OA633: Why Adnan Was Released

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, Vacation Edition. This is episode 633. I sure Andrew and I both sound very different, that's because conveniently we are both on trips at the same time. How you doing, Andrew?

0:01:30 Andrew: I am jet lagged as all hell. How are you doing, Thomas?

0:01:30 Thomas: Oh. My god. Me too, we really did things pretty much at the same time in the same way we traveled to a close time zone. It really was entirely coincidence, but it's funny because just we're going through the same experience, and yet here we are delivering away the mail's got to run on time.

0:01:36 Andrew: Ah, yeah, we're

0:01:50 Thomas: You. Yeah, how's your trip so far? Just the jet lag?

0:01:50 Andrew: Indeed It does. Does just arrived and uh, trying to adjust to a new time zone, but but other than that, think you, I think things are gonna go well. And and yourself?

0:02:02 Thomas: Great. I'm in Scotland and it's actually the kind of weather I like, which is cold and cloudy. I appear to be the only one, but when you grow up in 118 degree sun too much of the year, I I want to be able to take a walk outside and not come back just completely drenched in sweat.

0:02:16 Andrew: Yeah. No.

0:02:17 Thomas: It's so nice. I it. So I'm doing great. All right, on but with the show. First, let's talk about what we're not going to talk about, which is kind of a tradition on the show, I asked you about the DeSantis thing, and a lot of people are wondering, is what he's doing criminal? First off, why don't you tell us quickly about what he has done, and then why we're not going to be able to talk about today, just

0:02:24 Andrew: Yeah.

0:02:37 Andrew: What he's done is monstrous, and I use the word unprecedented because I mean that in the legal sense. I understand that there have been, you know, sort of similar monstrous deals done in Texas. So hard to find the right words. But what's going on in Florida is Governor Ron DeSantis, fraudulent materials, has induced who are not within their legal status in the state of Florida to board aircraft and then drop them off in Martha's Vineyard as a, ha ha, libs like we've owned you and it it is just the, and I tried to sample some conservative media to sort of get what the even is the argument here, and the only argument that I have heard, uh, is unbelievably stupid, um, and it is based in a complete misunderstanding that that Opening Arguments listeners don't have, but I want to flag for, for you, right, in case you've got a family get-together with Uncle Frank. It appears to be like, oh, well, you said you're sanctuary cities, so here you go, have a whole bunch of immigrants.

0:03:13 Thomas: Unbelievable. Unbelievable. Gotcha.

0:03:47 Thomas: Yeah.

0:03:47 Andrew: To be clear, and you should be clear with Uncle frank, being a sanctuary city is a specific legal designation. It does not mean sanctuary in the 13th century Saxony version of the term, right?

0:04:00 Thomas: It doesn't mean I can kidnap people and just put them there. Well, then I don't know what sanctuary is, Andrew.

0:04:04 Andrew: It, it does not mean you run into a church, you yell sanctuary and they will take all comers. What it means is when you have designated yourself a sanctuary city, what you were saying is that we've talked about. There are certain immigration statutes, and ICE, Immigration and Control Enforcement, requires, they're not a police force, There right? Is no such thing as a national police force. There are local law enforcement that have plenary powers, and then there are federal designees that have specific statutory powers. And the statutes will say things like ICE can cooperate and rely on partnerships with local law enforcement to carry out its missions. Right. And when a city declares itself to be a sanctuary city, the reason why the federal government can't take action against it, the reason why it just isn't relevant here is that a sanctuary City means only that that city has said, yeah, our local police force is not going to voluntarily give you the information you're asking for. That's that's all you're saying. Right? Right. When We've we declare ourselves a sanctuary city, we're saying you've asked. Thank you. Our answer is no.

0:05:10 Thomas: So it's, if I say, hey, I'm a safe person to come to with with problems, and then DeSantis kidnaps a hundred people and puts them in a circle around me yelling, and he's like, you said you were a safe person to talk to. I don't understand. Like, obviously this is bullshit. What are you talking about?

0:05:30 Andrew: Yeah, it is that level of nonsense. Or, you know, folks who have said, hey, to my friends, if you need to flee from a red state that has draconian abortion laws, you can crash on my couch. And then all of a sudden, 87,000 people show up on your couch tomorrow. That's not what you meant. So

0:05:39 Thomas: Yeah, by the way, being lied to and brought against, well, maybe it is against their Will, depending on if they knew the truth. Exactly. Against their informed consent. Better phrase.

