OA488: A New Trial for Chauvin?

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 488. I'm Thomas. That's Andrew. How you doing, sir?

0:01:24 Andrew: Well, I am fortunately doing fantastic. I'm, I'm I am, uh about six hours removed from wanting to die. I just got my second shot of the, uh Pfizer vaccine, so I'm now you up to speed on the COVID vax, and uh I had like no symptoms, you know, a little bit of arm soreness uh after the first one, uh and then I had like the full bore, you know, fever and and stuff uh after the second. Um, that, was awful. But But literally, it was on like an exact, you kicks in 12 hours, in last for exactly 24 hours and then it's gone. And now I feel great. So

0:01:28 Thomas: Hmm. Huh. That is

0:02:06 Andrew: Yeah,

0:02:06 Thomas: So weird. Well, you know, someone shared a thing online. It was kind of funny because I saw a tweet that was like, hey, I think we just hear about the bad second shot experiences because, you, know, the squeaky wheel kind of thing. And so they're like, hey, reply or retweet this if you had no symptoms. So I did that. I was like yeah, hey. Just sounding off for the sake of like being counted, you know, I had nothing, had nothing for my second shot. I was totally fine not to rub it in Andrew.

Sorry, but I was completely fine after my second shot, which is weird. 'Cause normally the flu shot, I feel like I have a harder time than most people with the flu shot. My whole arm will like just fall off. Like it just turns black and just turns to dust and disintegrate. But, uh, but no, I, I actually, the first one that my arm was a little source second one totally fine so I retweet this second shot totally fine and then just like all dozens of people like oh my second shot was the word in replies you know I like this is this is not the

0:02:18 Andrew: Yeah, no, no.

0:03:01 Thomas: Point of the thing yeah ah that's all right whatever I get it when you have that bad experience believe you me I'm the first person to sound off when I have a bad experience so I get it just don't I'm trying to undo like if anybody's scared of their second shot you you can very easily just have nothing as I did.

0:03:02 Andrew: You're missing the point. Yeah, yeah. Yeah,

0:03:20 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:03:25 Thomas: Andrew, we had a ton of feedback on the census apportionment stuff, turns out we've got just as many, you know, uh Excel and and other programming people as you thought. One thing I just wanted to say that was so funny is I got a lot of, hey Thomas, I made that spreadsheet for you. I was like, yeah, why don't you eat a sandwich for me and take a vacation for me. I don't know what you're, how do you make, you don't, you didn't make a spreadsheet for me, you did the thing that I waslike oh I would love to. Hey, I, I played this video game for you, Thomas. No, I wanted, it was going to do that if I had time, but I didn't have time. I thought that was funny. I made it for you. I didn't want a spreadsheet to be made. I wanted to make the spreadsheet. That's what I like to do. It's fun.

0:03:52 Andrew: Oh, yeah, we got a lot of those. I I saw a bunch of the spreadsheets. And for me, it was definitely not in the like, why don't you eat a sandwich on my behalf? Because I have no ability to program this. Listener Ale created an interactive widget. It's at apportionmentcalculator.com. So super cool. You can add Puerto Rico as a state and like see, you know, how it would affect it.

0:04:25 Thomas: I'm going to check it out right now. Yeah, that's what I was going to do. I was gonna do all this stuff. And then I saw some immediately people were like, it's already been done. And then I just felt like, uh, all right, but.

0:04:30 Andrew: Yeah, right. Yeah. All right. So this is a super interesting lawsuit that we're going to keep our eyes on. OK, so this was filed in March by the state of Alabama versus the Department of Commerce. And it is over an aspect of the 2020 census that as far as I can tell, the Biden administration is defending. And it's a really it's an interesting issue. And it throws kind of a monkey wrench, right? Right. Like it. If you were thinking, gosh, the census probably has a whole lot of problems since it was overseen by Trump. I think I would share that intuition with you. This is not an issue I had heard of before. And again, it's one that the Biden administration is defending and I'm trying to parse it through.

0:05:23 Andrew: So explain what that is. Now, you might be thinking, don't recall Alabama being one of the states that was set to either gain or lose representation through apportionment. And in fact, not only are they not, they're not close, right? Right. Like so. So you're thinking, how do they have standing? Right. Like what gives why would they care? And the answer is this lawsuit is not about the state level data. It's about everything else that goes along with the census down to the block level data, right? Because we use it for more than just apportioning how many representatives each state gets within the states. When you know that people have moved, that's how states use to draw their own congressional districts.

0:06:13 Andrew: And then depending on who's drawing the districts, they can either be drawn fairly or fed into the red map software so as to produce the maximum number of reliable Republican votes. And I'll leave it to you to figure out what Alabama does. But so here's the issue. And this is as far as I can tell, this really happened 2020. The Department of the Census, the Commerce Department, and specifically the Census Bureau, used a methodology called differential privacy and it to protect the data. Right. So here is, and this is, I'm going to include the link from the National Council on State Legislatures. Here's their explanation of of the reason that we have the use of this differential privacy methodology, and that it is basically big data reverse engineering.

0:07:10 Andrew: Right. So a census block is the lowest level of granularity that they rely. And that can have like a dozen people. Right. Yeah. So it says, as a hypothetical example, consider a census bloc with 20 people in it, including one Filipino American without any disclosure avoidance effort. It would be possible to figure out the identity of that particular person. Right. About like the the overlap with the effort to include citizenship questions. Right, you And and you could and reverse engineer private information that people disclose that the government promised that you couldn't from this aggregate data. You have enough computing power, right, you could just tell the computer what to look for.

0:07:59 Andrew: OK, so for the last couple of censuses, the Department of Commerce has used methods to try and prevent you from reverse engineering private data out of it. OK, and sitting on top of all of this, right, is again, every time we talk about a non-Trump issue, I'm going to explain like how stupid originalism is, right? Right. Like because that's the underlying theme of the show.

0:08:26 Thomas: Those are the two different episodes of the show.

0:08:29 Andrew: Yeah, exactly right. But, but, the Constitution mandates that the census be, quote, an actual enumeration, end of quote, of the population. And what that means is, right, you cannot use any sort of methodology to try and double check against trying to count 300 plus million people. And right, statistically, like we know now in a way that we did not know in the 18th century that there are, right, sampling methods that would be way more accurate than like trying to find and count every specific person. It doesn't matter, right? Our founding fathers said actual enumeration. So you can't use any kind of statistical methodology to modify that actual enummation whatsoever. Yeah.

0:09:16 Thomas: Oh, all right.

