OA601: SCOTUS Ruling Guarantees More Innocent Will Be Put to Death

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 601. That means you just heard some new intro quotes and they were awesome. I'm Thomas. That's Lawyer Andrew. How you doing?

0:01:23 Andrew: I am fantastic, Thomas. And when I say I'm fantastic, outside my window right now, sparkling crystal blue waters, huge, I don't know what kind of trees these are, pine trees, some kind of huge green trees. I am in, just parked outside of Juneau, Alaska. I literally was climbing a glacier an hour ago, riding in a dog sled. By the way, my tour guide, uh, wearing uh, t-shirt and shorts, so you

0:01:50 Thomas: Wow. I was going to say climbing a glacier, probably not as big of an accomplishment as it used to be.

0:02:01 Andrew: Uh, Yeah, this Mendenhall Glacier, it's a 6 000 feet tall, uh, but uh, they can show you, the people who have been doing the tours for like 10 years are like, "Oh yeah, if you look at that spot where, like, it's carved in, that's where the glacier used to be," and it's like hundreds of feet back, right?

0:02:23 Thomas: Yikes.

0:02:23 Andrew: Now, where, where it was over the span of, like, you know, them doing tours for a couple of years. It's, yeah, climate change is real. It's terrifying. But, beautiful. Yeah, right. That's really what counts.

0:02:27 Thomas: Yeah, yeah. Scary, but glad you're having a good time. Yeah.

0:02:36 Andrew: Well,

0:02:38 Thomas: Well, I am extra fantastic, fantastic squared because, seen me behind the scenes for like, I don't know, months now. I've been working on a project with Tom from Cognitive Dissonance and Eli Bosnick that everybody knows and loves. Uh, and it's a new podcast. I know, I know. Didn't, I didn't do another thing. I've never, I wasn't seeking another thing, but they came to me and they said, you one more. And I said, I'm retiring. I don't do that anymore. And they said no. No, that's a really good idea and a fun thing to do is because I took on another podcast. That's how I can't give it any more praise than that. But no, Tom approached us and wanted to do a parenting show, a dad show, and we were just all in and we've been working on it for months. I can't even tell you, I'm so excited to finally be on release day because as you're hearing this, you can go search Dear Old Dads on your podcast players and find the show.

It's a ton of fun. I'll just say a quick word. All of us, but like I one of my goals with it is, Andrew, you know how every popular example for men in culture and media and everything is the worst person in the world? Like

0:03:03 Andrew: They keep pulling me back in yeah and

0:03:44 Thomas: For example, Joe Rogan or Jordan Peterson or any number of of those people, it's a show where, uh, you three dudes can kind of talk about masculinity and try to create a healthy version of it and talk about what that would be and fight back against some of the awful Jordan Peterson, Joe Rogan rhetoric, you know, and just talk about being good dads, loving our kids, loving our wives. It's wholesome fun, it's thoughtful, and it's incredibly funny. I've laughed so hard, uh, because we all know Eli is the funniest man in the world. And Tom and I are, you know, billionth two funniest. Tied for two billion.

0:04:15 Andrew: Thing I love about it is parenting is outside of, you our circle, I'm just coming up against normies, that's right, an area where I think a lot of the, particularly my generation, somewhat true in your generation. I think the new generation is going to be fine. But like those of us who were in our 30s and 40s, like you get a lot of the like, "Oh, well, you know, you're a dad now, like, you gonna take your kid to church?" And like, that's a real thing. Demonstrating, right? Being there, being three parents who obviously love their kids and care about having that conversation and are doing so without a religious backdrop, I think just helps normalize that, helps set a good example, and helps say to other folks who, you know, aren't at all religious and all of a sudden are like, "Well, you know," somebody's got to teach the kids how to genocide the Amalekites and not wear mixed fabrics. And you

0:05:10 Thomas: Back in my day, we used to walk uphill both ways and genocide the Amalekites twice. Kids don't even they don't Even write in cursive and they don't. Even genocide anymore.

0:05:12 Andrew: Say, hey, I love it. I am a subscriber, and I am looking forward to more Thomas in my ear holes.

0:05:25 Thomas: There's so much, you Know, we get in our little bubbles and we're surrounded by a bunch of great people who are great parents and all that. You go outside your bubble 10 feet and like a majority of Americans think it's okay to hit your kid. You know, like there's a lot, there's a lot we're working against and it's really fun to try to put out a positive example. Let's do the best we can. Nobody's perfect, but that's kind of the process of the show. And a lot of fun. So once again, Dear Old Dads, check it out. I want to also thank you, Andrew, so much for letting me plug it on the show and for that endorsement. Can't I thank you enough and please go check it out. See if you like it. Dear Old Dads. And a quick reminder about the Q&A. It's a little delayed because Andrew is atop a glacier with, I think, one of those spiky things.

0:06:06 Thomas: Did you put a flag on top? Anyway, it's a little delayed because of that, but you brought a big pin, a large pin to put a pin in the glacier.

0:06:05 Andrew: I put a piton in. Yeah, of course. I put a pin in it. Oh, my gosh. Oh my gosh Yeah.

0:06:20 Thomas: So the Q&A, a little late, but it. We don't want to miss it. We would miss you if we did. So it is Tuesday the 7th and that live Q&A on YouTube is at 5 p.m. Pacific, 8 p.m. Eastern. So much, but they're getting better out every time. I mean, there are ton of great questions last time, even more than normal. And make sure you vote on the questions you want to hear. It helps me a lot to know, you know, prioritize because we get a lot of them. So once again, join us on YouTube. We'll send out the links on socials and all that. Tuesday the 7th, 5 p.m. Pacific, 8 p.m. Eastern.

0:06:48 Andrew: One last announcement, breaking it, as always, literally as we are recording this. I have been describing the importance of the January 6th committee's public hearings. The first one is going to be one week from when we record this likely six days from when you're listening. Thursday, June 9th, 8 p.m. Eastern, 5 p.m. Pacific, the January 6th committee will be releasing never before disclosed documents. So not just some of the stuff that maybe I will preview next Tuesday, right? There are documents that, eight like, people have seen, and I'm the only person who's read, um, these are documents even I have not seen, and I'm, uh, excited.

0:07:02 Thomas: Oh, oh.

0:07:30 Thomas: This is the Francis Ford Coppola extended cut of document. Director's cut of documents. With. Yeah. And I'm seeing too, those, hearings, those those are in primetime. I was, I was almost going to suggest if they're in the morning, we could, you know, we can move our recording around, but no, those are Thursday at primetime, which I think is smart. So that is, I'm looking forward to, ooh, smart.

0:07:30 Andrew: Yeah. Yeah.

