OA504: Cosby Released in Nonsense Ruling

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 504. 504?

0:01:22 Andrew: Woo!

0:01:23 Thomas: I'm Thomas. That's Andrew. He can't hold it anymore. How you doing?

0:01:28 Andrew: It's just, you know, 504 is an important law-related number, so, you know, I'm excited, it's episode 504.

0:01:33 Thomas: Sure. Okay. I can't believe... I got to say, Andrew, this might be one of the biggest news days in the post-Trump era. There is so much... We got... I mean, we got Cosby, which we've got to talk about. Major cultural story. A lot of people are very, I think, justifiably pissed at what's going on. That's a legal story. We got the Trump org being indicted. That's huge. We got Supreme Court ruining our lives more, I assume. I haven't even looked. All I see is Supreme Court ruled and then the rest, I don't even need to see the rest. It's already, they ruined our lives.

0:01:46 Andrew: Yeah. Yep. Good assumption. Yeah. Yeah, everything is breaking of course on Thursday, July 1, as we record this. So um, we are gonna have to wait until next week to discuss the Brnovich decision, um, that's a follow-up. Uh, spoilers though, if you want to understand it, just go back and listen to episode 471, because literally word for word everything I predicted the Supreme Court would do in that episode. Yeah, it's, this is I don't often

0:02:36 Thomas: Oh, wow. Wow. For for those of us who are proper noun challenged. What is Brnovich? I don't remember, oh.

0:02:42 Andrew: Yeah. So Brnovich is the, um, challenge to two different Arizona pieces of legislation restricting voting rights, um, and this was the one that got a brief kind of moment in the sun because Amy Coney Barrett asked a challenging question of the RNC. Right was like, uh, why do you guys have standing? And the Rc lawyer was, because, cause like, uh, cause we want Democrats to lose and, you know, and there was a, you know, we titled the episode like RNC lawyer accidentally says the quiet part loud again. Uh, but, uh. Spoiler. I predicted that the fact that she asked a marginally difficult question would, would in no way reflect upon the factthat she was going to vote like a Republican activist and a hack, and spoiler, that's exactly what happened. So, uh, we'll be breaking that down next Tuesday. Day There's so many other SCOTUS decisions that are on the whiteboard, right, NCAA decision regarding college

0:03:01 Thomas: Sure. Yeah. That's right oh yeah

0:03:37 Andrew: Athletes and monetizing, that's up there, the California, uh, donor's disclosure, like, there's, it's, it, it's too much, it's its too much.

0:03:46 Thomas: It this is, seriously, this is like, but what's funny though, is this was what every single Thursday was for four years. Andrew, it's weird to be back. Yeah, it's like, oh, I remember, this is what, what used to be, every Thursday it was like, we're just juggling papers. Like, what do we, what do they cover? But, uh, so, you know, it's, it's a nice reminder that we don't live in those times. You know, while it's on, while It's on my mind real quick, I have been seeing headlines that CNN's audience has dropped like 50%. Have you seen those? There's, there's also, Uh, headlines that, um, specifically like Jake Tapper's audience is like gone down 75%. And all I saw, saw that that. And I'm just going to flag this now. I'm very worried about how much moneyed interest there will be in helping Trump come back into power in 2024, because apparently it was really, really good for ratings, as we all knew all along. And just sending that out there. Be aware. Watching don't

0:03:52 Andrew: Yeah. That's true. Yep. Yeah. No, it's good, yeah. Yeah, I have not. But but plausible.

0:04:45 Thomas: Them 24-7 when they try to make Trump a thing again, end in 2024, or something. I'm just, just a heads, up.

0:04:50 Andrew: Yeah, no, that is an exceptionally good point. And, you know, and it explains the preferential treatment that Donald Trump got in sources you might not expect. And so, well, way to way to bring me down. I was going to say I'm doing fantastic. How are you doing, Thomas? But uh, now, uh,

0:05:06 Thomas: Doing Great. I'm celebrating my first cold that I haven't worried is COVID. You know, it's been a while, and I got a cold. I'm like, I'm not worried that this is COVID. Every cold that I got, which weren't, wasn't that many because all the masking and, you know, the hygiene, all that stuff we're doing, helps a lot to reduce transmission of every virus. Uh, but no, still I get a little, you know, a little, little cough, a little whatever, and like, well, I'm dying. And now I'm like, yeah, I'm vaccinated, I'm confident in the science, I've just got a cold. You know, it's nice.

0:05:16 Andrew: Nice, nice. Yeah, yeah. I I That is, it is worth celebrating. So that's, uh, that's a good reason to be in good spirits. Uh, I have an in-depth explainer, because everybody is getting the, the Bill Cosby decision, uh, from the Pennsylvania Supreme Court wrong, so we're gonna go through that. But yeah, it's Bill Cosby, so it's gross, so I'm, uh, I'm in a terrible mood about that, um, but I, I, I am excited to explain, uh, what is a tremendously misunderstood decision, so So, you know, we

0:05:42 Thomas: Uh, Wow.

0:06:10 Thomas: Well, let's get to it. Quick announcement, uh, this crept up on us, but we are doing our Patreon monthly q a on the fourth of July, because let's face it, what else are we celebrating, America? No, we're going to celebrate Patreon, and the Opening Arguments q a at 12 Pacific, 3 Eastern, that's Sunday, the 4th of July. Patreon q a on YouTube, reminder, everybody can come and hang out on YouTube, interact on the chat, all that good stuff. But the question asking takes place on Patreon, and Andrew will have already thrown up the question thread on Patreon. Get those questions in. Vote on the questions you want to hear asked. That helps me a lot to filter into which ones we can squeeze into that hour. So once again, come join us Sunday the 4th, 12 noon Pacific, 3 p.m.

0:06:57 Thomas: Eastern. Grab a beer. Grab a Fourth of July drink. Grab a firework, except not, and join us.

0:07:04 Clip: Down the law, down the law.

0:07:08 Thomas: Andrew, I, I imagine, I've have just seen the headlines that everybody else has seen, you know, Cosby seems to have this, some sort of technicality, maybe, is, uh, free to go, um, but what is everybody getting wrong about this in the coverage? Yeah.

0:07:20 Andrew: Yeah. So here are the things, okay? The first is, this is one of these lawsuits that it's virtually impossible to separate the revulsion you feel at the outcome, right, from the legal analysis. So let's get this out of the way up front, Bill Cosby, right, is a rapist who is getting let out of jail. And that's a bad thing. And you have every right to think that that's a bad thing. And I'm going to tell you, I think the legal decision is spoiler alert, incorrect. Okay. So, yeah. So we're going to get to that.

That being said, there is not and should not be anything you expect will happen as a result of this opinion, other than a terrible bad person is going to, you know, serve only two years of a 10 year prison sentence. You should also not forget this is kind of being overlooked in some places that the D.A. who engineered this deal is Bruce Castor in Pennsylvania. And that was the gigantic buffoon who handled Donald Trump's defense in the second impeachment trial. And you might recall the lawyer who gave that like rambling, nonsensical, like second-day. David Schoen was the

0:07:45 Thomas: Okay. Huh. Oh. Man.

0:08:45 Andrew: Guy who was like, yeah, whatever. Bruce Castor was the guy who's like, and I remember back when flags were flying and, you know, Pepperidge Farm and you can't, it was, so that guy is a shill for Donald Trump and a long-standing politico. There are no, the folks who were saying kind of feels like a dirtbag helped out Bill Cosby. That's true. Not relevant at all to of the legal analysis other than as we're to talk about. So there are, one might say, a lot of low cards in this poker hand. There will not. This was an opinion by the Supreme Court of Pennsylvania. State may, or the Commonwealth of Pennsylvania, may appeal to the Supreme Court for reasons that I'm about to to explain. The Supreme Court, I feel very confident in saying, will not grant cert, and you would not want them to, for the reasons that I will explain. This opinion drew one dissent, but even

0:08:46 Thomas: Holy moly. Huh.