0:09:18 Andrew: Right? So here was the technique that they started with in 2000. They used a technique called data swapping. OK. And so what you would do is you would take the census block data for one particular area and you would pick up that that data and swap it with a census block from another geographic data. Right, basically what you would do is you would hide the ability to reverse engineer, you know, one member of an ethnic minority. Right? Like, so you would, you would take that census block and you would stick it in the middle of a different part of the state that had more Filipinos in it. Right. And so then that

0:10:04 Thomas: But what I, I guess, at what level is the census used? I mean, do counties, or, sit, you know, what would that mess up? Something else that that's important? Yeah.

0:10:14 Andrew: That's exactly right. It is used all the way down to that county level. But like the states use that individual data. Right. That's why this is a really fascinating question. Right, as to what what seemed like two pretty good goals. Right? Right. So the first is, how do we stop you from using raw computing power, big data to reverse engineer and target individuals who have provided, you know, for bad guys to to to target individuals who voluntarily provide census information? And if you think that, like, you the same people who were trying to undermine the census are probably not out there doing that. Right. Like that. Yeah. Versus how do we make sure that the states get access to the most accurate actual enumeration of who actually lives in their counties? Right. And the method that the census used in 2020 was a method called differential privacy.

0:10:22 Thomas: Yeah,

0:11:12 Andrew: I'm going to read this from an amicus brief filed in the case because this is the best I can do with this high level math. And this is attempting to explain it to lawyers. And I will tell you, I'll include the the amicus grief. I've uploaded it to the OpenArgs website. I've downloaded a copy. You can read it for yourself. It's still a challenge to read, even for a mathematically inclined lawyer such as myself. But, quote, "With differential privacy, the Bureau has stated that the total population in each state will be, quote, as enumerated." So it does not change that total population by even one vote. But right.

0:11:19 Thomas: Letter of the law, yeah,

0:11:50 Andrew: But all other levels of geography, including congressional districts down to townships and census blocks. And again, remember, that could have a dozen people could have some variance from the raw data. This is referred to by the Census Bureau as, quote, injecting noise into the data. The bureau has indicated that no noise will be injected into the state total population, but it is likely that noise will be injected for every other level of geography. So Alabama has filed a lawsuit that says we want the raw data without the noise in it. And it all I can tell you is it's produced like weird alliances, right? Like there are a handful of blue and purple states like Maine and New Mexico that have joined in with that.

0:12:37 Andrew: And again, does not seem to fall down along the lines of like states that lose or gain seats at the at the overall level. So all of it is to say we are far from being done in terms of figuring out the census data. But I thought this was such a really, really interesting issue. And I wanted to to make sure that our listeners knew about it and that we were, we're flagging that we're going to follow it. So we absolutely are,

0:12:46 Thomas: Yeah, Well, This strikes me as something that's like, there's going to be nothing there, but now that a process has become polarized, or like there's a, there's a lens being, you know, there's a focus on a process that used to be just no big deal. And now it's polarized and now we'll be picking apart like these little methods that nobody understands and, you here? But at the same time, should we as the blue team here be worried that the previous guys might have messed with this weird part of the algorithm that we don't understand?

0:13:28 Andrew: It.

0:13:37 Andrew: Yeah. And think I it would be impossible for Democrats not to be skeptical of what Trump's Department of Commerce did regarding the census. And then, you know, back that up to the first question. Does that mean that we now have, you an additional issue that ought to be nonpartisan that is going to be politicized? Like, I think I think we do for precise, right, for precisely the answer that I just gave to the second question. And I don't know how to restore trust. Well, I have, I have one good idea of how to restore trust in the process. And that is passing the For the People Act, H.R. 1, and taking, setting federal standards for redistricting nationwide that are bipartisan, that put redistricting in the hands of independent committees rather than in the the hands of self-interested legislators who are trying to maximize the process.

0:14:30 Andrew: So I think you're right that this is going to be a fight. And it's, you know, it's issue number, and it's going to be a bad fight, for the next decade, because, you mean, we just broke it down. Let me tell you, I do not understand the differential privacy methodology, right? I'm explaining it to the very best of my abilities, um, your Fox News watching uncle Frank, you know, has not a chance in hell of understanding this, this methodology. I'm, this is not the kind of thing that can be reduced down to a 30 second soundbite that will get reduced down to a 30 second soundbite.

0:14:52 Thomas: Yeah.

0:15:05 Thomas: Well, plus it sucks because the feeling of like privacy protection that the differential, differential privacy technique thing is even for, strikes me as a really libertarian type concern. You know, you're really worried about like, oh, we can't have the government knowing exactly where we are or something. I don't know. And so it's, but it sounds like that could be flipped on its head now. And that's going to be turned into a leftist deep state conspiracy or something. Yeah,

0:15:07 Andrew: Uh-huh, it It, it could be, but, but let me jump in and say being able to assure people who fill out the citizenship questions that their data will remain private, right, was one of the core arguments that we on the left were saying as to, uh, hey, um, our, that that vulnerable populations need to have confidence in filling out the census. So, no.

0:15:43 Thomas: No, yeah, youre right. Definitely. Definitely, I guess you're right. I didn't mean mean to say it was only like right-wing libertarian concern, but that used to be something that the right would care about is like a privacy type argument about government, what the government does. And yeah, it's so we'll see where this goes, I guess.

0:15:59 Andrew: Yeah. Yep. Well, well, but but no, let me expand on that. And then and then we could be done with the segment. But like the other way in which it is sort of perversely empowering the other side is like I could easily imagine, you savvy Republican saying, Oh, you care a lot about, you know, maintaining the integrity of census data, but you don't care at all about stopping election fraud, right? Like, you know, every time we sort of break down that, that wall that you know you're describing that like, oh, reverse engineering of data is like, you little bit libertarian conspiracy theory ish. I Like, think we do make it easier to make that argument.

0:16:49 Thomas: I Well, let's round this out. I couldn't help but pull up a portionment calculator. And it's really cool. But one one thing I wanted to check on was this claim that New York was 89 whatever people away from a seat. Wasn't that the claim, uh, Well, I, whoever made this, check either your math or what, because as I edit New York's population upwards, it does not get another seat after 89 people, and indeed after a few thousand it doesn't get another seat. It have obviously I just punched in two numbers real quick to check, but like, I'd be curious if whoever made this could like get, see if that's a programming issue or if, you know, if that claim about the 89 people was not accurate.

