OA578: 1/6 Prosecutors Admit Violating Suspects Rights. What Happened?

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 578, I'm Thomas, that's Andrew, and uh, I had a headache today, so Andrew was promising he'd do ASMR today, so go ahead, how you doin' Andrew?

0:01:28 Andrew: I'm fantastic, Thomas. How are you doing?

0:01:29 Thomas: Ah, so, you know what, you cured my headache just with that, it was so soothing, appreciate the effort.

0:01:34 Andrew: Then my cackling laugh just undid it all, but, uh, good.

0:01:37 Thomas: Nah, I am all better, loaded up on drugs, not really, yeah. Yeah. So there's some interesting sports news and we also have an Eastman update. We've got. Lots of cool stuff. I can't wait for this show. Oh, Law'd Awful Movies. I'm going to go ahead and say it's out. That'll commit me to it. I'm gonna say it out. I'll note, it wasn't the exciting guest. I think people will figure out pretty quickly when there's no guest that it wasn't the exciting guests that we had planned.

0:01:40 Andrew: Woo! This show brought to you by...

0:01:55 Andrew: Right.

0:02:06 Andrew: That's just logistics, though. That guest is coming, and it's going to be awesome.

0:02:10 Thomas: Purely, Absolutely. And that's why we didn't do a big reveal. I never do a Big Reveal until the tape is... No, how does technology work? Until the bits are in the hard drive of the recording

0:02:21 Andrew: The ones are hot and the zeros are cool, right?

0:02:22 Thomas: Yeah, Uh, was great, uh, but I shouldn't sell short a, uh, really fantastic Law'd Awful Movies, a, a Civil Action with John Travolta, and I say John Travolta, he's maybe the least important part of the cast. Cast is unbelievable.

0:02:39 Andrew: The Guest is amazing. It's really, really good. And this one is one where I have a lot of firsthand stories regarding this particular case. It is probably a little bit of a spoiler. The case at issue in A Civil Action is almost entirely with some, like, baffling changes that we talk about on the show, a real civil trial that took place 30 years ago involving toxic chemical pollutants in Woburn, Massachusetts. Choose it, so, um, is, this is a pretty informative law awful movie, if you like those. I love, I love the ones where we're laughing for two hours too, like, don't get me wrong, uh, but this one is, is probably a little bit more of a deep dive into, uh, environmental law. And, uh, it's Also good

0:03:22 Thomas: It's great. It is a lot of fun, a lot of learning in that one. So, Civil Action, if you want to watch along with us, check that out, patreon.com/law. And we got a couple announcements, quick things you want to cover first.

0:03:23 Andrew: Yeah.

0:03:33 Andrew: This is the first episode that we have recorded in which, uh, Major League Baseball is back, Baby. So, A lot of folks have asked, am I going to cover all of the details in the new Collective Bargaining Agreement? And the answer to that is absolutely, once I get a coffee of said Collective Bargaining Argument. This is not a thing that is required to be kept confidential. I have a bunch of Different sources that are out there trying to get a copy over to me. If you are listening and you're a sports reporter or you have a copy of the baseball CBA and wouldn't mind sending it my direction, that is openarguments at gmail.com, we would love that. I'm gonna get it eventually, and then I will tell you all of the secret stuff that's hidden in there that has, uh, not made the news coverage so far. So, uh, that's what we're waiting on, in terms of baseball is back, there's a new CBA, what does it mean? Uh, you know me, I

0:03:40 Thomas: Oh, that's right. Yeah.

0:04:00 Thomas: He needs

0:04:35 Andrew: Need the document, and

0:04:35 Thomas: The documents, everybody. Give this man his documents.

0:04:39 Andrew: Related to that, I bumped into A dangerous new lawsuit has just been filed, and, and this is, I think, the future of Kraken law grift, and it really, really concerns me. It's incredibly dangerous. We are going to do a deep dive and break it down on Tuesday's episode. So you'll want to stick around for that.

0:05:02 Thomas: That's terrifying. Okay. So I'll have some impending doom hanging over my head for this entire episode.

0:05:03 Andrew: Yeah. Yeah. Yeah. That's but we'll do fun stuff in this episode. So you're forget all about that.

0:05:07 Thomas: Got it.

0:05:19 Thomas: Andrew every even non-football fans might have seen this one someone bought tom brady's quote-unquote last touchdown football for $522,000, something like that, somewhere in that neighborhood. And then, wouldn't you know it, Tom Brady un-retires first question? So this is a great story. I can't wait to hear about this football, what's going on there. Can he sue Tom Brady or something? But also, you're a sports guy. You know things. What in the world with this fake retirement? It was the weirdest, shortest, pointless, fake retirement. I don't understand it.

0:05:55 Andrew: Yeah, let's tackle those in order. So, number one, even if you're not a sports ball fan and you're tempted to hit that jump ahead 30 seconds and and keep pounding it until you get to the next segment, uh, this is actually a segment on consignment law cleverly disguised as a discussion about Tom Brady, the no doubt about it greatest, uh, of all time, the goat, uh, quarterback, and uh, his bizarre three weeks of retirement. In terms of what motivated him, I mean, the only thing I can say is, you know, in my experience in representing athletes and their families, which again I've talked about on the show, I've, I've done that fair a number of times over my career, will tell you no matter, no matter the pinnacle at which that athlete is performing, and I have interacted with some, you across the specter including

0:06:16 Thomas: Yeah.

0:06:45 Thomas: He's talking about me and my beer league hockey. I know. Thank you, Andrew. I appreciate you counting me among your athletes you represent.

0:06:46 Andrew: Yes I am And so you might be saying, Tom Brady, on earth would you come back? He's 44, he's right? Been a quarterback for 22 years. He's thrown 624 touchdown passes. And you're, okay, if you're not a football fan, let me explain. That is not only the career record for a quarterback, back, it's 53 more than the runner-up, and 53 is a season plus, uh, of a very good quarterback, right? It's 175 more than the next active quarterback, who's Aaron Rogers, who's 38 and is going to retire imminently, the right guy who's third on that list, right? Active players, right, Tom Brady 624, Aaron Rogers, the guy who's third is Matt Ryan, he's 36, right, so he's closing in on retirement and he has 367 touchdowns. So this is a record that is in no danger of being broken unless the NFL massively changes the rules, right, shortens the field, it would have to be a 20 plus year career, and those are incredibly rare.

0:07:50 Thomas: Well, or if the Kansas city quarterback puts in a long career, maybe. Oh yeah. Yeah.

0:08:01 Andrew: Yeah, so Tom Brady's Buccaneers won the Super Bowl in 2020, he came back in 2021 and they won the division, they were 13 and 4, they got a bye out of the first round of the playoffs and they hosted the Los Angeles Rams in the second round, so they were at home. Think everybody expected Tampa Bay pretty much to smoke the Rams, uh, except in that game they fell behind 20 to 3. This, it was such a good game, and I don't know, neither of us are Rams fans, but uh, it was pretty amazing. Let's leave it there for a second and talk about what consignment is. See, I, I promised you we're to weave through both the law and exciting sports.

0:08:40 Thomas: I edited out 30 minutes of us talking about how good Tom Brady is in his career for you. Non-sports people. Are you happy?

0:08:46 Andrew: So Oh, man, and we could, and look, like, I don't even like Tom Brady all that much.