0:09:42 Andrew: That dissent revealed that he would have reversed Cosby's conviction on a different ground, right? So yeah, so there is widespread concurrence at, at the Pennsylvania Supreme Court, that the trial court verdict convicting Bill Cosby should not stand. I don't understand this, and I'm going to hopefully lead everybody to a position of not understanding it. There is there is one point that I want to bracket.

0:09:47 Thomas: Weird.

0:10:01 Thomas: That's what we like to do here, by the time you're done, here, you too will not understand what happened so

0:10:08 Andrew: Exactly. You tell. Yeah. Yeah. Is one part that I will bracket, that, right, has to do with fact that I am a civil litigator, not a prosecutor, not a public defender, not an attorney. I have talked to a number of folks, a, right, couple of prosecutors, three prosecutors, two public defenders, one criminal defense attorney, okay, and they all have confirmed my judgment, uh, but it's possible, like, in a greater sample size that I'm wrong, so I will bracket that part, uh, but nevertheless, um, we go there.

0:10:40 Thomas: This is really, really frustrating, because I had assumed this would be, well, he got out, but, you know, it's somebody messed something up legally, and it's the kind of principle that we wouldn't want actual innocent people, being put away for the same thing. Are you saying it's not even that?

0:10:55 Andrew: Is a real principle at stake here, but I believe it is being incorrectly applied in this case, and I think as a result of this decision, it is unlikely to be, be beneficially applied in future cases, but striking down that principle would be even worse. So we'll get to that. I want to give small content warning here for about the next minute to two, because it is important to explain in the legal posture, in the broadest possible terms, the methodology of the underlying crime, right? What Bill Cosby did repeatedly to at least 19 different women, as far as we can tell, get into huge, but we are going to talk about that for a minute or two. And that's sensitive, then you should fast forward ahead about two minutes. So Cosby is alleged and has been convicted of a jury of finding an excuse to give women pills, in particular Quaaludes, call them something else like Benadryl, and then provide them with alcohol that has the effect of making the woman unconscious.

0:11:14 Thomas: Okay.

0:12:13 Andrew: Unconscious, and then he would engage in sexual conduct, often rape when he was 100% sober and they were literally unconscious. January of 2004, that's what he did to a woman named Andrea Constand. And I should say she has sued him civilly. That's a matter of public record. So that's why I'm comfortable using the survivor's name here. So Ms. Constant did not report that that drugging and improper sexual conduct to the police until a year later, January of 2005, which, by the way, totally normal. OK, that is that is not anything from which I think anybody who works with survivors of sexual assault would find surprising. But it did play a role in what happened next.

0:12:58 Andrew: OK, that's that's it. If you're if you're coming back from having skipped ahead, we're now done with sort of talking about the the details. The D.A. at the time was Bruce Castor, and he said in light of the circumstances, there were three things I'm just going to quote from the opinion that led him to decide not to prosecute Bill Cosby in 2005. OK, so he says, quote, In evaluating the likelihood of a successful prosecution, the district attorney, that's Castor, difficulties with Constance's credibility as a witness based in part upon her decision not to file a complaint promptly. She waited a year. He thought that would make her a challenging witness on the stand. And he has his right to draw that conclusion as a prosecutor. It doesn't really seem consistent with with what I've read and the folks that I've talked to. But OK, so that was sort of point one.

0:13:44 Thomas: Interesting. Well, and this is in 2005 or six by this time. So, yeah, I would hope now that, you Know, maybe that isn't the attitude among prosecutors prosecutors possibly.

0:13:48 Andrew: Right. I from the prosecutors that I have spoken to, that does not seem to be a common attitude. It Seems to be much more. Yeah, we understand that survivors of sexual assault may take time in reporting. Courting. So Castor further determined that a prosecution would be frustrated because there was no corroborating forensic evidence. Right. That's always a problem. And because testimony from other potential claimants against Cosby likely was inadmissible under governing laws of evidence. We're going to talk about that. The collective weight of these three considerations led Castor to conclude that unless Cosby confessed, quote, "there was insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the constant instant would be proven beyond a reasonable doubt." So if we stop there, that's prosecutorial discretion, right?

0:14:00 Thomas: Okay. Right.

0:14:45 Andrew: You might agree or disagree with it. I would disagree with it. But they're allowed to do that. There is a bunch of what I would describe as self-serving testimony from Castor going to explain it. I'm gonna say that there is, I don't discount it. But you need to remember, this is an elected position. He is an elected Republican politician. And so he's got to explain, like, why is he giving a pass on terrible charges, you know, to a prominent celebrity? So Castor has then said he decided that Constance's best option would be to sue Cosby civilly for monetary damages and, quote, "to aid Constand in that pursuit as the sovereign," as the, as the attorney, he decided that his office would not prosecute Cosby, believing that that decision ultimately would set off the chain of events that he thought would gain some justice for Andrea Constand.

0:15:43 Andrew: By removing the threat of criminal prosecution, Cosby would no longer be able in a civil lawsuit to invoke his Fifth Amendment privilege against self-incrimination. Right. Otherwise, you've got a pending prosecution. You can just take the fifth in a Civil lawsuit and say, yeah, no, I'm not going to testify here on the grounds that it might tend to incriminate me. This, by the way, is why, you know, things like the O.J. civil suit followed after the criminal trial. Right. Like you, you get the criminal suit adjudicated first and then you can't take five in the civil lawsuit. So the idea was Castor is saying, look, I'm not going to prosecute you. I'm going to say that publicly, but I'm really doing you a favor, because if I were to prosecute Cosby, Miss Constand, we would likely lose and you would get nothing.

0:16:31 Andrew: And now, at least this way, I can step aside and you can sue him civilly and, you know, maybe get some measure out of that. Now, like I said, it makes absolutely no sense, right, because you're not doing her a favor by not prosecuting, right? Right. Like the not prosecuting is the same as prosecuting and losing in terms of it's a different standard of evidence. And the O.J. case No, sorry. Would have been 10 years earlier at this point. It would have had a perfect road map. Right.

0:16:40 Thomas: That doesn't make sense to me because you just brought up OJ. Yeah. Yeah.

0:17:02 Andrew: Would have said, hey, we're going to try. And if we come up short, you still have.

0:17:02 Thomas: The person is obviously guilty, just like in the other case. Yeah?

0:17:08 Andrew: Yeah. Then you have a road map of how to recover civilly. So I also say that the reason I find this to be self-serving is that if you are a district attorney and you want to eliminate the possibility that a potential criminal defendant is is going to invoke the Fifth Amendment, there are at least three things you can prosecute, were things you could do, right? Number one, you could prosecute. That's the OJ plan. Number two, you could enter into a plea agreement or a deferred prosecutorial agreement with Cosby. There is no evidence that they ever tried to do that, right, that they said, "Hey, plead out to this, you know, lesser crime," or plead out two, no crime whatsoever in connection with these certain conditions.

0:17:59 Andrew: Right. And then, right, double jeopardy would attach. That That would make that go away and they would be immune from being able to assert the Fifth Amendment in the in the civil context. That didn't happen. You could have a a written non prosecutorial agreement that would either have conditions or not. Again, that didn't happen. And finally, you could at minimum grant Cosby transactional immunity for in connection with the constant incident, which again, that's how this is described in the court opinion.