Cause I had wondered if that was going to be, not know, other things would change if you add 89 to New York, you know, that would maybe prevent them from getting the seat. I was actually, that was one of the things I wanted to check if I made the spreadsheet, and based on this apportionmentcalculator.com, adding 89 people to New York does not give them another seat. So I'm curious, a, what that number actually is, and b, why the

0:17:03 Andrew: Yeah.

0:17:51 Thomas: Discrepancy there between the reporting and this calculator and so you know if get back to us if you solve that one Opening Arguments is brought to you by Paint Your Life. I love Paint Your life. I talk about this every time. The painting that I have of Lydia and our beautiful daughter Phoebe on the beach. It's one of my favorite things that we have in our house. It will be on any wall wherever we live as long as we are alive. It is that beautiful and it's that meaningful. And if you have somebody, wife, grandparent, maybe your parents, if you are somebody you're shopping for the perfect birthday, wedding gift, anniversary gift, I by highly recommend Paint Your Life. Here's how it works. You get a professional hand-painted portrait created from any photo at a truly affordable price. You choose from a team of world-class artists and work with them until every detail is perfect. The user-friendly platform lets you order a custom-made hand- painted portrait in less than five minutes.

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0:19:36 Clip: YOU BETRAYED THE LAW!

0:19:38 Thomas: The Chauvin trial, that went well. I was, I was happy with that result, that was a good result. Chauvin's lawyers have filed for a new trial. Now, I know we do this thing, you know, in the media, I think non-lawyers and non-OA listeners see like Chauvin's lawyers file motion for new trial and they think like, oh, those villains, you know, it's like, okay, well, they're going to file every appeal they can. That's kind of how our system works, right? Is there anything untoward about this motion for a new trail is my first question. And then of course, I'd like to know this has any chance of success, which

0:20:09 Andrew: Love the way you've parsed it. So, yeah, absolutely not. Not only is there nothing villainous, right, like that this is this is required by the bounds of zealous advocacy. And that also so tells you, right, like the fact that you haven't really heard about this is because this is a routine thing that lawyers do in every case. And it has, you know, point zero zero one percent success rate overall. Do everything you can.

0:20:38 Thomas: Is good and bad. I mean, There are plenty of stories of this guy is obviously innocent on death row, and Scalia says that he can't being innocent isn't enough to get you off death row.

0:20:39 Andrew: Yeah, that's that's right. Right. I want to I want to break down the two kinds of relief that Derek Chauvin's lawyers requested. I'm going to do it in inverse order of the pleading, because the the the first one, I think, is the one that's gotten sort of the most traction in terms of being covered in the news. And I want to clarify a bunch of the misconceptions. Have you seen the story of, oh, one of the jurors was at a BLM rally in Washington, D.C. Yeah, right.

0:21:16 Thomas: Oh my God. Wearing a BLM shirt because the only impartial juror is one that doesn't think black lives matter. That's the only, that's impartial everybody. Be juror. You'RE not going be biased about this whole executing a black man in public. Are you not going to biased about that? You want to have some sort of a, you know, interest in that as a moral question. Would you? Okay, good. Sorry. It's just, it's outrageous that that's.

0:21:40 Andrew: No, no, I agree with the outrage. And that's why I want to clarify what's actually going on, because it there is a ton of speculation that is inaccurate. So let's back out. I'm going to include the text of the actual filing, the motion that Chauvin's lawyers filed. They've asked for two kinds of relief. The second relief that they've asked voor is to impeach the verdict. OK, and impeaching the verdict is exactly what it sounds like. It's to say, oh, yeah, the jurors came back with a verdict that is not legally supportable.

0:22:15 Thomas: Okay. So it's not like the verdict verdict like lied about a blow job and we got to, no, it'S not that different.

0:22:18 Andrew: Right. Right. Yeah. So this is all they've said. OK, we move to impeach the verdict, quote, on the grounds that the jury committed misconduct, felt threatened or intimidated, felt race based pressure during the proceedings and or failed to adhere to instructions during deliberations in violation of Mr. Chauvin's constitutional rights to due process in a fair trial. And then they've also asked. So so that does not mention the BLM rally at all. That's presumably under committed misconduct. Right. And I'm going to talk about what the theory is in a minute in evaluating it. Obviously, the felt race based pressure is they're going to raise the Maxine Waters statement.

0:22:19 Thomas: Okay, wow.

0:23:05 Andrew: Right. We We already talked about that. And they've asked for time to to brief those issues. So first, this is a thing that you can do. And it comes from the Minnesota Rules of Criminal Procedure 26.03, Subdivision 20, Sub Subdividion 6, says a defendant may move the court for a hearing to impeach the verdict. Verdict. Juror affidavits are not admissible to impeach a verdict. At impeachment hearing, jurors must be examined under oath and their testimony recorded. Rule 606B governs the admissibility of evidence at that hearing. What is Rule 606B? It says, "Here are the things that you can inquire into." But okay, first it says, "Here are the things you cannot inquire into." A juror may not testify as to any matter or statement occurring during the course of the jury's deliberation or to the effect of anything upon that or to any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. It.

0:24:12 Thomas: So this is the jury is a black box thing. It

0:24:15 Andrew: That is 100 percent, as we said it before, right? The jury is a black box and they will not let you go into what you say during deliberations.

0:24:23 Thomas: Can be a very high bar for getting in there.

0:24:26 Andrew: Yeah. Here are the five things that you can ask a juror about. A juror may testify on the question, one, whether extraneous prejudicial information was improperly brought to the jury's attention. OK, that's not an allegation here. But that is the primary way in which these, and again, this is a super rare occurrence. And I'm to talk about the case law in a second. That's the primary way in which this happens is a juror brings in information from the outside that they learned about the trial that was either explicitly suppressed, right, or is is prejudicial. And the best way to think about this is to think about and watch our episode, uh, of 12 Angry Men, right? Uh, fantastic movie, right. Great cinematography, absolutely wrong on the law on every level. Right. And, and, and so right. What George Bailey does, uh huh. In 12 Angry Men, uh is conducts his own investigation and his own trial and and reconstructs it. And like, that's the that's a thing you cannot do.

0:25:16 Thomas: Love that movie.

0:25:31 Thomas: Right? He's got props. He's got it's all it's yeah, it's big production.

0:25:36 Andrew: Yeah. So that's extreme. That's what I want you to think about when you think extraneous prejudicial information, a juror saying, well, look, I know they showed us X, but, you know, I went out and cased the, you know. The crime scene. And look, here's that. Right. OK. No allegation of that here. Number two.

0:25:51 Thomas: And it really makes sense that that should not be allowed.

