OA547: Can Alex Jones Take the 5th?

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 547. I guess technically Cyber Monday edition, huh?

0:01:25 Andrew: Is that what we're calling it? Okay. Well, good. Happy Cyber Monday. Happy 547th to you, Thomas.

0:01:27 Thomas: Yeah. Yeah. Yeah. Tell you what, big discount on this episode. It's use code, download it, and you get the episode. I don't know. That's all I got.

0:01:43 Andrew: All the way down to zero. You think we can afford that, Marge? Yeah, I think we could do that.

0:01:49 Thomas: Oh, good times. Well, uh, I hope we're all nice and well fed and questioning whether or not we need to go back on a diet after that holiday weekend, Thanksgiving weekend.

0:02:01 Andrew: You have a nice indulgent Thanksgiving? Thanksgiving.

0:02:04 Thomas: I'll be honest, I kind of blew it. I was in charge of pies. Here's the thing, I'm good.

0:02:07 Andrew: Okay. All right.

0:02:08 Thomas: I'm a good baker. I do the baking around here, but it's a new oven and it doesn't work right. So, you know, cause we just moved. So like the oven, I blame the oven. Like I, cause I did everything, everything said I did all, I followed all the directions and it just didn't bake right. Like the bottom was raw. Like, I don't know. So I. Since we've moved here, nothing has baked right in it. So I'm going to go ahead and plead the fifth of the oven, plead the oven and uh, yeah and So I'm really sad about that, because from my perspective I blew it and ruined Thanksgiving, but everybody else was happy, it was fine. So how about you?

0:02:34 Andrew: A fifth of the oven. Okay I Had a very nice kind of, you know, quiet, small Thanksgiving. We, again, we had the goose. You know, we wound up still having like 11 different side dishes because, you know, everybody's like, well, you can't, you know, you can't not have stuffing. That was me. You can't have mac and cheese. That that was my wife and my sister, a lot of people on social media were like, really, mac and cheese is a Thanksgiving side. It has always been a family side for as long as I can remember. And, you you know, it kind of fits in with the carbs.

0:02:58 Thomas: So That is not a thing for my family. Is that a like a Midwestern type thing, or? I Just, just to be clear, I'm not criticizing it, I was just, I'm curious about the, the different traditions that, like, seems to be somewhat regional. Like everybody's like, "What? You don't have, you know, like trout on Thanksgiving?" I'm like, I don't know. I don't. And that's

0:03:24 Andrew: Oh, yeah.

0:03:37 Andrew: I really, really want to do oyster stuffing because, yeah, you know what I mean? A historical kind of thing. And I like oysters. And every recipe I see for it looks kind of borderline disgusting, too. And that really appeals to me.

0:03:53 Thomas: Your kink.

0:03:53 Andrew: Like, Yeah... That is 100% my food kink, is uh you know borderline disgusting recipes I

0:03:54 Thomas: Yeah. Yep. Eggnog aged 40 years. Doesn't even, didn't even know you could age it. Shouldn't have gotten you started.

0:04:03 Andrew: Alex Alex is insisting in fact when we're done this record we are going out to both the grocery store and the liquor store because uh we had to throw away the last uh of the now uh eight year aged eggnog and Alex was like, "we're gonna going age some more eggnog," right, and I'm like, "okay, all right, I guess we are so

0:04:24 Thomas: It Jeez. That eggnog is half his age oh well, not quite anymore, but that's been that's for him to - him, it's been like, man, man, my childhood, you know, my whole, my whole adolescence was in that egg disgusting congealed thing that

0:04:25 Andrew: Yeah," he's 19 now so yeah, no, it's it's been Q - oh, we need this to be a video podcast. We'd be like, you know, just just scenes of like Alex, the eggnob, like skipping through the meadows, like playing soccer together, you know.

0:04:39 Thomas: Yeah. Well, enough about all this, people want to hear some law, but one more announcement, the q a on Tuesday about, you know, everybody hears this at a different time because I get out earlier for patrons, just FYI, early and ad-free for patrons but that's Tuesday, November 30th at 4 p.m. Pacific, 7 p.м. Eastern. We'll be on YouTube. We'll throw that link out on all the social media, on the Patreon, everything. Join us, and by the way, if you're a patron, hop on that Q&A thread and ask away, or as important as that is, look through the questions and hit the heart button on the ones you want to hear Andrew answer. I do absolutely use the heart button as an indicator of how many people want to hear which question, and since there are so many, it's good to get them kind of filtered in that way so that we're answering the ones that the most people want to hear in the time that we have. So go do that.

0:05:39 Thomas: So, Alex Jones I have a lot of questions, Andrew, about Alex Jones, because he seems to be I know you want to talk about the Fifth and we're going to talk about him taking the Fifth, but I want to first ask you, why do I keep seeing headlines that he keeps defaulting on all these judgments? My understanding is like that's just him failing to do something, right? And it seems weird that it would be whatever's happening, for for some reason, it's better in Alex Jones's mind, I guess, to lose the all these lawsuits rather than to even like put up a defense and or something. What's going on there? Help me understand it.

0:06:14 Andrew: I, will, and and I, I will add that Alex Jones has spun this in in his world, uh, and listeners, if you have an uncle Frank that listens to Alex Jones, a, our deepest sympathies, uh, b, this is a real easy way to demonstrate to uncle Frank that a Alex Jones is mendacious to the very core, right, like, again, should not be a hard challenge, but uh, but but but this is an easy one. Alex Jones is spinning this as, "see, the judges just don't want me to be able to go before a jury," right?

0:06:48 Thomas: Yeah.

0:06:49 Andrew: And I guess that is technically correct, not as the best kind of correct, that two separate judges in two separate states have now imposed default judgments against Alex Jones, right, judgments as a matter of law that technically prevent him from going to the jury because the judge has said, yeah, no, you are liable as a matter of law. Here's how this happens. And here's how both of these cases have happened. We have talked about during the pretrial process, the parties engage in discovery. And discovery consists of you sending over requests for documents, requests for admissions, interrogatories, specific questions. And then you you wait for the other side to answer them. And the other side will say, okay, we're going to give you some of these documents, but not these.

0:06:49 Thomas: Yeah, sure.

0:07:35 Andrew: We're going to give all of these. The answers to your questions are this, this, and this. We are not going to answer that question, whatever. The parties wrangle that out back and forth. And if one side is being manifestly unreasonable, and that really is the standard, like judges hate adjudicating disputes on discovery. We've talked about that on the show a lot. But if one site is just like, nope, not going give you those, then what you have to do is you have tee up a motion to compel. That motion to compel actually goes to the court and it says, look, we have a right to this kind of discovery and they're not giving it to us. And that's what's happened in Alex Jones' cases. And in both of those cases, the court has been like, yeah, Alex Jones, you're refusing to turn over core documents that are relevant to the plaintiff's case, uh, turn those documents over, and Alex Jones has been like, yeah, we're not going to do that.