0:08:50 Thomas: I know. No, neither of us do. That's how good he is. We'd like, we're not Tom Brady fans, fans, but he's just so obviously the best quarterback of all time. It's not close. My puzzlement, if that's a word, of his retiring, it's not that, like, why did he not, like, for me, I don't understand why he did retire in the first place. Like, he looks like he could go, the style of play and the way he looks, he looks like he could play for another X number of years. I guess when you're 45, who knows? It could be one, could be five, I don't know, but like he looked fine. I thought he was going to play another season and then he retires and it's like, okay, sure, fine, you're retiring, that makes sense. My question, Andrew, was why the weird two-week fake out and

0:08:51 Andrew: No, yeah. Yeah.

0:09:28 Andrew: Yep.

0:09:28 Thomas: Did you get come around to an answer on that? I think you were answering that and then we trailed off into other stuff.

0:09:32 Andrew: Yeah, and again, I think it's just, uh, made a rational decision, right? There's nothing left for me to prove in this game, I'm 44, I've made all the money I will ever need, I'm gonna retire. And then I think two weeks after that was like, no, man, like I, I, I still as long as I still have stuff to give on the field, I'm going to do it.

0:09:47 Thomas: It's like well this sucks yeah okay simple as that all

0:09:55 Andrew: Let's Let's detour over to consignment for a minute. Consignment is a legal contract where you, the consignor, have a piece of personal property, goods, and you engage the consignee to sell those goods. The crucial thing is you retain ownership and, subject to the terms of the contract, responsibility over those goods until they're sold, even though they're no longer in your possession.

0:09:55 Thomas: Right this is like pawn shop kind of stuff, oh, okay, to

0:10:21 Andrew: That's exactly right. Or Or auction house, as is the case in this case, right? So when the goods are sold, ownership then transfers from the consignor to the buyer.

0:10:32 Thomas: The consiglieri?

0:10:32 Andrew: So the consignee gets the money. The consignees gets a commission. The buyer gets the goods. It's a triangular relationship. And look, there are lots of fun legal questions here. Like, hey, what if the consignees warehouse floods before the thing they're selling on your behalf? Before that gets sold you look to the contract there's all sorts of interesting corner cases that can pop up you might be asking isn't this a weird okay you know auction house and pawn shops but this seems like a weird corner case like why would you consign something when you have ebay and the answer is the second half of that ram scheme so remember when last we We left Tampa Bay Buccaneers were down 20 to three at halftime because Tom Brady is the goat. He let it come back all

0:10:33 Thomas: No, uh, yeah. God.

0:11:26 Andrew: The way to twenty seven, twenty seven.

0:11:27 Thomas: I thought he was gonna do it, I I couldn't even believe it. Unreal.

0:11:30 Andrew: And then they lost on a last second field goal by the Rams as time expired.

0:11:34 Thomas: Incredible. Incredible.

0:11:34 Andrew: Yeah. So I don't want to talk about the field goal. I don'T want to talking about the touchdown that got Tampa Bay to the tie because that was a rushing touchdown. I want to talk about the touchdown before that. Late, so in the fourth quarter, the Bucs are down 27 to 13. The game is basically over. And then Tom Brady throws a 55-yard pass to Mike Evans, Tampa Bay's receiver, and he scampers into the end zone, cuts the lead to seven. And one of the things that Mike Evans does after most receiving touchdowns is he will turn and launch the ball into the stands, right, throw it to a fan and right, great souvenir, right, touchdown during a playoff game, right? So even though they were probably headed towards a loss, right, like this was a game at home, their hometown Tampa Bay fans, that was Sunday, January, January 23rd. Nobody knew at the time that was going to be the last touchdown of the game by Tampa Bay. And certainly no one knew what was going to happen a week later.

0:11:42 Thomas: Ah. Yeah.

0:12:32 Thomas: Well, no. The last Tom Brady touchdown.

0:12:35 Andrew: The last passing touchdown. That's right. Exactly. Yeah. A week later, Tom Brady announced his retirement. So that turned that, you know, great souvenir that that fan caught into an, oh man, you might pay for your house with this souvenir, It right? Would be the last touchdown ever thrown by the greatest quarterback of all time. And that is why you can sign. The guy who caught the ball realized he had Tom Brady's last touchdown pass, and he immediately contacted Leland's, which is an auction house. They've been in business since 1985. They are probably, almost certainly, the most well-known sports memorabilia auction house right and he consigned to them the ball he said hey sell this for me and the reason you do that is you get less exposure than going on eBay right there are fewer buyers but they're more of the kind of

0:12:37 Thomas: Yeah. Gotcha.

0:12:48 Thomas: Yeah. Hmm. Yeah.

0:13:25 Andrew: Buyers who are willing to pay six figures for a football than you get you know

0:13:25 Thomas: Yeah. I occasionally browse eBay and I think, should I buy this $500,000 football? Maybe. More caviar, please. Yeah.

0:13:32 Andrew: Yeah so Leland's conducted a month-long auction, right, so an online auction to market it to their clientele started on February 13th and ended, put a pin in this date, on Saturday, March 12th at 10 p.m. They got just 23 bids for the football. But because it's a high-end auction house, right, it went from a $100,000 opening bid to a final bid of $432,190 dollars. Now, Thomas, I know you you previewed this segment and said, didn't the guy pay more than a half a million bucks for it in

0:13:56 Thomas: Apparently that's all you need. Yeah.

0:14:11 Thomas: That's what I thought. Is that the fees? Auction house fees?

0:14:13 Andrew: Addition in addition to the commission that Leland's, the auction house, gets from the seller, which we don't know, Leland's charges a buyer's premium to the winning purchaser. Okay, their buyer's premium is 20. That is yeah, way near the top of the marketplace yeah Exactly right, so the guy who bought it didn't pay 432,000, he paid 518,628 dollars, right?

0:14:26 Thomas: Huh. Oh, wow. Your ticket master level fees, gotcha.

0:14:43 Thomas: Oh.

0:14:43 Andrew: And 86,000 right off the top went to the auction house, plus the commission they got from the guy. So, you know, look, this is good work if you can get into it, right? If you don't know this story at all, we're covering it on Opening Arguments, so you can infer what happened next. Literally the very next day, Sunday, March 13th, Tom Brady unretired.

0:15:06 Andrew: So, unless Tom Brady is hit by a bus between now and September, that means Tom Brady is going to throw another touchdown. And this Ball, it's

0:15:06 Thomas: So awesome. Well, Oh, yeah, I mean, you never know, like he could take the field in like, a la 2008, I think it was, first play of game, goes down with a knee, doesn't, doesn't play, but you know, could still be his last touchdown. That would be really funny.

0:15:27 Andrew: True, but the overwhelming likelihood is that this ball is going to go from being the last touchdown thrown by the greatest quarterback of all time to one of 86 touchdowns thrown by Brady during the playoffs, which is also a record, by the way. So, you know, look like it doesn't make it useless. It doesn't make it worthless, but it makes it worth way less. So everybody wants to know, I mean, we have got a ton of emails and tags on social media, does the guy who paid the more than half a million bucks have any recourse against anybody? So, obviously it's, he couldn't possibly have any recourse against Tom Brady, right? He

0:15:37 Thomas: A ball. Yeah. Right. Yeah, unless that was Tom Brady's

0:16:12 Andrew: That would that would

0:16:12 Thomas: Whole plan was just to F over. I wouldn't make a lot of sense.

0:16:17 Andrew: Be real hard to prove. He also has no claim against the seller, right, because of the law of consignment, consignment, right, meant that the seller had nothing to do with the sale except delivering the goods to the consignee. And, right, even if he had delivered the wrong ball, the action would be against the consignee. And then the consignee, would then, Leland's, the auction house, would go back and sue the fan for giving him the wrong call. So Right. Does he have any cause of action against Leland?

0:16:24 Thomas: My immediate opening arguments reaction is no, yeah.