So I'm just going to use the court's language and I apologize if it comes off as insensitive. You could grant transactional immunity. That's a thing where you have to go to the court and you have to file it and you got to say, like, we think because of, you know, pending civil proceedings that, that that that this witness should be given transactional immunity should not be prosecuted for anything in connection with this particular incident. That didn't happen. Right. Nobody ever went to the courthouse or never went to the court to say, do any one of these three things. I need to point out, if he had done any of those three things, then this decision would be binding for all time. It would have eliminated Cosby's ability to plead the Fifth in a civil deposition for monetary damages, would have made things perfectly clear. Castor didn't do any of that. What he did was he issued a press release.

OK, this is on page 12 of the Pennsylvania Supreme Court opinion. And here's what it said. "As such, District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter because a civil action with a much lower standard of proof is possible. The district attorney renders no opinion concerning the credibility of any party involved, so as not to contribute to the publicity and taint prospective jurors."

0:18:54 Thomas: That

0:19:44 Andrew: "District attorney," and he does not intend to expound publicly on the details of his decision for fear that his opinions and analysis might be given undue weight by jurors in any contemplated civil action.

0:19:54 Thomas: Just seems really weird to me.

0:19:57 Andrew: Yeah, it seemed really, really weird to me, too. This was the part at which I called up a bunch of my prosecutor friends and I said, hey, do you ever do that? And to a person, they said, no. Right. Right. If you've decided not to prosecute, if you have exercised prosecutorial discretion, you would inform the victim and you would informed the potential defendant. And OK, maybe, you know, if if there's a huge amount of press about it, you might give a press release explaining your decision. But this is not how you memorialize binding decisions.

0:20:32 Thomas: Yeah, and the way it was worded sounded like some legal principle of like, well, if there is a civil case to be made, then that's why, you know, it frames it like that. Like if there's a civilcase with a lower burden, so therefore we're not going to pursue charges, which is like, okay, but isn't that always the case? I mean, you just talked about OJ. I mean what if somebody kills somebody and you're like, well, we could charge them with murder, but there's this civil case that's made that's a lower, you standard of evidence, so we're not going charge them with murder.

0:20:32 Andrew: Yeah.

0:21:02 Andrew: Well, and believe me, I don't want to rush to Castor's defense here. But But being devil's head, literally devil's advocate here. I think what he would say is, right. But remember that I've concluded, right, I'm exercising my prosecutorial discretion because I've included we're not likely to win in the criminal case. But I don't want to go into great detail about that because I don't want my statements here to potentially take the jury pool that might look at a subsequent civil action with a lower standard of proof and be skeptical of that as well.

0:21:08 Thomas: Sure. Okay.

0:21:35 Thomas: Interesting.

0:21:35 Andrew: Well, yeah, correct.

0:21:36 Thomas: Okay, so that's The key. So he's saying because it's not just because there's a civil action available, which is kind of what the statement sounded like, but it's because of that plus not thinking you're going to get the actual criminal conviction. So therefore, okay, I guess that makes a little more sense. So what's the part that um all your friends are saying they would never do just release this kind of

0:21:55 Andrew: All my friends are saying that if you intend to bind yourself and your office, which is what Castor is claiming and what is the basis for this Pennsylvania Supreme Court opinion, to never prosecute Cosby, you wouldn't do it this way. You would do one of the three things that I've just described, right? You would have a plea agreement or deferred prosecution. You would Have a non prosecutorial agreement, or at minimum, you would go to the court and give him transactional immunity that would establish for all time. I'm not prosecuting this guy. Therefore, he can't claim Fifth Amendment privilege against self incrimination. If you want to sue him, right. Right.

0:21:57 Thomas: Yeah.

0:22:22 Thomas: Interesting.

0:22:37 Thomas: And that's the only reason you would want to do that right because Otherwise what's in it for them to be like we're never going to prosecute you I I would think apart from the whole pleading the fifth thing like setting that aside wouldn't you want to be like well you know we're not getting you now uh Mr. Rapist but like I guess we'll we'll allow that maybe some other evidence could come to light someday that would allow us to pursue this.

0:22:40 Andrew: Correct.

0:22:59 Andrew: That's exactly right. Right. Remember, look, we've talked about the contours of prosecutorial discretion in the Michael Flynn case, for example. Right. So in general, the rule is and this is what we're and again, Pennsylvania is slightly different than federal than law. But but but by and large, like the principles here are incredibly similar. And that is the prosecution has wide range of DA. The prosecutor has wide ranging discretion to decide whether or not to bring a case and they can change their mind. Now, like federal rule 45, could you envision a situation where it becomes abusive? Right. Where I bring the case and then I drop it on the eve of trial and then I bring it again. Yeah, you could. Right. And so we have some protections for you against that. But by and large, right, prosecutorial discretion means just that. You can't get mandamus. It's discretion. And you can change your mind if new evidence comes to light. So if I'm Constance lawyer, I am 100 percent not satisfied with this as a press release. Because, Right. You know, yeah, you're saying, OK, not going to prosecute him. Feel free. Go ahead.

Call him in the civil trial and he won't be able to take five. But but I'm sitting there going, Cosby's lawyers are going to say this reflects, you know, District Attorney Bruce Castor's opinion at this point in time. But he could always change his mind. Right. But somehow that's not what what happened. And I have gone back and I have dug into the underlying trial records a little bit.

0:23:39 Thomas: Right. Yeah.

0:24:29 Andrew: I mean, this case broke yesterday. I have read several hundred pages on it already. There are thousands of pages in the public domain. What I want to tell you is that there is, I believe, some mischaracterization about exactly how willing Bill Cosby was to testify in those civil depositions. So first is he was deposed on four separate occasions in the civil lawsuit. I will tell you, as somebody who deposes witnesses all the time, that is not a usual course of action. Right. Usually you get one bite at the apple. You bring in your witness, you depose that person and then you're done.

0:25:05 Thomas: Uh-huh.

0:25:05 Andrew: When you have multiple depositions, it is because they have refused to answer questions and you have to go back to the judge and order them to sit again and answer them this time. Or new evidence comes out or something was concealed or whatever. So Cosby was deposed on four separate occasions. But but here's what we do know. In none of those did he assert his Fifth Amendment privilege against self-incrimination. Right. He then in those depositions ultimately admitted that he had done what he was alleged to have done to Andrea Constand to other women. That lawsuit then, presumably once that admission came out, led to a settlement for three point three eight million dollars and the settlement was sealed.

0:25:52 Andrew: It was sealed for a decade. But then there was a request by a media outlet to unseal the records and a judge opened them up in 2015. And that, by the way, is when the Cosby stories broke. That's year before you and I started away. But like, right. That is when everything hit all the news about who Bill Cosby was.

0:26:11 Thomas: Yeah. Hannibal Burress doing his little stand-up routine. Blew the lid off that whole thing somehow.

0:26:13 Andrew: Yeah. Yep. So by 2015, now this is national news and Castor is no longer D.A. Instead, his former assistant, Risa Ferman, is now the district attorney and she decides to reopen the investigation. And when she does, Castor writes a letter and the letter says, you were there when we decided that we would never prosecute Bill Cosby. And Ferman wrote back and said, what the hell are you talking about? And said it in lawyer speak, which was, I do not recall any such agreement, but if you have a signed agreement not to prosecute Bill Cosby, please forward it to me. And what Castor said was, well, here's the press release. And Ferman was like, uh-huh.

