OA544: Debunking the Left's Rittenhouse Trial Myths

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 544. I'm Thomas. That's Andrew Torrez. How you doing my friend?

0:01:24 Andrew: I am fantastic, Thomas. How are you?

0:01:26 Thomas: I am doing great. I am anticipating, I think we're both anticipating that the best laid plans, I'm sure we'll get it like a Rittenhouse verdict in the middle of recording. As of now, again, you all know we record this on Thursday, as of now nothing, but we'll see. We will basically interrupt our show if that happens, I I think, right?

0:01:35 Andrew: Yeah, obviously.

0:01:50 Thomas: All right. Well, that hasn't happened. So we'll keep an eye on that. I'm just, I was just refreshing. Uh, no, it hasn't happen. Um, but we've got, uh, before we get going a few great announcements, for one vulgarity for charity, you may have noticed, uh, one Eli Bosnick over on a cleanup on aisle 45 this week. That was a lot of fun and they have vulgar for charity. I'll we've already plugged it, but, uh. Last night, someone posted a picture of Andrew Yang appearing on a Greg Gutfeld show with somebody who wasn't Greg Gutfield.

0:01:54 Andrew: Yeah, I know. That was fun. That was so... This is so good.

0:02:20 Thomas: I guess that's even better. I don't know the story. It's too irritating. I didn't want to know. But if, Andrew Yang has sold out to the point where he's trying to get attention on Greg Gutfold show, and then Gutfeld wasn't there that day, that's Even funnier to me. So I saw that. Like, oh man, man, if only Eli would roast everybody in this picture. And I was like, wait a minute, there's a way.

0:02:37 Thomas: And so I went literally, This is 100% true story. I went and donated an amount that hurt, because you always want to donate until it hurts, to Modest Needs, because it's a great foundation. It's a good organization. It helps people who have little costs that come up, because we all know in this country, so many people are one medical bill away from bankruptcy or from homelessness. And so it's, it's fantastic charity, it's Modest Needs, and I donated, and then I sent my receipt to vulgarityforcharity at gmail.com and I requested that the gang make fun of that Andrew Yang's political career, so we'll see if that happens, I'm but a humbled listener when it comes to that, I didn't try to pull any strings or anything, so we will see, so that's what you can also do if you would like, the, the folks over on Scathing Atheist and, of course, Cognitive Dissonance to roast somebody, or maybe you,

0:02:37 Andrew: There is yep

0:03:29 Thomas: Andrew and I, to roast Somebody for you. You can request that as well and possibly we'll hop on over there and do it.

0:03:35 Andrew: Absolutely and if the enough requests come in uh ag from cleanup uh morgan stringer right like The possibilities are endless.

0:03:42 Thomas: Sure. The Pope, I think.

0:03:44 Andrew: Yeah, the Pope, I believe, said that as long as he doesn't say any of George Carlin's seven dirty words, he's in.

0:03:51 Thomas: Wait, does the Pope have a podcast by now? He must. They must have a popcast.

0:03:54 Andrew: The Pope, the pope, the popecast.

0:03:57 Thomas: It's got to be. Someone look it up. And also another reminder that we did two hours about of excellent coverage. And when I say we, of course, I mean, Andrew, of amazing coverage of the Rittenhouse trial. It is really good info. We did it for a lot awful murderers. Again, that's because, you know, we were both kind of unavailable the last month. We didn't do a lamb the previous month. So we did a sort of a double length, extra filling, a lot of murders of Rittenhaus. That's over on patreon.com/law. And if you are at the $2 level, you get that. And also if you shoot us an email telling us, that, you that you you, can't afford it right now, that's a, okay. We will send you the file. We want to treat our patrons, but we understand that some people aren't able to support us and that's A-okay. We'll send it to you. Send us an e-mail. Tell us, tell us what's going on and we'll shoot you the filo over.

0:03:59 Andrew: Oh, yeah. All right.

0:04:48 Andrew: Yeah, absolutely. And one more piece of good news that we should well, it's it's good slash state of the union, uh, and that is, uh, yesterday the House of Representatives, uh, censured, uh, Republican Paul Gosar, you know, who photoshopped AOC's, uh, head onto, like, an anime person who gets murdered. I mean, just like the kind of the kind thing that if a sixth grader had done it, not only would they be expelled, uh, but that but the school would be calling and saying, like, hey, we we think there's something wrong with your kid, right? Like, you should not have violent fantasies about killing AOC uh and and drawing swords on the president. And, um, the entire Republican party, minus Adam Kitzinger and, uh, and Liz Cheney, uh, has decided that's okay. Uh, they, they were the only two Republicans to to join the censure mission.

0:05:19 Thomas: Yeah. Is everything okay? Yeah. Your coworkers, by the way. And I know. I know We don't often think of it this way, but keep in mind, these are co-workers. Imagine if your at place work there's just some other douchebag who's like spreading around videos of him killing you in your workplace, and you're just like, okay, cool, that's great, that's awesome thing I have to deal with at work now.

0:05:47 Andrew: Yeah, The, uh, Wisconsin Republican Party, uh, responded to that by kicking Liz Cheney out of the Republican Party. I think this is just a symbolic vote. I don't really know or care, like, but is astonishing, right? 31 to 29 vote that says, nope, you are no longer a Republican if you are not part of the, like, insane contingent. That's mind boggling to me. And again, should be a pretty nice reminder for those of of us who were sitting there going, like, I'm kind of disappointed that, uh, you know, President Biden didn't get more in the infrastructure bill. Like, yeah, me too, right? But, like, we have one party proposing solutions and the other party saying, well, if you're not down with torture and murder porn about your co-workers, uh, you're not a real Republican, so maybe keep that in in mind.

0:06:49 Thomas: All right. Well, what's going to happen as a result of this, Andrew? Is it, uh, we got him, you know, case closed. He's out of the House. Done.

0:06:57 Andrew: So he's he's not kicked out of the House, although the House does have the power to expel its own members, that requires a two-thirds vote, which we're not going to get. This is the most significant punishment you can impose with a straight-up majority vote, which is that he will be removed from the House Oversight and Reform Committee. That's the committee AOC is also on, by the way, and the Natural Resources Committee. So before you start saying sternly worded crunch wrap, right, like, that's super significant for a member of Congress, right? Because it means that, like, the stuff your constituents want, you can no longer put into bills. Right? You don't have any power to shape legislation if you're not on those committees.

0:07:21 Thomas: Oh my God.

0:07:31 Thomas: Yeah. Yeah.

0:07:42 Andrew: Um and the way in which our framers thought that that would work is now, like, somebody will primary him and be like, hey, I'm gonna be super conservative too, uh, but you you know what? I'm not going to do dumb stuff. That means I can't represent you in this district. So, you know, we'll see.

