all of that could be true,

[0:46:19] and Adnan is still guilty, right? Like, none of that gets you past that. Undisclosed makes a big deal out of what they call impermissible witness coaching.

0:46:32 Andrew: And they talk about the police sort of going over Jay's testimony and rehearsing

[0:46:38] it. And I found this presentation to be dishonest, to be honest with you. So witness coaching is an issue that lawyers face. It is an issue on both sides. It's an issue in civil cases as well as criminal cases. The way it is presented in Undisclosed is

[0:46:55] if the police were coaching Jay as to his story, then that is totally impermissible. It throws everything out. The whole trial needs to start over. That's not really the way the law works. And so I reviewed every Maryland case on witness coaching. There's 37

[0:47:13] That I found. I missed some stuff. I found none in which a conviction was thrown out by witness coaching, with the exception of the very controversial use in the mid-1980s that you might remember of post-hypnosis testimony. It was both a Maryland case and a Supreme Court case that were like, yeah, when you take a child who claims that they were the victim of like ritual satanic abuse and, you know, you hypnotize them and make all these suggestions that that testimony is kind of worthless. But the

[0:47:44] Maryland case dealing with post-hypnotic suggestions doesn't even go. It just says, by the way, they're pre, they can. Those witnesses who have been hypnotized can still testify as to the stuff they they thought pre-hypnosis. They just can't. So, you know, it is a very, very high bar. Here's what the Court of Appeals said, Maryland Court of Appeals. Again, this is a Maryland case, so this is State versus Erp, 1990 case. They say, look, it's a tough line to draw. It is permissible in a pre-trial meeting with a witness to review statements, depositions, or prior testimony. It may be necessary to test or refresh the recollection of the witness by reference to other facts which the attorney has become aware during pre-trial prep.

But in so doing, the attorney should exercise great care to avoid suggesting to the witness what his or her testimony should be. A number of factors must be weighed in reaching the decision. The overriding consideration ordinarily will be whether the testimony in a particular case will be so unreliable that exclusion is justified. And then they say, quite often, as was the case here, the judge will determine that disclosure through cross-examination of a witness concerning pretrial activity that created the potential for influencing the witness testimony will allow the jury

[0:48:52] to assess the case appropriately, right? So I want to be clear on this. Prosecution should should not coach witnesses, should not put words in the mouth of witnesses. As a civil lawyer, I do not coach my witnesses by telling them what they should testify. But every lawyer that operates ethically on the other side of the line goes through and reviews and is like, okay, let's talk about what your testimony is, but you're going to be this. Okay, if you say that, here's what the other side is going to ask you on cross-examination. Are you sure that that's your testimony,

[0:49:23] right? And you work through and you prep a witness. And there's good reason for for that, because in daily life most people do not face cross-examination by a hostile lawyer, and so you you need to prepare them because a very truthful person can break down under cross-examination. We, like, I'm sure you've seen this in in in everyday life, where, like, you start asking somebody, well, maybe it's just me, but like I'll start

[0:49:48] asking somebody questions. I'm like, my friends, I, I can't help, really. You paid for lunch last week? Well, let's see, the record shows. Yeah. Um, but no, so look, like the, the characterization of, uh, we know because of this, that Jay is just a mouthpiece for, for the prosecution, I think is, is unfair. It does not state, uh, the law in, in Maryland and elsewhere. Uh, and, and, and there's a very, very high burden. And in fact, you know, one of the reasons I try to be an ethical lawyer, but one of the practical reasons why even unethical lawyers don't coach their witnesses is because those witnesses are terrible in cross-examination, right? Like, if you tell the witness to say X, then when you cross-examine them and you present anything that doesn't fall within their story, they sort of fall apart, right? And they're left like inventing a bad story. So that's why the court says, ordinarily, the

[0:50:48] remedy for a witness who's been coached is aggressive cross-examination. And I want to end kind of briefly. There's so much that we could do. I want to end very, very briefly with the principal argument in Serial, just picked up in Undisclosed, that the cell tower evidence

