OA617: Alex Jones' Lawyers Have No F*cking Idea What They're Doing

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 617. I'm Thomas, still with COVID. That's Andrew. How are you doing?

0:01:24 Andrew: Well, I don't have COVID, so I am, I would be fantastic, but for the fact that my heart goes out to you, I know how much that sucks. And I I want you to have a speedy, well, I can't say I want to have speedy recovery now. I want you to have a recovery. Yeah, it, it may involve mailing your children to Malaysia, by the way, but so

0:01:37 Thomas: It's been a while. Yeah. Yeah, well, yeah, the hardest thing about COVID is your kids not being in school. That's honestly would be no problem. Two weeks, Andrew. Two weeks of these gremlins. They're just tearing themselves apart. They fight every three seconds. Finally, we got Arlo. Arlo tested negative, so we got him back in school literally today. So, that's nice.

0:02:05 Andrew: 50% down and 50% to go. Yeah. I I will tell you, having a 19 year old was was the best part of that, right? Because like his Alex's immune system is 19, right. You know, it's like I could drink bleach and then go, you know, like it's he was the least sick of it. He had like a day and then there was plenty of like, could you go bring dad some, you know, tea, some hot tea and oh, oh,

0:02:07 Thomas: Yeah. Yeah, I think it hit you a little harder than me. I had one, I thought it was going to be fine. I was like, oh, this is cake. I'm barely having symptoms. Then I had 1 day of fever that sucked, that 1 night of just like fever, not sleeping. And then I was worried like, Oh, great. Is it just now starting? And then after after that? No, that fever went away.

0:02:42 Andrew: Yeah, you've been you've had good.

0:02:48 Thomas: Just the lung stuff, the throat stuff, not the best. But anyway, all that aside, I'll tell you, I'm doing really well because we just got done recording and publishing a really fun lot off of movies. We got Tom Curry from the hit new podcast, Dear Old Dads. Oh, and Cognitive Dissonance, of course, everybody knows that.

0:03:07 Thomas: And he came on, we did, we were trying to think of like what we could do that's slightly dad themed legal thingy, it was actually Lydia who chimed in and was like, "What about that one show with Bryan Cranston?" Because the whole thing was he's covering for the murder for his son and I was like, "That's brilliant, let's do that." So we did episode 2 of Your Honor, the delightfully terrible and confusing it's Lydia's fault and I will tell you, it was a lot of fun, it was really funny, that was the most confused I think we've ever been on a Law'd Awful Movies, like

0:03:07 Andrew: Well this was yeah so it's Lydia's fault it's Lydia's fall I used yeah

0:03:41 Thomas: We were trying to figure out this part of the show and we're like, I, nobody knows what, but it was, it was tons of fun, so check that out, that's up already for, of course, two dollar and up patrons on patreon.com/law

0:03:53 Andrew: It was good to get back to even as a TV show but like Like this is, you know, it's a 10 part. It's not on Netflix. It Showtime, I guess, streaming, you know, meant to be super gritty and intricate law drama. And I don't know that anybody involved in that show could spell law like it's it's amazing how bad it is. So if you like classic, you know, John Grisham, uh, bad law masquerading as exciting filmmaking, you will love terrible law masquerading as watchable TV, uh, that we tear down on the latest land, that was, that was a lot of fun, that's always great to have, uh, you know, one of our friends on, and uh, and Tom Curry, yep.

0:04:13 Thomas: No it's so bad yeah knocked it out of the park oh And of course, we, you know, COVID canceled our last Q&A, I think, when Andrew was having a rough time of it. We're finally back to doing a Q&H, live Q&A, Tuesday Aug 2rd. That's on YouTube. That's at 5 p.m. Pacific, 8 p.n. Eastern. It's so much fun. It's been way too long since we've gotten to do that and interact with you guys. So, Andrew is posting the Patreon thread as we speak. So, look for that, patrons. Ask the questions you want to ask. Vote. Most importantly, honestly, vote on the questions you want to hear answered because that absolutely does help me prioritize what everybody wants to get answered. So that's like the best. Even if you're a patron that doesn't want to participate for whatever reason, you don't want ask a question, going and just voting on the the questions you want to hear is super helpful.

0:04:38 Andrew: Absolutely, so

0:05:26 Thomas: So once again, that'll be August 2nd, this coming Tuesday at five o'clock Pacific, 8 p.m. Eastern.

0:05:33 Andrew: And and remember, just to be clear, we say this all the time, you, if you just follow us on social media anywhere, or if you just go to YouTube and search for Opening Arguments, you do not have to be a patron to watch live as we do the Q&A, you can be there, you can interact with everybody, rub elbows, those, it's just the patrons get to ask the questions in advance, so you if you like more us, you uh, you don't even have to support us to get mark it that time off on your calendar, show up be be there on the audience, we love having that big crowd of show, uh, listeners get together and interact, and you nobody, nobody in the YouTube comments section, chat section, uh, knows whether you're a patron or not, so so show on up

0:06:16 Thomas: And time for some Alex Jones, I think. Let's get to it.

0:06:20 Clip: I don't like them putting chemicals in the water, that turn the friggin' frogs gay, Hey.

0:06:25 Thomas: Andrew, I will tell you since I've had COVID, I have a permanent excuse now, but I'll be using that six months from now. But no, I, I Have not just, I've been barely surviving.

0:06:37 Thomas: I've majesty of this Alex Jones trial. So I can't wait for you to give me a little info on this. What am I missing? And

0:06:31 Andrew: Yeah so uh, this is, if you just search uh, the, and I don't even remember the the name of the county, but it's the 459th judicial district, uh, and so if you go to YouTube and type 459 judicial district, it is the top of the algorithm. Thousands of people are watching this every day. And and the court just streams live everything that's taking place. And I have not been able to watch on a level that we do like with the congressional hearings. I've had it on in the background when I can, while, you know, doing other stuff, and watched when I can. But there was a really fantastic, just such an OA moment at the end of Wednesdays, which was day two of the trial. I think Monday they did War Deer.

0:07:35 Thomas: Is, is this, I know, very basic. Is this still related to Sandy Hook?

0:07:39 Andrew: Yes. So Here's what's going on. That's an excellent point, um, and uh, while I say, you can watch the trial unfold, the other thing you can do is if you're on Twitter, our friends over at Knowledge Fight, led by At Go To Bed Jordan, so Jordan from Knowledge Fight is live tweeting out, and it is spectacular. When I say live tweeting, I mean every 30 seconds, uh, for three strict days so far. And with the, you know, level of sophistication of somebody that's worked pretty closely with plaintiff's lawyer, Mark Bankston, and and he's doing a great job. It's pretty funny. And it's also really informative.

0:07:40 Thomas: Okay.

0:08:16 Thomas: Those guys

0:08:17 Andrew: So, yeah, we love those guys.

0:08:17 Thomas: Are great. And I keep seeing them in the background of pictures everywhere.

0:08:20 Andrew: Yep. Yeah, it is. Well, look, you know, if if if there is I will say this, when Donald Trump is indicted, we will go be present at that trial in precisely the same way. Yeah.

0:08:33 Thomas: Oh my God. Wow.

0:08:35 Andrew: So, yeah, This is this is their dream come true. So here's what this trial is about. Let Alex Jones has been defaulted on the question of liability in both state trial courts in Texas where he resides and in Connecticut where the Sandy Hook families reside, and so there are procedural reasons why there were two separate cases, but they're two separate cases, uh, brought by different sets of plaintiffs, uh, in connection with, uh, Alex, Alex Jones obviously defaming the Sandy Hook families with his coverage on InfoWars. That question of liability, the question of did Alex Jones commit this civil wrong, has already been decided by both courts.