0:16:52 Andrew: Well, Leland is a better entity to sue anyway. Right. Like, I mean, you know, they're making six figures every time somebody clicks the mouse. So, you know, that this that they probably

0:17:01 Thomas: Yeah, it's not like the guy has a bunch of other last touchdown balls from greatest quarterbacks ever that you can go after asset wise, yeah.

0:17:06 Andrew: Substitute. Yeah. We do not have the seller's contract, as I mentioned. So we don't have the Seller's Commission. But interestingly enough, we do have the buyer's contract. Because it is a click wrap, browse wrap type of agreement. And it says, hey, if you come in and you bid, you are agreeing to accept our terms of service and the terms of service specify exactly what they promise to do and not do. And interestingly enough, Leland's does not have a forum selection choice of law clause in their terms of service. So Leland's, if you're listening, give me give me a call, man, like I can help you make these terms way better than they are.

Anyway, they do provide some insight into what Leland's promises to do and promises not to do. And the first one that I think sets this into a little bit of challenging the premise of the question is payment. So it says payment is due 14 days after notification that you've won the auction. Failure to pay invoices promptly will result in suspension of your auction privileges. Personal checks are accepted, but without prior credit terms, merchandise will be held until your check clears. This generally takes approximately seven business days. We accept personal checks, money orders, cash, and wire transfers. We do not accept credit cards as a form of payment. Now it is possible

0:17:39 Thomas: Yeah yeah

0:18:32 Andrew: That instantly upon winning, late Saturday night, the buyer, uh, went out out yeah and put a cashier's check in the mail is also, I think, highly likely that they waited. Right at half a million bucks, if I have 14 days to pay that, I am going to take 14 days to pay that. And the next day is Sunday, right, your bank isn't open anyway, so you can't go in to engage in a wire transfer.

0:18:38 Thomas: Got a cashier's check or whatever more likely, yeah boy or we was doing the office space thing of really trying to get the envelope back out of the, like, thing he dropped it at, Sunday, god, it's not gone yet, hmm.

0:19:08 Andrew: Yep, so it is possible that the buyer hasn't paid, and so this question is really going to be, what recourses does Leland's have against non-payment by the buyer, and the answer there is a lot. The terms of the contract are pretty clear, uh, even if they haven't delivered the merchandise, they can absolutely sue, uh, under the all sales are final clause, uh, you have the acceptance, the click wrap on the bidding, they will be able to demonstrate that they expend a ton of, of money in connection with, you know, I've been joking about like, you know, they get the money as soon as you click on their spot, but look, they advertise, uh, these, you when high-end items come up, they contact their network, right, they, I think, have a pretty good argument, right, that they're entitled to the balance that this guy promised to pay, and auction houses, you know, usually have a pretty good track record when the response is, nah, I changed my mind, unless, right?

Right, there's some reason to doubt the transaction in the first place. So if the buyer hasn't paid, he will get sued by Leland's, and they may enter into some kind of settlement, they're going to be on the hook for a significant chunk of the purchase, purchase price, but let's imagine, what if the buyer did pay already, can't issue a stop payment, you know, got

0:20:38 Andrew: A money order, stuck it in the mailbox, and despite the, like, you know, Flintstones level, office level, you know, whatever, crawling into the mailbox, getting a crowbar out, I, right, think if I were down a half million bucks, I might, uh, break out, break out a crowbar are but still possibly there would be crimes

0:20:38 Thomas: Yeah let's not confess to any crimes, but possibly there would be crimes. I would blame it on DeJoy, by the way. A hundred percent. Hey, I put it in the mail. DeJoys, is just no good anymore, man. I did it. Swear.

0:20:58 Andrew: Yes oh yeah So, is there anything in this contract that would lead to the ability of the buyer to say, oh, I, I relied on X, Y, or Z? Well, let's, let's kind of run those down. First, here's what Leland's contract says about authenticity, it says Leland stands by the authenticity of everything it sells for a period of three years from the date of the auction. It is up to the client to verify authenticity within that period of time. However, Leland's and its agents will be the final determinant of the authenticity of each and every piece it sells. We are not bound by the opinion of grading services, outside authenticators, are so-called experts that that seems absolutely like we promised to do nothing.

0:21:40 Thomas: Well, then what, what use is that clause? Yeah. I promise that I will think this is authentic. Authentic.

0:21:50 Andrew: Um right right uh, bit on copyright that I think is informative, neither Leland's nor the consignor make any representation that the purchaser of manuscript material, photographs, prints, or works of art will acquire any copyright or reproduction rights. There, too, right, that's shout out to our NFT crypto bros, right, like you're, you're buying a piece of art, not, not the ownership of the art and the right to make reproductions from it.

0:21:54 Thomas: Cool. Yeah. So he can't do the adapted screenplay of the football.

0:22:22 Andrew: Exactly, what if, could argue that Leland's, and the base minimum below fraud, would be negligent misrepresentation? Right, they didn't do this deliberately, but they described it as Tom Brady's last touchdown pass, and it isn't Tom Brady's last touchdown pass, so would that fit under negligent misrepresentation. Let's, let's look quickly at the description from the lot item, right, this is what Leland's warranted, represented, described the product as, they said, if there is ever any item in the field of sports collectibles that needs no embellishment, it is this historic piece, the final touchdown ball of Tom Brady's career. And then there's a description of the game, I will spare you that, no one could, could have realized the ball's historical significance at the time.

It was only after the loss and Brady's stunning announcement a week later that the true value of the piece became apparent. Unlike other items used in the commission of a famous last event, this ball has dual significance because it was also used to establish Tom Brady's record of 86 career playoff touchdowns. To put that number in proper perspective, the player at second place, Joe Montana, has 45. Like most of Brady's passing records, it is a mark that will almost certainly stand the test of time.

0:22:43 Thomas: Hmm.

0:23:32 Andrew: As as we mentioned earlier, this ball has been consigned directly from the fan who caught it after Evans tossed it into the stands. That impeccable provenance notwithstanding, the ball has also been conclusively photo matched, and then it describes that. So that sort of goes back to that authenticity clause, right, they have warranted and described the process that they've used to conclude that the ball they're getting to you if you win this is in in fact the ball that was caught. Right.

And it describes, you know, what it looks like and, you know, matching specs under the ball, you know, with respect to images taken during the game. It, right, is only through an incredible stroke of luck that this ball is available to private collectors. If Evans had not tossed it into the stands, it would still be in the possession of the Buccaneers and would never be offered publicly. Leland's two has experienced a second stroke of good fortune. It was less than a year ago that we offered Tom Brady's first career touchdown ball, and I didn't know this, right, Brady first touchdown ball, like his last, was also tossed into the stands by the receiver

0:24:32 Andrew: Who caught it. Yeah.

0:24:15 Thomas: Yeah. Wow. By Mike Evans. No, he was a baby then.

0:24:34 Andrew: It was Terry Glenn.

0:24:35 Thomas: Yeah. Oh, Terry Glenn.

0:24:35 Andrew: Uh, therefore, yeah, depriving the NFL Football Hall of Fame of what would be two of its most important artifacts. Which of the two Brady touchdown balls is the most significant, his first or his last? That is of course for the collectors and historians to debate, but one thing is certain, the opportunity to obtain a piece of football history of this magnitude may never present itself again. Okay, so piecing through that, you have, I think, four claims, right, of varying degrees here. One, it's the final touchdown ball. Two, it was used to establish Brady's record of 86 career playoff touchdowns. Three, it deprived the NFL of what would be two of its most important artifacts. And for, the obtained, the opportunity to obtain a piece of football history of this magnitude might never present itself again. Okay, the last two were really easy to kind of throw out, right? Right, there they are, uh, the law around this is very, very clear, puffery,

0:24:48 Thomas: Yeah. For the bidders to decide with their money.

