OA561: Why Ghislaine Maxwell Could Get a New Trial

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 561, I'm Thomas, and hopefully there's...interrupting dog. Interrupting Dog says what? We just had...how's it going Andrew, we just had a...I'm sad that we hadn't yet started recording because it would have been a great bit to keep in, but we great...we had a GREAT interrupting dog recording in...WOOP! I said recording in 3...WOOOOP!

0:01:25 Andrew: Hi. Thomas, I I am extra fantastic.

0:01:43 Thomas: 2...WOOOP! It was fun. Good bit.

0:01:44 Andrew: Oh, it was so good, it literally, like, Lily would just would not stop

0:01:49 Thomas: Tell Lily 10 out of 10, great bit. I laughed. But how are you doing today?

0:01:53 Andrew: Well, like I said, I began at fantastic, and then I just went up to 11 out of 10 based on the uh, the undeniable short-term hilarious trauma that I know that causes you, so I'm sorry, I'm sorry that I, I take joy in uh in your suffering, but

0:02:10 Thomas: No, that's genuinely funny. I like that bit. I'm good. You know, last episode, bit of a bummer. This episode, I think we have some good news. I hope anyway. You Know, I saw some good News on the interwebs and I asked Andrew, I said, please, please confirm this is good news and then if it is, I'm excited to talk about it and get the a full breakdown regarding Ohio and redistricting. I think, if the reports are correct, that we had a very good Ohio Supreme Court decision striking down some very unfair maps. Can't wait to hear about it. Should we just get into it?

0:02:11 Andrew: Okay. Good, uh, how you doing, we do Yeah.

0:02:47 Andrew: Let's, let's jump right in,

0:02:48 Thomas: All right. Tell us what happened. I think it's good news and I'm holding on to that and don't crush my dreams.

0:02:48 Andrew: It Is unreviewable, great news from the Supreme Court of Ohio, so, yep. I, that Amy Coney Barrett cannot screw this up no matter how much she wants to. Yeah, that's exactly right.

0:03:00 Thomas: Unreviewable, that's fantastic, so this Yeah. Unreview Able. Good news is like the new measure of good news, and in under this, you know, regime of the Supreme Court, like it's good news, but is it reviewable good news? Coaches challenge, challenge won't throw us off.

0:03:17 Andrew: So this case is league of women voters of Ohio versus Ohio redistricting commission. Um. I need to tell you at the outset, This is about the Ohio state legislature, right. It does not cover, uh, the districts for congressional office, right, so it does not help in our ongoing battles to, uh protect the house of representatives. Um, but look again, unreviewable good good news. Republicans have been slowly gaining in Ohio, have been turning that state more red. And they are attempting to do to Ohio what they've done to states like North Carolina. Ohio and North Carolina are in fact, Ohio is slightly redder than North Carolina right now, Which is sad, because you think of it as sort of a quintessential swing state. Ohio is, to the the best of our abilities, 54, 46 Republican right now. Um, maps that we're going to be drawing, well, we'll get into the math on the maps, uh, were designed to make it so that in an average election, uh, at that level, uh, Republicans would, would either or would come very, very close to having two thirds super majorities in both state houses.

And, uh, the Ohio Supreme Court, applying a provision added to the Ohio Constitution in 2015, struck down those maps and ordered them to draft new maps within 10 days, or else they will continue to review and probably come up with a series of sort of increasingly draconian requirements.

0:03:17 Thomas: Yeah. Okay. Huh. Yeah.

0:04:55 Andrew: So it's good in a bunch of senses. Right. Number one, this is not a state where Republicans were able to engineer kind of a permanent structural takeover, despite, you razor thin majorities that I and I consider maybe 54, 46 is not razor thin. But that certainly Is a swingy state. And, you know, to be able to kind of convert that into, nope, this is going to be a Republican stronghold at the state, at the State level, would have been a real setback for us. It would have added Ohio to the list of states like Wisconsin, right, where whatever – I mean, Wisconsin is a blue state, but Republicans have so gerrymandered their internal statehouse maps that policies of the state don't really match up with the identity of the citizenry. Right, going on? And the second thing I should, I should add that I think this is really encouraging is this is a story about how average people can fight back against Republicans, even in a Republican leaning area. So here's what happened. In 2011, the Ohio Supreme Court ruled in a case called Wilson v.

0:05:13 Thomas: Yep.

0:06:04 Andrew: Kasich that exact same way, sort of presciently predicting what the US Supreme Court would do, right? Right. To say that under the Ohio Constitution, as then written, it did not require political neutrality, creating politically competitive districts or representative fairness in the creation of state legislative districts. Right. So in other words, it was a hey, it's a free for all, you know, to the victor go the spoils your congressional districts the way you want to. And if they grossly benefit one party, well, you know, tough.

0:06:43 Andrew: Yep. And again, this was before this is 2011. So, yeah, yeah.

0:06:42 Thomas: John Roberts said that's okay, oh, Wow, so they were, they were gerrymandering before it was cool or what? Yeah.

0:06:51 Andrew: They were gerrymandering on vinyl, like we say. So as a result, in November of 2015, after a year of some grassroots organizations getting it on the ballot, Ohio voters overwhelmingly approved an amendment to the Ohio Constitution that replaced former Article 11 with a new version that we're to talk about, which established a new process for creating general assembly districts. Right. That amendment provided for the creation of a seven member redistricting commission composed of the governor, the auditor of state, the secretary of state. One person appointed by the speaker of the House of Representatives, one person appointedby the House minority leader, oneperson appointed bythe Senate president and one personappointed by the Senate minority leader. So in a year in which the Republicans, like now, control the governorship and the state legislature, you will wind up with a 5-2 partisan majority, five Republicans, two Democrats.

0:06:53 Thomas: Okay.

0:07:49 Andrew: But nevertheless, better than the previous version, which was just whatever the state legislator comes up with. So really important things are that that ballot amendment in 2015 added Section 6, right? So it did a bunch of different things to Article 11 to talk about creating a new commission, and then it added in a section called Additional District Standards. And I'm going to read the full language to you because it comes up in the case. So it says, the Ohio Redistricting Commission, the one that we just described that is presently 5-2 Republican, shall attempt to draw a General Assembly district plan that meets all of the following standards. Standards. A, no General Assembly district plan shall be drawn primarily to favor or disfavor a political party.

0:08:41 Andrew: B, the statewide proportion of districts whose voters, based on statewide federal and state partisan general election results during the last 10 years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio. Put a pin in in that. And C, general assembly districts shall be compact. So in addition to kind of all the regular, this is, you know, administratively how you redraw districts, it gives you three aspirational goals. Compactness, right? That is, again, what I think the average person thinks about when they're thinking gerrymandering, right, like does this look like a long, thin string that tendrils out in a bunch of different directions? Or is it, you know, kind of a circle square polygon kind of thing?