0:08:36 Thomas: I cannot wait.

0:09:25 Andrew: We've talked about that. That's what a default judgment means. The reason that the courts have entered default judgments are Alex Jones's serial failures to comply with basic requests by the court. Those basic requests include things like, give us all your documents, produce a corporate witness who can talk about what these documents mean, that sort of thing. We talk about that all the time as like, well, you know, this is how trials work. And the Alex Jones case, and you go back if you haven't followed, we've talked about a number of times, the Knowledge Fight deposition episodes, I think, are really, really instructive and enjoyable if you're an OA fan, fan, um, this is an example of what happens when the other side has decided not to play by the rules, right?

It's the, I, I'm, thinking about the analogy, I'm gonna butcher, of, you know, you, you, you don't play chess against the pigeon because, you know, it knocks over the pieces and shits on the board, and right, that's what Alex Jones has done throughout these two cases. Right. The court will say, turn over all of the documents. And then a month later, after not doing that, Alex Jones will say, well, we don't think we have any documents. So the courts will be like, well, what about

0:10:39 Andrew: This, for example? Yeah, this this piece of information you did, because the few that they did turn over, they didn't review before turning them over. And so they're amazingly damning, including like a P.I. investigation on one of the parents at Sandy Hook that like nobody at InfoWars will own up to having. Right. And paid a private investigator to do this huge hundred page dossier, like they gave them that, that, right, like that, that's one of those, if you're being the Gene Hackman, uh, creepy scary lawyer, you're like, well, maybe we figure out a reason to call this one privileged or something, because this is a real bad document, guys. Um, so they've turned over like a handful of documents, all of them are terrible, and all of the documents allude to the existence of other documents that they didn't produce. Right. Right. So we'll say, like, hey, in my email to you yesterday, I said X. And then you'll look and be like, did you produce the email from yesterday?

0:10:39 Thomas: You have documents. Right right

0:11:38 Andrew: Well, no. Then they put on corporate representatives. We've talked about that before. That is Federal Rule, these are state equivalents, but Federal Rule 30B6, that's how I, as a mostly federal practitioner, know these as 30B7, corporate reps. And the idea is, because corporations are people, my friend, what you can do is designate a real person or persons to have the knowledge and speak in such a way as to bind the corporate person as to what that corporate person knows, right? And so it is your obligation, right, you can name anybody you want, right, so if, if Opening Arguments Media LLC got sued, uh, yeah we could, we absolutely 100 percent could, could say Teresa Gomez is going to to be our corporate witness, uh, but we would have an obligation to prepare her, if, because the deposition topics will say well that's true, but but you know, it would say paragraphs one, two, three, four, right, produce somebody who can discuss, you know, the content on Opening Arguments, well, she'd be, she'd be better, better equipped than either of us to speak

0:12:07 Thomas: Right t Gomes she'd prepare us, you kidding me yeah

0:12:45 Andrew: To that one, number two, you know, uh, Opening Arguments, income that it receives from Patreon. Well, we'd have to then give her that information, you have right, to prepare your corporate witness to be prepared on the topics for which they are designated. And if we didn't want Teresa Gomez to, we would have to put somebody else up, we can say for topic one, Teresa Gomez, for topic two, Thomas Smith, for topic three, Andrew Torres, whatever. But the very first thing you do, and I mean, doing 30B6 depots, particularly defending 30B5 depots, is one of the very first things you get to do as a young associate at a coat factory law firm, because it's super easy, right, like, you can just kind of follow the script, you meet with them, you go through the topics, you talk about, you know, how you are prepared to answer each one of those topics.

0:13:35 Andrew: And when you're taking the deposition, the very first thing you do, literally, it's Exhibit One in every 30B6 cases, you put the 30B5 depot notice in front of the witness and you say, all right, you've been designated for topics one, two and three, can you read paragraph one? Blah, blah, blah. Are you prepared to speak as to as to paragraph one here today? And then the witness says yes. And then you say, what did you do to prepare yourself for topic one? And then they describe what they've done to prepare themselves for topic, well, Info Wars yeah, InfoWars put up witnesses and they, the plaintiffs went through this process, they were like, hey, okay, have you seen document one? No, and literally you could hear like that, what do you mean, no, no, I've never seen that before, okay, do you know that you're here as a corporate representative? No. Do I?

All right, and like, so that happened again and again and again, by the way, that first witness, Daria something or other, was the first day and a half, and she was delightful in the sense that she was as bad a witness as I've ever seen and spent the entire time on direct staring daggers into her own lawyer, is, which not a good sign, right, but yeah, so what does all of that mean, it means as a result of their serial failures, and when I tell you the court spent years, this has been going on for five plus years now, the court spent years bending over backwards.

0:14:02 Thomas: Binge some OA

0:15:02 Andrew: We talked about the sanctions, and telling, right, Alex Jones, please, man, just give us the documents or I'm going to have to enter in some kind of remedy. And failure after failure, witness after corporate witness, they hired an outside lawyer named Brittany Paz to be their corporate witness, which is something I've never, ever seen before, and again she kind of went on the record and was like, well, you know, there were tens of thousands of pages to review here, I kind of did what I could, which again, not a great description of your qualifications, the court was like, if you don't put forth somebody who can speak to the actual topics and you don't give them all of the documents, I'm going to have to enter sanctions against you on the question of liability, and Alex Jones is like, well, yeah, we're still not going to to do it. So that is how we got to where we are today.

0:15:49 Andrew: In two separate cases in Texas and in Connecticut, Alex Jones Infowars refused over and over and ever and over again to give the basic minimum that is required by a party in litigation. The judge eventually gave up and said, hey, if you don't do this, I am going to enter an order of default against you. And Alex Jones still didn't do that, so he has been defaulted, Alex Jones is now complaining, I don't even get a chance to proclaim my own innocence, no you don't, that's right, you cannot refuse to play by the rules and then avail yourself of any of those rules for your benefit, otherwise nobody would play by the rules, right, and again, remember, this is a civil case, right, this is not a a criminal trial, trial, uh, this is a question of what's more likely than not.

0:16:38 Andrew: Well, the courts have said, if you won't give us basic documents, we think it's probably more likely that not the fact that those documents would show that you are liable if you were to give them, so all that's at issue in this trial, which is incredibly difficult. Like, I would hate to have to be, I would enjoy being, in uh, mark Mark Bankston, lead attorney for plaintiffs in Texas. But I would also simultaneously hate it. Right. In the sense that you've now brought in a jury and this sole trial, which is going to be dragged out over two weeks, is given that Alex Jones defamed the Sandy Hook parents. Parents, how did he do so, uh, with reckless disregard or willful ignorance in such a way that mandates the imposition of punitive damages? Right, so we've talked about out bifurcated trials before, right, where you bifurgate liability and damages, right? And you have a trial to determine whether somebody is responsible to someone.

0:16:50 Thomas: Right

0:17:39 Andrew: And then if they are adjudicated to have been responsible, you have a separate phase on just computing how much they then owe. That's right, as if that's what's happened? So think about this as there's already been a trial on the merits, there hasn't because there's been a default, but there has has already been a separate phase to determine liability. Alex Jones is liable. Now the question is, how much does he have to pay? And if you're watching with that in mind, you will immediately sense the desperation on the Alex Jones team because they keep relitigating the question of whether he's liable, whether it's reasonable. And it's just, yeah, it's bad.