0:25:29 Thomas: Puffery.

0:25:30 Andrew: Yeah, and we've talked about that before, it is saying, yeah, this is, I can sell anything and call it the you opportunity to obtain a piece of history of this magnitude. Yeah, okay. The, used to establish the provenance as a playoff touchdown, well, that you get, that you got that right, you just may have grossly overpaid for it.

0:25:30 Thomas: Yeah. Yeah. Yeah. It's still his current playoff record, like he might, I mean, even if he comes back, he might not throw another playoff touchdown.

0:25:50 Andrew: Yep. He Might he might Not ever. That's exactly right. That is far less certain. But let's get to the meat of it. Is it his final touchdown ball? And is there a live claim against Leland's for calling it that if it turns out not to be? And the answer is almost certainly not. OK. The tort of negligent misrepresentation under New Jersey law, proof of three elements. Number one, an incorrect statement negligently made, and that you might say we potentially have that here.

0:25:56 Thomas: Yeah. Ah.

0:26:13 Thomas: That's what I thought, but you're you're trying Yep.

0:26:27 Thomas: I mean, I think this has come up in something else, but about statements that were true when you made them, but they turn out to be false, you know, like how does the timing work, okay?

0:26:27 Andrew: Right, Put a put a pin in that. So you might stay, well, yeah, this seems to qualify, right, it's no longer, there will be a time in which it is no longer Brady's final touchdown ball. Okay, two, justifiably relied upon. Okay, well, that, that's super easy to prove, right? You just say, yeah, I definitely wouldn't have paid a half million bucks for a random Tom Brady playoff touchdown ball. And three, that the injury was sustained as a consequence of that reliance, well, that, that seems to fit too. Okay, so why do I say. And the answer is, what counts as an incorrect statement? And from there, we look to the law of fraud. And remember, fraud is harder to prove than negligent misrepresentation. So if something is excluded from fraud, then a fortiori, it would be excluded from negligent misrepresentations. And the elements of fraud in New Jersey are, a, you only need to get past this first one, a material misrepresentation of a presently existing or past fact. Fact.

0:26:38 Thomas: Yeah. Yep. Yep. Yep. Yeah. That seems easy.

0:27:39 Thomas: Ah.

0:27:39 Andrew: So there you go. As a matter of law, if you are making a fraudulent statement, if you are taking a misrepresentation of any kind, it must be presently existing? False at the time that you made it or previously fault, right, like it was either false at that time or at some point in the past. And if it turns out to change after you've made the statement, it by definition cannot Cannot be fraud. And this is this case, if you stop and take a step back, is precisely the reason why. Right. Because who could have possibly foreseen that, you know, 12 hours later, that

0:27:56 Thomas: Yeah. Yeah. Yeah. There's no point during the auction process that, that you should have said that. Well, this auction house should have known better. It's like, no, they were doing everything kind of by the book, how it should have been done, I know, and

0:28:27 Andrew: Is exactly right. So, you weep not for the guy who bid a half million dollars on a football. I would also, uh, shed no tears if luxury auction house had to fork over six figures, right, like, you know, there's a lot money with to, uh, go around here, but, but those are the principles of consignment and negligent misrepresentation as they come to a head in, uh, to a in what was the final touchdown overthrown by the goat.

0:28:55 Thomas: Think about how much money we're gonna get for the final quartile. This is the final quartet. There are no other quartiles after this.

0:28:55 Andrew: Oh, There are That's true, that is, that, that is a, then existing true statement. Love it.

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0:32:22 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or Russia is a ruse. I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:32:41 Thomas: So, Andrew, another Eastman update, the gift that keeps on giving. This, what do we need to know about what's going on with Eastman and the documents and all that? Oh.

0:32:48 Andrew: Yeah, and I love that you have resurrected Yodel Mountain for John Eastman. This is where I stick if there's going to be a Yodel Mountain.

0:32:52 Thomas: Yeah. Shoot. I Shouldn't have auctioned off the final Yodel Mountain, though. Gosh dang it, uh, nobody sued me over that, geez.

0:32:56 Andrew: Oh, yeah. Anyway, we have been focused on the 111 documents that have been withheld as privileged and that are now undergoing in-camera review by the judge in connection with whether they are properly withheld as attorney-client privilege. Those are documents from the time period January 4 to 7 that are now before the court. But remember that the 1-6 subpoena was issued to Chapman University, right, who wants to cooperate. And Eastman is the one suing to block the production for, you know, all the bad faith reasons we've talked about. That subpoena covers way more than just those 111 documents. Right, it says produce all documents in your possession, custody, or control attributable to Dr. Eastman that are in any way related to the 2020 election or the January 6th joint session of Congress, including any on your email server and any on any electronic device used by Dr. Eastman, such as a university computer, mobile phone, tablet, or any hard copy, from November 3rd, right before Election Day, to January 20th, 2021, when Joe Biden was inaugurated. There are, Chapman University tells us, 21,396 responsive documents.

0:34:18 Thomas: Those Reply alls Add up, I think.

0:34:18 Andrew: Yeah. Yeah, they do. That's right. And so what Chapman University did was they sent those to Eastman. It's a PST file, right? That is what Microsoft Outlook uses when you archive Your emails, Eastman, right, has ostensibly been reviewing those documents since January 26th, and since the court told him to do that, he, right, lost his preliminary injunction hearing, and the court was like, okay, well, if you're going to object to the production of these documents, I need you to figure out two things. Number one, do a relevancy review. Is, right, this responsive to the subpoena? And number two, you need to create a privilege log for any document that you claim is privileged, right? And that's what led to this ongoing dispute, right, like Eastman created a privilege log, withheld those 111 documents, and the one committee was like, yeah, we don't think so. The relevancy, you might be thinking, well, how could it not be relevant, right? And the answer is, um,

0:34:21 Thomas: Oh.

0:34:32 Thomas: Yeah, well.

0:35:18 Thomas: Yeah.

0:35:18 Andrew: Yeah, right, you do a search for January 6th, and, you every email that came in on January 6th is going to show up

0:35:24 Thomas: Boner Pills You Know, there's Got to be a lot of stuff, yeah.

0:35:25 Andrew: Right yeah yeah yeah Exactly. Exactly right. And you might also add, this is adjacent to our recent Lawed Awful Movies. You're saying, OK, well, Eastman gets to do his own review. Like, how do we know he's not just going to randomly delete stuff that looks bad? And the answer is Chapman can check. They likely have already checked, right? This is why they have taken a position directly adverse to their own professor in litigation. Their counsel, right, has seen these documents and they likely know, you know, they know the contents of the documents.

0:35:58 Andrew: I will Leave it at that. We have not seen the documents, so it would be irresponsible to speculate that these are smoking gun documents that implicate the president of the United States. But they, you, sure could be. So on January 26th, the court ordered Eastman to review fifteen hundred documents a day, for each business day, that, right, was after the 1-6 committee had filed a motion saying you got to give this guy a schedule because we think he's slow rolling us, right? And so the court said, yeah, we agree, 1500 documents a day, Professor Eastman, notify us, notify the court if there are any issues with maintaining that schedule. So on Monday of this week, John Eastman filed a letter with the court requesting the right to slow down his review. And his argument is it's taking him, quote, up to 10 hours a day to review the 1500 documents, because the privilege review cannot be delegated to anybody else, can't be delegrated to an associate or a paralegal, because, and again, this is directly from the letter, Dr.