0:09:27 Andrew: Not being drawn for political advantage and, uh, defining that, um, matching up on a statewide proportion of districts, something that generally matches up to how the election results have occurred over the last 10 years. Now, Thomas, because this becomes an issue in this case, if I say, the Proportion of districts should be based on statewide state and federal partisan election results and shall correspond closely to the preferences of the voters of Ohio. Um, how does that, knowing that, for example, uh, there are 99 house, State House of Representative seats, and 33 Senate districts. Um, if, if I tell you that the percentage over the last 10 years in Ohio, in all of their state and federal elections, is 54, 46 Republican. What does, what does that seem like it should be to you?

0:09:47 Thomas: Yeah.

0:10:16 Thomas: Well, It's Not a straightforward question, as we've discussed, you remembering, remembering from our conversation about California, and remembering, too, that California has a pretty robustly fair process. 2020, the percentage was, was close to like so like sixty four, thirty four ish. And I guess there was a third party candidate or something. So definitely way more than this, but like not ninety nine to one or anything for California. And in a 64% to 34% state, get something like 46 Democratic seats and seven Republican seats, which is a, you know, that's a massive. So that percentage wise, that is close to what, like 90% Democratic or something. I think so. Like the point is, and that's, again, that's under districting that we know is quite fair. So it's not a straightforward question of like, it should be 54% Republican seats and, you 46% Democratic seats. It's not actually that straightforward because as we talked about, if you make every district, for example, every district 54, 46, then it could be a hundred hundred percent Republicans to zero percent Democrats. So there is a lot of there's a bit of play in the joints.

But if I were to guess using this kind of like it's almost like some scale of, you know, I'm not I'm Not exactly sure what the what the graph would look like. If you that would be an interesting thing to look at, like under fair districting, what what spread produces how many seats for each party, you Know, but So if I'm looking at 99, that's close. We'll just assume, you know, round

0:10:59 Andrew: Yep. Yeah.

0:11:49 Thomas: Off to a hundred. I would say it should be something, you know, with this spread like this, I think fair could be, could be as much as like 80-20, honestly, Republican to Democrat. That would be like my guess based on how these things tend to work. But I don't know if I's gonna, hopefully that works within your planned response here. I don't know.

0:12:08 Andrew: No, I, I like it, because here is the statement that the five, two Republican commission came up with. After considering the results of 16 statewide state and federal partisan elections in the preceding 10 years, the commission determined that Republican candidates won 13 out of 16 of those elections, resulting in a statewide proportion of voters favoring Republican candidates of 81% and a statewide portion of voters favored Democratic candidates of 19%.

0:12:35 Thomas: Oh, wow.

0:12:36 Andrew: Yeah. So so

0:12:38 Thomas: Okay. Well, but I mean, but if that' unfair or wait, are we saying that' unfair though? So is my guess wrong?

0:12:42 Andrew: That that's well, your guess is where they began. Right. They said, look, we're going to look at the results. Republicans won 13 times. Democrats won three times. That means the outer bounds is 81 to 19. And so as long as our maps are somewhere in between 19% Democrats and 46% Democrats, we comply with that standard. Now, again, I also like the way you pointed it out because imagine a I call it Arizona, right? Say it's a true toss-up state. But let's just imagine through bad luck or bad candidates or Kyrsten Sinema, right, 51, 50.1% of Republicans won

0:12:46 Thomas: Okay. Yeah. Okay. That' fair.

0:13:23 Thomas: Yeah.

0:13:24 Andrew: 16 out of 16 out of the last elections.

0:13:26 Thomas: Yeah. I mean it' possible.

0:13:27 Andrew: It certainly is possible. Right. Um, so then you would say, okay, well, so long as zero to a hundred percent favor

0:13:29 Thomas: Yeah. Yeah. Yeah. That doesn' t give you much of a good bound for what you' re looking at. Yeah.

0:13:35 Andrew: Republicans. Yeah. Yeah. So, um, the Ohio Supreme court had to consider whether a map with that kind of certification, um, that, uh, we will talk from a practical perspective, um, would hand a two thirds, uh, majority. If, if, if Ohio Republicans got 54% of the vote, they would get a two thirds majority in both houses. And So, uh, I actually think that, that the way in which I would push back on the California comparison, as I would say, I think you said said logarithmic and I think that's sort of the right thing, that like once you get roughly above like the high 50s, it starts, I think, kind of rapidly moving in the direction where it's very, very hard to draw districts that even fairly and in the abstract, um, you know, that would uh give any minority representation at all, right?

0:13:58 Thomas: Sounds Eh, about right.

0:14:15 Thomas: Mm-hmm.

0:14:29 Thomas: Mm-huh.

0:14:30 Andrew: So you know, I compare that to like Alabama and Maryland, right? Like it is possible. We've talked about, you know, Maryland, like it's possible to gerrymander Maryland, uh, two to one state.

0:14:40 Thomas: To 100%. Yeah.

0:14:41 Andrew: Yeah. To 100%. It's possible to gerrymandering Alabama, right. To a hundred percent Republican. Um, and I think that intuitively, like probably one Republican seat in, in Maryland, one democratic seat in Alabama, somehow that seems more in line with a state that's two to 1.

0:14:42 Thomas: Yeah.

0:14:56 Thomas: Well, yeah, because, and that's what I think, I think California's new rules are actually quite brilliant, and I do wish it was the rules for the whole country, because you do get a bit of game theory in there of like, well, look, the Republican, you need that one Republican vote or whatever it was, that three Republican votes on the, whatever you went through, and you need those three Republican vote votes, then you need the three Democratic votes. And where do they agree?

Like just game theory-wise, you almost let the, quote unquote free market, you know, you Almost let the eBay of pricing there, you let it like, you let It play out. And makes sense that you'd like, okay, we'll give you a few safe districts here, based on the numbers. And then we get obviously overwhelmingly more safe districts, but it's not going to be 100 to zero. And It's also not going going to be 66 to 34. Like it's going to be somewhere closer to 100 to 0, but not all the way there because of the numbers. I think it's, I wish the whole, could we just nationalize that that California came up with?

0:15:05 Andrew: Yeah, Yeah, absolutely.

0:15:56 Andrew: And put a pin in that, by the way, because that that will come into play in this opinion. Before kind of delving into the merits, I want to illustrate the the uphill challenge that the petitioners challenging this map faced. In addition to, right, back and forth that we just did on the actual effect, which is to say, didn't jump out as inherently beyond the bounds, right? Like, it seems unfair, it seemed kind of skewed, but is it skewed too much? Which, you know, and you playing devil's advocate, steel-botting the other side, said it doesn't on face feel like California and giving it half Republican seats, right? Like that would feel weird and wrong.

0:16:38 Thomas: Oh, yeah.

0:16:38 Andrew: Yeah. So there are a couple. So I would call that kind of hurdle number one. Hurdle number two is the burden of proof required in these cases in Ohio. And there is an Ohio Supreme Court opinion that says adopted apportionment plan is presumptively constitutional. The burden of proof, here I'm quoting from the opinion, the burden of truth on one challenging the constitutionality of an apportioned plan is to establish that the plan is unconstitutional beyond a reasonable doubt. In the absence of evidence to the contrary, we presume that the apportionment board properly performed its duties in a lawful manner. I cannot recall. I don't want to say I've never seen this. I certainly cannot recall the last time I saw a beyond a reasonable doubt standard in a civil case, right? I mean, that's a criminal conviction level of standard.