0:07:47 Andrew: See TV It's the only day that where there is not, uh, scheduled NBA playoffs, so yeah, no, that there's I think some thought went into, uh, when, when we wanted to say this, so, uh, can't wait, of course, for Fox News to cover the, uh, off-track betting in the Himalayas that they've been

0:07:58 Thomas: Yeah.

0:08:07 Thomas: It's also it's also kind of a sad indictment of our time. I don't think they scheduled Watergate for when the playoffs weren't, you know, to. But you know what? These days, that's what we have to do. And I'm glad that Democrats are kind of fighting how we need to fight like that's the that is the era we live in. So, great announcement. And now, finally, let's get to our deep dive, our main segment, a deep dive on one of the more depressing, and that's saying something, Supreme Court cases in recent memory.

0:08:08 Andrew: Uh

0:08:36 Clip: Down the law, down the law.

0:08:40 Andrew: This case is Shin versus Martinez, and it is a reminder of a bunch of different things. Number one, it is an reminder that, never minding what you hear on this show, which I think we always, always give the appropriate context. But certainly, if you are reading puff pieces in Politico about how John Roberts has moved over to the Supreme Court's liberal wing, no, he has not. We continue to say this, right? John, John Roberts being an institutionalist means this. If he thinks there is a significant risk that the Supreme Court will be perceived as wildly illegitimate beyond all possible bounds, and he doesn't sufficiently care about that outcome, that those cases and only those cases, he's willing to bravely cast a dissent to make those 5-4 and let the outcome happen anyway, tearfully but plead for the legitimacy of his broken institution.

As opposed to this case, which was a full-on straight 6-3, John Roberts joining the majority to essentially render in particular states, we're going to talk about that, ineffective assistance of counsel claims completely meaningless, despite having voted the other way as recently as 10 years ago. So we're going to go through all that. This case disaster. And we need to start with, these are serious crimes. The gruesomeness of the crimes are remarked on at great length by, in the majority opinion, of course. But in each circumstance, the situation regarding the accused is particularly egregious. And I say this in the context of, these are death penalty cases. Cases. So I'm going to describe a little bit of the crimes.

I don't think I'm going to be particularly graphic about it, but if you do not want to hear about the specifics of the underlying criminal behavior, then you might want to skip ahead a little, but otherwise, this is a content warning, we're just going to talk a little about that, the nature of these crimes. So these are two cases that are are consolidated on appeal.

0:09:33 Thomas: Yeah, moderate somewhat. Somewhat.

0:10:03 Thomas: Yeah.

0:10:57 Andrew: The first is Barry Lee Jones, who was charged with murdering his girlfriend's four-year-old daughter. The state's argument was that that girl, Rachel, died as a result an of injury that she sustained while Barry Lee James was babysitting her, right. That's it. This is the death penalty. This person is going to be executed, executed on those facts. So slight sidebar, if you are one of those folks who have written into us when I've said, hey, if you've got a case for capital punishment, you know, feel free to let us know at openarguments at gmail.com, a hundred out of a hundred of those are like, well, you know, when you have somebody who is a serial sniper and hides in a tree and assassinates people, people where, you know, they've premeditated the case for years on end, right, like you see in the movies. I just want to tell you that those aren't the cases that get capital punishment. The cases that take capital punishment are very, very poor defendants who do not have good lawyers who barely fit the minimum of whatever the state's capital crimes are.

0:11:52 Thomas: Yeah, no kidding. And we didn't should have put this in the announcements and we didn't because, of course, the big news this week is the Depp v. Heard trial. And I imagine we'll be talking about that with a certain ace associate that everybody loves. But if you, like me, became a little bit radicalized on that issue as a result of Morgan's great breakdown, you saw what an absolute travesty of justice that verdict is. And that made me think like, again, I was already anti-death penalty, but like those are the same juries, the same lawyers, the some judges, the whatever, whatever, who are putting people to death. There's, I have no confidence that our system is anywhere near, even if you philosophically supported the death penalty, our system is nowhere near adept enough to get anywhere close to the amount of certainty you would have to have in these cases.

0:12:10 Andrew: Yeah.

0:12:49 Andrew: Compelling evidence that the that states have routinely, frequently executed individuals who were actually innocent of the crimes of which they were convicted has led to Republican governors placing moratoria on the death penalty. This is the kind of thing that, that again, should unite folks of across the political spectrum. You know, it doesn't if you've been radicalized into Trumpian insanity. And, you know, if you're that, you're not listening to our show anyway. So, you Know, who cares?

0:13:20 Thomas: Well, even mainstream Republican insanity, honestly,

0:13:24 Andrew: So argument was negligently caused the death of a four-year-old girl in his care. At trial, Jones's trial counsel undertook no investigation and did not uncover readily available medical evidence that could have shown that Rachel sustained her injuries when she was not in his care, Right. So in other words, there was a post conviction hearing in that post conviction hearing. New counsel argued ineffective assistance of counsel and said, look, his trial counsel didn't do any work here. Let us show this particular evidence that says any lawyer of, Lionel you Hutzian level quality would have adduced this particular piece of evidence. And his lawyer didn't doing that. So that's ineffective assistance of counsel, that strikes me as a pretty good argument.

0:13:45 Thomas: Wow.

0:14:14 Thomas: Me too.

0:14:14 Andrew: That's Jones. He moved for habeas relief on the grounds of ineffective assistance of counsel. We're going to talk about that in a minute. I want to talk about the other case that's consolidated with this one, and that is David Ramirez. David Ramarez was convicted of the capital murders of his girlfriend and her daughter. At the sentencing phase, the state court appointed a psychologist to conduct a mental health investigation. Ramirez's counsel failed to provide that psychologist with evidence that Ramirez had an intellectual disability and failed to develop a claim of intellectual disability to present in mitigation against the imposition of the death penalty and in support of a sentence of life without parole. Because he didn't raise it, he was sentenced to death. So same thing happens. On appeal, Ramirez gets a new lawyer. In this case, Arizona State Court appointed a counsel for him for his what we call post-conviction relief. And as with Jones, post-conviction proceeding was the first time that you could argue ineffective assistance of counsel, right? And that is a matter of Arizona state law.

0:14:46 Thomas: Oh, wow. Right. Yeah. Cause it makes sense. You can't argue it while you're that lawyer. Like if you're like, if Andrew, if you'RE trying a case, you're not like, Hey, my client didn't do it. And in the alternative, I'm a terrible lawyer.

0:15:28 Andrew: It would be an interesting strategy, but

0:15:38 Thomas: Yeah, it would be while while youRE arguing youRE in the alternative, you have to like act a little worse at law, like during that part of the argument.

0:15:38 Andrew: Right.

0:15:47 Andrew: Right. It's like when you're 10 and you wanted to stay home from school. You're like, I'm really sick, mom. Yeah, exactly. So here, this was compounded by the fact that the Arizona State Court appointed Ramirez a lawyer. You are not entitled to one. The only reason he gets one here is because of the diminished intellectual capacity claims.