0:35:57 Thomas: They Know how Insurrection-y They are, and

0:36:57 Andrew: Eastman is the only one with necessary background knowledge. Now, slight digression on that, that's a ridiculously slow pace unless you're classifying everything as privileged, right? You can knock out 1500 documents on relevance super easily, right?

0:37:13 Thomas: These are, are all Emails, right, so You'll see a thread of like, oh, my wife, go, we're missing milk, go, can you go, you know, there's gonna be bunch of just that, right, like back and forth emails of nonsense that obviously are not privileged or not relevant.

0:37:14 Andrew: Yeah. Yeah. Yep.

0:37:28 Andrew: And the court has already ordered that the one six committee turn over and pay for Dr. Eastman to use computer software to aid in the relevance review, as you might imagine. There are lots of those programs, and so you just sort of run the first pass and you're like, hey, exclude everything that isn't, you know, that doesn't say January 6th or doesn't say Donald Trump or doesn't say 2020 election or whatever. And those software programs are presumptively valid in the in the discovery process. And again, one sex committee, that means our tax dollars.

0:38:06 Thomas: That's Weird to me, because being Someone who has worked with data in the past, there's, there could be a ton of relevant stuff that doesn't say one six or Trump or, you know, there's gonna be lots of emails that are just like, so do you think we should go with the plan, or, and

0:38:06 Andrew: Yeah. It And so the programs, I will tell you, I'm oversimplifying, use, like, fuzzy logic, right? They're pretty good, and they're agreed upon as being presumptively valid on both sides

0:38:31 Thomas: Who determines Those search terms? Is like the other Side gets to set them? Yeah.

0:38:34 Andrew: That That can be a subject of debate, right? Like, what you can do is depose the person who conducted the search and say, you tell us what you use, what you put into this program to exclude or include documents. So all of those are relevant inquiries. I am not concerned. I know, you know, this, again, you asked me this during Lamb-bam, it's very tempting to think, this, you, is a Better Call Saul moment of, You know, I can hear the shredders going in the background, right? And can see them through your closed blinds. People tend to think that that happens way more often than it happens. Now, would I put that past John? I wouldn't. But I also, I think that he was more likely to have just claimed privilege, right, like, like, it's better to over-claim privilege and less likely to get you a fraud conviction than it is to start spoliating documents that incriminate you, especially when you know Chapman has the originals, right?

0:39:00 Thomas: Right. Right.

0:39:32 Andrew: That's the backstop. So Eastman's letter says, with the exception of the time period surrounding the recent briefing schedule, that's pretty big exception, we've not only met 1,500 documents a day, but we've produced 2,951 more than was required. I'm looking at that and I'm like, this is a very suspicious way of describing what you've done because you do not identify the total number of documents that you've produced, right? If you had produced X percent of 21,396, you would have said that, right. Instead, you said, well, we're doing everything we have to do, except we didn't do it when we were preparing for the hearing and we've gone 2951 over it. But so we reverse engineer how many documents they've produced? I would think so, because the letter says if the fifteen hundred per day were to be maintained, the review would be completed by April 6th.

0:39:33 Thomas: Geez.

0:40:24 Andrew: If you drop to seven hundred and fifty, we'll complete it on or before May 6th, if you drop us to a thousand, we're complete on or before April 21st. So those are the options that Eastman gives the court. So I just did a little math. Twenty one three ninety six divided by fifteen hundred is fourteen point two days. Round that up to 15 days. Right. So there are 15 business days between the date of this letter and April 6th. Even if you want to give the day off for Good Friday, which is not a federal holiday, that would imply that they have produced zero documents to date or that John Eastman like doesn't consider Fridays to be a business day. I don't know. But but Right. Either way, they have they've produced a couple of days worth of documents at the most.

0:41:10 Andrew: Then if you drop that by 50 percent, right, which is what they want, that would then imply you need an extra 14 days beyond the schedule that you would complete in an ordinary time frame. Right. April 6th. But there are 20 business days between April 6 and May 6, which ist when they say they'll have it if you let them slow down. So they're going very, very slowly. They're playing fast and loose with their numbers. Think this is going to be just another one of these irritants to the court of like, did you come forward and say this? So as of the time that we're recording this, we do not have the response from the 1-6 committee. But I'm real positive that Doug Letter can do the math that I've just done. And also, he knows because he's seen the privilege logs that they filed. I have not because the privilege logs themselves are sealed filings. Right. So I can't even see the Excel chart of, documents you one through, you Know, whatever. Doug letter has seen that he knows exactly how many documents they've produced.

And this is just never a good thing to do the like, not only have we met 1500 documents per day for the period, not including the time period, we're briefing this, but we've produced 2,951 more than was required. Doug Letters could come back and be like, yeah, you produced 4,000 documents. That's it. Could it push the court into issuing a blanket ruling that there's no privilege? Right.

Like if we've talked about this, this is very likely to be and what the court is going to balance is the need to bulletproof its opinion in a very, very important case.

0:41:51 Thomas: Yeah.

0:42:47 Andrew: Against what is an overabundance of law on the court side. But if the court comes back and is like, none of this stuff is privileged, so you can stop doing a privilege log, Dr. Eastman, and that will take us from it taking you 10 hours A day to review 1500 documents to it takes 1500 seconds for you to review 15 under documents, and, and, also you can delegate this out to a whole bunch of people, where in fact I am sure that the one six committee would pay for an outside tank team to come in, uh, and Review.

0:43:02 Thomas: Oh.

0:43:19 Thomas: Is that us? Do we get to get in the van, everybody?

0:43:21 Andrew: Yeah, they, they could, they absolutely could. Look, the one sex committee has already said we'll give you the software, they could 100 percent, uh, hire us to go and review those documents, which, uh, and by the way, it would be a a great idea.

0:43:33 Thomas: It's the job I didn't know I was born to do. All

0:43:37 Andrew: So that's our update. Things are going slowly. Johnny Smoot is trying to pour syrup into the machinery of justice. And I don't think this court is going to stand for it, but we'll keep watching.

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0:45:22 Clip: Down the law, down the law.

0:45:26 Thomas: Andrew, important story here. There's a lot of spinning. There's a lot of talk about this headline that one, six prosecutors admit they violated suspect's rights, well, let's hear it. Is that the real story? What's going on here? Is this political prisoners? I know that's a big campaign thing on the Trump side now to call the one, six people like political prisoners and that that they they need asylum, you know, other places. Um, what's going on here. Is there anything to this?

0:45:53 Andrew: This is actually a very, very good good development. And it explains a couple of important legal principles that we have talked about here on the show. But yeah, let's unpack it. This is the case of Lucas Denny, who was a violent one six insurrectionist. And Right. An irresponsible CNN headline that begins prosecutors admit they violated a Capitol rioters rights after leaving him waiting in jail since December. So, yeah, you read just that line. And Uncle Frank is like, See, the government is just... Okay, here's what actually happened. So, Lucas Denny, violent insurrectionist. On December 13th of 2021, so three months ago, he was arrested in Texas, that's his home state, on a warrant issued by the magistrate judge for the U.S. District Court for the District of Columbia, Robin Meriweather.

He was charged with numerous felony violations related to one six, including 18 USC 111, which is assaulting, resisting, or impeding certain officers or employees and using a deadly or dangerous weapon or inflicting bodily injury, that's super serious, right? 18 USC 1512c, we recognize that one, that is obstruction of an official proceeding and conspiracy to obstruct an official proceeding, and six or seven other charges. Right. So this is not just somebody in the crowd. This is somebody in the crowd with a dangerous weapon who engaged in violence against the Capitol Police. He then made his initial appearance in the court in his home district, the Western District of Texas, in front of a magistrate judge who ordered him detained and ordered him removed to the U.S. District Court for the District of Columbia. That's where these cases are being handled. So, held without bond as a dangerous, violent insurrectionist and transferred to D.C.