0:08:27 Andrew: And so at the end of the road, right, like, and again, courts have kind of wide ranging powers to enforce their contempt orders, um, but one of the things that they can do in a civil case, right, they certainly could, oh gosh, I kind of wish they would since he's now a serial offender, like, like you could hold Alex Jones, you could refer him out for criminal contempt charges, and right? I wish one of these judges or both of these charges would do that and put him in jail for failing to do that.

But in a civil case where the remedy is money, right, typically what you do is you say, okay, well, if you don't, then I'm just going to enter a default judgment for the plaintiffs. And that's what the courts have done. So I love the predicate of your question. Whatever these documents are, they are so harmful. They are so terrible that if the public were to get a hold of them, it would be worse than Alex Jones just essentially pleading guilty to the full amount that the plaintiffs want. He knew he was advised on multiple occasions like, Like, dude, this is a standing contempt order. This is a Standing Motion. You have to turn these documents over. And they were like, yeah, but do we, though? And so

0:08:51 Thomas: Yeah yeah.

0:09:08 Thomas: And

0:09:39 Andrew: That is, yeah.

0:09:40 Thomas: The judges are like, yes. So you lose. Wow.

0:09:42 Andrew: Yeah. So you lose, you get nothing.

0:09:44 Thomas: So that's how. Now, so as the as the great liar, liar quote that we once had here, he's not turning those in because they'd case. No, be be terrible for his cause.

0:09:54 Andrew: That is exactly right.

0:09:55 Thomas: Or whatever it is is so bad that he'd rather just lose these suits and pay the money that I guess he has from selling all the boner pills. And, and, you know, I shouldn't say that, there's nothing wrong with selling boner bills, selling, selling all The Like weird. Weird, yeah, like Testosterone-y questionable supplements that probably, you know, turn, who knows, turn him red. I don't know what they do. So he must have enough money there or doesn't care or he can crowdfund or whatever so that it's more worth it to him to just flat out lose these default judgments than turn over that evidence.

0:10:07 Andrew: Yeah. Medically approved boner pills, by the way.

0:10:28 Andrew: Correct. Correct.

0:10:29 Thomas: I don't know what that could even be.

0:10:30 Andrew: If the evidence made it such a slam dunk that additional victims would bring additional lawsuits, I mean, like, I, it's hard to imagine, but yeah.

0:10:39 Thomas: So that is Amazing. Now that you have answered that question, which I really appreciate it, can we answer the other question we're seeing that he's going to plead the Fifth in Congress? Some people say you can't do that. Some people Say you can. What's happening?

0:10:52 Andrew: Can't. So Alex Jones has said, uh, in response to getting a subpoena from the One Six congressional committee, uh, that he will plead the Fifth. I have also seen a Newsweek report that says Roger Stone will do the same thing. But I've seen no other reports. And Newsweek is a garbage outlet, right? It is no longer a reliable source. So I can't say that with certainty about Roger Stone. People have asked, is that the same thing that Steve Bannon is doing? Just like, oh, sorry, I say I'm going to plead the Fifth, and therefore I don't have to show up. That is not the case, right. When you want to plead the 5th in a congressional hearing, you have to show up. You have to be sworn in. You're under oath, so you are potentially guilty of perjury if you make false statements.

And they get to ask you the questions, and on a case by case basis, you have to assert that: "respectfully, I decline to answer on the basis that any answer I may give may tend to incriminate myself." Right, uh, and by the way, like there are lots of good lawyer's tricks you can pull here, and I'm going to talk about what some of them are.

So, uh, my understanding of Alex Jones saying that he will plead the Fifth means that, unlike Steve Bannon, he will show up before the committee. Um, and I think that is a partial victory, right, like, it, we have moved from, you know, uh, people in Trump's orbit saying like, "yeah, well, it's not like laws apply to me because, you know, my guy controls the strings."

0:11:25 Thomas: Hmm.

0:12:17 Andrew: And that was true when Trump was in office. Trump is no longer in office, his guy no longer controls the strings, the buck no longer stops with Bill Barr. You know, it stops Merrick Garland, who was willing to refer out a criminal indictment of Steve Bannon for doing that. So let me answer your question. Why can you assert the Fifth Amendment at all in testimony before for Congress? And the answer is because textualism is stupid and wrong.

0:12:41 Thomas: Whoa.

0:12:42 Andrew: Because think about what the Fifth Amendment says. This is a really, really smart question. And this is the kind of thing that, like, you used to have to answer as a lawyer, and everyone would understand why, like, 20 years ago, before, you know, the Federalist Society completely destroyed our profession. Relevant clause of the Fifth Amendment says, no person shall be compelled in any criminal case to be a witness against himself. And so if you're just looking at that going, well, the good old Neil Gorsuch, like the words mean what the words means, plain language, you would say, well this doesn't appear to be be a criminal case.

0:13:15 Thomas: Yeah. Mm hmm.

0:13:20 Andrew: So why do you get that? Because you just read it literally. It wouldn't apply to congressional investigations. It would apply to pre-indictment grand jury investigations. Your grand jury should be able to subpoena you, make you show up and ask you the question, hey, did you do it? They can't do that. It wouldn't apply in civil cases. But all of that would be stupid if that were the case, because then it would be trivially easy to circumvent the protections of the Fifth Amendment, right? Every time we wanted to force a confession out someone, you would just trump up a civil suit, get somebody to sue them or have a congressional or a state investigation or have

0:13:27 Thomas: Yeah. All right.

0:13:58 Andrew: Them appear before the grand jury. So look, that's been known pretty much since the founding of the Constitution. And again, consistent with my view of how you interpret these provisions and not consistent with textualism, originalism. But I want to refer Because there's sort of an interesting corner case. I want to refer you to a 1924, right? Those halcyon, ultra-liberal days of 1924 when a super conservative Supreme Court decided a case called McCarthy versus Arnstein. And what happened here was – we've only had bankruptcy courts for like the past 50 years, their creation of the 1970s. Before that, bankruptcies were these weird – like there was a federal law of bankruptcy, but it was adjudicated largely in state courts.

0:14:47 Andrew: There was just sort of all of this conflicting stuff. And by the way, none of this is relevant anymore, so I don't really know what – there were a bunch of federal statutes that did things. Again, it's all been superseded by bankruptcy courts. So don't know a whole lot, for example, about the Bankruptcy Act of 1898, other than it was an act of Congress that appointed special commissioners who could then subpoena you when you were a bankrupt. And you would then be required to turn over documents, documents related to your assets, and answer questions of the special commissioners. And that gets us to Arnstein. So this is 1920. And he was, by the way, an involuntary bankrupt. And so in 1920, I mean, you could imagine that probably meant that like, you know, he was late on one of the payments for the gas mask he was renting to, you know, work himself to death in the coal mines or whatever.