0:17:09 Thomas: Wow.

0:17:30 Thomas: Yeah, that's a high burden there.

0:17:32 Andrew: Very much is. So keep that in mind when we get to the merits. And then the third thing that stood out to me is the shall attempt language of that Section 6A. And I understand what it's meant there to be. It's meant to say, look, the other stuff is process. Right. Like how we don't say the board, you know, you shall attempt to comprise the board of, one you person appointed by the Senate minority, right? Like that, that's a, that'S an absolute requirement. Uh, you've got to stick a member of the minority party on there. Um, and so aspirational goals, values, right. Sometimes can, can seem to a lawyer, uh, can seemed to a court okay, like, well, you know, you just sort of have to try. Right.

0:17:35 Thomas: Yeah. Yeah.

0:18:16 Andrew: Um, and in fact, that's the argument that the Ohio redistricting committee made here. They were like, look, we shall attempt like, yeah, yeah.

0:18:21 Thomas: We gave it our best shot. This was as fair as we could get unless.

0:18:26 Andrew: We, well no, we, we proposed a couple of different things. Uh, and the Democrats weren't willing to go along with any of them. So, uh, ultimately we went with our map, which we we thought was best, right? And the Ohio Supreme Court said no. Um, the opening sentence of section six states that the commission shall attempt to draw a district plan that complies with those standards. Um, analogize this to a previous uh case in which we had to interpret the words "shall endeavor to eliminate such practices," and we held that that language required a completed, an unsuccessful attempt to eliminate unlawful discriminatory practices. Conference, conciliation, persuasion is a jurisdictional prerequisite to ascertaining that shall attempt has been completed. So in other words, we determined that the phrase "shall endeavor" was mandatory language.

0:19:15 Andrew: It required the Ohio Civil Rights Commission to exhaust other means of eliminating an unlawful practice before it could initiate legal proceedings. And so analogistically, they were like, yeah, "shall attempt" does not just mean think about it. It means you actually have to sit down and try and reconcile with the remaining members of the committee, kind of give up. So with that kind of setting the landscape, let's talk about what the actual ruling is. First, on the percentages, the court said that the statewide preferences of the voters of Ohio are not revealed by looking at the 13 out of 16 races won by Republicans. Quote, "Counting the percentage of statewide election victories over the last 10 years does not indicate the preferences of individual Ohio voters."

0:20:06 Andrew: The statewide preferences of the voters of Ohio must examining how the voters voted, i.e. by totaling the votes in statewide partisan elections and calculating the percentage of votes received by candidates of each political party. The Republican approach looks not to votes cast, but to statewide offices won, which is a measure that does not comport with the plain language of the Constitution. So, no, you can't use that kind of lower bound 19 percent. You got to look at the number of votes actually cast and do the best you can with respect to that. But far by far the most important part of the opinion, in my view, was the a requirement that was that the district not be drawn so primarily to favor or disfavor a political party.

0:20:54 Andrew: And this is the area of the opinion that, in my view, is useful beyond Ohio, right, that can be relied upon whenever a state again, federal elections are lost unless the Democrats can pass the their voting rights bills.

0:21:08 Thomas: The Democrats can cast Kirsten Cinema into the sun.

0:21:11 Andrew: Into the sun. Oh, man, that would be so great. So until we change the law, it is not going to help us at the federal level. At the state level, when states are doing the inquiry because they have either a statute enabling legislation, rules as part of their rulemaking authority, or a constitutional amendment that says you may not partisan gerrymander, right? And more and more states are moving in that direction. I believe they are going to and certainly they can look to the approach that the Ohio Supreme Court used to figure out, hey, are you drawing a district that favors or disfavors a particular political party? And in particular, they looked to two different criteria that were put on by expert witnesses, by the petitioners, reflect apparently the consensus within the political science voting community, The first was the concept of partisan symmetry.

0:22:09 Andrew: And this was a report by Michael Lattner, who was a poli-sci professor at Cal Poly. Partisan symmetry measures whether each party would receive the same share of legislative seats, assuming that each had identical percentage vote shares, right? So in other words, Republicans win 54% of the vote. They get 66 seats. Um, in fact, let me read, let Me read the actual findings the adopted plan. Republicans are favored to win between 61 and 68 house seats out of 99. and between 20 and 24 Senate seats out of 33. Dr. Lattner said that in designing the electoral districts, it shows that the plan substantially favors Republican voters through targeted cracking and packing, as we've explained on this podcast at long length, that did not occur by accident.

0:22:55 Andrew: So using a partisan symmetry analysis, Dr. Latner concluded that the Plan significantly discriminates against Democratic voters. Dr. Lautner's analysis showed that if Republican candidates won 54% of the statewide vote, they would win 64 House seats, a supermajority. In contrast, if the Democrats won 54 percent of the state-wide vote, they would not win even a bare majority of the House seats under the adopted plan. Similarly, for state-wide vote shares ranging from 45 percent to 55 percent, which is within the actual swing of actual Ohio voting patterns, Lattner projected that under Under the Senate map that was adopted, Republican candidates would win an average of 17% more seats than Democratic candidates with the same vote share. So there's your first metric, partisan Symmetry. And it's so intuitive. It's so easy to understand. It's to say, yeah, OK, need to figure out what 54% statewide translates into, right? Maybe that does get magnified, right, like you have a state that, you know, particularly at the margins, uh, you know, as you get towards, uh, it's two-thirds Democrats, one-third Republican, it's real hard to draw a third of the districts favoring Republicans.

But what you would expect is if you take a look at Alabama's congressional districts, uh, and swap Democrats and Republicans, that Democrats would control eight of the nine seats, right? If you looked at Maryland's congressional district and swap Democrats and Republicans, that Republicans would control seven out of the eight seats. And if there isn't, if that wouldn't be the result, that suggests that

0:23:19 Thomas: Wow. Yeah, yeah.

0:24:30 Andrew: There's a structural built-in structural bias that favors one political party. Really great metric to kind of sidestep those questions

0:24:36 Thomas: I'm surprised we haven't I don't think I've heard that come up before in all the like years of talking about gerrymandering. Is that was that a new one for you or or yeah

0:24:38 Andrew: No because it was a new one for me, right? Like, because the the some of the prior metrics involve the like surplus vote theorem and things like that, right? And and this was meant to sort of, um, both of these, I'm going to get to the second one in a second, I think, are are possible now that we have the computing power to kind of brute force this.

