OA392: In the Aftermath of George Floyd

Transcript

Topics of Discussion:

• Derek Chauvin Charges
• Insurrection Act
• Curfews/Yodel Mountain Lightening Round
• T3BE - Question

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 392.  I’m Thomas, that’s Andrew.  How’re you doing, Andrew?

Andrew:         I have to say fantastic, right?

Thomas:         You are contractually obligated, but uh-

Andrew:         I’m excited to do the show, I’m not excited that the world is still on fire, but I am excited to do the show.

Thomas:         Yeah, we can do a little contract law.  You are obligated to say “fantastic,” but at what point has the world become such an act of god or whatever?

Andrew:         [Laughs]

Thomas:         Does the state of things?

Andrew:         [Laughing] Yeah!

Thomas:         At what point can you no longer be held to that?

Andrew:         Force majeure clause!

Thomas:         Yeah exactly.

Andrew:         [Laughs] I don’t have to be fantastic.

Thomas:         I think you just argue, “You Honor,” and then just gestures about the world, “just look at everything,” and then he’d be like “case dismissed.”

Andrew:         Our listeners know that I and the firm have been hard at work on our amicus brief in the Michael Flynn case.  I will tell you; Morgan and I have had to edit out stage directions from the amicus brief on multiple occasions.  [Laughing] You know, “point and shrug.”  There’s so much where you’re just kinda like “neh, look around!”

Thomas:         Yeah, speaking of, little bit of news.  [Laughs]

Andrew:         Yeah, let’s get to it!

Thomas:         Little bit of news.  There’s so much.  We’re gonna talk about George Floyd, we’re gonna talk about the charges were upgraded, I’m very curious to hear.  I don’t know if this was an Andrew Was Wrong?  Or something, but we’ll see what that was.  We’ve got the insurrection act.

Andrew:         [Sighs]

Thomas:         Oh my gosh.  I wish, you know, if we could broadcast this episode back to our 2016 selves-

Andrew:         Yup.

Thomas:         We’d just be like “yeah, no that sounds right.  That’s exactly what we all thought would happen.”

Andrew:         [Sighs]

Thomas:         [Laughing] The insurrection act!  Curfews, roaming militias, let’s see and then we’re gonna do something a little special today which is there is so much and we love our patrons so much that we’re gonna do extra for patrons.  There’s just too much to contain, so we’ll do a little lightening round bonus segment for everybody, because we’re not trying to hide any information from anybody, but then we’ll do an extra patron deep dive into these issues. 

So it’s Rod Rosenstein and we’ve got a Judge Sullivan update, and also you may have seen, a lot of people are posting something about Doe v. Trump/Epstein, I don’t even know what the conspiracy theory is but we’re gonna do a little debunking of that.

So that’s the episode, I know Andrew we’ve got an announcement or two before we get to it?

Andrew:         Yeah, two quick things.  I am very, very excited.  On Tuesday’s episode we’re gonna have an interview with Gabe Roth from Fix the Court and he has uncovered through diligent journalistic exercise interesting information about our favorite judicial nominee, Justin Walker, who I will point out shamefully as of today has been advanced out of the Senate Judiciary Committee on a party-line 12-10 vote.  He is Trump’s nominee for the U.S. Court of Appeals for the DC Circuit, and his criteria include having had his ass kicked in a debate by me and that’s it.

Thomas:         [Laughs]

Andrew:         It’s bad.

Thomas:         Well in fairness, no matter how good a judicial nominee, they still could’ve had their asses kicked by Andrew Torrez in a debate.

Andrew:         [Laughs]

Thomas:         I’m just saying, be fair to-

Andrew:         I’ll be fair, alright.  

Thomas:         [Laughs]

Andrew:         Then you pointed this out to me and I think it is really, really important.  Much of this show is going to be focused on the aftermath of George Floyd.  It would be irresponsible for us not to talk about it, and not to talk about Trump invoking the Insurrection Act of 1807 and all of that other stuff, but it is worth reminding that this is part of Trump’s plan to distract from the fact that he is an incompetent gameshow host who has mismanaged an epidemic that is still raging in this country. 

A) we’re not gonna let him fully distract; and B) if you are participating in protests – and I get it – much of the peaceful protests that I have seen involve people practicing appropriate social distancing techniques.  Please be safe, okay?  We still have a pandemic raging, and the fact that it hasn’t been appropriately dealt with, that we’ve had insufficient testing and tracking and tracing and all of it, yes.  Donald Trump is incompetent at that; we will not forget that.  But take care of yourself, man. 

Thomas:         Yeah.  It is-

Andrew:         It’s hard!

Thomas:         It’s tough.  I wish – obviously I wish we weren’t in a pandemic. [Laughs] I think it’s safe to say, because it would be way better to be able to demonstrate and protest and all this stuff and not worry about that.  I do love the attempt at a “gotcha” where it’s like “Oh, I see!  When we wanted a haircut, then it wasn’t okay to protest!  But now that police are executing unarmed black men [Scoffs] all of a sudden protest is okay, huh?”  It’s like, yeah. 

Andrew:         Yes!

Thomas:         It’s true.

Andrew:         [Laughs] Nothing like when the argument is … yes.

Thomas:         It was stupid that you were protesting that you couldn’t force someone to get coronavirus to give you a haircut, yes, that was stupid.

Andrew:         Right. [Laughs] Yeah.

Thomas:         [Laughs] We agree, okay.

Andrew:         Case closed!

Thomas:         Okay, let’s get to our show.  Good reminder there, let’s get to our first segment.

[Segment Intro]

Derek Chauvin Charges

Thomas:         So, yeah, this was surprising.  You had me and the audience I think, for the most part I’m sure, convinced that the murder 3 – third degree murder-

Andrew:         Uh-huh.

Thomas:         -charge was appropriate for Chauvin and then all of a sudden it was upgraded to a 2 and the other officers were either charged or said they were gonna be charged, I think.  Were they charged?  Yeah, they were.

Andrew:         Yes.  Three other officers have now been charged with aiding and abetting.

Thomas:         So what gives?  Is this an Andrew Was Wrong segment?

Andrew:         I do not believe that I was wrong on the underlying point, which is the murder 3 charge was appropriate.  There is an area where I was a little bit potentially wrong?  But I still stand by my analysis so put a pin in that, we’ll get to it.  There’s so much to cover here, and I love the way you phrased it because this is an area that the press has already started to get wrong.  You used it, the word was “upgraded” the charge from murder 3 to murder 2, and that’s not true.

Thomas:         Hmm.  Okay, Thomas was wrong, sorry.

Andrew:         In the sense that “upgrade” – no no no no!  It’s everywhere.

Thomas:         I remember you saying the punishment, the sentence seemed to go in that order, though.

