OA490: Chauvin Sentencing – Four Aggravating Factors

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 490. I'm Thomas. That's Andrew. He has been shuffling digital paper all morning. I see just smears of ink all over the whiteboard. How are doing?

0:01:31 Andrew: Yeah, it is going to take forever to get this white out off my monitor. But yeah, it's been a morning, it has been a day, but I am fantastic. It just meant more documents for me to read and nothing makes me happier than that.

0:01:45 Thomas: And we know that's what you're into, you freak.

0:01:49 Andrew: That's true. Hey, don't kink shame.

0:01:52 Thomas: Yeah, lots, lots to talk about. We better just get right to it. We do have a couple quickies in the beginning. We can go through, um, math correction. This is important.

0:01:55 Andrew: Let's do it. Yeah. Yeah.

0:02:01 Thomas: We care about facts on the show.

0:02:05 Andrew: Patron, I'm looking forward to voting Ron Johnson out of office. Caught a dumb math error of mine from episode 487. So I pointed out that the Voting Rights Act has been multiply extended. And then I said it was last extended in 2006 for 25 years. And for some reason, I thought six plus 25 was 21. So that means it expires in 2031. Breathe a sigh of relief. Hope we elect a Democratic president in 2028. Hope we elect a Democratic House and Senate in 2030, and hope we've blown up the filibuster at some point over the next nine years.

0:02:23 Thomas: Yeah. God, if we haven't done that by then, then I think we just won't have a, uh, country anymore. So it'll be fine.

0:02:41 Andrew: Yeah then I will quit the show

0:02:47 Thomas: Yeah. So yeah. Important math fact, six plus 25 is 31. Do you want to run through your times tables, or is there anything else, just while we're on it, uh, uh, we had another uh comment, though.

0:02:47 Andrew: Yeah thanks thanks yeah yeah So a patron, I'm going to keep them anonymous, wrote in and said, I was very recently a much more conservative person. I voted for Trump the first time. I figured he'd be impeached within the first year. We'd have some milquetoast guy from the Midwest. I was wrong on all accounts. Pence is just a quiet monster and our system is broken. And it didn't take long for me to realize that fact. It's been a terrible few years, and I feel partially responsible for that. It shows like yours that helped me walk away permanently from my previous ideas. And as an atheist, I have the foggiest idea how I reconciled that with being a conservative.

0:03:19 Thomas: Huh. Yeah.

0:03:39 Andrew: You guys are doing a fantastic job, and thank you so much. Well, you warmed my heart when I saw that message this morning. And I wanted to share it with you, Thomas. Yeah.

0:03:49 Thomas: No, that's great. I can't believe it. I'm, it's such a rare thing. It's like, I didn't know people change their minds anymore. You know, I feel like I'm at the end of that children of men movie where the baby cries and everybody's just like stunned. I don't remember what that's like to hear somebody think rationally and change their mind away from being a Trump supporter. I, I don't know what to do. You're on frozen.

0:03:58 Andrew: Yeah.

0:04:12 Andrew: So I think I think at least I'm going to continue doing the show. How about you?

0:04:18 Thomas: Yeah, for sure. Let's, let's, uh, let's do it. Let's work on another baby. You and I, let's keep trying Andrew. Uh, okay. Also, yeah. Why don't you cover the the things we're maybe covering and not covering because there's just too much to cover.

0:04:21 Andrew: All right. Yeah, there we go. Yeah. A lot of things broke this week and a lot of things broke this morning, including the news that Joel Greenberg, Matt Gaetz's troublesome associate, is going to plead out on Monday. And presumably the reason to do that is to testify against Gaetz. But we won't know until Monday. We record this on a Thursday. We also learned that the New York attorney general state investigation into the Trump organization has subpoenaed the private school where Trump, Trump org CFO Alan Weisselberg. It's the school that his kids attend. I have long said here on Clean Up on Aisle 45, Weiselberg is the guy who knows where that the bodies are buried from a financial perspective, right? Like, he signs off on every dollar that Donald Trump spends.

0:04:42 Thomas: Ah, yes.

0:05:29 Andrew: Um, he was aware, you know, that Trump committed a crime by, uh, settling a public debt by buying a picture of himself and hanging it at Mar-a-Lago, right, like, but yeah, right.

0:05:35 Thomas: Yeah. That also involves not signing a bunch of checks to vendors, by the way. Just like, hey, can you not sign this real quick? We're going to not pay a vendor. Yep. Sure. Done.

0:05:45 Andrew: Yep. Yeah. So that, you know, is potentially consequential. But right now, you know, we we don't have the documents. We don't the plea deal. I don't, I don't

0:05:59 Thomas: Yeah. But why are they subpoenaing? You said they're subpoening. I think I put an H in there. Subpoenahing. No, there's, why are they subpoenaing the, his kid's school? What is that?

0:06:12 Thomas: Maybe the kids are in on it. Those little shits.

0:06:17 Andrew: Have of I would draw is that some of the ill-gotten gains were probably used by Weisselberg to, you know, donate money to the school, right? Like private schools typically run at a loss and have to solicit donations from their wealthy patrons.

0:06:20 Thomas: Yeah. I Those rich people schools where they just have insane amounts of money and then they ask for more money the whole time. It's all a fund.

0:06:37 Andrew: Well, I mean, relative to tuition, Right. But in any event, question is part of what illustrates why we're aware of this, but we just can't cover it yet. Right. Like we would be regurgitating news stories rather than diving into the documents. What we can and will be covering next week in a big, deep dive is how bankruptcy law works and what it means that a bankruptcy court in Texas dismissed the NRA's petition for Chapter 11 bankruptcy. It's fantastic news, and we're going to break down all of that because, you know, we have that actual court Order. So those are some of the big news stories that we're not covering this week because either we don't have the information or we just need more time. So, the NRA is not going anywhere for a while.

0:06:40 Thomas: Yeah. Right. Yeah. Yeah, yeah. Yeah. But is it safe to say that that seems like an indication of a serious investigation? I mean, when you're sending a subpoena to, the kid's school, I feel like you're, you're dotting your I's and you're crossing your T's possibly in the investigation.

0:07:38 Andrew: Yes, I think that is absolutely how I would read those tea leaves.

0:07:45 Thomas: All right. Well, we'll see if those little kids stole any money. No, just kidding.