And? And he was like. No, no, that's not and. Like, that is what we have got. And Ferman was like, okay, but this is your prosecutorial discretion. But now I'm the prosecutor and I'm exercising my prosecutorial discretion. So she reopened the investigation in 2015. In January of 2016, Cosby was indicted under 18 Pennsylvania criminal statute section 3125 for three counts of aggravated indecent assault. That is a second-degree felony, and those three counts are as follows. 3125A, a person who engages in penetration of the genitals or anus with a part of the person's body commits aggravated indecent assault if, and then here are the three conditions. Number one, the person does so without the complainant's consent.

0:26:46 Thomas: Yeah. Yeah.

0:27:45 Andrew: Number four, the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring. Or number five, the person has substantially impaired the complainant's power to apprise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. So we talked about Cosby's M.O. Very clearly fits, seems to be slam dunk. Those charges are filed in January 2016. Bill Cosby immediately files a habeas petition and says, wait, Castor promised us he would never, ever sue us. And so the court then held a hearing and evaluated that habeas partition. And the trial court said, quote, the only conclusion that was apparent from the record was that no agreement or promise not to prosecute ever existed. Only the exercise of prosecutorial discretion, end of quote. So seems pretty

0:28:11 Thomas: Yeah. Yeah, fits that.

0:28:42 Thomas: Case

0:28:42 Andrew: Straightforward, right? Case closed, right. So that case went to trial May of 2016. There was a ton of crazy procedural stuff I am not going to get into with the exception of this, which is Rule 404. And we've actually talked about this before. This is the carjacker willy test, Right, like the, I'm going to allow that because it characterizes the defendant as a carj hacker. Right. Right. And and what it means is you cannot generally introduce prior evidence of what we call bad acts demonstrate a person's character for purposes of showing that they were likely to have acted in connection with that character. Right. So, you you have been, you twice convicted, of a crime of violence. You don't get to say, right, I want to introduce this record that this person is likely to commit violence to then show that they probably, you know, committed the assault for which they are currently charged with. Not because it is not relevant. It's obviously highly relevant, right? If you're Carjack or

0:28:43 Thomas: Closed.

0:29:00 Thomas: Wow. Yeah.

0:29:45 Andrew: Willie, the fact that you're a carjacker is probably highly likely to determine whether you've jacked this particular car, but it is that the prejudicial value greatly exceed, right, like it's the second, yeah, it that

0:29:48 Thomas: Yeah. But But haven't you said that you could establish an M.O. or like a precise pattern of how you do these things?

0:30:05 Andrew: Is exactly right, and it is sometimes called a signature or m up right? And and it I'm going to read you Pennsylvania's Rule 404, uh, because we've talked about the federal rule, but this is in pari materia with the federal rules. Prohibited uses. So this is 404B. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion, the person acted in accordance with the character. That's the general rule. But number two, subsection two, this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of absence, or lack of accident.

In a criminal case, this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice. So when you have a particular signature, you can then introduce that precise method as a way of showing intent, preparation, plan, lack of action. And that's exactly what the prosecutor sought to do in the Cosby case. Nineteen women came forward and all of them had stories to varying degrees that were substantially similar to Constand's stories. Right. That is, would get them alone, give them alcohol plus pills, would find some excuse to give them pills, would tell them the pills were something else.

The pills turned out to be quaaludes. And then while they were unconscious, you know, would proceed. And the trial court judge said, you know what? That seems like evidence of a signature. Right. That seems like evidenceof a plan and lack of mistake. So I am going to allow the to the prosecutors. I'm going to allow you to put one of these women on the stand. Why not all 19? Because that's the prejudicial part. You could imagine a parade of all of these prior witnesses. It's no longer establishing the pattern.

0:30:44 Thomas: Hmm. Yeah.

0:32:04 Andrew: It is now just establishing, you this is a bad guy. And again, let's be very, very clear. Bill Cosby is a very, very, very bad guy. At that first trial, you might be surprised. I was surprised. I certainly didn't remember this the time. June 17th, 2017, after seven days of jury deliberations, they got an Allen charge. That was the come on, guys, figure this out. And the jury came back and said, we're hopelessly deadlocked. That Was a mistrial. A lot of other their criminal cases, the DA in this case was like, okay, fine, you mistrial, we're going to bring the same case again.

And you're allowed to do that, right? Like a mistrial does not double jeopardy, does not attach to a mistrial. The likelihood of subsequent convictions go down. We've talked about this in a lot of our Law'd Awful Movies, So right. A mistrial is often Often considered a victory for the defendant. And as a practical matter, it certainly is is associated with a range of better outcomes. But here at the DA's office was like, yeah, no, we're going ahead. Head. And so they retried the case. And in the second trial, requested to have more prior bad act testimony.

And In the second case, the judge permitted five women to testify. This is on pages 31 to 34 of the opinion. Again, you can go if you have the stomach for it, you can go read their stories. Don't think that it's important for us to do that. At that second trial, that's when Cosby was convicted.

0:32:43 Thomas: Right.

0:33:31 Andrew: And that led to this appeal. And here were the two issues that Cosby raised on appeal. The first was, was all the stuff that we just talked about, illegal propensity evidence, right? And then the second had to do with the press release, And it's right. Such a bad argument. I'm going to read how it was presented to the court. So this is is how Bill Cosby's lawyers presented it to the Pennsylvania Supreme Court. They said, quote, where District Attorney Castor agreed that Cosby would not be prosecuted in order to force Cosby testimony at a deposition in a civil action. The district attorney issued a formal public statement reflecting that agreement, and Cosby reasonably relied upon those oral and written statements by providing deposition testimony in the civil action, thus forfeiting his constitutional right against self-incrimination, did the panel, that's the intermediate appellate court that upheld the trial court's decision, err in affirming the trial Court's decision to allow not only the prosecution of Cosby, but the admission of his civil deposition testimony. And that convoluted, crazy argument about reliance is what the Pennsylvania Supreme Supreme Court reversed on.

0:33:49 Thomas: Yeah, and

0:34:40 Andrew: They said that under the facts here, Cosby reasonably relied on the press release from Castor in deciding to testify in the civil And so therefore, that was binding. And now he's entitled to some relief. I will tell you this, We're going to put a pin in that because I want to talk about how they get to the relief in a minute, which is another, in my view, kind of clear error. To me, is just dead wrong. And it's not dead wrong for a lot of the reasons you're seeing in the public. But it's dead wrong because this is a very clear fact-based question, and an appellate court should not be reviewing questions of fact for anything other than clear error, right?

0:35:31 Andrew: This Pennsylvania decision says this is question of law. It is not. Here is the fact question. The fact question is, was the press release by Castor a binding non-prosecution agreement or was it not? Or was it an exercise of prosecutorial discretion? Right.

0:35:53 Thomas: It sounds like they turned that question into, well, did Cosby rely on it or not?

0:35:58 Andrew: That is exactly right. Right. And and the point is that for reliance to generate a legally protected interest, that reliance must be reasonable. And I would argue, again, I've gone to my prosecutor, you know, my prosecutor friends, my criminal defense attorney friends. I could be persuaded otherwise. If you if you flood our email box and say, no, no. This happens all the time where, you Know, we just say we're not going to prosecute you. And then people go on and testify in civil suits and waive their Fifth Amendment privilege. OK, I'm open to that. I will tell you that does not seem to be my experience from a lawyer who reads a lot of criminal cases. It does not seems to be the experience of the criminal lawyers that I've talked to.