[0:51:07] isn't very good, right? And that you get like, this says this, but this tower doesn't really mean this, and X, Y, and Z. And I just want to tell a little bit of a story from a case I litigated in 2005. It was a civil case, again, not a criminal case. It was about a contract that was signed in 1972. 1972. And so it was kind of like serial in that we were trying to reconstruct 30 years later what had happened,

[0:51:35] right? And there were two internal memoranda that came out, or a lot more than that, but two that conflicted, that came up in discovery. One we relied upon, and it showed a meeting between the parties on June 5th and June 6th of 1972, and it showed an agenda, and they talked about the contract, and we needed that to support our view of what

[0:51:55] Happened. There was also a a document that was introduced that showed, and again, remember, this is the 1970s, so, you know, it's not emails, um, that was, uh, a travel itinerary prepared by the CEO's secretary that showed that he was traveling from London to the U.S. on June 5th and then he was staying there through June 8th. So those two documents were contradictory, obviously, right? Like, if the CEO's in London, he couldn't have been at this June 5th, uh, meeting, uh, that, that, that took place, that was, that was a key part of our testimony. And, and we never figured out which document was, you know, which date was right and which date was right, like

[0:52:35] the the the court admitted both pieces of evidence. The other side argued, you know, tried to impeach the the meeting minutes on the basis that, you know, there was a subsequent document, and the court was like, no, no, we're gonna, we're gonna allow both in, right? Because what's the explanation, right? Like, either, well, maybe the the the June 5th and 6th meeting didn't actually take place on June, they got the date wrong, right?

Maybe the trip from London, and the CEO was, was gone by this time, either deceased, Easter, working somewhere. We never got it. We couldn't get his testimony. Maybe that trip was planned, right? And the secretary sent around an itinerary, and, and then the CEO went and told his secretary, oh, no, we're canceling that trip because I got to be at this June 5th

[0:53:15] meeting for this, for this contract. We don't know. It was totally contradictory, but the fact that it was contradictory wasn't enough for you to sort of throw up your hands and say, okay, well then then nothing happened, right? Like there's a very parsimonious explanation, which is, okay, somebody got a date wrong at some point, but this memo was attached to the file and referenced a dozen times. And like the meeting clearly happened. There was enough evidence that the meeting happened that the fact that there was a contradictory piece of evidence that came in wasn't enough for the court

[0:53:52] to say, all right, well, it's all unreliable. We just do nothing, right? And that's kind of how I think about the cell phone tower stuff, right? The police's timeline is almost certainly wrong, right?

0:54:04 Andrew: Like, because you're reconstructing, and now, you know, we're reconstructing 17 years later,

[0:54:11] 18 years later, you know, a day that happened with the, like, you know, Saved by the Bell cell phone technology. Like, of course not, right? Right. But but those that level of contradiction, that level of, oh, well, you know, this is then this can't be that. In my view, that is commonplace in litigation, particularly in retrospective litigation, when you're trying to piece together a timeline of events after the

[0:54:35] events have occurred. So, you know, there's lots more people can ask me questions. Yeah. Yeah. We

0:54:41 Thomas: Got to wrap it up. Yeah, we got to wrap it up. But very interesting.

[0:54:45] Adnan did it. Yeah. I'll close with a joke, which is when defense attorneys know that they've lost a case, they will joke amongst themselves that, no, my guy didn't do it. It was Mr. Soddy. And Soddy is an acronym among defense attorneys, S-O-D-D-I, for some other dude did it. Uh, and that's, and that's really what you have here is you've got some other dude did it. Well, you know, and I would just say, if you are convinced, state out your hypothesis, right? Don't fall into the, you know, Verner von Braun, and

0:55:22 Andrew: Say, well, how do you explain this, and how do you put out your other hypothesis and see does that hypothesis explain all of the data taken together. And I haven't heard a good one, I'd love to hear it, so if you're

[0:55:35] if you're a firm odd non was innocent, you know, hit us up, come to the Q&A, uh, but, uh, but, but I'm not convinced. All right, well, you heard it here. Well, I'm looking forward to questions. Down, down, down, down, breaking

0:55:55 Thomas: Down the law allergan transfers patents to an indian tribe very interesting what

[0:56:01] Is happening here? Yeah, um, so this is going to be a little bit of a a of a mini, uh, deep dive into what

0:56:08 Andrew: Patent law is, which, uh, hopefully our listeners find that interesting. I find it interesting.