0:07:47 Andrew: Yep.

0:07:50 Clip: He who questions training, only trains himself at asking questions. What?

0:07:57 Thomas: We had a great great Patreon question from Ian, who says, I'm re-listening to some of my favorite episodes, often with Andy Seidel, yeah. And I can't find whatever happened to the Arlene's Flowers case. Does the Supreme Court have a pocket denial of cert and. Did a year of plague stuff up the Supreme Court's docket as much as it mulched everyone else's plans?

0:08:20 Andrew: Yeah. Ian is referring to episode 180 in which we covered the Arlene's flowers case. That's a hate florist. We had on Andrew Seidel, who made I went back and re-listened to it

0:08:31 Thomas: Were we wearing bell-bottoms? And, you know, like, 180, that's forever ago. That's 310 episodes ago. You had a handlebar mustache.

0:08:36 Andrew: Yeah. After Andrew Seidal, the that. Yeah. Our next guest was Olivia Newton-John. So, you know, it was it was really good. But it contained this amazing prediction from Andrew Seidel that the Masterpiece Cake Shop decision would supercharge the Church of the Lukumi Babalu'ai versus City of Hialeah. He says it explicitly. He's like, yeah, well, so now, you know, it's going to be much, much easier for religious groups to claim, you knows, City of Hayalia that they were discriminated against in the legislative process. And that has been exactly what the courts have latched on to. It's really, I mean, again, a much better prediction than anything I've done on the show. So, uh, deserves a huge shout out. Uh, but

0:08:44 Thomas: Yeah. Well, don't

0:09:25 Andrew: Yeah,

0:09:25 Thomas: Sell yourself short. You nail every single Supreme Court nominee.

0:09:29 Andrew: I just find like the most odious It somehow works. Works. Whatever did happen to Arlene's Flowers? So as a quick reminder, this was a 2013 case. The who was involved, I presume a descendant, guy right? Named Robert Ingersoll who Arlene's Flowers, owned by Baronelle Stutzman. You might require the short-lived hashtag Justice for Baronell. Um, and you same fact pattern as a lot of these cases: Stutzman told Ingersoll, "Yes, I sell flowers, but I'm not going to sell wedding flowers to you because you're a big icky gay guy," and uh, because of my religious beliefs and specifically because of quote, "my my relationship with Jesus Christ."

0:09:31 Thomas: Yeah.

0:10:20 Andrew: I will not serve you. Stutzman, and again, this is quoting from the facts of the case, said that she would not sell him any arranged flowers for the wedding, even if he were only asking for, you know, an off the rack kind of arrangement.

0:10:36 Thomas: So in other words, a bigot denied service to somebody on the basis of who they are in a bigoted way. Okay.

0:10:36 Andrew: Right. Exactly. Also in the fact finding was Stutzman acknowledged that selling flowers for an atheistic or Muslim wedding would not be tantamount to endorsing an atheist or Muslim, you religious belief. Right. But, you Know, that that's selling it to a gay couple.

0:10:54 Thomas: That's weird. Which is weird because beliefs are not immutable exactly, usually, and things like your sexuality are immutable characteristics about you.

0:10:59 Andrew: Yeah, right. I think it goes to show, you know, just how not well informed this opinion was. Right. So then the state became aware of Stutzman's refusal to sell flowers and the attorney general's office sent her a letter and said, hey, we will not proceed against you if you'll sign this letter, which is an assurance of discontinuance, which says, yeah, just just promise not to discriminate against individuals going forward. If you do, if you comply with our law, then we won't have to take any steps against you. Right. Perfectly reasonable. Stutzman refused to sign the letter. So then the state filed a complaint for injunctive and other relief under the Washington Civil Rights Act. Trial court basically looked at the facts and said, is you are very clearly in violation of the law and you have no excuse for that.

0:11:59 Andrew: The whole like religious exception thing doesn't doesn't fly here when you're talking about refusing to sell products to one group of people and not to another on the basis of a characteristic that is protected under Washington law. And the Washington State, the Supreme Court affirmed and said, yep, that's right. Baronel petitioned for certiorari in 2017. There were multiple extensions, lots of amici filed, all that sort of stuff. And then in the middle of the case, right, like while all of that was pending, that is when the Supreme Court decided the Masterpiece Cake Shop decision, right? Which on very similar facts reversed and said, you know, that Colorado was insufficiently respectful of the cake bakers.

0:12:44 Thomas: Bigotry. Yeah.

0:12:45 Andrew: Yes. Sincerely held religious beliefs because, you know, in evaluating their bigotry, they called it bigotry. And, you know, that's really the worst crime here. So. So, how did that affect Arlene's Flowers? The Supreme Court GVR'd Arlene Flowers. What's GVR? That is grant, vacate and remand. Right. And so what you do is you say, OK, we are going to grant certiorari. We are going to vacate the opinion from which certiorari was granted here, in this case, the Washington State Supreme Court opinion. And we are going to remand back down to that court this case with instructions to revisit that decision in light of an intervening decision that's come out that we think might affect that decision.

0:12:45 Thomas: Yeah.

0:13:33 Andrew: In this case, the Masterpiece Cake Shop, right? So the critical thing to know here is that a GVR order, and here I'm going to just quote from the case law, is "neither an outright reversal nor an invitation to reverse. It is a device that allows a lower court that had rendered its decision without the benefit of an intervening clarification of the law to have an opportunity to reconsider that decision and, if warranted, to revise or correct it," end of quote. So, yeah, it's a way of saying, hey, you might have come out differently if you had known we were going to rule this way in Masterpiece Cake Shop, which, by the way, perfectly reasonable thing to say. So they sent the Arlene's Flowers case back to the Washington Supreme Court. And I am here to tell you, you can probably tell from my generally sunny demeanor, the Washington's Supreme Court was like, well, thank you very much. Much we're going to affirm. Right. We're going to say we got it right the first time. And your decision in Masterpiece Cake Shop doesn't change that in any way whatsoever.

0:14:29 Thomas: So? The Supreme Court was basically like, hey, we're cool with bigotry, so why don't you try again? Can you try it again, noting that the Supreme Court is super cool with bigotry against gay people because blah blah blah Christianity? Why don't you try? And then Washington's like, same answer, we're not cool with bigotry. Is that what happened? Yep.

