Bonus: Rittenhouse Acquitted on All Charges

Transcript

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

0:00:39 Thomas: Well, you just heard it acquitted on all charges. So I'm not doing great. How are you doing, Andrew?

0:00:48 Andrew: I'm not doing great either. Let's be really, really clear here. This verdict is bad for the people of Wisconsin. That's why the trial is the people of Wisconsin versus Kyle Rittenhouse. They did not get justice done. This is bad because it is going to empower the conspiracy heresy theorists, uh, who have been misrepresenting stuff, uh, over the past couple of weeks that we've been sort of dedicated to bringing down, and they'll be able to say, "Haha, you know, you guys on Opening Arguments, you were so confident," um, and uh, that

0:01:20 Thomas: Yeah. Well, I'm glad I at least spared once. I should have emphasized it more, but I did say in yesterday's episode, I said, look, the jury may still find him innocent, you know, but it won't have been the judge's fault.

0:01:40 Andrew: That's That's right, and look, that makes this a harder question right, like it it's an easy answer to say oh yeah the fix was was in from the beginning. And that's not the case. And so we have a harder question to deal with. It also means that I have spent this time, I mean, obviously, you know, shocked and disappointed at the verdict. And I should add parenthetically, the other thing is, right, I mean, we already saw Mark McCloskey running for the Senate in Missouri. This is going to empower power white vigilantes.

0:01:46 Thomas: Yeah. Oh, God. Yeah, a

0:02:20 Andrew: Yeah. And and that sucks for humanity.

0:02:24 Thomas: Couple obviously quick notes. This will be a cursing episode, this is a fast rapid response, I don't know if I'll have time to edit, so we're probably fucking doing it, doing it live, um, but yeah, it needless to say if

0:02:36 Andrew: This this episode deserves a couple of bucks in it. So it

0:02:37 Thomas: Yeah if if uh, if Rittenhouse were black, obviously he would have been, I don't even know what we'd be at this point, like he would've been shot by the police, like, in the middle of the thing you know, so that's the first thing to say at the outset. This is only because he's a white kid that he got off here. There's no chance this would have happened to, to a black kid.

0:02:57 Andrew: And and and that kind of discussion, right, the institutional and structural racism discussion is the kind we need to be having. It's the kind that needs to inform our our discussion on the show. Um, but again, it it's, that's a much harder, it's a much harder and more nuanced issue. Um. I've been focused on, um, how did, how did I get blindsided by this? Right? Like I'm the legal expert on the show. Uh, what, what did I do wrong? What, what can I do better? Um, and, and I think, um. There's sort of a couple of things here. The first is I have been searching for good faith interlocutors, right? People who predicted before the verdict came down that Rittenhouse was likely to be acquitted, but for reasons that weren't stupid and conspiratorial and whatever.

I found an article that was published in the Wisconsin State Journal. If you just search for the title, here's why Kyle Rittenhouse is likely to be acquitted and why the law on self-defense must change. And it's by Wisconsin law professor John Gross. I've reached out to him. I'd like to have him come on the show. And and there are a couple of really, really interesting things that that I'm going to share from this article. The biggest one, and it was one that if you look at my show notes, I had some notes on, but but I downplayed and I shouldn't have downplay that. And that is in Wisconsin, once the other side has raised self-defense,

0:03:24 Thomas: Hmm. Yeah. Yeah, yeah.

0:04:42 Andrew: That then becomes an element. It's not treated like a normal affirmative defense. It becomes an an element that the state has to prove beyond a reasonable doubt um I I should have emphasized that um I don't know what other states but but yeah it

0:04:48 Thomas: Huh. Just in Wisconsin or whatever. Like, sorry, I guess to rephrase the question, is this not what you would, are used to seeing?

0:05:03 Andrew: Was not what I expected

0:05:04 Thomas: And yeah.

0:05:04 Andrew: No, it is not, it is not what I'm used to seeing um and and I wanted to make a point of that, I was prepared to make a much larger point of that until the prosecution won the provocation instruction um And then. And I got to tell you, I mean, I'm just guilty of tunnel vision on this that I thought once the provocation instruction was given, I really couldn't see how you got to a self-defense verdict.

0:05:34 Thomas: This is the incredibly confusing thing you just posted that I, it's incredibly confusing.

0:05:39 Andrew: And if it's incredibly confusing, that's well, it

0:05:42 Thomas: I, you know, I think I, I, there's still a lot to to say but yeah I think that you overestimate

0:05:44 Andrew: Look that's instructive. That's instructative. So let me so let me read it. Well,

0:05:47 Thomas: Um the the the average Wisconsin juror's ability to understand what the hell's or to care about what's going on in that complicated instruction.

0:05:56 Andrew: Okay, so so and again, that's why I'm saying, this is right, if I'm trying to do better, let me let me share, uh, it. It's two, set, sorry, it's Two Paragraphs, each are a couple sentences long. You should also consider, and this is by the way, this is on page five or six, this is the five to six. This is the part that the jury first requested when they were sequestered. Right. And so, again, played into my beliefs about this trial. So The instruction says, you, the jurors, should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense against that attack. That's super duper clear, that's the rule, if you've provoked

0:06:07 Thomas: Yep. Yeah. But then, it doesn't

0:06:59 Andrew: It it it There's

0:06:59 Thomas: Go on like, oh, and so then if you something else, and there's like 18 different clauses after that. Yeah.

0:07:05 Andrew: Only one exception, and, and I'll read it, and and so you tell me how much this undermines, and by the way, this is the end of the section, right? So so that's paragraph one, paragraph two is, however, if the attack which, which follows, causes the person reasonably to believe that he is in imminent danger of death or great bodily harm, he may lawfully act in self-defense, but the person may not use or threaten force intended or likely to cause death, unless he reasonably believes he has exhausted every other means to escape from or otherwise avoid death or great body harm. And, and, and

0:07:44 Thomas: So, I think the average juror looks at that and says, well. Well, you know, the only evidence we had, I think you and I both know, and I think any reasonable person knows that Kyle Rittenhouse brought this on himself by having a gun pointing at people. Like, why would there have even been, we heard testimony that there were guns all over the place. Why did this happen to him? Like, I wonder what, you know, what it is. We have the grainy footage.

The only thing though that they could provide was super grainy footage that he might've maybe pointed his gun to start all this. And then I think the jury looks at that, by the way, sees the this sympathetic fucking, you know, doe eyed, uh, white kid. And it's like, well, look at that. You know, he, he was running. Like we, we saw, they saw him running a lot of the time. Oh, he's running away. He's running way.

Uh, and, uh, you know, with the, with the testimony of, of some of the people, um, you know, the, the guy, the actual, one of the victims was like, yeah, I, whatever he said, you Now, I pointed my gun at him or whatever.