0:36:44 Andrew: But I could be wrong on that. So I want to flag that. Assuming that I'm not wrong on this, this opinion is bonkers. OK, and I can prove that. And part of the way in which I can prove that is that the only law cited for the proposition in this entire opinion shows up on page 60, footnote 23. And by their own merits, all of these cases are about plea agreements. Not a single one of them is about ex parte statements or press releases or whatever. They're all about when there is a plea deal. So Hey everybody, this is an ad for Moink Box. You know my pitch. It is literally the tastiest bacon I have ever had. I'm going to tell you this until each and every one of our subscribers that, you know, eats meat, has signed up for Moinx Box. Seriously, you should. It's amazing. It's delicious. Moink delivers grass-fed and grass-finished beef and lamb, pastured pork and chicken, and wild-caught Alaskan salmon direct to your door. That helps family farms become financially independent outside of big agriculture.

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0:39:12 Andrew: So I totally agree. Right. Like if that was a plea deal. Right. If Cosby got something in exchange. Right, and gave up something in exchange for not being prosecuted, then yeah, you can't. There's no takesies-backsies on that. Prosecutorial discretion is the thing in which there is takesies-backsies. And here's how the court itself puts it. Quote, numerous state and federal courts have found that a defendant's detrimental reliance upon the government's assurances during the plea bargaining phase both implicates his due process rights and entitles him to enforcement of even unconsummated agreements. The cases are legion, end of quote. That's all true, right?

Absolutely. The state cannot enter into a plea bargaining agreement, lead you to believe that they're going to give you a reduced sentence or deferred prosecution or non-prosecution. And then, you know, Lucy with the football, pull it away at the 11th hour and be like, yeah, we've decided not to. And by the way, like all of the stuff you've said to us in the interim, we're now going to use against you. Right. Like, yeah. Yeah, totally. That would be insane. You can't do that. That never, ever happened here. And you know how I know that never, never happened

0:39:58 Thomas: Mm-hmm.

0:40:20 Andrew: Here? Because that argument was made during Bill Cosby's 2016 habeas corpus petition to the trial court, and the trial Court decided that that did not happen here. It looked at the totality of the circumstances, the weight of the evidence, the the press release, all of the surrounding details, and it said no binding agreement existed. So on appeal, that is not a question of law. That's a question of fact. Was there a binding agreement not to prosecute? The trial court said no, there wasn't. And who the hell is an appellate court, the Supreme Court of Pennsylvania, to say, no, we think you probably got those facts wrong. And

0:40:20 Thomas: How do you know that never, ever happened here?

0:40:39 Thomas: Yeah, that

0:41:02 Andrew: It is crazy. And one justice, Justice Saylor, dissented and said, yeah, this seems completely nuts. Why am I the only sane one here? Saylor's dissent says, I respectfully disagree with the majority's determination that the press release issued by former D.A. Bruce Castor contained an unconditional promise that the Commonwealth would not prosecute appellant in perpetuity. Rather, I read the operative language, and I read this to you earlier, District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter as a conventional public announcement of a present exercise of prosecutorial discretion by the temporary occupant of the elected office of

0:41:02 Thomas: Is so weird.

0:41:45 Thomas: Gee,

0:41:46 Andrew: District attorney that would be in no way binding upon his own future decision-making processes, let alone those of his successor.

0:41:51 Thomas: Let alone somebody else's. Yeah! Wow! That seems very clear.

0:41:52 Andrew: Yeah. It seems 100 percent clear to me. Again, as I flagged for you at outset, Saylor noted that he would probably reverse on the other issue. Right. He Says, "I know, however, that I have substantial reservations about the trial court's decision to permit the Commonwealth to introduce testimony from other victims of sexual assaults by appellant, which allegedly occurred between 15 and 22 years in the past. Since under the majority's approach, that issue is moot, I merely take the opportunity to note in my present tentative inclination would be to award a new trial grounded upon appellant's challenged to such evidence as being unduly prejudicial." Even Saylor thinks the prosecution was wrong. But, you know, but for a different reason. But that dissent raises the question I told you to put a pin in, which is, let's assume that the press release is binding. Why should the relief be what this court awarded, which was the conviction is vacated. Go free, Bill Cosby. And why not just remand it back down to the trial court, have another trial and suppress the evidence that was obtained in connection with the detrimental reliance? Right.

0:42:04 Thomas: Huh.

0:43:00 Thomas: Sounds reasonable to me.

0:43:02 Andrew: That once you've said, OK, you justifiably relied on a press release, which, again, I think is wrong. But assume that that's correct. Then the question is, what's the relief to which you were entitled? Should it be narrow or should it be broad? And here, once again, Pennsylvania Supreme Court is rewriting its own rules. How do I know that? Because of a 1995 case called Commonwealth versus Stipetic. OK, here's what happened in that case. Pittsburgh police promised George and Heidi Stipetic that if they answered questions about the source of drugs found in their home, right? Hey, who was the dealer? No charges would be filed against them. But shocker, police lie. Don't take legal advice from a podcast. But yeah, if the police say we can get you a great deal, you say I want to talk to my lawyer.

0:43:49 Andrew: Anyway, so the police said, yeah, yeah. You just tell us where you got the drugs. We will definitely not prosecute you for possession of drugs. The Stipetics fulfilled their part of the agreement and then prosecutors charged them anyway. Right. The trial court granted the motion to dismiss and said, Yeah, come on. Like, are you kidding me? The cops came, said we won't prosecute. You if you give up who the dealer was. They gave up who the dealer wasn't. Then prosecuted them anyway. You're kidding me. Right.

0:44:16 Thomas: Yeah.

0:44:16 Andrew: Pennsylvania Supreme Court overturned that trial court decision and said, look, the Pittsburgh Police Department had no authority to bind the district attorney's office to a non-prosecution agreement.

0:44:20 Thomas: Jeez. But weird that they wouldn't say these people relied on that promise in making their decision.

0:44:32 Andrew: And and so I love the way you've you're building this lawyer mind, that is exactly then the question the Supreme Court had to address. And here's what they said. OK, but you're saying they probably relied on the fact that the police said, hey, we're not going to prosecute you. Quote, the proper response to this concern, that is the reliance concern, is not to bar prosecution. Rather, it is to suppress at the appropriate juncture any detrimental evidence procured through the inaccurate representation that he would not be prosecuted. And then cites to the various authorities, 1977 case that says, yeah, that's how we do it. This places the Stipetics in the same position as if the unauthorized promise to prosecute had never been made by the police. Citation to another case. So, yeah, seems like you read Stipetic and you're like, OK, if you accidentally relied on a promise that turned out to be invalid, then what we want to do is put you in the position as if that promise had never been made.

0:45:33 Andrew: Right. So we'll We will suppress the evidence obtained from your deposition. Right, but doesn't that's now then up to the prosecutors to then go forward with whatever they have. Right and the prosecutors might say without the depo we can't go forward. But who knows. Right let's leave it up to to the right. That's the whole prosecutorial discretion part. I'm going to read you what the Pennsylvania Supreme Court said in distinguishing the styptic decision, which is, again, 100 percent on point. So, Morgan, while you're listening, don't argue this way. This is this is the worst effort to distinguish a case that I've ever heard.

0:46:10 Andrew: Here's what they say. They say think of three reasons. They said this remedy is insufficient. Remedy of new trial suppress the evidence is insufficient here. First, as noted, the remedy statement was dicta in Stipetic and is not the law in Pennsylvania. Okay. Right. So that's always the way, unless you have a good basis to explain why dicta shouldn't be informative in this case, right? Saying it's not the holding is just saying you should take this persuasively rather than binding. So that's not a great argument. It's good as a threshold, but just saying, well, you know, that was technically dicta because that's not the result that they ordered in that case. Not a great argue.