[0:56:15] Um, so, uh, so let's start off with that. What is a patent? A patent is a kind of intellectual property, right? It is distinct from a copyright or a trademark, and I find that a lot of people are sort of, you know, kind of run those three things together in. But a patent says if you invent something and you register that patent, the United States Patent and Trade Office, you get a 20-year exclusive

[0:56:39] right to exclude other people from making or selling that thing that you invented. So this is a classic kind of example in modified capitalism of where we think restraining sort of free market,

[0:56:58] Quote, end quote, actually promotes more competition in the long run. Right. The idea is some things require long term planning and research and

[0:57:10] Strategy. And if you engage in all that and you come up with this thing that you invent, and then somebody else can just freeload off of your research, then absent some sort of protection, there wouldn't be economic incentive for people to devote money to to everybody. Everybody, you know, you'd have a tragedy of the commons problem, right? Like everybody would freeload, nobody would do the research, nothing would get invented.

[0:57:36] So that's a patent. Under the U.S. patent law, there's this, you can sue for patent infringement, but there's also this sort of quasi-administrative proceeding that says certain kinds of reasons to not grant a patent, you can bring a separate proceeding that is called inter partes review. And here's what that means. Under the law, 35 U.S.C. 102 is the no prior art section and 35 U.S.C. 103 is the non-obvious section. And here's what those laws say. They say a person shall be entitled to a patent unless the claimed invention was patented, described in a printed publication, or in public use or sale or otherwise available to the public before the effective filing date of The claimed invention.

Right. So in other words, you can't patent something that's already out there. And let me give a real world example of this. We were talking about literature on the Opening Arguments community Facebook page. And we were discussing Robert Heinlein with our good buddy, Aaron Rabinowitz. And as it turns out, I don't know if you've ever read any Heinlein, Stranger in a Strange Land or any of his other books. As it turns out, the guy who, quote, invented the waterbed was not able to patent the waterbed and missed out on that exclusive waterbed patent in the 1970s

[0:58:57] because in Heinlein's 1960s novel, 1964, I think, Stranger in a Strange Land, he describes in great detail the concept of the waterbed. And So that was used to challenge the guy who registered the waterbed in the 1970s on this prior art basis. He said, no, look, like, you can't get a patent on this because Heinlein described

[0:59:22] It in a printed publication 10 years earlier. Wow. So that's prior art. And then there's an extension of that later past, which is section 103, which is non-obvious, which says a patent for a claimed invention may not be obtained. Notwithstanding that the claimed invention is not identically disclosed as set forth in the section 102 prior art section. If the differences between the claimed invention

[0:59:46] and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Okay. So you see that expands the prior art and says, okay, if they've described exactly what you're patenting, that's out. And then 103. And also, if it's a tiny little tweak that's totally obvious to anybody in the industry, that's also out, okay? So those are the two grounds. There are lots of other grounds upon which you can challenge a patent, but those are the two grounds upon which you can bring this unique kind of procedure called inter partes review. And the reason why you want to bring an inter partes review claim is that it doesn't go to court.

[1:00:30] It goes to the U.S. Patent Trial and Appeal Board, okay? And I should add, this Interparteis Review process is only five years old. It was passed in 2012. So it's

[1:00:43] a new process. It is one that is a controversial process. So there is a case pending before the Supreme Court on a writ of certiorari, Oil States versus Greens Energy Group,

[1:00:56] that argues that Interparteis Review is unconstitutional. Okay, and the basis for that argument is that you, that the Patent Trial and Appeal Board, to which there's no right to a jury trial, is extinguishing a property right that is a patent without due process of law. So it's a controversial process. Now, what, how does that apply to Allergen? Allergen makes a dry eye drug called Restasis, you've probably seen the commercials, um, you know, they, they advertised during the NFL, and they are in the middle of an inter partes review, challenging the validity of their patent on prior art grounds, saying, look, there were other dry eye drugs using related chemicals that from which Restasis is an obvious extension. So you shouldn't get the right to a 20 year patent

[1:01:47] On Restasis. That patent expires in 2024, right? So 2004, 2024.

