OA546: Three Racist Murderers Found Guilty of Murdering Ahmaud Arbery

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. Gobble, gobble, gobbled. It's episode 546, Thanksgiving edition. I say gobble gobble but yeah, what am I eating that's gobbling? I guess nothing. Oh well. But I'm sure you'll make up for the gobble-gobble gobble. How are you doing?

0:01:31 Andrew: Yep. I'm having a goose, so it is, uh, it is not going to gobble gobble either.

0:01:38 Thomas: Oh, interesting.

0:01:40 Andrew: Yeah, I don't know. The noise a goose makes is like honking, right?

0:01:41 Thomas: Quack, quack, that doesn't work. Work. Yeah, that's

0:01:46 Andrew: So honk, honk.

0:01:47 Thomas: True. Honk, honk.

0:01:47 Andrew: There you go. All right. Honk, honk honk everybody it's a it's

0:01:49 Thomas: That suggests something else, though. It doesn't really sound very gobbly. Stick to a metaphorical gobble, gobble for all.

0:01:53 Andrew: A traditional American Thanksgiving there you

0:01:58 Thomas: Okay. We have a philosophy on this show that every other podcast in the world you'll download it and they'll be like, Hey, we didn't do a podcast. Here's the best of, or we quit or what, you get nothing you get. I know we say it every year, Andrew, but I firmly believe this. This is like one of those, like one of the things as a podcast listener, myself, like an avid podcast listener. The time you need a podcast most is when you have to like, you're making a long drive to your conservative, you BS family that You got to talk. That's the time when you need to hear your liberal or news or whatever podcast the most is when you're traveling to be around your aunts, your uncles frank, and your aunty kathy's, that's when you need

0:01:59 Andrew: Go yeah or nothing yeah yeah right yeah

0:02:37 Thomas: A podcast, so we're putting one out for you. I hope that maybe you're enjoying this while you're uh prepping some food or something, or you know, getting cleaned up, or traveling, whatever it might be. Oh.

0:02:47 Andrew: Yeah. And if you are traveling, not not I, to plug my other show, but we spent a couple minutes at the beginning of cleanup on all 45 this week talking about the uptick in 30 states in covid cases, 90,000 new cases per day. Uh, and please, you know, just uh take appropriate precautions. It's thursday, so it's probably too late to say like you're not gonna go visit uncle frank if uh you know, he's uh, well, I had covid once so I don't see why I should get vaccinated like, you know, it, everybody uh if you were five or older, the CDC has approved the Pfizer vaccine for kids five to 12. I mean, it's just there's... there's no there's no excuse.

0:03:10 Thomas: Yeah. I know first off I hope there is a five-year-old listening who who actually, like, and it's on their own too. Like they have their own phone and they download our show. They're like, "Hmm, let's see. Check out Opening Argument." I

0:03:37 Andrew: I would have listened to this show when I was five.

0:03:39 Thomas: Bet.

0:03:40 Andrew: I

0:03:40 Thomas: Yeah, but secondly, oh, that's a, that'S good reminder. I just want to mention that, uh, on Monday I got my booster and I got my, uh flu shot. It was a little late. I should have gotten the flu shot earlier. I Uh, tend to dilly dally and forget about it, but like, please get your flu shot, out, everybody. It's not the greatest sales job, but the flu vaccine is the worst vaccine we have as humans.

0:04:03 Thomas: And it's still incredibly important and saves lives. And if you don't do it when you could otherwise do it, and I apply this to myself too for the past month, because I should have gotten it a month ago. I am needlessly putting people's lives at risk, people who are susceptible to perhaps dying of the flu, which is not a small number of people. So please get vaccinated, get your booster if you're eligible, get your flu vaccine. Let's save some lives.

0:04:03 Andrew: Know it really is.

0:04:29 Andrew: Yeah, absolutely.

0:04:30 Thomas: And quick note before we get to the show, it is that time, the end of the month, once again, already somehow when we are due for our live Q&A. That's on YouTube. Everybody can come watch our Q&A, interact with us in the chat, interact with, you know, usually Teresa Gomez in the cat as well, which is even better than interacting with us. And also patrons, it's another patron perk. Patrons over at patreon.com/law get to ask the questions.

Andrew will be posting that question thread as we speak. So you should see it up there on Patreon where you get to pose all the questions you want. And a reminder too, if you see a good question, make sure to hit the heart on there. So that's how I judge which questions the most people want to hear. So, that's just as important as posing questions is, you know, making your vote heard in terms of which questions you would like to hear Andrew answer. So that helps as well. So hop onto that Q&A thread. Hopefully, you got the notification email already. And again, oh, I didn't even tell you when that's going to be. That's going be Tuesday, November 30th at 4 p.m. Pacific, 7 p.m. Eastern Time. Hopefully that's good time for as many people as possible with

0:05:35 Thomas: The time zones. Hard to say. We try to find that sweet spot. So once again, Tuesday the 30th, 4 p.m. Pacific, 6 p.m. Eastern. Join us. Either way, if you're a patron, you're not a patron. You can all come join us on YouTube. And of course, patrons will also get that good high quality audio afterward. All right. On to the show. Go.

0:05:35 Andrew: It's thank you

0:06:03 Thomas: The system doesn't work. Works, doesn't work, works, works.

0:06:06 Andrew: The system question mark.

0:06:08 Thomas: Doesn't yeah. I mean, and that's kind of, honestly, that's the message of our show. I Think that some people heard our debunking of these myths around the Rittenhouse judge and all that, and I think they they, I think certain people took that as like a full endorsement of not only the judge, but the system and it working and everything. And I just, I hope that's not what people come away with just by the fact that Andrew does a great job of explaining how the law should work. You know, it doesn't mean that Andrew's over there believing it always is applied perfectly and works just right. So I think this is a good chance to talk about some of the recent ruling. So you wanted to do some updates on the Rittenhouse case for one, right? Right.

0:06:13 Andrew: Yeah.

0:06:48 Andrew: Yeah. Now, look, we have spent a lot of time on on Rittenhouse. I want to plug our buddy Legal Eagle. Who just released a 20 minute video that focuses specifically on self-defense and the jury instructions and how they interrelate. It's completely consonant with what we've said. And he went down a couple of rapid trails that I passed over and listening to him do it. I'm I wish I had done that. So his stuff is always really good. But but I'm going to give you a link in the show notes. This is this is an excellent episode. If you were looking for more of what we did in our bonus episode, right, which is sort of trying to figure out and understand in a system and put an asterisk next to system.

0:07:33 Andrew: How how right. Could the jury kind of come to the conclusions that they did? This is, I think, a really, really good look and again, a good look from somebody who's coming at it from from our side and our and our perspective. So I strongly recommend that. Second thing I want to clarify, we were talking about some of the lesser included offenses. And it I am now persuaded from reading the jury instructions that those lesser included defenses, the reckless endangerment, are also subject to the same kind of overarching self-defense, um, which I think explains kind of a lack of attention paid to those by either side really during during the trial um that was not clear to me from an initial reading uh of both the statute and and the instructions to the jury.

0:08:10 Thomas: Yeah.

0:08:20 Thomas: Well, they're very confusing jury instructions, you know, which could be some part of this. I don't know. It's it's I read those same things several times to try to figure this out because I posted about those lesser included. And some people were countering with, oh, it's all, you Know, essentially obviated, if that's the right word, by the by the self-defense.