0:25:54 Andrew: Of course not.

0:25:55 Thomas: It's up to the actual trial that you had. Like, that's how our system needs to work. You have no way of having an expert like go over or impeach this juror's testimony or another lawyer impeach the juror testimony.

0:25:55 Andrew: Right? Yep. Right. Number two, two, a juror may testify whether out any outside influence was improperly brought to bear upon any juror. That, again, the only real argument there is the Maxine Waters stuff. Three, as to any threats of violence or violent acts brought to bare on jurors from whatever source to reach a verdict. No argument on that. Four, whether a jurors gave false answers on voir dire that concealed prejudice or bias towards one of the parties.

Put a pin in that, because that is the only way to construct the argument about the juror that attended the BLM rally. In fact, right, don't put a pin on it. I'll analyze it right now. The This judge did a masterful job, we talked about in covering the case, of permitting wide ranging questions to both sides' lawyers during voir dire, because this was a highly publicized trial, asking about your previous exposure to information about the case, your potential sources of bias. One of the questions was, how do you feel about Black Lives Matter? Matter? You can go back and read that, and actually watch on YouTube all of those juror deliberations. And once we're able to match up, right, the if this

0:27:24 Andrew: Goes anywhere, then we'll be able to go back and and see the answer. And as long as the juror did not lie about their feelings about Black Lives Matter, this will not matter,

0:27:24 Thomas: The census data to the oh, no.

0:27:43 Thomas: Well, would it? OK, but what? So let's say we they isolate this jurors, they go back and they look at voir dire and this juror who they've caught at a BLM rally is like, "Never heard of BLM, what's that? Don't know what it is, bacon, lettuce, and tomato, I don't know, have never heard it." Uh, would that throw away the try? I mean, that's one vote in the jury just

0:27:59 Andrew: That is absolutely the right question to ask, and I'm going to talk about the relevant case law in a minute. That was why I was questioning whether to put the pin in or not. But I want want to point out, right, that you win

0:28:13 Thomas: Did I get a pin did I win a pin? Okay, good, we got a pin.

0:28:16 Andrew: A pin because that requires a factual assertion that is not present and seems unlikely, right? So in other words, Where we have to go from here to your hypothetical is proving that the juror lied in that way, you know, bacon, lettuce, and tomato. I'm going to use that from now on out. Right? If he did not, this is over, right. If he did, it is not, it is far from from being settled that, oh, that's going to invalidate the verdict. And we'll get to that. And then finally, in order to correct an error made in entering the verdict on the verdict form, and That happens more than you think, right?

0:28:16 Thomas: Yeah. Yeah.

0:28:49 Thomas: Fair. That's

0:28:51 Andrew: That's the, you know, Mr. Simpson, you know, this verdict is written on a Cocktail napkin, and it still says guilty, and guilty is spelled wrong. Yeah.

0:28:55 Thomas: Exactly. Yeah. Is it Lionel Hutz crouching in between where the guy hands the verdict to the, yeah, huh?

0:28:59 Andrew: Uh, Exactly. Uh, so this is called a Schwartz hearing, and it's after a case called Schwartz versus Minneapolis Suburban Bus Company from 1960, and that was about, um, an auto, right, the trial in voir dire, one of the jurors was asked if he could be a fair and impartial juror. And he said yes. And then he was asked, "Hey, has anybody in your family ever been involved in an automobile accident?" Said no. And then the defendant was found responsible for the accident, they interviewed the juror and took a statement from him. And it turned out that four years prior to the trial, daughter had been involved in a car accident very, very close to the actual place that that the accident That, you know, for which he was a juror, took place.

And so he was asked as following, quote, "Do you think that your daughter's accident influenced you in any way? Did you have her accident in mind?" Answer, "All the time." Question, "During the course of the trial?" Answer, "All the time. Yes." Question, "Having in mind your daughter's accident and all the circumstances around that during the hearing and deliberations in this case, do you think you were at all influenced in your decision in this case by your daughter's accident?" Answer, "Well, I was, I would say yes, I suppose." Question, "With your daughter case in mind?" Answer, "Yes." Question, "You would favor the plaintiffs in this case too, to a certain extent?" Answer, "Yes." And then

0:29:36 Thomas: Oh.

0:29:58 Thomas: Wow, he just said

0:30:39 Andrew: Yeah. Well, and the reason, again, good lawyering is you ask eight, eight follow-up questions so that there's no wiggle room.

0:30:40 Thomas: It, he just tweeted it out, yeah. Yeah.

0:30:49 Andrew: Right. You've you've pinned It down. So, you know, I mean, in here he basically asked every question except, "So you were lying when you told" the juror, when you called our counsel on voir dire, that you could fairly examine the evidence in this case. Right. And the answer to that would have been, "Yeah." Right, he did this.

0:30:50 Thomas: Yeah. Right.

0:31:09 Thomas: You know You, you mentioned the lot of movies, this would totally ruin the Runaway Jury one, right? Remember? Yeah, the whole, the whole plot, sorry, spoilers, is, oh, the guy actually had a kid, or I don't know, relative, that died of gun violence, and so therefore that's why he's gonna definitely vote to, uh, I don't, guilty on the gun manufacturers, so so It sounds like Gene, Gene Hackman's evil Republican lawyer firm is just going to be like, "Oh, easy appeal. You lied" in voir dire. It's over.

0:31:15 Andrew: Gene Yeah, exactly. Exactly. So went through all that to show what the high bar is to get a Schwartz hearing and to get a trial, to get verdict impeached. Right. You've got to have that level of deliberate lying during voir dire. And and we know that that that represents the extreme because about 10 years later, there was a case again, 1970. So, you know, we're still talking. This has been established law for half a century is a follow up case called Olberg versus Minneapolis Gas Company. And that case said the following. So it picked up on language from the Schwartz case and it said, look, know we overturned a jury verdict in Schwartz on the basis of a juror who lied. But we do not want this to become a regular thing that us courts are doing.

0:31:43 Thomas: Yeah.

0:32:29 Andrew: We want these to be super rare. And in particular, and the case says this word for word, we are concerned about defense attorneys going out and interrogating jurors after the fact and then using that to try and overturn trial verdicts. Like, we don't want you to do that. That's not a proper thing to do. Um, so that's the first thing. Um, and then the, the Olberg case was another car accident.

0:32:58 Thomas: Metaphorically? No, no.