0:07:57 Thomas: Sweet, naive little Andrew. I was so with you until then. I think this will cause him to be more popular I actually don't know how much the Republican, I almost said Tea Party. Boy, those were the days. The QAnon base, I don't knows how much they particularly care about legislation or being represented in any meaningful way. They care about pissing off and hating the right people. And they also, as some people point out, are getting, they're very alarmingly comfortable with like murder, you know, whether it's Rittenhouse, who's now a hero for murder, whether it'S the people who killed Ahmaud Arbery, whether IT'S, uh, Gosar for threatening essentially to murder his coworker. Um, they're getting really, really cool with that in a way. That's very scary.

0:08:42 Andrew: I don't disagree with any of that.

0:08:44 Thomas: And we are almost getting to the main segments. However, we we had a bit of a rush, You could say, of patrons, and the new patron segment would be so large today that we're going to divide it up. We're goingto do a fit. We got it because we got to thank them all. We signed a contract, you know, there was consideration, there was all that good stuff. So we're going to divide it up, and we're gonna thank our new patrons, uh, beginning and end of the shows here for the next couple shows so that we get through every each and every one of you, because we want to, uh, give you thanks. So, Andrew, why don't start us off? Oh,

0:08:50 Andrew: Yeah.

0:09:17 Andrew: Thank you to Tanya Wardell. To Ysero Bartlett, to Elsie, to Susan Martin, to Kyle, to Yam, I'm Mammy, to Samantha Font, Sergei Rumantsev, thank you to Merida and Mouse, to Waiting for the Show on Hippo Violations, yeah, we got two of those, to Nick Larson, Dylan Day, Marcus Marcus D., Andrea C. Reed, Rachel Derbyshire, Quo Vadis, to Holly Howery Coaching, howerycoaching.com, that's H-O-W-E-R-Y, C-OA-C-H-I-N-G.com. Yes, you can use the spot for ads. To Florida Stokey, Nicole Mars, Vanya Molotov, Zachary Miller, Rasputin's Bulbous Moosecock. Yes,you can use this spot to make me say absurd stuff. To Matthew W. Hewitt, to Dawn Delac, to Arnolder, Miranda Starr, Catherine Clare, Paige Venore, and Thomas, take it away.

0:09:36 Thomas: Yeah, and Thank you to Daniel Robertson, Allison Longfellow, Lucas S., Laurie Meter, Kelly Prang, Natalie Baker, KS, Aaron Mayo, Preston Dell, Sean Nelson, Thank you for helping me to explain the law to my students and making them think I'm way more of an expert than I really am about. And then it cuts off. Yeah, excellent. Kevin Duff and Christy Parrish. Thank you so much. Hope you enjoy The Lamb and all the good stuff, the ad-free show, all the goodies. More patron thanks later in the show, but now, all

0:11:05 Andrew: Yeah. If If you are a new patron, by the way, uh, look up, head on over to OA Wiki, the OA Wiki page, uh, because there are multiple pages that have been put together, mostly by Teresa Gomez, uh, that will direct you to where you can find all 52 past episodes of Lamb, the, like, bonus episodes, how to subscribe, all the good things you've been missing all your life and you didn't know you need it until now. So just Google the OA wiki and you can find it.

0:11:30 Thomas: Right, on to the show.

0:11:35 Clip: Down the law, down the law.

0:11:39 Thomas: So Andrew, why should we essentially try to take down the Biden committee on the Supreme Court?

0:11:46 Andrew: Yeah, we covered this back when it was formed in, I think, April. And I gave you a whole bunch of red flags at the time, which was one of the initially announced as a co-chair, later demoted. Later, he resigned on October 15th from the committee. But, you know, not before they did all their work was Harvard Harvard law professor and Federalist Society member Jack Goldsmith that William Bode, the you know, the guy the guy we took down for substantive dishonesty here on the show.

0:11:52 Thomas: Yeah, William Bode, Whose qualifications seem to be guy who went and lies about originalism to package it to people who to unwitting people like Julia Galef, apparently. Yeah.

0:12:25 Andrew: Yep. Yep, so, you know, know there is having bipartisan members on your commission, uh, and then there is inviting you the folks who are the problem onto the commission to thus deny it was the problem. So on October 15 we actually had a segment about this, it got cut, uh, for there was breaking news, I don't remember at the time What It was But I was very excited to walk through, I mean, very excited in a in a a deeply depressing sort of way, the utterly watered-down findings that this commission came up with. I didn't get to tell you about that, but I am going to tell you that as you are listening to this, 1 p.m. on Friday, assuming you're listening to this on Friday at 1 p.m., from 1 to 5 is a public meeting of this commission in which which members of the public can attend virtually over Skype. The link is in the show notes, but it's whitehouse.gov PC SCOTUS slash public meetings slash November-19-2021-PC

0:12:48 Thomas: Who Knows PC SCOTUS

0:13:31 Andrew: SCOTus meeting. Yeah. So you can and you should go. And if it is open to the public to ask questions, you should ask questions like, Why didn't you even look into the role of the Federalist Society in selecting dangerously unqualified ideological acts as part of a deliberate effort of the right wing to take over the judiciary branch? Follow-up question, is it because multiple members of the committee are members of the Federalist Society? Why didn't she recuse yourselves? Or how about this one for size. What is the committee's response to Senator Sheldon Whitehouse's brief in the New York Pistol and Rifle Association case that persuasively shows that the Roberts court virtually uniformly reaches conservative policy outcomes in close contested cases?

0:13:31 Thomas: Letter, WTF A minute, Andrew, I've got an idea. All right, these are all, you just came up with these, should we type up a little script, sample questions for people to call and ask, like we could, we could put that on the website, I'll so if you type it up, Andrew, Drew, I will put it on the website. Maybe we include instructions as to, you know, that link that you gave and all that. And maybe we do, we really try to crash this thing. And so sorry to interrupt, but go on with your excellent questions that I hope everybody asks.

0:14:33 Andrew: Absolutely.

0:14:48 Andrew: Those were the three, but I'm going to come up with some more, uh And, we will absolutely do that script, we will absolutely put up on the website, uh, for everybody, um, and you should know by the way that self-same Sheldon Whitehouse, uh, came out and has condemned the uh the Biden committee, uh, so you're in, you're in really really good company, this is supremely disappointing, again, it's not disappointing enough that I'm gonna go vote green but you know, I like it, uh

0:14:52 Thomas: Oh, this is great.

0:15:12 Thomas: I see what you did there. Well, okay. So I had some clarifying questions, if you don't mind. So you're saying they already did their findings, but we just didn't get to cover it? Oh, preliminary findings. Because my question was going to be, okay, sure, they've got these idiots, you you know, Federalist people who are essentially poisoning the whole project and whatever. But my question, I think, would have been, or maybe I asked this when they first announced it, is this just a tactic where you get some people on there to, you know. Show that you're doing a fair and balanced kind of whatever. And then come out with findings. They're like, yeah, actually, we need to pack the court, essentially. And just use those conservatives to try to lend credibility to it. Is that the, a possible tactic that's going on here or not?