0:08:40 Thomas: You Know, I think they put all that together and we're like, wow. You know,, uh, he was running. So it looks like he he was trying to exhaust all other means and, you know, he viewed his life in danger. So that's self-defense.

0:08:53 Andrew: And I think we should have, I think I take a hundred percent of the blame for this. I think I should have walked you through that as my level of confidence on yesterday's show. Uh, and we should have aired, uh, and, and presented the possibility of a defense verdict. And you should opportunity, you didn't have the opportunity to push back at my interpretation of those provisions the way you did because I didn't, because you deferred sort of to my like hey, once I got the provocation instructions, those that like, to me that counteracted the uh the the the burden issue, um, and in in this case, right, because we're talking, as as you put it, we're taking about about what a jury believes, right? And it isn't that I, as a lawyer, have a better insight into what a true, it's that I have a worse insight, right. Like, like a non-lawyer.

0:09:30 Thomas: Yeah. Yeah, yeah. I think that's true.

0:10:00 Andrew: Yeah. Like you would have had a much better insight Into, Hey, you know, like an average person could just kind of look at this.

0:10:06 Thomas: I really regret not making a bigger thing of it. Yeah I don't know. I don't know what to say because I do think that this is a problem with expertise. You know, when you look at and I think when anyone has expertise in an area, you know when I look at a hockey game I'm going to see things that you're not seeing and I'm gonna be like, yeah, obviously this guy over here should have done this over here. And I'm not gonna be a good judge if we had some weird thing where a jury of 12 random people from Wisconsin, well, actually Wisconsinites might know hockey pretty well, but if a jury from 12 random People had to evaluate a hockey play, I might not be as good a judge as somebody who knows nothing about hockey who's gotta be like well, but I'm looking at this with fresh eyes and not really seeing what you're seeing there. I think you saw the elements of that instruction.

0:10:53 Thomas: We're like, "Oh, bingo, we got it. We nailed it." And I'm like, "I guess I don't." And I wish I had spoken up more about that. I'm sorry I didn't.

0:11:01 Andrew: No, no. I look again. I think that, you know, we're, we're trying to figure out, you know, how to how to best serve our listeners going forward. And again, this is a bad day for us and it's a bad day for America. I don't I I want to emphasize I stand by I mean, every word we we put out and and I think our coverage was and remains valuable. And if folks use this verdict to say, you you know, see, this is proof that when the judge's phone played Lee Greenwood, you know. Yeah, that that that.

0:11:15 Thomas: Yeah. Yeah. Oh, they are I want I would, I, it's It sucks because it's not worth it, you know, like it's really worth being the push person to push back on that right now, you know, like that's not a good use of our time. Um, but I donno, maybe a while from now, if this ever cools down, I would like to, you know, I'm tempted to ask someone, "Okay, what did the judge do that swayed the jury in this?" And I think what you'll find, and I'm seeing this online, you'll find, and one of the reasons I'm so confident in your coverage of that is the first thing you'll find is, "Oh, well, he ruled that, you know, they couldn't, the victims couldn't be called victims." And that'll be what they'll say. And that's just not right. Like, that's incorrect.

0:11:42 Andrew: Yeah. Yeah,

0:12:24 Thomas: To say that that was the judge, you know, handing the case over to Rittenhouse or whatever. You know, it's just not correct.

0:12:31 Andrew: Ken. And I'm glad you brought that up. I want to jump ahead because I do want to make a technical correction to yesterday's episode. Right. So episode 538 explains the whole victims, rioters, looters kind of thing. We then said I watched you know, both closing arguments live. And I was listening for the word rioters and I didn't hear it. It actually does come. Well, like I said, I heard it in the prosecution's close, but not in the defense close. Apparently, there must have been a colloquy off the record that said, you know, we're going to make brief reference as rioters.

0:13:21 Andrew: We're not going to use the word looters. That does not appear. And there is a very specific point that I'm going to, that I'm to point to, in which they, the defense counsel, makes points out that there is the word loot scrawled on the wall and to, and to point, point to the word loot on the wall, but not use the word looter, strongly suggests that, you know, that was the, that was the judge's ruling. There is no objection. Right. And there are objections in the middle of this closing argument. But there is no prosecution objection to the couple of times that he says, you know, there were rioters out there and the like. Like the real prejudice.

0:14:08 Andrew: And again, remember, the way in which this was initially reported was, you know, suppose incorrectly was the prosecution said, hey, I'd like to call these these victims victims when we talk about them. And the judge was like, yeah, why don't you call them looters instead? Right. And and and none of that occurred during direct and cross examination of the witnesses during the trial. Right. Like this is how is it characterized in a closing argument? Were there three instances of, you know, Kyle Rittenhouse is not that individual. The rioters, the demonstrators who turned into rioters. Those are the individuals who bring us forth. OK, so references like that. But but I said and I want to sort of be 100 percent clear, particularly when we're talking about, you know, coming back to this in the future. If you look through the court transcript, you will find that word. It does not change in any way, you know, our analysis from 538, from episode 538.

0:14:35 Thomas: Yeah. Yeah,

0:15:19 Andrew: People keep, Yeah, right? People are like, why don't you have Nate Silver? And I'm like, Nate Silver doesn't talk to me anymore. But um, I, I want to read a little bit from uh what John Gross wrote, and and I'm curious your thoughts on this, Thomas, that majority is highly skeptical, if not outright dismissive, of Rittenhouse's claim that he acted in self-defense. But this view of the case against written house is not based on what happened that night in Kenosha. It kenosha It's based onwhat led ritten house to be in Kenoshia. It isn't that Rittenhouse didn't act in self-defense, it's that he shouldn't be allowed to claim he acted in self-defense. That belief is based on the fact that he was not legally allowed to possess the gun he used to kill two people and seriously injure a third. He was not allowed to be where he was in downtown Kenosha because of a curfew that was in place. And carrying an AR-15 assault rifle in public is an act that puts others in fear for their safety. So attempts to disarm him are not a sufficient justification for the use of deadly force.

0:15:20 Thomas: Yeah, Yeah that

0:16:21 Andrew: And then Gross says, says, and I would, and this is why I'd like to have him on the show, because I'd like to push back vis-a-vis provocation. He says, "All of these beliefs are reasonable, but they do not reflect the current state of the law. Rittenhouse is not barred from claiming the privilege of self-defense because he illegally possessed a firearm. He is not barred from claiming the privilege of self-defense because he was violating a curfew. While many people feel that carrying an AR-15 assault rifle in public is dangerous and invites confrontation, Wisconsin is one of many open carry states where parading down a public street with a military style assault rifle is permitted. If the jury acquits Rittenhouse, they will be doing what the law requires them to do. That should prompt us to ask why the law dictates this result, and how the law might be changed to discourage people from resorting to deadly force, and if they do, to hold them more accountable." It

0:17:11 Thomas: Sounds like a pretty dead-on summary of what happened.