0:08:22 Andrew: Yes.

0:08:37 Thomas: And I looked I was like, I, I read through these things. I like I'm trying to figure out and like the place where it says that is in what feels to me. I'm not the lawyer, but it feels like the wrong section, like that place is in the what is reasonable section, which makes no sense. Because like in the section above it, it said, well, well if Rittenhouse recklessly endangered this person's life, then like, you know you can consider that over and above the self-defense. And then like later it's like, oh no, just kidding. You can't. That might be part of it. Tell you what, let me me ask you as a basics question, who actually writes those and decides on the precise language and ordering of, of all those jury instructions?

0:08:37 Andrew: I I can tell you about what happens in Maryland, and I suspect it is the same in Wisconsin, although I've been proven wrong on a couple of instances. But essentially, you have a book of pattern jury instructions, right? They are numbered. They have headers, and those are put together by a bipartisan committee of trial lawyers that that convene from time to time. In Maryland. They are appointed by our state Supreme Court, by the Court of Appeals of Maryland. And it's the same kind of committees that review, you know, the state's laws of, you know, rules of civil procedure and that sort of thing. Right. So and and so what these lawyers do is come up with, OK, you can ask to have X instruction right so for example I said a provocation instruction right that I imagine

0:09:19 Thomas: Hmm. Who knows?

0:10:10 Andrew: And I would be shocked if it were otherwise you would then pull out the pattern jury instruction on provocation now could you argue you can argue for the judge to instruct the jury however you want right? But something that is considered in the pattern jury insert. Like you have to have a really good reason in Maryland, for example, to deviate from those pattern jury instructions. I have argued for that once and lost.

But, you know, to say, hey, the pattern jury institutions and you have to do more than than what I showed, which was, I think I showed that there was an ambiguity, uh, but the court's like, yeah, look, but like, you know, essentially between the lines, right, what the judge was saying to me was, if I use the pattern jury instructions, I'm definitely at no risk of being overturned on appeal, um, if I deviate from that, I'm gonna have to justify that and my threshold, that being the judge, you know, what is, you have to show that it's inappropriate in this particular case, right, that there's something about the language in those instructions which would be uniquely disabling, uh, or misleading in this particularly case, right, and you, an example of that might be if, um, if there's words that have multiple meanings that like occurred during.

So for example, if the pattern jury instruction has restraint in it, now that's going to mean under the law holding someone back. But if there was an evidentiary question on did they use zip ties on victim, you might say, well, we don't want the word restraint in there because the word constraint was used to describe the zip ties.

0:10:22 Thomas: Huh? Right.

0:11:53 Andrew: And there was testimony back and forth over that. And we don't want the jury confusedly to say, oh, well, if we think they didn't use the zip tie, then this section doesn't apply. Does that make sense?

0:12:05 Thomas: Yeah. Yeah, I hear you. So it's a little tinkering around the edges, but so is it the case maybe that because these pattern instructions are what they're probably by charge, by you element.

0:12:15 Andrew: By elements, yeah, of crimes.

0:12:17 Thomas: Yeah. So is it the case that maybe they combine weirdly depending on the nature of whatever trial you're talking about? So if a defendant did X, Y, and Z thing, maybe that combines a little weirdly rather than if they only did X thing like by itself, it might make more sense.

0:12:17 Andrew: Yeah, that That is, I think, exactly right. And so, again, it's one of the things that I think Legal Eagle does really well in his video is sort of unpack the order in of operations. Right. In terms of figuring this out. So I recommend that. Go go check that video out. Yeah. Right. Yeah. My dear Aunt Sally.

0:12:48 Thomas: Yeah, parentheses, exponents, yeah. Did you know that only super super geniuses can answer questions involving order of operation math questions. Only Einstein could. Einstein started answering the order of operations questions. That's why he's so famously a genius. Okay. Okay, So learned a lot more there on the, on the jury instructions and of course, legal, legal plug. Now let's get to the system, I guess, working. Because as we record hot off the presses, the murders who murdered Ahmaud Arbery were found guilty of murder.

0:12:56 Andrew: Right, right. Yeah.

0:13:26 Andrew: And there are a lot of questions that I suspect people may have with respect to this verdict. But right to say that this sort of comes as the system works, question mark, Right? Literally, this verdict came out as we were recording this episode. But this is a jury of 11 white people with one black juror on it that all three defendants guilty of murder. And I'm going to explain there's some differences in who got convicted of what offense. But those differences, those are the proverbial legal distinction that makes no difference, as I'm about to explain. And it will tie down nicely into our third segment, because we have to wait to see how the judge sentences each defendant in these cases.

0:13:37 Thomas: Yeah.

0:14:13 Thomas: Yeah, let's hope he doesn't pray about it. Sorry, spoiler for later.

0:14:16 Andrew: A little bit of a spoiler alert there. Remember, though, that it was not a smooth ride to this trial, right? Like two separate prosecutors had to be dismissed out, right. The first prosecutor was indicted for interfering in the arrest of the defendants, and the second had to recuse himself because of ties to the McMichaels. So Travis McMichael, the trigger man, the person who actually shot Ahmaud Arbery, and his father, Greg McMichael.

0:14:26 Thomas: Yeah, gosh, forgot about that. Oh, my God. And This is just to take a second to say the most horrific of horrors of racial murders. I mean, it's something that you would hope would come out of a history book from the fifties or something, not in modern America, but it turns out it still does. You know, like it's, it sickening what happened. I guess I'm, I'm just overwhelmingly glad that the verdict went the right way in this case. But but yeah, like this is just unbelievable. If you if you went into any of the details, I don't think we'll go into them here. But, you know, just really sad to know how much hatred and anger and racism, you is still operating uh in this country every day.

0:15:10 Andrew: No. That's right. Right. And look, the reason why we focused on Rittenhouse as opposed to this case is if the jury not convicted in this case, hand wringing and the emotional levels of us being distraught, you know, would have been ramped up to a thousand. Right. I mean, like this, it was unambiguous that the three defendants in this case chased down Ahmaud Arbery and shot him. Right. Like they raised self-defense because, you know, well,

0:15:35 Thomas: Yeah.

0:15:44 Thomas: The defense is what if maybe we thought possibly he'd committed a crime at some point and it's like if this works as a defense? Oh my god, you know, like.

0:15:55 Andrew: And it and should give gives you some bracketing, at least to, you, the folks who were saying uh versions of what we said in our bonus episode, right, which is apparently in light of written house you know, you can just go you hunting people on the street, well, you know, no, no, you can't. So right, so let's talk about this a little bit and let's answer like some of the questions I have already gotten uh which is namely, how can you, how can you find three people guilty uh of the same murder? Um and uh, is there a distinction? The answer to this one is no, uh, between the malice murder count, uh, of which Travis McMichael, the trigger man, was found guilty, uh, and the felony murder counts, of which Greg McMicheal and William Brian were found guilty, um, and so we'll work backwards, uh, both of those. Both, quote, "malice murder" and "felony murder" are defined under the same statute in Georgia.

It is Georgia Code 16 dash five dash two. And it says, I'm going to skip the irrelevant part, subsection "a person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being."