0:15:23 Andrew: They released their preliminary materials on October 15th So not is the answer, uh, the draft findings make it, no, no, it's it's that's really really good thinking, and again, I, you know, I was hoping with some optimism that like this, you know, this report would contain a majority and a minority report. Their final may do so, but I think the presence of those folks on the committee prevented the committee from asking the right questions, right? The right question is, how the hell is Justin Walker a heartbeat away from the Supreme Court, somebody, right? Who is unbelievably grotesquely unqualified to be on the federal bench is now being groomed for the Supremes, and that is 100% thanks to the Federalist Society, right? How did we get Naomi Rao?

0:16:01 Thomas: Dang.

0:16:46 Andrew: How did мы get a record number of judges who were rated not qualified by the American Bar Association to the point where that's now another thing Republicans are boycotting, the American bar association? Not because the ABA changed, But because they put out slew after slew of potential judicial nominees who were selected for only one purpose, and that was ideologically to pack the judicial branch, really, really disappointing to see the idea of adding Supreme Court seats in the draft report is dismissed as a kind of like, well, but, you know, then they could pack the court when Republicans are back in power and blah, blah, right

0:17:29 Thomas: Oh, yeah. So a good solution is just do nothing. Come out with a report that's like, we can't do anything because maybe they'll do a worse thing later. So we have to just sit with a court that's gonna take away reproductive rights in this country.

0:17:32 Andrew: Yeah in in two weeks so yeah that's gonna be fun yeah

0:17:44 Thomas: Oh, my God. Okay, well, you Know, but the important message is let's do this activism. I'm gonna try to get on there, Andrew. Andrew. Thomas goes to Washington this one via Skype. That would have been a better way to say it. I don't know why I didn't say that yet.

0:17:55 Andrew: Literally mr smith

0:18:04 Thomas: Sometimes I have a bit of brain lapse and I leave it in. I'll leave it In. All right, on to our main segment here.

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0:21:40 Clip: YOU BETRAYED THE LAW!

0:21:41 Thomas: Right time to do some debunking. Andrew, why don't I play the part of the move on? Occupy Democrats Twitter account sort of thing that seems to be really putting out a lot of bad information about the Rittenhouse trial? And then you can respond. What do you think?

0:21:43 Andrew: Yes all right Right. Excellent. Let's do it.

0:22:00 Thomas: Okay. So this just in, did you see that the judge let Kyle Rittenhaus choose choose his jurors and who is going to decide his fate.

0:22:09 Andrew: Yes. So here's that. Wisconsin's weird. In most states, Wisconsin's weird. I'm sorry. In many states, you select a jury and you differentiate the jurors from the alternates at the beginning of the trial. Now, all the alternats sit throughout the whole trial, but you know that you're not going to be needed. You're going to be dismissed at the end unless a juror is dismissed for cause over the course of the trial. And as we saw, there were, in fact, two jurors dismissed for causa over the course of this trial, including the one who decided he was going to tell a racist question mark joke, whatever, right? Like, this happens,

0:22:24 Thomas: Yeah. Yep.

0:22:50 Thomas: Can I say this though? Already, I feel like this could be a better method, like forgetting the drawing thing that we're going to get to, but like, is it might be a good methodology to be like, you don't know whether you're the actual juror or the alternate. Cause I can imagine, you know, jury duties, jury duty, maybe the alternates are like, eh, I don't care.

0:23:05 Thomas: You know, like I'm not paying attention as Much. Yeah, yeah.

0:23:05 Andrew: Maybe they zone out. That's fair. That's Fair. But now you are left with what they have to do in Wisconsin, which is at the end of the jury, you got too many jurors. So what they do is they draw lots to dismiss various jurors, it is true that in most courtrooms, it's the clerk that draws those Lots. Um, it has been Judge Schroeder's policy since 1984, uh, when he, uh, assumed the bench, uh, to have the defendant draw those lots. Is it weird? It's weird. Is it a thing You usually see, it's not a thing you normally see, but it's a conspiracy unless you believe in time travel before.

0:23:25 Thomas: Yeah.

0:23:35 Thomas: It is. Weird. Also. Like I just, yeah, I love the idea of, like, what is the conspiracy here? Like, because, because we all know that you can manipulate games of chance to also choose the ones that you somehow know are going to be sympathetic. It just, that's that would be an amazing scheme if that somehow made any difference in the in the verdict here. He's

0:24:01 Andrew: I looked into, uh, whether, right, I assumed, knowing that it was not going to be the case, that, uh, this was, was a one-off by, uh, Judge Schroeder, and again, it isn't He's always done this, uh, but assume that it was right, what possible prejudice would it be to put a random procedure in the hands of the defendant, yeah, unless you're going to argue that like 1985 NBA draft, and that, like, he's secretly, like, you know, folded the corners and throwed it up again and there's a, like not guilty in there, yeah.

0:24:19 Thomas: Yeah. I don't understand. I mean, it's weird. I don't like this method, but, but again, that also implies that the judge has omniscience over how the jury's going to pick. Like, it'S just so weird that we do this. Why are we doing this? Look. Okay. I'll continue on. Okay, well, Andrew, did you know, though, that this judge, who just loves Rittenhouse and in love with Rittenhouse, dismissed the gun possession charge for no reason.

0:24:38 Andrew: Right, yeah. Yeah.

0:24:56 Andrew: Uh, that's all true, except for the, for no reason part, uh, we talk about this on, uh, the the Lamb special a little bit, uh, but, but I'm prepared to kind of break down this law to you, um, this is, uh, Wisconsin statute 948.60, and it is a class A misdemeanor. OK. And so here's the first thing, that all of these outlets that are talking about dismissing the gun charge, even if you're right, if the jury came back and convicted only on this gun charge, you would be up in arms, and I would be right, like, this is a misdemeanor. He would get zero prison time and have to pay a fine of like $200 convicted on this.

0:25:30 Thomas: Yeah, it's, yeah, very insignificant. People are treating this like this is the trial. Like he just dismissed the gravamen, as you always say, of the charges. But it's insignificant. Like either way, what's going to matter is if he gets charged with one of these way more serious crimes, right? Convicted, rather.

0:25:38 Andrew: Yeah.

0:25:50 Andrew: And it omits that what the judge left in are five escalators, kickers they're called, on each of the respective counts, including the lesser included offenses. And so if Rittenhouse is convicted on any of the other counts, then that automatically triggers a five year escalation because he that crime was committed with a firearm. So the much more serious firearms offense was left in. The utterly unsubstantial one was dismissed. Why was it dismissed? Because the Wisconsin legislature is an idiot, it, okay? Again, I'm going to prove this to you by reading it to you. Subsection 2A says, "Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor," okay, and elsewhere in the statute, semi-automatic firearm, you have a firearm defined as a dangerous weapons. Okay, so people are saying open and shut case, but then then there is section subsection three C and it says this, okay. It, it says section two A, the one that I just read to you, applies to a person under 18 years of age who possesses or is armed with a rifle or shotgun.

0:25:58 Thomas: Yeah, because of the gun. Ugh.