0:17:16 Andrew: Does it's hard to square with the jury instructions, uh, other than um, you know, that the Thomas Smith reading of, um, I, you know, the, the jury, that it was kind of confusing and that the jury just sort of didn't apply them.

0:17:32 Thomas: Well, what were you, okay, when You, in your mind, in you're lawyerly mind, when you're thinking that he provoked the attacks, what, what are you, are you basing that on? I just want to get clear

0:17:42 Andrew: I am basing that. Yeah. Yeah, yeah. I'm basing that on him, uh, parading around with an AR 15 and then specifically as is shown. And again, admittedly blurry and not zoomed in. Uh, but as he's shown on the video, pointing the gun gun at Rosenbaum long before any of the alleged, you know, he's running at me, threatening me, trying to steal my guns stuff comes up, right? To me, parading around with a gun and then pointing a gun at somebody is illegal conduct that jeopardizes the use of violence. Clearly, the judge thought that that's a plausible interpretation because he allowed that instruction to go to the jury.

0:17:43 Thomas: Yeah yeah yeah

0:18:22 Andrew: And in particular, what we focused on, and what I focused on, and this is this is another error on my part, and I'm going to explain why. But it's an error of interpretation. But it is an error of interpretation. I focused on the the the trailing. Right. Like when we broke down on the lamb episode, the very last question, good question, that that that Bingham, the prosecutor, asked of Rittenhouse was, "OK, so you're telling us, why is it, uh, not dangerous if you have your gun pointed at Rosenbaum, but if he gets it and points it at you, you're afraid for your life" and and and Rittenhouse had no answer to that and and

0:19:01 Thomas: Exactly I I just wish the jury would have, would have taken that into account, because that that is the fundamental place where you're like, I don't understand how you could rule this way, having

0:19:13 Andrew: And that featured in the prosecution's closing. But, and this is what I was going to say, my error was, is a confirmation bias, like, to me, I looked at that, and when it came out, right, I ticked off the the box. And I'm like, "Yep, that's right." They said the thing that they need to say in order to win this case. And and that's not, that was confirmation bias on my part. Right. That was me looking for the prosecutor to say the thing I would have said. Now, look, I am not, I'm not a prosecutor, right? So it would be beyond the height of hubris to say, you know, if I'd gotten to give the closing argument, you know, Rittenhouse would be behind bars. I'm in zero ways, that would, that would be an appallingly stupid thing for me to say.

0:20:02 Thomas: Said that I feel like the prosecutor did not do a great job, yeah

0:20:05 Andrew: Yeah. And I think we we called that. And again, this is, this this sort of goes back to a little bit of confirmation bias. Right. In that if we, if you and I both believe that it is very, very clear that Rittenhaus is guilty, at least guilty of the lesser included offenses, um, then, you know, we've sort of mentally patted ourselves on the back and said, uh, okay, like, he's gonna face some, I mean, I, I can tell you this is what I did, right, he's going to face some prison time, um, whether he gets convicted on the most serious counts or not, they're all very serious, he's to be spending some time in jail, uh, and we, we did not prepare for, and we did not prepare our audience, is the real failure on my part here, for, okay, yeah, but what if not?

0:20:08 Thomas: Yeah. Yeah.

0:21:07 Andrew: And build that case. And the reason to build that case is because of what we're talking about. Let's take some of the individual moments. And these are all things that we've said, but they're things that we should have put together, yeah go ahead

0:21:26 Thomas: I hope if you're hearing this live, I hope I get a little sympathy for how hard it is to find a time to jump in here. Sandra truly is never done with a thought. There's never a time where he's like, "and now I'm done, talk, Thomas." So that's why I do tend to jump in. Apologies for that. It's very, very difficult to do correctly. But anyway, I did want to jump into that thought and say that that's my regret in here now, because I, I think if you listen to the lamb, you'll hear when I said, like, "oh, I was really, Andrew talked me off a ledge," I said, you know, because after Rittenhouse testified, I was like, "okay, we're fucked," you know, and it reminded me of the confirmation hearing, as people have pointed out, you know, it's that same thing. I mean, we have a lot of sympathy for, what's the term that gets used? I'm blanking on it now, but, um, yeah, we have a lot

0:21:36 Andrew: Do

0:22:21 Thomas: Of sympathy for a crying white victim or whatever him

0:22:21 Andrew: You oh you do you mean the Kavanaugh confirmation

0:22:25 Thomas: No I mean, yeah, yeah, empathy, that's what it was, empathy is the um the term yeah, I think it was, uh, it was, anyway, I have a hard time recalling these facts off the top of my head, but, um, anyway, uh, yeah, I was very worried, and what I wish I had called out more in our later coverage, um, and I think I was, uh, perhaps complacent in my negatron, uh, my duties as a negatron, you know, like, I get, you did kind of convince me, um, and I felt really confident based on your confidence, a little bit, not to put all the blame on you, I should have pushed back, because I worried when we talked about, you know, him being, having brought this upon himself, I worried that that all came down to the grainy footage of him maybe pointing a gun, and I, that is a worry that I should, should have voiced more of, like, "Hey, does this all kind of collapse if the jury's like, I don't really see him pointing his gun at all."

0:22:25 Andrew: Yeah empathy I like that, I like that well

0:23:17 Thomas: You know, like, does This all basically fall apart? And that was way too big of a weakness for this all to sit on for us to be at all confident in, in a guilty verdict, I think.

0:23:28 Andrew: Okay, but now let me push back at you a little bit, that that is relevant, I think, to the top line offenses, right? But remember, we have all of the lesser included offenses, right? So let me pull up the jury instructions. Let's take kind of one of the middle ones, right? Um, so Gage, Gage Grosskreutz, uh, Grosskreutz, uh, at one point, you know, had the gun. So let's eliminate count five, right. Let's say, for example, they threw that all out in the the wash, um, that that that I I

0:23:31 Thomas: Okay.

0:24:09 Thomas: Which as you pointed out a second ago, doesn't make any fucking sense. Cause you know, Rittenhouse had a gun. They both have a gun who gets to claim self-defense. I guess guess the lesson is shoot first, be the one who killed the other guy, because then you're like, well, I was afraid for my life. And then the other person doesn't ever get to say the same thing because they're dead. Right? I mean, is that, am I wrong, Andrew? How is this supposed to work?

0:24:28 Andrew: You you you do not you do not appear to be wrong in the context of this. I mean, you know, how do we, how do we deal with, for example, um, counts, uh, two and three, right? Um, which is recklessly endangering the safety of Richard McGinnis. That's the Daily Caller reporter that is following Rittenhouse around. Right. And we've seen, seen that.