0:16:04 Thomas: Yeah Geez.

0:17:06 Andrew: So that's the malice murder. C, "a person commits the offensive murder when, in the commission of a felony, he or she causes the death of another human being, irrespective of malice." That's the felony murder. And then subsection E is the criminal penalty. "A person convicted of the offensive of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life," right?

So it doesn't matter if you get there via malice or via the commission of another felony, it's all the same statute. I'm not going to go into, you know, the aggravated assault and the false imprisonment and all of that because they're not true lesser included offenses in that they don't merge into the murder, but those sentences you are almost, almost entirely likely to be irrelevant in terms of sentencing. That's the legal background. Right. Travis McMichael was the only person convicted of the malice murder because he's the one who pulled the trigger. But the others were convicted of at least three and for the father, Greg McMichael, all four counts of felony murder. You heard me read in the statute that it carries the death penalty because the death penalty is and not stayed in Georgia. If we have any listeners who are pro death penalty in any respect, but go ahead and send us an email at openarguments@gmail.com and I'll write back personally and tell you why you're wrong.

0:18:32 Thomas: Well, there goes your Thanksgiving. I'm

0:18:33 Andrew: Yeah. Right. I'm confident that nobody, uh, who listens to our show, uh could have, an, uh such an obviously incorrect opinion.

0:18:41 Thomas: Yeah, I don't know, I'm not sure I have, I have share your confidence. Um, I also would like to note quickly that it's amazing, amazing how, how fast that that moral view goes out the window once we talk about Rittenhouse, you know, it's, it's unclear how much people are joking, but like all of a sudden it's like vigilante, someone should kill him, you know, like kind of opinions that come out of the same people who are probably mad about the crime bill, you know, the same people who are, itS, it'S, it'S, all right. It'S just, it''s just weird, you know?

0:18:43 Andrew: Yeah. Right. Right Well, that's yeah. That's why, well, that's why we stay away from that kind of rhetoric. That's absolutely correct. Back to Aubrey, that explains, you know, how multiple individuals can be convicted of the same crime because the felony murder rule, Georgia and in most states, just requires you to have for your behavior in the commission of a felony to have been a contributing factor to the crime, the death of the victim. And, uh, the state's theory here, clearly born out of trial, was the behavior of all three individuals contributed to the death of Ahmad Aubrey. Um, that seems to be very, very clear. Um, so, uh, yeah. If you were, if thinking, you know, how, how far broken does the Rittenhouse verdict go? It at least doesn't go this far.

0:19:12 Thomas: Yeah.

0:19:59 Andrew: So, that's not to paint a super rosy picture on everything, um, the system is not, not perfect, is not, in many cases, is not functional, uh, it, but it does, it does suggest, it, know, we at least kind of know where the outer arm is.

0:20:11 Thomas: Yeah this is, I mean it really is encouraging news. Want to stay active and we want to stay vigilant. And I think part of that is people really emphasize the injustices and don't look at when the justice system actually works. I think that's, you know, that's fair to a certain extent. Like the times where it doesn't work are very horrible and very visible and all that. But like, importantly, it worked in this sense, you know, like we got there and this is exactly the time we needed to get there with this horrific racial execution, like it's a huge relief.

0:20:11 Andrew: Yeah.

0:20:43 Andrew: And My uh, line tying up both of these, these cases is, uh, I believe neither of these cases would have been brought 20 years ago, right? In both cases, they were driven by the ubiquity of individual witnesses with videographic evidence. Right. And so, you do not want to impose a a duty on, you know, passers-by to record things, but I, I do want to say, you, if you're present, right, turn like on your phone. And, and, that really has, that the number of folks doing that, uh, is, um, in, in my view, you know, what's, what's enabling us to kind of, uh, move, move past, some of the systemic blocks. Right. This, this I think is even more of a case when we're talking about bad acts by cops. Uh, but that would be an entirely different rabbit trail to go down. So I won't go there, but, yeah, keep your phones on.

0:20:55 Thomas: Wow. Oh, right. Yeah. All right. Well, let's Get to the System Not Working. This is an outrage story that I think is just pure outrage. Like we're not here to tell you this is anything other than outrage. Rapist who I believe has raped like Like four people was, you know, in sentencing, the judge prayed about it and then determined like, oh, you know what? No jail time because as a result of my praying, I guess. What is going on here? Please explain this.

0:22:04 Andrew: It's worse than that. And so, Uh, let me, if I just want to to give a content warning right here. I'm going to talk in the barest possible terms, but if you are a survivor of assault and you don't want to hear that, forward about 10 minutes to the next segment. It's worse than you say. This person was a high school student, 16 and 17 at the time. He has pled guilty to the sexual assault of four women, including rape, um, and those, uh, young women were 15 and 16 at the time. Uh, this is not statutory, uh, this was forcible. Um, this involved, uh, uh, his, uh, house being used, uh, as a party house, and in fact the, the mom, uh, a neighbor, and the stepdad all have separate charges, 30 different charges.

0:22:06 Thomas: Oh, wow.

0:22:51 Andrew: Between, between them, because of, because of the outrage over this, um, for supplying alcohol and marijuana, uh, repeatedly at, these parties where, teenage girls were assaulted. So that's, uh, gross, in every possible way. Um, on top of that, this is somebody who was, uh, placed in a, uh, juvenile diversionary program, given two years of probation, and then violated his probation right while the trial is pending. Um, the terms of those probation, of that probation, which included basically Um, included, uh, watching pornography on his computer, uh, in violation of the probation order, and and installing software to try and block, uh, the probation officer from determining that he's watching Porn On the computer.

0:23:41 Thomas: All right. Well, what? What?

0:23:42 Andrew: It. It.

0:23:43 Thomas: That's watching pornography is something you ban as a result of probation because that's silly.

0:23:50 Andrew: It. So. I'm not sure that it is, uh, appropriate, uh, to, uh, impose, you know, you cannot look at internet porn as a condition of probation, but nevertheless, that was one of the conditions of his probation. The laws around sex offenders are a confusing and inconsistent patchwork. How about we say that? Right. You know, particularly things like the sex offender registry, uh, that, you very often, my view, fails to have the level of granularity that you want.

The idea behind a sex offender registry, and again, I'm not defending, I're not coming out opposed to it, it's a complex philosophical question, but I think at minimum you would say, if you are defending the concept of a sex offender registry for life, the idea is to potentially warn the community that you are a danger of recidivating. Because many kinds of sex offenses, best psychological evidence is that Minimal or no ability to, um, know, quote unquote, cure the underlying, uh, criminal desire, uh, but rather what you can do is control the behavior. So the thought process is, have a registry because, you this is a loaded gun that, you know, that could fire at any moment.

Is also, I think, indisputably clear that that as we have moved into, uh, know, a a tough on crime kind of stance, uh, that one of the ways of being tough on prime is adding more and more offenses in which you get put on the sex offender registry, right? Um, especially because, and you can even understand this, that like it, as you add it to more offenses, uh, which are capable of being deterred, right, like the idea is, okay, well, that's a a deterrent, right?

0:24:02 Thomas: Yeah, yeah.