0:27:07 Andrew: If the person is in violation of nine 41.28 or is not in in compliance with 29.304 and 29.593, okay? That's the end of the relevant provision. So in other words, the statute only applies if you have a gun and you also violate 941.28, or you're not in compliance with those two things, and you might notice they begin with a 29. That's because those are hunting restrictions, right? So we can sever those off. Those don't apply here. Nobody was was doing any hunting. Nobody claims they were doing any hunting. So the question is, was Rittenhouse under 18 years of age? Yes. Was he armed with a rifle or shotgun? Yes, he was armed with rifle. So then the question is, was he in violation of 941-28?

0:27:53 Andrew: 941.28 prevents sawed-off shotguns and snub nose rifles. Well, Rittenhaus did not have one of those, he had an AR-15, a long-barreled AR-50. Now, the argument the prosecution made was, "Well, they didn't really mean applies only to a person under 18," like come on, this, this is stupid and not what the legislature meant, um, because reading it this way, you now are guilty of this misdemeanor if you had a different kind of deadly weapon that was not a shotgun or a rifle, for, for example, ninja throwing stars and nunchucks and brass knuckles. And brass knuckles are specifically mentioned in the statute, right? And so the prosecutor was like, "There's no way on earth the Wisconsin legislature meant to say you're guilty of this crime if you have brass knuckles, but you're not if you're carrying an assault rifle.

0:28:43 Thomas: Yeah. Yeah.

0:28:50 Andrew: And the judge was like you're probably right on that. But the statute's written the way it is.

0:28:57 Thomas: Does it go into his calculation as a judge of like, well, and also this is the charge that makes virtually no difference here. So like, why am I not air on the side of whatever? Who cares?

0:29:06 Andrew: Maybe.

0:29:06 Thomas: Okay. So you think it might be more about just the strict language of the law.

0:29:08 Andrew: Yeah, I think it is, he did not want to be overruled by the appellate court, right? And I think he was looking at it going, if I let this in and they convict on this charge, this is a slam dunk for an appellant court to look at it and go, wait, you didn't meet the requirements. He didn't violate 941-28 or both of 29-304 and 29-593. And so they measured the rifle in the courtroom. He said, yeah, I'm going to toss it out. Now, the only weird thing in connection, and all of these have a weird component, right? Again, because this is an old cranky white dude, we've said it, right, was If this was exclusively a legal matter, this argument was briefed and argued pre-trial. Trial, and instead of granting it at the time, the judge held it sub curiae, right? That is, I'm just going to hold on to this and let you present evidence and testimony for both sides over the course of the trial and then ruled on it, at the conclusion of the trial. And he kind of said like, well, you know, maybe I should have ruled on it

0:29:10 Thomas: Okay.

0:29:20 Thomas: Gotcha.

0:29:44 Thomas: Yeah, gotten

0:30:11 Andrew: Earlier and you could have filed an interlocutory appeal or something, which there's no way they would have, right? Like they would've said then like, okay, fine. We lost on a misdemeanor charge.

0:30:11 Thomas: Rid of it. Yeah yeah.

0:30:21 Andrew: No biggie.

0:30:20 Thomas: Okay and that's another message of this. Not that like this is The Greatest Judge in the History of Earth or anything. It's just like, this is like an average judge, right? I mean, it's kind of run of the mill.

0:30:28 Andrew: Yeah. This is an average 75 year old judge. Yeah. All right. Hit me with the next one.

0:30:31 Thomas: Yeah, yeah, exactly. Oh, well, so there's something about a video. This one I struggled to understand. A video was sent with the bad compression. I don't, you're going to have to help me with this one. I, I don'T.

0:30:43 Andrew: Yeah, you're gonna, You'd have to help me with this too. So this is, there are two pending motions for mistrial. And, right, it is crucial to understand because the hashtag of whatever the compression program was, was trending yesterday when, like, Twitter warriors discovered a frame that seemed to show a program that can be used to compress video on the ADA's computer that flashed up for a minute during the trial. I need you to know in relation to the video is in relation to a motion made by defense counsel for a mistrial without prejudice, right? So that is you retry the entire case. Now, a mist trial would be a bad result compared to a conviction. But if you are on team conspiracy theory that, you know, Judge Schroeder is secretly like winking at the defense counsel and wants to get, you would love a mistrial without prejudice, right? It would be before a different judge and you wouldn't have any of these problems.

0:30:44 Thomas: Oh wait, does, is a mistrial always in front of a different judge?

0:31:45 Andrew: Is, As far as I know, it is always in front of a different judge, yeah.

0:31:48 Thomas: That makes sense. Unless, unless Wisconsin is weird again for some reason.

0:31:49 Andrew: Yeah. Who knows, that's, that's why I put in that little caveat, uh, But yeah, like you would love it, you'd be like,

0:31:54 Thomas: Yeah. Yeah, Yeah. So that would not be something that a judge trying to fix the trial would do, because then it would be sort of like that. That was a Perry Mason or what did we watch? Murder? She wrote, I don't know. There's something with Frazier's dad. Remember that one? What was that? Something with Frazer's dad where it was like he was, you know, essentially the murderer and he was the judge. Also, it'd be like that, you wouldn't want to not be the judge anymore. You don't want a mistrial in that case. You want to keep control, role of things, okay.

0:31:58 Andrew: Oh, Yeah, yeah. Yeah. Right. Exactly. Right, and if you're engineering a not guilty verdict, the last thing you would want is a mistrial do-over. Um, so keep that in mind, everything related to the video is, would there be a do-over? And, and now, you know, I, I do want to say a do-over would be a bad result compared to a jury that's about to convict. Right. Because conviction rates go way down on, on, second trials.

0:32:31 Thomas: Oh, Really? Gotcha.

0:32:46 Andrew: Yeah. I mean, a you know, you've sort of seen both sides have seen each other's full presentations. And so that strongly advantages the party that has the way lower burden of proof. Right? So, And witnesses die, evidence, you gets lost, right? Like, all sorts of stuff happens. So, all of that in mind, the argument is, we have described, the prosecution has a duty to turn over all of the evidence that they use at trial, plus all of the exculpatory evidence that they discover and don't use at trial, to the other side.

0:32:57 Thomas: Otherwise?

0:33:22 Andrew: Well, Yeah, but Brady applies in federal court, but it's, it's the same, it's been adopted Yeah, in state courts, that's exactly right. Good, good job remembering Brady violations.

0:33:22 Thomas: It'd be a Brady violation, same Okay. Here to learn.

0:33:32 Andrew: In in connection with that duty to turn over during discovery, all the documents you're going to use at trial, you have to turn over all of the relevant copies, right? So if I have a memorandum, uh, and on one, uh, somebody has scrawled some handwritten notes, and I also have an original copy, right, like something that was, uh, handed out at a board meeting, um, and again I I'm drawing on my experience here, so that's why I went to this. But I have to give you not just the pristine copy of the memorandum, but I've to give the one with the notes on it, too, if I'm going to use that at trial. And the argument that's being made is that the drone footage, which shows Rittenhouse pointing his gun at Rosenbaum long before running at him or threatening or anything like that.

0:34:20 Andrew: This is the one that was the subject of the pinch and zoom argument, That right? The video that was shown in open court and shown to the judge was X density, right, and that it was sent over to the defense in a compressed file format so it was blurrier and worse density. And the defense is saying, hey, if we knew that you had a higher res copy of this, it would have changed the way in which we put on our defense.