0:25:05 Andrew: What what is defined as the state's. So let me read this to you, okay? So statutory definition of the crime. First degree recklessly endangering safety, as defined in the Criminal Code of Wisconsin, is committed by one who recklessly endangers the safety of another human being under circumstances that show utter disregard for human life. State's burden of proof. Before you may find the defendant guilty of first degree recklessness endangery safety, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present. One, the defendant endangered the safety of another human being. Well, obviously, he fired an AR-15 in the direction of a Daily Caller reporter. Two, the defendant endangered the safety of an other by criminally reckless conduct.

0:25:07 Thomas: Yeah.

0:25:55 Andrew: Criminally reckless conduct means the conduct created a risk of death or great bodily harm to another person, And the risk of death or great bodily harm was unreasonable and substantial. And the defendant was aware that his conduct created the unreasonable and substantial risk of death or great bodily harm, great bodily harm. We don't need that. That's not an issue. It is defined. Then it says three, the circumstances of the defendant's conduct showed utter disregard for human life in determining whether the defendant showed utter regard for human life. Consider these factors, what the defendant, defendant was doing, why the defendant was engaged in the conduct, how dangerous the conduct was, how obvious the danger was, whether the conduct showed any regard for life, and all other facts and circumstances related to the conduct.

0:26:42 Andrew: And then there's a special rule with respect to the reporter, right, which says there is evidence in this case that the defendant was acting in self-defense as to Joseph Rosenbaum. The fact that the law may allow the defendant to use force in self-defense as to Joseph Rosenbaum does not necessarily mean that recklessly endangering the safety of Richard McGinnis was lawful. Though you must consider the law of self-defense in deciding whether the defendant's conduct as to Richard McGinnis was criminally reckless conduct, which showed utter disregard for human life, but the defendant does not have a privilege of self-defense as to Richard McGinnis, period. So in other words, this is built for precisely the the scenario. Okay, you bailed on uh on count number one, that's what we went through, you didn't buy Andrew's argument on the provocation. How in the hell do you not convict with respect to the obvious, the guy who was, you know, quote unquote, on your side? Uh, I mean, I just read to you what was read to the jury. Um, did, did I misestimate that one too? Can

0:27:17 Thomas: Yeah.

0:27:46 Thomas: Apparently, I mean again, this all came down, look, is it fair to say, Andrew, that it's possible that none of this analysis matters if voir dire already decides the thing. Like, is it possible that if you get the right jury, which I think in a case like this, in this country, and especially in maybe in Wisconsin, odds are decent that you get a jury that just wasn't going to convict him. You know, I mean, this was, by the way, this Was a unanimous defense verdict. It took, we didn't talk about this much, but it did take a lot longer than people were thinking. So maybe, yeah.

0:28:28 Andrew: We can we sidebar that a little bit? So let's talk about that, because we retweeted out, occurred rather unfortunately, sorry, Ben, about 10 minutes before the verdict came down. But a post from from from our our buddy Ben Young, saying, you know, that the fact that this has gone into day four of deliberations has got to be making the defense nervous. And he is 100 percent correct on that.

0:28:57 Thomas: And that's true that, yeah, the defense attorney even said that, I think, after the fact.

0:29:02 Andrew: I could. I'm glad. And I just want because, you know, people were, you know, dunking on us and dunking unbanned. And it was just like, no, like like he's 100 percent correct in that. Because think about how the dynamics unfold. Right. Like if you're correct that, you know, this was all settled kind of at voir dire. And, you know, they just sort of believe Rittenhouse.

0:29:26 Thomas: Well, hold on. I didn't

0:29:27 Andrew: And OK, I'm sorry.

0:29:27 Thomas: Finish. I think the facts Would be consistent with one holdout as well. You know, like maybe, you know, or one or two holdout, who knows, like a a majority of the jury that's like, look, this is he, self-defense, you know, he, these people had it coming, yeah, who know, like fucking, who knows what kind of trumpers are in that jury, you know, I mean, I, I don't know what, so this, this also would be consistent with, you know, there is one or two sane people on the jury and they tried for four or five days or whatever it is, and then ultimately lost. I

0:30:04 Andrew: I That's a hard. I'm glad we're going through all this. Maybe we should have done this on Thursday. Although, again, you know, now we're talking about having a six hour show.

0:30:10 Thomas: Mean We Were In like hour Five Of written House Yeah.

0:30:14 Andrew: Right. Yeah.

0:30:14 Thomas: Content, it was, yeah, yeah.

0:30:16 Andrew: It's hard to predict what's going to be relevant. So I'm really glad we'RE doing this and glad weRE doing a follow up episode. But let's walk through that. If you believe in good conscience that that he is guilty and that it is, you know, monstrous to to to let him walk. Wisconsin is a unanimity, you knows, a jury unanimity state. So, well,

0:30:39 Thomas: Well, Again, When I say hold Out, it doesn't mean that one person is like death to Written House. It could be one person has just, you know, hesitant on some of the stuff. Yeah.

0:30:49 Andrew: That's true. So let's get to that. Now, the tree has branched lot. Lot. But let's first deal with the idea of there's one to two holdouts who are pretty strong in their beliefs. Typically, we've talked about this before.

0:31:07 Andrew: Typically if that is sort of motivated by conscience, if that has a strongly held belief, then you know you can just hold out and hang the jury. And again, hanging the jury, way better outcome than what we got.

0:31:19 Thomas: Yeah. Way Better than Acquittal Yeah.

0:31:25 Andrew: Way better than a acquittal. Um, and and and by the way, uh, we come back to this sidebar, like the fact that the defense moved for mistrial without prejudice, right? It indicates, you know, nobody Thought that this Was in The Bag

0:31:39 Thomas: Yeah. Too Late To Take that bargain by the way, prosecution. Yeah, no, no, I, I did actually compress the file. Misroute. Redo.

0:31:45 Andrew: Yeah. Yeah, they did not have nearly enough, uh, defense prep. Yeah, um, it's so, uh, so, so, so number one, holding out is always an option if you're on a jury unanimity state. And usually what happens in that case, and I was preparing for us to discuss this, we've talked about this on the show, is Monday, right? If there had been no verdict today and then, you know, depending on whether the jurors were sent home or sequestered for the weekend, what you would have is, right, the judge would come back with an Allen charge. And every state has a version of that. The that's that's the federal name.

0:32:25 Andrew: But yeah, it is a it is a I understand that that you are remain hopelessly divided without, you know, prejudice to where you are. You know, consider if you are in the minority, if your view after, you knows, five days of argument has been insufficient to convince the super majority of your colleagues on this jury that, you know, maybe you're not so correct after all. Right. Basically what it says. And then, you Know, but it reaffirms your right to to hold out. So the first thing we can say is there was nobody on this journey who felt like holding out past, you know. The

0:32:04 Thomas: Yeah. Yeah, we discussed this little lecture like a pep talk from the judge. Try harder, everybody.