0:14:46 Andrew: Right? Yeah. That's exactly right. And so in doing so, this is really an instructive way for courts, particularly in jurisdictions that are not hostile to LGBTQ individuals, individuals to read Masterpiece Cake Shop sort of in its proper context and in a way that does not constrain the rights of the state to actually care about civil rights. So said Masterpiece Cake Shop basically boils down to two holdings. Number one, that you cannot evidence hostility to religion in your decision making, but that you can still enforce a but but that you can still enforce a neutral and generally applicable public accommodations law, right? An anti-discrimination law. That was page 491.

0:15:36 Andrew: And that also you have to treat similarly situated parties similarly similarly. So what does that mean? You might remember that in the Masterpiece Cake Shop decision was all of this nonsense where like folks in Colorado like went to bakers and were like, hey, could you put a swastika on the cake? Or, you know, could you put like this hateful message on the cake? And the baker was like, no, man, like I'm not going to I'm going to do that. And so the Supreme Court was like. Like, well, you are not really treating all. And, you know, it was just nonsense. Right. Here, the Washington Supreme Court is like, look, we're treating all of the parties the same way. Anybody who wants to discriminate against gay people in the provision of services, we are going to say comply with the law. And that does not evidence hostility to their religion. And it does not evidence a uh thumb on the scale either way.

0:16:04 Thomas: I Sounds Good. We should have the Washington Supreme Court be the actual Supreme Court, sounds like.

0:16:39 Andrew: We We should, um, their language is really good, right? It says, "it would take a broad expansion of Masterpiece Cake Shop to apply its holding that the adjudicatory body hearing, uh, okay, in a case must show religious neutrality, uh, to a party. That is especially true here where the party supposedly exhibiting anti-religious bias is Washington's attorney general. By arguing that Masterpiece Cake Shop's holding about adjudicatory bodies applies to the attorney general's enforcement decisions, appellants essentially seek to revive their selective enforcement claim, a claim that was rejected by the trial court and abandoned on appeal." You know, not being said because it's dumb, right?

0:17:19 Thomas: Yeah.

0:17:20 Andrew: Appellant's decision to abandon that claim on appeal was sound. That's as close as the court gets to sounding like me. Controlling precedent shows that claims of selective enforcement arise in a very different context than claims of biased adjudication. In the criminal arena, the U.S. Supreme Court has noted that selective enforcement claims invade a special province of the executive, its prosecutorial discretion. So there you go. Happy result. Either there was no cert petition, which I suspect was the case, or it was subsequently denied. Right. Because the Supreme Court was like, yeah, I'm not I'm not going to second guess the state of Washington applying its facts in that case. There's not a need to do that. But it's possible that that the ADF didn't even appeal because it would have been I mean, who knows, given this Supreme Court, but it would have it would Have been a very, very favorable verbal case for those of us, you know, on the side of separation of church and state.

0:18:18 Andrew: And, know, the Supreme Court has its hands full with cases where it can freely rule in favor of Christian privilege. So didn't mean to undercut how good a ruling this was. It really, really is. And I'm glad that Ian asked about it and we went and tracked it down because this is good guidance to states that, you despite where the Supreme Court is, you can still pass anti-discrimination statutes.

0:18:43 Andrew: That's still conceivable law for, you know, at least the near term anyway.

0:18:43 Thomas: Yeah, yeah. Keep fighting for, you know, basic human rights and dignity and, hope that the Supreme Court is too busy to overrule you. I don't, still not sure what the positive message is here. I guess for now they haven't overruled that one.

0:18:51 Andrew: Yeah.

0:19:00 Andrew: Yeah, and again, you know, as we've talked about in other state law cases, state Supreme Courts, I believe, will start saying that they interpret their their

0:19:11 Thomas: Base it on your own state constitution. Yeah, definitely.

0:19:13 Andrew: State constitution, not in party materia with the federal constitution. Yeah, that's what you have to do.

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0:21:01 Clip: Down the law, down the law.

0:21:05 Thomas: Lot of breaking news on the Chauvin case. I think even the news I was going to talk about was the aggravating factors in the the sentencing But I think there's been even more since then, so I think I'll just go ahead and let you introduce what we're talking about.

0:21:11 Andrew: Yep, yeah. So and this is bound to so some confusion. This was a motion to sanction Prosecutorial misconduct filed by Officer Tao, I think I'm pronouncing that correctly, in his separate state criminal investigation and trial. Right. So first, you need to know that all four cops who were involved with George Floyd's death have been indicted under federal law for violating 18 U.S.C. Section 242. That is, whoever willfully subjects any person to the deprivation of their constitutional rights. And there are three charges of depriving George Floyd of his constitutional rights and also. There are separate state charges against Officer Kang, Officer Lane, and Officer Tao, who were the other three officers at the scene. That is scheduled to go to trial on August 23rd, and they are charged currently with aiding and abetting second-degree murder, right, and aiding and abetting second degree manslaughter. And there is oral argument before the Minnesota Court of Appeals as to whether the state prosecutor can add charging them with third degree murder.

0:21:49 Thomas: Right. Right.

0:22:41 Andrew: Right. Because, again, remember, Minnesota's unique third degree murder law. So so those charges might get added on as well. So but in the separate charges against those others, Those other officers and specifically in the charges aiding and abetting and third degree murder against Officer Tao, his lawyer has now filed a motion to sanction the prosecution for alleged misconduct. Again, I have and will include a copy of the motion, underlying documents are just not available. But the allegation is that one of the prosecution's expert witnesses in the case against Tao, not somebody who was called in the Chauvin trial, is the former D.C. chief medical examiner, a doctor named Roger Mitchell. And the allegation in this motion is that he pressured Andrew Baker, who is the former medical examiner in Hennepin County, Minnesota, who did testify in the Chauvin trial and who testified as to Floyd's cause of death, and we anticipate will testify in in the case against how that that Mitchell pressured Baker to include, quote, neck compression in his diagnosis, right, in the autopsy.

0:23:19 Thomas: That

0:24:06 Andrew: And the the pressure, the the allegedly uh unfair pressure was that otherwise he would release an op-ed that would be critical of Baker's findings, right?

0:24:18 Thomas: Doesn't. Hmm.