0:46:02 Thomas: Hmm. Yeah. Yikes.

0:47:53 Andrew: Again, this is December 17th. So, December 21, the government then emailed staff for three Washington, D.C. magistrate judges saying, OK, we're going to need an initial appearance for this guy, uh, Denny, and his co-defendant. This is right before the holiday. December 28th, uh, the government emails back again and says, uh, hey, last week we said, uh, we need to schedule an initial appearance, how's that going? Two days later, uh, they reached out again and said, all right, this is our third email, we, we talked to you last week, we talked to you on Monday, now it's Wednesday, uh, what's, going on? And the court wrote back and said, we are attempting to locate your prisoner.

0:48:34 Andrew: January 4th, government's counsel emailed the court staff to indicate, oh, OK, well, we were looking to, because this is really important to us, he is still at the Val Verde Detention Center in Del Rio, Texas. In other words, by January 4th, had not been been transferred to D.C. yet. Okay, February 1, the U.S. Marshal's Service emailed the court, the government, the DOJ, and pretrial services, among others, and said Denny had been formally transferred to the Northern Neck Regional Jail, uh, just outside the District of Columbia on January 31st, 2022, so he's now in the jurisdiction. He, his Texas lawyer resigned when the case was transferred to D.C., he hired a

0:48:34 Thomas: Huh? I

0:49:20 Andrew: D.C. lawyer, John Pierce. February 4th, Denny's lawyer, John Pierce, reaches out to the DOJ and says, um, okay, let's, let's have a Zoom conference for the, initial initial appearance here in this forum, that everybody thought was going to happen on February 7th, right. And why would you do it over Zoom? COVID, right? So then there are a bunch of emails between Denny's counsel and the DOJ that reflect a, you know, if it's not a man's life at stake here, you're in liberty at stake year, we would call a comedy of errors. I thought it was Thursday. Isn't it Thursday? It's not Thursday. Is it next week? So, right, on February 25th, 2022, that's three weeks later, the court scheduled that initial appearance for March 10th. And then there's some other procedural stuff, but on March 5th, Denny filed an emergency motion for release from custody and to dismiss the case, and the argument was that the complaint should be dismissed with prejudice because the government failed to file an information or indictment within the 30 day time period provided by the Speedy Trial Act, which, which is 18 U.S.C.

0:49:38 Thomas: Was

0:50:28 Andrew: Section 3161B. And we have referenced this before. The Speedy Trial Act is the way in which Congress implements the Sixth Amendment's guarantee that you're entitled to a speedy trial.

0:50:38 Thomas: Going to ask. I thought that was just a constitution-y thing, but they decided to encode it in law.

0:50:43 Andrew: Yeah, that's right, because what counts as a speedY trial, right?

0:50:46 Thomas: Right. And how much of it are you due?

0:50:48 Andrew: And how much are you due? And the answer is, this is subsection B, any information or indictment charging an individual with the commission of an offense sentence shall be filed within 30 days from the date on which such individual was arrested or served with a summons in connection with such charges, right? So in other words, you get arrested, the government has 30 days if it's a federal crime to get an indictment from a grand jury. This is why you often get the indictment from the Grand Jury first, but right, sometimes, if somebody is particularly dangerous, you arrest first, impanel the grand jury second, second.

0:50:48 Thomas: Yeah. Oh,

0:51:24 Andrew: You also note that uh information or indictment, remember you can in cases in which the defendant has settled and is cooperating, you would draft an information. And in those cases, the defendant almost always agrees to waive the provisions of the Speedy Trial Act because they want their lawyer will want to uh have a say in how that information is crafted, right? Because you're only going to plead to lesser offenses. You don't want just the government to write up an information, you know, one-sidedly, or get a grand jury indictment that is, you know, here's all the things we could have charged you with. You want only the presentation that you've negotiated in connection with your plea agreement, which is going to be to lesser offences, right?

0:52:10 Andrew: So put a pin in that because criminal defendants agree to waive this provision of the Speedy Trial Act all the time.

0:52:16 Thomas: Interesting.

0:52:17 Andrew: That didn't happen here. Are also provisions that extend the 30 days if certain things happen. And one of the things that gets extended is if you are transporting the defendant. So this is subsection H1F. We do not include any period of delay resulting from other proceedings concerning the defendant, including but not not limited to delay resulting from transportation of any defendant from any other district.

0:52:39 Thomas: Yeah. Or like a bus crash down near a train track when then you escape from the bus and you're on the run and you are a doctor and you did not actually...

0:52:47 Andrew: Right. And we have to search every outhouse. Yeah,

0:52:51 Thomas: Yeah, so that provision's in there, I hope.

0:52:52 Andrew: That this is H1F. There are a lot of provisions in there. Yeah. So except that any time in excess of 10 days from the order of removal shall be presumed to be unreasonable. So you put all that together. And if the 30 day period to to indict Denny began on December 13th, and you add 10 days for transporting him from Texas to D.C., that would be 40 days to present an indictment. That is on or before January 22nd of 2022. That's two weeks before he even appeared in the district, right? And before his lawyer started negotiating with the DOJ in terms of, hey, man, when are we going to have our initial appearance, And right? So you might say that that seems weird. Why didn't his lawyer just move to dismiss on January 23rd?

0:53:40 Thomas: Yeah.

0:53:41 Andrew: The answer is because it seems plausible that there may have been a discussion of a speedy trial act waiver. And there was some uncertainty on everybody's side as to whether, you know, this guy was going to cooperate, whether he was going to waive those provisions or not. And eventually the lawyer was like, all right, well, look, like if we can't introduce evidence that that there was a waiver, you returned an indictment on March 7th. By the way, that was a super speedy indictment that they got of one count of assaulting a federal officer. That is the 18 USC 111. He was initially arrested on seven or eight different charges.

0:54:23 Thomas: Are they free to do more after that?

0:54:25 Andrew: They you can get a superseding indictment on the other. Yeah. But they ran.

0:54:27 Thomas: Oh, okay. So you just got to get one in there real quick.

0:54:29 Andrew: Yeah, you ran to the grand jury, did a quick presentation. We're like, all right, guys, quickly.

0:54:30 Thomas: Yeah. Yeah. It's one picture of the guy punching a cop done.

0:54:37 Andrew: Yeah that's right. That that literally is what they did. That's the easiest thing to do. OK. And so the indictment came two days after the attorney's defense counsel filed a motion to dismiss the case and to release their client. And now we got at the beginning of the week on on Monday, the 14th, the government's response to that motion for release. And guess what the Biden DOJ did?

0:54:38 Thomas: Yeah. Oh, wow. Yeah.

0:55:04 Thomas: They probably said we goofed.

0:55:06 Andrew: They said, look, we agree that we violated the law. We think this guy should be released because although we had a very good faith basis for screwing up on the timing, that was we thought that there was a waiver and a cooperation agreement. Turns out that wasn't. It took a month to transfer him to the district. There was the comedy of errors with respect to scheduling the Zoom conference. But yeah, we did not comply with the 40 days that are required under the Speedy Trial Act. So he should be released. But the charges should be dismissed without prejudice. We should be free to come back and file again. Again, and is that a real thing, right?

It is, in fact, a real thing, because right now, to to re-arrest, they're going to have to go back to a magistrate judge in DC, and they're gonna have to explain the story, and the magistrate judge may look at it and go, "Wait, um, you kept this guy in in jail for a couple of months without, uh, bringing an indictment. Um, I don't know that I'm gonna issue an arrest warrant here." Right? Then they'll have to go to a grand jury again, re-impanel it.