0:33:12 Thomas: Yeah.

0:33:12 Andrew: Beginning of day four. The second thing we we can say is I really really don't want to believe it was I would hold out, but not if it cost me my weekend, um, no, no, and again, I, uh, you know, you you jump in anytime you want, you know, that's always been our rule, Thomas, um, so I taken, I will say, I guess I have more more more faith in juries, uh, than than

0:33:15 Thomas: What with the weekend looming?

0:33:26 Thomas: Who knows? Don't let me distract you. Continue with what you were going to say. I think

0:33:48 Andrew: That but could

0:33:49 Thomas: That's the key. And honestly, I think maybe you have a little too much faith in juries. That might be the key component here. Here. I don't think you're really wrong on any of the elements of the legal analysis. I think could it really be as simple as you have a little too much faith in juries?

0:34:06 Andrew: Be, could be, um, so so now, you know, let's also the the other thing that that the other thing that sort of gives you confidence in, uh, in having some kind of of mixed outcome, uh, you know, if not, you know, outright, uh, conviction on the, uh, on on at least one of the the top line counts, um, is, is that three and a half days, right? Like, what happened in that jury box, you know, in the, in the, in the privacy of their deliberations.

Um, and, uh, uh, it's again, three and half days is very consistent with carefully parsing your instructions as to five different counts, some of which have lesser included offenses, right? And like ticking boxes and following a flow chart and being like, oh, well, we don't get to here because of here. We do get to hear because of hear, right. Um, which again is predicting a jury that behaves more in the way that I was predicting and less in the ways that you were predicting, right, if, if it is just nope, we saw Rittenhouse on the stand and we believe him. And, you know, we kind of have a general feeling of dangerous night, and uh,

0:34:37 Thomas: Yeah. Yeah. Well,

0:35:24 Andrew: You know, he was, he did nothing that was that was outside the bounds of self-defense, um, in that case it it it seems like it's hard, uh, to to come up with why that would take three and a half days, right? Like that would takes three and a half minutes, um, yeah.

0:35:42 Thomas: It could be, again, it could be the holdout. I think we can both agree that the most reasonable interpretation of it taking this long is at least somebody on the jury needed convincing. And I think that it could be possible that not that they were some, like, like, Rittenhouse must burn for what he did, juror, because then I think they would have held out further and caused a hung jury. It could be, maybe they were all pretty sympathetic, but some number of them are like, yeah, but what about these lesser included? Maybe we should do that. And then they were eventually talked out of that somehow.

0:36:18 Andrew: It right now, that seems like, uh, sort of the most plausible course of action. So but again, so

0:36:28 Thomas: I wonder if, honestly, just more American psychology, because our system does come down to 12 people who, as the old joke goes, were too dumb to get out of jury duty. You know, there wasn't a sympathetic enough victim, perhaps. You know, like, honestly, like, if, who knows, if, if one of the victims had been like a young white girl, like, who knows, like, honestly, that maybe then you'd be convicted. Um, it shouldn't make any difference by the letter of the law, but like, psychologically, I think we find that tends to be the case in outcomes, yeah.

0:37:02 Andrew: What that suggests is two things. And this becomes a big ask. Right. It suggests that protests are about to become a lot more dangerous in this country. Because a lot more people are going to be, they were already, we have seen, you know, we have seeing those dynamics. We watched what happened under Trump. We watched, you know, literal black shirts, body slamming journalists with their Lexan riot shields. Thankfully, we've ended that practice, but that has not ended the practice of state and local law enforcement coming down on protesters. So protesting already dangerous, about to become more so. And your point is, yeah, and if we have more allyship at those protests, that may change the dynamic. And that's a hard thing.

0:37:13 Thomas: Yeah. They already were. I

0:38:02 Andrew: Like I said at the beginning, that's big ask. But this is part of what we can do to to help our brothers, sisters, siblings be be safe. And that is, you know, don't allow it where if you go out there with your AR-50, you don't allow it, where if some asshole goes out armed looking to pick a fight, the odds are 99 to to one that that his victims are going to be black, you know, stand there in solidarity. And that's a hard ask. That's a it's a really hard ask, yeah.

0:38:40 Thomas: Mean already none of the none of the victims were black in this case, but right, I mean, just

0:38:46 Andrew: I'm just thinking in terms of, yeah, no,

0:38:48 Thomas: Hypothetically yeah, yeah, um, yeah, I know, I see a lot of people out there talking about like, well, I guess we all have to carry guns, we got to bring guns out there, and like, I, I get the sentiment, but I'm I'm sure shit not doing that. I don't, I don' think that that's, uh, gonna bring good outcomes, but I understand the impulse, like maybe people will feel like they they need to defend themselves now. I get it. I totally get it, um, I'm just saying me personally, I'm not going to do that because I don't want to increase the chances of somebody getting killed.

0:39:02 Andrew: I will.

0:39:20 Andrew: Yeah, I don't I don'T either. All the statistics show that. I mean, and everything. But let's go back to Gross's article, to Professor John Gross's article that I was reading from. One of the disconnects that you and I may likely have from that Wisconsin jury is our view that walking around with an AR-15 strapped to your chest is provoking behavior, right? It's provocative behavior.

0:39:25 Thomas: Yeah yeah yeah

0:39:49 Andrew: If this is a hunting culture And as Gross points out, you know, it's an open carry dress like a Marine state. The more I guess my point there is, the more we normalize that, the less people will draw that influence. And so, you know, of the many reasons why I guess we on the left have to start carrying guns is a super bad idea. And it's not what I'm going to use, is it undercuts the inference that we're going to, that we're trying to draw here. Right, the idea that like we should strongly demarcate, like, did you go into a situation intending to use force, or did you, you go into a situation intending to be helpful. Um, and, and uh, you know, obviously, you know, Rittenhouse was able successfully to, to blur that line to this jury, but let's not make it easier for the next one to, to do that. I don't, um, I don't agree with that at all.

0:40:08 Thomas: Yeah.

0:40:51 Thomas: Yeah, and I, you know, there's two conflicting things here that I, you know, I just want to, I guess, explore for a second, and then there's, I know there are other things that you wanted to get to that we should get to, but on one hand, obviously this fucking sucks and it's really bad for our country, as we've said, and Rittenhouse was guilty. And this is, this is going to be, this is a terrible injustice. It's going to be bad for every, everybody. But on the other hand, what happened was 12 fucking people in Wisconsin said a thing. And it's, it's so it's tough. Like, I get both sides, because I see a lot of posts that are like, well, country's over, you know, like, wow, uh, that system doesn't work, country's over, dah, dah. And I 100% understand the sentiment. And I agree with a lot of that. But then on the other hand, if you look at it from another way, it's like, well, if 12 people in Wisconsin said anything, I wouldn't give that much of a shit about it.