1:01:53 Andrew: And the consequence to the consumer is if you win the Interpartes review, then you can bring out generic equivalents, right? Like that's how we get generic drugs is the patent expires. And once the patent expires, then you can just go in and copy. And generics are very, very clear that that's what they're doing, right? They say,

[1:02:12] look, yeah, the patent on this drug is expired. We're going to copy the drug. We're going to sell it at a lower price.

1:02:17 Andrew: That's the back end of the kind of free market argument, right? So what did they do? They're in the middle of this inter partes review. They were, if their press release is to be believed, approached by the St. Regis Mohawk

[1:02:30] tribe, which is based in upstate New York, that bought all the patents from Allegan and then leased them back to the drug company. Interesting. Okay. And the terms of that were the tribe receives $13.75 million up front, $15 million a year every year from now to 2024. Why would they do that? And the answer here is that there were two recent cases. We're going to link in the show notes. It's Cavidian LP versus University of Florida Research Foundation and

[1:03:01] Neocord, C-H-O-R-D, so a musical thing, versus University of Maryland Baltimore. And those cases involved patents that were owned by research universities that were state universities, University of Florida, University of Maryland. That's not an uncommon thing, right? Right. Like you, universities that have research labs often procure patents on the stuff that they invent in their labs. But something neat happened in those cases. And what happened was the university made an 11th Amendment argument. OK. And you might be sitting there thinking the 11th Amendment is kind of like the Third Amendment. I don't hear a whole hell of a lot about the 11th Amendment. What does the 11th Amendment say?

It says, the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. And that is the sovereign immunity doctrine, and that you might recall way back from, from, uh, Opening Arguments episode number 90, I guess it's not way back, it's 17 episodes ago, but when we discussed whether Trump could pardon himself, right, and we talked about how one of the arguments was sort of an analogy to the King of England, and we were like, well, that's a dumb analogy

[1:04:21] because the King of England in feudal times, uh, was subject to sovereign immunity, the the doctrine that the king can do no wrong, right? And that's the case about the government and arms. They are immune from suit. So now I want to anticipate your question, which is, Andrew, what the hell are you talking about? People sue the government all the time, right? How can there possibly be this 11th Amendment? Well, it can't mean what it says it means. Well, actually, it does. Every suit against the government or against the arm of the government is a result of the waiver of sovereign immunity. And that comes about in a bunch of different ways. The first and most common is voluntary waiver of sovereign immunity. There are federal and state tort claims act, which basically say they're arms of the government. They're the federal government or a state saying, yeah, we know we have a sovereign immunity, but we are going to waive sovereign immunity and allow people to sue us when the state commits a tort against you.

1:05:21 Andrew: We're not going to take the position that you can't sue the state that we're immune. Also, there is involuntary abrogation of sovereign state immunity. The best example of that is Section 5 of the 14th Amendment. And I should point out that the 14th Amendment we've discussed at great length. Section 5 just says the Congress shall have the power to enforce by appropriate legislation the provisions of this article. But that's been interpreted by the Supreme Court as saying Congress can abrogate state sovereign immunity if necessary to enforce the 14th Amendment. So a good example of that is the Civil Rights Act of 1964.

1:06:02 Andrew: We've talked about a great length anti-discrimination lawsuit, 42 U.S.C. 2000D-7.