0:32:59 Andrew: This was, uh, an automobile, uh hit a pedestrian. Um And so the question was, can the driver with their headlights on at night see the pedestrian? Could a reasonable driver see the pedestal? What happened was trial ends. The jury is dismissed at noon. They deliberate into the evening and have not reached a verdict. And then they go home. Then they come back the next day at nine in the morning, deliberate for a couple of hours, and then at 1055, right, so less than two hours, they return a unanimous verdict. This is a civil case, but again, it's applicable in criminal cases, finding both parties equally at fault. If both parties are equally at default, that means the plaintiffs get nothing.

0:32:59 Thomas: Okay.

0:33:46 Andrew: So the plaintiffs were like, well, this seemed real weird that jury was hopelessly divided Thursday night. And then Friday morning, they're like, "Oh, yeah, we got this way. We're going to knock this out before lunch," which really happened. And right, so one of the attorneys for the plaintiffs let the court know that there were some rumors circulating around the courthouse that there might have been improper jury conduct and and retained a private investigator to go out and talk to the jurors. So I'm not going to talk to them myself, but I am going to hire a P.I.

0:33:54 Thomas: Yeah.

0:34:20 Thomas: Still crazy that you can do that. I didn't even know you could do that, okay.

0:34:21 Andrew: Yeah. This case basically says don't do that. Right. So the investigator then went out, talked to seven different jurors and got a statement from one of them. And that involved a particular juror who went 12 Angry Men on this jury. And so what he did was that night when the jury was not sequestered and released, went out, went driving, right, turned his lights on and, know, did three separate times and came back and said, "I had an opportunity to ride in car three times that evening, evening that the jury was dismissed. And when the lights were on dim, I could not see four lanes of traffic." So, question: "You told the jury that with the lights on dim you could not see across four lanes of traffic.

Is that correct?" Answer: "Right." Then follow-up question: "Did you have an opportunity, and use that opportunity after you selected as a juror, to discuss a similar case with a man who had been involved in such a similar case?" Answer: "Yes." "Did you talk to any "I don't recall." Question: "Uh, did you make any representations to members of the juries that you had discussed an accident similar to the case with a friend of yours who swore that he could not

0:34:38 Thomas: Right. Yeah.

0:35:33 Andrew: "See the pedestrian?" Answer: "No." So look what happened: the juror came back, had conducted this 12 Angry Men test, told everybody, "Look, you can't see anybody," and the rest of the jurors like, "Oh, okay, all right right." And then they all voted to find the parties equally at fault. But some of the jurors were like, "Well, this seems kind of weird. Can we do can we can we really 12 Angry minute? And yes, exactly

0:35:42 Thomas: Right. Right. Yeah. They really should ask the judge, right? Somebody should have slipped a note to the judge. This seems weird.

0:36:01 Andrew: Right. Exactly right. And so even though rule is you can't 12 Angry Men it. Sorry, I should add one more key one piece of fact. In fact, trial court judge, and again, I think probably reasonably so, looked at this fact pattern and was like, yeah, you know what, I'm going to order a new trial here. The defendants appealed and on appeal, the intermediate Minnesota Appellate Court said, no, not. It was improper to order a new trial here that this does not rise to the level of necessary to impeach a jury verdict. And even though he clearly engaged in misconduct by doing the 12 Angry Men. Right?

0:36:35 Thomas: Huh?

0:36:46 Thomas: In a 12 Angry Men. Okay.

0:36:50 Andrew: So, I want to read a portion of that opinion to you, again, just to make this super duper clear. First, as a general rule, evidence about matters which adhere in the verdict is not admissible. Thus, evidence of a juror's bias, motives, or beliefs should not be considered. The verdict, as finally agreed upon and pronounced in court by the jurors, must be taken as the sole embodiment of the jury's act. Almost. And so it would be now apply that to show them. Unless it rises to the level of deliberate misstatement during voir dire. The fact that the juror had a an arguable bias that was pro Black Lives Matter is precisely Precisely the thing that falls into that general rule of being inadmissible, of being the kind of thing you cannot get a hearing on and you could not introduce as evidence of any kind of of germ misconduct. Yeah.

0:37:54 Thomas: So those headlines were a bit BS. Is that, yeah, that sounds like it was clickbait and you know, it kind of, I saw the headlines, I saw The Characterization of Black Lives Matter sweatshirt or whatever it was would mean thereby. By. And I, it worked on me in that it produced a rage response. And I was like, well, that's absurd. Um, but it I, sounds like that was the intention that it was a click baity headline, but it wasn't really substantively what's going on there.

0:37:57 Andrew: Yeah. That's that exactly correct.

0:38:21 Thomas: Well, I'm glad I listened to this show, Andrew. So, but you know it does sound like there would be a case like if, if this is a total, if, and again, this is not based on any knowledge as a hypothetical, if if the juror had made a big deal of like, never heard of it, don't know Black Lives Matter and like had deliberately lied about it and then was caught at a Black Lives Matter protest, it does sound like that would at least be grounds to take a look at it, right?

0:38:25 Andrew: That Is that, is Exactly right. And that is, and the Olberg case is crystal clear, right, in saying cases may and do arise where a juror's untruthful answering of questions propounded upon a voir dire examination will prevent a litigant from having a fair trial. Right. So it is certainly right, in the runaway jury, you lie voir dire and you would have been struck otherwise, at the far extremes, yes, that can be grounds for relief. But, and this is really, really clear, if there is a question that was not asked, right, that the answer would have resulted in you being struck. Right. Well, too, too bad on you.

0:39:30 Thomas: Hmm. Right. Too bad. Better ask the question next time in voir dire.

0:39:37 Andrew: Right? And so what the prosecutor is going to say is you did not ask, have you ever attended a Black Lives Matter rally? And and you could have.

0:39:45 Thomas: Right, yeah. I would be surprised if they didn't ask that, actually. I feel like they did ask a bunch of that stuff.

0:39:51 Andrew: Yeah, they asked a bunch of that stuff about your views, but I don't believe and I have have watched a lot of the of the war, dear, because I was very, very interested. I do not believe that that specific question was asked. I believe they asked a lot of impressionistic questions. So in Olberg was, there, the juror was not asked any voir dire question which could be expected to elicit a response concerning that testimony. A trial court is not justified in ordering a new trial simply because a peremptory challenge might have been exercised had the attorney elicited certain information on the voir dire examination.

0:39:58 Thomas: Hmm. Oh, okay.

0:40:29 Thomas: Well, wait. Wasn't this the car one, but they did ask, has any of your relatives been in a car accident? And they okay.

0:40:32 Andrew: Yeah. Yeah, this was the Remember that both of these were car accident cases.