0:24:18 Andrew: Yeah. Yeah, yeah, I'm

0:24:19 Thomas: Like I feel like I could do that. Do you something, or else I'm gonna publish a podcast about you? Yeah.

0:24:25 Andrew: Gonna say I'm going to say that you're a terrible medical examiner.

0:24:26 Thomas: I'm going to use my free speech rights to say I disagree. That's doesn't sound like, unless you're going to tell me otherwise, but yeah

0:24:35 Andrew: No, that is that is it for the allegation.

0:24:37 Thomas: It's not like you're gonna lose your job, or I'm gonna kill your family, or something. It's just like I'm going to vocally disagree with you on the internet.

0:24:37 Andrew: Right. And yeah, And in fact, this should not be a surprise, because after David Fowler testified in the Chauvin case, right, we actually talked about that when we were running that down. David Fouler is the former chief medical examner for the state of Maryland. Right. And he basically testified on his review of the evidence that there would be, it would be impossible to determine what the cause of death was. And after Fowler testified, Roger Mitchell wrote a letter to our buddy, Maryland Attorney General Brian Frosch, saying, hey, in case you didn't know, your former medical examiner just testified on behalf of the defense here in Minnesota. And the stuff he's saying is appalling. And you ought to go back and take a look at all of his prior testimony in all of his prior cases, which, by the way, is a totally appropriate thing to do as a medical examiner, right, is to say, hey, I'm concerned about the ethics of this guy.

0:25:45 Andrew: And also that that is entirely outside the jury, no, right? He didn't send a letter to the jurors, right. He sent it to Brian Frosch. And in fact, Maryland is going to do that. They have opened up an investigation into all of Fowler's past cases, which is entirely appropriate if you think that a witness has been biased in favor of the police. Right. So let's break that down. That That is the allegation that is that is listed as prosecutorial misconduct. And the idea is that you knew that this guy was secretly leaning on your medical examiner and you let it go forward. Now, even if true, it doesn't strike me as an example of prosecutorial misconduct. I can find no examples of a case in which pressuring a witness occurred outside of kind of the normal chain of events.

0:26:39 Andrew: If this was Andrew Baker's direct supervisor or the governor who called him up and said implicitly or explicitly, you're going to get fired if you don't include neck compression in the diagnosis, that would be very different. But but the allegation here seems to be that somebody utterly unrelated called up the medical examiner Before there was a trial and said, hey, man, you're going to look like an idiot. And I'm going to call you out publicly if you don't actually list all of the factors in your diagnosis. But let's assume that that there was something inappropriate or coercive here, there is a reason that this motion has been filed as a motion for prosecutorial misconduct in the Towel case. Right. Would it lead Chauvin's attorneys to supplement their motion for a new trial?

Yeah. If if the court grants relief here, they will certainly add it on to the list of stuff that they think that was inappropriate. But I want to tell our listeners there is virtually no chance, right, unless the facts are very, very different than they've alleged, there is virtually no chance that this would be the basis for granting a new trial on appeal for Derek Chauvin. Not the least of which was that Baker's testimony did not hinge on the inclusion of neck compression as a cause of death. He just said, I stand by my autopsy findings. He testified that that Floyd's death was a homicide, quote, caused by cardiopulmonary arrest, complicating law enforcement, subdual restraint and neck compression. End of quote. That's the closest that

0:27:04 Thomas: Uh-huh. Yeah.

0:28:36 Andrew: It came. Right. And He said that although the underlying conditions, right, the heart disease, the fentanyl and the methamphetamine use were, quote, contributing causes, but not direct causes, because they did not cause the subdual or the neck restraint. So, in other words, pressured Baker into including neck restraint, neck compression into the diagnosis in the autopsy, there is absolutely no evidence that those words the difference maker to the jury. And nothing, right, in Baker's testimony in the Chauvin case, in my view, would would survive that being anything other than than harmless error. And I would add, because on cross-examination, Baker, right, was asked specifically about the videos, and he testified that he did not believe that the neck compression that he saw in the videos would have restricted air or blood flow to Floyd's brain, but that it would have contributed to physiological stress, increased adrenaline, and elevated blood pressure.

Right. So in other words, all this information seems to have come out on cross examination already. Right. The only thing that didn't is, you know, is Roger Mitchell zealous about this case, which, again, is the kind of thing that that a court is very likely to say, like, yeah, well, ask him about it. I'm Right? Not going to prevent him from testifying. If you think revealing, it I'll let you I'll Let you ask him about it. I'll put the op ed into evidence, and then we'll let the jury make up its mind. That's what juries are supposed to do. To Right.

Say, oh, do we think that Mitchell is a bad witness? Do we think that he has, you know, an ax to grind, that he just, know, wanted to kill the lily here. Well, you know, the typical remedy for that is, all right, I'll let you introduce that as evidence on cross.

0:28:37 Thomas: Huh. Yeah.

0:29:55 Thomas: Makes sense to me. Seems

0:30:39 Andrew: By the way, that may be why the prosecution in the Chauvin trial decided not to call it, probably right? Looked at it and His testimony would be cumulative and it's possible that he's going to look like an overzealous witness. So, you know what, like we're not going to give him the chance to put that op ed and to say that, you Know, we've got an accident, which is not going to call this guy. And, and by the way, that's a decision that litigants make all the time, right, in terms of figuring out which witnesses you're going to call which witnesses, you're not. Sometimes a witness has useful information, but you are concerned in front of a jury record is going to get muddied up the by other side's obvious efforts to discredit. I did that in a huge insurance coverage case where, you know, my one of my potential expert witnesses had a long history of saying stuff in public.

0:31:34 Andrew: Right. And none of it contradicted my case. But I knew we were going to get like six hours of impeachment of, you know, this guy saying stuff that, know, that potentially looked bad on cross-examination. And, you Know, we just made the decision as a tactical decision not to call the guy.

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0:33:44 Andrew: Again, remember, this is a separate motion in a separate trial and it's a motion for prosecutorial misconduct. And the relief that they've asked for, the primary relief they want is to dismiss the a case against Tao.

0:33:58 Thomas: Extreme. Yeah.