Okay, they do that. They give a selective, one-sided presentation. Then at the initial appearance, the judge is going to have to decide whether to hold this guy without bond again.

0:55:08 Thomas: Yeah. Mm-hmm. Mm.

0:56:16 Andrew: And you can damn well bet that his lawyer is going to say, yeah, last time the government did this. Yeah. And the judge's free to take that into account and look like that would be a real good argument.

0:56:19 Thomas: Yeah, we're being harassed. Violence inherent in the system. Yeah, yeah. Because that that was going to be my question to you. Was this does feel like something the system could use to harass somebody. So, but there it looks like there is protection built in somewhat that a judge could look at it and be like, oh, you're just harassing this guy. Like, Like, if it weren't a real case, I mean, like, if it was, yeah.

0:56:42 Andrew: Absolutely. Right. Because we would not want to have a system, even under the Speedy Trial Act, where the cops come in, they arrest you, they hold you for 29 days, they set you free, they come back, they arrested you again, and you never get an indictment. Right. Like, obviously, there comes a point, again, because we're not originalists and we're not bound by the strict language of the Sixth Amendment, that there comes up a point in which you would say, all right, like this is violating your speedy trial rights. You're just like engaged in this catch and release system of this guy. Like that's not fair.

That violates his Sixth Amendment rights. So the question is, can? Can they re prosecute for any of these offenses? And the answer to that is established by a case from the D.C. Circuit 2019 case called United States versus McClendon. And it says in violations of the speedy trial act, the court shall consider, among others, the following factors. One, the seriousness of the the offense, two, the facts and circumstances of the case which led to the dismissal, three, the impact of re-prosecution on the administration of the Speedy Trial Act and on the administration of justice, and four, any prejudice to the defendant resulting from the Speeny Trial violation.

0:57:14 Thomas: Yeah.

0:58:00 Andrew: So the government then kind of lays those out and is like, look, all right, let's go through these, knock them out really quickly. One, seriousness. It's the 1-6 insurrection. This is without comparison in our nation's history, and so therefore is of utmost seriousness. That seems like a pretty knockdown argument to me. Number two, what are the facts that led to the dismissal? Well, we just went through those, there right? Is no, and this is the crucial part for the court's analysis, bad faith or pattern of neglect here, so right, that's the protection the law has built in against what you described, the sort of serial harassment.

Is this something that a court would adjudicate that the government is doing in bad faith? Targeting a guy doesn't look like it, right. What is the impact of re-prosecution? Uh, courts have pretty much agreed that that third standard is subsumed by the first two, and and that's how they analyze it. There would be no impact of reprosecuting him because it's super serious offense and we didn't get very far, right, it's at the initial stages.

Uh, know, we we didn't even even get an indictment out until March 7th, right? So you, there's no, there's no prejudice to the defendant in that way, and that gets to

0:58:08 Thomas: Yeah. Pretty serious.

0:59:04 Andrew: That bridges the gap to that fourth element, considering any prejudice to the defendant. There are two types of prejudice at issue here, right. The first is, have we prejudiced your ability to go to trial, right, and you could easily imagine that, right, like if you did the sort of catch and release and like a a key witness dies, right, while you're in that 30-day or, you know, extra time period that the government has held you in prison, you could say, yeah, they waited two year to arrest me. Then they validated the Speeny Trial Act by not getting an indictment within 30 days.

And in the the span of that, my key alibi witness is now dead, right? That would be a really, really good argument that your trial defense had been prejudiced, right, but there's a second kind of prejudice, you might, right, say, okay, well, sure, I can still go to trial just as easily as I could have had they not done so, but I spent an extra month and a half in prison, right and that is is prejudice to my liberty. Courts do recognize that and will say, you know, we will take that into account. But 44 days is courts have held not a sufficient infringement on your liberty. The government cites cases in which the delay has been 216 days.

1:00:17 Thomas: Yikes.

1:00:18 Andrew: And nevertheless, they've come back. And again, right. I want us to kind of put all of that together. Yeah, go ahead.

1:00:21 Thomas: Yeah. Well, what I've been wanting to say about this is a lot of this process is privileged whites finding out what the system does to, you know, poor indigent people of color every single day. And then calling that, like, "Oh my God, this is a political persecution." It's like, no, actually they violate people's rights all the time. Like, literally every day they violate people's rights and they get away with it all the time. Like the overcrowding, that's made out of the the conditions of this particular jail. I think, I can't remember which one. And it's all stuff that already existed, like it's stuff that already existed, the average Fox News viewer does not give a crap about it until all of us, yeah, exactly, until it's then it's like, "Oh my God, we're being, you systematically persecuted."

1:00:34 Andrew: Indeed.

1:01:04 Andrew: When it's them. This is

1:01:11 Thomas: It's like, no, you just got into the system that we've had here, the awful, awful system that's been in place.

1:01:16 Andrew: The worst type of injustice ever. The kind that's against me. Yeah. Exactly right. Right. And so if you're engaged with Uncle Frank, who has read this headline and then and literally like that is all right wing sources do. I mean, sometimes they just make things up. But whenever they think they have a smoking gun, it will be, you know, a screenshot of the CNN headline. And then Uncle Frank will say, well, you Know, I read on Gateway Pundit that, you Now, the Justice Department even admitted that they're just harassing these political prisoners.

1:01:49 Andrew: Um, this is an incredibly good thing. This is the Justice Department saying, "Yeah, we should have to abide by the rules. Yeah, we agree that this guy should be released." And you should be proud of that, and and by the way, like, this is what we on the left should want for all of the reasons you just described. It's right, easy to say, "Yeah, when it comes to one six, you arrest them all, lock them up, let God sort them out." But this is our larger role as stewards over the criminal justice system is typically to come down on the side of defendants' rights. So I love the fact that the Biden DOJ did not take a hard line position here.

Um, think it's an important cautionary tale for the folks who ask us, many, many in good faith, a handful in in bad faith, "Well, why hasn't the DOJ arrested X person yet? Right, why? I don't understand." And the answer is DOJ has arrested hundreds, now in the thousands, of defendants in connection with one six. And there is a tremendous amount of work that goes in to prosecuting each and every one of these. There's a tremendous amount of time that goes, and there's a tremendous amount of administrative stuff in finding a person in Texas, trusting the state to get them transferred to D.C., and figuring out how to do all of that within the strict compliance of the Speedy Trial Act, right?

1:01:20 Thomas: Exactly. Yep. Yep, yep, yep. Yeah, yeah.

1:03:21 Andrew: Right. Whether you're going to have to impanel a grand jury all of a sudden. All of those things counsel for what we've been saying all along, which is you bring your indictments, you bring Your arrests when you're ready to proceed with that case and inferring, you know, dilatoriness or bad faith on the on the part of the Merrick Garland Department of Justice is really something that. Wouldn't That do if you understood the legal requirements. And this is a vivid illustration of that, If right? We had thousands of folks, because again, this is one instance in which it has happened out of over a thousand defendants, if right, we had multiple examples, if 10,000 people had been arrested, then there aren't enough judicial resources to keep up with that.

1:04:10 Andrew: And we would be having repeated instances of the government violating the Speedy Trial Act with result to one six defendants. And that would provide a basis to go back under those factors and say, yeah, okay, this is not just one screw up anymore. This is now a pattern and practice, right? This is a pattern of neglect of these kinds of defendants. And you would have a very good argument for those folks getting off 100 percent scot free if their cases are similarly mishandled. And you can imagine if we're talking about this on the show, you can image there was an all hands on deck meeting on Monday at the DOJ to to say, hey, you got to cross your eyes. You got to dot your I's and cross your T's here because the next time this happens, there's now a precedent, is a pattern, we right, want it to be that. These are important protections.