0:05:48 Andrew: Against their informed consent, the pamphlet that they distributed, it is 100% false, knowingly false.

0:05:58 Thomas: I wanted to ask you about that. Pictures, but I haven't, I wanted the OA Andrew Torres seal of authenticity there. Are those all legitimate sources of what they were doing? I mean, they really were showing them this false crap?

0:06:14 Andrew: Know how many cases that is and how frequently it was used. I'm going off the same information that you're going off of. And so that's part of why it's difficult to kind of jump in on a developing story like this for which there was literally no precedent. But I promise you this, want to develop and work up the case against Ron DeSantis because he's a monster. And And when I do that, you will know here on Opening Arguments.

0:06:43 Thomas: Yeah, know I that we're desensitized to it. I know it's their playbook. But just to reset everybody's frame of mind, which we all should do from time to time, we have gotten to the point where we're saying, commit human rights violations to own the other party. And I just don't, there's nothing more insane and cruel than that. It I bears repeating to set our compasses and not let how bad it's gotten, immunize us to the truth of what's going on. Like, You this is horrible. Is This history book level horrible stuff.

0:06:59 Andrew: Yeah.

0:07:14 Andrew: Yeah, it is.

0:07:15 Thomas: And now on to our actual show, Andrew. So we'll get another segment coming on that at some point when we can do the research there.

0:07:32 Thomas: Okay, Andrew, huge news. This is very, I mean, one way or the other, this is very significant news. A lot of people are chirping at us about this. Adnan has been let out. I am boiling over with thoughts and feelings, but I want to hear it from you first. What do you think about this? I'm embarrassed to admit, I don't normally read the documents that you read, Andrew. Because you're the lawyer, I trust lawyers to do the lawyer and explain it to me. This one I have read all the documents. I am that fired up over this issue. Um, I've actually read the entire decision for once, so it's going to be really interesting to go through, but what do you think about this and what happened?

0:08:07 Andrew: So, in order to get to what I think about it, I want to talk about something completely unrelated, related, that happened in the city of Baltimore beginning in 2007. And that was at a time in which the murder rate in Baltimore was at relative all-time high. And then mayor, would-be governor, would- be presidential candidate, Martin O'Malley, created a special unit within the police department called the Gun Trace Task Force.

0:08:37 Thomas: Frame black people unit, I think it was Called, racist

0:08:39 Andrew: Plainclothes cops who were sent to go after, quote, bad guys with guns. That's what Martin O'Malley said? And it was staffed with some of the most decorated police officers in Baltimore City, with your commentary. I don't know if you've seen HBO's We Own the City, uh,

0:08:49 Thomas: Yeah, please, yeah, yeah, oh. I actually haven't. I, I should, though. That sounds like something I want to see.

0:08:59 Andrew: Yeah. Um, Almost immediately upon, you being given this kind, this of quasi carte blanche status to that, and again, the mission statement was go undercover and, trace the guns on the street back to distributors, straw purchasers, and with an ultimate goal, laudable goal, of keeping guns from getting to the street. That's a good idea. Implementation, rather less so, right? Gun Trace Task Force instead set up camp in Baltimore City, would take heroin seized from other police operations and resell it on the street under yeah, under some kind of vague theory of like, well, this is how we're infiltrating. And shocker, when you're paid cop money and all of a sudden you're making drug dealer money,

0:09:47 Thomas: And also, I, I got, chief, I got to keep the money, otherwise the ruse, you know, it wouldn't make sense if I don't keep the money and spend it on something.

0:09:53 Andrew: In the trial. Now, and by the way, every police officer, this is 100% is kind of rare a conviction rate. Every police officer on the GTTF, the Gun Trace Task Force, has either pled guilty or been convicted of various crimes. Witness at trial called it a front for a criminal enterprise. And again, basically, they would resell heroin. Most of the cops pled guilty. Some went to court, but again, were convicted. The lead guy got 25 years. So this is a big deal.

0:10:08 Thomas: Okay.

0:10:26 Thomas: This mean, this is unbelievable I can't believe in the year 2022 there's still people who don't understand why we want to defend the police and They're just corrupt As all hell.