0:33:58 Andrew: Yeah, well, you know, but but if there was genuine if suppose, right, that the prosecution, the lawyer had called up the medical examiner and the medical examiner was about to say, you Know, this cause of death is natural causes. And the lawyer called him up and said, You better not. You better say that this is a homicide. Right. That's that's the kind of example in which you would award that sort of relief. Not here, obviously, otherwise, you know, enter into certain facts, Mitchell, right, coerced Baker, that he coerzed Fowler, which seems bizarre, that the state ratified that coercion in order preventing all of these prosecutors, including Neal Catchall, who's, you know, been hired as outside counsel by the state, barred from prosecuting the case because they knew about it, bar complaints against everybody. And maybe the only relief, unless the facts change, maybe the only relief I could that see being issued in this case, which is they be allowed to ask the jury and that a juror be excluded, excused from the pool if they read Mitchell's op-ed in the papers, which I think is an appropriate order, by the way, like, assuming these

0:34:19 Thomas: Yeah.

0:35:14 Andrew: Facts are what they are, are

0:35:14 Thomas: Single juror. No, I don't read the paper, what are you, you talking about. Yeah.

0:35:17 Andrew: They? But there you go, you will likely have seen this news. I am sure you know, we are ahead head of the Fox News cycle, but I am sure that that it's going to be blown up.

0:35:30 Thomas: They'll just say, like, prosecutorial misconduct, and then Chauvin, right, I mean, they'll, they'll kind of pair that together misleadingly.

0:35:36 Andrew: Yep. Yep, Tucker Carlson will lie about what this is. So so now, you know, and hopefully you can get out in front of Uncle Frank.

0:35:40 Thomas: Yeah. So to summarize, it's basically a nothing. That that is not even the Chauvin case. It's the Tao case. And so nothing should happen. OK. All right. But let's get to the sentcing now, unless I'm mistaken, Andrew, this was exactly what you told us would happen, right? This is an Andrew was right. Ding, ding, ding. Ding,

0:35:53 Andrew: Correct. Correct?

0:36:05 Andrew: There's one tiny thing that I don't want want to say tiny. There's one thing that I was wrong about on the substantive level, but it's good that I Was wrong about that. So yeah, in episode 484, we talked about procedurally what was going to happen after the jury found Derek Chauvin guilty. And that is that the prosecution was briefing motion to depart from the sentencing guidelines on the basis of aggravating factors. We looked at those sentencing guidelines and identified four separate aggravating factors that that the court might find relevant in in adjudicating this case. And I said, yeah, the best cases are from 1 to 11 and 13. And one is that the victim was particularly vulnerable due to age, infirmity. Right. Two is that the victim was treated with particular cruelty.

0:36:14 Thomas: Yeah.

0:37:01 Andrew: Eleven is that The Offender intentionally selected the victim because of race. Right? And 13 is that THE OFFENSE was committed in the presence of a child.

0:37:10 Thomas: And those all seem pretty spot on. So how do you do?

0:37:12 Andrew: Yeah. So. Uh, well, about 50-50, um, what we have is we have the uh results uh issued by the judge, and remember we we talked about the judge is the fact finder here because uh Chauvin executed a Blakely waiver, he has the right to have those factors adjudicated by the jury, um, very sensibly his his counsel was like, "We'll have the judge do this instead.

0:37:41 Andrew: And so the court found, and again, these findings are beyond a reasonable doubt, so the court find two and 13 beyond a reasonable doubt, that is that the victim was treated with particular cruelty because he was, and that the offense was

0:37:18 Thomas: Okay, oh, yeah, yeah that makes sense, and

0:37:56 Andrew: Committed in the presence of a child because it was right. It also found two non-enumerated factors, and one of those almost models one of the factors that I said they probably weren't going to take a look at. They did not look at the racial elements, and don't know why that is.

0:37:56 Thomas: There's a child, yeah hmm,

0:38:16 Andrew: It strikes me as odd because it's pretty obvious that it was. Was. But you don't technically need any of these elements, right? Like I said, there were two non-enumerated factors. This section of the Sentencing Guidelines says that this is a non-exhaustive, that is, an illustrative list of the kinds of things that can lead a court to determine that you should depart from the the sentencing guidelines.

0:38:15 Thomas: Yeah that is weird, this is all just the judge doing this right, as you said, so you know he's done a good job, but who knows, you don't know like this if is some woke guy, or some like kind of conservative guy, who's like ah race has nothing to do with it. It was just a police, you know, going a little overboard, board, who knows.

0:38:40 Andrew: Yep, exactly right. Could be.

0:38:54 Thomas: What yeah.

0:38:55 Andrew: Let's talk about the two other things that came up. The two and the 13 are totally straightforward. The cruelty is reiterated it over several pages.

0:39:03 Thomas: Point. Oh, yeah, hmm.

0:39:06 Andrew: Yeah, no, it is. Right. But I passed over factor 10, which says it's aggravating if the offense was part of a group of three or more offenders who all actively participated in the crime. And I did so thinking that the court would not want to wade into and sort of prejudge the other three officers. Here's what the court found, right? The court found, quote, "the defendant committed the crime as a group with the active participation of at least three other persons." Right. So that officers Lane and Kung were actively involved in the restraint of George Floyd that ultimately resulted in his death. Officer Tao was actively involved by keeping bystanders away from Mr. Floyd and in so doing allowed the other officers to continue an unreasonable use of force and to prevent bystanders from rendering medical aid to Mr. Floyd. All correct, all justified by the trial verdict and testimony. And then the court says, and this is super smart,

0:39:18 Thomas: Yeah, sake

0:40:13 Andrew: No finding is made as to whether the active participation of officers Lane, Kung, and Tao was accompanied by the intent and knowledge necessary to establish that they are offenders subject to criminal liability. Right. So it said, look, we're almost at number 10, but I don't want right because they're pending criminal trials against these guys. I don't want to prejudice those trials by saying they are definitely offenders. I want to say they were active participants in committing the crime and that will bulletproof the appeal on, in my view, on aggravating factors, Because if there is, you know, suppose there's some weird wrinkle and the prosecution decides, you know, or you get a directed verdict, let's say there's more to this, prosecutorial misconduct that there isn't.