0:25:37 Andrew: But the problem is now you've created a list that, where you've deliberately added noise in with your signal. It, and it, and sort of makes no sense anyway. That's lot of a rabbit trail. Let's, let's talk about the outrage in this case. Um, and that is the, uh, judge, uh, Matthew Murphy the third, uh, while sentencing, uh, Chris Belter, to eight years of probation said, said, I don't think prison time or the possibility of prison time is appropriate. I'm to sentence you entirely to probation, to zero time in jail. And then he said, quote, it's going to be like a sword hanging over your head. And so the implication is, gosh, if you violate this probate, we know you already violated one, but if you violate this probation, like, you know, then the eight years will spring forward and that should really deter you.

0:26:24 Andrew: And I guess I kind of want to say, to me, what immediately sprang to mind was the language that we talked about in last week's show of Judge Royce Lamberth, right? Hardcore pro-Trump conservative in sentencing the QAnon shaman to 41 months in jail, three and a half years, right. Right. He said Lamberth said, quote, I think you are sincere. I think your genuine in your remorse. Right. But what you did here was horrific. Right.

0:26:55 Thomas: I'll be honest. If you gave me a choice, just like, look at these two guys. One, the QAnon shaman, and two, this rapist. Who should do more jail time? I'd be be like, well, the rapist, definitely.

0:26:56 Andrew: Yeah, obviously.

0:27:07 Thomas: Don't you think? Of

0:27:07 Andrew: And and and again, the logic is if Judge Lamberthe had said, well, believe you're sincere about apologizing for the insurrection stuff. Stuff. So this is going to be like a sword over your head. I'm going to impose five years in prison, but suspend it all for probation. Right. Just just no more. You know, don't do any more insurrections. People would have been really, really mad. And That's what this judge did. This judge said basically, well, OK, but don't doing any more raping. That's right? Not what we think of as justice.

0:27:23 Thomas: No wearing goat attire, that's your probation. Yeah.

0:27:42 Thomas: Well, Andy, what about the part where he said he prayed about it? Mean, you skipped over that. Is that significant to you or not?

0:27:45 Andrew: Yeah, I I over it because look, look, listeners know you and I are atheists, and, I,

0:27:52 Thomas: Well, that aside. Even if we were religious, the idea that you're to say, well, I prayed about it and I guess God told me to let this rapist not go to prison. I mean, that's, I could be a diehard Christian and be like, well don't use your religious beliefs to sentence people. That's not appropriate. You

0:28:11 Andrew: Try and and and look at this as charitably as possible, and again this judge may not deserve it. And to me, I just sort of substitute when I hear somebody say, I've prayed about this, I substitute, you, I have given this like my most introspective level of thought, right? Like to me that's the benefit of the doubt substitution, especially when it's not accompanied by, you a scriptural argument. Now, right, the counter argument would be, you know, what you've said, right, which is that the way in which the Christianity thing works is you say you're sorry in your head, um, and like there's no requirement that you know you make it up to to your victims, right, and so you could that idea, have uh influenced, you know, sort of the move to, okay, well, you seem real sorry about that, so I'm going to impose probation and make sure that you that sword hanging over your head, and you don't do it again.

I suppose you could, you could draw that connection. But I mean, to me, I think the the far more parsimonious explanation is that we see this all the time, is that judges tend to identify with victims that remind them of themselves, right.

0:28:40 Thomas: Yep, yep.

0:29:28 Andrew: And so you know, you look at it, and this is a rich kid, uh, with rich parents, uh, kind of living the life, and he's like, oh man, you know, like, I I could sure see that being me, or you know, that being, uh, my grandkids, you know, my grandson or whatever, um, and you know, now this kid's way worse than my grandson, but you know, I would, I would sure want, you know, somebody to give a second chance. And the problem is, is that when you don't have that of identification, you tend not to to get the same level of, you know, well, let's make sure this is rehabilitative, right, let's making sure that you know somebody has the opportunity to to fully express remorse, and

0:30:08 Thomas: Yeah. That is the tough thing about these cases is oftentimes for me, as somebody who's in favor of an entirely different approach, like if we could radically change the way we hand out punishment in this country, restorative justice and all that, often it puts me in a tough place. And I think a lot of people as well, where it's like the kind of radical empathy that only young white men tend to get in this justice system is the kind of empathy where you're like, well, I kind of wish everybody got that. And if everybody in the justice system got that kind of empathy, then maybe it wouldn't be so outrageous. But the fact that it's the fact of the, you know, the racial injustice component of it, to where you can't be like, well, Okay, this person got a light sentence.

0:30:55 Thomas: Aren't you in favor of that? Because you're in favor of light sentences for everybody? It's like, yeah, but they're not going to everybody, you know, they're only going to certain people. Yeah.

0:31:02 Andrew: Yeah, no, that, and that exact, like the fact that our system is a patchwork of varying things with with differing philosophical justifications, right? Like, that makes it hard. Would I put, by contrast, there was a study in one of the Scandinavian countries about 20 years ago that basically compared a traditional prison environment with a prison environment where the inmates got, there was a prison nutritionist on staff, and they got balanced meals throughout the course of their imprisonment, kind of thing that would never, ever happen in the United States.

0:31:12 Thomas: Yeah, you mean, what we should provide as human beings

0:31:43 Andrew: Yeah. And and the difference in recidivism rates was, I want to say, three or four times the level of improvement over standard incarceration, just from the diet, right, just from, like, provider. And, you know, yeah, I have so many follow up questions, right? Right? Like, is it just, you know, integration into society? Is it literally, like, taking, I mean, we, you think about folks at the margins who tend to be incarcerated, right? We know the effect that diet has on behavior, right. In any event, to me, it's always posed a really interesting philosophical question. And I'll just sort of leave that as an exercise for the listeners, um, if we could show that there was a rehabilitative form of incarceration, uh, that that reduced, uh, recidivism, you know, down to zero or near zero, uh,

0:31:44 Thomas: To humans we have in captivity, from the diet, wow, yeah, yeah, yeah,

0:32:47 Andrew: But imposed no retributive punishment whatsoever, think about how you would feel about that, right, think about where you would come out. And and and that's a hard question, and so it's why I kind of, you know, uh, we'll toss that apple into the room, and move it's how I would kind of wrap this all together, which is, it's easy, and we should be outraged at the judge in the Christopher Belter case. And that is because a rapist is getting benefits that rapists ought not to get within the system. But when you start thinking about how do you respond to that, it becomes much harder, right? Right. Do you respond with more mandatory minimums that make it harder for you to do justice in a case by case basis? Do you correspond with making states go more to a sentencing guidelines approach that, again, takes away the ability to do injustice in the individual case? Right. Like those have turned out, by the way. Right. Sentencing guidelines and mandatory minimum shocker that they also tend to reinforce, you racist beliefs.

0:33:10 Thomas: Yeah, exactly, yeah, it's like we have this, this reaction to, like, well, we need to inflict more punishment, and then it's, Okay, cool, that'll only happen to, black, black defendants, you know, disproportionately. And so if it's, but it is kind of a powerless feeling, you Know, and I wonder, I almost feel like these old white male judges, like, can we just get them in some courses? Can we get the information out there about how disproportionate sentencing often is, you Now, like what can we do? And I guess I'll turn that into an act that was kind of sarcastic, but an actual question, what can be done in this case? I mean, is there anything? Is there any, I don't know, appeal anyone can do? Is there a recall of a judge that anyone can due?