0:10:34 Andrew: Yeah. And so you need to understand that story developing in the late 2010s as background for 2019, Maryland passing a new law. And that new law allows the state to move to vacate any conviction on the basis of newly discovered evidence, right?

0:10:57 Thomas: Boy. That is a bad sign that you need to pass a bill to be like, there's so many people who are probably framed by our own police, that let's pass a bill that makes it easier for us to be like, holy crap, our bad?

0:11:07 Andrew: That's right. Look, this is an unequivocal good result, right. And the purpose of that law, and again, when I say the purpose of that, I mean, you read the testimony before the state legislature, was, hey, let's pass this law. And then the state's attorney can come forward and move to vacate all of the convictions of people who were put away thanks to the testimony of corrupt cops who were dealing goddamn heroin on the streets. And maybe, you we have reasons to believe that their testimony was not exactly, reliable in court. Court. Well, don't disagree with that. So, it is The Criminal Procedure Article, the Maryland Code, Section 8-301.1, and it says, in relevant part, on a motion of the state, at any time after the entry of a judgment of conviction in a criminal case, the court may vacate that judgment on the grounds that, and then there are two different grounds. The first is, there is newly discovered evidence that could not have been previously discovered and that creates a substantial or significant probability that the result would have been different at trial.

That's not the grounds that were sought here. The second grounds, which are the state's attorney received new information that calls into question the integrity of the conviction, and the interests of justice and fairness justifies vacating that conviction. And that's what was filed here, second one, the that calls into question the integrity of the conviction.

0:11:41 Thomas: That our legal system needed that bill to be passed, honestly, yeah, course,

0:12:35 Andrew: Cannot be emphasized highly enough. I'm very happy with the law. I am very happy that it's being put into practice. When we talked about serial material, uh, in episode 107, and I suspect, as we continue to talk about it today, I'm going to state my position, I'll, and, and I'l let you, you jump in, I know we're sort of a similar mindset here, but this is my belief. I, right, don't want a handful of convicted criminals to be freed because they sound good on a podcast, I, right, want to highlight systemic failures and make change so that everybody that is similarly situated is treated the same, yeah,

0:13:15 Thomas: Of course, But by that same token, you wouldn't be like, well, that doesn't mean we shouldn't free the ones that do get this attention and end up being innocent. Listen,

0:13:22 Andrew: That's That's true, and that highlights kind of the second point that I wanted to make on our show, which thought we made pretty clear. And that was, all hopefully coming from a skeptical background, skeptical community, and Serial is advocacy journalism. There's nothing wrong with that. You can learn really important things. But if you watch a Michael Moore documentary, or picked a side and they've decided to advocate for that side, and

0:13:53 Thomas: As far as Serial goes, I wouldn't go that far. I would say Serial picked the side of, it's a better story if this is more ambiguous. Maybe that's tomato tomato, but think I they overemphasized minor inconsistencies that don't actually matter in the big picture and hyper-focused on those to a degree that it threw the, the truth kind out of focus in. But Undisclosed is where I would

0:13:53 Andrew: Oh, I Would Well, We haven't gotten Undisclosed Yet, in, but, fact, let me just say Undisclosed is for people who didn't think Serial went far enough.

0:14:25 Thomas: And the case against Adnan, which is the HBO special that was produced by Rabia Chowdhury. It goes even further in advocacy for Adnan. And

0:14:34 Andrew: Haven't I haven't seen it, I should say in the interest of full disclosure, after we published episode 107, Rabia Chowdhury called me a racist on Twitter and blocked me. So, you know, you if want to take that into your matrix, take

0:14:45 Thomas: By the way, your crime in that case was just thinking Adnan did it. You didn't do anything racist or nothing.

0:14:49 Andrew: We click baited the title with, think we called it, know, obviously, you is guilty or something like that. Whatever judgments, you they want to make it continues to surprise me when and people will say, well, know, Serial looked at X, Y, and Z, and it's like Serial was a selective presentation, right? That's not, and again, you can dispute over what their goal was, what you can't say is that was not an investigation, that was not a neutral mediation, that was a one-sided presentation, and it's kind of surprising that we had to do that for some of our listeners. I So want to go very, very, briefly. Very from this, And I'm drawing this from the published opinion of the Maryland Court of Appeals that denied post-conviction relief to Adnan Syed in 2019, State v. Syed. This is, I think, the case that you've read. Here is the history. Syed was convicted of first-degree murder and related charges for killing his girlfriend, Hae Min Lee, in 2000.