[1:06:08] If you receive federal funding for any purpose, you can't claim sovereign immunity in a discrimination lawsuit. OK. Interesting. So, those are all, they're more, I'm not going to, you know, we're down a rabbit trail of a rabbit trail. But basically, the principle is, if you are a state sovereign, if you are the United States government or state government, and you haven't waived or had it waived on your behalf, you can't

[1:06:33] be sued. Wow. So then the question is, is this inter partes review, does it really count as a, quote, suit in law or equity? It's not a lawsuit. It's an administrative proceeding. But there's

[1:06:46] longstanding case law, again, as we moved into what Neil Gorsuch laments as the administrative state, that lots of adjudicatory proceedings before agencies are similar to civil litigation because they're contested. Both sides are represented by lawyers, they're adversarial, plaintiff bears the burden of proof, you get relief like you would if it were a trial. And so basically courts have been like, yeah, look, this isn't a civil lawsuit, but it's so close that it should count for purposes of the 11th Amendment and for sovereign

[1:07:16] immunity. And that's what happened in these two cases. So these two cases, Covidian and the Neocord, were cases where the patent trial and appeal board said, yeah, we lack jurisdiction to carry out an inter partes review against the University of Florida or the University of Maryland because they're arms of a sovereign state, the states of Florida and Maryland, respectively, and they haven't waived sovereign immunity.

[1:07:41] So you can't bring this kind of claim against them unless and until the states say you can. They waive sovereign immunity with respect to that kind of proceeding. So now, fast forward a couple of months. And by the way, that neocord decision was May 23rd, 2017, right? So four months ago, less than four months ago. The lawyers for the St. Regis Mohawk tribe said,

[1:08:06] well, if a state university is sovereign, entitled to sovereign immunity, then a sovereign Indian tribe on a reservation is also sovereign. And so if

[1:08:19] we own these patents, then the PTAB has said, you can't bring these inter parte suits. So they went to Allergan and said, "Hey, you want to get out of that inter parte

[1:08:31] suit? Sell us your patents. We'll lease them back to you. You'll get out of the lawsuit and we'll get money for our tribe." And um, in in the same way, I don't know the first person to figure out that, you know, you could put a casino on

[1:08:47] an Indian reservation. I, I suspect, uh, if, if this is allowed to stand, that this will be, uh, another, uh, kind of influx business model. Yeah, another way of, of basically contracting around. Is

1:08:59 Thomas: There a way to argue Wow. So this really is one of those one weird tricks that patent lawyers

[1:09:06] hate or something. There are not a lot of those, but it's good for us to call it out when there are. Would anyone be able to make the argument like, "Well, they didn't own it to begin with to lease it" or something? Would there be any way to try to

[1:09:18] undercut that sale of the patent? So yes and no. You could attack the sale

1:09:24 Andrew: As fraudulent, right? You could otherwise challenge. But other than that, this

[1:09:30] is a standing doctrine, right? It is to say that the PTAB as an administrative agency, as an arm of the US Patent and Trademark Office, does not have jurisdiction to bring in a sovereign to answer for these claims. And the reason there is that they are creations of the executive agency. And so they don't have inherent jurisdiction, unlike a court, which has inherent jurisdiction over some kinds

[1:10:01] of cases. So you would not have the ability of the sovereign nation would essentially say, "We don't have to show up for this proceeding. You have no power over us." Uh, and, uh, and, and as far as I can tell from having looked at the opinions, uh, looks, looks pretty dead on

[1:10:20] to me. Wow, so crazy. You know, it's a neat, like, almost a literal sovereign citizen. Like, yeah, this is what it looks. Oh my gosh, you now, once again, you're, you're, you're giving out hints to the, uh, crackpots who are listening. We're gonna, we, we will be able to trace, like, like the next generation of gold flag on the fringe back to Opening Arguments. Gold flag

[1:10:45] on the fringe. I like it. Yeah. Gold fringe on the flag. Gold fringe on the flag. Well, you know, you can see that's just, did I mess that up because they wanted me to?

[1:10:56] No. So, yeah, this is an example where sort of the technicality trumps the kind of general notion of fairness because there's no residual jurisdiction. Right. Because you have to have specifically created authority when you're talking about an administrative adjudicatory

[1:11:15] proceeding. Now, how should you think about this politically? I don't know. Right. Like this is an example of where obviously it's a revenue source for Native American tribes that have, to put it mildly, gotten a rather raw deal in this country for, you know, 600 years.