Andrew:         Oh, it sure is.  What I take issue with is the word “upgraded,” which imply- when I upgrade my car, I turn in the previous one and I get a new one.  I have seen news outlets that say-

Thomas:         Are you adding it?

Andrew:         Yeah.  Murder 2 has been added as a charge.  I’m gonna explain the significance of that, I’m gonna explain the potential downsides of that in a minute.  I’m gonna explain the bases therefore from the charging statement.  But let’s go through all of it, let’s work through this systematically.  I’m gonna talk about the area where I think I was not wrong, even though it puts me on the opposite side of Laurence Tribe who is maybe the smartest lawyer in America.  For whatever it’s worth, our buddy Devin Stone, the Legal Eagle, agrees with me, [Laughing] so we have two lawyer content creators on one side-

Thomas:         But we’ve got the better-looking side, everybody!

Andrew:         [Laughs] That is true.

Thomas:         Take it!

Andrew:         That is true.  Alright!  I’m gonna upload the amended charging statement.  It charges Derick Chauvin with three counts of criminal acts now.  First is murder 3, which we’ve covered on our bonus episode, 390.5.  Again, that is count two but I don’t need to analyze it because we analyzed that in depth.  That remains a viable count against Officer Chauvin.  Show-vin?  I don’t know how to pronounce it; I don’t care how to pronounce it.

Thomas:         Officer Chauvinist, I’m pretty sure.

Andrew:         [Laughing] Yeah, right? 

Also retained as a count is count three which is 2^nd degree manslaughter, and 2^nd degree manslaughter under Minnesota rules – under the Minnesota Code – is (quote) “culpable negligence creating an unreasonable risk” and then the charging statements says “he consciously took the chances of causing death or great bodily harm to another, George Floyd.”  That’s a no brainer.  In terms of including lesser included offenses, I cannot imagine any jury, no matter how Minnesota, failing to convict on 2^nd degree manslaughter in this case.

Thomas:         Well I’m glad you say that, because part of what I was gonna say briefly on this was I’m all for charging whatever we can but I really am not celebrating anything until we get a conviction.

Andrew:         That’s right.  Part of what we talked about in the bonus episode, 390.5, was the strategic presentation of charges to the jury.  I made the argument, at the time-

Thomas:         Yeah.

Andrew:         -and I stand by it, that-

Thomas:         You don’t wanna overplay your hand.

Andrew:         That’s exactly right.  Almost immediately after our episode came out, Laurence Tribe wrote an op-ed in the Boston Globe.  I’m gonna link that in the show notes, you’ve probably read it, which says that Minnesota’s prosecutor – in fact let me read from it directly:

(Quote) “By filing a third-degree murder charge against Derek Chauvin that a judge is likely to dismiss, the county prosecutor in Minnesota is setting the stage for a miscarriage of justice.”

Thomas:         Mm-hmm.

Andrew:         I need to tell you, as I have researched for this show, I am increasingly convinced that that statement is wrong as a matter of law.  Again, I swallow hard before disagreeing with Laurence Tribe.  He’s been practicing law at a higher level than my intellect for longer than I’ve been alive, okay? 

Thomas:         So let me get this straight, is he saying not even, not even murder 3? 

Andrew:         He is saying that the conditions of murder 3 are such that if that were the topline offense, Derick Chauvin and his attorneys would be able to move to dismiss the indictment at trial and then would walk. 

Thomas:         Well then what charge does he think is appropriate?  Just the manslaughter one?

Andrew:         No.  He thinks that the murder 2 charge is appropriate.

Thomas:         Oh.

Andrew:         Which we’re gonna talk about.

Thomas:         Oh interesting.

Andrew:         Right.

Thomas:         Okay.

Andrew:         So, the argument that Tribe made was don’t charge him with murder 3, charge him with murder 2.

Thomas:         And only murder 2?

Andrew:         And only murder 2.

Thomas:         Okay.

Andrew:         I think that’s wrong with respect to murder 3, and I’m gonna talk about the decision that Minnesota Attorney General Keith Ellison made to add murder 2. 

Let’s first talk about murder 3.  Let’s set up Tribe’s argument.  He says “There is just too much well-settled precedent in Minnesota dealing with the inapplicability of third-degree murder charges where (quote) ‘all the blows were directed towards the victim’” (end of quote).

Thomas:         Hmm.

Andrew:         That is hyperlinked to a 1980 Minnesota Supreme Court opinion called State v. Wahlberg, 296 N.W.2d 408.  That is-

Thomas:         Johnny Wahlberg?

Andrew:         Roy Eric, not Marky Mark or Donny.  While that phrase appears in the Wahlberg decision, I’m about to explain to you why it is 100% not applicable here, particularly not applicable here in support of a motion to dismiss, which remember was the predicate argument.

Thomas:         That’s a high bar.

Andrew:         Yeah.  Here’s what the Wahlberg decision says.  It says the Minnesota third-degree murder statute, (quote) “was intended to cover cases where the reckless or wanton acts of the accused were committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.”

Here's how I read that statement.  I read that statement as confining the universe of intent under murder.  If you have special regard to kill the victim, that’s murder 1!

Thomas:         Right.

Andrew:         That is a deliberate intent to kill the victim, and if you don’t but nevertheless you have acted in a reckless or wanton way which has resulted in the death of a human being, that then falls under murder 3.  Murder 2 we’re gonna talk about in a minute.  But in other words, it makes sense as you are defining the various degrees of murder, you want the definition of murder to cover all intentional acts that result in the death of a human being, and as you are differentiating between them you differentiate between premeditation, lying in wait, and everything else.  In fact, as we talked about on the bonus episode, that’s how most states do it.  Most states just divide that up into murder 1 versus murder 2, Minnesota’s a little confusing.

So I had read the Wahlberg case before we recorded our bonus episode.  That did not strike me as a particular obstacle.  Professor Tribe interprets Wahlberg as saying because Officer Chauvin was kneeling on George Floyd, that his blows were directed toward George Floyd and not toward a group of people generally, and therefore that’s precluded under the Wahlberg case.  I don’t think that’s the correct reading of Wahlberg.

Thomas:         Okay.

Andrew:         In Wahlberg, again 1980 Minnesota Supreme Court case, you had a defendant who was convicted of murder 1.  The prosecutor in that case only charged murder 1.  Why did they do that?  Same reason we talked about.  The prosecutor basically said hey, it’s all or nothing to the jury, I’m not going to give you the opportunity to vote to convict on a lesser standard.  If you think there was not premeditation in this case then let this guy go free. 

That is a prosecutorial tactic that is employed sometimes, to say yeah, I’m not gonna let this jury split the baby on a case that is something other than a sniper kind of lying in wait.

Thomas:         Hmm.

Andrew:         On appeal the defendant in that case said the prosecutor was required to also charge murder 3.  Make sense?

Thomas:         Uh, sorry, why?