0:25:03 Thomas: Well You Say that? I I feel like the best metric was was the thing where the the the supercomputer, although now it could probably be done on our phones, but where the computer is generating the random maps and then saying like, oh, this is less fair than, you know, 80 percent of it, like using that as a metric to say, you because I think one of the Republican ones was like, based on our random generation of districts, this was like more unfair than almost every possible map. I thought that was a good metric, but it is more complicated. And this, partisan this, symmetry method, it, it definitely has the benefit of being way easier to grasp quickly.

0:25:03 Andrew: Right.

0:25:38 Andrew: I I love that you seized on that one, because that that second metric, right, the comparison to randomly generated maps is in fact the second piece of evidence upon which the Ohio Supreme Court relied, right? And and and they they rely on that. So you use the partisan symmetry to kind of prove the prima facie case, right?

0:26:01 Thomas: Yeah.

0:26:01 Andrew: This map is totally biased in favor of one party in a way that's demonstrable. Just swap out the vote totals and they're not equal. But Republicans will argue, hey, look, Democrats live in cities. You exhorted us. Criterion 6C says, let's keep the zones compact, right, and contiguousness is another criterion that's built into the way that the redistricting committee operates. So, you know, it's not our fault all the Democrats are in one district, And so right? To refute that allegation, in this case, they relied on Dr. Kosuke Imai, a professor at Harvard's Departments of Government and Statistics, who developed a simulation algorithm for evaluating legislative redistricting. And then turned it on, it with the Article 11 criteria, right, that are required by Ohio law, and generated 5,000 possible district plans and, quote, none of which favored a party as strongly as the

0:26:19 Thomas: Contiguous. Yeah.

0:27:04 Andrew: Plan adopted by the commission, end of quote. So again, the value is when you are 5,000 out of 5, 000, it's really hard to say That happened by accident. Could go through and go through the methodology. But this is a methodology that is familiar that we've discussed in our previous redistricting episodes, episodes. Um, so you put that together, and to me, this is kind of the blueprint for what we do at the state level. Um, you aren't in, right, a toss-up state or worse if you're in a state that is presently gerrymandered for Republicans. Then, right? Um, you say, hey, you know, we ought to not have, uh, redistricting on the basis of, of partisanship. Uh, and then, then, you know, you convince, um, that via ballot initiative, uh, the, the voters like to go out. These things are very, very popular, past overwhelmingly in Ohio, uh, that says, you know, let's, yeah, follow the Arnold Schwarzenegger California plan, you know, here in Alabama, in Georgia, in, you know, in states that have typically gerrymandered, in North Carolina, in Wisconsin.

0:27:05 Thomas: There you go.

0:27:16 Thomas: Yeah.

0:28:13 Andrew: And then you use these two metrics, the partisan symmetry and the random map drawing, to demonstrate when they're playing fast and loose with the numbers. Of things that want to head off. Probably the most important question you're going to ask, right? I said this was unreviewable.

0:28:25 Thomas: Right. You already said, yeah, well, well, it reminds me way back when, you know, this was a one weird trick that actually might have been our first successful one weird trick we covered on this show, where I think it was a way of getting around, circumventing the Supreme Court by using state constitutions, right? And then, like, the highest court to evaluate that would be your state Supreme Court, not reviewable, as you said.

0:28:53 Andrew: Exactly right. That was a Kansas abortion case. And the petitioners here very carefully crafted their petition to argue that in addition to violating the specific provisions of Article 11, Section 6A and 6B, that it violated the Ohio Constitution's guarantees of equal protection. Article one, section two, the right of assembly, article one, section three, and the right to free speech, article one, Section 11. It also violates the equal protection clause of the Constitution of Ohio by diluting the weight of Democratic votes and violates the assembly and free speech clauses by burdening Democrats' political and associational activities. The Ohio State Supreme Court said, look, we don't have to reach those claims because we have invalidated it under the more specific challenges on 6A and 6B.

0:29:43 Andrew: But, quote, we express no opinion on whether a plan could comply with the requirements of Article 11, yet still violate the Equal Protection Assembly or free speech clauses of the Ohio Constitution. But you are 100% correct. The way it was pled, the way it was argued, and the way that this decision was issued, involved no questions of federal law, there is no opportunity for the Supreme court to jump in. And, and, I lack a clean word to describe what they would do to it.

0:30:11 Thomas: Yeah.

0:30:11 Andrew: Uh, but it begins with rat and ends with uck. So, uh.

0:30:13 Thomas: Completely butcher it. Yeah, that's better. That's a better choice of words. I like like that. Rat mucket.

0:30:20 Andrew: Yes. In addition to declaring the plan invalid, as I, as I said at the, at beginning the of the segment and ordering the commission to reconvene, to adopt a new plan. We direct the commission to adopt a new plant within 10 days of this judgment. We also retain jurisdiction to review that plan for compliance with our order. And the reason is that there are primaries that begin in February in Ohio.

0:30:43 Thomas: And this is all, again, this is all for state stuff though, state level.

0:30:44 Andrew: Like, it's all for state-level

0:30:46 Thomas: Okay. But still great.

0:30:47 Andrew: Stuff. But Look, when it comes to submitting let's say fake electors, uh, it would kind of be nice to not have uh the Ohio uh state government hijacked by Republicans. Um, the the other pin that I told you to put in at the beginning of the episode, uh, that we'll pull out right now was um the question about uh non-partisan gerrymandering. Um, this was kind of an amazing uh thing for me to read. The first concurrence, uh, says, "Yeah, I agree with the uh majority opinion. It's exactly correct. I just want to emphasize, by the way, that, know, voters, you you don't have to be stuck with the 2015 commission that you voted in. If you wanted to vote in another constitutional amendment and replace an obviously partisan 5-2 commission with a thoroughly nonpartisan commission, you can do that." And we've got lots of models, including the California model, uh, to uh to take a

0:30:57 Thomas: No kidding.

0:31:43 Andrew: Look at

0:31:43 Thomas: So how did we end up with such cool Ohio Supreme Court judges? Is it governor?

0:31:45 Andrew: I I I Would Love to

0:31:48 Thomas: Governor maybe?

0:31:48 Andrew: Study That so Well, again, it's it's been a lot of Republican governors in Ohio Uh Mike DeWine and John Casick, you but know, are the last two uh governors there, so um I'm Really interested. Let's let's Let's do a research project on that and kind of figure out how we uh how we got here, because yeah. Yeah, I would not expect the Ohio Supreme Court to be, you know, super liberal. And I don't. And look, this is not a super liberal opinion, right?

0:31:49 Thomas: Yeah. Oh, it has? Okay. All right. Yeah. Hmm.

0:32:14 Thomas: Well, yeah. In In today's adjusted terms, it is. But yeah, if

0:32:16 Andrew: Yeah, we're going to do this like, you know, football, right, like defensive value over average or what have you.

0:32:24 Thomas: The opinion reference facts in our current world, then yes, it's liberal by today's standards.

0:32:28 Andrew: Yeah, if it didn't say COVID, who gets that? Yeah, right. Point taken. But yeah, unambiguously good news. Good news for Ohio. Good news for Democrats in terms of not losing a state. And also, you know, as we said, a potential model for, you blueprint for how to fight these kinds of battles in your state.