0:46:10 Thomas: Oh,

0:46:56 Andrew: Second, the circumstances that led to that suggestion of that remedy are markedly different than the present case. In Stipetic, the agreement was formulated with arresting officers who lacked the authority to make the promise not to prosecute. Here, the non-prosecution decision was made by the elected DA of Montgomery County, whose public announcement of that decision was fully within his authority and was objectively worthy of reasonable reliance. This is what we call in the legal world, the proverbial distinction without a difference, right? Because all they're saying is we think it was reasonable for Cosby to rely on the statements by Castor. But that has nothing to do with the relief that you order, right? Like we have already already assumed for purposes of this section, okay, your reliance was reasonable.

0:47:43 Andrew: Now, what do you get in exchange for your relience? And the answer is, you should be put in the position that you would have been in had you not relied? So that argument is nothing. That argument goes nowhere. We've already said, yeah, you're valid to rely on it. So the last argument they they make is, as far as I can tell, an argument that is an own goal, right? Finally, a one-size-fits-all remedy does not comport with the individualized due process inquiry that must be undertaken. In some instances, suppression of evidence may be an adequate remedy. In others, only specific enforcement will suffice. Here, the full enforcement of the decision not to prosecute, only the full enforcement of the Decision Not to Prosecute, can satisfy the fundamental demands of due process. Anything less would permit the Commonwealth to extract incriminating evidence from a defendant who relies upon the elected prosecutor's words, actions, and intent, and then use that evidence against the defendant with impunity. No.

0:48:35 Thomas: This is terrible.

0:48:35 Andrew: No, like the the remedy, if that's what they do, if they illegally obtain evidence, the remedy is to suppress that evidence. It's just crazy. It is bonkers. And nobody is explaining that it's bonkers for rewriting the facts, right?

0:48:51 Thomas: Yeah. It's changed. So it's blended a couple things, it sounds like. It's like, okay, maybe there's a question of whether or not he relied on it, whether or not that's reasonable. And as you say, the remedy would be, OK, well, maybe if he relied on it and it's reasonable that he relied on it, then get, then do a take back on whatever testimony or whatever, whatever deposition resulted as of that. But then they're also, it sounds like they're also combining that with, and also, because he relied on it, therefore, we have to treat this as an actual promise not to prosecute. And the only remedy is for him to never have been prosecuted. I have that right?

0:49:31 Thomas: Well, That's stupid. This is bad. This is a bad law thingy.

0:49:30 Andrew: Is exactly You understand perfectly. It

0:49:36 Thomas: I move for a bad court thingy. Why?

0:49:39 Andrew: Is absolutely a bad law thingy. And again, as I flagged from the outset and now we can kind of wrap it all back up, could take this to the Supreme Court. But dear God, you would not want to write like because I do not want the conservative monarchy of monsters at this Supreme Court to rewrite the idea of how far your Fifth Amendment privilege against self-incrimination goes. Right. That would be an awful, awful result. And the Fifth Amendment is what every day criminal defendants need in order to protect themselves from abuse at the hands of the police. Right? Right. So, you know, we would wind up with, you know, more of the situation like what we have with the Stipetics.

0:49:52 Thomas: Is that? Is No. So

0:50:23 Andrew: The way, this is yeah, This is the Pennsylvania Supreme Court, so that they can say the Pennsylvania Supreme Court misinterpreted the scope and protections of the Fifth Amendment privilege against self-incrimination. That would be the basis for a cert petition. Um, nope.

0:50:23 Thomas: That is the Supreme Court, the next step here. There's no higher Right, but I'm just asking, so it remind me the procedural stuff here. There There's no circuit because it's criminal is that why

0:50:49 Andrew: Nope, yeah, this is it Uh, this is, no, because it already, we have omitted the fact that the intermediate Pennsylvania appellate court affirmed the trial court decision, right, and affirmed it on the grounds that we described in going through the case, namely, uh, yeah, this was a factual determination, this was prosecutorial discretion, not a non-prosecution agreement. Therefore, there was no reasonable reliance interest. Therefore conviction stands. So this is the Pennsylvania Supreme Court overturning that intermediate appellate court decision. And there's no higher place you can go in Pennsylvania. You can make a collateral appeal up to. Sorry, I should I should scratch that. It is not a collateral. It's an appeal on the merits. But you can petition for cert to the Supreme Court to say, hey, this part where the Pennsylvania Vania Supreme Court was purporting to analyze the Fifth Amendment. They got that wrong. The Supreme Court is the highest adjudicator of constitutional rights. So we want you to weigh in

0:51:13 Thomas: Can't

0:51:46 Andrew: On that. But yes,

0:51:47 Thomas: I know this is probably a stupid, stupid question, but can you tell me why there is no circuit court thing? It goes straight from Pennsylvania Supreme Court to Supreme Court. Is that just because of the nature of the involved here?

0:52:00 Andrew: Because when it comes to state law, state Supreme Court states are sovereign. Right. So if this were and on the other issue, if this had come out, for example, on the prior bad act testimony and it was entirely on the interpretation of Pennsylvania Rule 404, then there would be no recourse anywhere, right? It would stop at the Pennsylvania Supreme Court.

0:52:24 Thomas: Okay.

0:52:24 Andrew: But there is an exception when state Supreme Courts issue an opinion that depends upon their analysis of federal law or federal constitutional provisions, that you can then go to the U.S. Supreme Court and say, hey, Pennsylvania is trying to interpret the Fifth Amendment and they suck at it. Come in and tell them that they're wrong.

0:52:34 Thomas: Okay.

0:52:45 Thomas: So I had absorbed that in criminal stuff, you kind of skip past the circuit, but it's not exactly true. It's just because the way the laws are state versus kind kind of federal stuff. Okay. Interesting.

0:52:56 Andrew: Correct. And and And keep in mind that you, that, know, Bill Cosby has already had right to appeals as of right. Right, he went to the Pennsylvania Intermediate Appellate Court and then up to the Pennsylvania State Supreme Court. Right, so it is not as though that there has not been adequate process afforded to this particular criminal defendant.

0:53:17 Thomas: Yeah. Well, my view on the whole Supreme Court thing, Andrew, is they're going to ruin everything anyway. So if they're gonna ruin everything anyway, might as well put Cosby back in prison while you're doing it. What do you think? It'll be like, well, we didn't do this bullet dodged forever with the Supreme Court on the Fifth Amendment. Stuff. I don't know.

0:53:36 Andrew: Well, it It's hard to argue against that particular view of the Supreme Court. I other

0:53:40 Thomas: Well, that's awful, Andrew. I can't believe that happened. This, is I'm in disbelief. And do you know of any other, you know, I mean, my feeling on Cosby, because I don't pay that much attention to it because it's so unpleasant, but my feeling was, there's so many victims that, you like Weinstein, there'd be some other, you no, charges or state or victims or something. Is there anything else that people can get him on?

0:54:03 Andrew: If what you want here is to look for a a silver lining, it would be an analogy to the original Castor press release, right, which is to say would permit, I believe that some attorneys for some of the other survivors of assaults are planning to come forward. I know there's at least one pending action that was stayed, right? Right. That was a civil action that was stayed pending the result from the Pennsylvania Supreme Court. And again, right. This now clarifies that in connection with that, that Cosby will not be able to take the Fifth Amendment. Right. It

0:54:29 Thomas: Good, yeah.

0:54:42 Thomas: But that's still all civil stuff, so he's not going into prison.

0:54:43 Andrew: Yeah, there will there will not Be continued criminal prosecutions in many of these cases. You know, the statute of limitations has expired. And certainly like, you know, a lot of these women are from the time period 1982 to 1989. And again, right, that does not the analysis. It certainly changes, you

0:54:45 Thomas: Yeah. Yeah.