Andrew:         Does the argument at least – right.  [Laughs] So on appeal of that conviction for first-degree murder, the defendant, Wahlberg, said-

Thomas:         Donny.

Andrew:         [Laughing] This conviction is inappropriate because the prosecutor should have also charged-

Thomas:         Should have allowed the jury to-

Andrew:         Should have allowed the jury to convict for third-degree murder.

Thomas:         Interesting.

Andrew:         That’s right, yes. 

Thomas:         Hmm.

Andrew:         And the Minnesota Supreme Court said no, this was an acceptable act of prosecutorial discretion.

Thomas:         Yeah.

Andrew:         In evaluating that prosecutorial discretion, they gave the intent that I just described for you, and then they say- so that’s the general principle, right?  The intent is third-degree murder covers cases where the reckless or wanton acts were committed without special regard to their affect on any particular person or persons.

Then they continue: “In the instant case, the decedent suffered many brutal blows. While this fact certainly indicates a mind without regard for human life, the evidence suggests that all the blows were directed toward the victim.”  Then there were other people involved, so they go on to say “the inside of the car was not slashed, nor was evidence presented that any of defendant's companions in the car were concerned for their own safety. Furthermore, there was ample evidence to support a finding of an intentional killing, whereas third-degree murder is an unintentional killing.”  (Then there’s a citation).  Then therefore not giving the jury third-degree murder in this particular case was an appropriate exercise of prosecutorial discretion and an appropriate set of instructions to the jury.

They did not have to say “by the way you can convict this guy for a lesser offense if you want.”  That’s all Wahlberg stands for.

Thomas:         Hmm.  Well I mean he also was in New Kids on the Block, I think.

Andrew:         [Laughs] Yeah, right.  That is a capital offense in most states but not Minnesota. 

Thomas:         It’s unfair to say that’s all he stands for, but okay.

Andrew:         [Laughs] The other case that uses similar language is a bit more recent.  It is a case called State v. Barnes, it’s from 2006.  Again, it uses some of this language, but it occurs in the context of how charges are presented against a criminal defendant. 

In 2006 Charles Ray Barnes was convicted of first-degree murder under the amendments that we mentioned but alighted over that included as first-degree murder, murder arising out of domestic abuse of your spouse.  We alighted over it because obviously doesn’t apply in the George Floyd case.  Barnes’ argument here is very technical and I wanna take just a little bit to unpack it a little bit.

Basically, what he challenged and lost on is he said look, you can’t add domestic abuse to murder 1 because it impermissibly overlaps – that’s the legal term – with the existing third-degree murder statute.  If you have the same behavior could now be charged under both statues that creates an equal protection violation by singling out domestic abuse murder from other similar murders that are all included in murder 3. 

That was the argument.

Thomas:         Sorry, is there something wrong with singling out a domestic abuse murder?

Andrew:         No. 

Thomas:         Don’t laws always do that?

Andrew:         [Laughs] That argument is bad anyway.

Thomas:         Oh, okay.

Andrew:         Let’s go down that rabbit trail so we can dispense with it really easily.  He quotes from a commentary by Wayne LaFave, which describes the overlapping statute argument and says that it is objectionable under the equal protection clause to have statutes overlap but carry substantially different penalties.  The example he gives is possession of a gun by a convicted felon, illegal alien, or dishonorably discharged serviceman as a misdemeanor, whereas possession of a gun by a convicted felon, fugitive from justice, or unlawful user of narcotics is a felony.  In other words, the element of possession of a gun by a convicted felon would then be in two separate statutes-

Thomas:         Hmm.

Andrew:         -where the elements are exactly the same.  This is why I said it was really, really technical, and again not good in this case [Laughs].  The argument is not that you can’t punish possession of a gun by a convicted felon differently than everybody else, you can.  You can say hey, if you have an illegal firearm and no criminal history it’s a misdemeanor, if you have an illegal firearm and you’re a previously convicted felon it’s a felony.  That absolutely passes rational basis, that’s not a problem.

The problem is when your laws are ambiguous and include the same classification in two separate statutes which carry disparate penalties.  That technical argument – LaFave’s argument, is not an inherently terrible argument.  That argument says yeah, if you have duplicative elements in two separate statutes then it’s super easy, that gives too much discretion to prosecutors.

Thomas:         Hmm.

Andrew:         They can now say hey, we could charge you with this or we could charge you with that, the elements are exactly the same, here’s how we’re gonna lean on, or here’s how all of a sudden we do a statistical analysis and we find out that – as almost certainly would happen – all of the African American former felons-

Thomas:         Yeah.

Andrew:         -are charged under the felony statute whereas all of the white former felons are charged under the misdemeanor statute.  You can see how in the abstract that kind of overlap might invoke equal protection.

Thomas:         Okay, so it’s not like de facto wrong, hypothetically.  If there was an overlap but they were charging people with some sort of rhyme or reason or just randomly would that be constitutional or is that still a problem?

Andrew:         That would depend upon the application of that particular case.

Thomas:         But the key is the application.

Andrew:         It wouldn’t be automatically wrong.  That’s exactly right.

Thomas:         Yeah, okay.  Gotcha.

Andrew:         In fact, LaFave has a bunch of different categories and they range from unobjectionable, presenting a hard case, highly objectionable.  Even highly objectionable doesn’t necessarily mean unconstitutional.

Emerging from that rabbit trail, Barnes’ argument was this impermissibly overlaps because the same domestic abuse could be charged under third-degree murder, or under first-degree murder.  The Minnesota Supreme Court said that’s not a great argument.  [Laughs]

Thomas:         [Laughs]

Andrew:         They said domestic abuse murder is more specific, applies to only a specific group of defendants who caused the death of a specific group of victims.  Domestic abuse murder applies only to defendants who have “engaged in a past pattern of domestic abuse upon the victim.” Then goes on to say depraved mind murder can apply to any person as the victim. 

Then they quote from Wahlberg.  They say: “The statutes can also be distinguished because the mens rea (requirements) have a different focus. Domestic abuse murder requires that the extreme indifference be directed at the specific person. Depraved mind murder, on the other hand, cannot occur where the defendant's actions were focused on a specific person.”

Thomas:         Hmm.

Andrew:         Again, you read that sentence, and this is how this came about.  You read the sentence “depraved mind murder cannot occur where the defendant’s actions were focused on a specific person” and you say oh, well here yeah, Chauvin’s actions were obviously focused on a specific person, George Floyd, therefore they’re precluded under Barnes and under Wahlberg.  But I think the minute you unpack what that means you see that it is in fact not the case.

The question of focus on a specific person is to be read in the mens rea requirement, and if they were focused on a specific person then absolutely 100% Chauvin would be guilty of first-degree murder.

Thomas:         Ah.