0:34:50 Thomas: Interesting.

0:34:51 Andrew: And I have to tell you that this is really going to come down to two questions. I cannot tell you that this motion for mistrial is without merit, if there is strong evidence that prosecution intentionally hid or intentionally compressed the file, that absolutely would be grounds for mistrial, And right? We should want that. I do not want, even in this case, like, I don't want the prosecutors, like giving a worse version of the evidence to the other side.

0:34:51 Thomas: Yeah.

0:35:20 Thomas: But, This sounds like it's got to be just a merely technology, you know, like, ah, we didn't understand the button, we put, you know, right? I mean, so what happens then?

0:35:27 Andrew: It feels like it to me. And in that case, if it is inadvertent, then the judge is going to say, to what degree were you prejudiced by the way in which this evidence was introduced? And here, the fact that they did not do the pinch and zoom, right? And we talked through all this. We talked through this on LAM as well. The argument about adding pixels and this and that, eventually the prosecution just sort of gave up and were like, all right, we're just going to show this super slow to the jury. The fact that they didn't do the pinch and zoom, I think, is going to inadvertently help them avoid the mistrial. Right. Like because the judge is going To say, I find that this was not material to your ability to cross examine on this evidence, you know, to claim as you did in open court. Right, that it was blurry, that It was hard to see that it Was ambiguous. You made all those arguments. You Made those arguments in front of the jury. Uh, and, having um, a more clear version for your prep,

0:35:28 Thomas: Yeah.

0:35:44 Thomas: Now,

0:36:30 Andrew: I don't think would have changed the argument that you made when you saw it, you know, when you saw the actual version of the evidence, in the courtroom.

0:36:37 Thomas: Just to to be clear, did, did the prosecution mess this up in terms of what the jury saw? No. Okay. So it's just what they gave to the defense.

0:36:43 Andrew: Nope. The question was, the question is pre-trial discovery, right?

0:36:47 Thomas: Okay, you

0:36:47 Andrew: Because you have to tell, you have to give the other side everything

0:36:49 Thomas: Gotta give them. Yep. Yep, okay. I just want to make sure.

0:36:51 Andrew: That That's relevant that they could use. So yeah, that's it. That's what this entire storm is about, um, and the secret screenshot showed a program, it's called Handbrake. I don't know anything, I've never used Handbraking. I don't, maybe you have, um, and the idea is that program can be used to compress video files, therefore they intentionally compress the video file, therefore they're lying, therefore mistrial, therefore, you know, Kyle Rittenhouse goes straight to hosting a show on Fox.

0:37:04 Thomas: No, I don't know what that is, actually, which

0:37:23 Andrew: What

0:37:22 Thomas: Will happen if he does, if he gets cleared. Yeah.

0:37:27 Andrew: Will say here is seems like a long chain of inferences, but if in fact that happened, if the prosecutor tampered with the evidence to make it worse, then I suspect you will get a mistrial without prejudice on the basis of inadequate disclosure. And it will be frustrating. We'll have to go try this all over again. But again, if you thought this trial was in the bag for Rittenhouse, you should be applauding that result, not fearing it. Think is probably not the case, but who knows?

0:37:43 Thomas: Hmm.

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To try Zip Recruiter for free, that's ZipRecruiter dot com slash OA, ZIP Recruitor, the smartest way to hire. And And this is also, I think, something you covered on Law'd Awful Movies, but just to emphasize it here as well, the jury instructions an instance where the judge ruled strongly kind of in favor of the prosecution, got no coverage, right?

0:39:35 Andrew: It got zero coverage in particular. The very first thing the jury did when they were out was request pages one to six of the jury instructions. By the way, these are 36 pages long. So if you're wondering, boy, is it weird that it's gone on for three days of deliberations? No, there's 36 pages of stuff that you have to work through in a conscientious way. There are five separate counts. Those counts have lesser included offenses. None of this is surprising. It would have been surprising if we had gotten a verdict back on day one or day two. That would have indicated that jury was kind of unanimous coming out of the box in disbelief of Kyle Rittenhouse in complete belief of Kyle. It would have indicated a near unanimity of beliefs at the end of the trial to be done on day one or day two.

0:40:27 Andrew: It doesn't surprise me that there's that not. I mean, you know, again, you and I talk about this when we evaluate his testimony on land. Like Kyle Rittenhouse is a very, very good witness. You have to go through and, you know, kind of put everything together the way the prosecution, I think, did very effectively in their in their closing arguments know, to make the case. And then the jury kind of goes through and applies what what they decide factually to the legal instructions that were given. And they asked cop for first for for copies of pages one to six that contains the provocation instruction. The provocation construction says if Kyle Rittenhouse provoked the violence that occurred against him, he cannot claim self-defense unless he is exhausted every other means. And the evidence just doesn't support that.

0:41:13 Thomas: Yeah.

0:41:13 Andrew: And so that and that is with respect to the top line, Class B first degree reckless homicide against Rosenbaum. And so if they've resolved that and the jury is arguing over lesser offenses against the Daily Caller guy or whatever, is to suggest that felony that carries a 60-year prison term, they may have already come to an agreement on that on the basis of this instruction, instruction, right?

0:41:43 Andrew: And so yeah, if you have your thumb on this and look, like, if the judge has excluded it, I would have said, yeah, I think that's a bad call, uh, it would have been on the side of, you feels like he's got his thumb on the scale for the defense a little bit here. Um, this is how you would do it, you would, you would have jury instructions that, uh, lead the jury to a particular outcome, uh, and they just aren't there. And we're going to include that in the show notes, a couple things to sort of wrap, wrap this all up. Uh, number one, there is still a pending motion, uh, for, uh, a mistrial with prejudice, which would prevent them from retrying Rittenhouse at all. That is based on the argument that, uh, prosecutorial misconduct of inquiring into post-arrest silence and into the prior event that was excluded by the judge.

0:41:42 Thomas: Wow. All

0:42:31 Andrew: There's no way that the judge is going to grant that motion. It's still pending. It's not going to happen. Number two, you may have heard that the judge barred MSNBC from being in the courtroom and following the trial that that just broke today. Yeah, that's because a guy, uh, broke through the court and was tailing, uh, the van that was shuttling the jurors back to the hotel, uh, and identified himself as an MSNBC reporter, uh, and NBC News said, um, well, you know, there was a freelance, so, yeah, unless he had no connection to MSNBC, which doesn't seem to be the case, uh, this is is hundred percent appropriate. Uh, and the judge's reaction, uh, was, was perfectly adequate. I don't know if that's being spun anywhere else, but, uh.

0:42:44 Thomas: Yeah. Yeah. Oh.

0:43:14 Thomas: It is Yeah, I

0:43:16 Andrew: That would be crazy. You cannot have, uh, you know, rogue, uh journalists tracking. I mean, just imagine if it were the other side, right?

0:43:24 Thomas: Mean Why can't he just ban that person?