0:55:11 Thomas: Take him for all he's worth, then. Again, at least, you know, hopefully all his money will go to the victims in some form. That's all I'm rooting for now, huh?

0:55:18 Andrew: And I want to relate one thing. A dear friend of mine, Amanda. Hi, Amanda, friends with the foreperson of the jury that convicted Cosby the first time around and passed on to me that person's statement, which was, you and again, it sort of stands in contrast as as Cosby. And, you know, Felicia Rashad took like a victory lap and it just nonsense. Right. We've walked through this in no way invalidates the underlying factual determinations that were made at that trial. It is absolutely not, a a vindication. And so the the for the foreperson said in a public statement, I suppose I could reveal this person's name, but I'm going to keep them confidential.

Pennsylvania Supreme Court has overturned Mr. Cosby's conviction. While he has not been found innocent, the presumption of innocence returns. This decision by the Pennsylvania Supreme Court is based on a legal technicality of due process rights agreed upon, unfortunately, by the former Montgomery County DA. The jurors that found Mr. Cosby guilty did so based upon the facts presented during the trial that included the charges of indecent sexual assault against Andrew Constant. We came to the unanimous decision based upon thoughtful and meticulous consideration of the information and evidence provided to us, and I, as the foreperson of the jury that convicted Mr. Cosbey, stand firmly by our decision of Mr.

0:55:30 Thomas: Right.

0:55:55 Thomas: Ow.

0:56:40 Andrew: Cosby's guilt. The time we spent in sequestration was not in vain. The jurors did our job and came to right and just decision. Today, a rapist has been set free. I Agree. So, so there we go. Hopefully that, you understand more, even if, uh, you know, yeah.

0:56:50 Thomas: What a four person Yeah. I think you should be more mad than maybe you were. That is worse than I expected.

0:56:57 Andrew: I I I agree Yeah.

0:57:02 Thomas: So we are way over time because this is an outrageous story, but Andrew, we got at least touch on the Trump org and the indictments, I guess. Do your, do your best lightning round.

0:57:13 Andrew: Yeah. So we actually talked about this on yesterday's cleanup on All 45 with beloved ace associate Morgan Stringer sitting in for Allison Gill. So you haven't heard that one, go, go listen to Cleanup 24. For. Here's the situation. Today, the Manhattan DA's office brought an indictment against the Trump Org as a company, which you can do for criminal fraud. And yep, corporations are people, my friend. Morgan said that on the show. It was great.

0:57:45 Andrew: And also against Allen Weisselberg, that is the chief financial officer for the Trump or the person Who knows where the financial bodies are buried? It is very, very clear to me that this first round of charges are designed to to produce to get Weisselberg to flip. We have seen reports that Weisselberg was starting to cooperate and that the New York district attorney's office got frustrated with his lack of cooperation. You cannot make a criminal case against Donald Trump or any of the higher up execs, Don Trump Jr., at the Trump org without Weiscelberg's cooperation. So this is a necessary first step in order to produce a plea agreement and cooperation from Weisselberg to flip on Trump.

0:57:39 Thomas: Mitt Romney reasons. Yeah. All

0:58:35 Andrew: Is it going to work? I don't know. But I do know that like that that was always the linchpin to this case from the beginning. And that's the way to understand and read these indictments. So, you know, Trump is going to take a victory lap and say, well, see, they didn't indict me. Well, of course they didn'T. You're right. Like you you you can't indict Trump. You don't have a reasonable likelihood of success until you can get the person who signed all the checks to be able to say, yes, my boss, Donald Trump, told me to sign X particular check. And the key to that person, Alan Weisselberg.

0:59:10 Thomas: Right. Well, we'll keep an eye on that then. And just time for a quick correction. We got a few emails about this. If it was one, I would have just assumed that someone misheard me, but since it was a couple, I'm going to go ahead and assume that I made a mistake in how I said something here. But regarding the school, that is a name I can't pronounce.

0:59:29 Andrew: Stuyvesant.

0:59:30 Thomas: Stuyvesant. Yeah, there you go. So you were talking about how there are so few black students at Stuyveant, right? And then you said something like, and these schools are this schools like this are essentially a pipeline to the Ivy League, to Harvard and Yale kind of thing. And then I jumped in with, you and at those places, legacy admissions are vastly outnumber the number of black students. And I was just trying to make the point that like we have a yeah, there's already a pipeline problem in the Stuyvesant type high school. And also it's here's the signs of how bad it is at the Ivy League. But I think a lot of people interpreted me to be saying that at Stuyvenant that was true. Like there's legacy admissions at that school. School just want to emphasize, it's not what I meant mainly because I've never heard of that school and know nothing about it. So I definitely wasn't taught.

1:00:17 Thomas: This isn't like a me trying to recreate what I said, cause I don't even know what that school is. SoI wouldn't have said that what I was referring to. And I just wanted to throw this in here. Now that I grabbed some numbers for you, I was talking about, you know, Harvard specifically when people complain about affirmative action and conservatives really, and actually a lot of mainstream, just everybody everybody has this idea that like, you know, if you're a black student, you just can walk right into Harvard because of affirmative action, right? You just get walk right in easy as can be. Well, in 2022, Harvard's class is made up of 36% of legacy students. 36% of the class of 2022 is legacy admissions. Andrew, what percent do you think is black black or African-American.

1:01:00 Andrew: Oh, I going to go with 11 and I'm crossing my fingers that it's as high as 11.

1:01:03 Thomas: Not a bad guess. 8.9. So, uh, three times, you know, three times the amount of the number of black people is just legacy admission admissions alone. That was the point I was trying to make. Sorry if I was a little clumsy and in interjecting and it misled people as to what I was saying, but that's what I'm talking about. And it's, it's an outrage. So if anybody ever talks to you about, you know, affirmative action and Ivy league and all that, you feel free to rattle off that

1:01:06 Andrew: Oh, yeah. Yeah.

1:01:32 Andrew: I would not have guessed that that it was that I'm that is just a preposterous. That's four times higher. Nine percent African-American. Thirty six percent. Yeah that is a staggering number. I also think there's an interesting discussion to be had over standardized testing. So listener John wrote in to talk, one of the folks who wrote in about Stuyvesant, this is an African-American Stuyvenson grad, right? Right. And so he wrote in to say admission to Stuyvesant is based solely on a test. Eighth graders take this standardized test and then students have their pick of which specialized high school they want to attend, starting at the top of the test score. Right. So person who does the best on the test gets their pick at the schools and assumedly picks Stuyvenson, which is a fantastic school. You know, Bronx High School of Science can't go wrong with that either. Right. Like a lot of really great public schools in Manhattan. That. Anyway, they start with the highest score they worked on the list.

1:01:40 Thomas: Yeah. I was trying to being conservative. Yeah.

1:02:28 Andrew: And John points out, the racial disparity has become a divisive issue in New York City and that there is an ongoing debate as to whether, you the sort of purely test based system is more or less fair. Right. And and that is a suit. And I told I 100 percent agree with John that like that's a a really interesting question. I've actually read a lot of academic literature on this because it was one of Alex's debate topics. So my son has read a lot of literature on the sniper and some. It's a really, really good question, right? Like there is good evidence that there's systematic bias in standardized testing. There's also really good evidence for, you know, the Thomas point, which is right. But when you take away standardized testing, you're now left with, you know, huge you amounts of discretion. And we've already seen what discretion gets you.