0:40:40 Thomas: Did I blend two car accidents? Okay. Sorry.

0:40:41 Andrew: Yep. Yep. The first one. No, no, no. If you're doing it, then so are the listeners. So the first one was the Schwartz case. This is why these are called Schwartz hearings. When the juror lied about, yeah, my daughter was involved in a car accident. You got that kind of relief.

0:40:50 Thomas: Ah. Okay. So that one, they did get a new trial?

0:40:58 Andrew: They absolutely did. Right.

0:40:58 Thomas: Right, okay. Gotcha.

0:40:59 Andrew: Right. But that's how bad the lying has to be that in Oldberg, another car accident case when the juror went out and conducted his own 12 angry men, even though that's not permissible, but did not specifically lie in voir dire. Right.

0:41:00 Thomas: Gotcha, mm-hmm. Oh,

0:41:18 Andrew: About. Right. That was why I read those questions. Right? Did you ever discuss the fact that's Not Enough? Right. Right. They basically were like, look, was

0:41:18 Thomas: Oh, that's weird. Wait, him going and doing the 12 angry men was not enough? Oh, wow, okay, huh.

0:41:30 Andrew: Not enough. So that's the standard you have to meet. Right. It has to be that level of egregious, not just, oh, you know, a juror did a bad and admittedly bad. And the court in Oldberg is super clear. Doing a Right. Bad thing that that the 12 angry men is a bad bad thing. But they're like, look, that's not enough to get a new trial. So if that's not enough, there is no way that the kinds of things that are complained of here is going to be enough to Get a new Trial. And

0:41:33 Thomas: Wow. Okay. Yeah.

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0:43:49 Andrew: And since I went into a lot of detail there, I will tell you the other relief that they've asked for is they argued that the trial judge abused his discretion. We have talked about that, that abuse of discretion is an incredibly high standard to overturn. And it's all nothing, right? It is all there. Nine.

0:44:07 Thomas: That judge seemed to do quite well in this trial, sure.

0:44:09 Andrew: He he did great. And this is, you know, the pretrial publicity, the failure to sequester the jury, the failure to admonish the prosecution for their statements during closing arguments, failure to grant a change of venue. These are all routine things that are well within the discretion of the trial judge. The one piece that you may also see come up, because I've seen press about this, is the failure to order Maurice Hall to testify. That was the passenger in the car with George Floyd. And similarly, that is going to go nowhere. The reason why the court did not order Maurice Hall to testify is because he took the Fifth Amendment.

0:44:55 Andrew: He is potentially liable for dealing drugs. He is standing trial, awaiting trial on those charges, and so has a Fifth Amendment right to say, I declined to answer any of these questions.

0:45:11 Thomas: What are they trying to appeal based on, he should have made someone violate their Fifth Amendment right? I don't get it. Right,

0:45:18 Andrew: The argument is that there is a subset set of questions that you could have asked Hall that would not have violated his Fifth Amendment rights in

0:45:27 Thomas: The judge didn't even allow the defense to put him on the stand at all, even though they're hypothetically, are is a set of question that he could could have been asked.

0:45:36 Andrew: Yeah, and and there was an argument. Right, so the way in which this played out in terms of legal process is the defense issued a subpoena to Maurice Hall to testify. Hall said, I'm invoking my Fifth Amendment rights not to testify, quote, I am fearful of criminal charges going forward. I have opened charges that are not settled yet, end of quote. Then counsel argued, are there a subset of questions about Hall could testify that would involve Floyd's behavior that would be relevant, that would not bear on his Fifth Amendment rights? And the judge, Judge Cahill, said, you know, upon listening to arguments on on both sides, I am convinced that any questions would impermissibly burden, uh, yeah, yeah, there

0:45:36 Thomas: Hmm.

0:46:25 Thomas: Plus, yeah, so, and you've talked about before, this is an incredibly high standard for abuse of discretion. Like, the judge making that call was an abuse of his discretion. Sounds like there's no case to be made there. I also love the idea that the defense is like, oh, we would have gotten a not guilty if only we heard from, checks notes, the victim's friend about, you know, like, it doesn't, but I don't know. What do I know? But that sounds like like that witness wouldn't have made a difference, but yeah.

0:46:37 Andrew: Is there is no case to be made there yeah, right. Right, yeah, yeah. I it that's, that's absolutely right on on both counts, and that is in fact the standard. Right, like if to reverse for abusive discretion here, you you have to say number one that the judge abused his discretion. And clearly he did not. Write, like erring on the side of protecting a third party's right against self-incrimination. There is a mountain of case law that says, yeah, like this person has nothing to do with this case. And so you err on the side of, we don't have somebody come in tangentially to a case and force them to give up their constitutional rights. No, we err on this side of their constitutional right.

0:47:19 Thomas: Yeah.

0:47:34 Andrew: So this is going absolutely nowhere.

0:47:33 Thomas: I know that this is not how the system works, but I do wish that whoever takes these appeals, whatever judge, I wish they could be like, hey, defense attorneys, write out what would be a form of testimony that could possibly have justified the public execution of George Floyd. Who is the witness? What is the thing? What is the possible bit of information that will change the fact that the murderer knelt on the guy's neck for nine minutes? Like, what could possibly justify that? There isn't a possible witness in the world that could do that.

0:48:10 Andrew: I wrap up this segment that you've asked that question in that way, because the defense is not even making that argument. The only argument they are making is they are citing to a catch-all case. It's a case called State v. Duncan, 608 NW 2nd, 551, which says if you have a lot of tiny violations, they can add up to a big violation. Violation, that's all that it says. And so their argument is, okay, you know, you're probably yeah, um, and look, you, you want to have that case.

0:48:23 Thomas: Hmm.

0:48:41 Thomas: Gotcha.

0:48:50 Thomas: If we pick enough nits. Yeah. Sure.

0:48:57 Andrew: Right, I, I, I don't want to suggest the case is a bad idea, um, sometimes in fact, uh, you, do have, right, like there's no one major violation, but like there's the straw that broke the camel's back. But in, but this case that clearly aren't

0:49:08 Thomas: Uh-huh. Yeah. But Is it a bit of a tell if that's the case you're having to appeal to? Like, I could imagine that if you have to look at a lot of these appeals, you see a lot of that case cited, I'm guessing, where it's like, we just have a few things here and there that weren't right. And so, you know, they add up to new trial.