0:33:55 Andrew: Yep. Yep.

0:34:25 Andrew: So I do not know if the judge is elected here in this case. I don't think judges should be elected. So that's a terrible recourse. There is no appeal here by the prosecutor. Prosecutor does not necessarily violate double jeopardy for the prosecution to appeal a conviction. We talked about this in the Rittenhouse case, but the grounds for the appeal must be something like the exclusion of evidence, right? Like you can't just say, I think the jury got it wrong. I want to appeal that.

0:34:57 Andrew: You have to say the judge made X particular mistake, and that that invalidated, uh, the verdict, and here you got a guilty verdict, so you know, it's it's there, that is, right, yep, there's nothing that can be done, yeah.

0:34:57 Thomas: Yeah, yeah. There's nothing, because it's entirely the judge's discretion on sentencing, and so there's no appeal, yeah, boy, that's frustrating.

0:35:16 Andrew: I don't disagree, mark the system question, mark, yeah,

0:35:18 Thomas: Okay, so the system is a mess, yeah? It can work, it can also very much not work, but we'll leave it there and move on to our next segment. To you by ExpressVPN. So how did you choose which internet service provider to use? The sad thing is most of us have very little choice because ISPs operate like monopolies in the regions they serve. True story, just moved and tried to keep my old ISP. Nope, can't do it because you don't get any choice in that. Use this monopoly power to take advantage of customers with data caps, streaming throttles, the list goes on. But worse of all, many ISPs log your internet activity and sell that data to other big tech companies or advertisers. To prevent ISPs from seeing my internet activity, I protect all my devices with ExpressVPN. So what is ExpressVPN? It's a simple app for your computer or smartphone that encrypts all your network data and tunnels it through a secure VPN server so that your ISP cannot see any of your activity.

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0:37:08 Thomas: That's number one VPN service by CNET and The Verge. So stop handing over your personal data to ISPs and other tech giants who mine your activity and sell off your information. Protect yourself with a VPN I trust to keep me private online, Visit expressvpn.com/OA. That's E-X-P-R-E-S-S V-P-N dot com slash OA to get three extra months free. Go to expressvpn.com/OA right now to learn more. OK, some updates on the Trump presidential records cases.

0:37:42 Andrew: So all of the briefing, uh, that we talked about has come in since, uh, our last episode. That includes, so we talked about how bad Trump, you know, pro-insurrectionist Jesse Binnall's brief on behalf of Donald Trump was on the immediately prior episode on 545. We've now seen the House opposition brief, right? The archivist's opposition brief, which is substantially similar, and Trump's reply brief, as well as a separate sua sponte order that the D.C. Circuit entered in this case that is really, really significant. So I want to go kind of quickly through all of these because think it's important to know, you know, sort of what's going. And I think it illustrates the metagame, which is the D.C.

0:38:32 Andrew: Circuit is painfully aware that pro-Trump elements on the Supreme Court.

0:38:48 Andrew: And I, I'd like to think the brief I would have written in this case, it's incredibly well reasoned, it hits the very specific uh points in argument that I think are likely to be persuasive to this panel, um, uses the F word a lot more than my briefs do, um, which is always fun, the factual setting, uh, is 14 pages in length, that's pages 7 to 20, and references, you details and it's all public sources. Right. So there's no inside information, but it is a really compelling narrative of the role that Donald Trump himself personally played in inciting the insurrection. It references the Raffensperger stuff in Georgia. And there's even a bit at the end about Kevin McCarthy.

0:39:34 Andrew: And I don't I don't if you'd heard this. But, right, this is pages 18 to 19, and this is indicative of the tone of the entirety of the brief. So I'm just going to read a little bit from it. It says, Mr. Trump was described by those around him at the White House as, quote, borderline enthusiastic because it meant the certification was being derailed, end of quote, and that is when he learned of the insurrection. As a wide range of Republican officials tried to convince him to call off his supporters, he refused to act other than to tweet out that, quote, Mike Pence didn't have the courage to do what should have been done to protect our country and our Constitution.

He was advised to announce publicly that his supporters should leave the Capitol immediately, but he did not do so for hours, instead sending a pair of tepid and ineffectual tweets asking his supporters to be, quote, peaceful. When House Minority Leader Kevin McCarthy asked Mr. Trump to call off the rioters who were trying to break into his office in the Capitol. The latter reportedly responded, quote, well, Kevin, I guess these people are more upset about the election than you are,

0:40:10 Thomas: Oh, yeah,

0:40:41 Andrew: End of quote.

0:40:40 Thomas: I remember all that. God.

0:40:42 Andrew: Yeah, I didn't remember that Kevin McCarthy a bit, so I want to point out because it really does, really, really smart. It put Jesse Benall, who thinks, you know, these were just tourists and the election was in fact stolen, uh, into the position of looking like a complete and utter moron in his briefs. And we will get to that. Okay. Um, I'm going to skip over reading the quotes, but basically the brief does a nice job of showing that there was in effect a legitimate legislative purpose. Um, there's, they, they, uh, take a delightful and correct shot, uh, at Trump's brief that says, um, "Mr. Trump criticizes the select committee's request on the ground that it, quote, 'fails to identify anything in the privileged communications that could advance or inform any legitimate legislative purpose,' end of quote. The select committee cannot, of course, identify anything in communications that it has yet to see." So that's a good point.

0:41:41 Thomas: Yeah.

0:41:41 Andrew: It answers the bit about criminal conduct and wrongdoing. And it says, "Look, you quoted Mazars. Mazars said that the congressional interest in past illegality can be wholly consistent with an intent to enact remedial legislation." And then there's a string site. It is just crystal clear what the law is here. Then Trump continues to make this argument that you could get the information from other sources. Brief says, "Lengthy public record of Mr. Trump's statements and actions discussed above provides an abundant basis to seek the non-public records of the person whom the attackers sought to maintain in the White House, and whom many have claimed sent them to attack Congress."

0:41:41 Thomas: Oh

0:42:27 Andrew: Any inquiry that did not insist on examining Trump's documents and communications would be worse than useless, the equivalent of staging a production of Hamlet without the Prince of Denmark. That's a pretty nice metaphor. I like it. Okay, so that was filed on the 22nd, Tuesday. On Wednesday, the court issued a sua sponte ruling. And it says, hey, we're just sort of looking at this case and we want you to make sure you can address this question at oral argument. Remember, oral argument is scheduled for November 30th, that's right, is next Tuesday as you're listening to this. Does the provision in the Presidential Records Act, providing that the archivist, quote, determination whether access to a presidential record shall be restricted and shall not be subject to judicial review, except as provided in subsection E, implicate the court's jurisdiction or the district court's jurisdiction in this case?

0:42:38 Thomas: Wow. That's yeah.

0:43:27 Andrew: And there's a citation to a case, National Coalition to Save Our Mall versus Norton, and if so, uh, what effect does that have on our subject matter jurisdiction to hear this case, or the subject matter jurisdiction of the district court to adjudicate any of the requests listed, uh, in the complaint. This is brilliant. It relies on, and, and I'm going to explain it the best that I can, a very, very technical reading of the appropriate statute, which is 44 U.S.C. Section 2204. But if the court for the District of Columbia manages to kick out this case on standing, it makes it all the more likely that the Supreme Court can say, "Oh, yeah, we don't have to get into the merits of this whatsoever."