0:32:29 Thomas: Yeah. Yeah.

0:32:49 Thomas: Right. I mean, assuming you do the step that includes having cool state Supreme Court justices, which again, we'll get we'll give you back to you on that. I don't know how that happened, but that's great news.

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0:36:27 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:36:36 Thomas: Now in the possibly not as good news front, you referenced this, I believe, on the Q&A, right?

0:36:41 Andrew: I did. Yeah.

0:36:43 Thomas: It just goes to show, attend those Q&As, listen to them, watch them on YouTube after the fact if you're not a patron, because you got the early scoop on this, but you've been looking into whether Ghislaine Maxwell might be able to secure a new trial on appeal. What fresh hell is this?

0:37:01 Andrew: Yeah, this is a real possibility and I want to talk about the underlying legal standards. So here's what what happened in that trial. One of the jurors, Scotty David, is alleged to have lied during voir dire. In Particular, it is alleged that he said he had no prior history of sexual abuse, and then during jury deliberations brought up his sexual abuse as a way of convincing jurors as a sort of working through the emotions that jurors were having. And again, remember, the baseline rule is courts don't invade the sanctity of the jury deliberations. Would be 100% appropriate, if you hadn't lied, to say, hey, I'm a survivor of sexual assault. This into account, into consideration. This is why we have trials by jury.

Right break down the operative law and facts first facts voir dire um big case like this you get written screening questions right because if you answer in a way that is disqualifying then you you know you don't have to bring those folks in and and separately question them right and you know your gonna go through, um, an awful lot of folks. Those screening questions included, uh, have you or a family member ever supported, lobbied, petitioned, protested, or worked in any other manner for or against any laws, regulations, or organizations related to sex trafficking, sex crimes against minors, sex abuse, or sexual harassment. Okay. You can understand why that would be important. Witnesses in this case may testify claiming sexual abuse or sexual assault. Would you have any difficulty assessing the credibility of a witness claiming sexual assault or abuse just like you would any other witness?

The one that's relevant here, I think, have you or a friend or family member ever been the victim of sexual harassment, sexual abuse, or sexual assault? This includes actual or attempted sexual assault, or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher, or family members.

So, uh, Scotty David then went, did a bunch of press interviews, and um, said, uh he uh was not asked about his sexual abuse history during the process and that he just sort of, you know, I think his words were, I flew through the questionnaire, the, the right?

0:37:16 Thomas: Hmm. Wow. Yeah.

0:39:13 Andrew: Evidence, uh is, right, either left blank or said no to those questions, right. Did not indicate a prior history of sexual abuse and did, in fact, have a prior history of sex. So Ghislaine Maxwell moved pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial. And that is really simple. It says upon the defendant's motion, the court may vacate any judgment and grant a new trail if the interests of justice so requires um and then uh you you have to file that either within 14 days if it's a procedural issue or within three years if it is newly discovered evidence um I think finding out what the jury member said would count as new evidence, although you know usually but doesn't matter they met both deadlines right so I also wanted wanted to add I thought this this might be interesting.

The notice that a Rule 33, uh, must be made on the defendant's motion for a new trial. Is unlike a, a civil, uh. Motion for a neutral, uh., which can be made sui sponte of the judge's own motion. Um. The judge has no power to order a new trail for a a defendant, uh, because that would potentially involve double jeopardy problems.

Right? So when Ghislaine Maxwell moves for a new trial, she is effectively waiving her objections to the right against double jeopardty to be tried twice for the same offense, right? Cause she's saying, yeah, okay. I didn't want to be triad because the first one didn't go great for me.

0:39:58 Thomas: Yep.

0:40:45 Andrew: So, uh that that's why the rule is written that way. It's to avoid any kind of double jeopardy issues. You're making it so you've waived otherwise the benefit that you'd have. So now the question, is she going to get it right? Is she going going to get a new trial? Um, and the answer is if the trial court judge thinks that she was denied her right to an impartial jury. Okay. So, um, it'S a higher standard than just, uh, was there an impropriety? There was clearly an impropriety, but that fact standing alone is not sufficient. And I will tell you that, um. This is within the discretion of the trial judge, right? So whatever gets decided by the trial judge is very, very likely to stand on appeal either way.

0:41:30 Andrew: And what we look to for guidance is 1984 Supreme Court case called McDonough Power Equipment versus Greenwood. And this was a 9-0. This was a Rehnquist decision, but one of those 9-o decisions that it feels like we'll never see again.

0:41:48 Andrew: It was a civil case, not a criminal one, but that doesn't matter, right? This was about, um, Billy Greenwood, uh, was, Riding a lawnmower, uh. Made by McDonough Power Equipment. Um. And, uh his feet were hanging down on the riding lawnmow.

0:42:02 Thomas: Already, don't want to hear this was

0:42:03 Andrew: Yeah, yeah, yeah. And came into contact with the blade. Um they uh sued the manufacturer of the riding lawnmower um and uh in connection with that lawsuit um it came about that one of the jurors uh six person six person civil jury um

0:42:18 Thomas: A lawnmower it didn't fill out the questionnaire saying it was a lawnmower so how were we to know been

0:42:22 Andrew: Um, well, Close, um, the, the question that was asked during voir dire was now how many of you have yourself or any members of your immediate family sustained any severe injury, not necessarily as severe as Billy here, but sustained any injuries, whether it was an accident at home or on the farm or at work that resulted in any disability or prolonged pain and suffering that is you or any members of your immediate family okay so that was the question uh that was asked um and the uh the juror in question um nothing right left that blank right Well,

0:42:35 Thomas: A lawn mower it just went sorry I'll stop I'll start

0:43:06 Andrew: You know it's good it's fine keep it keep keep it going. Then trial they found for the petitioner, the plaintiff. Then they discovered four days later that one of the jurors, Ronald Payton, had a son who may have been injured. And the judge was like, I don't know. Then they came back the next day and filed another motion, a motion for permission to approach the jury, attaching an affidavit that asserted that he was a Navy recruiter and he had reviewed the enlistment application of Ronald Payton's son. In that application, Payton son stated that he had been injured in the explosion of a truck tire, right? So car tire blows out and then they went and they interviewed Ronald Payton and conceded yes that his son had been involved in a car accident which the tire blew out and no, he did not disclose that on the jury form.

0:43:36 Thomas: Huh.

0:43:51 Thomas: Okay, but It's not a lawnmower.

0:44:08 Andrew: No, that's right. But remember, the question was, how many of you yourself or members of your immediate family sustained any severe injury, whether it was an accident at home, on the farm, or at work, that resulted in any disability or prolonged pain and suffering? But as you point out, I'm glad you point that out. You are anticipating sort of where the Supreme Court is going here, right? And where the Supreme Court winds up going is, before I say where the supreme court is, I should say the trial court was not super impressed. They moved again. Rule 33, new trial. Juror lied, didn't disclose this. And the trial cort was like, yeah, we're not convinced. Maybe he did. Maybe he didn't. But, you know, I think you got a fair trial. I think you're fine. The matter was fairly and thoroughly tried. And the jury's verdict was a just one well supported by the evidence.