But, you know, in that alternate universe, yeah, for the sake of argument, you would not want an An acquittal of Tao to then be used by Chauvin on appeal to say, oh, see, look, the court said it was aggravating because they were offenders, but they were judged not to be offenders. Right. By another court of competent jurisdiction. And therefore, you this finding is clearly erroneous by saying, yeah, no, no. We're not prejudging their guilt. We're saying the video shows them they're

0:41:07 Thomas: Of argument, yeah. Yeah, participating

0:41:39 Andrew: Helping you.

0:41:40 Thomas: Is a more is the term, right? That's a more loose yeah, be pretty hard to deny that, yeah.

0:41:40 Andrew: Yep. Yep, yep. Active, active participation. Right. So, yeah, it I. Yeah. Unless, you know, you you erase history and erase a videotape. So, uh, in my view, that bulletproof said, um, the other non-enumerated factor is, Actually um. How, how the judge leads off, um? The findings, which is that, that the defendant abused a position of trust and authority. It's the longest section of the findings. And, um and you can see sort of the, like, it is the most serious when somebody who was an officer of the peace in this kind of behavior. Not And one of the enumerated factors, but I think it's a really good argument that says, yeah, this is different than other cases because it was a police officer. It was somebody that you should expect would be there to help rather than to hurt. So the the other thing that where I was wrong was was factor number one, that the victim was particularly vulnerable.

0:41:53 Thomas: Several oh,

0:42:43 Andrew: And this turns out to be really smart. That the court says we do not think it is proven beyond a reasonable doubt that the victim was particularly vulnerable, uh, because, um, and here are the findings. Yeah, you see where it's going, right? Um,

0:42:56 Thomas: Because Then that Would, wouldn't it play into the defense of like, like, oh, he was just had a glass neck, you know, like it wasn't actually irresponsible of the officer. Is it that because of that? Oh, it

0:42:59 Andrew: Yep, Exactly. Right, yep, although he was handcuffed, he had still been able to resist arrest and prevent three officers from seating him in a squad car before he was placed in the prone position. So that by itself did not create a particular vulnerability. His drug intoxication did not render him particularly vulnerable compared to other victims of murder. And restraining George Floyd with the weight of three police officers on him for a prolonged period did not create a vulnerability that was exploited to cause death. It was the actual mechanism causing death so, yep, Totally fair. That's the result. Uh, yes.

0:43:37 Thomas: Was. Yeah. Yeah, that's fair. So you, Andrew's second chance sentencing exam to this, I think. I think you outlined the reasonable cases for the the choices. And you know what? The sentencing examination gave you 50 percent, Andrew.

0:43:47 Andrew: Exactly. Exactly. That's exactly right. Yeah.

0:43:55 Thomas: I've been there. I know what it's like.

0:43:57 Andrew: Sometimes you get the sentencing exam and sometimes the sentancing exam gets you.

0:43:59 Thomas: Yeah, but there's valuable insight. But, you know, the sentencing exam had other things in mind for half the answers. That's all. Boy, I can really relate to this.

0:44:07 Andrew: Indeed. So there you go, that's how you make sense of that. That. And and we are looking for sentence in excess of the 10 to 12 and a half years that would be called for by the sentencing guidelines. And we'll see and cover here when the court actually hands down the the sentence. But we know that they have found aggravating factors.

0:44:36 Thomas: This episode is brought to you by Xchair, folks. I love my Xchair. And what's funny is I'm literally telling you about the thing I'm using as I'm right now, as we speak. I record every OA from my X chair. I love it. I've never had an office chair that looks and feels this amazing in my entire life. It's so comfy that I can sit for hours and I never feel uncomfortable, which is very important to my career. And with more people working from home than ever, I suspect it's very important for you folks as well, the secret is not only their patented dynamic variable lumbar DVL support, which offers unbelievable lumbars support to my lower back, but now, thanks to their new XHMT technology, I can also get heat and massage therapy while I'm sitting at my desk. Instead of my old uncomfortable office chair, now I look forward to spending hours sitting in the ultimate therapeutic massager. The X HMT delivers heat and massaged technology right to my core, helping increase blood flow, muscle recovery, and energy.

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0:46:27 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:46:37 Thomas: Time for a quick update. You know, last week I mentioned using that tool for the census and the thing. And was checking whether the 89 number for New York is true. Well, So we got a little update from the creator of that particular widget and, uh, apparently a lay user, uh that while they say here, I'll just quote, I was using the resident population instead of the apportionment population as the census data input. And put a correction in red letters at the top of the page. The algorithm itself is implemented correctly, as far as I can tell, and the number 89 is true for New York. So, yep, 89 people away from that extra seat, which is just crazy. But anyway, so yeah, that was the culprit there. It looks like a little bit of bad data in the input, but that's okay. It's fixed now. If you wanted to still go go to that widget. And that's apportionmentcalculator.com. So super cool super that this listener made this. And now that the data is correct in there, it should be cool to play around with. So check it out if you'd like to.

0:46:53 Andrew: Yep.

0:47:40 Andrew: Yep. And then we got a really cool in-depth letter from Roma Hicks, a patron who is a GIS. She is a geospatial information system manager. She writes in parentheses, very helpfully, think city cartographer for a small city in the Midwest. And she says, every January, the census performs what is called the boundary annex survey. It is how cities update the census on annexations, new streets, etc. They create the census blocks by literally subdividing the area of the U.S. with streets, rivers, streams, school districts, city boundaries, almost any geographic or administrative boundary to create small polygons. So it is actually possible to have blocks that can have one household in it with one person or no one.

It's even possible to Have a block that contains only water. Obviously, that has privacy implications, and the census has traditionally emphasized protection of citizens' data. Census workers talk about this all the time, and when doing the local update of census addresses, L-U-C-A, during months that lead up to count day, I had to sign disclosures with stiff fines, jail time, and possibly be subject to random data protection audits. In regard to Thomas's question, everyone, that's all caps, and I mean everyone, uses the census data. Private industry, local to federal government, is probably the most important data product produced

0:47:51 Thomas: Hmm. Yeah. Hmm, wow.

0:49:09 Andrew: By the U.S. government, and everyone should take its integrity very seriously. After my zoning and stormwater data sets, the census's population data sets is my most used data set. Almost all federal state grants request that you, the applicant, tell them statistics of your service area in the grant applications. And again, that comes from census data. Cities also use it internally for measures of progress or defining service areas for things like fire protection or city programs. Corporations use census data for deciding on whether to open a facility or a shop in a particular geographic area. Errors in the census data can have compounding effects that affect more than just how you are represented in Congress, but also future services and economic growth. All useful. The noise Andrew speaks of is commonly known by people who work with census data. It was discussed in my urban planning classes regularly in college.