0:44:14 Andrew: Right. It gives the Supreme Court another out because this is clearly what the D.C. Circuit is afraid of. Is they're afraid that this is going to be it's going to be, you know, a ruling on the merits, you know, even though it's ruling on the injunction, but it will implicate because you have to show likelihood of success on the merits. Their ruling will basically say, yeah, the election wasn't stolen, you you idiots. And this is and like Clarence Thomas has certainly been playing footsie with the idea that the election was stolen or the idea that, you know, reasonable people can disagree over whether the election is stolen.

0:44:43 Thomas: Yeah, yeah. So this is giving the Supreme Court, court, another out to not have to look at this and to not kind of,

0:44:52 Andrew: Yeah, that's that to not issue an injunction and then consider it and then take two years, you Know, which is which is all stuff that the Supreme Court did in Mazars. Right. And it's all stuff we could expect them to do again if they issue an injunction and and and grant cert in this case. So it is illustrating, I think, the degree to which our courts have had to adjust to the blatant politicization of of the judicial branch by the Trump administration. So it a good argument? I don't know.

0:44:58 Thomas: OK. Yeah yeah. Yeah. Hmm.

0:45:32 Andrew: It's a question of first impression. So So here's here's the here's the terms. OK, 22 U.S.C. I'm sorry. 44 U.S.C. 2204 B3 says the restricted period, which was what we're in, the determination whether access to a presidential record or reasonably segregable proportion thereof, shall be restricted, shall be made by the archivist in the archivalist discretion after consultation with the former president. And during such period, such determinations shall not be subject to judicial review except as provided in subsection E. Right. Yeah. You're like, OK, well, that seems like really good. Yeah, subsection E says the U.S. District Court for the District of Columbia shall have jurisdiction over any action initiated by a former president asserting that a determination made by the archivist violates the former president's rights or privileges. So I think the view that both the one six commission and Donald Trump have is, yeah, OK, ordinarily archivist's decision shall not be subject to judicial review unless it's a former president saying, hey, I need to keep this confidential.

And then it goes as a a matter of course to uh the U.S. District Court for the District of Columbia. The DC Circuit is insinuating, and what, their reference to the Norton cases, and the Norden case, by the way, is not a presidential records case.

0:45:35 Thomas: Wow.

0:46:11 Thomas: Interesting.

0:46:57 Andrew: It's a deference case, it's an administrative deference case, it's about, um, the construction of a monument on the National Mall, and it basically says, um, once we said that that determination was not subject to judicial review, that means what it says, that means that the determination cannot be second guessed in the courts. It deprives us of jurisdiction. So how do you read that subsection E? You would say, yeah, if the president sues, then the court to which he would go will be the U.S. District Court for the District of Columbia, which is where he went, um, but that court would lack the power, could hear other stuff, right, but it would lack the power to overturn the archivist decision, right, because it says the archivalist determination shall not be subject to judicial review.

0:47:14 Thomas: Yeah. But then does that reading render that next part, that other part kind of meaningless though?

0:47:54 Andrew: It Kind of kind of superfluous, um, yes and yes and no. Right, like the, it would render it superfluous in a case of the present, right, which is past president, uh, seeking to overturn the archivist decision, uh, on the determination that something isn't privileged or not, um, but it would, it would permit, like, collateral arguments. It would commit you to argue, uh, that the archivist did not make a reasoned determination or that the archivist, wrong, took a bribe, something like that. So it would preserve some kinds of arguments. And the counter argument, right? And this is where, so right now you're thinking, this seems kind of a long shot. And I agree. And I'm really, really interested in how they brief it at oral argument. The counter argument would be, but the view that this doesn't, that subsection E takes away the archivist discretion to make a determination then renders B3 completely, right, because look, the only kinds of cases, yes

0:47:56 Thomas: Yeah. Mm.

0:48:57 Thomas: Too quo-kay or something? I don't know.

0:49:00 Andrew: To quote the way, that's right, um, the only kind of cases you are going to get during the restricted access period, right, during the first six years, are going, going to be cases by the former president disagreeing with the archivist. So what does it mean?

0:49:10 Thomas: Yeah. Good point. Ooh.

0:49:13 Andrew: What does it mean that the archivalist determination shall not be subject to judicial review if you can go in de novo and just argue that the archivist was wrong? So the idea is that this statute, contrary to the implementing regulations, because by the way, there are federal regulations that describe how this process works that have never been challenged before, right, and those, those regulations suggest that archivist makes the determination, but if the president disagrees, he gets to go to court, and uh, and, and gets a brand new bite at the apple.

Um, I think there was a non-trivial argument, and this has gone completely under, I'm the only person as far as I know that has tweeted about, talked about that, the importance of this 11-23 ruling. I wish more people knew about 11-23 order, right? It's not a rule, again, it's a it's just an order that the parties be prepared to discuss standing. Um, I could see the DC Circuit saying, why doesn't this just mean the archivist determination is entitled to maximum deference and we are only to disturb it if there is a procedural harm to uh the former president, you know, that is, uh, fraud, you know, corruption, uh,

0:50:23 Thomas: Yeah, yeah. This is a really fascinating

0:50:28 Andrew: Good

0:50:29 Thomas: Legal thingy, Andrew. I feel like you explained that so well. So it's like, on one hand, it's like, yeah, this short might make, as my question was, like it might render this part a little bit meaningless, but then it goes both ways. And as you illustrate, like, I feel the weight of that, you know, one section has to essentially win out, right? I mean, one or the other. And it feels like the section where the archivist's decision shall not be justiciable or whatever, that one feels a a little stronger to me just based on you describing this. So it feels like maybe that should be the one that kind of wins.

0:50:33 Andrew: Yeah, and I don't know, all I know is that this is a plausible argument. Um, and uh, by the way, since the order came out on 11-23 and Trump's reply brief was not due until uh the day we're recording this, Wednesday, November 24th, you'd think his brief would, it would mention it, but you'd be wrong, because you, and by that I mean you and all of our listeners, are not stupid enough to hire Jesse Benall as your lawyer.

0:51:29 Andrew: When the court says, come to oral argument prepared to address X, that's a real strong indication that the court is considering X as an argument, and they would like to know your thoughts. And you have the opportunity, in a reply brief, in something to to which the other side does not have the right to respond, to lay out your position and to lay it out as strongly as possible. And I know you might be sitting there thinking, like, well, is there a strategic element to, uh, you know, holding back and well, no, you could say like, is, is, isn't, is it good to sandbag, right? We'll, we'll save our good arguments for trial, right.

0:51:28 Thomas: Yeah, doing your job correctly. Yeah yeah. We'll we'll let the

0:52:07 Andrew: For, for the oral argument.

0:52:07 Thomas: Court punch itself out, you know, get tired or something, I don't know.

0:52:11 Andrew: Yeah. The Rocky strategy. I love that.

0:52:14 Thomas: Rope-a-dope, there we go, nailed

0:52:16 Andrew: Rope-a-dope.

0:52:16 Thomas: It. Yeah I said rope-a-dope because it's judges, Andrew, I was trying to make, anyway.