0:15:50 Thomas: Right. Yeah. Yeah. Exactly. Oh, Wow.

0:16:11 Andrew: But the problem is, is that the lawyer the state appointed for him did not conduct any investigation into the trial record, despite being aware of the fact that Ramirez might have intellectual disabilities, i.e. his appointment in the first place, including that his mother drank while she was pregnant with him, that he demonstrated severe developmental delays as a child, nor did the post-conviction trial attorney attempt to argue any kind of ineffective assistance and just went forward on the basis of the trial court record. And then, quote, concerns regarding the quality of Ramirez's prior counsel, a federal district court, right, hearing his habeas petition, appointed the Arizona federal public defender to represent him in those federal habeas proceedings.

0:16:11 Thomas: Wow.

0:17:05 Andrew: In the habeas petition, Ramirez claimed ineffective trial counsel and, in support, submitted evidence from family members whom trial counsel and his state post-conviction relief had never contacted, revealing the abuse and neglect that Ramirez experienced as a child, the lifelong manifestations of intellectual disabilities. The evidence showed, and here, again, I'm going to give another, talk about just some horrifying specifics, a little bit of a content warning. Ramirez grew up eating on the floor, sleeping on dirty mattresses in houses that were covered in animal feces, that his mother would beat him with electrical cords, and that he displayed multiple developmental delays, including delayed walking, potty training, and speech, inability to maintain basic hygiene, or to use utensils to eat. The court-appointed psychologist who evaluated Ramirez during the sentencing phase testified that if trial counsel had provided him with his school records and prior IQ scores,

0:17:21 Thomas: This

0:18:11 Andrew: He would have thought they would have suggested intellectual disability and insisted on on more comprehensive testing. I

0:18:17 Thomas: Couldn't be more case closed. Case closed. Case closed. What are we still doing here? Yeah.

0:18:21 Andrew: Absolutely. So now I want to take a slight detour from these two individuals. And I want to talk a little bit about a subject that this has has come up uh in Law'd Awful Movies before and um and and it has to do with the erroneous belief that was ubiquitous in public culture uh until the 90s and and remains I there's an element of that today and that is, oh, yeah, you know, the problem with the death penalty is you just get an infinite number of appeals, right? Like you could just, I appeal this and I appeal that, and people stay on death row for 100,000 years because, you know, they get too much due process, has never been the case. But nevertheless, the fact that people thought that was the case led to the passage of various laws, including the Anti-Terrorism and Effective Death Penalty Act of 1996. That is 28 U.S.C. Section 2254.

0:18:54 Thomas: Yep. Yep. It's too easy to get out of it. Wow.

0:19:27 Thomas: Oh, Is that because of Tim McVeigh and they wanted to make sure they could kill him as fast as possible, uh, huh.

0:19:37 Andrew: Yep, yep. And this says has a bunch of truly terrifying positions in it. But it says, in relevant portions, Subsection B says, any application to a federal court for writ of habeas corpus. Now, mind you, take a side detour here. For an originalist court, the writ of haberius corpus was one of the most important things to our founding fathers. You will find in the Federalist Papers more references to the writ of habeas corpus than you will find to any other right, than you Will find to the sanctity of contracts, or any principle that you want to elucidate, you will absolutely find a much greater concern for the writ writ of habeas corpus, right? You have the body. The state cannot just lock you up indefinitely without having given you due process.

0:20:30 Andrew: Applications for writ of habes corpus are one of the most important rights that the Founding Fathers were 100% clear they wanted to protect in our society. So AEDPA says, if you're applying for writ of habeas corpus to a federal court, it shall not be granted unless it appears that, A, the applicant has exhausted all of the remedies available in the courts of the state, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. So here's what that means. Raise a habeas petition in connection with a state death sentence, you get exactly one bite at the apple. One petition that you can only raise after you have completely exhausted your state appellate process.

And by the way, the state appellate process can be whatever the state decides, right? So you go through the entirety of the rights that the state says are available to you, and then once and only once, when that is over but not too far over, can you go to a federal court and say, I think a state is holding me without due process, and I am therefore petitioning for a writ of habeas corpus. And if you do it at the wrong period in time, you just lose that right period. All of

0:20:46 Thomas: Wow. Yeah.

0:21:58 Andrew: A sudden the federal government says, nope, don't care if the state has no basis to continue to exercise its dominion over you because we are a system of dual sovereigns and we do not want to be unduly infringing on the sovereignty of, in this case, the state of Arizona to punish you, so, right? If we let you just habeas whenever you wanted, then that would make a mockery of respecting the state of Arizona.

0:22:24 Thomas: Then all everyone would be Habeas, saying the kids will be habeasing, there'll be a TikTok habeas challenge, you know, just too much habeas.

0:22:32 Andrew: Yep. It gets worse. Now, this is all statutory law. This was not disturbed by the Supreme Court, is this as bad as it was prior to this decision coming out, okay? Subsection D says, an application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with result to any claim that was adjudicated on the merits in state court unless that adjudication, one, resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, or two, resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, okay?

0:23:21 Andrew: So let's unpack that a little bit. That is, again, for this dual sovereign comedy purposes, the idea is, oh, if the state has adjudicated this, no matter how unfair it is, unless it fits into one of those two exceptions, Unless right? It was contrary to to clearly establish federal law as decided by the Supreme Court, by the way, very few state law opinions are going to do that, but whatever, that's the one, or resulted in a decision that, in light of the facts presented below, and only those facts presented above, was unreasonable in lightof those facts.

0:23:21 Thomas: So It seems like it's specifically not letting new facts be known. New Huh.

0:24:05 Andrew: Now, that is exactly right.

0:24:09 Thomas: Why is that, because

0:24:10 Andrew: Of Section F, if the applicant challenges the sufficiency of the evidence adduced in such state court proceeding to support the state court's determination of a factual matter made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the suiciency of the evidenced to support such determination. If the applicant, because of indigency or other reason, is unable to produce such part ofthe record, the state shall produce such part of the record, and the federal court shall direct the state to do so by order directed to an appropriate state official. If the state cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the state court's factual determination. In other words, it is limited to the facts below unless there is an incredibly narrow ground ground for holding a new hearing.

0:25:04 Andrew: And here is that ground. This is E1 and 2. It says, in a proceeding instituted by an application for writ of habeas corpus, right? That's where we are, by person in custody pursuant to the judgment of a state court, right, that's what we're talking about, a determination of a factual issue made by a state court shall be presumed to be correct. Applicant shall have the burden of rebutting that presumption of correctness by clear and convincing evidence. That's the 75% standard, okay? So again, just to be super clear, you're stuck with the facts below. If they've decided it against you, you can use the facts below, but you have to show the court was clearly and convincingly wrong, 75, right? More than just the court, the court has failed to develop the factual basis of a claim in state court court proceedings, the court shall not hold an evidentiary hearing on the claim unless.