0:40:57 Andrew: Yeah.

0:41:48 Thomas: You know, it is sort of this contradiction of our system where all of a sudden, same way with the electoral college, like it just prioritizes certain people. And it puts us in these situations where like, on one hand, you can look at it and say, this is one jury that said a thing. Like, there's no reason that we all should be like, well, the country's over because one jury of 12 people said a thing, but at the same time, I get it. Because, you know, like if that's, that's going to become the, if that's going to become a new norm, if that's going to inform other cases around the country, I don't know. I mean, I don't know how much Wisconsin is unique and if this had happened in another state with slightly different laws, slightly different burden shifting or whatever, like Maybe it would have gone the other way, you know, so I, I don't, I don't have any answers. I just, I just wanted to kind of put voice to that weird contradiction where it's, it's somehow it's both shouldn't be very significant, but also is incredibly significant.

0:42:42 Andrew: Yeah, I, I agree with, I agree. I don't know that I, that I have anything to, uh, to, add to that. I mean, it one of the things that's

0:42:53 Thomas: Well, then should we get to the, some of the questions? Oh, sorry. Go ahead. If you, yeah,

0:42:54 Andrew: Yeah, yeah, let's let's let's get to some of the questions, but I guess I just sort of want to wrap all of that up with, you know, some folks have said, you know, I am too, you know, and I trust too much in the process, and that that may be a fair criticism, but but it's a fair criticism in the sense that I think the underlying problems with the process are that the structural racism that undergirds the process. So, for example, if this were a Black defendant, he almost certainly would have been held and not released on bail, certainly not across state lines. Um, and, and the statistics back that up. So now if you take Rittenhouse and instead of him being in a suit, uh, he's in an orange jumper and chained up at the table, um, that, that that like, it is impossible to describe the difference in the optics because of that. Is that, where does that blame go? Can you put that blame on that?

0:43:43 Thomas: Yeah.

0:44:11 Andrew: You also should put that blame on a system that that institutionally, systematically results in those kinds of disparities. So I have never meant to say that I thought the system was was perfect, just that it's important for us to identify kind of where the blame goes. So, you know, this is typical of a couple of sort of the negative responses that we got, was, you know, in describing the jury instructions, you know, there was a- and again, this is a paraphrasing comment, but like but, you know, they don't really care about the process and never have, and you shouldn't have had those expectations, right. And my response back was, who's the they, right?

And and when you think about who is the they, like, I think this is a really good- like, I think this case serves to illustrate the difference between there being a simplistic individual bad actor, right- the judge is in the the pocket of of of the defense, uh, versus, you know, the the the they is us, right? Like, the they is amorphous, the they isthe influence of, um, you know, hundreds of years layered on top of each other, uh, and that's a harder answer. So, you know, um, it- obviously we're doing a lot of thinking about- and so, you know, it- this makes it makes the questions harder, not easier, I guess. So, let's- on that note, let's let's deal with some questions.

0:45:15 Thomas: Yeah. Yeah.

0:45:55 Thomas: I think a lot of people are wondering, you know, what happens next? People are asking, so I'll just pose the questions. Questions. We might already know the answers to these, but just for the sake of saying them, what about federal charges? Anything?

0:46:05 Andrew: Sure. So you could concoct and -- concoction. Let me not use a word that's loaded.

0:46:14 Andrew: Absolutely. It is plausible to bring federal charges in a case where somebody crosses state lines with a firearm.

0:46:23 Andrew: And and I'm going to lump into that the question of, like, isn't it Biden's DOJ's fault for, you know, not assuming control of this from the start and prosecuting him and prosecuting Rittenhouse in federal court? And I think that that is the worst kind of backseat driving right now. Right. Like, this is the- the state charges were much easier. We just read you the one with respect to McGinnis, the Daily Caller reporter, right? Like, that is a knock down, 100 percent. Like, obviously, that charge was proven at trial. And so, you know, in a situation like that with overlapping jurisdiction, where you have some federal offenses that are going to be harder to prove, because you're going to have to prove that the intent began in Illinois and was carried over into Wisconsin.

0:47:17 Andrew: And the defense argument I can tell to you right now, like I would, you know, I can make that argument. But Rittenhouse didn't buy the gun in Illinois. Right. He didn't get the gun until he got into Wisconsin. How could he have possibly, you know, and then now you're left in a like litigating out, you know, what was Kyle Rittenhouse thinking when he left Aurora, Illinois, which, you know, you don't want to do that as a prosecutor. So I think it was entirely appropriate for the feds to defer to the state in this instance. And I think having failed to secure a conviction on lower hanging fruit without, you know, sort of obvious incompetence. We've talked about it. Like, I think this prosecutor was, you know, a B minus, right? Like he did some good stuff. He did some of bad stuff. He was and he's fine. Right. Like he wasn't great. But but, you know, he wasn't Mr. Magoo.

0:47:26 Thomas: Yeah, yeah,

0:48:11 Andrew: Well, we talked about like the the severe ethical lapse in that was not great. So you could score him lower if you want. But I don't think that the DOJ is going to look at this and go, we obviously have to get involved. So I think there will not be federal charges uh because of because of what happened.

0:48:16 Thomas: Yeah. That was not great.

0:48:33 Thomas: All right, well, on to the civil. I mean, I'm sure we all have in mind the OJ case, you know, another time where definitely the wrong outcome was reached, and then in the civil case, things went a different way. What do you think?

0:48:39 Andrew: Yep. Um, I think there absolutely will be uh civil charges against Rittenhouse um the thing that's different here uh and and more frustrating is um Rittenhouse is already hooked up with the right-wing grift machine and when that happens he will 100% crowdsource fundraise off of it, um, and whether, uh, they will even be worse off, uh, as a result. Uh, I don't know. Um, that is not to, um. To suggest

0:49:16 Thomas: Yeah. Well, I mean the victims' families would still get money, though. I think they would still get recompense.

0:49:21 Andrew: Correct. They 100% will and should, uh. Bring those, those civil cases. Um. And, And the, and the O.J. Simpson model is, is the right model. It is just frustrating to me to sort of watch the slow motion unfolding of, I mean, you know, we, we were joking about it cause we expected Rittenhouse to be in jail, but you know what I mean? That this, this Matt Gaetz has already offered him a congressional internship and you know that the, the, the right wing, I'll put it this way.