That was what the district court decided that got appealed up to the 10th circuit. The 10th circuit reversed and said, no, you have the jury juror lied that deprives you of your right to a peremptory challenge, right? Because if the juror had been honest and said yeah, I know my kid got hurt a while back, then you might have said,

0:44:08 Thomas: Right? Right.

0:45:17 Andrew: Oh, okay, well then I'm going to strike you from this jury and then who knows what would have happened. That was what the 10th Circuit said.

0:45:22 Thomas: But, Then that suggests that any lie of any kind you could always say you deprived him of a peremptory challenge because you can perempty for anything, right? Yeah.

0:45:31 Andrew: That's exactly right. And that's what the Supreme Court said. So first they kind of narrowly came in on the facts and they said, look, it's not clear that this is a case of lying, right? The critical question posed to the juror in this case asked about injuries that resulted in any disability or or prolonged pain or suffering.

0:45:46 Thomas: Because By this logic you could be like we found out a juror dyed their hair and I would always Peremptery a blonde juror so therefore you know like that seems too too broad.

0:45:55 Andrew: If you'd asked about dyeing your hair, and they'd lied about it, right? You still have to, and so the first part of question is, sure,

0:46:02 Thomas: Oh, okay. Yeah. They do have to lie about it. Well, no, but I actually, no. I guess what I'm getting at, maybe I'm wrong, but what I's getting at is if you're saying they could have peremptory challenged, I'm saying that is always true of any sort of thing. Not like you're challenging for cause, I guess, is my point.

0:46:25 Andrew: But I think the counter-argument I would make to that is, right, but it's your job as the lawyer to ask the questions that you want answered for exercise of your peremptory challenges. It's our job as the courts to police and give you a remedy if they lie to you, right? So in other words, saying, "Hey, you know, we just discovered she used to be a blonde and we would have peremptory all blondes."

0:46:51 Thomas: Right.

0:46:51 Andrew: The first response the court's gonna say is, right, but you didn't even ask hey, have you ever dyed your hair? Like, that's on you, counselor, like if it's so important to have no blondes

0:46:55 Thomas: Gotcha. Just to clarify, I still agree. I just was trying to make it even stronger point, but I think that's a good counter example. Okay,

0:47:02 Andrew: Yeah, no yeah I like, like working through this, so um, so, what the Supreme Court says is, look, um, possible that he didn't think this was a serious accident, but, uh, it's impossible that he didn't think the broken leg that his son received, um, was a disability or prolonged pain or suffering, right? Kids break legs all the time, right?

0:47:26 Andrew: Um, however, another juror, uh, related a minor incident such as the fact that his six-year-old son once caught his finger in a bike chain, um, so, uh, first point, sort of on factualness, is um, let's not draw the inference of deliberate lying here Then, right, they say, um, the ruling in the Court of Appeals must be assessed against this background, that people, uh, can read the questions differently and answer in good faith, even if they're being less than candid in their disclosures. Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror's being excused for cause. Hints of bias not sufficient to warrant challenging for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by, by prospective jurors, in this process, is to serve its purpose. That's obvious. Then they say, all right, a bunch of different responses. We're not entirely clear here.

0:47:15 Thomas: Mm-hmm, right, yeah, mm,

0:48:28 Andrew: We cannot say, and we doubt that the Court of Appeals could say, which juror was closer to the average juror in how they interpreted the question in terms of over-disclosure, under-disclosure, Goldilocks level of disclosure, right? And then the Supreme Court says, and this is the key part of the ruling, to invalidate the result of a three-week trial because of a juror's mistaken though honest response to a question is to insist on something closer to perfection than our judicial system can be expected to give. So uh, cut him a break, the motives for concealing information may vary, but only those reasons that affected jurors' impartiality can truly be said to affect the fairness of a trial. And by the way, motions for a new trial are committed to the discretion of the district court. Uh, you haven't met the burden that we would want to disturb the trial court's finding on that. So put all of that together, Ghislaine Maxwell.

Scotty's conduct here, in my view, is, um, on the facts that we know, to defend, uh, Ronald Payton's in the Greenwood case, right? He was asked directly, "Do you have a history of – and the question was sexual harassment, sexual abuse, or sexual assault, right? So this is not like going, well, you know, I didn't I'm sorry, I don't think my kid's broken leg was a serious injury about which reasonable people could disagree.

0:48:57 Thomas: Yeah.

0:49:47 Andrew: Agree, if you're a victim of sexual assault, seems like it's pretty clearly asked by the question. Now, there be a kind of a good faith, "I wasn't thinking about it that," if that gets you over that factual hurdle, then the question is, is that alone enough to get a Rule 33 neutron? It probably isn't, standing alone, right? You would Because of the precise chain of inferences that you've said, right, which is, if Scotty had said yes, um, are you clear that you definitely would have used, uh, a peremptory challenge, uh, on that? Yeah, no, like that's really, really hard, and just being a victim, uh, being a survivor of sexual assault, would not arise to the level of striking you for cause uh Yeah, no, right, because, uh, for one, that I mean, that would you know, make it

0:50:32 Thomas: You would hope not. There go most of of our jurors, yeah

0:50:39 Andrew: Yeah, it would make it very, very difficult to to impanel a jury, particularly to impanal a jury with any kind of gender equality on it. So question would, would then, would be, you would have had more directed follow ups on, you does this prevent you from evaluating fairly the evidence? Right. Do you, would you wait higher the testimony of survivor of sexual assault than you would? Right. Like, you would ask the kind of questions that you ask as a follow up when someone trips those first level questions. And what they will say is, we were denied the opportunity to ask those follow up questions. That's probably not enough. To me, what, what it's going to turn on, and and this is entirely fact dependent, and we're just waiting to see what the trial court judge is how much was the disclosure during deliberations meant to persuade potential holdouts on the jury, right? Because if the evidence is, right, of the, of, of the 12 folks on the jury, if it is two or three people were, uh, leaning towards acquittal, uh, then would, that would almost certainly, uh.

0:50:47 Thomas: So

0:51:44 Andrew: If you were convincing holdouts, that would give rise to a new trial. What's been said is that it was rather, in the course of discussions, discussions, people got upset on the jury, and Scotty shared, uh, their experiences, uh, and that sharing was designed, you know, to bring the temperature down and enable deliberations to keep going, right, to say, hey, look, we can talk about this, I'm willing to talk about my own victimization here, right? Um, and, if that's the case, that probably falls on the other side of the, right, like that probably did not jeopardize the right to a fair trial. But that's where the law is at the Supreme Court. Did the jurors' failure to disclose deny Ghislaine Maxwell her right to an impartial jury?