0:52:17 Andrew: Yeah, uh, I love that, that is really, really good. I'm gonna steal that. No, you don't do that. And the reason you don't do that is because the way in which this is going to come up at oral argument is, uh, Jesse, god help me, it's just hilarious every time you say this, uh, because he is so profoundly stupid. Um, anyway, Jesse Bennell is going to get up and he's going to say, "May it please the court," and, uh, Judge Maletta is going to say, uh, he's gonna interrupt and say, "Okay, counsel, we'd, we'd to hear on 2204," and then he's to have to like Like,

0:52:51 Thomas: He's going to do the like, didn't read the book, trying to deliver the oral book report thing in class. Oh, that's a great section of law. It goes back a long time. I was very inspired when I read that section of the law.

0:53:00 Andrew: It's between 2203 and 2205. No, like, you want to have your, you'd much rather have your arguments spelled out in writing, right? Eight pages, right, like I could write eight pages on 2204 right now, right. Right. And and yes, is this.

0:53:23 Thomas: I believe you, Mr. Lightning Round. That'd be easy.

0:53:28 Andrew: And it is damn near malpractice to have a court's order come in on the 23rd, even though, you know, your brief is due on the 24th. I'm sorry, pull an all nighter, Jesse, and and brief it. And the fact that they do not is, I think, telling. Well,

0:53:39 Thomas: Yeah. I just always wonder if every single lawyer Trump has ever hired is just there to get an easy paycheck, you know, do like the worst job. How much of it is that versus they're just truly incompetent? It's hard to tell. Yeah.

0:53:58 Andrew: Jesse Benhall has is a Kraken lawyer, right? Like he Was sanctioned in Wisconsin. He's been involved in these cases. And it was, I think, masterful the way, uh, as I, as I flagged for you, uh, one six committee went through in excruciating detail the role of the president in inciting the insurrection. And it's left Jesse Binnell to say terrible assertions in response that do not respond to any of the points made, uh, in the one six committee's brief, because he knows the audience for this has to, like, he has to continue to straddle that line that endorses the big lie. So this is page two of the brief, uh, and and and we'll bring this to a close, but this of, uh, how terrible this is, uh, Trump's brief.

0:54:01 Thomas: We're.

0:54:50 Andrew: Says, "Highly partisan and hotly contested allegations regarding the committee and appellee's opinions regarding the cause of the January 6th, 2021 unrest at the Capitol saturate their briefs provide the alleged basis for appellees' attempt to invade President Trump's rights and privileges regarding presidential confidential presidential" - uh, by the way, there are like six unnecessary commas in that sentence, it made it a challenge to read - "appellees' attempt to convince this court to adopt their partisan narrative as a predicate to undoing important constitutional and statutory safeguards should be flatly rejected by this court." Um, this is the dumbest possible approach you can take in court.

0:55:30 Thomas: For a moment I don't - Understand why I didn't -

0:55:32 Andrew: Yeah. Uh, because you have given all you have said is, well, they're being partisan, and you have to adopt their narrative, and like, what you have opened the door for is for, uh, the the one six committee lawyers to come in and say, okay, the threshold question raised by the former president in his reply brief is, you accept the facts of what happened on January 6th as adjudicated by 62 two separate courts, or is this court prepared to accept conspiracy theory nonsense just because a former president has hired somebody to espouse that for him?

0:56:12 Thomas: Even know we had 62 - Quarts, that's a lot of course.

0:56:13 Andrew: Yep. 60 - that's in, that is in the brief, by the - Way, it they count up and put in a string site that there, uh, have been 62, uh, Kraken lawsuits and kraken adjacent lawsuits, uh, designed to overturn the the election. And each and every one of them has gone real bad for the president because he's saying stuff that is not to the former president, Donald Trump, because he sang stuff that's not true. And, and I would not want to be in a position, uh, where the other side gets to come in and say, okay, um, let's first decide truth from fiction. Uh, you know, any competent lawyer, lawyer, would say, assuming arguendo that, you know, blah, blah, blah, and you would just skip over it, right? You would say, let's imagine that they're correct, reserve our right to dispute that, but let's image that they are correct, here's why the criteria don't apply.

0:56:18 Thomas: Wow.

0:57:06 Andrew: And then, you might get one question at oral argument, but oral argument will not be about does the D.C. Circuit think the election was stolen or not? We know, and if If you're Jesse Bindle, you have to know how the court's going to come out on that because you're over 62. It's it's it could be who knows.

0:57:20 Thomas: Yeah, but this - Time - Though - So, all - right. Well, very interesting stuff there, Andrew. So what are we waiting for? When's the next ruling likely to come out on this?

0:57:35 Andrew: Tuesday, November 30th is oral argument before the D.C. Circuit. If that is public, I will attend. I mean, you know, telephonically via Zoom, whatever. If it is not public, we will wait to find out. But I imagine that the D.C. Circuit is prepared to rule and rule quickly. Will see sort of on what grounds. We'll see how the standing argument fares, whether The lawyers for the committee adopt that. Um, when, the judge is about to adjudicate my case, say, "We're thinking about X argument," uh, my response has always been, uh, "Your Honor, that is an excellent argument."

0:57:59 Thomas: Yeah.

0:58:11 Thomas: Yeah. Also, isn't that weird? That's exactly what I spent all last night working on after you told me that. You know, like that too.

0:58:12 Andrew: Um. Right. That is exactly right. Um, so we'll know during next week's recording. We should see you.

0:58:23 Thomas: Excellent.

0:58:24 Clip: And thank you, Let's go!

0:58:25 Thomas: And it's time to thank our new patrons at patreon.com/law. Another quick reminder, of course, hop on that Patreon Q&A thread that I told you about at the beginning of the show for November 30th. That's Tuesday, 4 p.m. Pacific, m. Eastern. Go ask your questions. Go vote on the questions you want to hear. And Andrew, why don't you start us off and thank our New Patrons.

0:58:45 Andrew: To Auntie Jen, to Justin Aronson, Ashton Downing, Jason Zawacki, Aaron Walsh, DeAndre, Axel, Anexa, T B, Ian from Iceland, Tom Pegg, Jeana Schieffer, Logan is my favorite X-File Guy Incognito, Wait, Wait, Don't Indict Me!, Tomas R J, Pat Ehlers, Alexa play never gonna give you up, those Never stop being funny. I Don't Have A Clever Patreon Name... Yes, you do. Jake Sargent, Simians Said, Joe Lally, Clare Miller, sorry, Carl Neubert, Lauren Moye, Gail, and Jack A., uh, and a quick reminder, if you signed up as a new patron at the five-dollar Hall of Fame level and above, um, that kicks in, uh, next month, right? So you get your shout-out as a new patron this month, uh, and you will get, uh, your recurring monthly shout-out starting in December.

0:59:12 Thomas: And Also Thank you to Dakota Kirk, Abolish The Bar, oh wow, David Childs, Fenix Feniks the sassy serpent, Andrew Pigman, Loaf of Orange, Thomas Markwell, Jennifer Esther, Harold, Hannah Catchings, Brian Rappe, maybe harold heslop, Paul Barko, John Kearney, Talking Whatever Wednesday, Measure76 from the exmormon reddit, Gabby Gabs Gabster, Sean Timothy Noonan, PurpleCouch.com, supporting a friend through a divorce or going through a divorce. Listen to the assembled experts at Purple, Purple without an E, by the way, Purple, P-U-R-P-L, Couch. Dot com. Sonder, Steve D., Monica, a California legal apprentice who actually passed the first year law students' exam.