0:17:54 Thomas: Right. Yeah. Wow.

0:18:18 Thomas: Like. What. What? What should a normal trial that's in this phase be doing? You're trying to assess, like, the victims and what their damage claims might be worth, kind of thing.

0:18:30 Andrew: Yeah. So a normal Normal trial at this point, if I represented Alex Jones and God help me, I never would. Right. But if Irepresented Alex Jones, your strategy is to do two things at this point. Number one is to minimize the perceived footprint of InfoWars. Right. Because The more people Info Wars reaches, the bigger the damages that you owe to the plaintiffs. Um, this can be a problem for your clients, right?

Know, think about if somebody wanted to interview us, like, I'm, I'm proud of how big Opening Arguments is, right, but if Opening Arguments were the defendant, I'd be like, Yeah, no, we do we do this podcast that like, you know, nobody, I did, nobody even knows what a podcast is, and you know, Neil Catchall steals our name all the the time, and yeah, you, would make yourself as thin a footprint as possible, okay? That would be kind of point one, uh, which they have not done, right? Like, they have allowed Alex Jones in deposition to bloviate about how he reaches 10 of the world, uh, as his audience, which is which is so improbable, preposterous on face, that, like, you could just see, you know, defense, plaintiff's counsel, you know, giddy, like,

0:18:50 Thomas: Right, right, right. Yeah, it's just only our wives listen. Yeah.

0:19:45 Thomas: Yeah.

0:19:45 Andrew: Oh yeah, no, tell us, tell us again, the uh, wide-ranging influence of Info, are you sure it's only 10, right? Yeah. Um, the second thing you do is you have to get your client, so these are, these are two hard sells to your client, but again, um, I find, I noticed that when my client has money on the line, uh, it becomes an easier sell, right? Like it's like the Futurama, like we're, we're going to use some nice cheap words now. Right. Like, and and the second thing you have to sell your client on is, OK, have to pivot now. You have to concede that the thing that you did, that the court has now just said was rendered you civilly liable, was in fact libelous. Have you to concede that you engaged in libelous statements and now you have to be super apologetic about that. And we have to show that was based on a mistaken good faith effort and not malicious, willful, such that they do not impose punitive damages on our behavior right now.

0:19:47 Thomas: Yeah, I bet it's more than that.

0:20:46 Andrew: That is just textbook case in a libel case? You've argued all throughout the trial, again, no trial here, but again, in a normal case, that you're not liable, right, that it was protected opinion. The court, the jury says, guess what, not protected opinion, statements of fact. Then you come back and say, okay, my bad, I was wrong on that, here's why, I, I, I did not do this maliciously, right, here's the reasonable, the steps I took, which I get that the court has now said is not enough, but here's what I did, are the only two things that you should be doing in this trial, and this defense is just off the rails, right? Have they, have no ability, and the reason they have no ability to do that, is because we've watched, you know, the right wing smear machine under Trump and and lots of people who do not have executive privilege and absolute immunity.

0:21:37 Andrew: We're like, oh, well, if the president can go on national television and say Dominion voting machines secretly transmit votes to Hugo Chavez's ghost who turns them into votes for Joe Biden and sends them back, then I can certainly say that. And guess what? No, you cannot. Right. And so Sidney Powell and Rudy Giuliani and my pillow guy, Mike Lindell and all, you know, they were about to learn that lesson. Well, Alex Jones is also about to earn that lesson that, just because his icon Donald Trump defames people on a daily basis does not mean he gets to defame people on So that's your guide to watching the trial. This beautiful moment occurred at the end of Wednesday's testimony, and that is defense counsel. And I call him lawyer McMullet. He has, I am not kidding, a 1991 mullet as if he just came back from a Guns N' Roses concert.

0:21:55 Thomas: Oh, wow.

0:22:34 Andrew: It is I

0:22:35 Thomas: So you must have really conflicted about this trial. You must be struggling. Everything in

0:22:38 Andrew: I really am, like I have I am telling you, I have had that haircut, I was 17 at the time.

0:22:45 Thomas: Your nervous system is telling you that's the good guy, that's the good, how do I oh, I'd be over, you'd be, you'd be arguing for Alex Jones, this would be a different, some totally

0:22:47 Andrew: Yeah oh if if if he had a Transformers t-shirt, like, you could not, yeah yeah yeah it would be a very different show. So so lawyer McMullet guy is like, uh, I want to introduce uh this, and I want to, yes it's a radical that's

0:23:04 Thomas: Radical evidence, I'm gonna rock your socks off with this evidence, two, three, four.

0:23:12 Andrew: I want to play this 17 minute clip from InfoWars, Mark Bankston, plaintiff's counsel, stands up and says, objection, hearsay. Now, I'm going to point out, this is after we've heard heard hours and hours of InfoWars clips played for their corporate representative, Daria, and questions. Okay. So you hear Alex Jones say that, how did, you know, what research did you do to prove that statement? How did you go about verifying whether that was true? What's the source for? Just that, devastating lines of inquiry, playing tons and tons of InfoWars clips. And then defense gets up to do the exact same thing. And the objection is, objection, hearsay. And the ruling from the bench is sustained.

0:23:56 Thomas: Oh, you done got lawyered. Alex Jones's lawyers are exactly the type of people that would be like, wait, no fair. What? They did it.

0:24:03 Andrew: They made that argument. They actually made that agreement in court. And I'm sitting there thinking, well, every Opening Arguments listener knows exactly why this is the the case right

0:24:15 Thomas: If you could see me, I'm sweating right now trying to make sure I could answer this T3B question right. Yeah, yeah, totally. We all know what you're going to say.

0:24:18 Andrew: Well, just I that So that is right. Hearsay not admissible unless specifically excluded by the rules of the Federal Rules of Evidence, uh, other rules prescribed by the Supreme Court, uh, or a federal law, right, that says that you can bring in that particular kind kind of information. Is Infowars hearsay? Well, rule 801, right? The 800s are what governs hearsay in the federal rules of evidence. 801 is the first rule. Rule 801 defines hearsay and it says hearsay means a statement that the declarant, that is Alex Jones, does not make while testifying at the current trial or hearing. And two, a party offers in evidence to prove the truth of the the matter asserted in the statement.

So If I am a defendant and my lawyer wants to put on an episode of Opening Arguments, that's hearsay unless there is some purpose to introduce that is not for the truth of what I've said right now. If the question is, right, I testify on direct, yeah, on Opening Arguments all that consistently since January of 2017 I have referred to Donald Trump as a criminally insane game show host, right, and the defense is like, are you sure about that? Because I'm pretty sure Neil Catchall said that first, and I'm like, no, no, no, really, then you could put on my, the clip of Opening Arguments. I

0:24:47 Thomas: Right? Right.

0:25:37 Thomas: True. That's true now.

0:25:48 Thomas: Oh, when you say you, do you mean you? Do you

0:25:51 Andrew: Mean yeah me, Andrew Torrez right so So, uh, now. Now, both sides can put on the hearsay, right, because it is not being offered for the truth of the proposition.

0:25:51 Thomas: Mean like your side or the other side or both? Okay. Of What's in the audio, it's being offered for the truth of what you're saying on the stand, right? Now, okay.