Andrew:         That, by the way, leads to another rabbit trail that – it’s not even a rabbit trail.  Something that I want our listeners to be on the lookout for.  The rabbit trail is we have talked about the incorporation doctrine before, how various protections from the Bill of Rights have been incorporated out to the states like the 1^st Amendment.  It says Congress shall make no law, but thanks to the operation of the 14^th Amendment that also means your state legislature can pass no law abridging the freedom of speech.

One of the only rights that is explicitly not incorporated out to the states is the right to be indicted only upon an indictment handed down by a grand jury, your 6^th Amendment right to a grand jury.  The reason is … complicated, but basically there’s a lot of literature that says “we’re not sure how valuable that is anymore.”

Thomas:         Hmm.

Andrew:         States are free to use alternative procedures in terms of how they charge individuals with serious crimes.  In Minnesota the Attorney General or the line prosecutor may file charges against you without a grand jury for second and third-degree murder, but may not file first-degree murder charges without an indictment handed down by a grand jury.  We do not know if a grand jury has been empaneled in this case.  We do not know if they are considering the evidence.

If you want to charge Officer Chauvin with first-degree murder that requires a grand jury indictment, and they may be considering the evidence while we speak.

Thomas:         Well, okay.

Andrew:         If they do you would amend.  Yeah.

Thomas:         You’ve got us – we’ve already got from third to second, how would we get to first-degree?  That one seemed really specifically not-

Andrew:         It does.  Again, I’m not saying that they will.

Thomas:         I don’t want anybody to misunderstand, it’s not that I don’t want this guy to rot in jail, it’s just that it didn’t seem like the specifications of murder 1 fit.

Andrew:         I think that’s right.  It goes back to what we said during the bonus episode, which is when you present murder 1, 2, and 3 to a jury, that makes it easier for the defense.  They can put on more evidence now that makes it harder for you to tell a clean story of proof beyond a reasonable doubt to your jurors.  That is the flip side. 

But I will tell you, if you are persuaded by Tribe’s argument, if you think it is obvious that the kneeling was (quote) “with special regard” to George Floyd, then the way in which you prosecute for that offense is first-degree murder.  That would then encompass the entire universe.  I think you don’t have to, and the fact that you don’t have to – this sort of gets to the bottom line – is why all of this, as dicta, in first-degree murder cases, absolutely would not serve as the basis for a motion to dismiss the third-degree murder charges or even a basis for a jury instruction in these cases.  Because failure to prove a higher standard of intent is, as a hornbook principle of criminal law, not a basis for dismissing a lesser charge.

Thomas:         Hmm.

Andrew:         In other words, these cases all arose in the context of someone who was found guilty by a jury of first-degree murder saying “oh this should have been third-degree murder” and the court saying well, no, because they’re different.

Thomas:         Uh-huh.

Andrew:         But it doesn’t work in reverse.  If the statute says anyone who negligently causes the death of another is guilty of manslaughter, and I prove that you intentionally caused the death of another, well intentionally includes negligently.  You cannot intend to do something without also being negligent about it.  Failure to charge somebody with the highest degree of the mental state that you then ultimately prove at trial has never, ever been a basis for a successful motion to dismiss at the trial court level of charges directed against someone. 

At minimum you would say yeah, well let’s let the jury find out and decide how these blows were directed and whether it was intentional or not and what the appropriate penalty is and whether those charges will include first-degree murder or not.  We’re still waiting, there may be – grand jury proceedings are secret and confidential so we just don’t know.  There are strategic reasons not to present that argument that we talked about on the show, but I stand by – and I think Keith Ellison as the Attorney General of Minnesota agrees with me – that third-degree manslaughter is an appropriate offense here.

So now that gets to the second half of the argument.  They’ve added second-degree murder.  Why did I exclude that and is it appropriate here? 

Thomas:         That’s the question!

Andrew:         Yup.  So, here’s the thing that I was wrong on.  I excluded it because I thought, on the basis of well-settled law in virtually every state in the country, that felony murder was not appropriate here.  As it turns out, Minnesota is super-duper weird.  To be clear, while the second-degree murder statute has a number of different sub criteria in it, the count one that was added to the amended statement of charges says that “on or about May 25^th, Derick Michael Chauvin caused the death of a human being, George Floyd, without intent to affect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct, namely assault in the third-degree.”  (End of quote).

In other words, they have added felony murder as a second-degree murder.  I’m about to explain why I dismissed that out, but maybe – I’m actually curious.  Maybe you can intuit the reasons why I dismissed that out? 

Let’s unpack it.  That offense says that Officer Chauvin was committing a felony – that was third-degree assault – by kneeling on the neck of George Floyd, that then resulted in the death of George Floyd.  I’m gonna give you some time to think about that by unpacking what felony murder is.  We talked about that in our bonus episode, but a quick recap is always useful. 

I explained felony murder in the context of you and I robbing a 7-Eleven.

Thomas:         Right.

Andrew:         By the way, 46 states have felony murder laws, and felony murder from a legal standpoint requires two things.  It requires one, an underlying felony; and two, a resulting death.  Here’s the textbook case about how you learn about this in law school that I was going by on our Saturday night recording.  You and I rob the 7-Eleven.  A cashier goes to hit the silent alarm, I shoot him to stop him from hitting the alarm, and then you, Thomas, can be charged with felony murder.

Thomas:         Yeah, I’m really pissed at you because I’m like gosh, I remember this from the bar exam, why did you do that?  Now I get charged?  That’s how our robbery would go, and then we’d probably argue.

Andrew:         That’s right, we would be standing there arguing and then the police would show up.  Obviously not a problem-

Thomas:         I’m glad you’re here!  Settle an argument for us! [Laughs]

Andrew:         [Laughs] Obviously not a problem charging me with murder.  I get charged with, again, in most states, second-degree murder, or in Minnesota third-degree murder, which is hey, I intended to shoot the cashier, I didn’t premeditate it but I intended the acts that led to him getting shot by me, I was the trigger man.  Super easy to convict me to murder.  They can also convict you for murder because you intended the robbery, and the robbery is the underlying felony, which then as the result of the robbery resulted in the death of a person, which was the cashier.

Now as you go to apply the 7-Eleven analogy to what actually happened to George Floyd you run afoul of a doctrine called “merger.”

Thomas:         Huh.

Andrew:         Here’s the general principle, which we’ve discussed on the show before.  The general principle is that lesser included offenses merge into the greater offense.

Thomas:         Right.

Andrew:         Obvious example of that, if I murder someone that murder is technically a battery, it’s an offensive touching.  It’s an assault, it’s an attempted murder, and it’s a murder. 

Thomas:         Mm-hmm.

Andrew:         I have fulfilled all of the elements of those underlying crimes.  I have undoubtedly caused fear to the person, I have hurt them, I intended to kill them, and then I actually killed them.  But you couldn’t convict me on all four of those for the single act of murder.  The lesser included offenses all merge in to the murder.  Makes sense?