0:43:27 Andrew: You could have, but I I, think the prophylactic, like I would, if I were the judge, you

0:43:30 Thomas: I like you say I mean, if, if it was Fox News person and they banned Fox News, we'd be like, yeah, that makes sense. Oan

0:43:36 Andrew: Have quite a 100%. We would be like, yeah, you can't have a policy that encourages your freelancers to hunt down the jury. Absolutely not.

0:43:39 Thomas: Yeah. Yeah. The The other thing I see is the picture of of Rittenhouse. I don't even know what the claim is here. The picture where Rittenhouse is like in the same frame as the judge. Have you seen that one? What is that? I

0:43:57 Andrew: Yeah, I've seen that. That is the most dishonest of them all. And that's why you've only seen it in a couple of like the truly most deplorable, you know, outlets.

0:44:07 Thomas: don'T know, man. I'm seeing these

0:44:08 Andrew: Outlets.

0:44:08 Thomas: Everywhere.

0:44:08 Andrew: All right. Well, anybody sharing that is either doing so uncritically and the first generation was completely false. So remember that in determining whether to give the provocation instruction, because the judge did not let them pinch and zoom on the drone video, they got in a hundred inch TV, you know, 4K Ultra high def TV, they played the drone footage of it and and played it frame by frame uh and multiple times and the judge had to go like Mr. Magoo, like sit in, you know, three inches away from the screen while the prosecution was pointing them to that screen. Then Rittenhouse is allowed to be in the courtroom, handcuffed or anything.

0:44:54 Andrew: He is 100% entitled as the defendant to see what you're showing the judge in open court. So Rittenhouse is standing, and it is like 30 feet behind the judge, and leaning over and watching what the prosecution is showing the judge on video. And this is some kind of, oh yeah, No, he's way behind, because I have seen the live footage from the other direction. This photo was shot from the gallery at a weird angle, and you can tell based on how blurry, uh, and I can't remember if it's either the judge is blurry and written house is in focus, or written house is blurry in the judges in focus, um, that's because there's a tremendous, because the angle, there's tremendous amount of foreshortening, um, and they're both watching the TV, which this angle has cropped around, and the picture is being disseminated as like, "Here he is," you know, posing with the judge or whatever, like,

0:45:13 Thomas: It's not 30 feet. What? What are you talking?

0:45:50 Thomas: Yeah.

0:45:50 Andrew: I've seen a couple of different miscaptions on it, that is not, I watched the testimony live, right, I'm wrong, in the distance, written house was

0:45:58 Thomas: Yeah. I don't think it's 30 feet, but it's definitely not 10, 15. Yeah, this

0:46:00 Andrew: It was not five, yeah, it was over, it was well over 10, there's chairs in the way, like, it is just, he's not that close.

0:46:08 Thomas: Is just so exhausting.

0:46:10 Andrew: It's just wrong.

0:46:11 Thomas: It's just just exhausting. Know, like I, I, man, I'm not, and that doesn't mean I'm saying like the left and right or the side. I'm just like, why do we have to do this? Why does it have to be so much misinformation about this coming from the left? It's just like get get a grit, take two, listen to our show, you know, take 2 seconds to get the information. I, yeah.

0:46:11 Andrew: Yeah. No.

0:46:28 Andrew: Yeah, it is. You know, if you and I have identified conspiracy theory and, you know, QAnon and bad information as an implacable source of tensions and problems and and and what's going to make it impossible to solve this political situation, we have to call it out when our side is doing it and our side's coverage uh of this trial has been as as bad as anything uh that I've seen. And sadly, like that energy has driven mainstream coverage on MSNBC. A couple of folks have gotten it right, but not too many.

0:47:08 Thomas: And look, there's obviously differences, you there's differences between left and not at all trying trying to make the comparison. I mean, these, these conspiracy theories essentially come from a correct view that people have that the justice system is biased toward white, you know, people should be like, absolutely. So like, you Know, I get it. Yeah, I understand where it's coming from. It's it's just been exhausting to see how much it is and how sure people are of these things that are just totally wrong on, you Now, on my side, on the side that I would, I would want to to be more attached to the facts. Uh, it's just, that's all man. It's just it's exhausting. That's all. I'm not saying it's, you know, I'm not voting for Trump because of it or some crap. It hasn't, you know, it just, and that's the response I get when I post about it. It it's like, no, I am not saying that, you know, It's, it is definitely different. It is definitely not the same as QAnon. I am not saying that. It is just exhausting. That's all.

0:47:23 Andrew: Yeah. Yeah. Yeah.

0:47:58 Andrew: Well said.

0:47:59 Thomas: So Andrew, we've covered again, two hours of lot awful murders. We've done a nice meaty segment here about some of these myths. I just want to give a couple things, top line things, takeaways for people, you based on your expertise here. This isn't the best judge in the world or something, not saying he's a perfect guy or whatever, but But if he were trying to simply throw the case for Rittenhouse, he had ample ways to do that. Like he could have already granted a mistrial with prejudice over the prosecution, know, what you they did. Could have done that, A. He also wouldn't have allowed the jury instructions to be what they were, as you were pointed out, and that was a huge victory for the prosecution. Right. Right? And also, once again, I think we have to remember that the jury does decide the verdict here.

0:48:47 Thomas: Now, of course, the judge will do the sentencing part, but like people are talking as though the judge is the one who decides the verdict, it seems like with all this. And, you know, there is a jury here. So, it could still be the case that the judge decides will go the wrong way or something. But in your opinion, influenced by what the judge has done here in the trial.

0:49:08 Andrew: I don't think so. So I want to, I think that's an excellent summary that you've just given. And I want to break down a couple components of that just to make sure that we've given them full coverage in this episode. I need, right, to say it this way because we only say it this concretely on the uh Lamb Special, and uh, 90% of the audience is not going to get a chance to see that yet. Um, prosecution's initial line of questioning, right, there are a couple preliminary questions, but pretty much out of the box of Kyle Rittenhouse on the stand strongly, strongly suggested to me, to any objective viewer, and certainly to the judge, that they were inquiring into why Kyle Rittenhouse stayed silent after his arrest.

0:49:57 Andrew: It is called post-arrest silence. And that is one of your core constitutional rights under the Fifth Amendment. The experienced prosecutor here, not just a huge no-no, the very first thing you are taught as a prosecute, right? Like, you know, don't take off your pants in the courtroom.

0:50:04 Thomas: So a huge no-no, a huge, no, no. Okay. Second thing. Yeah.

0:50:16 Andrew: Don't inquire into why haven't you told anybody about this before now, right? And literally, that's one of the questions, later, right? There's right, a colloquy of the sight of the jury in which the prosecutor says that he was trying to get at a waiver by the media, that sort of thing.

Um, makes a distinction and the basically says, like, all right, like if you could show, you know, a media waiver, then we would be talking about something else, but this sounded an awful lot like, you know, asking a question about post-arrest silence, and you know better than that.