0:15:43 Andrew: Right. But but so he was an involuntary bankrupt. He was subpoenaed by one of these special commissioners. He turned over his documents. He answered some of their questions. But again, you know, case by case is how you do it. But on others, he refused. And he said, "I declined to answer the question you're asking on the grounds that anything I say may tend to incriminate myself." Why would he do that? Probably tax fraud, right? You know. Yeah.

So he says, look, yeah, I'm not going to answer to tax fraud here from this special commissioner dude. What do know, right? What do I care? Um, was held in contempt, in jail, and then petitioned for writ of habeas corpus that went all the way up to the Supreme Court. And by the way, this is what we should make Steve Bannon do, but, um, that's a slight digression. But anyway, um, and so the question before the Supreme Court was, can you plead the fifth before a special commissioner, commissioner of the bankruptcy statute of 1898, right? Not, we're only, not in a criminal case, we're in a case at all, right? Like, we have a congressionally created special commissioner asking you questions, um, and, uh, our ultra conservative Supreme Court was like, well, duh, of course you can assert the fifth here. And they said, quote, "The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used.

It applies to civil and criminal proceedings alike, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it protects one who is a party defendant. It protects likewise the owner of goods which may be forfeited in a penal proceeding."

0:17:16 Andrew: And then they answer the question of like, yeah, but what if Congress really, really wants to get the information, right? And the court was like, well, yeah, then you just immunize somebody. It's super easy, right? "If Congress should hereafter conclude that a full disclosure of the bankrupt estate by the witnesses is of greater importance than the possibility of punishing them for some crime in the past, it can, as in other cases, confer the power of unrestricted examination by providing complete immunity." So what does all that mean? It means, for example, in the pending civil suit against Kyle Rittenhouse, you can compel him to testify, right? Because he no longer has any potential criminal behavior for which he might be liable, so, right, he can't take five. Could compel Alex Jones to testify if Congress were to say, grant him blanket immunity for anything in connection with his testimony.

0:18:12 Andrew: Now, I don't know that they will do that, but they could. That's what taking five is. And then to kind of, this and wrap this back up with the question with which you began the segment, people like to sue Alex Jones because he's an idiot and he has a lot of money and he breaks the law all the time. One of the things that is interesting is, in some states, put a little asterisk, and in the federal system, you can sue somebody civilly and instruct the jury to take an adverse inference from the fact that they've taken the fifth, okay? Not in every state, and I'm going to read you, real, a prominent exception in a minute, at a criminal trial, right? If Kyle, and this one, we talked about this, for example, in the improper questioning by the prosecutor, there's certain things that you can't even hint at, right?

0:19:03 Andrew: And so when the prosecutor started to ask Kyle, like, well, how come you haven't told this story before today? Like, the judge went apoplectic because you cannot comment on a defendant's post-arrest silence, right, they have the absolute right to remain silent. Similarly, you have the right to plead the fifth, and had Kyle Rittenhouse not not testified, the prosecutor could not have gotten up and said, well, it's kind of funny we didn't hear from the defendant in this case, isn't it? You can't do that. Part of having a right means you cannot tell the jury that they should put you in jail for exercising that

0:19:30 Thomas: Yeah. Yeah. Yeah, someone can't use your exercising your rights against you. Otherwise, then it wouldn't be a right. It would be something you could do with a bunch of consequences.

0:19:41 Andrew: Right.

0:19:51 Andrew: Yeah, that's exactly right. But now that's not necessarily the case in a civil trial. Trial. And different states come out different ways as to whether, because remember, all you're talking about in a civil trial is who owes who what money, right? You're not talking about a burden of proof beyond a reasonable doubt. You're talking about an infringement of liberties. And so some states have sensibly said, yeah, we would not want you to have to give testimony in a civil case that could implicate you in a later criminal case. But it's relevant to that criminal case to know that you've said, may have engaged in criminal conduct, right? We think the jury ought to know them. And that, by the way, is the default rule. Now, lots of states have statutes to the contrary.

0:20:38 Andrew: One of them is the state of California. And California Rule of Evidence 913 says, "If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or refuse to disclose or prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon," right? So neither the judge nor any of the lawyers can say anything about it. "No presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or to any matter at issue in the proceeding." That is as broad a language as I have seen on this part. And in fact, it says, that's 913A. 913B says, "The court may, at the request of a party who may be adversely affected because an unfavorable inference may be drawn, shall instruct the jury that no presumption arises because of the exercise of the privilege," right?

0:21:36 Andrew: So in other words, if you have testimony that even kind of hints at Like, hey, but, you know, that deposition got ended rather quickly, didn't it? Right. Like then then you can ask. And if the judge determines that it that it might be the case, they are required to issue an instruction that says you may not, for purposes of this case, draw any inference from the fact that the defendant invoked his his or her Fifth Amendment right against self-incrimination. So, so there you go. That's how the fifth amendment interacts with civil cases, congressional hearings, all kinds of stuff.

0:21:45 Thomas: Yeah, yeah. Okay, sounds like, uh, as to answer your, Alex Jones will, uh. Be able to plead the fifth, but you're predicting that he might actually, we might actually see him do it.

0:22:18 Andrew: If everything he said now, look, Alex Jones may, who the hell knows what Alex Jones is going to decide to do, right? He may reverse himself tomorrow when his lawyers say, you do know taking the fifth means you've got to show up and assert it on a case-by-case basis, right? Um, he may decide, uh, you know, to take the Steve Bannon route, but right now Now, if that is an informed opinion and if he sticks with it, that will mean showing up and answering questions and asserting with that phrase what I've described.

And by the way, that means that if he accidentally testifies as to something, you can't testify as to something and then take the fifth when asked question about it, right? So one of the legal tricks that I would do is I if I were benny thompson I would be contacting the knowledge fight guys right now and be like uh can you load me up with like load me up with 20 or 30 clips of Alex Jones on his radio show, you talking about the one six commission, so that I can play that and ask him, you know, sir, is that you?

0:22:27 Thomas: Yeah.

0:23:21 Andrew: Do you stand by the statements here?

0:23:22 Thomas: Well, but based on Our Lot Awful depositions, we know that Alex Jones is actually really good at this. He'll be like, "I don't know that recording." Morning, what I can't hear it. I, there's something in my ear, I don't know what you're saying. And then just time will run out and then he'll just leave.

0:23:30 Andrew: I know. That's right. Mean, that's why if you think, and that plug, we had a lot of fun with the Alex Jones deposition on a past lot of awful movies. Smart. And if you want to trap him, you're to have to trap him on something it's self-interest, not just like he's a doofus.