0:14:54 Thomas: Yeah, because he is, yeah,

0:15:48 Andrew: He timely filed a petition for post-conviction relief in 2010. In that initial petition, he raised nine arguments in support of ineffective assistance of counsel. He claimed he received ineffective assistance of counsel at the trial, sentencing, and appellate phases. Those are three different sets of lawyers. Serial focused on the trial stage, correct, and

0:16:11 Thomas: That god-awful disaster of a lawyer that he had who's unbearable to listen to for any length of time.

0:16:18 Andrew: Who was subsequently disbarred.

0:16:20 Thomas: Yeah, she sucked.

0:16:21 Andrew: Remember, his first complaint said it was all the way up the chain. And again, all the issues you can. Yeah, Those nine arguments included the failure to call Asia McLean as an alibi witness. That was a point raised on serial. It did not include any of the cell tower stuff, which would later become sort of the main focus of serial. Petition for post conviction relief was denied in 2014 season one of serial aired between 2014 and 2015. And it's impossible to overstate how huge serial was and

0:16:26 Thomas: Well, yeah. You do Do that? Yeah. Yeah.

0:16:57 Thomas: Massive.

0:16:57 Andrew: Is hundreds of millions of downloads at minimum.

0:17:01 Thomas: It's got to be the most podcast of all time. I mean, at least for per length of Time, I guess.

0:17:02 Andrew: Yeah. Absolutely And We're the last time we got one of the things that, like, rapius minions faulted us on was we said hundreds of millions of downloads, and they were like, no, it's billions of downloads. I'm like, Okay, great. I'm like, trying to present the, yeah, whatever, anyway, huge, I don't think that point proves what you think it means. Um, cultural phenomenon, uh, is now the archetype for the sort of true crime genre of podcasts. Related or not, in 2015 Syed got a new affidavit from Asia McLean and petitioned to reopen his post-conviction relief in light of that. New affidavit was litigated and then affirmed by the Maryland Court of Special Appeals, Maryland's Intermediate Appellate Court, in 2016. And this is the first time that the cell tower stuff that was discussed at great length in Serial gets raised as a legal argument. Trial court considers all the new arguments, they and rule essentially three things.

0:17:15 Thomas: Okay. Okay. Which

0:18:01 Andrew: A, there was no prejudice in the failure to call Asia McLean. That was at the discretion of his lawyer. That Adnan had waived the Brady claims, failure to turn over exculpatory evidence regarding certain aspects of the cell tower evidence, but it affirmed on the direct challenge to the cell Tower stuff generally. And when was

0:18:23 Thomas: I have so much on the cell. Yeah, sorry, finish the thought, finish the

0:18:27 Andrew: Not presented with a disclaimer at the bottom of the bills, cell phone bills, that says you can't use incoming call data to establish where the phone is. And apparently the technical reason for this is that an incoming call can trigger multiple different towers at the same time, and not necessarily the closest One.

0:18:27 Thomas: Yes.

0:18:49 Thomas: Key key Wording to all of that, cannot, necessarily, necessarily, and by the way, it's still in dispute whether that was meant about that, or if the phone was off would be a reason that it was unreliable. It's, very unclear, the actual truth behind that. I've done an immense amount of research. I have way more thoughts on it, but I'll

0:19:01 Andrew: I can't wait to hear those thoughts. That trial court decision was appealed to the Court of Special Appeals, to which all appeals go in the state of Maryland. And they affirmed, but they affirned on completely different grounds? They said it was prejudice not to call Asia McLean and that all that cell tower stuff was waived. They said, look, like you've known about cell tower staff since 2010.

0:19:29 Andrew: You didn't bring it up back then, so don't bring It up now.

0:19:28 Thomas: Because you didn't bring it up in the initial Okay. Which I don't love, I

0:19:33 Andrew: I don't love either.

0:19:33 Thomas: Know it's practical reasons we have to have that, but if this were really about, out like, Adnan was innocent and he just, they didn't bring this up, and the court said, ah, you didn't bringing it up, that would be, I would love the fact that there's a new law that says actually we can just be like, this sucks, and overturn it.