0:52:35 Andrew: Right. Did present then a jury that had impermissible elements of bias in it? If I had to guess. And again, we just don't know the facts. Right. So total wild stab in the dark probably doesn't rise to that level based on what we currently know. Um, but I've sort of outlined what I think it would take. Um, and I think it would Take right kind of convincing holdouts, um, to rise to that level or or some other evidence that's that shows, you know, a they

0:53:05 Thomas: They get to evaluate? They get to go in the jury, you always say is a black box, but in order to answer this question, how do they do it? Do they go and interview jurors do they

0:53:14 Andrew: They will that that is right. The court is in the process and will bring in the jurors and will ask Ask them what happened. All of that very likely will be sealed, right? Will not be televised for precisely those reasons, right. So yeah, so it will be a black box that

0:53:15 Thomas: Oh okay okay yeah sure so it's entirely possible they could find every jurors, like, "Nah, it didn't even matter, I already was going to convict," and so they're like, "Okay, this doesn't matter." Or maybe they find something else, but either way, for good reason, we won't know but so it sounds like based on what I'm hearing that you're not entirely solid on a prediction of what will happen here because we don't know, black box

0:53:45 Andrew: Is exactly right. Yeah because we don't, if I had to, right, on insufficient information I would would say probably not a new trial. Um, if I'm wrong, I have a real good reason. I have a really good justification for why I'm drunk.

0:53:55 Thomas: Yeah yeah no fair enough I I think you

0:54:04 Andrew: So, uh makes that, makes that a bit of an unfair test and I won't crow about it if I right. Uh, but uh, those are the standards.

0:54:04 Thomas: Explained that really well interesting uh, glad you took us through that. Overall, you know, not great news, but also best case for Glenn is a new trial, which, which I doubt would go that much better than this one anyway. So hopefully still a person who a conviction getting a conviction in the end. We'll see.

0:54:22 Andrew: Yeah, right.

0:54:28 Clip: And thank you, Let's go!

0:54:29 Thomas: And now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law and join the goodies. As we said, a lot of awful movies coming out any second now, if it's not already out, probably, probably out in the next few days, and all the good stuff. Why don't you start us off, Andrew?

0:54:44 Andrew: And this This is, I believe, our second quartile, right? So I have always said, in fact, it was in my wedding vows, the second quartile is the best quartile. It seemed weird at the time, but, you know, yep.

0:54:46 Thomas: The best one, yeah

0:55:00 Andrew: Praise be unto Hamilton. Crazy animal lady has given up on changing her Patreon name. Just take my money. We will, in effect, just take your money. Alternative facts or problem of information architecture? Architecture, the, at Canonical Debate can solve it. Oh, I'll have go check that out. At Canonical Debate, our buddy referred to, uh, repeatedly during the Q&A. Budget Botanist on Fiverr suspects you all killed your pandemic plant purchases, I forgive you. Please offer any suggestions for a podcast that would read my Patreon name weekly, asking for a friend, ouch. All right, all right. Academic Dispute, are tar, instant, target creature must block this turn if able, you may have it, gain reach, learn. Thomas, oh yeah

0:54:59 Thomas: It paid off huh This is this from a new set, this is probably, I haven't paid attention to Magic for, I don't know, two, two, three years, this might be from a news set, I don't know the learn mechanic, and also, uh, academic dispute, weird to to be a red spell, so it's a red one mana instant that says "target creature must block," don't know it, sorry, but, uh, yeah, I I'm also interested in the learn mechanic, or unless they're just telling me to learn something, but that's Usually, uh, where You put the mechanic, uh, in the magic card, so, yeah, no Don't

0:56:08 Andrew: Like It Could have Been directed At me, it was like Andrew, learn, you're an idiot When it comes To magic, which, you know, my son tells me on a daily basis. So, Sparkle Donkey will host a fully stocked patron pre or post show event for charity at our tequila lab for a Seattle live show. Yeah, keep that offer coming out, Seattle is obviously, uh, Huge on our list. Fred Gruthy is a, a gender fluid, multi-class, dual wielding blade lock fighter. Listener Thomas F is, is anyone else concerned that in about a year Republicans could permanently take control, uh, yeah, just This show. I like my pork streaks paired with at Casa Agria and at Emperor's Brewery beer. GDT says everyone knows that the police can't arrest you without page two of two your consent. Maritime laws, freedom menu, Bengazi and the buttery males storm the fort. Teaser for Hall of Fame shout outs, les deux lesbien fabulo. Supreme Court justices should have 18 year term limits, and so should Conrad Michaels, definitely

0:56:13 Thomas: No, yeah Yeah Yeah Oh Yeah Yeah Messed Up

0:57:14 Andrew: Not Conrad Nichols. Jennifer Tchaikovsky, I reject your democracy, Chrissy, and substitute my own, Sydney Powell. Edgy veggie, we have legal advice, if you have coin, do not take legal advice from a coin, and John Brown did nothing wrong. Absolutely, Thomas, take it away

0:57:29 Thomas: Thank you. You to Evie Huntington, Harvard alumno hood, elect Thomas Smith president, American Honky Tonk Bar Association. I enjoy mocking people who mispronounce adopted French words that mean a peculiar ability. I guess I am a fort teaser. That's been a good one for a long time, but feel free to come up with another good joke, and that applies to basically everybody in this hall of fame. Alpha Kenny Body, Torsten Two Sheds and Two Wolfies Peel, Brian K, Angry Mac Face, The Books That Burn podcast, currently reading Iron Window by Ziran J. Zhao, Pablo Escargo's Heroin Snails.

0:58:05 Thomas: That's a good one. Penelope is glad Sydney got sanctioned for Terpsichore. This is not the greatest patron name reading system in the world. No, this is just a quartile. April Poff, Two Crabulous Aquariums. Jay Owens, Every Chance I Get. In fact, I'm doing it right now. They said I could be anything, so I became someone who remembers to change their Patreon on name once a month. Nice. Why is it so much harder to remember to change my name monthly instead of weekly? Yeah, I hear you. Sorry about that, but you know, you could also change it weekly and then you'll just, you know it'll only work for one of them.

0:58:05 Andrew: Right We Won't stop you From changing it daily if you want

0:58:40 Thomas: Yeah. Learned handjob, the Dows, Dallas DA John Crizzo owes justice to Diamond Ross and pass voting rights legislation legislation now. Jake and Big Gabe, owner. Thank you so much. Top patrons, all the famers, we love you.

0:58:59 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:59:05 Thomas: Now it's time for T3BE answer time. Oh, well, this is Thomas T3BE. T3BE. Thomas takes the ethics exam. T3BE, don't worry. You can use the same hashtag. It's fine. I don't want to mess up up our Twitter, Twitter hashtag. Yeah. How am I ethical? Do I even have a 50-50 shot at being ethical? Let's find out.