0:23:50 Thomas: If by smart, you mean able to act dumb really well, which I, you know, I don't know that that means you're particularly smart, you're just good, you have a certain set of skills, you're able to acts dumb incredibly uh Yeah, all

0:24:03 Andrew: Yes, he has a unique set of skills. Let's say that.

0:24:06 Thomas: Right, well, we'll look, uh, forward to that. Maybe we'll do a Lot Awful, uh, what would it be, not a deposition? What do you call it? Hearing? Loud, awful hearing when he gets up there. Opening Arguments is brought to you by Talkspace. You know, some people might be afraid of seeking the help that they need with their mental health for various reasons. Maybe you're afraid of opening up to somebody. But I just want to say, as somebody who has gone through therapy and highly recommends it, that's that person's job. And that's the beauty of it. That's a good thing.

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0:24:13 Andrew: Law and awful congressional hearings. Yes.

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0:27:38 Clip: Down the law, down the law.

0:27:41 Thomas: So already a bunch of more things to say about the Arbery verdict. First up, Andrew, I'm going to do essentially a Thomas was, well, I won't say wrong, but to blame. Yeah. So, So here's what's at, what happened in our last episode. It went for, you know, 89 minutes, because Andrew, uh, always has valuable things to say, and it's very, the only, the challenge is the editor of OA is to figure out like, okay, which parts of the valuable things Andrew has to say can I, like, can we maybe put aside, uh, so that, you know, the episode is close to an hour, which is around our target time. Uh, and I, so we went on a bit of a tangent on capital punishment, and I, I'm going to totally apologize to Andrew on air, because I left in his challenge, challenge. That was, hey, if anybody believes in capital punishment, go ahead and email me. But I, I took out the part afterward.

0:27:46 Andrew: Malicious evil yeah well

0:28:31 Thomas: It's a Thanksgiving prank. Is that a tradition? I don't know.

0:28:35 Thomas: It is now. You were the Turkey that I offered, you know, forth. Um, I left out the part where Andrew next said, and I shouldn't have done this. I apologize. Uh, even if I was going to edit the rest of it, I should have found a way to keep this in, which is don't bother emailing me if you're just saying you're philosophically in favor of the death penalty, but are not in favor of it, how it, you know, is carried out in the U S and, um, I edited that out and you got a bunch of emails saying exactly that thing. I want to apologize to you live on air. Sorry for doing that to you.

0:29:02 Andrew: No, no, but it's actually giving me an opportunity to say this, I think, more clearly than I did in the segment that we were, you know, sort of extemping and going back and forth on. And that is this. If you're writing in to say, well, I don't defend the current system of capital punishment, but I think philosophically you could have a criminal justice system that could impose capital punishment on the worst offenders, you're defending the current current system.

0:29:31 Thomas: Yeah.

0:29:31 Andrew: That's how it's written, right? And so the argument is that there is no way to write something that like translates your philosophy into a system that differs from ours in practice. And if you think there is, right, the onus is on you to come back and write that system. So right, if you just want to say like, well, I'm real mad, and I think that like some murders, you know, sure, right. But the problem is, is that the, the minute you try and put that into practice, it immediately devolves into the state will execute poor black people, which is what we have, right? And the reasons for that are 96% to 99% of all cases plea bargain. So, you know, you have a very limited system of trials. We talked about all this before you got it. And that evidence is instantly and easily available. So a challenge still stands, take a look at how the death penalty is put into practice.

0:29:41 Thomas: Yeah, yeah.

0:30:28 Andrew: And if it's just like a philosopher king could impose the death penalty, I will tell you what I have said now in six email responses that have come in in the past day. And that is, I would encourage maybe a little bit of epistemic modesty on the deontological point, right? Like, and I would want to look around and go, if that is such an obvious point, the kind of Kantian retributivism, why is it that every other major nation on earth has come to the opposite conclusion, maybe it's not so obvious. So that's it, still write in, I still want, I love the engagement, that's a little little bit more context

0:31:02 Thomas: I'm cutting all this and I'm just going to have you say, I'll just have you saying, keep writing in, love the engagement. No.

0:31:04 Andrew: And sometimes yeah.

0:31:12 Thomas: Right now to appeals, and Andrew was wrong, right?

0:31:16 Andrew: This is Stephen X. Davis wrote in to explain that my answer in the Rittenhouse bonus episode, in which, you know, the top line was, no, the government cannot appeal a criminal verdict. But he wrote in to point out my, that answer was a little bit misleading, and he's 100% correct on that. And then I want to couple that with the argument with respect to appealing sentencing that came out in our discussion of the Christopher Belter rapist case. And you put that together, and he said it sounds like it's almost exactly backwards. And I think he's right on that, so I want to use that as an opportunity to do what Andrew was wrong and to clarify. So, rule is, as we said, that the state can appeal in criminal cases only on the merits in very, very limited circumstances, right?

0:32:09 Andrew: And the example I gave was appealing the exclusion of evidence, What right. I did not say, what is a critical, crucial omission, and I own up 100% to that, is that all of those appeals must be interlocutory? That is, you have to appeal them before the trial begins. You can't wait, lose, and then appeal, right, and they didn't say Right. But I didn't say anything.

0:32:35 Andrew: Right? So that's 100 percent. And that is on me. And right? The reason is, again, the way in which both the statute reads and most state statutes is you may make that interlocutory appeal, at at any point before jeopardy attaches, because at the moment that that does, then double jeopardy, right, your protections against double jeopardy would come into play, right.

0:32:34 Thomas: Yeah. I Was wondering About that, okay.

0:32:59 Andrew: Yeah. And you know this from one of the bar exam questions from way back in the mists of time, right that jeopardy attaches in a jury trial when the jury is sworn in.

0:32:59 Thomas: Yeah. A Couple Of Them Right. When The jury Sits Right. And

0:33:11 Andrew: Yep. Yep, that's right. And in a bench trial when the first witness takes the stand, So you have to Make a determination at the time that says, yeah, this is egregious. Then the state has to also sign. This is typical procedure. They have to swear out an affidavit that says we're not taking this appeal to delay the case. We think this is, uh, meritorious, um, and then you wait, and there's a, there's kind of a quick time limit, uh, on how long the trial is put on hold, um, and then, uh, for example, in the Maryland law, uh, there is a rule that says unless this is a crime of violence, um, you know, know, you've now, as the prosecutor, filed an appeal in between kind of the end of discovery and what would otherwise be the beginning of trial. Well, there's a tension between that and your right to a speedy trial. And so one of the things that the Maryland law says, for example, this is 12-302C of the Maryland Courts and Judicial Proceedings article, is that if you are are not charged with a crime of violence,

0:33:11 Thomas: Yeah, okay. Gotcha.