0:25:58 Andrew: So here's the only time in which you get to introduce new evidence in federal court in support of your habeas petition. A, the claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable. Used That to happen happen a lot, that happens not often now. Or a factual predicate that could not have been previously discovered through the exercise of due diligence, okay? That's a slightly more, right?

Like there is a witness who was bribed, And the facts established the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. Okay. So in other words, it has to be a fact you could not have discovered, and that's why you did not develop it below. And that fact must be dispositive to the jury's determination of your claim in a way that is clear and convincing to a court, right? Like, oh yeah, okay. This is, the chained up in a dungeon by the mafia, completely inaccessible. Nothing could have possibly adduced that piece of evidence. Now they come forward

0:26:33 Thomas: Yeah.

0:27:18 Andrew: And that witness says, oh, I did it. Or is a perfect alibi witness, something like That's that. The confluence of facts. So

0:27:24 Thomas: Yeah. Where does this leave any room for ineffective assistance of counsel?

0:27:30 Andrew: Would think it would leave almost no room for ineffective assistance of counsel because the whole point of ineffective assistance of counsel is you didn't develop the facts.

0:27:40 Thomas: Could have done it. Yeah. Wow.

0:27:43 Andrew: Right. Exactly right. With the exception of a case called Martinez v. Ryan, 566 U.S. 1 from 2012. Again, I want to be clear here, this is a 7-2 decision, joining the majority written by Anthony Kennedy, joined by Chief Justice John Roberts, also joined by Alito, also joined by Breyer, Ginsburg, Sotomayor, and Kagan, right? So 7-1, the only dissents are Scalia and Clarence Thomas, right? In Martinez versus Ryan, the Supreme Court analyzed precisely this situation, said, hey, what happens in situations when we are looking at post-conviction collateral review, and you don't have a state right to have a lawyer present, And scarily enough, you have no right to counsel in Arizona at your post-conviction proceedings. So what happens then if you get a lawyer, and that lawyer sucks, right?

0:28:08 Thomas: Huh.

0:28:55 Andrew: Or that lawyer fails to do things that you think they ought to do. Ordinarily, right. In those kinds of situations, you are responsible. I know this seems crazy, but you are responsible for the legitimate choices that your lawyer makes, And right? So if the lawyer is bad and they do bad stuff, too bad, that gets attributed to you,

0:29:12 Thomas: Oh. Can we supply that to Trump with John Eastman? So he should be responsible for all John Eastman's everything, everything he did.

0:29:18 Andrew: Yeah. I think that should be the case here. So the Supreme Court said, uh, the Scalia Thomas position was what, you know, you know, you don't get a lawyer in post-conviction relief, like why should you be entitled to a good one, right? But fortunately, seven justices of the Supreme Court, including John Roberts and Sam Alito, this is very, very important, said, you know what, um, that does not seem to make like to make a lot of sense because the very first time that you could allege ineffective assistance of counsel would be in your post-conviction hearings. And if we say that we're not going to listen to your claims that your counsel was ineffective, then literally that can never matter in the state of Arizona, right?

0:29:48 Thomas: Far even for me right Right.

0:30:10 Thomas: Unless you do what, what I said. And you plead that you are ineffective in the alternative when you're the first lawyer.

0:30:14 Andrew: Right, yeah, while you're doing it, yeah. The Supreme Court is like, that doesn't seem correct, right. When we look at the general rule that says, and that case was called Coleman, right—when we look look at the general rule in Coleman that says you're responsible for the choices that your lawyer makes. Seems like probably not the case should extend to where your lawyer is incompetent.

0:30:20 Thomas: Yeah. Yeah. Hmm.

0:30:46 Andrew: So the standard is, it your fault that failed to develop the factual record below? And if it wasn't your fault, then it doesn't seem fair to default you for that. Right. Seems like you should be excused from having to meet those criteria if you couldn't have met those criteria because your lawyer sucks.

0:31:14 Thomas: Can't believe you're even having to say this, Andrew. Yeah,

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0:34:34 Andrew: And then, uh, the question was, how does this interact with that Anti-Terrorism and Effective Death Penalty Act? And because that, in one of the only sections I didn't read, says that, uh, it would not establish as independent grounds for habeas corpus relief, ineffective assistance of counsel. And the Supreme Court says, right, it says that, I, says the ineffectiveness or incompetence of counsel during federal or state collateral post-conviction hearings shall not be a ground for relief. And so the court says, yeah, what that means is you can't just say I had ineffective assistance of counsel. You have to say I have ineffective assistance assistance of counsel, and that prevented me from developing this record, which would have shown this thing, which could have met those two criteria, okay?

0:35:26 Thomas: Okay. Fair enough.

0:35:27 Andrew: So that's the state of the law. Yeah, that's state of law up until two weeks ago.

0:35:27 Thomas: Yeah. Wait, we always reference a famous Scalia thing that you told me about that I hate. Is Scalia saying you don't have... Oh, and it must have been his dissent in this case then. That's where this comes from. Him saying being innocent isn't enough.

0:35:39 Andrew: Uh-huh, yes, yeah, a different but related case. But here, since you ask, we're nostalgic for the biting sarcasm and cruelty of Antonin Scalia.

0:35:48 Thomas: Oh,

0:35:57 Andrew: Let's try this one out. This is, yeah, this is word for word Antonin Scalia's dissent. Let me get this straight. Out of concern for the values of federalism, begins, the opinion begins. Let Me Get This Straight. Out of concerned for the Values of Federalism, to preserve the ability of our states to provide prompt justice, and in light of our long-standing jurisprudence that there is no constitutional right to counsel in state collateral review, the court, in what it portrays as an admirable exercise of judicial restraint, abstains from holding that there is a constitutional right to council in initial review state habeas. After all, that would have meant, in a case such as the one before us, that failing to provide assistance of counsel, or providing assistance of counsel that falls below the requisite legal standard would constitute cause for excusing procedural default. Instead of taking that radical step, the court holds that, for equitable reasons, and equitable is in sarcasm italics, in a case such as the one before us, failing to provide assistance of counsel or providing assistance of council that falls Below the Requisite Standard constitutes cause for accusing procedural default."

0:36:03 Thomas: Are we? Oh my God. He wrote, let me get, hold on. Stop, stop. He wrote. Let me get this straight.

0:37:06 Andrew: The result, of course, is precisely the same. Ah, but perhaps the explanation of why the court's action today amounts to praiseworthy self-restraint is this.