And then after that colloquy, we go back in, right, and virtually the next line of questioning, questioning is about the prior August incident in which a guy is standing on the roof of a car or hood of a car or whatever, and Rittenhouse says, "Boy, if I had my gun, I would shoot you." Now, right? We may argue about whether that should or should not be admissible, but the judge ruled that inadmissible. And again, in a defensible ruling, right, and I'm not suggesting the defense got 100% or that the the prosecution got 100% of the rulings in their favor, they would have liked to have gotten this in and they didn't. I can see exactly why, because the judge kept it out on 408 basis, which is to say, I'm sorry, on 403 basis, this probably seems way more prejudicial than it is probative, I don't know.

0:51:41 Andrew: The judge said, strongly inclined against allowing you to bring this up at trial. That was pretty much word for word what he said. And again, you see this judge, I wish it were otherwise, leaving kind of half-finished rulings all over the place, right? The same thing with the defense's motion to dismiss the gun charge, right? He should have have just said I'm granting your motion before the trial but instead he's like well I'm strongly inclined to grant your motion and here right the prosecution said we want to bring in this prior evidence and he said I'm strongly inclined against that um and then the prosecution starts asking questions about that to the jury in front of the jury and there's an immediate objection, we go back off the record again, and here, uh, and I believe, right, this

0:51:40 Thomas: But the point is that was the ruling.

0:52:29 Andrew: IS YOU MAY HAVE SEEN SOME OF THE YOU know, like judge outburst. Um, this is a correct outburst at the prosecutor to say where he says, well, your honor, I believe, you know. You left the door open and the judge says, yeah, for me. Uh, but not for you. The correct way to get this evidence in, uh, is to, uh. Dismiss the jury out, out to the library and ask permission. And you didn't. And to do that on the heels of of having potentially committed a major ethics violation, left the judge that day going, you seem like a scumbag, prosecutor, and, quote, I don't believe that you acted in good faith in asking that question about the August event.

0:52:35 Thomas: Yeah, yeah.

0:52:47 Thomas: You got to ask permission, right? Yeah.

0:53:08 Andrew: That is severe prosecutorial misconduct.

0:53:10 Thomas: It was not a good court thingy for the prosecution for the, for that guy.

0:53:12 Andrew: No. And it led to some of the things that you've said. It led to that request for dismissal, for a mistrial with prejudice, which the judge said, well, I'm going to consider that because he was super angry. Now, I think now that tensions have cooled and you've seen the rest of the trial, I think the judge is not going to call that intentional prosecutorial misconduct.

0:53:24 Thomas: Yeah.

0:53:33 Thomas: That's a major move that I imagine a judge would be really hesitant to do, right? Because that's essentially the judge deciding he gets to go free. Now, if that happens, I think we'll have to eat some words, right.

0:53:42 Andrew: Correct. Correct. And again, yeah, If that happens, we will absolutely eat those words. Uh, and, and again, you know, that would be subject to, to appeal, uh, but for abusive discretion. You could appeal it, but, but again, yeah, you

0:53:56 Thomas: Oh, really? Oh, my God. I had a bunch of questions I didn't get to ask about that because when the prosecutor was like, I'm creating a record, I was like wait, that's weird because you don't get to appeal to like convict someone, you know, right? Because like once the state loses, then the person goes free, right, but I guess,

0:54:13 Andrew: Can't You can't appeal on the merits, but you can appeal on legal rulings, so absolutely the state would appeal, uh, and then you would get the mistrial without prejudice, um, which is what I think an appellate court would wind up doing, which you'd still have to do it again, um, but yeah, um, if you wanted, if the judge had his thumb on the scale, he 100% it would not have been weird, it would not have, you would not have needed coded language to have granted a mistrial that day with prejudice and have said, you started to ask both sets of questions in front of the jury, that's evidence they should not have and from which no curative instruction will make them forget.

And the more I'm likely to tell them about it, the more likely they are to remember, those right? Are all the kinds of reasons in which you grant a mistrial. And you say, so what you need to do is you got to start this over, got to get a new jury in here that's not tainted, and you got a not cross the line, prosecutor. I'm making the strongest case for it. I do not think that will happen. But I'm telling you that that was a plausible outcome come as a result of that Wednesday,

0:54:24 Thomas: Okay, and you'd still have to do it again, but yeah, yeah,

0:55:19 Andrew: That day, seven of testimony, and the fact that he did not take that result should be all you need to know to dismiss the conspiracy theories, um, oh

0:55:26 Thomas: One more thing that just occurred to me where there's a lot of ado made Over much ado, you might say, a whole slew of ado made about calling the victims rioters and looters. Uh, Andrew, were, was the defense ever allowed to call the victims rioters and looters? Well,

0:55:44 Andrew: So The only reference, and again, uh, I watched virtually all of the closing arguments, the only reference that I, I can recall, to rioters and looters was actually made by the prosecution in its closing argument when it said, now these folks, the rioters or looters, or however the defense wants to refer to them, did X, Y, Z. I do not believe there was such a reference made by the defense in their closing argument, uh, and I, I think the reason well

0:56:20 Thomas: And they wouldn't have been allowed, because wasn't it another instance where the judge set, left the door open, but for him, not for you, you know, like, what wouldn't, if the defense wanted to, uh, use that language, wouldn't they have had to do the very thing you said where they'd have to ask permission first? Oh, once again, the shallow understanding of what's going on here is the judge was like, I don't want you to call them victims because, because, you know, I love Kyle Rittenhouse like a son. But I do want you to call them rioters and looters. So have at it. But what really happened was not that.

0:56:51 Thomas: What really happened is like, okay, well, if you prove that any of them was engaged in rioting or looting, then I'll revisit this. Right? It wasn't even like a yes. It was like we can revisit this later. Correct? And they didn't revisit it later.

0:56:51 Andrew: Yeah, Yeah.

0:57:03 Andrew: And and in fact and and in the questioning, and where you would care about it is really not in closing arguments, you would cares about it in cross-examination of the prosecution's witnesses, um, and that didn't happen, it, it never happened, uh, that was kept out, uh, and and yeah, so

0:57:13 Thomas: Yeah. Boy. This whole thing has made me lose a little bit of faith. On our side in covering major stories. I know I said it already, but that's a lot. It's a lot that people have gotten wrong here, and I understand it, but make me optimistic at all. All right. So that's that. That's all the myths that we could, you had time to cover.

0:57:44 Andrew: The myths that's fit to print, yeah, all

0:57:46 Thomas: That's funny. I was going to say the same thing. I wonder why. Why. So thanks for the breakdown, Andrew. And again, share this out for anybody sharing that information, that bad information, because we just need to get more good information out there, more good legal coverage, more people listening to Andrew, an expert who actually gets things right and admits when he gets things wrong. I think that's very important.

0:57:48 Andrew: Right.

0:58:10 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:58:16 Thomas: And now it's time for T3BE, um, you know, God, I'm really on a bad streak, I could use a victory here, but that's on me, I gotta do better.

0:58:25 Andrew: I'm, I'm feeling good about this one, though. So, Thomas, one winter, a man purchases swimming goggles from a nearby dive shop. The man does not use the swimming goggles until a couple months later, when the weather gets warmer. Upon using the swimming googles, he discovers that there's a defect in the lens which causes water to flood the goggles, rendering them effectively useless. The next day, the man brings the goggles back to the dive shop and demands man's money back.