0:34:16 Andrew: Then pending that appeal, pending resolution of the state's appeal, the defendant shall be released on personal recognizance, So right? In other words, you can't use appealing an evidentiary ruling as a way to keep somebody who was on trial in prison. And I think that's great thing, So, you know, exceptions for, you know, if they're violent and, you know danger to the community. Um, but if it's a nonviolent offense, uh this illustrates, I think some of the problems with pretrial detention we have in this country. Um you know it could be a nonviolent criminal offense. The judge could say I think you're a risk of flight, uh therefore you know I am sentencing you to pretrial detention or I'm sentencing to you know bail of a million billion dollars, uh knowing that the defendant can't possibly post that. In Maryland, for example, if the state is pursuing an interlocutory appeal of an exclusion, that person has to be let out on personal recognizance. So that's another kind of deterrent to that. So really, really good point. And that was the first half of Stephen's point.

0:34:36 Thomas: Yeah. Oh.

0:35:23 Andrew: Second half of his point is precisely the kind of point I would expect from a law student or a young lawyer. Stephen is one of the two of those. And that is, by contrast, the government is free to appeal from trial verdicts, right? And could get into a deep dive on exactly when and where. That's true as a matter of law.

Dismissed that in talking about, in taking about the Christopher Belter rape case because even if you have a right to appeal sentences, remember that what an appellate court is going to do is review that sentence. As we did say on the show, for abuse of discretion. And so if the statute says you can impose zero to 25 years in prison and the judge imposes zero, that's not an abuse of discretion. So where you see appeals almost always tend to be if the judge has, because the only thing that the appellate court can do is review de novo mistakes of law.

So if If the judge has screwed up application of the sentencing guidelines, if the judge has missed a mandatory minimum, right, the statute says you must impose a mandatory minimum of at least five years, things like that, that will provide the basis for an appeal. But again, in most cases, that gets taken care of, right? Right. Like if the judge just misses a line on the sentencing table or was unaware that X particular criminal offense carries a mandatory minimum, he would just move for reconsideration by the same judge. Right. You would

0:36:13 Thomas: Yeah.

0:36:58 Andrew: Not have to take an appeal and have the appellate court slap them down. You'd just be like, judge, you know, respectfully.

0:37:04 Thomas: You just, like, motion to clear my throat loudly.

0:37:07 Andrew: Yeah. No, that's that is what motions for reconsidering really are for. Right. Right? Like, therefore, yeah. So love the fact that listener, Stephen, kind of put those two together and was like, no, no. You can't appeal from sentences. You can't appear from verdicts. Totally get how he got that sense. I will tell you in practice, Right. You almost never appeal from either. But hopefully we've now kind of that.

0:37:15 Thomas: Yeah, yeah.

0:37:38 Thomas: Well, Remind me, don't you only, you have to like choose something really good because you only, only get one chance to try to appeal, you want to make it a good one, right? Or is that not, Is that just me as a non-lawyer not understanding something?

0:37:46 Andrew: Right. No, that's exactly right. And again, with all of the incentives that are kind of baked in to disincentivize interlocutory appeals, that is why they are incredibly rare. And again, the same standard is really applying here to the exclusion of evidence and the sentence. Both of them are going to be subject to the immense amount of discretion that is invested in the trial court judge. So, for example, if the law gives the judge discretion whether to exclude a particular piece of evidence, the fact that you really, really wanted the judge to include it as the prosecutor is not the basis for a really a terrific horrific interlocutory appeal because the public court is just gonna be like, why are you wasting our Time on this, right? This is a matter, like, the law says it's in the judge's discretion, that she exercised her discretion, she kept it out, uh, get back there and try this case right. And also remember that there is, you know, the same rule that's true with with with hung juries and and multiple trials, right?

If you are preparing to go to trial in three weeks and you have to stop, uh, because you've decided to appeal an issue, you know, up to, um, the, all the way up the chain potentially, um, that throws years of potential appeals unless, again, uh, you know, Maryland has a 120 day statute, but even 120 days, the, the right difference between having witnesses ready to go next month and then being like, okay, well, we're going to call you back, you know, five months from now is pretty significant. So all of that kind of combines to create the system where there are some technical legal rights for the prosecution to appeal in criminal cases.

0:39:28 Andrew: It's incredibly, incredibly rare. It generally does not involve, it cannot involve, I don't like this verdict. And it generally doesn't involve, I don't like the sentence. So I stand by what I said, but I love the opportunity to to to really clarify all of that

0:39:42 Thomas: So, Andrew, you had one more topic down for the Arbery story, and I wanted to introduce it by telling you about a post I saw. And I want to kind of get your reaction to it. I think it'll be related to this. I we made jokes about, you know, the system. Does it work? Does it not work? You know, last episode. And, of course, I think the conclusion was it works when it works and doesn't when it doesn't. And, you know, it's not, it's mess. But someone, I saw a viral post about, like, Arbery was not the system working, because don't forget, like, this first prosecutor, you, we had to go through two prosecutors essentially to get to the one that finally decided to prosecute, et cetera, et cetera. And the lesson of the post was the system doesn't work unless we're like vigilantly criticizing it and engaging with it and calling attention to these things.

0:40:28 Thomas: What do you think about that? And use that as an opportunity to talk more about that, process that the prosecutors went through in this case.

0:40:35 Andrew: I agree with the spirit of that meme and the degree of favoritism that that went on here is kind of astonishing. So it's worth going through. I will tell you the punchline, right? The initial prosecutor here, Jackie Johnson, has been charged with a felony, was indicted last month and turned herself over To police yesterday, right?

0:40:55 Thomas: Wow. Related to the handling of this or something unrelated to.

0:40:59 Andrew: 100% related to this case, right? So, Um, so let's talk about what happened. Uh, the prosecutor here was Jackie Johnson, uh, and the instant that this case, uh, came down, uh, Jackie Johnson did in fact recuse herself from the case. So you're like, okay, well, that, that seems like the right thing to do, uh, and that is her principal defense was, hey, I said there was a conflict of interest. What was that conflict of interest? The fact that one of the defendants, Greg McMichael, the father of the shooter, had worked in her office and retired less than a year previously, was he an investigator? And by the way, phone records show he called her and left a voicemail, soon after the shooting.

0:41:02 Thomas: Wow. Wow.

0:41:41 Thomas: So, yeah, when you talk about the system not working, the people who are in the system are apparently the same people that the system needs to convict of a racist murder sometimes or.