0:19:35 Andrew: Yep. Yeah, actual innocence should always a be basis for habeas corpus. They affirmed the trial court's judgment of new trial, but on the exact opposite grounds. Then both parties basically cross-appealed to the Court of Appeals, which is Maryland's state Supreme Court. It's a cert court. You don't have an appeal as of right to get there. But the court was like, this is pretty important. We're going to review the case. And unfortunately, the basis of the cross-appeal, what the court of appeals said was, we are going to affirm the court-of-special-appeals decision with respect to the fact that all of the cell tower stuff was waived, right? Legally speaking, it was.

0:19:50 Thomas: Right. Yeah, hmm.

0:20:25 Thomas: Didn't bring it up. Yeah.

0:20:26 Andrew: Yep. But with respect of the Asia McLean stuff, what they said was, think, look, you actually haven't quite parsed this enough. The ineffective assistance of counsel is not even at the failure-to-call stage. It's at a failure-to-investigate stage. Here's what the court said: "Under the circumstances, trial counsel knew in advance of the trial the identity of and how to contact Ms. McLean. Trial counsel also knew the nature of her potential testimony, yet still failed to contact the witness prior to trial to make an effort to communicate with her. Moreover, trial counsel's failure to attempt to contact the witness prior to trial did not constitute a reasonable tactical or strategic decision because it was not based on an adequate investigation of the facts." So you don't even have to prove, oh, they should have called her. They should have known her full story, right? And then the question is, why didn't he get a new trial?

0:21:13 Andrew: Because Court of Appeals said, in but the grand scheme of things, things, assuming the maximum possible deference to Adnan Syed, to the petitioner, can't prove that that failure was prejudicial. And they set out the list of facts, these sort 10 facts that were adduced at trial, that really would not have been disturbed by the existence of a potential alibi witness. So I want to repeat what the court says here is the facts because really, it's not present in the state's brief, and it's really sort

0:21:17 Thomas: It wouldn't change the result, yeah.

0:21:28 Thomas: Yeah. Hmm.

0:21:48 Andrew: Of kind of getting lost to history. So are in no particular order. A, Jay Wilds testified that Syed had complained of Ms. Lee's treatment of him and said that he intended, quote, to kill that B-word, End B, Jay Wilds claimed to have seen the body of Ms. Lee in the trunk of her car at the Best Buy parking lot. Jen Pusateri, a friend of Mr. Wilds, told police and testified at trial consistent with those statements that Mr. Wilds told her that Ms. Lee had been strangled. At the time, Ms. Pusateri relayed this information to the police, the manner of Ms. Lee's death had not been publicly released. That's a really, really hard fact to overcome. Mr. Syed's cell phone records showed him receiving a call in the vicinity of Lincoln Park at the time that that Mr. Wilds claimed he and Mr. Syed were there to bury Ms. Lee's body. Uh, that's the only kind of relevant cell

0:22:01 Thomas: Remember that, everybody. Yep.

0:22:39 Andrew: Evidence, right? It confirms the timeline. E,

0:22:42 Thomas: Well, There's some others, but in terms, yeah,

0:22:44 Andrew: Mr. Wild's directed the police to the location of Ms. Lee's abandoned vehicle, which law enforcement had been unable to find for weeks. That's another really really strong, yeah, right.

0:22:52 Thomas: Massive undeniable, well, I've learned it is deniable, actually. I'm amazed at what I've earned that skeptical-minded people, that people who think they are reasonable can deny. I am out, I can't even contain it, but I shouldn't say undenial, I should say must be explained.

0:22:54 Andrew: Yeah. I know. I Yes. Excellent. Excellent point. F, Syed's palm print was found on the back cover of a map book that was found inside Lee's car. G, H, various witnesses, including Ms. Pusateri, Nisha Tanna, and Christina Vincent, testified to either seeing or speaking by cell phone with Mr. Wilds and Mr. Syed together at various times throughout the afternoon and evening of January 13th, 1999. So

0:23:32 Thomas: If all of these people conspired to frame Adnan for some reason, Andrew, what if they all came up with all these things simultaneously to frame this innocent man, that's

0:23:39 Andrew: The, court, court of appeals kind of addresses that. They say, given evidence that the jury heard, "We conclude that there was a not significant or substantial possibility that the verdict would have been different had trial counsel presented Ms. McLean as an alibi witness. Ms. McLean would have been an alibi witness who contradicted the defendant's own statements, which were themselves already internally inconsistent. Thus, Ms. McLean's proffered testimony could have further undermined Mr. Syed's credibility."