1:04:54 Thomas: Yeah...yeah...yeah.

1:05:05 Andrew: Protections. It

1:05:04 Thomas: I think...I just hope, similar to last week's episode with Professor Lessig, I hope no insurrectionists are listening, because I think the message they'll take is, oh, we just need insurrection with like more people and then they just can't even handle it. Like it's to flood the system with insurrectionists is what I'm hearing.

1:05:23 Andrew: Is a weakness, uh, that we have thousands, potentially millions, of people who are out of touch with reality and sympathize with insurrectionists, including, you know, the wife of a sitting Supreme Court justice. That that's a super problem. Oh, we sure will.

1:05:38 Thomas: Oh my God. Why haven't we done a Ginny Thomas episode? We'll get there. All right.

1:05:44 Thomas: Well, that makes a ton of sense. I still think CNN is irresponsible in posting that headline, even though it's technically correct. I feel like they know what they're doing, but that's just my personal opinion.

1:05:53 Andrew: I agree with that 100. Yeah.

1:05:56 Thomas: All Right.

1:05:57 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:06:03 Thomas: And now it's time for T3B. Thomas tries to be ethical. I think we're going to do 10 of these and I did get my first one wrong, but you know, I can still go for a gentleman's A minus, a 90% if I get the rest of them right. So here we go. Can I Be Ethical?

1:06:14 Andrew: We go. Thomas, a man asked an attorney to represent him pro bono in an appeal from the denial of his unemployment benefits. The attorney agreed but missed the deadline to file the appeal. Rather like our lawed awful movies. Yeah.

1:06:31 Thomas: You get what you pay for. Yeah.

1:06:33 Andrew: When the attorney discovered this error, he met with the man and presented a proposed settlement of the man's potential malpractice claim against himself, against the attorney. The attorney proposed to pay the man an amount equal to the unemployment benefits he would have received had his appeal been successful, successful. In exchange, the man would agree to waive any malpractice claim. The attorney memorialized this proposed settlement in a written document that included a statement advising the man to seek independent legal counsel before accepting the settlement and stating that the man could take as long as he needed to do this.

However, without consulting independent legal counsel, the man agreed to and signed the proposed settlement. The next week, the attorney subsequently paid the man the money he would have received from a successful appeal, is the attorney subject to discipline? A, yes, because the attorney made an agreement with the man to waive a potential claim for malpractice. B, yes because the man did not consult independent counsel before he agreed to the proposed settlement. C, no, becausethe attorney advised the man in writing to seek independent legal counsel before agreeing to the proposal settlement. Or D, no because the the attorney agreed to fully compensate the man for his losses.

1:06:51 Thomas: Wow. Hmm. Huh. Oh, Man. I might get another one wrong here because this is tough. And it's probably rules of conduct that I just don't know whether or not they exist. In last week's episode, we established that you can't do an agreement that limits your your ability to represent someone in the future, I think. So sounds like will there be a similar rule around limiting you your liability for malpractice or something like that? Let's see. Man is a saint, by the way, so I hope the answer is no. He's gonna represent somebody pro bono, messed up, and is like, "All right, I'll just pay you everything you would have made if I didn't mess up." Like, jeez, what what a saint. Then okay, he says, "Look, I'll pay you the money you would have gotten if if you wave any malpractise claim." So he, it in a document, and and in the writing of the documents, he says, "Make sure to seek independent legal counsel before accepting the settlement."

1:08:40 Thomas: So, he didn't tell him that. He did print it, you know, so I don't know if it's like, I don't, a click wrap type thing. If you're, if you have to also say it, we'll see. I don't know if that matters. Uh, the man didn't consult independent legal counsel and agreed to and signed the proposed settlement, uh, so the attorney paid the man the money and uh, so is he subject to discipline?

A is yes, because the attorney made an agreement with the man to waive potential claim for malpractice. It's it's a tempting yes answer under the same kind of like logic of last week, like there's some rule that might prevent you from being able to do this. But I think this is a little different. I feel like you'd have to be able to make agreements with people to waive malpractice, that because ability is enabling the settlement, which seems like a really good thing. Know, it seems like because if let's say the lawyer wasn't able to doing that, like wasn't allowed to enter into this agreement, he has no incentive to like pay the person's money because if he pays the person this money, He could still get, subject to, he could still be sued for malpractice. Don't know. That doesn't, it could be right. It could just be that there's a rule of this, but I don'T, I DON'T think that's right.

I feel like you need to be able to do this to, in order for situations like these to happen. So for now, I Don'T think A, but IDON'T know. We'll see. B, yes, because the man did not consult independent counsel. I don't think it could be B because that's that seems to be outcome driven or whatever, like that puts the burden on the other guy to consult independent counsel rather than the attorney to notify.

1:10:16 Thomas: So, like, for example, if the attorney had had not said to to consult independent counsel, but then the man just did anyway, then that would say that, like that's fine, which doesn't seem right to me. So I'm going to say no, no on B. C, no, because the attorney advised the man in writing to seek independent legal counsel before agreeing to the proposed settlement. So that's that's hitting on that issue. If I'm doing issue spotting, A is this is a question about whether or not you can, you an agreement to waive a malpractice claim. And C is like, no, it's not about that. It's just about whether ou not the attorney advised the man to seek independent legal counsel. And so C would be like, is it enough that he advised the men in writing, I think. And D, no because the attorney agreed to fully compensate the man for his losses.

1:11:04 Thomas: I don't think it could be that. That would be super tricky if that was somehow like, you that vitiates kind of everything. Like, yes, somewhere along here, there's the violation of something, but because he paid him for everything, it wipes it out. That wouldbe super tricky. I'm going to go not D. So for now, I think I'm between A and C. No, I know I'm between A&C because I don't think B&D are very good. So I'mbetween A& C. And so is it A, that you're not allowed to make this kind of agreement to waive a claim of malpractice? And maybe, you know, that could be like one of those super ethically things, like, sorry, we're just not going to allow, we don't want lawyers to be able to buy off people from their, you know, from their milk practice That's possible.

A is totally possible, but I think I'm gonna go with C because I just think it would be tough, you know, this like, this seems, seems like a good outcome that would be made impossible if A were true. And I maybe that's how it is, but I'm going to go with C, final answer. A is my second choice, ethic, ethicist answer.

1:12:05 Andrew: All right. If you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guests, your reasons. Therefore, we will pick a winner and shower that winner with never ending fame and fortune. Fame and fortune not guaranteed.

1:12:18 Clip: And thank you, Let's go!

1:12:20 Thomas: And now it's time to thank our new patrons on patreon.com/law. Enjoying the lot of the movies, a civil action, John Travolta, as we said, super fun. Check it out. Go pledge. It's great. We're recording a little early this week for travel purposes. So only a few new patrons. I'll thank them real quick. Thank you to Gail Fulbeck, Sam, Tom Doyle, Earl DeMersseman, LokiisfromGallifrey, Richie Muniak, and Brendan Rok. Thank you so much. Hopefully we'll have a longer list next week because of the timing. And because you want to get your hands on that lot of awful movies, everybody. So thank you new patrons, patreon.com/law. Thanks so much, that's our show. Thanks for listening, everybody, thanks Andrew for the breakdown. Boy, a lot in that episode, that was fun. Good stuff. We went from Tom Brady to like insurrectionists.

1:12:49 Andrew: Yeah.

1:13:09 Andrew: It runs the gamut. There we go.

1:13:11 Thomas: Yep. And we'll see everybody next time.

1:13:14 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.

1:13:47 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.