0:26:06 Andrew: Right. Exactly right. It is because the question is not, is Donald Trump a criminally insane game show host? He is. The question ist, was I testifying truthfully when I said I've been saying that since January of 2017? You play the January, you know, 21, 2017 episode of Opening Arguments, I call him a criminally insane ex-game show host, and, uh, it's done, the crowd applauds right I established that I was the first person to say elections have consequences, right? So, so that's how if you're the defense you can use these kinds of clips, but if you are the plaintiffs, you do not have to jump through. And the reason that you don't have to jump through any of those hoops is that I read you the definition of hearsay, 801C. 801D says things that aren't hearsay. A

0:26:10 Thomas: Right. Right. Right. The the the crowd applauds it's over, the judge is dismissed right

0:27:00 Andrew: Statement that meets the following conditions. It is not hearsay if two, an opposing party statement, the statement is offered against an opposing party, and A was made by the party in an individual or representative capacity. Well, that was made by Alex Jones on Infowars, meets that. B is one, the party manifested it, adopted, or believed to be true. Right. Well, again, he's said this out loud and they have not yet put on the objection of, of, no, well, you know, this is all high theater and, you know, he doesn't believe any of it. Although you could make that argument. C was made by a person whom the party authorized to make a statement on the subject. Well, Alex Jones is the head of Infowars, so that satisfies that. D was made by the party's agent or employee on a matter within the scope of that relationship and while it existed. Or E was made by the parties co-conspirator during an infertherance of the the conspiracy, so, uh, you only have to meet

0:27:10 Thomas: Is oh case

0:27:58 Andrew: One of those exceptions, and, uh, this was a statement by Alex Jones, uh, that was, uh, authorized by Infowars to make a statement on Infowars. Right, case closed. And that, uh, there are multiple exceptions that would also, if, if for some reason you got past that, there, right, are multiple exceptions. Yeah.

0:28:09 Thomas: Closed yeah yeah, I truly struggled with hearsay, as we, as, as we've demonstrated.

0:28:21 Andrew: Lawyers Lawyers struggle with hearsay, as is demonstrated by this trial.

0:28:26 Thomas: And I would like to further emphasize, I've never once studied it outside of what you have heard me on this show learning. So, you know, give me some slack. It comes up every like two months and I forget what, what came up previously, but that's super fascinating. And that's the best little bit of lawyering ever. Now I get why I get a little confused on that. I don't think a lawyer in this case in the defense has any business being confused by this very basic thing.

0:28:27 Andrew: Yep. Yep. It I agree with you. That has led to one more question I want to answer very, very succinctly, and that is, uh, again, I'm not going to say overly conspiracy minded, did, but people have asked, Alex Jones, hire lawyers because, you know, he has, he is engaged with lawyers who

0:29:11 Thomas: Is he sucking on purpose? Is that what the question is?

0:29:12 Andrew: Right yes who, who have come on his show, right, uh, I, like, think it's Rob Barnes, I don't know. But Barnes, one of the lawyers, like, comes on InfoWars all the time and, you talks about the globalist conspiracy to, you know, keep ivermectin. I mean, you know, just is a Looney Tunes, and, right? So the question is, as you put it, are they sucking on purpose? Is he setting up an ineffective assistance of counsel appeal? Yeah, you

0:29:36 Thomas: Okay. Let me redeem myself. I think I can answer this one. He's not being charged with a crime, right? So this is not like you're railroaded by the system and you're a criminal and, oh, I didn't have effective counsel. This is a civil thing where he just hired a lawyer like that. Are you able to make that claim when it's a civil thinking and you've hired a lawyer?

0:29:57 Andrew: Are not exactly correct. So, look, the right to a lawyer at all is a judicially created right that we might see the Supreme Court take away.

0:29:59 Thomas: Oh, that doesn't barely exist anymore. Didn't that already? Yeah, we've already. Right.

0:30:06 Andrew: Yeah. Gideon, Gideon v. Wainwright. Yep. And so that stems from your Sixth Amendment right to way fair trial. Right. Specific manifestation of that is when you are charged with a crime. So ineffective assistance of counsel is grounds for a habeas petition that says I did not get my Sixth Amendment right to a fair trial by a jury because the lawyer that you appointed for me or that I hired was so incompetent that that I did did not really get process the that the Constitution demands. That standard is you have to show one, but the lawyer's performance fell below, quote, an objective standard of reasonableness. OK, that would probably be met here. And and two, and this is the key part, a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. So yeah, so

0:31:05 Thomas: Well, yeah, that all it's also going to fail there.

0:31:08 Andrew: Layer everything on top of it, you don't get ineffective assistance of counsel in a civil case because it stems from your Sixth Amendment right to a trial by jury in criminal cases. Even if you did, the standards come from a case called Strickland versus. Washington from 1984 that I just read to you, and you would never be able to prove that second part anyway, right? That, like, oh yeah, no, that the jury definitely would have come to a different conclusion if if you'd had less stupid lawyers. Like, no, I'm not. Going to happen, what you get is you get an ordinary civil appeal here in which the court, the appellate court, will defer to the record below on factual findings unless there is a clear and unmistakable error. Now, you may be able to argue, man, the lawyers we got for trial were so bad that they let clear and unmistakable errors in. But but you do not. That does not benefit you. Right.

0:32:02 Thomas: We totally effed up. So therefore declare us the winner. So you're saying for that reason it's unlikely that he, they're throwing the case on purpose. I would like to offer an even more hilarious possibility based on previous coverage in this very episode. What if that is what they're doing, but they don't know that yet because they can't even get here straight, straight. They're like, yeah, we're totally effing this up on purpose, this is great. And then they go to the appeal. No, you realize that's not how that works, right? What? What? What? Crap.

0:32:07 Andrew: Case closed. So, yeah, that strikes me as as as less implausible than some other things that have been floated. It's not zero it is it is not so that's great oh man so

0:32:38 Thomas: It's not 0%. It's not 0%, as I often say, it's not 0%. So the Jordan Harbinger Show. I'm sure you've heard me mention it If you need a new podcast, and let's face it, the average person has six shows they listen to. So maybe that's you. Maybe you could use another one. Well, check out Jordan's show. It's entertaining, informative, and packed with plenty of stuff to learn. Right. I've told you about some politics ones. I told you about Russia ones. I've talked to about a bunch, but a really cool thing happened. Recently, Jordan had someone on the show that I really love. His name's Dallas Taylor, and he does a sound podcast I listen to called 20,000 Hertz, and it was a super cool interview. Got to learn a ton about someone who I'd always heard doing this show that I love, but more in-depth the interview on Jordan Harbinger show. So check out that episode. If you're at all into sound, I guess that's like the Thomas half of this podcast.

0:33:35 Thomas: There's gotta be like three of you. Then check out Dallas Taylor on Jordan harbinger Show. And that's just one example. Jordan has all kinds of guests weekend week out and large diversity of people. There is something for everybody in the Jordan harminger show you can't go wrong with adding the Jordan show to your rotation. It's interesting and there's never a dull one. Search for The Jordan Harbinger Show, that's H-A-R-B as in boy, I-N as in Nancy, G-E-R on Apple Podcasts, Spotify, or wherever you listen to podcasts.

0:34:12 Clip: Down the law, down the law.

0:34:16 Thomas: So now, Andrew, one of your favorite topics, the Green Party a. What's going on?

0:34:20 Andrew: So important background knowledge. This is North Carolina. Here is the state of the Senate race in North Carolina, which pits Republican Ted Budd against Democrat Cheri Beasley. This is as far as all the polling can show a toss up. Right. This is there's a slight advantage. But three of the four major polls that have been commissioned so far in this race have been commissioned by either Republican groups or of Republican leaning pollsters. Right. So you put all that together. This is a closely watched race. It is going to be one of the most heavily funded races of the election cycle and is one of the handful of races.