Thomas:         Gotcha.

Andrew:         Yeah.  In felony murder cases, that has a particular quirk of how it’s applied.  That quirk works like this:  it says that the underlying felony – remember that’s the first thing you need for felony murder – the underlying felony cannot be an assault that was the cause of the death. 

Thomas:         Hmm.

Andrew:         Here’s how one court put it.  It says you must display a collateral and independent felony that is separate from the resulting homicide, and the underlying felony must be an independent crime and not merely the killing itself.  Why is that?

Thomas:         Well because the felony or the assault or whatever that’s included in the crime itself, that would apply to any of the murders, right? 

Andrew:         Oh, I am so proud of you!  Yeah, that’s exactly right and more so.  Without the merger doctrine, now whenever there’s an assault, there’s a murder.  Whenever there’s an assault that results in death.

Thomas:         Yeah, gotcha.

Andrew:         So, whenever there’s felony assault, if somebody dies, that’s now automatically murder and automatically felony murder.  Think about this in practical terms.  That means you and I are hanging out after a live show and we get into an argument over a bar exam question and we get in a fist fight.  We both intend to punch each other.  We’re both guilty of assault.  But then there’s a confluence of events where you trip and fall and hit your head and you die as a result of the fist fight.  I didn’t intend to kill you, I intended to punch you.

Thomas:         I died doing what I love! 

Andrew:         [Laughs]

Thomas:         Getting hearsay questions wrong!

Andrew:         [Laughs] Oh I thought you were gonna say “punching Andrew.” 

Thomas:         [Laughs] No!

Andrew:         That would be a weird way to die doing what you love.  No, you want to – our criminal statutes distinguish between assault and murder.  You would not want to have all assaults that result in death automatically become murders.  In fact, go back and quote – this is the California Supreme Court, but I could have quoted this from anywhere, this is just a sort of hornbook law. 

“A homicide requires an assault, so without the doctrine of merger every felonious assault ending in death would automatically be elevated to murder.  Treating felonious assault as the predicate offense would usurp most of the law of homicide, relieving the prosecution of the burden of having to prove malice in order to obtain a murder conviction.”

Yeah, again, wrap that all together.  All the time people argue and fight, they intend the assault, they don’t intend to kill anybody.  That’s why I dismissed felony murder applying to Officer Chauvin, because the underlying offense is the assault that lead to the murder in and of itself.

Thomas:         Yeah, so it has to be some other felony that he was doing at the time.

Andrew:         Right.  Exactly.

Thomas:         Okay.

Andrew:         Except … not in Minnesota.

Thomas:         Oh!  Really?

Andrew:         Minnesota is one of a handful of jurisdictions that does not recognize the merger doctrine in felony murder.  Here [Sighs] I have to tell you – again this is painful to me.  I want you to know, Laurence Tribe is an ally, he is brilliant, he is smarter than I am, he’s a better lawyer than I am.  I think this is a little bit of slight of hand, I think this is a little dishonest.  Here’s what Tribe says in his article.  Again, I’ll link it in the show notes, you can decide if you think it’s misleading.  I think it is, and it hurts me to say that.

He says “Under a quirk in Minnesota law, second-degree murder can be charged where an assault — such as the first-degree assault evident from Chauvin’s placement of his knee on Floyd’s neck for nearly nine minutes — unintentionally results in death.” 

Hyperlinked from “quirk in Minnesota law,” is a 2018 law review article by Greg Egan, who is a professor at Mitchell Hamline law school in Minnesota.

Thomas:         Hamlin, Hamlin, McGill?

Andrew:         [Laughing] Yeah, exactly!  There’s an “E” on the end of it so maybe I should say ham-line instead of ham-lin. 

That law review article argues, forcefully and in my view persuasively, that the Minnesota courts should judicially adopt the merger doctrine.  Calling it a “quirk” is misleading.  It certainly is, it’s certainly not common.  It also not a thing that if you are a liberal commentator, you should be cheering on because this makes it easier for prosecutors in Minnesota on a day to day basis to trump up assault charges and turn them into murder charges. 

Egan’s law review article very persuasively points out that Minnesota’s refusal to recognize the merger doctrine stems back in large part – almost all of the cases and I have now read or reviewed all of these cases in prep for today’s episode.  They all cite back to a case called State v. Loebach, from 1981, and here’s the entirety of what State v. Loebach says.

It says, “Appellant's argument, that the submission of the third-degree murder charge was improper because the ‘merger doctrine’ prevents the use of aggravated assault as an underlying felony, is an argument which has been made countless times by other defendants and rejected each time by this court.” (There’s a citation to 1979 decision).  “Appellant has not persuaded us to stray from such precedent.”  That was it.  That was 1981.

Egan then summarizes the law correctly by saying “substantive discussion of the merger limitation is scant in any published Minnesota cases in the wake of these decisions from the late 70s through the mid-80s.”  Then ultimately he argues “it’s time for the Minnesota courts to judicially adopt the merger doctrine” because the refusal to do so is based on really conclusory statements from cases, the earliest of which are nearly 40 years ago.

The public policy argument is the one that I’ve made.  Failure to adopt the merger doctrine essentially turns every aggravative assault with a death into felony murder and can be wielded disproportionally for exactly that same overlap argument that we spun out ten minutes ago. 

Again, I was- this is a very, very long 40-minute segment to say I was wrong to assume that Minnesota had applied the merger doctrine in felony murder cases and to say okay, so you can’t charge Derick Chauvin with felony murder in this case.  I was wrong because I thought their law was sensible, and it’s not.  [Laughs] But I think I’m not wrong in- we will all cheer on Chauvin getting the highest penalty he can get under the law.  This was horrible and awful and he needs to be brought to justice, but part of what we try and do on the show is talk about the systemic factors. 

If this leads to Minnesota unambiguously and proudly embracing the lack of applying the merger doctrine in felony murder cases, I’m not sure that that’s a win for us.  That’s my rather lengthy analysis.

Thomas:         Yeah, so I guess I’m not entirely clear on-

Andrew:         Mm-hmm?

Thomas:         On one hand you’re arguing against Laurence Tribe who said not murder 3 but murder 2, but then we also – Keith Ellison charged the officer with murder 2.  How do you reconcile those two things?  I guess I don’t understand.

Andrew:         Look, Keith Ellison brought the highest topline charge that he is empowered to bring.  As a prosecutor and for a district court, they will be bound by the prior decisions of the Minnesota Supreme Court as precedent.  They’ve gotta follow what the law is in Minnesota.  It is entirely appropriate – and this is good even though you’re making me confess to more error.