0:49:12 Thomas: Yeah, yeah,

0:49:59 Andrew: The people who use the data know it's there and plan accordingly. Accordingly, though I'm not a skilled statistician, I'm not concerned about bias in the method used to protect the individual's privacy as much as I am concerned with the completeness of the census. The city I work for is a rural college town with a large number of Mexican workers nearby. Between the pandemic and the citizenship question, my economic development director, community development director, and I are very concerned about whether the census will negatively affect the growth of our city until 2030 because of that compounding problem. I wish we could just carry out another census in 2022. Well, I share that desire.

0:50:34 Thomas: Let's Do it. Didn't You say we could

0:50:36 Andrew: Certainly is legally possible. So we're going to have to see what the Biden administration does. But I love that kind of deep dive on how the census data is used. It also, I think, validates a little bit of my thought in terms of where you want to err in of weighing in on the lawsuit that we discussed. And it sounds like that those people who use the census data are aware of the methodology that is being used to protect privacy. They can and compensate for it. So the goal of getting as full and complete account as possible, which depends on assuring individuals that their data will not be compromised. Seems like that's the side we ought to err on. That's where I was inclined anyway. But it's great to get some some confirmation so Roma thank you so much for writing in

0:50:41 Thomas: That Is Super cool, I have to confess, I just was not at all in the mindset of like a census block, I was like, what is a census blog, you know, I didn't think about it, sounds like it's literally what you would use to be like, hey, census worker, go cover this territory like you have from like this railroad to this you know, stream or what, like, it sounds, sounds like it's useful to actually physically divide up where you're counting people. And I just was not in that state of mind. I was like, is it a county? Is it a city? You know, but that's a super interesting.

0:52:07 Thomas: I want to be the worker that takes all the good census blocks that has like nothing.

0:51:52 Andrew: Yeah, Yeah, Yeah, I thought so too, Thank you, Make

0:52:12 Thomas: I'll like, Oh, I got this one. That's just a water. And this one, you know, this one has an in and out burger.

0:52:16 Andrew: Job a little easier, yeah, I,

0:52:20 Thomas: Although not now I'm vegetarian. Dang it. I got to find, can they do the fake meat on in and outs so can eat there all the time again, in, please.

0:52:25 Andrew: I did, I tell you about trying the impossible whopper?

0:52:28 Thomas: Oh, I don't know. It's been years. Is it still, you just now did it? You got around to it?

0:52:28 Andrew: Yeah, No, No, no, I, like a couple years ago, But, Yeah, And, And, I, it tastes like a whopper, like, Like, I mean, I'm not a huge Burger King fan, but that strikes me as plausible that that everybody can make.

0:52:33 Thomas: Oh, okay. Yeah, it's great. Love it. Yeah. I know. The day they come up with a fake meat crunch wrap. Oh. It is going to be, we are going to do, you know what? We do a whole episode on it.

0:52:47 Andrew: Oh, there we go. All right.

0:52:51 Thomas: Not really.

0:52:52 Andrew: Promise kept.

0:52:55 Clip: And thank you, Let's go!

0:52:56 Thomas: And now it's time to thank our new patrons at Patreon.com/law. Hey, I am working on Lamb 50. It will be out in a in a day or two. I've just had it.

0:52:56 Andrew: Oh. Oh, it's So Good, yes.

0:53:07 Thomas: It's great. I've had a ton of editing lately, and that was a behemoth. So I'm kind of taking it a chunk at a time. But that was the lot of fun. It's Lamb 50, it's the trial of Chicago 7, and it's with one. Heath Enwright of Scathing Atheist and Puzzle in a Thunderstorm podcast. So it's a ton of fun. Look for that very soon, I promise. And let's thank our new patrons, shall we? And I'll start us off. Thank you to Dave, HistoraGamer24. I was trying to make that into like a histogram. Isn't that a, isn't that something? Isn't it a graph or whatever? Histogram.

0:53:39 Andrew: Histogram. Is A typograph, yeah.

0:53:41 Thomas: Yeah, yeah. For a second, I thought they were really into histograms, but no, it's Historo Gamer, I think. Okay. The Hayward Education Association is the greatest union of all time. Sean Wight, Copper the Squirrel, Kristina George, Ben Tisdall, Melanie finished all GAM, needs Cop Rock LAM. Yeah, no, go do that. Everyone needs Cop Rock lamb. And steamed.punk Your turn, Andrew. In

0:53:44 Andrew: Yeah. Ah. It And Thank you to Nicole. Thanks to Call your Senator to support HR1 (I'm looking at you West Virginia). Great advice to SI to Ruth Laila Steffensen, to Huntawayxmika, to Rezzy Manning, Gavin Ferris, Spencer Yergeau, and Elaugaufein.

0:54:15 Thomas: Arizona. Yeah, I Certainly gave you the hard ones this time. That was unintentional, I promise. And That's

0:54:35 Andrew: Yeah, right. But no, thank you to all of our fine patrons, especially those with unpronounceable me.

0:54:44 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:54:50 Thomas: And now it is time for T3BE. On a good streak of beating the coin, so I'm doing well against the coin, and they say when you're running away from a bear, you only have to beat the other coin, so that's how I'll measure myself. You don't have to meet the bear, but It'd be nice to Get one to also beat the bear. I already

0:55:05 Andrew: There you go. Agreed. So here we go, Thomas. Thomas, a man entered a tavern in an obviously intoxicated condition, was refused service and was ordered to leave and escorted out. Just after leaving the tavern, the man staggered across the road towards a liquor store. As he was crossing the road, the men was struck by a car and severely injured. The man sued the taver for his personal injuries. At trial, the evidence established the facts as set out above. At the close of evidence, both parties moved for judgment as a matter of law. How should the court rule on these motions? A. Deny both motions and submit the case to the jury because reasonable jurors could conclude

0:55:14 Thomas: Love it. Oh.

0:55:30 Thomas: Wow. I Don't know about that. Man.

0:55:54 Thomas: What?