0:59:28 Andrew: All Right. And this question was about attorney withdrawal from representation. So fact pattern was Thomas represents a nonprofit organization that's in merger negotiations with a third party. Thomas, while doing his due diligence, discovers unspecified activities that could have jeopardized the nonprofit status. All of those took place before Thomas came. He wasn't a participant in any of them. And then Thomas then goes to the board of directors and is like, hey, man, I think you need to disclose. This is a material risk to the acquisition. I think You Need to Disclose This to the Other Side. They're like, yeah, we're not sure we agree with you on that. He says, I'm going to withdraw unless you disclose that to the other side. And then they say, no, we'RE sure WE agree with that either. And he then withdrew from the representation without telling the other side and without telling THE STATE or the IRS or anybody else. He just said, OK, well, as a lawyer, I am firing you as a client. Then the question was, is the attorney subject to discipline for his conduct in the representation? You eliminated both. Yes. Answers.

0:59:56 Thomas: Yeah,

1:00:42 Andrew: You're like, this seems like the right course of action. And I want to tell you, good elimination. This is this is not sanctionable conduct. Right. Right. So first was yes, because the attorney did not inform the other nonprofit entity that the organization had failed to report the activity. Yeah, there's a good reason for not doing that. Like as much as we make fun of, you know, Law'd Awful Movies number one was the firm, you know, which placed ridiculous conditions on, you know, attorney client privilege where none of those exist. Here, there is valid attorney-client privilege

1:01:11 Thomas: Attorney-client privilege. Yeah right. That's what I was kind of trying to get. I should have used the words attorney- client privilege obviously but yeah like I don't think you have to tell the others. That would be weird. So okay.

1:01:17 Andrew: Right yeah it would be it would be super weird if it was an affirmative duty the only time yeah the only time you have an affirmative duty to reveal attorney-client privilege is

1:01:28 Thomas: Yeah to reveal veal attorney. Yeah. Is if you're in a firm situation, it's written into the law. If what's his name, the actor who I always forget his name.

1:01:35 Andrew: Yeah right, it really is it's like if Gene

1:01:41 Thomas: Gene Hackman.

1:01:41 Andrew: Hackman flies you out to the Bahamas, yeah right

1:01:42 Thomas: Yeah, that's how it's in the code of conduct.

1:01:47 Andrew: Other, yes. Answer yes because the attorney withdrew from representing the organization in the merger negotiations without the the board's permission misstates the law. Your client's consent to withdraw from representing your client. That's the way it typically goes, right? You're like, hey, I don't want to work for you anymore. Are you okay with me not working for you anymore? And the client's like, yeah, we don't wanna work with you either. And that's fine.

But the question is, can lawyers withdraw from representation even when their client says, no, you got to keep doing what you're doing? And the answer to that is Rule 1.16 of the Model Rules of Professional Conduct as promulgated by the American Bar Association, declining or terminating representation. And here, the question is, the questions, whether this would fall under the condition of mandatory withdrawal, that is, when a lawyer must withdraw from representation, or voluntary withdrawal, that is when a law may withdraw from representatio. And the rules are, pretty straightforward. It right? Says, mandatory, subsection A says, it says, a lawyer shall not represent a client or where representation has commenced shall withdraw from the representation of a client if the representation will result in a violation of the rules of professional conduct or other law. Or number two, the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. Or three, the law here is discharged.

That is, they're fired. Not clear to me that those mandatory provisions apply here because although you have discovered prior evidence, this is really much more of a question of interpreting advice in terms of the lawyer strongly believes that a client should continue a course of action and the client declines to do so.

1:03:42 Andrew: And that seems to fall pretty squarely within subsection B. A lawyer may withdraw from representing a client if, and number two is, the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, or number four, the client insists on taking action that the lawyer considers repugnant or with which the lawyer is in a fundamental disagreement. That's what we have, right? The lawyer thinks probably violates your ethics to not disclose. In any event, I'm telling you, I don't want to work for you you don't disclose. The board's like, yeah, well, tough noogies. We're not disclosing. Get back to the hole. And the lawyer says, that's it. I'm voluntarily withdrawing. So you picked answer C, no, because the attorney withdrew from the representation after informing the board of directors about the need to disclose the activities to the other nonprofit. And that is correct.

1:04:08 Thomas: All right.

1:04:35 Andrew: The distinction D says he should be permitted to withdraw regardless of whether he informed the boardof directors. I view that as inconsistent with 1.16B because it must be the client has to persist in a course of conduct that, yeah, correct.

1:04:48 Thomas: So you have to have some good reason for withdrawing from representation. You can't just withdraw for no reason, a no fault divorce.

1:04:56 Andrew: Correct. Yeah, right, right. The client has to persist in conduct that you believe either to be unlawful or, you know, grossly unwise. And so to have that persistence, you have to tell them, right? You got to say, hey, look, Like, you got to stop this. And then they have to say no. Know if they've just done it once, right? That's not, there actually is in comment section when it talks about both voluntary and involuntary withdrawal that, I'm going to read this for mandatory withdrawal. The lawyer is not obliged to decline or withdraw simply because the client suggests a course of conduct, that is conduct that is illegal or violates the rules of professional. The client may make such a suggestion in the hopes that a lawyer will not be constrained by a professional obligation. So in other words, right, the fact that their client asks you once, hey,

1:04:58 Thomas: Yeah Yeah. There you go. Right.

1:05:50 Thomas: Yeah.

1:05:50 Andrew: Break the law, you've got to, it's your duty, but believe me, there are certain clients that I have that, you know, folks may recognize from the podcaster sphere against which, you have to say like, no, that's

1:06:03 Thomas: No, we can't do that. You don't get to just, all right, I'm out of here.

1:06:05 Andrew: Illegal. Illegal. Yeah.

1:06:06 Thomas: That the mere suggestion. Yeah, all

1:06:06 Andrew: Yeah. You gotta say, yeah, no, that's illegal, uh, and then, uh, and then they say, right, but I want you to do it anyway, and that's when you can withdraw, so, good job.

1:06:10 Thomas: Right. Gotcha. Well, there we have it. I aced the ethics exam for now. Let's find out which of our listeners is also very very ethical.

1:06:23 Thomas: Who won T2, T3, 2E, or T3E2, I guess is a, yeah, which one sounds better? I don't know.

1:06:31 Andrew: Am gonna keep calling it T3B, so, and

1:06:33 Thomas: That's fair. Yeah. Like I'm jumping on T3 BE for y'all today, so we had a lot of people get this right, a lot of ethical people out there, not everybody, that's probably about 75% of the responses I saw were correct, but we got those 25% out there who, uh, not ethical, I'm sorry, Sorry, hashtag just saying. Anyway, Phil DeFord is the one I'll go with here.

1:06:59 Thomas: AtDavisJ3608 on Twitter says, "Gonna have to go with C for T3BE. A's wrong because if any reporting was required, it would be to a government entity. If B was right, the lawyer wouldn't be able to withdraw when asked to violate the law. And D is wrong because I'm pretty sure you can't just walk off the job." Job that I, as far as I know, as a very ethical lawyer over here, one for one on the bar exam, that seems exactly correct to me, so congratulations, Phil DeFord, great job, and thanks to everybody for playing. And that's our show. Thanks so much for listening. We'll see you for Rapid Response Friday.

1:07:34 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.

1:08:08 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.