Thomas:         [Laughs]

Andrew:         It is entirely appropriate under Minnesota precedent to bring felony murder charges in this case.  However, two things: Number one, the precedent that makes that possible is, in my view, bad public policy and not great law; and number two, as a result of that there is a non-zero chance, supported by plenty of liberal scholars like Greg Egan, that if Chauvin is convicted by a jury of second-degree murder that on appeal 100% one of his arguments on appeal will be “this court should adopt the merger doctrine and overturn its prior decisions holding that merger is inappropriate in felony murder cases.”  In my view, there is a non-zero chance that the Minnesota Supreme Court could take that route. 

When we are looking at the universe of possibilities, I disagree with the assessment on the risks of charging murder 3.  I went through that in great detail.  And I think this omits the serious risk of charging under murder 2, which are those two points that I just made.

Thomas:         Gotcha.

Andrew:         Yeah, not a great thing.  And B, the Supreme Court could overturn that, could say yeah, we’re gonna start applying the merger doctrine beginning with this case.

Thomas:         So, the only way that this murder 2 was even charged is because of this weird merger…

Andrew:         Correct.

Thomas:         Thing not being in effect.

Andrew:         That is word for word what is in the charging statement.  I read it to you.  He is charged with second-degree murder as felony murder.  Unintentional while committing a felony.

Thomas:         And the felony being the attack.

Andrew:         Exactly, being the assault itself.  The question is can that be the basis for felony murder?

Thomas:         Just to be clear, the reason you said that that wouldn’t work at the outset was because in virtually any other state-

Andrew:         It would not.  That’s correct.

Thomas:         Alright.

Andrew:         Again [Laughs] you’re making me say this three times!  I was wrong on that as a matter-

Thomas:         No, I really am just trying to make sure I understand what in the world’s going on with this, I’m sorry.

Andrew:         I was wrong on that as a matter of Minnesota law.

Thomas:         Gotcha.

Andrew:         And that’s why. 

Thomas:         Okay.

Andrew:         Fair, I gotta own up to it.

Thomas:         So, should we get to item number two?  [Laughs]

Andrew:         Yeah!  Let’s do that! 

Thomas:         Sub item number two in our main segment number one. 

Andrew:         Yeah.

Insurrection Act

Thomas:         Trump invoking the insurrection act.  That sounds good, sounds cool.

Andrew:         [Sighs] Yeah.

Thomas:         How’s that gonna go?

Andrew:         So this is the Insurrection Act of 1807.  Again, I want to put this in the larger context of this administration’s unprecedented war on the press.  Let’s talk about the application of that. 

The last time we talked about this was in episode 72 back in 2017 involving Montana congressional candidate Greg Gianforte, who body slammed a journalist, Ben Jacobs of The Guardian.  Then the next day won election to congress.  He pled guilty to assault and he was reelected in 2018 by, admittedly, by a five-point margin, 51-46.

Thomas:         Did he body slam another journalist?  I wonder if he figured oh, this is my ritual now.  It’s my good luck ritual.

Andrew:         You make the joke, it was a matter of public record at the time that various conservative newspapers in Montana pulled their endorsement of Gianforte, that he is engaged in systematic behavior to try and intimidate the press, the most disturbing of which was pointing out in a campaign meeting to a journalist (quote) “you’re outnumbered in this room” (end of quote).  Uhh… yeah. [Laughs] You say did he go out and celebrate by body slamming more journalists?  Kind of.  It’s disgusting, this would be instantly disqualifying even in Montana at any point prior to the Trump presidency.

In connection with the George Floyd protests, I know of at least two incidents right now in which journalists have been explicitly targeted by militarized police.  There are-

Thomas:         There are tons.

Andrew:         Tons more.  Linda Tirado was shot in the eye with a rubber bullet and is now blind in that eye.  It caused her cornea to explode and she’s blind in that eye.  In Lafayette Park in DC, relatively close to where I live, you can watch video of, again, Capitol police with Lexan riot shields walking down the street, turning to an Australian crew – it was 7 News Australia – and slamming the shield first into the camera and then into the journalist.  It’s … [Sighs] yeah.  This is not the way a country’s supposed to operate.  This is not the way a free country is supposed to operate.

As a result of violence being perpetrated by local police on peaceful protestors, Donald Trump says he’s going to use the Insurrection Act of 1807 to deploy military forces to various cities.  A couple of questions here, there’s the “can he do that?” “Does he need to get the permission of the local authorities?”  Then “if he does it anyway will the courts do anything to stop it?”

Thomas:         [Laughs]

Andrew:         I have been through the insurrection act, which again, 213 years old at this point.  It’s been amended a couple of times, so it no longer reads in the delightful old-timey English with which it was initially enacted.  It has been moved several times in the U.S. Code, which is super fun when you’re looking for cases, by the way – put a pin in that one.  It is now found in 18 U.S.C. §§ 251-255.  I’m gonna talk about those briefly.

I wanna answer the first question – or I guess this was the second question.  The provisions that Donald Trump is likely to invoke do not require the consent of the state or the city in which federal troops or other resources are to be sent.  There is another section, § 251, that does require the state’s consent but that’s not what Donald Trump is gonna invoke.  He’s going to invoke either 252 or 253.  Spoiler alert, I don’t think either of these justify Trump’s use of the military in these cases, but this is what his argument will be predicated upon.  I don’t steelman Donald Trump, but we will talk about the argument that he is likely to make in a minute.

So 252 says “Whenever the President considers that unlawful obstructions, combinations, or assemblages,” (so that’s the one theory) “or rebellion against the authority of the United States,” (that’s the other thing).  So you have to have one of those two things – unlawful obstructions, combinations, or assemblages or rebellion against the authority of the United States, “make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”  That’s 252.

If you’re thinking “boy, peaceful protests don’t seem to fall into either of those two categories, you are 100% correct.  They do not. 

Thomas:         I was more distracted by the state – he’s calling the state military?  Maybe I didn’t understand.

Andrew:         Yeah, it means he can use the National Guard.

Thomas:         Right, but-

Andrew:         Yeah.  He may nationalize the National Guard.  Ordinarily the Maryland National Guard reports to the governor of Maryland.

Thomas:         Oh.

Andrew:         The question is can Donald Trump call up the National Guard and federalize the National Guard in order to use those elements in quelling the insurrection in Baltimore if he so designates?  The answer under 252 is you can do that if you have one of those two things.  If you have an unlawful assemblage, or an outright rebellion against the United States such that it is (quote) “impracticable to enforce the laws of the US in court.”  You don’t have that!

Thomas:         Can I just say that the argument for this?

Andrew:         Mm-hmm?

Thomas:         Is less bad – seems to me less bad than many other bullshit arguments we’ve had to accept out of the Supreme Court?  Now I’m kinda nervous.

Andrew:         I share your concern.  I share your worry, and we’ll get to that.  Look, it seems to me you can say “less bad than some of the arguments” but still, not a great fit for peaceful protests being knocked down by cops in body armor. 