[1:11:34] On the other hand, I guess I should say $15 million or so a year, right? On the other hand, that revenue is essentially allowing global multinational drug companies to evade a level of patent scrutiny, right? Like, so, you know, they are buying, obviously, you know, it was worth the risk of having lost the patent, you know, was worth hundreds of millions of dollars to Allergan. And that's been taken out of, uh, the, you know, potential for the PTAB

[1:12:12] to say that, uh, no, because what, you know, if, if they, if Allegan had lost, right, the consequence would be for the next, we would get generic Restasis possibly available over the counter at a, at a vastly cheaper rate for the next seven years. Yeah, right. So, you know, I'm trying to come up with a

[1:12:30] with a, you know, sovereign immunity has consequences. Would they have been able to, like, condition the sale on the legal proceedings of it, like, if let's say

1:12:42 Thomas: The law, uh, I don't know, let's say that the case went one way and they decided, you know what, actually we can, you know, they don't have immunity, we can do this somehow, would they have been able to condition the sale so that it's like, okay, well, if, if

[1:12:55] you don't have immunity, then never mind. I am super excited that you asked that question. I did not plant it because, uh, it involves an obscure bit of trivia that I happen to know, uh, which is, uh, there is a law called champerty. Champerty, which is, yeah, champ, C-H-A-M-P-E-R-T-Y, which is an old-timey law, uh, that prevents you from

1:13:20 Andrew: Oh, yeah, no, this is a, like, you know, 1200 year old doctrine that prevents you from, uh,

[1:13:27] selling the, uh, uh, risk of outcome of litigation, right? Like basically you can't bet on court proceedings and you can't bring non-lawyers

[1:13:39] in to, you know, sort of share the risk of that a case is going to go one way or the other, right? So a carve out to that, the reason a lot of, we have some plaintiffs lawyers who listened into the show. Um, obviously you have a carve out for plaintiff's contingency fee litigation, right, where the lawyer is taking the risk that they never get paid in exchange for getting a portion of the proceeds of what you recover. But except where otherwise expressly permitted by statute that's superseded this doctrine, the notion of champerty is only lawyers can do that. You can't

[1:14:17] bring in anybody else to kind of wager on the outcome of a case. Well, I don't know which way you're saying that, does that mean

1:14:23 Thomas: Like the sale can, so, oh, okay, so you're saying the people they're selling it to, they can't have to sit kind of with bated breath waiting for the outcome of a lawsuit to

[1:14:35] determine whether or not the sale is going to. Yeah, what, what I'm saying is that Allergen could not have conditioned

1:14:41 Andrew: The sale on the litigation goes this way, right, because that would violate

[1:14:48] the champerty laws. Well, there you go, I guess that answers that pretty easily. So, so that sale is final, essentially, there's no. Yeah, yeah, okay. Well, this one weird trick, you hear here first, everyone, if you happen to belong to a sovereign tribe, uh, you know, buy up some, some patents, I guess. Yeah, find, uh, find uh, drug companies that are going through this inter partes review process and. And

[1:15:12] offer to kind of be the, it's basically laundering the pet. Yeah, it is. It's crazy. But yeah. So how you feel about that? Well, it depends on how you balance out the interest that we've discussed. Yeah. All right. Well, thanks for breaking that down. And now it is time for one of our co-favorite segments of the week. And that is New Patron Tuesday. New Patron Tuesday. All right. And let's start us off here. Thank you to Imree Paige, Jeremy Taylor, Secular Saint,

1:15:43 Thomas: Atheist Bug, and Keith Davies for the new pledges. Thanks very much, guys. And thank you

[1:15:49] to Christian Jaeh, to, you've done this to me, Thomas, to Nemoutopian, to Cody Bond, pledge edit from Baking and Entering. Baking and entering in light

1:16:05 Andrew: Of our gay cakes episode, I. I think to Edgar Casado and Pasquale Romero of the squaring,

[1:16:11] the strange podcast.