1:03:18 Thomas: Yeah, I feel like that's the way it went. Like people thought, oh, I see people are being racist toward black people and not letting them into college. Let's go to something like an objective measure, like a test, and then that way it'll fix everything. And then I think what you see is that, oh no, there's actually huge. This is why it's honestly, this is why things like critical race theory are so important to show that it's a a systemic issue and it's not going to be fixed by these little remedies that remedies that are targeted at like individual bias like oh let's just eliminate the the individual bias in the admissions you know people or something and that's not gonna fix it because it's a big systemic problem.

1:03:56 Andrew: Did that put a bow on that much better than anything I could say. So I'll just applaud and say, yeah, here, here.

1:04:02 Clip: And thank you, Let's go!

1:04:03 Thomas: And Now Now it's time to thank our new patrons at patreon.com/law. By the way, a late Law'd Awful Movies, that was just a confluence of things, but it's out now. Cop Rock 2. Go check out Cop Rock Episode 2, so the following people who may be enjoying uh a lot of movies as we speak. Thanks to Thomas Murphy, I've just signed up to the OA Patreon and now I can easily skip hearing this name read out, and there you go. Hey, if that's why you want to sign up, that's what you want, us know. Allison R, Guardian Beleren, is that like Jace Beleren and the Magic the Gathering reference? I don't know. Ghost dog and Terence Goggin. Your turn, Andrew.

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1:05:11 Andrew: Yeah. Oh My god. Yeah. You get Miss Ashley's stories in the news. You have six to nine pages every week of additional stuff. We've looked at it's, it is the best deal in podcasting, bar none.

1:05:25 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:05:32 Thomas: And It's time for T3B, Thomas Takes a Bar Exam. Hey, if you only started listening, you know, about two weeks ago, this is the segment in which, uh, I perfectly nail a bar question and I get every single, we've done about, you know, 200 something of these, you know, where I just exactly nail the question every single time.

1:05:46 Andrew: As far as they know, you get them all right all the time.

1:05:47 Thomas: Yeah. No need to go back and check.

1:05:50 Andrew: No.

1:05:51 Thomas: Uh, yeah. Let's see if I can keep this improbable streak going.

1:05:56 Andrew: All right, Thomas, Thomas, an entrepreneur from State A decided to sell hot sauce to the public, labeling it Best Hot Sauce.

1:06:03 Thomas: I already love this.

1:06:05 Andrew: A company incorporated in State B and headquartered in State C sued the entrepreneur in federal court in State C. The complaint sought $50,000 in damages and alleged that the entrepreneur's use of the name Best Hot Sauce infringed on the company's federal trademark. Mark. The entrepreneur filed an answer denying the allegations and the parties began discovery. Six months later, the entrepreneur moved to dismiss for lack of subject matter jurisdiction. Should the court grant the entrepreneur's motion?

1:06:09 Thomas: Oh God. Huh? God.

1:06:37 Andrew: A, no, because the company's claim arises under federal law. B, no because the entrepreneur waived the right to challenge subject matter jurisdiction by not raising the issue initially by motion or in the answer?

1:06:38 Thomas: Okay. I'm not getting this. Ooh.

1:06:54 Thomas: Oh my gosh.

1:06:55 Andrew: C, yes, because although the claim arises under federal law, the amount in controversy is not satisfied. Or D, yes because although there is diversity, the mountain controversy is satisfied.

1:07:07 Thomas: You know, I will note, Andrew, while we absolutely, as my failing test score historically has shown, we have all the integrity in the world in this game. I will know to the listeners, I do edit out a certain amount of me silently trying to figure out what in the World this question is even saying. So, you know, peek behind the curtain. So there is so much going on. I think, I think I understand some of it. So here's the thing. This is the typical, we've had a lot of questions and they've been difficult. And I think I've gotten some of them right, but most of them them wrong when it comes to like this diversity, jurisdiction, yada, yadda, yedda. Here's what we have. We've got state a, and I think this is all pointless.

I don't think, I think these are all attractive distractors because you got state A selling the hot sauce, state B headquartered state C. They're trying to throw you off with, okay, the B, the C, and then the, if I remember right, it's 75,000 in damages. And we have a 50,000 and damages thing. I think that's all to a trick past Thomas who would have gotten that wrong.

I think, I mean, I'm aided by the fact that the question, the answers helped me out here, but I think that that doesn't matter because it's a federal thingy.

1:07:22 Andrew: All right.

1:08:16 Thomas: They've infringed on the company's federal trademark. I Think all the, you know, diversity and the $75,000, I thinkthat would all matter if it was a state thing. Like if, if you were suing under state A's laws for state B and state C, blah, blah. Blah, blah. I think that because it's a federal thingy, you're just in federal court and all that other stuff doesn't matter, I think. And then it adds in another wrinkle, which is, well, they moved on with the thing. They filed an answer denying the allegations and they began discovery. But then six months later, the entrepreneur tries to move to dismiss for lack of subject matter jurisdiction. And that's another attractive distractor, because I think that would be true. I think if you didn't do that right away, I could imagine, I'm not sure about this, but I could Imagine six months later, you try to dismiss and they're like, well, hold on, we've already started the thingy.

1:09:09 Thomas: Like, you got to do that before we start all the thingies is what I think. So let's get let's see where this leaves us. So the entrepreneur who used best hot sauce blah, blah, moves to dismiss for lack of subject matter jurisdiction. So a no, because the company's claim arises under federal law. That's what I actually think it is. I think it's just that. But let's see if there's, if I'm wrong and maybe there's another answer that's better. B, no, because the entrepreneur waived the right to challenge subject matter jurisdiction by not raising the issue initially by motion or in the answer. Now, could this be a thingy where that's the closer answer? Like that answer happens first, you know? I don't, I don'T think so.

1:09:51 Thomas: I arises under federal law, the amount in controversy is not satisfied. Now that's a real attractive distractor, but I don't think that's how it works. I think that, I think, God, I hope I'm right about this. I Think if you're in federal thingy, you're in federal thinking. I, cause otherwise it would be like, you are allowed to screw someone over federally as long as the amount is $74,999. You can screw someone out of $74.999 and you're good. I think that's not right. I Think the amount in controversy matters when you've got the diversity jurisdiction and you are trying to get into federal court, but it's a state law matter. I'm going to go not C.

1:10:36 Thomas: Although C may be like the... I don't even think C is the second Second best answer. D, yes, because although there's diversity, the amount in controversy is not satisfied. Oh, that's like the same answer. I would say D is the, I almost think B is the second best answer, I'm almost fully on the no territory. Yeah, I just think C and D are both wrong, you know, I don't think it matters because Cause we're in federal, we're in federal court, you know? So those are both, I think those are Both tricks. I think a is the right answer. I'm going to go to help the coin out. I'm gonna go between a and B. I actually think B like maybe there's some weird thing where like, you Know, that would be the, the quicker way that they would dismiss it. But so I'm Going to go between a or B and let's what the coin thinks. The coin So the coin and I both say a who we'll see this. This, oh, that's my final answer. The corny and I say A, final answer,

1:11:30 Andrew: And if you'd like to play along with Thomas in the coin, 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. And by the way, you will have to work hard to outdo last week's winner. That was hysterical.

1:11:49 Thomas: And And our show, thanks so much. Listening, reminder, join us at that Patreon Q&a coming up. Check out the YouTube, that's an easy way to do it. Or look out for that Patreon notification you'll get. Either way, we can't wait to see you. And stay mad about this horrible Cosby thing, everybody. Yay. Have a nice weekend.

1:12:08 Andrew: Happy fourth of july

1:12:11 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.

1:12:45 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.