0:35:10 Andrew: It's it's a top five race. That's the way to think about. If it. Democrats are going to hold on to the Senate and if they're going to expand to get a Manchin and Sinema proof Senate in 2023, that the Democrat has to win this race.

0:35:24 Thomas: Yeah, yeah. You know, I saw a headline that said polling is turning around a little little bit on this for the Senate. And, you know, this is big. I

0:35:31 Andrew: Yeah. And I'm gonna speak tothat when we talk about sort of evaluating the Green Party. But but I want to focus on Cheri Beasley for a second, because this is a former public defender and former chief justice of the of the North Carolina Supreme Court. Right. She's an African-American woman. When I go to her Web site, this is by her description, the top I pulled out. I put the top five issues, Public right? Option for the Affordable Care Act, $15 an hour minimum wage, codify Roe versus Wade into law, pass the Freedom to Vote Act and the John Lewis Voting Rights Act, right, we went over those in detail on this show. That's what got held up by the Joe Manchin filibuster, right. And a bunch of specific proposals about climate change, right so we're not talking about a Kyrsten Sinema here.

0:36:21 Andrew: We are talking about what seems to me to be a very progressive candidate in what you would call a purple state, not a DINO, not yet you another 70 year old white dude who's out of touch, a brilliant, accomplished person of color with a progressive platform. Platform now, this is about the Green Party and its senatorial candidate in that race, Matthew Ho, and I will tell you I've invited him to be on the show. And earlier today, too late, I invited him yesterday, uh, earlier today he sent me his email. So I'm gonna, you know, he's that invitation will remain open. I would love to have him come on, uh, and chat, uh, but I'm, but I'm GOING describe kind of the background conditions here. If you want to be a candidate for Senate in North Carolina, and you are not the winner of a primary of a recognized party, which I believe is only the Democratic and Republican parties, right?

0:37:18 Andrew: I'm talking about that in second. You have to go through the process. We've talked about this in connection with California ballot initiatives, You got to go through the process of gathering signatures. How I feel about gathering signatures in this century. Gathering signatures has been used as a political tool by insiders in both major political parties to to conduct shenanigans, to right, disqualify their potential opponents, to keep people on and off. It's it is subject to potential abuse, but it is also part and parcel with running for office. And if you want to be an undeclared candidate, right, not a Democrat or Republican, there is a provision under the North Carolina statutes. It's North Carolina Statutes 163-122, and it says that if you're going to file for a statewide office like running for Senate, you got to file with the State Board of Elections petitions on or before 12 noon on the day of the primary election.

0:37:28 Thomas: Oh,

0:38:18 Andrew: That was May 17th and must be signed by qualified voters of the state in number to one and one half percent of the total number of voters who voted in the most recent general election for governor. So pause. 7 million registered voters in North Carolina, 5.5 million voted in the last gubernatorial election. 1.5 percent of that is 83,190. So 83,190 signatures. The petition must be signed by at least 200 registered voters from from each of three congressional districts in North Carolina, right, so we've talked about how different states have had, forget right which, new state it was that had uh five congressional districts got reduced to four and the statute still says five. Yeah. Um, North Carolina has eight congressional districts. You don't have to get them from all eight, you have have to get from three. Okay. You had to turn that over.

Now, 83,190 signatures is a lot, but, you know, it's a statewide office, so, you know, you would think, "Okay, get to work, Matt." But Matt found one weird trick, and I don't know if Matt was the person who found it or not, but one weird Weird trick really does work, and that is the standards for creating a new party in North Carolina are easier than the standards of getting yourself qualified to run for statewide office. Now, why is that? Because real parties start organizing at the community grassroots level. And so you wouldn't expect them to have to reach the threshold of showing huge statewide performance.

0:39:57 Andrew: So they have the same kinds of requirements. You got to get all of these petitions. They have to be signed by at least 200 registered voters from each of three congressional districts. Right. But you only need equal in number to one quarter of one percent of the total number of voters who voted in the most recent gubernatorial election. So instead of needing 83,000, if you file for a new party, you only need 13,865 valid signatures. And so that was 163.96 and 163 point 98 says then you get an automatic line on the ballot, just like the Democrats and the Republicans. So, "In the first general election following the date on which a new political party qualifies under the provisions of 163.96, it shall be entitled to have the names of its candidates for national, state, congressional and local offices printed on the official ballots."

0:40:54 Andrew: Ballots. So great, right, instead of gathering 80 plus thousand signatures, all you got to do is gather 14 000 signatures, get the Green Party certified as a new party, they get an automatic line on the ballot, and then you can be their candidate. Um, my first parenthetical side note that might discourage Matt from appearing on the show, uh, this is how you know the green Green Party is not a real political party. If you go to the Green Party of North Carolina and click on the candidates page, that is ncgreenparty.org slash candidates, I'll put the link in the show notes, you can see there are only two candidates. There are hundreds of local races throughout North Carolina. And if what you really wanted to do is build a movement for lasting change from the ground up, you would run for alderman.

0:41:42 Andrew: You would run for county council. You would run for everything, right? Particularly in these races that have, you know, candidates who've been running unopposed since the Lyndon Johnson administration. They have two candidates. They have Matthew Ho running statewide for Senate and a guy named Joshua Bradley running for the Raleigh City Council at large. So, you glad they got at least the one.

0:42:01 Thomas: So that guy's getting started. Yeah,

0:42:03 Andrew: Yeah, That's right. But why do they not have 200? Why do that? There are 13 affidavits that are attached to the complaint, which I'm going to get to in a second. Other 12 are officers in the North Carolina Green Party. Might cynically say feels like they're more interested in running a party that sabotages statewide elections than in actually doing anything. Thing, um, what happened, petition, Green Party went out and, this is how, again, we've talked about signature drives before, everybody who does this, whether you are organizing to put a question on the ballot or whether you were organizing to get yourself on the ballot, uh, or whether your organizing to give a constitutional amendment, you do a couple of things first.

0:42:03 Thomas: Yeah,

0:42:51 Andrew: Uh, you can use your own volunteers, right, who were, that's the, that the best, but but you gotta, your volunteer campaign volunteers have got other campaign stuff that they're doing, right, and fundraising and, uh, you know, printing up flyers and scheduling meetings and, you know, public appearances and all that, so you also can pay, uh, companies or canvassers directly, correctly, um, and you often, those those people are paid by the signature, and so, uh, you know, that when you hire a company that pays its canvassers for every signature they return on a petition, that at some point one of your canvassers is going to be like, "Well, I could just write a whole bunch of these things" on here, right. And and people do that and, um, the people you interview, right, like the canvASers are just trying to get names. And so somebody writes, "Hi, what's your name?" "I'm Mickey Mouse, I live at one two three Fake Street." They're like, "Cool, man, just sign the petition," right? Like, so canvassers are incentivized to make up fake names and to allow fake names onto the back, we know this, okay?

Um, so what you do is you try and hire reputable outfits that, that the police some kind of oversight, and um, you get way way more signatures than it requires. And I will tell you, the Green Party did that second part. They got 22,000 signatures. They need 14,000, right? They got, they got 22,547, okay? But as you're submitting those petitions,

0:43:31 Thomas: Yeah Yeah.

0:44:19 Andrew: The local boards of election go through and they just, they have to put a little check mark or a little X next to, is this a voter who is, who is a registered voter in this county, right? So when you see Mickey Mouse and you look at your rolls and you go, oh, well, I have a Mickey Mouse who lives here. They put a little X mark next to it, okay? And that reduced that 22,547 to 15,953.