0:58:38 Thomas: Okay interesting this is The same question as the snowmobile, okay, that we'll see we'll say, if there's any differences, okay.

0:58:54 Andrew: It is very, very similar. So, all right. What is the man's best argument to receive his money back? A, the swimming goggles are defective, so he is rejecting them. B, the swimming googles are defectives, so his acceptance of them. C, the dive shop breached the implied warranty of fitness for a particular purpose. Or D, the harm suffered by the man was a foreseeable result of the dive shop's negligence.

0:59:07 Thomas: Oh, gosh, okay, wow, I don't know if we've ever gotten a question that was so like closely related to one before, and I can't wait to still get this wrong, this is gonna be fantastic, this is, I'm really looking forward to this.

0:59:37 Thomas: So, okay, the snowmobile case, to the best of my recollection, this, I mean, it's been at least two or three weeks or whatever, it's a lot of, a lot of stuff in the old noggin since then, but I believe there was an exception for like the first possible time, like if you couldn't notice that that something was broken reasonably until that time, then you were still allowed to revoke your acceptance. And so I'm strongly leaning toward B. Let me just make sure there's no differences here, because he purchases them in the winter and the man doesn't use them until the weather warms up. And that's when you would actually swim. I mean, I guess you could make the argument that he could have swam indoors somewhere. Maybe, I don't know, maybe that will, will be how I get this wrong. I don't know. But once he finally uses them, he discovers there's a defect.

0:59:33 Andrew: I

1:00:22 Thomas: Okay. Then the next day brings him back. That seems like a reasonable amount of time. I don't Know. I guess you could bring him back that minute, but like the next Day brings him back, demands his money back. Okay, we're going for best argument. Struck. Look, so A, the swimming goggles are defective, so he's rejecting them versus B, the swimming goggles are defective. So he's revoking his acceptance. The language I remember from that question was revoking acceptance because you have, you have accepted them. So it's not like they were shipped to you. And before even looking at, you know, before even opening it, you're like, nope, I don't accept this. And the fact that A and B are so similar, I mean, this could be me reading into it too much, but like, it does seem like it's trying to trick me on that language.

1:01:05 Thomas: Like That suggests to me that like B is, you know, who knows? But all that is kind of going along to say that I think it's B. Let's see if C and D have any chance. I'm definitely B over A. C, the dive shop breached the implied warranty of fitness for a particular purpose. Now, is that still it? Like, is dat the problem here? That wasn't the answer with the snowmobile. I'm trying to remember why. Let's go. I'll skip that one for now and go to D. The harm suffered by the man was a foreseeable result of the dive shop's negligence. That sounds terrible. So, I'm eliminating A and D easily. I think it's B, but I'm worried that somehow it's C. I'm trying to remember why that would be. So dive shop breached the implied warranty of fitness for a particular purpose. Okay. So I think the clarification there was with the snowmobile, the snow mobile still worked.

1:01:55 Thomas: It just couldn't carry the heavy weight. And so maybe that's why it's a little different here. Whereas like. And also there was the case in the snow mobile. It wasn't implied. Like it was very direct. It was like, this is good for heavy stuff, essentially. God, I'm between B and C. I'm really worried about this. This is so bad because like either way, it's going to be so embarrassing. Like if I go, if I zag and go for C when it was actually B, then it's embarrassing. If I go for B, but it's actually C, that's embarrassing I'm actually leaning towards C. the other component of this is that it's, what's the man's best argument to receive his money back. And like B isn't really an argument. It's just like, I guess it would be, they're defective, so I'm revoking acceptance. And then C is, you breach the implied warranty of fitness for a particular purpose. Or is it like they're just defective? I'm going to go with my initial instinct, B. I could be totally off. Think we're retiring, I think we're going to retire the coin, I think the coin, uh,

1:02:55 Andrew: Yeah, it's served, and this is in no way giving away the answer, it's fitness for a particular purpose, uh, in that you crushed the coin, right? You were thinking Would I do better if I started randomly second guessing myself? And And the answer to that is, no, you wouldn't do any better. So let's retire the coin, hold

1:03:04 Thomas: That's true, okay, that's fair, that's fair, we're retiring the coin, this is just straight up T3BE now now, that, that doesn't mean that you can't show me up by submitting the correct answer on Twitter and having it bc, and me be embarrassed, them, how they can do that, yeah, okay,

1:03:14 Andrew: Your head up high, and your coin down low.

1:03:25 Andrew: You know how to play along. Just share out this episode on social media. Include the hashtag T3BE. Include your guess, your reasons. Therefore, we will select a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:03:36 Clip: And thank you, Let's go!

1:03:38 Thomas: Now it's time to, I guess, continue our thanking of the new patrons, Andrew, because wow, lots of them it is a good problem to have. Why don't you start us off, once again, that's

1:03:43 Andrew: This is a good problem to have. We really appreciate it. Yeah, Thank you to James W. Wood, to Mark, to MurderNote, to Eleine Sun, to Pro Hac Vince Can Practice Everywhere, love that, Craig Berry, Robert Tingstrom, Brett, uh, Mx Skullduggery, Res Ipsa Loquitur... I Barely Know Her, that's because I'm 12, that will never not be funny Eric Nunley, Dexter, Manafort Destiny, that's a great one, uh, Suzy Sandoval, Nicholas Fernandez, Jared Parker, Stephen G Dale, Brad Brown, Ryan Hitchler, Alexa Lopez, Suzy Erin, Eva Callahan, Erin ODonnell-Worley, uh, Yehuda Fridman, Nick Zadrozny, Sunny, and TolkienGeek, thank you, you all so much for supporting the show.

1:04:07 Thomas: Awesome that's great, I am almost done with Return of the King on Audible, read by, by none other than Andy Serkis. It is I'm enjoying it. I'm almost done. I'm sad that I'm always done. All right, but I will Thank Schuyler Olson, Chris Ellis, Benjamin Kimberlin, NightOwl1090, Here for them sweet perks. Nice. Tim, Kyle Hatfield, DENNIS T RAINS, Christa, Toonoscopy, okay. Meaghan Mitchell, Erika M, Jackson Leverone, Greg Shelley, Matthew Haglund, Autumn Shaw, Robin Sage, Rochelle Williams, CarbShark. Yeah, that's what I feel like I am. Joseph Poirier, Ashley Ackley, Susan Endres, Chris Patton, Molly Long, Joe Mirabelle, Kevin Brantch, and Tyler Gibson.

1:04:38 Andrew: Ooh.

1:05:26 Thomas: Gibson. Thank you. We are halfway through the new patrons, to be continued next episode. And that's our show. Thanks again, Andrew. Again, share this for the people who are just spreading misinformation. Let's try to do, but we always want to do better the other side. And this is an instance where we have a lot of room for improvement in terms of the left and the coverage of the Rittenhouse trial. So please share this around. Thank you so much for listening. We'll see you next time.

1:05:49 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.

1:06:22 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.