0:37:15 Thomas: I hate this guy so much. I

0:37:17 Andrew: Yeah, you should. It's good. It is good that he is dead. And then it goes on to say, the problem here is that if you allow people to raise ineffective assistance of counsel claims in post-petition review, they will do that. And then they will also raise claims of newly discovered, that's in scare quotes, prosecutorial misconduct, or newly discovered in scare quote, exculpatory evidence. Yeah, yeah. There's a slippery slope of lots of people who have been abused by the system.

0:37:17 Thomas: Hatethisguysofuckingmuch. Yeah, it really is.

0:37:33 Thomas: Oh yeah. Yeah. Where's the stop? Slippery slope. And you know what's at the bottom of that slope? Not killing innocent people. And we cannot get to the bottom of that slippery slope.

0:37:55 Andrew: We get to the bottom of that slope. Absolutely not. Scalia said this is going to be a disaster and people are going to make all kinds of crazy habeas petitions. Turns out, not the case. Super hard. Fast forward 10 years and we have the exact same question that is presented here with only one wrinkle to it. So the question is, in effective assistance of counsel, in Arizona, the Martinez v. Ryan case was from Arizona. These two defendants are in Arizona.

0:38:30 Thomas: Wow.

0:38:30 Andrew: AEDPA was passed in 1996. Nothing has changed. The only thing that's changed is the composition of the Supreme Court.

0:38:38 Thomas: Wow. Okay. So this is surprising. If nothing has changed, For one, this means, and I don't know if you've already said this, but this means the circuit courts, I hope, must've just been like, yeah, this is very straightforward. It's almost identical word for word of this other case will rule such and such way. But how does this get all the way to the Supreme Court? Like, if it's so straightforwardly the same, is it, it must just mean they were gunning for it, like they wanted to take on this case to to ruin our lives.

0:38:42 Andrew: Yeah, wing activists had at least four votes for cert to reverse the Ninth Circuit, which basically said, yeah. Of course. Right. The the factual hearings were conducted in these cases, that's how we know what the facts were. So yes, the courts were, of course, this falls squarely within the ruling of Martinez versus Ryan. Here is the only question. Again, I had to read this case like four times before I could even parse this difference, and I don't know that I'm going to be able to adequately explain it, so hold my feet to the fire on this. The question in Martinez was, does this give you grounds for asserting ineffective assistance of counsel as a basis for your habeas petition in federal court? And Martinez v. Ryan said yes. With respect to the other provisions, including the one regarding the evidentiary hearing, Martinez v Ryan was silent. It said the only thing it had to say about the Anti-Terrorism and Effective Death Penalty Act was that that language about assistance of counsel not being grounds for relief just meant that you couldn't raise it disconnected to the underlying issues.

0:39:34 Thomas: Yeah.

0:40:23 Andrew: You had to raise it as part of the underlying issue. What was not litigated in Martinez v. Ryan was, and this fall within the exception of allowing me to bring in outside evidence, And right? The reason for that, I think, is because, duh, right, because by definition, if your counsel was ineffective at the trial court level, you have failed to adequately develop the factual record. That's what ineffective lawyers do or don't do or whatever. Right. Like that, it is so straightforwardly obvious that it was not litigated for a decade. And when it was and the state of Arizona appealed. Right. Because, again, this is post-conviction relief. So when it loses, the stateofArizona gets the right to appeal.

0:41:09 Andrew: And right? They did. They went up to the Supreme Court and they said, we think that we have a compelling state interest in not having to hold evidentiary hearings in cases like this? And the Supreme Court says, yes.

0:41:23 Thomas: Right, this is what blows my mind. I know that we, we take for granted, it's priced in, that Republicans are evil, but I, this is the part that I think we, we should be more mad about, that officials in Arizona, whatever, whoever it is, prosecutors, whoever makes these decisions, attorney general, I don't know. They, not, it's one thing. If you're like, look, I think the guy's guilty and I'm going to argue he was guilty. And when you appeal, I'm going to say, no, I disagree with whatever you're saying because of evidential reasons or something. And correct me if I have this wrong, Andrew, but this strikes me as, because the guy's appealing and we want to argue no, he shouldn't even be able to appeal even if he did have ineffective assistance of counsel and there was evidence to overturn his guilt, that just strikes me as pure evil. Like, what, there's no, there can't be any moral reasons for the state and the actors within the state to make this appeal. Am I wrong?

0:42:17 Andrew: Let me make sure that I'm being precise, because I don't think there is significant difference between what you said, which is you may not raise the appeal, and what this case and what Arizona was arguing, which is not that you can't raise the appealing, but that you cannot hold a separate Martinez hearing as a result of this appeal, right? In other words, that you are stuck with the factual record below. And if you're sitting there saying, right, but the factual record below sucks because my lawyer sucked, and I couldn't tell you my lawyer suck until post-conviction relief, The majority's now 6-3 result is, right, that's a feature, not a bug. So that's the holding. The right holding is, under the Anti-Terrorism and Effective Death Penalty Act, you do not have grounds for a hearing. You are not excused from your failure to develop an alternative ground below that would match up with your ineffective assistance of counsel claim by the fact that you had ineffective counsel, okay? So therefore, you may not, right?

This is the, remember the exception is if you come across the mafia witness that's been chained, right? Like, it does not count. It does not rise to that level if the reason you didn't find the witness was because your lawyer did no fucking work, okay? And we know in both of these instances, as I read at the very beginning, the lawyers basically did no work, right?

0:42:52 Thomas: Same.

0:43:42 Andrew: That's what ineffective assistance of counsel means. And if you're saying, okay, is it really the cruelty, the point, is there really nothing that the state, surely, surely let us steal bot the other side. Let us steal bot the other side. I am going to read you the justification. This is 3C. This is pages 26 to 27 of the opinion, is what the majority opinion says. So remember, Clarence Thomas, one of only two judges in the minority 10 years ago on the Martinez versus Ryan case, writes the majority opinion here. And this is Clarence Thomas's articulation of the public policy reasons of the good that he's done for America with writing this opinion.

0:44:31 Andrew: His words, not mine. You cannot steal bought more than this. Ultimately, respondents proposed expansion of fact-finding in federal court, conflicts with any appropriately limited federal habeas review. In our dual sovereign citizen, federal courts must afford unwavering respect to the centrality of a trial of a criminal case in state court. This is the moment at which society's resources have been concentrated in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Such intervention is also an affront to the state and its citizens who returned a verdict of guilty after considering the evidence before them. Federal courts, years later, lack the competence and authority to relitigate a state's criminal case.

0:45:22 Andrew: The dissent contends that we overstate the harm to states that would result from allowing prisoners to develop evidence from outside of the Anti-Terrorism and Effective Death Penalty Act. Not so. Serial relitigation of final convictions undermines the finality that is essential both to the retributive and deterrent functions of criminal law. Further, broadly available habeas relief encourages petitioners to sandbag state courts by selecting a few promising claims for airing on state post conviction review while reserving others for federal habeas review should state proceedings come up short.