Mark Fuhrman has a talk show on the Fox, uh, uh, what, you know, whatever Fox's version of of Apple TV Plus is, right, they've got a uh, they've got a payroll of, you know, a private streaming service that's full of like the worst kinds of garbage, um. I know this because the Knowledge Fight guys subscribe to it to get some Alex Jones stuff, right, and I listened with, you know, sputtering outrage of all of us, uh, to Dan talking about how, uh, Mark Fuhrman, you know, the racist detective from the O.J. Simpson trial, has had like eight years of basically like his version of opening arguments over on this Fox News, you know, paper, so

0:49:29 Thomas: Yeah. Oh my God.

0:50:41 Andrew: Yeah, and he's, he's horrible, he's not, I mean, he's there because he's a horrible human being, um, so yeah, like Rittenhouse is going to get one of those deals, yesterday, uh, he's going to be on the gravy train. And, and that's sad. And, and, and there was no chance to, you know, despite what non tears were squeezed out at this trial, we know exactly what, you know, what his position is going to b, you kn, what his public persona is going t b. And that's, that's awful and terrifying. So, yeah, let's hope that, let's hope the victims are able to extract as

0:50:41 Thomas: Yeah, I,

0:51:27 Andrew: Much of that money as possible. Yeah.

0:51:27 Thomas: This may take, this may take more prep, but I think the questions that, that I have and that people might have and feel free to punt for later, but how will civil suits look different? What will be, I guess, the torts? What will be the, what, what will be their things they're suing for? You know, wrongful death, whatever things. And then will there be a difference in terms of what kind of evidence you can get in in civil cases.

0:51:53 Andrew: Yep. Um, the answer is yes on both of those. And it probably does deserve, you know, when those, uh, civil suits are filed, we will, we'll take a look. Uh, but, uh. Your legal training has served you well. Um. The top line, uh tort is going to be a tort of wrongful death. Um and the burden of proving wrongful death, uh is just preponderance of the evidence, more likely than not. And the defense of self-defense will be a true affirmative defense in that civil case. So in other words, the burden will be for Rittenhouse to prove more likely then not that he acted in self-defence as opposed to the state having to prove beyond a reasonable doubt that he did not act in self defense. And it is just, Even though it's the same state.

0:52:26 Thomas: Interesting.

0:52:43 Thomas: Even though it's the same state? Okay.

0:52:47 Andrew: I know. Um.

0:52:47 Thomas: Weird.

0:52:48 Andrew: And how does that affect the evidence? It absolutely affects the evidence on things like judgment calls, right? Like so we've talked about, you know, what about some of these prior bad acts, right? Like what about, um, the evidence of, you know, Rittenhouse from August, uh, saying you know, I'll kill you, uh, at the car dealership, right? Um, you can see judge, right? Right. Like, in the question is probative value versus prejudice. Judges tend to weight the potential prejudice higher when the adverse outcome of that prejudice is we deprive you of your liberty in a way that is, you know, unrecompensable versus money.

Right. Money is money. Right. And so, so absolutely. But in both of those cases, you have the opportunity for for evidence that was excluded here to be allowed in in a subsequent civil trial. And I would expect that that would be the case that also sometimes happens in in in mistrials, too. Right. Like, remember, if if it's a judgment call, we talked about this. This this last came up, for example, in the in the Bill Cosby case. Right. Like there was a mistrial the first time they only allowed one former victim to attest as to the Quaaludes behavior.

0:53:06 Thomas: Yep. Yeah.

0:54:17 Andrew: And then in the retrial, they allowed multiple women. Right. Right. So same same exact cause of action. But where you have where it is up to the discretion of the judge to evaluate prejudice versus probative, you know, different judges can come to different conclusions. So so we I would suspect that in a civil suit, you would see some of the things that people have said, hey, why didn't this get in in this trial? So

0:54:46 Thomas: Yeah, I would love... Do you think there's a way the prosecution could have... We've already talked about this, but it blows my mind that you couldn't get in the evidence of him threatening to essentially shoot somebody if he had a gun. It just seems like it really speaks to what his mental state might have been when he actually had the gun. Um, do you think the prosecutor could have gotten that in somehow, or was that just, I don't know, the way the system works? It's too prejudicial or whatever? Yeah.

0:55:18 Andrew: To me, the way in which, when I think about evidence that has been excluded on the basis of prejudice, or I think about hearsay, right, like that you're not, that the judge is excluded because I'm not going to allow the jury to evaluate the truth or falsity of that proposition. Logically, as a lawyer, your art, your your thought process, if you want to try and get it in, will go to impeachment. Right.

We'll go to, we'll go to say, OK, well, now what I want to do is I want on the stand say something that is inconsistent with this piece of evidence, and then I can say, oh, I'm not offering this evidence for the truth or falsity of what it contains, but I'm offering it to impeach what he just said. Right? So how would you do that? You would, um, maybe not ask the questions about like playing Call of Duty and crap like that, uh, and instead probe down on, um, you said you came here to defend businesses. Tell me what you mean by defending businesses. You understand, don't you, that you may not use self-defense in place of a business, right? But you think it's okay to use deadly force to protect a business. Don't you? Right. Like, and maybe you can evoke an answer that that says no. No. And then you'd be like, and you've always thought, right, right.

Have you ever thought that it was appropriate to use self-defense to defend a building? That's going to get an objection. You're probably not going to getting an answer. But, you know, something like that, where you try and goad him into saying like, no, I would only ever, you want to use self-defense to defend me.

0:56:09 Thomas: Right.

0:56:57 Andrew: I would never want to use self defense to defend property. And then you would, you would say, okay, sidebar, your honor. Um, I want to impeach with, uh, I know you you kept this evidence out, but you just heard him testify that he would never use, uh, deadly force to defend a building, and I got evidence of him using deadly force of defense property. Yeah, so

0:57:18 Thomas: And Most importantly, you would ask fucking permission first, instead of trying to like sneak it in. Yeah. So maybe that would have worked, yeah.

0:57:20 Andrew: Yeah. I that that is indefensibly bad, I mean, that, yeah. Um, and and who knows, right? You You may have had, uh, uh, more success with that. Um, you couldn't have had less. So that's that's the way to think about it

0:57:26 Thomas: Yeah.

0:57:39 Thomas: True. All right we're almost up on time. What, what did we forget in this time that what did not get to that you meant to get to and all this?

0:57:47 Andrew: Um, they're, they're, uh, the the question of, uh, can the prosecution appeal? Um, and the answer is that the prosecution can appeal on on any of their procedural objections, right, for evidence that was excluded. But I would say, practically speaking, I would be surprised if the state decided to.

0:57:47 Thomas: Right, so it's hypothetically possible to get another trial or something if you're the prosecution? How

0:58:18 Andrew: It absolutely is, right? And that does not violate double jeopardy on appeal because what happens is that first trial is vacated. The idea is, no, the prosecution should have been able to introduce evidence that X, the judge incorrectly excluded it. And and then, you know, the solution is you try again.