0:44:48 Andrew: Not A great ratio, no. And I'm going to include, it's a page, it's in my show notes, which you'll see if you get the show notes which I'm going to make available to every patron at whatever level this this month because I want you to see it and maybe we'll up we'll put the picture in the uh in the show notes uh on the podcast if we can but um this was you'll see this page it is signed by Josh M who appears to be Josh Mullins, one of the folks who is a canvasser for the Green Party. Every mark next to his individuals who are listed here is listed with a check mark. In other words, these are can these are signatures that were approved by the county boards of election. And remember, what the county board of

0:44:45 Thomas: Drum roll. It's not great.

0:45:35 Andrew: Election does is matches up the name to the voter rolls. Now, does that prevent you, if you're the canvasser, from just making being like, all right, I'm going going to go through the phone book or whatever and just like start putting down people's names and addresses? No, it does not. And so when you look at this, you will see in the exact same handwriting, and, and most damningly, like he switches colors of pens every couple of names, but but it is, so one name in black, then four in blue, then six in a row in teal, then three in blue. And it's like, like, okay, you'd have a pen, right? You'd have a black or blue pen and and it would be

0:46:15 Thomas: Yeah. If you're actually collecting them, wouldn't you have like a pen that you're just giving to people? Yeah. No, each person had their own pen that You asked on the street.

0:46:23 Andrew: Six people in a row had a teal pen. I mean, it's it's silly, and you look at the signatures, and again, you, from the face of it, this is obviously fraud, okay? And by the way, all of these documents are public, I'll put the link in the show notes. This was filed on June 1st, the Green Party said, hey, we're, we got twenty two thousand signatures. We have fifteen thousand approved by the local state boards of elections. We only needed fourteen thousand, where and again, that original Delta was two thousand and eighty eight, two thousand eighty eight votes, over fifteen nine fifty three to thirteen eight sixty five. OK, that has been reduced, by the way. It goes down every day as because of what I'm about to tell you. It's down to fifteen thousand seven hundred and forty there. Eighteen hundred and seventy five signatures over.

0:47:10 Andrew: And so the Carolina State Board of Elections said this said we're going to hold a hearing on June 30th. Green Party and you're welcome to attend. And they did, in fact, attend. And we're going to try and figure out whether we should certify you or not. And at that hearing, made several points. They said, number one, we got complaints from our county board of elections beginning in May before you even filed with us. Right. Like our county Board of Elections were sending us reports that said, hey, you should know there appears to be this Green Party drive. And it just, looks fishy, it looks fraudulent. Number two, that there were strong indicia of objective fraud, like the kind that I just talked about. Same handwriting. Similar incomplete information, right, giving name and address but not date of birth.

0:47:57 Andrew: Having the date ofbirth crossed out for a dozen people in a row, right? Rendered illegible. Partial dates of birth, right? So it says 10-7, but it doesn't say the year, right. Right? Duplicate voters, right? Using the same name on multiple different petitions. So that was kind of category two.

Category three, they submitted prior petitions from when they attempted this activity in 2018. And so that not only led to, you know, dead voters on the petition, which look, you could validly have, right, I signed the petition on Tuesday, I die on Wednesday, right, that's a valid dead vote, but right nevertheless, um, the reason they could tell that these were 2018 petitions is because they listed a different party chair, right, so, you know, uh, recycled application, and you cannot do that, you cannot take 2018 signatures and submit them for 2022. Um, one firm collected over a thousand signatures on its own, seems a little fishy, out of 22 you 000 yeah, uh, three individuals are responsible for 1472 signatures, and of those only 624 passed that initial review, right, and again remember the initial review is not, are these all in the same color and clearly written by the same, the initial review is just matching name to voter rolls. So that that was a, what, a 38 percent rate?

Um, that, that that were just obviously wrong on face. And, you know, that applied to fourteen hundred specific signatures that that are on the ballot, of which six hundred and seventy two were accepted. So the State Board of Elections said, you add all those together, that's more than twenty two hundred, and so twenty two eight.

0:48:48 Thomas: Yeah,

0:49:41 Andrew: And so we're going to defer ruling while we continue to investigate this. OK. And so if you if you click on the State Board of Elections site, it says that this application is in progress. And I will tell you, I did a search for all of the statewide petitions. And with the exception of one person who got off, they all say in progress, OK?

OK, that is the American Political Party, the Veterans Party of North America, the Constitution Party of North Carolina, candidates like Gordon Thomas Ward for governor as a write in or Diana Jimison for U.S. House District 10 as a right. They're all in progress. Right. While the State Board of Elections says, look, we want to make sure that these names match up to and are proper signatures.

It is, of course, a misdemeanor to sign the name of any other person any petition under 163 96, and it is a class one felony to swear falsely with respect to any matter pertaining to any primary. Or, I want to tell you this, probably would not get to 1875 disqualifications, conversations, a particular activity that's going on, want to describe the activity and give you the answer. Okay, so this is Matthew Ho tweeted this out, and and I wanna say, taking a bunch of shots at the Green Party, gonna continue to do that, this would be my reaction, okay. OK, he he screenshotted text message. He got the text message, says, begins with, did you sign this petition to recognize the Green Party?

One for yes, two for no, three for not sure, four. This is the wrong number. Right. So so Matthew text back one. Yes. If you do that, that then sends the follow up text. If the Green Party is on the ballot, it will give Republicans a huge advantage that will help them win North Carolina in 2022 and 2024.

0:51:31 Andrew: In past elections, we've seen that the Green Party takes votes away from Democrats, which helps Republicans win. With abortion rights in the balance, we can't afford to give Republicans more of an advantage. Are you interested in asking the elections board to have your name removed from this petition? One or yes, two for no. So he says no, right?

0:51:51 Thomas: Sure.

0:51:51 Andrew: You're the Senate candidate. It's probably not a hard call. And then that triggers triggers this response. I understand that this seems like a lot of effort, but we really want to make sure that Democratic candidates have the best chance to win this November. This could make a big difference. Are you sure? One yes, two for no. He says, yes, I'm sure. And then they say, okay, thank you for your time. Have a nice day. And then he says, hey, who is this? And they say this is the Democratic Senatorial Campaign Committee. Then, know, publishes you that to Twitter and says, I just received this text. This is the Democrat Senate Campaign Committee attempting to subvert the North Carolina Green Party's successful petitioning for ballot access, proving that Democrats nor the GOP care about democracy, only maintaining power. Please help us fight back. So real legal question that I went to examine, you do this?

0:52:39 Thomas: Yeah.

0:52:39 Andrew: Because it seems like there's a little bit of the like, wait, wait. You're saying they can file all these petitions, and then, uh, you know, an interested party can try and get some takesies backsies. And as it turns out, takesies backsies is protected under North Carolina law, there's a case

0:52:56 Thomas: Well, takes these backseas is but like soliciting takes these backsies as a third. Okay.

0:53:00 Andrew: Soliciting takesies backsies, right. So, uh, Conover versus Newton, involved, is that 1979 case, right, involving weather before final ruling. And again, this is drawing on a 1940 case, and between the two of them, they covered a situation, one in which the petition required unanimity, and one guy went back and changed his mind before it went into effect. And one in which, you know, like this, it just required a majority of, you Know, 51 percent. Do we are we above X line? Are we below X line and in both cases, the North Carolina Supreme Court looking through going, OK, get kind of the incentives of, You could people know, solicit? But we want to say, quote, the better rule is that the individual petitioner may, as of right, withdraw his name from the petition at any time before final action thereupon. End of quote.