0:46:00 Thomas: Is he saying people are going to pretend to be bad lawyers to get out of? What, wow.

0:46:03 Andrew: It's worse than that. Sandbagging means that if you were represented by an ineffective lawyer at the state level, you are now incentivized to say, while your client rots away in jail, the utter disconnect from reality that Clarence Thomas illustrates while writing this could not be more clear. What he is arguing, and this is 100% what the word sandbag means in the law, is that criminal defendant, now convicted, serving time in a state prison would go to his lawyer and go, you know, my trial court lawyer definitely sucked. And the trial court employer would go, You know what, Thomas, I hear you on that. But what we're going to do is we're going to wait and see if we win on some bad arguments first. I know this is going to cost you three more years in prison while we litigate those. But we're gonna hold back the good arguments for federal court. And you are going to say, Why don't we raise the good arguments now? And I'm going to say something, something, our federalism.

0:46:55 Thomas: Don't.

0:47:09 Andrew: State prisoners already have a strong incentive to save claims for federal habeas proceedings in order to avoid the highly deferential standard of review that applies to claims properly raised in state court. Permitting federal fact-finding would encourage yet more federal litigation of defaulted claims. That is it. That is the justification. You will sandbag, hide your good claims, wait five years. Oh, I could do five more years standing on my head. And

0:47:06 Thomas: You see, God. That is that is absurd. Yeah.

0:47:44 Andrew: Then raise them in a situation with different procedural rules in such a way as to maximize your chance for getting out. Yeah, it is absolutely contrary to the way that human beings behave.

0:47:44 Thomas: That's how humans are yeah, definitely step three profit yeah Okay, couple things. Um, also in there was the idea that it would be insulting and a, and a total slap in the face to the fine juries who want to see a person killed, um, to which I would think let's say there was ineffective assistance of counsel and some evidence wasn't there, and that you should have had better evidence, that would haunt me for life if I was a juror and I convicted an innocent man. I'm not gonna say, well, you know, but I already, you know, I did it though, so I, I'm committed to killing this guy.

0:48:13 Andrew: Yep.

0:48:28 Andrew: Nope. This the moment at which society's resources have been concentrated in order to determine his fallibility. And, you know, that if those resources are displayed in a way that is grotesquely inequitable, as is obvious from the fact that you're raising ineffective assistance of counsel. And by the way, is demonstrable from every statistic we have on capital punishment. It is Right. Poor black men get executed and nobody else. So this this is an abomination.

0:48:56 Thomas: Yeah. Let let me try to salvage, uh, the point I was trying to make. And just one quick try, because I think I figured out how to say it a little better, and maybe you can tell me, maybe it doesn't apply, it could be I'm not understanding legally what's happening. But let's say a hypothetical, let's say I am a good prosecutor, meaning like I'm a just and moral prosecutor, and I am here to try to get people like Michael Avenatti, who we just saw today, sentenced to four years. You know, actual bad Trump. I'm, I'm good moral prosecutor. I want to get actual bad guys. Now, let's say an actual bad guy, in my view, pretty clear evidence, goes through this. This happens to them. And then let's see, and we can even, we can't even posit that they did it or something, just for the hypothetical. And let's say that then they raise this ineffective assistance of counsel thing.

In my mind, and this is what the differentiation I was trying to get at, a moral, just person, you know, prosecutor interested in justice, I could see them making the argument of, hey, OK, well, we're looking at the alleged facts that you think you can raise here. The evidence that you think you would have had, et cetera, etetera. And I can argue, yeah, OK.

0:49:03 Andrew: Okay. Yep.

0:50:09 Thomas: But that wouldn't have proven his innocence because, again, the hypothetical, this person's guilty. Like maybe, maybe there is some, you know, claim that there's evidence they didn't have, witness they didn't have, but I would argue like, yeah, okay, but that witness sucked too and that wasn't going to win your freedom. But it strikes me as completely immoral morally bankrupt, to also argue and you shouldn't even have the right to do any of this if you had ineffective assistance of counsel. What am I missing?

0:50:35 Andrew: Yes, you're missing. So in the world that exists, that was made up by conservative law and order types, and that the six-justice majority here is dishonestly pretending exists, make an argument. And that, right, argument is, I'm the prosecutor, I want a conviction, and I should not have to deal with 12 different serial post-conviction appeals every time you think a new piece of evidence has come up. There's got to be a point at which we can cut this off with finality.

0:51:11 Thomas: Fine, you get, we already know we get one Appeal. You already said you get one. One you get one try at this. Right.

0:51:13 Andrew: Yeah. And you get one. I know. No, but this is what I'm saying is that in my view, there is no honest defense for this, right? The all of the public policy arguments are based on appealing to emotional views that are not backed up by the law. It's part of why I think it is significant to point this out. So, bottom line, 7-2, only Scalia and Thomas in dissent said, yeah, look, if you have ineffective assistance of counsel, that obviously is not a situation where, quote, quote, the applicant has failed to develop the factual basis of

0:51:26 Thomas: So we agree, yeah.

0:52:02 Andrew: A state claim in state court proceedings. It's not your fault. The lawyer has. And usually what the lawyer does is attributed to you. But in cases where your lawyer sucks, it's not attributed to you. You're not bound by this. Therefore, you can raise the claim. That is also that is the exact same language that is used in the section that says, uh, you shall not hold an evidentiary hearing, right? It says, if the applicant has failed to develop the factual basis of the claim in state court proceedings, the court shall not holds an evidentiary hearing unless the applicant shows that, you know, those things that you can't show when it's ineffective assistance of counsel. Um, exact same logic, exact, same rule. Uh, not only does the court reverse, uh but, uh John Roberts and Sam Alito have said, yeah, you know what? You're right.

0:52:04 Thomas: Their terrible lawyer has yeah

0:52:52 Andrew: Different winds are blowing these days, and I'm signing on to the How to Continue to Gut Federal Habeas. And if you don't believe me, I read you, without sarcasm, the ostensibly offered by Clarence Thomas that if we don't do this, then federal habeas claims will become commonplace. They aren't. It already was incredibly difficult. It's already constrained. You already have this procedural default mechanism. You already get just one bite at the apple. It is difficult to imagine how to constrain it further, and this Supreme Court found a way. The Supreme Court said, if you are sentenced to death and and your lawyer is crap, you do not get to introduce evidence that shows what you would have done with a decent lawyer had you had one. And that's unconscionable.

0:53:47 Thomas: You should have thought of that before the state appointed you a terrible lawyer.

0:53:52 Andrew: Yes, that's the argument.