0:24:02 Thomas: True, yeah.

0:24:03 Andrew: Moreover, Ms. McLean's account was cabined to a narrow window of time in the afternoon of January 13th, 1999. Her testimony would not have served to rebut the evidence that the state presented relative to Mr. Syed's actions on the evening of January 13th, 1999. At best, her testimony would have highlighted Mr. Syed failure to account precisely for his whereabouts after school trial counts deficient performance, therefore could not have prejudiced Mr. Syed in light of the totality of the evidence presented to the jury. So that's 2019. 19, what's changed in the past three years that led filing of this motion to vacate the judgment? Need to bracket here another kind of potential involvement. This is not something that I think really has been discussed in many places. But this motion has been brought by the state's attorney for Baltimore City, Marilyn

0:24:09 Thomas: Well,

0:24:56 Andrew: Mosby. In the interest of full disclosure, I need to tell you, Marilyn Mosby has a job that was formerly occupied by my friend and my former partner, Greg Bernstein. Left

0:25:07 Thomas: Then I guess you're one of them, is

0:25:08 Andrew: The firm and then was challenged, served one term as state's attorney for Baltimore City, was challenged in the Democratic primary by Marilyn Mosby and lost 2013. And then, you it's Baltimore City. So Democratic The primary is essentially the election.

0:25:25 Thomas: The election, sure. Whoa.

0:25:27 Andrew: She ran unopposed and has had that job. Marilyn Mosby is also under multiple criminal indictment from the Department of Justice.

0:25:35 Thomas: What, the person who filed this thing is under criminal indictment for what?

0:25:39 Andrew: For a variety of what I would describe as minor financial crimes, They include defrauding the government out of funds, right?

0:25:42 Thomas: Okay. Wow. Boy. So I wonder if she might, might need to do something to bolster her reputation in a way that would help distract from these crimes that she's alleged to have committed. I didn't even know that, Andrew, and it doesn't matter because I

0:26:00 Andrew: It's interesting that you didn't know that.

0:26:02 Thomas: I didn't try to undermine this by looking at who wrote it, which it's totally valid to look into that, of course, but, like, I'm concerned with what it said. I read it entirely, and I'm not convinced by it. I don't need to get to the part of, like, and, but maybe somebody made it up or did it inappropriately, you don't even need to get there, but that is really interesting to know, uh, that makes the arguments even stronger.

0:26:19 Andrew: Yeah.

0:26:20 Thomas: I had no idea about that being

0:26:20 Andrew: And she was in turn defeated in, I you can never say you lost an election because of X. But, you under criminal indictment and having that be the main issue in the Democratic primary, which you then lose, one may infer.

0:26:35 Thomas: Yeah, being under criminal indictment is a problem for Democrats in, okay, granted, uh, for Republicans it's apparently not a problem, yeah.

0:26:39 Andrew: Right. Exactly. Yeah. And and only for Democrats. Yeah,

0:26:43 Thomas: Fine, yeah, so wait, she lost, so what was the timing here, she's, when did she lose? So she filed this and then lost, okay,

0:26:45 Andrew: This Yeah? Lost earlier this year in the primary has been indicted since the superseding indictment was filed on March 10th of 2022. she

0:26:57 Thomas: Got it. Okay, so she's still in the position. She just lost the primary, which, as we've discussed, means she is going to lose the election. But she hasn't lost yet because it hasn't happened yet. Got it. I This show is brought to you by the Jordan Harbinger Show. I know, I'm psychic, I know that you listen to podcasts. I'm not going to tell you how I know this, I just know that about you personally. And since you listen a podcast, I bet you could always use more podcasts, If you're anything like me, you could always use Mark Podcast. Might I recommend The Jordan Harbinger Show, a top-shelf podcast named Apple Best of 2018. Jordan dives into the minds of fascinating people from athletes, authors, and scientists to mobsters, spies, and even hostage negotiators. Jordan has a great talent for getting his guests to share never-been-heard-before stories and thought-provoking insights. As always, I'm going recommend an episode for you. Here's one recent episode, one of my favorites. Bill Nye. Love Bill NYE. He was on Jordan's show recently to talk about environmental changes that are threatening humanity and maintaining curiosity and renewable energy and so forth.