There is also 253, which again is not a fit but requires more to unpack.  Again, I’m not in the habit of giving advice to the President’s lawyers.  In my view they’re likely to invoke both of these sections and sort of throw everything at the wall and hope something sticks. 

Thomas:         And it will.

Andrew:         [Laughs] Thanks Negatron.  253 says “the President, by using the militia” (that is the National Guard) “or the armed forces, or both, or by any other means,” (I have no idea what that means and neither does any case law) “shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it” and then I’m gonna do the criteria, but again let’s parse through the first thing.  What he’s gonna do is use the armed forces to suppress domestic violence.  That’s going to be the language.  If that domestic violence:

“(1) so hinders the execution of the laws of that State … that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right.” That’s all part one.  Or:

“(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”  In any situation covered by the first clause, “the State shall be considered to have denied the equal protection of laws secured by the Constitution.” 

That’s a lot, let’s unpack all of that.  Almost every time that the Insurrection Act has been invoked by Presidents in recent memory it has been invoked by section one.  In particular, by Presidents Kennedy and Johnson during the civil rights struggles of the 1960s.  But dating back to 1871, President Grant sent troops into several counties in South Carolina to suppress Ku Klux Klan violence.  Eisenhower used it at the start of the Civil Rights Movement.  In 1961 President Kennedy utilized his power on four separate occasions to order the National Guard to remove obstructions of justice in the state of Mississippi, in 1963 in Alabama and so on.  That was in connection with, as you might be thinking “hmm, what happened in 1963 in Alabama?”  That was Supreme Court orders requiring integration of public schools.  That was in light of Brown v. Board of Education. 

You remember George Wallace standing at the University of Alabama throwing his arms open and saying “segregation now, segregation forever.” 

Thomas:         [Mumbling]

Andrew:         So Kennedy used the Insurrection Act to send Alabama National Guard units down to the University of Alabama to remove George Wallace and allow African American students to attend the University of Alabama.  That’s how this is supposed to be used.  That’s not how Donald Trump intends to use the Insurrection Act. 

The closest analogues that I can find are, again, Republican presidents George W. Bush, Senior, used the-

Thomas:         H.W. Bush?

Andrew:         You are correct, I am wrong, we’ll leave that in there.  This is an Andrew Was Wrong episode, yeah.  [Laughs] George H.W. Bush invoked the insurrection act on two occasions.  One was in connection with the Rodney King riots in Los Angeles.  That was Executive Order 12804 and Proclamation 6427.  In that case the Republican governor of California said that domestic violence and disorder conditions exist in and about the city and county of Los Angeles and that available law enforcements are unable to suppress such acts of violence and restore law and order and therefore federal assistance was sent in.  The underlying Proclamation 6427 specifically requested federal assistance in suppressing the violence and restoring law and order in the affected area.

It was also used in 1989 in the wake of Hurricane Hugo in the U.S. Virgin Islands to suppress violence and restore law and order.  Neither of those mention a request by the governor of the U.S. Virgin Islands. 

That’s the precedent that you have.  Again, I think that it is distinguishable and I think that it is distinguishable on the grounds that condition one requires that the people against whom you are deploying the troops are violating the equal protection of the laws which is clearly not happening here.  Condition number two requires that the violence be something that the local authorities are unable to comply with, to mobilize sufficient resources.  That would imply, if not outright require, the consent of the mayors and governors to deploy the troops. 

Those are your distinctions, but as you point out, as with a lot of Donald Trump, most of these laws – this law was written in 1807 when the founding fathers thought well surely we will protected from a moron being elected President of the United States and they could not see a gameshow host coming.  These laws use broad language and they have broad delegations of authority.  It’s one of the many, many things we’re gonna have to fix in 2021.  There’s a real danger here.  So now you know.

Thomas:         [Sighs] Yeah.  Boy, we’re way over time.  So item three?  The curfews?

Andrew:         Yeah, let’s do this.

Curfews

Thomas:         Curfews are constitutional, right?  But it seems like if you don’t do ‘em right then maybe they could be struck down?

Andrew:         [Sighs] Yeah, that’s exactly right.  We’ll do more in the bonus since we’re over an hour anyway.  Black Lives Matter sued for an injunction against the Los Angeles curfews.  I think they’re not likely to win that injunction, because curfews are not per se unconstitutional.  We’ll unpack the law in the bonus segment.  If you’re seeing that, yes, they filed for an injunction.  Yes, we support Black Lives Matter, but that doesn’t stop us from sort of handicapping and we know what it takes to get injunctive relief.  You have to show substantial likelihood of success on the merits and I dunno that they’ve got that.  We’ll break that down in more detail.

Yodel Mountain Lightening Round

Thomas:         Okay.  Are we gonna try to lightening round these?

Andrew:         Yeah, let’s lightening round Yodel Mountain.

Thomas:         Alright, like you said at the outset we are going to do an extended episode for patrons, so be sure to get on that, patreon.com/law.  You’ll have to – if you’re gonna sign on to get this you’ll have to grab that episode and get the extended portion on that file.  Anyway, just to do a lightning round of them:  Rod Rosenstein testified in the Senate?

Andrew:         Yup.  Yesterday Rosenstein went before the Senate Judiciary Committee to testify in connection with the Mueller investigation – finally – and he outright lied.  He said the Mueller investigation produced (quote) “no evidence of conspiracy” (end quote) between the Trump campaign and Russia.  That’s not true.  We will detail the many, many ways in which that’s not true, but you can find that yourself by just loading up – we will link in the show notes – Volume I of the Mueller report.  Do a ctrl+F for C-O-N-S-P-I-R, that will get you “conspire” and “conspiracy,” and you will see ample evidence throughout.  It wasn’t sufficient for them to charge Donald Trump Jr., but that statement was a lie. 

Thomas:         Hmm.

Andrew:         Rather shamefully was allowed to pass undisturbed by the Democrat senators on that committee.  I need to point that out.  He lied to congress.  There you go.

Thomas:         Next item, Judge Sullivan update?

Andrew:         Judge Sullivan ordered the appointment of an amicus in the Michael Flynn Rule 48(a) case, that’s the one where we’re filing our OA amicus brief.  Michael Flynn petitioned for mandamus at the D.C. Circuit to tell Judge Sullivan that he can’t do that, and Judge Sullivan was then instructed by the D.C. Circuit to file a brief responding to that.  He hired outside counsel to file that brief, and it’s a good one! 

We’ll talk about the answer, oral arguments will occur on the 12^th of June which is a week from today, Friday if you’re listening to this on a Friday, and that means that our amicus brief, which is due the Wednesday before, will still be submitted and will still be considered.  Hopefully Judge Sullivan will have a chance to read it and rely on some of our arguments at that oral argument.  That’s your update on Sullivan.  Again, a bit more detail in the bonus.

Thomas:         Finally, this weird thing that has surfaced about Trump and Epstein?