1:16:12 Andrew: Thank you all so much for the, for the, for the new pledges, for the good pledge edits. We really appreciate it. Yep.

[1:16:19] And now it is time for, I don't know. I'm not as confident about this one, but you know, I'm on a tear. So let's find out. T T T T T T B E. Did I go 10 in a row? Oh, no associate. This firm has ever failed the bar exam. No kidding. So, Thomas, this was a question about authentication of evidence. This was a criminal case.

1:16:44 Andrew: Art thief on trial stole several Picassos, and the prosecution presented an expert witness, professor of art history, to authenticate the Picassos. Those defense objected on the basis

[1:16:56] that they should have had to produce the museum curator to show, essentially, essentially, chain of custody that those were, in fact, the same paintings that were stolen. Yeah. So we're

1:17:09 Thomas: Going to find out if it's the jumping through hoops objection. Yeah.

1:17:13 Andrew: Assuming that others will testify as to the fact of the burglary, is the court likely to reject this witness as being qualified to authenticate the paintings? Why or why not? You eliminated a yes and a no answer, uh, you eliminated

[1:17:26] C, no, granting the objection will cause the court to have to jump through hoops. We both tried to get through C without laughing and failed. Uh, C is a nonsense answer, good elimination. You also eliminated A yes because artworks and other physical evidence must be authenticated by their official custodian, that's a good elimination, that was not the correct answer, but, um, but I, I will say that the notion of a custodian of

[1:17:51] records as being required to authenticate documents in the chain of custody is, in fact, a key aspect of how one ordinarily admits documents in court. So for example, if you have a civil lawsuit and I have requested emails from the other side, one of the things that I am entitled to do is to depose the IT director who is, know, is responsible for producing the emails to say, okay, how were these emails generated? How are they stored? How did they get to me? Anything that you've sent me is a valid email, you know, that bears these numbers is a valid

[1:18:29] email that was produced off your server, right? Okay, so that's interesting, so why is this wrong? Because I kind of, I

1:18:35 Thomas: Mean, I just didn't like the wording of it, it didn't seem quite right to me, but I, it didn't seem like obviously absurd or

[1:18:41] anything. Well, what would make a, there are two things that make a wrong. The first is the

1:18:47 Andrew: Notion that artworks and other physical evidence must be authenticated by their official custodian. There's

[1:18:54] no specific rule on that, right? Oh, yeah. And also that's an absolute. I could have eliminated on the absolute. Yeah. So, but it is part of ordinary practice when you are talking about producing, you know, business records or other things that have gone through multiple hands, that you look to the custodian of that item or document to talk about, like, okay, how did that get to you? So think about, like, the

[1:19:19] classic example of authentication with an official custodian is, you know, the murder weapon at trial, right? Like, how did that get to you? How did it get into the courtroom here today? Well, you know, the police came in and

[1:19:32] they logged it, uh, and I then put it in a segregated locker and it's locked up and nobody has access, chain of custody stuff, exactly right. So, and that person, it's chain of custody, which you know, from, you know, movies and TV shows, the person in charge of maintaining that is the custodian. So

[1:19:50] so good eliminations on A and C, but, uh, but I did want to kind of opine on that a little bit, that left your choice between B, yes, because an outside person may be able to partially authenticate

[1:20:03] the painting but cannot not say whether it is the one that was in the museum or that was stolen, or D, no Because the authentication can be accomplished in several different ways that will verify it is the genuine piece of art in question. And I'm sad to tell you that your winning streak has come to an end. I saw you, I saw you kind of rethinking after.

[1:20:23] You guessed B. I just wanted to give one to the little people, you know. I just wanted, that's fair, that that is, I wanted, I wanted to show that I too, I too am human and can make mistakes, even though it was a totally intentional mistake. The rule that governs this is Rule 901 of the Federal Rules of Evidence, which provides authenticating or identifying evidence. And it says, in general, to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims that it is. And then there are examples that are non-exhaustive, right? So it says, it actually says, this is kind of interesting, the following are examples only, dash, not a complete list, dash, of evidence that satisfies the requirement.