0:41:50 Andrew: And, and, so he called his old boss and was like, hey, I kind of like to talk to you, right? Um, and then, uh, Jackie Johnson, uh, said okay, well, I'm gonna recuse myself, uh, but I'm going to recommend, uh, uh, the, state district attorney's office, um, who they should bring in to prosecute this case instead. And that was Waycross judicial circuit district attorney George Barnhill. Okay, so she said, hey, uh, I'm out, but you should, you should, that, you know, there's... there's a great, uh, prosecutor in, in Waycross, um, and you should bring this guy in, George, right?

But it turned out, uh, that the day after Arbery's murder, Barnhill, that the would-be prosecutor, told police there were no grounds to arrest McMichael, the son Travis, or the neighbor Brian, right? All three of whom were convicted, right. Weeks later, he again went to the police and this case, when this evidence came out, and he said, all right, well, I guess I'll recuse myself as a prosecutor here, but went back to the Police and said by the way, these suspects, Yeah, you know, you can, yes, I expressed an opinion, but it is my opinion as a lifelong prosecutor that, quote, these suspects were carrying out a valid citizen's arrest and Arbery grabbed Travis McNamichael's gun and, quote initiated the fight, end of quote.

0:41:55 Thomas: Yeah. Wow.

0:43:07 Thomas: So why isn't he being indicted? You said the first person's.

0:43:10 Andrew: That's a really, really good question. And I don't know if they have impaneled a grand jury in his case as well. We only know grand juries are secret. We only know when they release an actual indictment and um I will, I have uploaded to our, our website, because I have found a copy of uh the indictment against Jackie Johnson. Um, by the way, in connection with all of this, uh, she, uh, lost her, uh, re-election race in November of 2020 to an independent candidate. Um, and everybody agrees, right, that that, was a referendum, referendum, uh, on handling this matter. So, you know, you want one point in the "does the system work" category, that, you know, the fact that very publicly your uh your district attorney uh seemed to be uh covering for uh what could be and what have now been adjudicated to be murderers. Um, that, I'm very glad she lost re-election. So, um, she has been charged with two counts, uh, one is a felony. That is, violation of the oath of public office, quote, by failing to treat Ahmaud Arbery and his family fairly and with dignity when, after the shooting,

0:43:14 Thomas: OK, apologies.

0:44:13 Andrew: Said accused sought the assistance of Waycross Judicial Circuit District Attorney George E. Barnhill and, after disqualifying her office, recommended D.A. Barnhill to the Attorney General's office for appointment as the case prosecutor without disclosing that said accused had previously sought the, the assistance of D.A. Barnhill on the case, right? So in other words, that she recommended this prosecutor after having sought his assistance, right? Because that's how Barnhill wound up talking to the police the day afterwards, presumably the grand jury has found sufficient evidence. We don't know what this is yet, or at least I don't know what it is yet, uh, sorry, that would link Johnson to calling Barnhill on behalf of McMichael and saying, hey, uh, can you, you know, tell the police here to back off of this guy, uh, you, you shouldn't arrest McMicheal, and and the very next day, that is in fact what Barnhill did, and then after withdrawing her office, uh, she said, oh, by, by the way, she told the state's attorney general's office, oh, by the way, yeah, you should, this guy Barnhill's a hell of a prosecutor.

0:45:16 Thomas: Yeah.

0:45:16 Andrew: You should appoint him. And that seems to be a pretty good prima facie case for violation of oath of public office. That is a felony, carries one to five years in prison. She's also charged with a misdemeanor of obstructing and hindering a law enforcement office by directing the police, and I suppose that means indirectly through Barnhill as an intermediary not to arrest Travis McMichael. Again, I don't really care about that because it's misdemeanor case, right? With Rittenhouse, I'm not going to get out and play Lee Greenwood and wave the flag and salute when people who do terrible things, get, you know, convicted of a misdemeanor. Like that's nothing. But yeah, when we said, uh, the system went through some twists and turns, those are the twists and turns that the system Went through.

0:45:43 Thomas: Yeah, yeah, yeah. Well, and again, vindication for that post I was talking about, it does really sound like, you know, the system doesn't work itself. You know, we found that with the Trump administration, too. I mean, the things things don't do themselves like we are part of that system. And that is part of it. Working is keeping vigilance on it. And then often it doesn't works. But so,

0:46:03 Andrew: Yeah. Yep.

0:46:20 Andrew: That, but that is an excellent takeaway, keep vigilant, right? Be a part of the system.

0:46:23 Thomas: If, if she's guilty of a crime for that, do you think there's likely a case against the other person who the next prosecutor on line who actually was the one asking police to not do anything? It seems hard to believe that, you the first prosecutor would be charged with something for asking that prosecutor to do the thing. But then the second prosecutor isn't charged with something for doing the thing,

0:46:44 Andrew: I agree with you that that would be my intuition, but I mean, you know, now we are like, let's see what the facts show, right? I would think you would want to indict him as well, unless there's some really, really compelling reason, like, you know, it turns out that she was blackmailing him or something, right?

0:46:58 Thomas: Yeah, yeah, I'm a patsy.

0:46:59 Andrew: I mean, yeah. You seemed to have a pretty good prima facie case of collusion, right? Of, oh, everybody knows these guys. Let's ease off on them. And again, tie back into our episodes on critical race theory, for example, way more likely to have those kinds of connections if you're white than if you are black. And idea that you would deny that and then have to force people not to teach those basic things in order to allow people to maintain – I mean, that's the only way that you could otherwise allow people to maintain a position that otherwise collapses under any amount of scrutiny.

0:47:00 Thomas: Yeah. Yeah, Yeah.

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0:50:32 Thomas: X Chair has a 30-day guarantee of complete comfort, and you can finance your purchase for as little as $25 a month. Go to xchairoa.com and save up to $500. One more time, that's xchairoa.com. All right, and last update here. A probation officer wrote in about the probation order of no porn, which, you I saw as really questionable. But, yeah, what did they have to say?

0:50:58 Andrew: Yeah, so this is a longtime listener, uh, somebody who's been in active law enforcement for 22 years in a rural state, and so has requested that we uh keep him anonymous. Uh, he he wrote in previously on uh Graham versus Connor, um, which was the uh the Supreme Court case about uh the uh proportionate use of force in an arrest, and said, uh, hey, I've taught uh Graham versus Connor to police cadets, um, and it wasn't until listening to your episode that I learned that Graham, the victim, was black and the police officers beating the crap out of him were white.

0:51:29 Thomas: Oh, yeah. Wow.