0:53:02 Thomas: Oh.

0:53:26 Thomas: Seems Fair, I

0:54:01 Andrew: So that is the rule. That is, you have an absolute right when you sign a petition until the state takes action based upon that petition, either the executive agency as delegated from the legislature or the state legislature itself. Right. You can say, oh, hey, I want to pull my name off of that petition. And because it is as of right, that means I can call you up and I can try and persuade you and I can say, hey, you know, you have an absolute right. That was if you'd answered yes, right? I imagine what the DSCC would have said. Yeah, we'll put you in touch with legal experts. Mark Elias represents the Democratic Party, a super election lawyer, Mark Elias. And we'll put you on touch with folks who will tell you how to do that, to say, yeah, did this, I but But I didn't realize when I was sort of stopped on the street and asked for, hey, do you want to, know, put you your name on a petition to get the Green Party on the ballot?

0:54:51 Andrew: Seemed like a good idea at the time, but now it seems like a really terrible idea. I've changed my mind. And I want to add that that is the the, in my view, sort of the best case, right, argument, this, right, is ongoing, going. People have a right to change their mind. And have sufficient indicia of potential fraud for this to be ongoing. But it is really going to be kind of a race to the finish line in terms of if this is allowed to go forward, whether the combination of takesies-backsies and disqualified unqualified fraud drops the Green Party below the level they need to to get that free ballot line. If they do, by the way, Matthew Ho doesn't get to run. Right. Because he didn't file. He didn't get the 80,000 signatures.

0:55:37 Andrew: Right? He didn't file for his own unaffiliated line. He put put all his eggs in the, you one weird trick basket. And, you that if that falls through, then they don't get that automatic line. The hearing on that injunction is August the 8th. So that will really, I think, be kind of the final moment that is telling on this. I will also add, probably won't surprise you that the Democratic Party has moved to intervene in the case. As of right, that hearing or final briefing on that was due today. And the Republican Party has filed an amicus brief. And the Republican Party's amicus brief is, um, shall we say, substantially more beefy than the original Green Party's petition, right.

0:56:21 Andrew: Kind of, well, they They say it directly in their application, because remember when we filed our amicus brief in the Michael Flynn case, you have to file a statement of interest, right? Why should the court believe that you're interested, uh, and want to care about what? And their statement of interest said, think that there is evidence in the petition that the Green Party being off the ballot will benefit the Democrats. So we're opposed to anything that would do that. And that is their stated goal of why they want to be allowed to file their amicus brief, because if they don't and the Democrats win, that would be

0:56:21 Thomas: Wonder what their motivation is, yeah.

0:57:02 Thomas: Oh,

0:57:02 Andrew: Bad. So, um, I want to say this individual case does not establish, uh, that the Republican Party is directly funding the Green Party, okay, but, uh, the state Supreme Court of Montana in a similar matter already ruled, uh, upholding a trial court's decision on the fact that that did in fact happen. But in Montana. And And in that case, the Montana State Supreme Court, pretty conservative leaning court, ordered the Green Party candidates removed from the ballot because, quote, it later became clear that the effort to qualify the Green Party was financed by the Montana Republican Party. End of quote, uh, under Montana. Again, we'd have to break down that decision.

0:57:44 Thomas: Is that not okay do Another deep

0:57:49 Andrew: But Um, but yeah, so when you are looking at this particular situation, that what I think I could say that is the most charitable is both major political parties are aware of the implication of having, or voting for, a third party candidate on the ballot, and if the petition is successful, that will take votes away from the Democratic candidate. If the partition is unsuccessful, then that will not be available and will very likely, depending on how folks in North Carolina feel about the coverage with with respect to this, benefit the Democratic candidate. And that, And is you a super important, close race. Like I said, we have reached out to Matthew if he wants to come on the show. I'd be happy to have him come on the show, but but there's a lot sort of going on. There's been a lot of breathless coverage. Matthew went on Andrew Yang's

0:57:50 Thomas: Dive. Yeah, yeah.

0:58:05 Thomas: Oh

0:58:51 Andrew: Podcast a couple of days ago, you may have seen the notice of Andrew Yang forming a super centrist party. Democrats are not conservative enough, uh, but um I

0:58:56 Thomas: Yeah that that'll fix it yeah that'll that'll fix it all up, that third party, good. Yeah, sure, right.

0:59:04 Andrew: I will say this, and I I want to say this in an effort to to hopefully convince Matthew to come on the show, I don't understand the answer, I sincerely do not. I will lead off, this would be my first question to you, Matthew, if you come on the show. If you truly believe in the causes of advancing third-party ballot access, not work from the grassroots, from the ground up at the state legislature level in North Carolina to get ranked choice voting, instant runoff, some kind of version, build some consensus that would make us allies, right? That, would put you, instead of on the same side as the North Carolina Republicans filing an amicris on your on your behalf, would put you on the side of, is the people who share 95 percent of your political interests. Right.

0:59:36 Thomas: Yeah I always say this. I mean, I the arguments go the same way. Well, we need, you know, we need different parties. We need this, these two, blah, blah. And it's like, OK, I'll grant you that. How are we going to get there? Well, you know, if we had ranked choice voting, then that would fit. And oh, I agree with that. So we agree on two things. What's the best way to get ranked choice voting? Is it to spoil elections for Democrats so Republicans just win and never do that? Or is it to try to, energy, you stoke the flame a little bit among Democrats who actually largely, I think, do agree that we want some sort of voting reform and rank choice voting might be one. We can look into it. But if you want to get that put into law, change the way we vote, the way you would do that is by electing Democrats because they are the ones who actually are interested in fixing these kind of problems.

1:00:00 Andrew: Yes.

1:00:38 Andrew: I just want to jump in and make two quick friendly amendments to what you've said. Number one. Assume the unthinkable happens. Assume that you get elected as a senator right from the Green Party being, being in the U.S. Senate, does not advance the cause of ranked choice voting in North Carolina by one iota that they, the federal government has no power to tell North Carolina how it should conduct its elections, so you're running for the wrong race in the first part, and, and secondly, right, the other kind of friendly amendment that I that would mention, that is, don't even have to elect Democrat, right, like at the local level, um, put a put a ballot question on right if if this is truly your top priority, why do we not see the Green Party organizing from the bottom up, going around, building a coalition? Right, if you stop me on the street tomorrow and said, hey, I want you to sign a petition that would put a valid question, uh,

1:00:48 Thomas: Yeah. Oh, not at all. Yeah. Right.

1:01:15 Thomas: Put ballot measures on. Yeah, yeah, totally.

1:01:34 Andrew: On the ballot that says we should have ranked choice voting, I would, I would 100% sign that, absolutely yeah no, Thomas will commit a crime yeah sure, um no, no, I didn't, I I empower you, yeah, honestly I, it's why I'm laying it out there, because I do not understand the mismatch between the stated goals and the the means being used to to provide them

1:01:38 Thomas: Sign it in heartbeat. I'll even sign for Andrew. No, add a few. OK, I won't do that. And I think you'll see totally and I think you would see the truth of the matter, which is as it stands, what you're trying to do, Matt, Republicans are helping you and Democrats are not wanting that because both parties parties know what this means. Both parties know that this helps Republicans. If you were to fight for these ballot measures that you're talking about, Andrew, I think we would see quite a different circumstance, you know, and you're right.