0:27:04 Andrew: Exactly.

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0:29:58 Andrew: The continuing evidence is that the money was diverted from the cares act to pay for a vacation home. She also is alleged to have overstated her account balances in order to qualify for a loan in connection therewith.

0:30:13 Thomas: She's, okay. She's alleged to have committed some financial crimes regarding COVID relief, right?

0:30:17 Andrew: And I want to tell you by comparison, they are very, very minor. Okay. So for example, the false statement on the loan application was, you stating that she had $36,000 in her savings account when she had 31, right?

0:30:31 Thomas: Oh, that's nothing.

0:30:32 Andrew: Now the qualifying line was 35, but, nevertheless, right.

0:30:32 Thomas: Yeah. Oh, well, okay? Yeah fair enough it's not nothing I guess she

0:30:38 Andrew: Yeah. You know, and it was, oh, my husband's going to give me the five grand, the but it deposit didn't go in time. But, you know, you sort of combine that with the like COVID heart hardship of, you Know, she testified that she that had COVID a hardship and, um, she didn't, right. Are the kinds of things we would identify, uh, Republican or Democrat. They're They not in the same universe as Trump's crimes? They're not In the same universe as what every Republican does on a daily basis. Uh, but they they, do, I, I think cause you to say, is is there a non-altruistic reason that you might want to affiliate yourself with an incredibly popular podcast?

0:30:51 Thomas: Didn't okay

0:31:14 Andrew: I think There is. So, Attorney Marilyn Mosby filed a motion to vacate the judgment saying, "we now have new facts that call into question the integrity of the judgment." And most of them relate to two, two apparently new suspects that are part of what the state describes as a continuing investigation into the Heyman Lee murder, and for which, properly, they do not provide a lot of information. And that, I would say that actually I feel very good about in terms of of vacating the conviction on this ground, is that this was a potential contemporaneous Brady violation, here's what we have, is the piece of, this, this is the one new piece of evidence. It is that that suspect apparently said at the time he would make Hay disappear, he would kill her, end of quote.

0:31:13 Thomas: Most popular podcast of all time yeah gotcha yeah

0:32:05 Andrew: Now, it would be incredibly strange for a high school girl to have two different people threatened to kill her. So that is obviously exculpatory evidence for the defense, right, and that information should have been turned over to defense counsel. And all of the evidence is that that statement was not turned over to defense counsel. As Marilyn Mosby notes in a footnote, if it was turned over to defense counsel and they failed to investigate it, that would also be really good evidence of professional misconduct.

0:32:16 Thomas: Sure. Absolutely.

0:32:36 Thomas: Then now, that's good point. That's a great argument. Yeah. Yeah so. This is interesting, I wanted kind of hear your take on this first because I have my take. So your view, are you glad, are happy, do you agree with the decision to release Adnan on these grounds?

0:32:51 Andrew: Agree I with it insofar as if this becomes the practice of the state's attorney in Baltimore City going forward, and hopefully in every police department around the country, which is, oh, there was a substantive Brady violation, then going to voluntarily petition, we're gonna let you go.

0:33:00 Thomas: Yeah. Yeah. 100%.

0:33:09 Andrew: Absolutely, does not matter what the merits are.

0:33:11 Thomas: So I was going to come out strong with the gate, but I want to let you say it first. I want me absolutely clear to anyone, you've unless already stopped because you can't stand the idea that Adnan might be guilty. I am glad of this decision.

I agree with this decision to let him out because police are are corrupt as hell, the system is corrupt as hell, and the only way you were ever going to fix it is by there being consequences for when police or the, you know, the prosecutors, for when they do Brady violations, for when they commit misconduct. I'm sorry, the only one, fortunately the only way to deal with that is to let people who might be guilty go. That just, I think that makes sense.