0:53:53 Thomas: It's The Emperor's New Groove line that I love watching with my kids where

0:53:56 Clip: It is no concern of mine whether your family has... What was it again? Um, food. You really should have thought of that before you became peasants. We're

0:54:07 Thomas: It's that you should have thought this before you become unable to afford a powerful, amazing attorney. Stop being poor

0:54:14 Andrew: I go back, my favorite cartoon reference is, of course, the Transformers reference, which Grimlock, leader of the Dinobots, says, "Me, Grimlock, not care about Earth. Like, whole planet can fall apart for all me, Grimlock, cares." And then Optimus Prime says, "With you on it?" And Grimlock goes, "Oh, me hadn't thought of that." But, uh, yeah with you on it it's

0:54:19 Thomas: While we're doing the greatest hits. Sure.

0:54:39 Thomas: Is he a cookie monster? Is Grimlock, Cookie Monster. Same guy, same no, don't, don't no no it's out of, I

0:54:43 Andrew: So Dinobots are based off of dinosaurs dinosaurs have simple brains, so the Dinobots have simple brains

0:54:55 Thomas: I I appreciate that delightful, uh, interaction getting us out of what is a horrible, terrible, stupid, evil decision, but thanks for the breakdown, Andrew because that is terrible, and as usual, what we can do about it is win more Senate seats and and expand the Supreme Court. That's the answer. That is what we can do, if anything.

0:55:05 Andrew: There you go yep also do not fall for centrist rhetoric and politico puff pieces and the like talking about how wonderful John Roberts is, right? John Roberts is just slightly less of an activist than Sam Alito. Yeah. I'll

0:55:29 Thomas: Again, he might just be the more competent evil person. Honestly, that might be the main difference.

0:55:35 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:55:41 Thomas: Now it's time for Thomas takes the bar exam. T3BE. Each week, I attempt to answer a bar exam question using nothing but my biceps. So I don't

0:55:51 Andrew: Thomas's biceps take the bar exam. There we go. TB, T3B, all right, T

0:55:59 Thomas: Lift weights, so it's not going to be a good.

0:56:00 Andrew: T3 B2E, yeah, the E is an ethyl group at the end. All right, anyway, way.

0:56:08 Thomas: So let's have it. Let's see if I can answer another one. Right. I think I got last week's right on a bit of a streak.

0:56:13 Andrew: So, Thomas, a restaurant headquartered in State A was the subject of multiple premises liability suits stemming from a spill on the floor that caused multiple injuries. Plaintiff one sued the restaurant in state court located in State A for negligence. That suit, it was determined, after a full litigation, that the employees of corporation were aware of the spill on the floor and did have a duty to warn the plaintiff of the spill. Following a full trial, Plaintiff 1 succeeded in her suit against the restaurant. The restaurant filed an appeal, and that appeal is still pending. Plaintiff 2 filed suit against the restaurant in federal court located in State B. Pl Plaintiff 2 sought to preclude the restaurant from asserting that it did not owe a duty to warn of the spill under collateral estoppel.

0:57:04 Andrew: The law of state A allows for the use of offensive non-mutual collateral estoppel. The law of state B prohibits the use of offensive non- mutual collateral estappel. Federal law allows for the use of collateral estapel, as justice permits. The law in all three jurisdictions states that a judgment is final until reversed or otherwise modified. Assume jurisdiction and venue are proper. What should the court do?

0:57:09 Thomas: Oh, my God. Oh, oh, my god.

0:57:33 Thomas: I not try to answer this question. And leave. That's what the court should do.

0:57:36 Andrew: A. Uh, by the way, this is, this is not just a civ pro question, a civil procedure question, uh, these were the kinds of questions I lived for, this is to this day, I don't, you don't get a chance to do as much like straight-on law geekery civ pro stuff, uh, you know, because these kinds of fact patterns rarely present themselves, but I love this kind of stuff. Anyway, what should the court do? A, allow the restaurant to litigate the issue of its duty to warn, because the federal court will apply the law of the state in which it sits. B, evaluate whether justice would allow the use of non-mutual collateral estoppel because the federal law will apply its own law on procedural issues.

0:58:17 Andrew: C, prohibit the restaurant from litigating the issue of its duty to warn, because the Federal court will apply the law of state A. Or D, delay the case until the The appeal is decided.

0:58:28 Thomas: Interesting. That sounds like a silly answer, but I kind of think it's not. I've seen real cases in our coverage of that kind of thing happening. Well, this strikes me as impossible. Here, let me take 30 minutes off air to read. No, not really. After rereading this to myself, Andrew, I see why you like these. Now, it just doesn't mean not any chance of answering this, but I think I start to see the puzzle here. You know, I'm seeing the Rubik's Cube and I don't know how to do a Rubik's Cube, but I think I understand why it might be fun for you. Okay, there's a couple cases going on. One is just in state court of state A. The plaintiff wins and in the suit, this is important, it was determined after full litigation, that the employees of the corporation were aware of a spill and did have a duty to warn of the spill.

0:59:17 Thomas: So, after that trial, that succeeds, the restaurant is appealing, filed an appeal, but the appeal is still pending. Now, the other plaintiff has gone a different direction. They have sued in federal court in state B. Now, we are to assume, it says at the bottom of the question, we're not going to worry about any of the 75,000 and whatever. We're assuming jurisdiction and venue are proper. So, okay, I know what that means. I've learned enough to know what that means. So now, here's the part where I have to use what I know, what's said in the question in context, to try to figure out what any of these terms are. But I think I kind of can, because it says plaintiff two. So this is the plaintiff suing in federal court in state B. Plaintiff two sought to preclude the restaurant from asserting that it did not owe a duty to warn of the spill under collateral estoppel.

1:00:06 Thomas: Now that sounds to me like plaintiff two is trying to take what happened in the, in the trial of state A, and it's trying to say, I guess, and I don't know how legitimate this is as a law thingy, and I imagine it's, it's legitimate enough to have a term, so I imagine there's like rules of when it can and can't apply that I won't know, that I'll have to try to guess at, but it sounds like you can be like, hey, they just did this this whole trial over there in state A, they, you know, big to-do is all this stuff, it was six weeks long, it was on TV, uh, all that, uh, and they determined that the restaurant did have a duty to warn. So I'm saying let's save ourselves the trouble over here in state B and federal court and not go through that. I think is what collateral estoppel must mean.

1:00:51 Thomas: Sounds, sounds like it. Now it says, this is interesting. The law of state a allows for the use of offensive offensive, non-mutual collateral estoppel. So, sounds scary, but I think that just means the plaintiff is using this sort of in an offensive sense, like trying to proactively, you know, kind of win here on this and is non-mutual, meaning that the other side is not agreeing, I think, or something like that. Or it could mean both courts decide. Yeah, I don't know. Something like that and then it says, so state A allows for that. State B, law of state B prohibits the use of offensive non, so that same thing. Now here's the interesting thing. Federal law allows for the use of this thingy as justice permits. I don't know what that means.