0:49:24 Andrew: You do. That's right. And that's what you say when you cannot point to an individual error. That is what we call reversible error, so that the case is cited for the proposition of where the cumulative, and it's cited in Chauvin's lawyer's brief, right? So this is their argument, quote, when the cumulative effect of numerous errors, even if alone the errors are harmless, constitutes the denial of a fair trial. The defendant is entitled to a new trial so that ask the question exactly perfectly. And it is the number one question that this judge will ask if there is a hearing, if there's briefing on this. He will say, all right, what's the testimony that you think it didn't get in? And they'll say, well, we're not claiming that there was any one piece of test. We're just saying the

0:49:37 Thomas: Yeah. Right.

0:50:17 Thomas: It's the vibe of the thing. Yeah, I

0:50:18 Andrew: Vibe of the thing. That's exactly right. And those are super hard cases to win. So I feel very confident. I'm not going to say, given the temperament of this judge, of Judge Cahill, I can see him potentially ordering a hearing. I would say I'm probably 50-50 on whether there's a Schwartz hearing, right? That is a hearing on the motion to impeach the verdict. If there is, the press will go nuts and say, oh, my gosh, they ordered a Schwartz hearing. And again, you you do that to bulletproof your verdict. Right. You do that. To say, OK, you something I don't I don't want to be second guessed by the appellate court to say I didn't do my job in conducting this hearing. So I could see I really am like split 50-50 on whether he will order a hearing. Um, you gun to my head, 51-49, he does not order the hearing. Right. Um,

0:50:23 Thomas: Bet.

0:51:13 Thomas: Well,

0:51:13 Andrew: But wouldn't be surprised if he does. I would be very surprised, uh, 90-10 if either of these requests for relief went anywhere at the trial court level or on appeal. Heel, so I get it, I'm glad that this is part of the discussion because, uh, I, think it's, it's good for society that as we continue to keep this in our mind

0:51:34 Thomas: Right. Right. I mean, it's all kinds of things that when in the typical scenario, which is a black man is being railroaded by the system, you want all these outlets. But in this case, it is like, no. These should all go nowhere.

0:51:35 Andrew: Yeah exactly right, so

0:51:48 Clip: And thank you, let's go!

0:51:49 Thomas: So Andrew, Andrew, we had a couple of Patreon comments you wanted to address.

0:51:53 Andrew: So I, I think, I think folks kind of have, have now figured out we made, we, it clear, uh, if you, you sign up over on patreon.com/law, like we read every single one of those, we respond, I think, to like 95 plus percent, right? I'm pretty proud of how well we interact with our, with our patrons. So we have three people who wrote in with some variety of this. I want to read it out and then kind of explain. So Jim O. writes, new patron, can my one-time thanks be to the congressional apportionment amendment?

Daniel says, hey, I became a patron to add second vote for Huntsville, Alabama live show to your list of names, but I didn't see a place to do that. Uh, and, uh, Matt says, hey, I just backed the show here on Patreon, for my shout out, please say The Deliverator belongs to an elite order, a hallowed subcategory. Um, so, uh, we're gonna do that, thank you very much for, for that, but, um, in the future the, the way in which you control your Patreon shout out is by, um, changing your name, just, just click on the little, little gear icon when you sign up, uh, and so, you know, you change your name from Daniel to Second Vote for Huntsville Alabama Live Show

0:53:04 Andrew: Uh, and then we run the, the, what we I say we I mean Thomas

0:53:04 Thomas: Yeah, I yeah, I export the the users from Patreon. So it's unfortunately we don't we don't do a custom like shout out if you email us or something. It's we just read the names, but you can change your Patreon name to whatever shout out you want.

0:53:09 Andrew: Yeah and if you are a hall of fame patron, right, that is, uh, five bucks an episode, um, or more, I mean, more is always good, but, but if you're, if you're five bucks in episode, uh

0:53:31 Thomas: Yeah, there's the Conrad Michaels level.

0:53:32 Andrew: Uh, you, you get the recurring shout out every Tuesday. You get that after a month, right? And cause otherwise it'd be super easy to just, play you us for suckers, right? Like, right, right.

0:53:41 Thomas: Well, and we thank you in the new patron when you first sign on. So.

0:53:47 Andrew: That's exactly right, so, so you sign up as a hall of fame patron, you'll get an immediate shout out when you sign up, and then after a month, after then uh, you become a part of the regular uh rotation, and you stay there until you, you know, stop giving, so um, it's super cool, uh and that's how, and then every week you can change your name, the way our crazy, uh, but lovable hall of fame patrons do, so uh, so that's how you do that.

0:54:13 Thomas: Now it's time to thank our new patrons at patreon.com/law. Hope you're enjoying all the goodies, uh, all the stuff Andrew just talked about with the name changing and all that, make sure you do that. And Andrew, it's your turn to go first because I went first twice, so.

0:54:26 Andrew: Thank you to Jackson, to Antonio Lee, to Whitehouse for White House 2024. 24. Behind that. One to Rosemarie Felts, The Deep State of Kelno'reem. No idea what that means. To Steven Carlson, Dr. Charles Biles, Jason Thompson, Shawn Morris, to 2nd Vote for a Hunstville, Alabama Live Show!, to P. Andrew TorTELLINI Don't take pasta advice from a Podcast., that, that's an excellent dad dad joke there. To jim oh, who we just talked about. To Stephen Kovalcik. To KXV. Is that a Roman numeral? That something,

0:54:32 Thomas: Nice. I think

0:55:07 Andrew: 15? What's K? Anyway.

0:55:09 Thomas: So I don't remember. After 10 or whatever, I haven't kept track of the Roman numerals.

0:55:14 Andrew: Is K 500? Is that 515? Anyway. To Lisa Phillips. Take it away, Thomas.

0:55:21 Thomas: Thanks to Sarvis, Monica Placintar. Sorry if I'm doing that wrong. Kreegus, Don't use good yarn on bad conspiracies.

0:55:31 Thomas: Joseph Viggiano, Alex Cruise, Kellywoveit.com I make stuff on a loom. With my hands. Come buy it. Oh, I love it. Kellywoveit.com. Matt Weber, Daniel Caneer, Kris Tina, Nicholas James, Elizabeth Rupert, John W, Stephen Melia, and Lauren. Thanks so much, new patrons.

0:55:55 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:01 Thomas: And now it's time for T3BE, which new segment, can Thomas beat a coin? I need to clarify some things about the coin, Andrew. This is very important. Sit tight for 15 minutes. No, I'm just kidding. The coin was not to see if I could do better than a four-sided coin at the question. The coin, the point of the coin. I got a lot of feedback on the coin point ofthecoin was I was laughing about how often I narrow it down to two, which I do. I do that. I narrowed down to two properly, you know, 97% of the time. So virtually every time, occasionally I miss, but almost every time. And then I was laughing at how often I'm picking the wrong of those two. So my joke was, can I beat a coin at that second pick? So that's why I'm not doing like a four-sided die or whatever.