0:51:32 Andrew: So it was a really, it great. We've got at least one on the inside here. So anyway, Officer Rural writes, I have been a juvenile probation officer, juvenile detention officer, adult correctional officer, adult felony probation officer, right. Et cetera, et cetera. Then he says, as a longtime time practitioner in the system with experience supervising sex offenders earlier in my career, in my experience, banning sex offenders on supervision from viewing pornography is a common practice and traces back to sex offender therapy and the role that pornography, and here I will say, is alleged to play In the offense cycle. And this I did not know at all. The Association for the Treatment of Sexual Abusers includes not having access to pornography as one of their minimum conditions of supervision in the community, along with no unsupervised internet use, no using intoxicants, no unsupervised contact with minors, and so forth. All of the courts that I am aware of require that sex offenders complete treatment with an ATSA-certified therapist. This is really, really interesting to me. So I didn't know about this. The status that I kind of knew about was that it seemed

0:51:36 Thomas: Yeah. Yeah, still

0:52:40 Andrew: Mind you, this is 1960s and 1970s, so I'm not saying cutting-edge research. I have I'm not up on that social science research right now. But it seemed like it was pretty much a settled question that there was, if anything, a slightly negative linear relationship between porn consumption and criminal sex abuse. And the idea there was that it was sort of an outlet theory? Like, hey, I have criminal sexual tendencies, then viewing it means that I'm less likely to actually do it. But that there was sort of no correlation between porn and sexual offense level. And then we had the Meese Commission in the United States, which was deliberately stacked with right-wing religious activists, was tasked with documenting the harm that pornography has caused to our society.

0:52:59 Thomas: Mm hmm. Yeah. Right. Of course.

0:53:32 Andrew: Yeah. We have read from some of that during your gaming live stream.

0:53:39 Andrew: And that was a joke, right? There was no scientific, academic, or legal rigor to that. So I had always assumed that this was kind of a closed question and it's very interesting to me to know that the Association for the Treatment of Sexual Abusers has that position.

0:53:53 Thomas: As you said, the evidence I think only goes slightly the other way. You know, I think the kind of conservative, conservative, you know, Christian theory would be like porn is so outrageous and so sinful that it gets someone worked into a lather and then they go commit crimes because of it, because they're so worked up because of all the sinning. It's like, if anything, I think it goes slightly the other way, not like a ton the other, you know, but like as you said, I think it's, it's correlated the other way, which is for, I don't know, some number of people it would be an outlet, you rather, rather than any sort of like inspiration to go commit more crime.

0:54:28 Andrew: Giving a yes and in connection with the religious objections, would point out that during the 1980s, third wave feminists like Catharine MacKinnon and Andrea Dworkin were often allies of the conservative religious evangelicals. And their arguments were, again, sort of that pornography was inherently degrading and so led to the objectification of women thereby encourage violence. And

0:54:56 Thomas: You know what, I'm not the scientist. Why don't I refer everybody to the actual scientist? Because on Serious Inquiries Only, Lindsay, psychologist, Dr. Lindsay Osterman, went through the actual evidence. And it's SIO 3, 10 and 11. I think 11 is more the porn part of that. But 10 and 11 were about what the evidence actually says on sex work, porn and all this kind of stuff and like whether or not it's correlated with any of these bad thingies that people think, you know, aggression or either hypersexual activity or like inability to have sex. It's like correlated with both of those in people's minds, by the way, which is contradictory, but maybe. But anyway, she went through the actual evidence on that. So if you'd like to hear real science and not just me trying to remember what she said, go ahead and listen to SIO 311 and 310 for that matter.

0:55:47 Andrew: And I I have listened to those episodes. I love your work and obviously love Dr. Lindsay Osterman. And so I would, you might say this is an extended plug to go listen to SIO 310 and 311. Those are good episodes. So

0:56:00 Thomas: All right. Thanks again for writing in. Of course, it is amazing the fascinating people we hear from.

0:56:05 Clip: And thank you, Let's go!

0:56:07 Thomas: Now it's time to thank our patrons, our Hall of Famers, our all-time greats. We are on the last quartile.

0:56:13 Andrew: Quartile.

0:56:14 Thomas: So Next month, looking ahead, we're back to the quintiles, so just FYI, and changing your patron names. I know it's a little tough, but patrons, maybe you have some idea of where you are, Hall of Famers, in the packing order. So in our final uh quartile for this month, our final fourth, which I guess is an octile because it's you and I combined, I'll start us off. Thank you to not that Chris Wallace, Jonathan, Jonathan Lord Kinbote. No, your honor. I am not a cat, nor am I a pod to plant, but I am a karaoke legend if that helps. Milo Meadsong wishes all Stephen Breyers a happy retirement. No effing kidding, that guy. I'm not a huge fan of Breyer. "Join your labor union together, we bargain. Alone, we beg." Thought of a clever name in the car last night, now I've forgotten it. This is the best headline in our favorite quartile.

0:57:03 Thomas: Alfred Wallace. Justice for Saint Javi Escueda, indicted for for felonies and retaliation, for whistleblowing police misconduct. Dude, wordorigins.org, your source for word and phrase origins. False, my witty names aren't original, and my original names aren't witty. Anonymous, RIP Notorious RBG, Malcolm the Dragon, the precious variant, Liz Weeks, Derek, reigning champion of Yodel Mountain Fantasy Football League, Big Easy Blasphemy, please don't read this on the pod, we don't need to call out things for what you do, a string of unpronounceable characters, and RhondaTheDork.com, Your turn, Andrew.

0:57:38 Andrew: And thank you to Malika Chandler, they said I could be anything so I became two princes who adore you. Soggy Pants. Terese Chan. Rest in peace, Buttercup Esquire, you died too young. And I have to take a slight uh detour since this is the Buttercup Legal Services uh folks who uh took, took the time, not only long-standing patrons, took the time to send me. We made the joke that Terpsichore crowdfunded a sports car for her birthday. They sent me a little model Lamborghini to my office on my birthday.

0:58:12 Andrew: And I neglected to mention it at the time. They sent be some adorable pet photos and just really great people. And I am sorry I did not mention the lovely gift which made me laugh. And it's a great little model Lambo. I've got it on display in my office. Thank you so much. So rest in peace, Buttercup Esquire. You died too young. Also, thanks to Adopt a Homeless Pet and Oppose Declawing and Ear Docking, Dejury Belly at Pack East at Last, Baby Heather, Elle, Matthew Vernon, Jeremiah's Fancy Microwave Emporium, Ian and Allie, Danny Rosari, Eli Bosnick is to change his patron name because Patreon gave up on his blog too. Oh, poor Eli. Adam Costa, Teresa Gomez, David in Brooklyn, Sam Donow, Mitchell. "The Foundation books are better than the Dune books, come at me." Well, those are like really the opposite spectrum of books, right?

The Foundation books are zero character, all high concept. I'm enjoying the Foundation series, though, by the way. This anyway, patron name was topical four weeks ago when I made it. "I hate the 2001 Alex Jones, but the super fake 2003 radio voice is unbelievably worse." Uh with you

0:58:11 Thomas: Oh, so sad.