1:00:34 Thomas: Congrats. Congrats. Hank Hill. Oh, good. We got a Hank Hill and Bruce. You know, it just reminded me, Andrew, I just remembered I got an email saying like, oh, thank you for pronouncing my name correctly. Like no one ever does. You got it right, Thomas. Good job. I just want to say I do not in any way deserve that email. Like that is pure chance. Absolutely pure chance like it's nice that I got one, you know, like went my way in terms of the pure luck. But no, I do not deserve any such email. If I get your name right, pronunciation wise, it is absolute dumb luck. I And

1:01:08 Andrew: Ooh, I'm

1:01:09 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:01:15 Thomas: And now it's time for Thomas Takes the Bar Exam. Exam each and every week. I attempt to answer a bar question, having done no studying other than listening to this show. And we've retired the coin, so it's just me on my lonesome. Did I get last week right? Am I on a two question? No, I don't remember.

1:01:31 Thomas: I might be on a three question streak, or is it just one? Either way, it's some pathetic number less than three.

1:01:30 Andrew: Did Did Yeah, and Thomas owner granted his real estate to museum so long as the property is always used for museum purposes. Owner Owner then died. Owner left a will that gave all of my estate to a friend.

1:01:48 Thomas: Here we go. Hmm.

1:01:54 Andrew: Owner's only heir at law was a daughter. The museum ended up closing after a downturn in business. The museum sold its property to a developer by quitclaim deed. That The Developer Wanted to use the land to develop a retail tale mall. The developer brings an appropriate action to quiet title against the museum, the daughter, and the friend. The court should find title now in which party. I'm A, the developer. B, the friend. C, the daughter. Or D, the museum.

1:02:06 Thomas: Quit claim. Oh, love of God. Oh, geez. Upset that this is such a difficult real property type question, but on the other hand, it's short. So that is a relief because normally They go into like all these extraneous details for an hour to try to mess you up. So this seems pretty, at least to the point, I think. So owner granted real estate to museums so long as the property is always used for museum purposes. And we have learned that, I believe I've learned from the past, that's a totally valid thing to do. So once they stop using it as a museum, that is going to be the critical point. What happens then?

I believe it would go, because the owner dies. Okay. So the owner has died before they stop use it as museum. So then I think it would, I think the first thing that would would happen is it would go back to the owner if the owner were alive, I believe, but the owner has left a will that gave, quote, "all of my estate to a friend," and then the owner's only heir at law was a daughter.

Okay, so the museum closes after all this, so closes, so it's no longer, I think at that point then they should probably lose the ability to to have the land.

1:02:40 Andrew: Alright.

1:03:37 Thomas: They sell the property to a developer by a quit claim deed. I don't know what that means. Quit claim deed, gosh. See if that comes back to haunt me. I'm not sure what that means exactly, but the developer wanted to use the land to develop a retail mall. The developer brings an appropriate action to quiet title against the museum, the daughter, and the friend. The court should now find the titles in which party. I feel like the obvious answer is the friend. Here's the thing, do they, do they need to, does anyone need to do anything for this to happen? You know, is the kind of thing where it's like, well, the friend could get title, but does he, but does he need to actually do it, does he, like, when, when they stop using it as a museum, does, does somebody need to do something in that case to make it happen, or does it all happen kind of automatically, and then, like, you know, a court is tracks it down, is like, like, "Oh, it turns out this friend should, you know, own it actually."

1:04:27 Thomas: I don't know, because I remember in the last one it had to do with like who made the claim at a certain time and who made the claim in what order, and that kind of mattered. I don't if that matters here, that, you know, nobody has done anything. Essentially, the only person who's tried to claim anything is the developer. You know, there's another interesting question here, which is the owner gave away the museum before before dying and leaving a will that said "all of my estate." So does that mean that the museum is not, or the land rather, whatever real estate that's used as a museum, does that means that that's not part of all of the state, I got it. Okay. Here's what I have to remember. I have think in terms of bundles of sticks. Andrew has taught me this. He still has a stick, I think, because the stick he would have if he were alive is I get the thing back if you stop using it as a museum.

1:05:15 Thomas: So I feel like that stick is still in the bundle of things under all my estate that he's giving to a friend. I think it's got to be because otherwise who would have, unless it just dissolved after he died, I think that should count under all of my estate. So while I could see an attractive answer of like, well, he didn't technically have the museum land because he had already given it away. I believe he still has some sort of right to that land expressed by the conditional thingy there. So I believe I've answered my own question that the owner still left that to the friend. I don't, I think that the only two answers that I really love are the friend or the developer. Whoa, here's a weird one though. I just noticed the D answer is museum.

1:06:02 Thomas: Let's go through the answer. A, the developer. Okay. I think that's plausible under the theory that nobody else has tried to claim it. So maybe the developer ends up with it for that reason, unless the daughter and the friend tried to go after it. I don't know. Maybe. B, the friend. I'm leaning toward the friend, I feel like that's right. However, I'm a little worried. So C, the daughter. The here. I That would be maybe under my theory that it wasn't included in the all of my estate, but then once the museum stopped using it as a museum, then it goes to the owner and then the down to the, because the owner's not alive, it goes To the owner there. You know, that's not impossible, but I think I'm going to say no to C. This is a tough question. Every single answer is plausible, I think. D, the museum. This Is what throws me off. The museum itself, because The owner granted the real estate to the museum, like as an entity, I guess.

1:06:53 Thomas: I as long as it's always used for museum purposes. So the theory under D would be like, the museum tries to sell it, but can't because they are selling it to a developer who's not using it for museum purpose. So I still don't think I like that. Cause I think it, I think once it stops being used for a museum, then it just goes back to the, to the old man, to whatever the owner, previous owner, I think. So here's what I'm going to do. This is, oh, this is fiendish. I'm going to go with top two answers are A, the developer, just in case my theory that someone has to dispute this, or B, the friend, under the theory that that one stick, which is the right to essentially reclaim this real estate once they stop using it for a museum, that is part of the all of my estate, and that went to the friend.

1:07:40 Thomas: So I'm gonna go with B, the friend. This is so tough. I have no confidence in this. I don't, I just think that there's nothing here that really screams out enough to me to want to go against that obvious, you know, like answer. So I'm gonna go with the friend, with my second best answer being the developer. I could see arguments for the sort of both the daughter in the museum, but I think I'm sticking with B, final answer, the friend.

1:08:02 Andrew: And you want to play along with Thomas, you know how to do that, just share it, this episode on social media, include your guess, your reasons therefore, and the hashtag T3BE. We will pick a winner and shower that winner with never ending fame and fortune. Fame and fortune not guaranteed.

1:08:16 Thomas: And that's our show. Thank you so much for listening. Gobble, gobble, gobbled. Hope you have a great time arguing with your conservative family and make some progress there. Hope you have some great food and an enjoyable Thanksgiving week. We'll see you for Tuesday's episode.

1:08:31 Andrew: See you then. And let us know if you make any progress with Uncle Frank and Kathy. We love those stories.

1:08:36 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.

1:09:10 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.