And they said that a pick of of destiny, you know, there's a risk that, uh, my California state bar association says, don't use a pick of destiny. Uh, you Know, there is a risk. That's an unfair pick. I don't want it to, and I don't wanna do the testing required to make sure it's a fair pick. So I'm gonna just do the Google, like flip a coin tool and we'll say heads agrees with me. Tails doesn't.

0:56:23 Andrew: All

0:57:09 Thomas: There we go. Can Thomas beat the coin? That was what I spent most my week working on instead of the spreadsheet. Andrew. It was all that, all that coin related bylaws.

0:57:19 Andrew: Let the record reflect that after one One question, you are kicking the coin's ass. So let's see if we can keep that streak going. Thomas, a defendant, was prosecuted for mail fraud. At trial, the defendant moved to have all witnesses excluded from the courtroom, and the court granted the motion.

0:57:25 Thomas: Oh yeah. Coin sucks. Zero percent.

0:57:56 Thomas: What the, Oh God. I don't know what this is. Okay.

0:58:02 Andrew: A. No, provided that the government can show that the agent's motion presence is essential to the presentation of its case. B, no, because the government has a right to have its designated representative remain in the courtroom throughout the trial. C, yes, because the agent's testimony might be influenced by the testimony of other witnesses. Or D, yes because the defendant has a Right to exclude all persons who may be called as government witnesses. All

0:58:29 Thomas: So this is interesting. This is a question where I had no idea what was happening until the answers helped me kind of figure it out. This a new one on me. I mean, we've done this show for a lot of years. There's, I don't think I've ever heard of this particular, whatever rule this is, you know, like I've, we've never touched on it that I know of. So it sounds like you can say, I do not want witnesses watching the trial. I did not get what it meant from excluded from the courtroom. I thought it was like, you do not get witnesses or something, but no. Okay. It sounds like, okay, can move as a defendant to say, I do want witnesses watch the trial because that is going to affect, you know, how they testify, which actually makes a ton of sense. They should not be allowed to watch, now that I think about it. But just based on the way like memory works and stuff, you know, you're going to like change your story, I think would change if you heard other people's accounts of what went down, you might emphasize different things.

0:59:16 Thomas: So the government, but then I guess there's also something where you can name a designated representative. Then this is, it seems like a second issue. And it sounds like the government is doing a one weird trick in this bar question to like keep a witness in the courtroom by designating them as a representative. I don't know how I could possibly answer this one right other than pure luck. So, excuse then. The defense finds out that the government, who's, you know, prosecuting the defendant, has done this shenanigan. It's like, hey, wait a minute, the FBI agent is going to give testimony. And and so they move that the agent also be excluded from the courtroom. Room. So the question asks, should the defendant's motion be granted? So it basically sounds like we've got two rules that I've never heard of in my life.

1:00:02 Thomas: And which one of these rules is better than the, you know, which one like matters more than the other. So is the, the rule that you have to exclude all witnesses, you knows, if you grant that motion, does that take precedence over this designated representative? I don't know. Does that, that doesn't mean he's arguing the case. What is a designated representative? Get it. Does that mean he's arguing the case or something? Or no, it can't be that. You get to just have somebody in. Does each side get like a designated representative to just watch or something. I don't know what that is. So we'll have to guess our way through this one. Okay. A, no. So the motion to exclude the FBI agent is at stake here. A, no, provided the government can show that the agent's presence is essential to the presentation of its case.

1:00:50 Thomas: Okay. B, no because the government has a right to have its designated representative remain in the courtroom throughout the trial. Okay, that could be true. This is impossible. I don't know these rules. Okay C, yes because the agent testimony might be influenced by the testimony of other witnesses. Yeah, that sounds like the basic basic reasoning for this motion. And D, yes, because the defendant has a right to exclude all persons who may be called as government witnesses. So, that's a tough one because the two yes answers are basically the same. So like, C is a good reason for D to be true. So, I don't know which yes answer would be correct. So is it yes, because the agent's testimony might be influenced or yes, yes, because the defendant has a right.

1:01:37 Thomas: Like the reason the defendant has a right to exclude persons who may be called as witnesses would be because of that thing. But it's weird that it says, yes, because the defendant has a rights to exclude all persons who may be called as government witnesses. I don't know if I'm reading too much into this, but that seems oddly specific that like you might be called as a government witness. I guess it's just because every time you're in a criminal trial, it is the government.

Is that true? Is that what's happened? Maybe that's all it is. This is truly an impossible question for me because it's just two rules and I have no idea. Like, so here's what I'm going to do. I'm going to hope that we, I'm, I'm gonna, I'm gonna go between B and D. I have no confidence in this, but I think I'm gonna err on the side of like the no-nonsense rules and say it's either B, you always have the right to have a representative remain in courtroom, or D, you always have the right to exclude all persons as witnesses. So that's my, that's my that that's my last chance. That's my two that I'm going with. I've, this may be the one time in a hundred that I don't get the second chance bar exam right. So, or the one one time in, I don't know, 50. So, uh, that's going to be funny that I just said that before this. So I'm going to go with, I think the defendant should have a right to exclude all persons that may be called as government witnesses. I just think that's important for a trial.

I, this may not be right, but I think that the morally right thing, like you should be able to not have them watch the trial. And I'm gonna say that that just overrides it because, you know, what the government can do? Pick another representative, you know, like that, that the, the language doesn't say that, but I feel like that's a perfectly reasonable choice. So I've picked D. So heads will be D and tails will be B. Here we go.

1:03:16 Thomas: I'm flipping the coin, digital coin, Okay, the coin agrees with me. So me and the coin say D, final answer, yes, because the defendant has a right to exclude all persons who may be called as government witnesses.

1:03:27 Andrew: Right. And if you'd like to play along with both Thomas and the coin, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your answer, your reasons. Therefore, we will pick a winner and shower that winner with never ending fame and fortune. Fame and fortune not guaranteed.

1:03:42 Thomas: And that's our show. That was a ton of fun, but it's going to be even more fun on Tuesday. Make sure you tune in for Transformers Law, but it is a real IP, intellectual property question. So, Transformers and and intellectual property. That's going be fun. I can't wait. Tune in then.

1:03:57 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:04:31 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.