Andrew:         [Sighs] Yeah… I still don’t know where, but somebody connected to the kind of lefty circles that we hang out in and that our listeners hang out in has started recirculating a lawsuit that was filed in 2016 anonymously, a Jane Doe v. Donald Trump and Jeffrey Epstein, alleging that when she was 13 that she was raped by both Trump and Epstein.  I wanna be super clear here, this lawsuit was filed on June 20^th of 2016.  As far as we can tell, it was never served on either Donald Trump or Jeffrey Epstein, and it was withdrawn on September 16^th of 2016.  Voluntarily dismissed before anything happened in the case.

Slight eight-second digression, filing a lawsuit does not trigger the parties’ opposition to answer.  I can file a lawsuit right now against Thomas, he doesn’t have to answer that lawsuit until I give him a copy of it and put him on notice.  That makes total sense, right?

Thomas:         Jeez, I wonder how many I’ve already had against me?

Andrew:         Yeah!  I certainly could have!  There’s nothing to stop me from doing that.

Thomas:         Just venting?  [Laughs]

Andrew:         [Laughs]

Thomas:         The whole thing where you type up the email but don’t send it?

Andrew:         Yeah!

Thomas:         That’s what Andrew does with lawsuits.

Andrew:         That’s not a bad analogy, because it’s filed with the court, that doesn’t prove in any way that Thomas knows it exists.  In fact, there is no reason for you to know that it exists simply upon filing, I’ve gotta give you a copy.  That’s called service of process and that’s what triggers your 30-day – and again, it varies, but in general triggers an obligation for you to answer the complaint within 30 days.  No answer was ever filed by either of the defendants in this case, which strongly suggests that it was never served on them. 

Here’s what I have to say.  We all have made up our minds about the character of Donald Trump and Jeffrey Epstein.

Thomas:         Mm-hmm.

Andrew:         We do not need additional allegations to tell us about the sexual character of these two men.  Citing as evidence a complaint that was filed but not served is bad practice.  Because Larry Klayman could seriously – “Hillary Clinton-

Thomas:         There is absolutely zero bar for truth on this.

Andrew:         There is no check whatsoever because the court literally will not act on it except to dismiss for lack of prosecution if you file a case and fail to then file the return of the presentment of the summons within a reasonable period of time.  The case that I filed against you last year, Thomas and I never sent to you? 

Thomas:         Yeah.

Andrew:         The court eventually is gonna be like “okay, I’m dismissing this out for lack of prosecution by the plaintiff.”  Other than that, the court doesn’t look at it, they don’t fact check it, they don’t evaluate.

Thomas:         So not at all to say that this is impossible that it happened?

Andrew:         No!  Right.

Thomas:         Because these people are monsters, but this is zero evidence.

Andrew:         It is not acceptable to use this as evidence and it’s doubly misleading to start putting up a filing from 2016 that literally was filed four years ago as if this is breaking news or evidence.  It isn’t, it’s bad, don’t rely on it.

Thomas:         Well I feel like we did the whole deep dive on that one.

Andrew:         Yeah, I think that’s right.  We got this one.  [Laughs]

Thomas:         Alright, well now it is time to thank our new patrons at patreon.com/law.  They’re enjoying the goodies; they’re enjoying this very bonus episode that’s going to be longer for patrons and all the good stuff.

[Patron Shout Outs]

Thomas:         Alright, now it is time for T3BE.

T3BE - Question

[Segment Intro]

Andrew:         Alright Thomas, a defendant was charged with the crime of defrauding the federal agency where he had worked as an accountant. 

Thomas:         Oh.

Andrew:         At trial, the court allowed the defendant to call his supervisor at the large corporation where he had previously worked, who testified about the defendant’s good reputation in the community for honesty. 

Thomas:         Okay.

Andrew:         Over objection, the defendant then sought to elicit testimony from his former supervisor that on several occasions the corporation had, without incident, entrusted him with large sums of money.

Thomas:         Huh.

Andrew:         Should that testimony be admitted? 

Thomas:         Over objection.  Interesting.

Andrew:         So brings on the corporation, they testify as to his good reputation for honesty-

Thomas:         Yeah.

Andrew:         Then he says “isn’t it true that you’ve entrusted me with a large amount of money?”  Should the testimony be admitted?  A) No, because the testimony is extrinsic evidence on a collateral matter;

Thomas:         Huh.

Andrew:         B) No, because good character cannot be proved by specific instances of conduct unless character is an essential element of the charge or defense;

Thomas:         Huh.

Andrew:         C) Yes, because it is evidence of a pertinent character trait offered by an accused; or D) Yes, because it is relevant to whether the defendant was likely to have taken money as charged in this case.

Thomas:         Interesting.

Andrew:         Yeah.

Thomas:         So I feel like – I mean, we’re allowing a character witness at all, that seems fine.  I actually don’t see why this would be a problem to say also, as part of this character witness, as part of testifying about the reputation and honesty, we had entrusted the defendant to large sums of money without incident.  I don’t really see why that would be a problem if the first part isn’t.  I’m kinda leaning towards a yes, the testimony should be admitted, I don’t really see a good reason why it shouldn’t. 

Going through the answers, A, no because the testimony is extrinsic evidence on a collateral matter.  I don’t really think that’s – I mean I guess that could be a good no answer if no is the right answer but I don’t know.

B, no because good character cannot be proved by specific instances of conduct unless character is an essential element of the charge or defense.  But it seems like it is, here.  You’re allowing a character witness, so yeah, that’s why I’m a little confused here.  How else would you testify – it would be a weird rule if you could testify to someone’s character and say “yes they’re honest,” and then they’re like “but can you give any specific examples?” Objection!  [Laughs] You’re allowed to say they’re honest but you’re not allowed to give specific examples.  Seems weird, doesn’t seem right to me.

C, yes because it is evidence of a pertinent character trait offered by an accused.  That’s the answer that I am going with. 

And D, yes because it is relevant to whether the defendant was likely to have taken money as charged in this case.  Gosh, you know I think we had an early question along these lines.  I feel like D is definitely not right because it’s not really relevant; I think that’s when it’s not allowed, when it’s used as evidence as to whether or not they’ve taken money in this case, but it is allowed if it’s just for character purposes, I think?  I hope that’s right or maybe I got that wrong last time and it’s the opposite.

I don’t know, but I’m going with C, final answer.  If I were to eliminate two, I would say B and … well I’ll go A and B.  I think this should be allowed.  I don’t like D, but I’m going with C, final answer.

Andrew:         Alright.  If you wanna play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag #T3BE.  Include your guess, your reasons therefore, we will pick a winner and shower that winner with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright, thanks for listening and reminder, if you sign onto that patreon you get a bonus extra here at the end.  Go do that.  Thanks for listening, everybody, we’ll see you next time!

[Show Outro]