Typically in contracts you will often see including, comma, but not limited to, and that's the sort of traditional legalese for this. They, they wanted to make sure that there was no ambiguity here, I guess. But those examples include testimony of a witness with knowledge, non-expert opinion about handwriting, comparison by an expert witness or trier of fact, right, and that is a comparison with an authenticated specimen by an expert witness or trier effect distinctive characteristics characteristics and the like, opinion about a voice, evidence about telephone conversation, evidence about public records, evidence about ancient documents or data compilations, evidence about a process or system and methods provided by statute or rule. And I would say three and four there, expert witness comparison and distinctive characteristics, provide the

1:21:56 Andrew: Sufficient basis for the answer of D, which is the authentication can be accomplished in several different ways. Yeah, I really should

[1:22:02] have guessed that. That was bad. That was my fault, guys. Guys, that was definitely not a good guess. You are still doing awfully well, and I'm sure we're going to get right back on the horse. We are well over 500. You're still on your way to passing, and I feel pretty good.

[1:22:20] So sorry about that one. What is this weird feeling, Andrew? I got something wrong. I don't remember. It's been a long time. It doesn't feel good. Good, we only have eight more questions from, uh, this particular bar exam before we have to do the hard one. Yeah, before we move to another set of materials. So I'm really excited about that. Yeah.

[1:22:45] All right, well, uh, future Andrew, hop in your time machine and, uh, rather than doing a

1:22:51 Thomas: Serious Good for the world, tell us who in the future won and got the right answer. Not me, who's

[1:22:58] our winner this? So, Thomas, today's winner is Afifi, who I believe is one of our French listeners at AFIFI94 on Twitter. And Afifi says D, because there's no way Thomas is right 10 times in a row.

1:23:17 Andrew: As good a rationale as any. We had a lot of people between B and D. This was a pretty tough question, question, uh, but, uh, Afifi, who's one of the folks who got it right with D, like the answer. Uh, everyone, let's, uh, let's give Afifi a follow on Twitter, at AFIFI94,

[1:23:36] and congratulations for being this week's winner all right well I'm gonna I'm I've man I'm sorry I let you down

1:23:42 Thomas: Everybody, I'm really gonna have to, uh, this is, this is really along with the, the, this is, this is the, the rookie who a couple years ago, you know, had the touchdown catch and then it's just, as he's crossing the end zone, you know, into that, to break the plane, he just, he dry starts celebrating and drops the ball before

[1:24:02] – that happened a couple times, I think. That happened the last five or ten years. Yeah, well, I was thinking about Ronnie Lott, right, who was hot

1:24:08 Andrew: -dogging and was caught like 30 yards from behind and they punched the football out

[1:24:15] of his hands. But no, you were not. I mean, it's not fair to say you were hot-dogging. Something just, I tripped over my shoelace

1:24:21 Thomas: Just as I was about to, you know, and through no fault of mine, you know, I should have known better, should have tied my shoe, but, you know, that's what happened. Yeah. My fault? Yeah. I'll be back next time. Thanks for listening, everybody. Check us out on the Patron Q&A. Check us out on Law'd Awful Movies, patreon.com/law, you're gonna love it, I guarantee it, and we'll

[1:24:39] see you on Friday. Yes, we, no, no, Thursday for Q&A, well, that too. And

1:24:46 Andrew: Share this episode with uh your friends who listen to Serial who are totally convinced that, you know, Adnan is innocent and it was all the work of two serial killers

[1:24:58] working in concert or whatever. Would love to, would love to be, uh, would love to to be challenged. Yeah, I'm looking forward to being, Andrew's gonna be hit hard, grilled by the patrons, I'm sure, on Thursday. So you don't want to miss it. See you then. Until then, stop breaking the law.

[1:25:16] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, whatever podcast delivery vehicle you use, and be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time.

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