0:55:54 Andrew: That the accident was foreseeable. B. Denry both motions and admit the case because a tavern is a place of public accommodation. Nation.

0:56:03 Thomas: The Hell is going on in this question? Okay.

0:56:05 Andrew: C.

0:56:05 Thomas: Crap.

0:56:06 Andrew: Grant the tavern's motion because there is no evidence that the taverne breached a duty to the man, or D, grant the man's motion because it was undisputed that by being ejected from the tavern, the man was put at risk.

0:56:21 Thomas: I thought this was was going one way, and then it decides to ask a question about motions, and like, which motion should be... Oh, God. This is the part of my Senate hearing that I wouldn't do well at. I also want to know like what makes a tavern technically? Is every bar a ta... You know, like is a bar a Tavern? What's... Is there a special...

0:56:40 Andrew: I I think it has to have those. No, no, the the swinging doors make, make it a Saloon, um.

0:56:44 Thomas: Yeah. Oh, a saloon. That's another good one. I'm just saying like if you're a bar owner, change it to a taver. Just decide you're a tavern. It sounds, I don't know, it sounds nicer. I don't what it is.

0:56:46 Andrew: Yeah. All Right.

0:56:55 Thomas: So, we're at a tavern . Yeah, n't so, obviously, intoxicated condition was refused service, which seems fine, and was ordered to leave and escort it out. Yeah, that all seems fine. Do you have a duty of care toward an intoxicated person? Like, you have to get them home? I don t really think that's how it works. Is it? I d don't kno w. Men staggered across the the road toward a liquor store. I feel like in late-stage capitalist America, business owners do not have the responsibility to get the super drunk guy home. They just kick him out. He's out on his ass. I think that's how it works in America. After he crossed the road, or as he crossed the rode, he was struck by a car, so he sued the tavern for his personal injuries. I don't know what the case would be. At So, close of evidence, both parties move for judgment as a matter of law.

0:57:44 Thomas: This is where it gets impossible for a non-lawyer. Okay. Both have several levels of confusion here. Like. So if the tavern, well, I'm going to decide the taverner is actually actually embodied, like they're the actual, if the tavern moves for judgment as a matter of law, does that mean if you grant that motion that they win? I thought that just, I thought moving for a judgment as a manner of law just meant decide it, like, don't, I thought dat meant, hey, judge, go ahead and decide this, skip the jury thing, but the the way the question is written, it's like, I guess, it, I guess if the tabern moves for that, then they win, if their motion is granted, then they when, and if, if the other, if the drunk guy's motion is granted, then he wins. I didn't realize that's kind of how, I didn' realize that that's how the logic of the thing went, but I guess so.

0:58:30 Thomas: This is a bunch of little things that if you're not a lawyer, like I don't, you know, maybe I'm, maybe I'm really, uh, thick, butI didn't understand that that' how that worked. Okay. I think I'm going to go ahead and say that' t how it works. So if you grant, grant the tavern's motion, then they win. If you grant the man's motion he wins, okay. That' weird. I thought that' just you' moving for judgment. You' saying like, hey, go ahead an d judge this, not I win. Ah, God, the stuff, the law. Anyway, struggling with this one. Let's go through the answers then. A, deny both motions and submit the case to the jury because reasonable jurors could conclude that the accident was foreseeable. Okay, so that's under the theory that the man should win if it's like, okay, he was so drunk that the tavern had a duty, duty, some sort of duty toward him to not eject.

0:59:17 Thomas: What do they have to do? Like treat him? I don't understand. I've never heard of this. I, you know, I've been drunk a lot. Not, not really, but I've been in and out of many a tavern in my day. I don'T remember that, like, if you're super drunk, the bar, the establishment has a duty to get you home safely. I didn't, I'VE NEVER HEARD OF THIS. I COULD BE CRAZY. Maybe it'S JUST NOT BEEN MY, IVE NEver BEEN THAT DRUNK, I GUESS. But like, I, Huh. I'm blanking on that. It doesn't seem right. But I guess legally speaking, like if you see somebody who's so, you know, in bad shape that they're in danger, then I guess that creates some sort of duty. But, I don't know. It seems weird to me. Me. Okay. So under A, it's like the judge is like, no, I'm not going to decide it either way.

1:00:06 Thomas: Let's let the jury decide. I can still see that being a plausible course that the judge would take there. B, deny both motions and submit the case to the jury because a tavern is a place of public accommodation. So that's basically the difference between, is the problem that the accident was foreseeable or is the problem that The Tavern is a place of public accommodation? I think I like A better than B. I'm not sure I like either of them, but public accommodation, I think it's fine to kick someone out of your tavern for being that drunk. I don't think that's the problem there. I guess the foreseeability could be. So I like A better than C. Grant The Taverns motion because there's no evidence that the tavern breached a duty to the man. Yeah, Yeah.

1:00:51 Thomas: That's kind of what duty you have in this case, really. I mean, I think, yeah, I don't know. D, grant the man's motion because it is undisputed that by being ejected from the taver, the man was put at risk. Well, I guess, I dunno, or maybe the taven would catch fire and you'd be better off being out of the tavern. I don't know that you've established in an undisputed way that, yeah, so I think I'm between A and C, um, oh, that means it's coin time, everybody. Well, I guess I have to pick mine first, and then we see if heads it agrees with me and tails it doesn't. Um, I think I'm gonna stick to late stage capitalism America and just say that a tavern owner, a tax-paying tavernowner has no duty of care to anybody because it's business, America. I feel like C, C, grant the tavern's motion because there's no evidence that the taverner breached a duty to the man.

1:01:42 Thomas: I just, yeah, I think that's the answer. C is the answer, but A, deny both motions. I think it's reasonable. A is reasonable because you could still be like, yeah. Well, you know, you still let the jury decide. That's how this should go. So I, I mean, I could see a case for A, honestly, but I'm going to go with C and let's see if the coin agrees with me here. Ready? Flip on Google coin heads. Okay. OK, the coin agrees with me. So I guess either way, I'm ahead of the coin still.

1:02:10 Thomas: So see final answer for me and the coin.

1:02:13 Andrew: And If you'd like to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guests, your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed. Oh, look.

1:02:26 Thomas: Our show thank you so much for listening and we will see you on tuesday for a consequences episode those are my favorite kinds

1:02:35 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.

1:03:09 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.