Maybe this is something that's less about electing Democrats and more about putting ballot measures through and that kind of thing. And let's say we go with that. I bet you the kinds of money that you would see for and against that would be very telling. I think you would See a lot of right wing money against it. And I think there's a a little bit of bipartisanship. You'd see some independents kind of thinking, yeah, we do need this because it'll help us elect better candidates. But for the most part, you're not going to see Republicans for it and Democrats against it. You're not gonna see that.

1:02:10 Andrew: Yep yep yeah I That's, I thinkthat's exactly right. Only thing I I would conclude on is I I've been to Matthew Ho's blog, which is, you know, less, less updated now that he's running for Senate, which I get, right. Um, it seems like, like, I really think if we have him on the show that we'd agree on 95%. He seems like a genuinely good guy, uh, atheist, you know, kind of goes through his deconversion, I mean, like, it just seems like a textbook OA listener, and and I'd love to get a chance to ask those, um, genuine questions where I'm legitimately stymied here in terms of the way forward. So, uh, you know, Matt, we know you're listening, and, uh, and let us know.

1:03:29 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:03:35 Thomas: And now it's time for T3BE. Oh boy, did you prank me last time, Andrew? That was a pranking. Let's see if I can do slightly better than last week.

1:03:40 Andrew: I'm sorry, I feel the plaintiff was suing the defendant after the defendant allegedly tripped her while she was

1:03:54 Thomas: Took a piece of land that was a common proper deed that he... No. Okay. Not... Oh, wow. Wow. It's not a real property question. Incredible.

1:04:04 Andrew: Walking down the stairs, the plaintif calls a witness to testify on her behalf. The witness corroborates the plaintiff's story. Then, on cross-examination of the witness, counsel for the defendant asks, Isn't it true that you cheated on your CPA exam last year by attempting to look at your notes during the test? Plaintiff's counsel objects to the question. How should the court rule on the objection? A. It should be sustained because character cannot be proved by specific instances of conduct. B. It shouldn't be sustained, maintained, because the question is irrelevant to the battery case. C. It should be overruled because the question regards the credibility of the witness or D. It should be overall because it is permissible character evidence.

1:04:58 Thomas: Gosh. Okay, we've had some stuff about this and I hope I can remember it. I think there was... I remember something we've talked about where like the can't just proactively do a character assassination on a witness. I don't think. I think can only do it in response if the plaintiff were to try to boost the credibility of the witness. Is that true? That's what I'm remembering. Again, with all these things, with the law, things are so specific that I don't know if if that was exactly this kind of same circumstance, but I do remember pretty solidly that that happened in something we talked about. And you can't, you have to let the plaintiff open the door for you, I think, to go in and attack their character.

1:05:44 Thomas: And furthermore, this seems just This seems like it absolutely shouldn't be allowed. Like you have someone saying, yeah, no, I saw the person trip the person. And then you're like, isn't it it true that you cheated on your CPA exam? It seems like super irrelevant, not really even, doesn't really even speak to the character involved here, really. I mean, I guess, loosely speaking, you know, if this were true, it would mean they, yeah, they cheated on an exam, but I really don't feel like that speaks much to being willing to lie for witness. I don't know, maybe. So, it seems like this shouldn't be allowed. Let's see. We had, so I guess it It not being allowed would be the sustained answers because you're objecting the question. So how should the court rule? A should be sustained because character cannot be proved by specific instances of conduct.

1:06:33 Thomas: Almost sounds like something, but it also, I don't know if that's it, because how else would you do this? You know, like, if let's say this were allowed to go after the character, how would you do it except for introducing instance by instance, by incidence, like, could you, I'd like to introduce it into evidence all at once, these several inches at one time, so you can't object to like any individual one, otherwise I feel like this is the only way you do this, so I don't, I don't think A, but, I, oh, I could be wrong there. B, it should be sustained because the question is irrelevant to the battery case. So that's interesting. So irrelevant, so just not relevant. I could see B. B is a solid answer. I'm a little scared because I'm not in love with my sustained answers, and those are the ones that I was thinking it should be. So C, it should be overruled because the question regards the credibility of the witness.

1:07:21 Thomas: Okay, so there it is. Right there. Can you just attack witness credibility? And maybe you can. Maybe you can, I don't know. So, C is definitely a a possibility. D, it should be overruled because it is permissible character evidence. Well, I don't think you do character evidence... Oh, is that what I'm thinking of? I think that's what I'm think of actually. I the thing I'm remembering is when your the defendant the prosecution can't just introduce evidence as to why you suck. They can't just be like, this guy sucks. Unless you try to proactively say, no, I didn't do it because I'm a super cool guy. And then that opens the door. So I think that's the thing I'm remembering. So does that even apply here? Now I don't know. Can you always go after the credibility of a witness? And like, be able able to go after the credibility of a witness.

1:08:09 Thomas: But is this a good way to do that? So now I'm pretty solidly, think it's not character, it's credibility. I don't think you care about the character of a wit. I could be wrong. I think I'm A, B or C right now. Let's see if I further can further eliminate. I think I'm between B or C and I'm going to go with C. I feel like I just don't have a solid grasp on this one and I can't remember if it matters if you're a witness or if you're the defendant or da da da. But I think you should, it seems like you should be able to go after credibility of the witness. And I don't know, cheating on a test, it doesn't feel right, but I don't like any of the other answers. I don't really like A. Could be B, but irrelevant to the battery case in and of itself is kind of weird because it's like, yeah, it's not relevant to the battery case, but it's relevant to their credibility, which I think is fair game.

1:09:01 Thomas: So that's why I'm A or C. And I just, I don't like A. It doesn't really, oh wait. Yeah. Character. Oh, and also A uses character instead of credibility. Oh crap. So I'm eliminating A solidly, I think. I'm going to go between B and C knows c final answer

1:09:18 Andrew: 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 guess, your reason. Therefore we will pick a winner and shower that winner with never-ending fame and fortune, fame and fortune not guaranteed.

1:09:29 Clip: And thank you, Let's go!

1:09:31 Thomas: Now it's time to thank our new patrons at patreon.com/law. The goodies, the ad-free episodes, the early episodes, except when I have COVID, sometimes, not. Sorry about that. And and also, you know, the ability to ask questions in our upcoming Q&A that you can also watch. Everybody can come watch. So why don't you start us off, Andrew.

1:09:40 Andrew: Yeah.

1:09:49 Andrew: And let me add to those benefits, uh, Miss Ashley has not posted a list of uh additional stories in a while, so uh, at least one person asked me, hey, um, you know, are you still doing those? So I'm gonna do the last one that she sent me, which was from about a week and a half ago, which still has some good links in it. And every time she does one, I promise we'll post. I'm also going to give all patrons access to these show notes. So uh, know, try and try and keep the the goodies coming. Anyway, getting those goodies, uh, at any level, uh, we welcome in Karina Casines, Nathaniel Ribaling, Curtis Rogers, Matt Johnson, Sophie Feist, Rhino, hey, uh, Viced Rhino does a really outstanding YouTube content, go ahead, look up, uh, look up his channel, Anthony Godshell, and Richard Brown. Take it away, Thomas.

1:10:35 Thomas: Thank you to Erika Leigh, David Hindberg, Christine, Ben, nkwiw, Daz, and your friendly neighborhood Union lawyer. Thanks so much, new patrons. I love you so much. And that's our show. We will see you next time. And then, of course, another reminder about that Q&A on YouTube. Look for the links. Everybody can come. That's August 2nd, Tuesday, 5 p.m. Pacific, 8 p. m. Eastern. We'll see you for those things.

1:10:44 Andrew: Ooh.

1:11:02 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.

1:11:36 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.