1:01:37 Thomas: As justice permits, I guess that means that a judge will form an opinion and be like, I think in this case it makes sense because this is federal court. So the big thing that's going going to be hard here is you've said, and I've learned from the show that federal court can apply the laws of state A, state B, or state C, like a totally could be anything. And I think there's like a process in the beginning to figure out whose laws you're applying, whose states, which state's laws you're applying, I think. And what I don't know is if this sentence, federal law allows for the use of collateral estoppel as justice permits. I don't know if that's referring to that process or is saying there is actually in the rules, it's not as though the federal law is like agnostic and you're just using a state's given law, or if this sentence means the actual federal law, the rule here is as justice permits, which might be like to the discretion of the judge.

1:02:34 Thomas: So that's an unknown there. But I think I'm going to, I think I'm going to say as justice permit, I feel like that means a judge gets to look at it, I think that's what that means. Now it says the law in all three jurisdictions states judgment is final until reversed or otherwise modified. Now that's somewhat interesting, maybe a distraction, but I don't know. But that means that like, even though the restaurant has filed an appeal, I think that judgment is fine, and I would imagine that would be one of the conditions of using this collateral estoppel is you'd have to be a trial that's like finished and the decision's done and that kind of thing. Final until reversed or otherwise modified, I think that that means that like it's not on final just because there is an active appeal, I think is what that means. Assume jurisdiction of any property, which I said.

1:03:21 Thomas: OK, that was a ton and it was way more time than I would ever take on test, a real one, but I think I have some amount of understanding of this. We'll just see if I can get the assumptions correct here. OK, what should the court do? Allow the restaurant to litigate the issue of its duty to warn because the federal court will apply the law of the state in which it sits. That is quite plausible, very plausible. It's sitting in state B. And so in state B, we know that this is against the rules to do this offensive estoppel-y thingy. Or B, evaluate whether justice would allow the use of non-mutual collateral estoppels because the federal law will apply its own law on procedural issues. That is a very attractive answer to me because that sounds like there's federal rules, rules of evidence or proceed, like there's that.

1:04:07 Thomas: That makes sense that like, OK, this is more of a procedural question. It's not, you know, has a state written a statute that says people will slip when they whatever, you know, if people slips on a thing. So B is very attractive to me. I'm leaning toward B a little bit. C, prohibit the restaurant from litigating the issue of its duty to warn because the federal court will apply the law of state A. Ah, I think that's nonsense. So C, unless I'm really missing something, I think C is a nonsense answer. Because even if the federal court applied the law of state A, that wouldn't mean that they're not allowed to even litigate the issue of the duty to warn. Unless I'm totally missing something. I don't see why that would follow. So I think C is nonsense. And D, delay the case until the appeal is decided. Oh, I think that has to be what that one sentence was in there because I think the judgment is final.

1:04:59 Thomas: I think that must mean that you wouldn't wait until this appeal is decided. I'm going to eliminate C and D. I think we're A or B. And I'm going to go with B, because I, I think evaluate whether justice would allow means the judge is deciding based on the federal rules of evidence or whatever, federal procedure-y something, whatever the law term is. So I'm going with B, final answer, A, second chance answer.

1:05:25 Andrew: All right, and if you'd like 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.

1:05:38 Thomas: Now, look, I'm self-conscious of when T3B goes long. I want it to be short. But you gave me a question that is so complicated. There's no way I could answer that in any reasonable fashion that wouldn't have taken 10 minutes. I feel like I did my best without tipping anyone's hand on the result, Andrew. I mean, let's say you were answering this question live on air. Would you have taken longer or shorter than I took to explain everything? And you're thinking,

1:06:00 Andrew: This is quite possibly the single hardest question we have ever had in the history of T3B. I will tell you that right now. And it's Part of what I love about it. When you'll hear next Tuesday, us do the breakdown, down and I will tell you exactly why, sorry.

1:06:10 Thomas: Wow. All right. Wow. What a teaser. Can't wait.

1:06:18 Clip: And thank you, Let's go!

1:06:19 Thomas: And now it's time to thank our new patrons at patreon.com/law. Love our new patreons. We're so grateful to have you. Let's read the list of who's joining us this month. And you start us off, Andrew.

1:06:30 Andrew: Thank you to Brian LaPota, Allie Pratchler, Colossal dread maw a powerful creature that will threaten your opponent's life total, um, you know that there are thresher maws in um the Mass Effect games, but I think this is meant to be a uh a Magic thing, but I don't know, that one, Myra, Progressive Code Monkey in Shoes, Whale Oil Beef Hooked, Guy Manfellow, Jason Victor, Astrid, Brad Clymer, Samuel Machi, Michele Larzelere, Jennifer Kluger, John V, and Robert Fournier. Take it away, Thomas.

1:07:07 Thomas: All right. Thank you to the Robocop of Due Process, says Elliot Kroo, Protect and Scoop. Oh, maybe that's a crossover, like a Ice Cream Social crossover patron, maybe?

1:07:11 Andrew: I love it. Yeah, I think that's an ice

1:07:19 Thomas: That would be fantastic. Yeah.

1:07:20 Andrew: Cream social crossover, yeah.

1:07:22 Thomas: Dave Stevens, Peter Balicki. And of course, I say so because check out Law'd Awful Movies, somewhat recently out with Matt Donnelly over at Ice Cream social. It was fantastic. Rave reviews for that one, by the way. Matt was a ton of fun. It definitely pledged to listen to that lamb. It's great.

1:07:34 Andrew: Oh, yeah, it was good to have him on for the first time. I think

1:07:39 Thomas: Backlog. It's great job. We should have a second done. Don't you think? Let's invite him back for a second lamb appearance. That would be great. Finally finished the backlog, hope to become your third favorite, Andrew. Maybe. TenaciousB, Anny, Dani_C., Bit, Grant Murray, Mike Graves, somehow I manage. Yeah, you and me both. And Nancy. Thank you, new patrons. Hope you you enjoy the ad-free episodes, the early episodes, the bonus stuff, the lot of the movies, all that stuff, the right to ask questions in the question thread that, by the way, is up on Patreon as we speak, uh, for the Q&A coming up on Tuesday, another reminder of that. So thank you, new patrons, that's our show. Thanks so much for listening. Please search Dear Old Dads if you're interested in that podcast, and thanks again, Andrew, for letting me do the plug. Uh, have fun out there. They're amongst the glaciers.

1:07:48 Andrew: Okay we'll do that I will

1:08:30 Thomas: That was directed at our audience, not you, Andrew. No, I'm just kidding. That was definitely for you.

1:08:30 Andrew: Oh okay I will not then and

1:08:37 Thomas: See you next time.

1:08:37 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:09:11 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.