0:59:18 Andrew: On that one, uh, Sam Buck. And of course, our all-time great, he who shall never be overthrown, but I, I think Sam Buck's making a good game out of this, Conrad Michaels. Can't

0:59:27 Thomas: All right. Thank you so much, top patrons. We'll reset the list next month.

0:59:34 Andrew: Wait.

0:59:34 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:59:40 Thomas: And now it's time for T3BE. Thomas takes the bar exam. Really curious. No confidence that I got the answer right. I'll tell you. Normally, I don't have to sit and wait so long to find out if I got the answer, right? Because, you know, we record these back to back. But given the holiday, we had some separation time. So I've been on the edge of my seat, Andrew.

0:59:58 Andrew: All right.

0:59:58 Thomas: How did this question go?

1:00:01 Andrew: So this is a real property question, usually the bane of everyone's existence. An owner who granted his real estate, quote, "to museums so long as the property is always used for museum purposes." He then died. He left a will that granted all of his estate to a friend. His only heir at law was a daughter, right? The museum then ended up closing after a downturn in business. The museum sold its property to a developer via quick claim deed. The developer wanted to use the land to develop a retail mall and brings an appropriate action to quiet title against the museum, the daughter, and the friend. Uh, the court should find that the title is now in which party. And the answers were the developer, the friend, of the daughter, or the museum. Um, first to a quick claim deed is when you assign all of your interests in a piece of property to someone else, right? So you just say, hey, that's it. I'm done. You get everything Everything I got.

1:00:56 Thomas: Okay. How is that different than the fee simple? Isn't it normally just like fee simple? Something interesting.

1:01:03 Andrew: So when you assign something in fee simple, you are taking an affirmative obligation that says, I own all of this property, and I am now affirmatively representing that we will enter this on the records, and you will own all of this property.

1:01:18 Thomas: Very Interesting.

1:01:20 Andrew: So Thomas, I'm going to cut to the chase here because I was literally giddy, like kicking my legs with enjoyment listening to you evaluate this question, which is a tricky, I will tell you, we got roughly equal answers of A, B, and C on social media, right? A tricky question for lawyers to answer, which I'm gonna explain in a minute. When you used the method that I had told you about, which is think of property as a bundle of sticks.

1:01:21 Thomas: Yeah. Yeah.

1:01:51 Andrew: And you said, so the owner grants out his real estate to the museum, so long as it's always used as a museum, you still have that stick of, but what if it isn't used as museum? And then when he dies, you get to decide what happens with your sticks. He gave that stick to a friend, and then all of sudden that condition happens, and that automatically invokes that stick. And so therefore, the correct answer is be the friend.

1:02:24 Andrew: You got it right, and you nailed it for exactly the right reason in a way that lawyers, law students missed. And the reason is because when you're a law student, when you'RE a would-be lawyer and you're studying for the bar, this comes up under the category of defeasible fee simple transfers, right? And you have to

1:02:02 Thomas: Yes. Oh man that was, oh wow sure yeah

1:02:45 Andrew: Memorize, is it a fee simple determinable? To Is a condition subsequent? Or is it a feesimple subject to an executory limitation, right?" And they're all super similar, and it's really easy to confuse them. A fee simple determinable is what this is, right? If I say it goes to the museum so long as it stays a museum, then that means it automatically reverts back to the grand tour it's no longer used as a museum. And you have a right. And that right is called a possibility of reverter. That's the stick.

And can you convey a possibility of reverter uh via deed yes you can in fact you can sell it right this is this is one of the things that's kind of interesting about it right like you could speculate on land and be like uh hey uh you know I granted this thing over here uh as a museum so long as it was a museum um you may notice by the way uh you know the museum has had like seven visitors over the last year so hey hey, developer, if you'd like to buy my possibility of reverter, I would be happy to sell that to you, right?

1:03:16 Thomas: That's the key, okay. That was yeah Uh-huh. Interesting

1:03:52 Andrew: So it's a stick. It's a property, right? You have it.

1:03:55 Thomas: That Was the key thing I was worried about. In, because the end, I kind of regretted that I didn't go B and C. I think my developer answer was was probably terrible. I think B andC maybe was better, because if, if it's not a stick, if it is more like, well, the museum actually owns everything, but then, so then, then the kind of the transfer happened, but then once the museum does not a museum, then it reverts, or whatever. I think you could, you could wonder if it just goes to the daughter because, you know, it went back to the owner, and the owner's dead. So the only heir.

1:04:27 Andrew: Me briefly kind of mention the other two possibilities here and how you might work through that, right. If something is a fee simple subject to a condition subsequent, right, then that reads reads almost exactly the same. You would say, I give this to a museum, but I give this to you, to the museum, uh, but if you no longer use the land for a museum then I have a right of re-entry, and then the question would be, uh did that right of rein- so in other words, you get to make a decision. Yeah, and, and does that right, if, if you don't specifically say, right, who gets to to exercise that right of re-entry in the absence of you know you no longer being alive right like you'd be like, okay, um, all right, uh, dead guy you're gonna re-enter. Nope, so there you go, all right, so it's it's cool, and so it would, for example, stay with the museum, which then would convey everything via quick claim deed to the developer. So, so, not

1:04:51 Thomas: Hmm. So that's not quite a stick then.

1:05:11 Thomas: Uh-huh. Ask his corpse. Yeah. Interesting. OK.

1:05:26 Andrew: A terrible answer, right, right, right,

1:05:27 Thomas: OK, yeah. OK. Yeah, there really was an argument for almost all of them. I am super happy. The bundle of sticks method trademark. Trademark. I'm guessing someone taught you that, but can we trade? Oh, a trademark bundle of sticks method worked our patented method. I'm over the moon about this. Why don't we hear who the other big winner this week? I mean, let's let's all be honest. I am the big winner. This week I get unending fame and fortune.

1:05:53 Thomas: Who will share in some of my infinite fame and fortune this week?

1:05:51 Andrew: You are Absolutely. I Like, like I said, we had a lot of people play, uh, the best, I think, one of the first and definitely the best winning answer, uh, comes from Christopher J Morigo, who writes, "B, that's it, that's the tweet. I have stuffing to eat." That was fantastic. Yeah. No, no, it's, it's, it's Thanksgiving. That's right, so, uh, everyone, give, give Christopher J Morigow a follow on Twitter. They, they are at Indicus MT, at I-N-D-I-C-U-S-M-T, and, uh, congratulations, Christopher J Morigo, for, uh, being this week's winner.

1:06:12 Thomas: All right, Sure, Okay, Fair enough. And And that is our show, so thanks so much for listening. Hope you enjoyed the Cyber Monday deal on our show. It goes back to full price of $0 to download it on Friday. So, you know, hope you enjoy the deal. Thanks so much for listening. We'll see you next time.

1:06:50 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.

1:07:24 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.