0:58:46 Thomas: Often does that happen? I've never heard of that. Okay so not not worth putting a lot of hope into that? Yeah.

0:58:49 Andrew: Almost never. Yeah. Yeah. And it would not happen in this case.

0:59:01 Thomas: Because there wasn't anything egregious enough in your opinion.

0:59:06 Andrew: No. And and and again, those typically What, where you see, where you see an appeal, is if there has been like a very, very contentious, uh, suppression rule, for example, you know, um, we are, I am going to keep out his confession because I don't believe, you know, that was voluntarily given, it was pressured, and then you would say, yeah, but the the legal standards were met here, uh, and the judge says, well, you know, you're free to argue that on appeal, um, yeah.

0:59:35 Thomas: Yeah.

0:59:50 Thomas: All right. Well, this sucks. I think you and I have a lot that we're considering to improve our coverage going forward. I think if I had to do over again, I would have just probably emphasized some more doubts, but it doesn't change the legal analysis. I still think it's valuable what we're doing here. You know, and I think we also will have to trust in the intelligence of our audience, which I think we do. You know, we have a very smart audience and I, I think that our audience is smart enough to know that the evidence that the judge wasn't necessarily biased, and the point you make about debunking those myths, is not contradicted by the jury deciding something that we disagree with.

1:00:40 Thomas: You know, like, I, I think people can still disagree. Like people are free to disagree and say like, oh no, I think that the judge was a little bit biased in the following ways. But the jury deciding this really doesn't put, and it really doesn't answer the question one way or the other. I mean, solid evidence would have been, had we gotten a conviction and the judge had been like, yeah, but he's a good kid, so no time or something. I mean, that would have been solid evidence.

1:01:02 Andrew: Right. Absolutely. And I was prepared to go, uh, with, I had, I had pulled, um, uh, all sorts of, uh, law review articles regarding sentencing in Wisconsin, because Wisconsin uses a matrix, but they do not use the matrix for, uh, homicide cases. Um, and so as it turns out, right, so right, so when it says, you know, of a class B misdemeanor, you may be sentenced up to 60 years in jail, right, like, does that mean the judge can say, okay, well, I'm going to sentence you of probation. And and in fact, it does. But as a matter of practice, right, and this is in my show notes from from the last episode. We never talked about this at all. But and I forget the name of the law review article.

I looked at a couple of things written by somebody who appears to be, you know, the most prominent sentencing expert in in Wisconsin, in Wisconsin state laws. And And basically he talked about how there is this, even though the judges have wide discretion, they generally trend towards the top of the range, because there is this perception, that exactly the one that I just played with,

1:01:03 Thomas: Oh.

1:01:25 Thomas: All

1:02:16 Andrew: Which is if you are sentenced to a crime that says if you're convicted of a crime that says you may be sentenced up to 60 years in prison and the judge is like, well, three years is up to 60. Right. Like that feels ridiculous. Right? Like that that feels like you have deliberately picked, you know, a tiny little number. And so the sentences tend to be at the top of the range. So, yeah, I thought we were going to be litigating this judge from the perspective of, you know, during the sentencing phase. We're not going to have an opportunity to do that. And and obviously that's disappointing.

1:02:50 Thomas: Right, well, um, yeah, I I hope this was uh helpful to people. I hope it was useful. I think, I know, like I said, I know we're we're introspecting right right now, uh, and and I think this will inform coverage going forward, but um, again, I mean it, I think it would have just allowed more caveats, you know, it's just been like, also.

1:03:11 Thomas: The judge could just, or the jury could just go the wrong way, which I did say, but I I didn't emphasize enough, I don't think.

1:03:17 Andrew: It. Yeah. And again, I don't think it would have materially changed how people reacted to our episode episode because we did a wrap up and you said, you know, our bottom line. And if we had said, OK, but, you know, here here are the ways in which the jury could acquit, you know, and you could get an entire defense verdict. If you'd asked me at the end, how confident are you that the jury will convict? I would have read you what I just did here and said, OK, you tell me how the jury is not going to convict on on in endangering of safety uh towards um, you know, towards the Daily Caller reporter, like there is, there's just, there's... there's nothing in the facts. There's nothing that was presented on the stand that would have uh said he did not. At least, and that's a Class F misdemeanor uh with a 12 and a half years uh maximum time in prison, right? And again, you know, super easy now to say, uh, you know, I'd take 12 and a half years in prison over nothing.

1:03:50 Thomas: Man, I wish I had done that.

1:04:20 Thomas: Yeah.

1:04:21 Andrew: But but but but I would have to fit right, like if that's, if that would have been the verdict that came back, right, like not guilty on four out of five counts, guilty first degree reckless endangering the safety of others with respect to the Daily Caller reporter, order, I would have said a little bit surprising, but, you know, at least this is somebody who's going to face criminal punishment for criminal behavior instead of, you know, getting what's going to happen, which is getting rewarded for criminal behavior. So so I

1:04:21 Thomas: All right, any other closing

1:04:58 Andrew: Don't know that I want change it.

1:04:58 Thomas: Thoughts or are we going to call it here?

1:05:01 Andrew: You know, all I can say is I I continue, I hope that the, you know, the sort of the disconnect between our evaluation and the results does not let anybody undermine or obscure what I think was still, you you know, really, really good work in piecing through, um, how, you know, how we got to the conclusion of the trial. Right. And, and I think all of the like conspiracy theory nuns, right, like, you know, just ask somebody, like, are you really think the jury decided the way they did because, uh, eight seconds of Lee Greenwood song played, uh, you know, when the judge's phone ran, come, come, come on, I was gonna say that, well, oh, we are on it, on a non, on a nonsense, next time I'll say, uh, I'll say come the fuck on, but um

1:05:50 Thomas: Yeah. Yeah. Yeah, good thing you didn't say that here.

1:06:02 Andrew: Yeah I would not want to do that now and jeopardize our, yeah

1:06:04 Thomas: All right listeners, As I said, we have no choice but to trust in the intelligence of our listeners, and I do trust in the intelligence of my listeners because I think this is an intelligent show, show, uh, and I don't, so I, you know, I think all this information can still be useful, uh, and our episodes and our coverage, I think, were very useful, and I learned a ton, even if ultimately, um, you know, we were too confident in a in a guilty verdict. But uh, thanks for listening, um, thanks so much for, yeah, I mean, I honestly, thanks for watching and uh engaging with us, and uh, we're we're gonna to continue being really fucking depressed today about this. And we'll see you for Tuesday's episode, which was recorded before this. So just FYI.

1:06:51 Andrew: Yeah.