Like, you, the only, where you would stop this behavior, you can't do some meaningless, I don't know, fine, or like a letter in your file or something that doesn't do anything. The only way you're going to stop this misconduct is by saying, okay, now this conviction is suspect, we have to abandon it because you did this, so whoever, for that reason, I agree with the decision. And I think, personally, this is another, we don't have to go down this rabbit hole, I think 22 years or whatever it was is enough for someone who was 17 who killed someone. Honestly, I think that's serving enough time. I, I think that the way brain development goes, we should not judge people in their teens forever for things they did. It's

0:33:51 Andrew: Right right let's

0:34:20 Thomas: Horrible.

0:34:20 Andrew: Get Let's get Dr. Lindsay Osterman on the show.

0:34:23 Thomas: It's horrible, but I honestly, I might be a softie in terms of criminal justice, and that's fine. I am. I'm very in favor of fewer people going to prison serving much shorter sentences. I just am.

0:34:34 Andrew: Again, subject to the same caveats, be that worried about a system in which you have to gain public attention in order for people to care about the fact that you were 17 and sentenced as an adult.

0:34:47 Thomas: Yeah. Probably Is a twist of the knife to the victim's family that he never admitted anything, and so it might be, that might be reason to say, well, I'm not super happy he's getting out if he never admitted he did it. Um, so now that we've discussed the fact we that agree, um, maybe not like over the moon over this decision because it means a guilty man who never admitted he's guilty is going free, but regardless

0:34:48 Andrew: Yep.

0:35:00 Andrew: It Can I do a sidebar because I had to answer this on on Twitter too, and and So I just don't want people to write in with it, um, because you, you had posted you, this is, you letting a person who was guilty go free, and someone was like, well, you know, if they've dropped the charges then by definition he can't be guilty, like, okay, insert whatever word you want to use here for the if I were to say, well, OJ was probably guilty, right? You know what I mean by that, right?

0:35:09 Thomas: Oh When People are like, the

0:35:28 Andrew: Well, by definition, he can't be guilty.

0:35:29 Thomas: Court has declared that It's Okay, you've never called OJ guilty then, sure,

0:35:35 Andrew: Going to get an Andrew was wrong or a Thomas was wrong on

0:35:36 Thomas: No Yeah I I Reserve the right to have my own feelings about someone's guilt. That's not a part, I'm not actually the legal system. I don't know if people know this. I am not the legal systems. I, I'm not a prosecutor and I'm not even a jury. Isn't that weird? I'm none of those things. I am a person who is formulating an opinion and sharing it about what I think happened. Setting all that aside, settings that you and I both agree, good decision that he's let out with, some caveats, because it, because fuck the police and fuck this system, you especially, especially as you went over earlier in this very recording, a horribly corrupt system.

Here's the thing. Horribly corrupt systems often frame guilty people. In fact, that happens a lot. They Frame guilty people to gild the lily, to make sure they're going to get a, is the extent of the new evidence, Andrew, as I understand it, new and the reasons Adnan was was let go, and I want to separate two things, for the love of God please keep these things separate. There is the decision of, something important for his defense, and might it have changed his defense and might have changed how a jury felt?

And therefore, was it valid that he's being let go because of this? That's a separate question that you and I have answered. Yeah, maybe, probably. It's Brady violation. Give him another chance. It was unfair. Let him go. I agree. Separate that out. Now we're talking about what we think actually happened.

So I don't want to to hear, if I'm talking about what I think actually happened, I don't want to hear, oh well but they didn't say, no, there's, we're not, we're no longer on technical gotchas of arguments on Brady violations because a Brady violation doesn't actually

0:35:45 Andrew: Yeah.

0:36:14 Andrew: I

0:37:02 Thomas: Mean he was innocent, it just means he couldn't put up that, the, in his defense. And so the bombshells that people are pointing to are, as far as I can tell, the two main things are the two suspects and the telephone stuff, and I cannot stop researching into this because it drives me nuts that people ARE SO CONSPIRATORIAL.

0:37:17 Andrew: Yeah.

0:37:17 Thomas: Please, please remember the facts that are unambiguous, except for the one cell tower thing you mentioned that Andrew already discussed. You have to grapple with those facts in your story. And so many people in this are taking on this, I'm sorry, what I have viewed as, because I've dealt with conspiracy theorists before, a conspiracy theorist method of trying to sow confusion. You, if you've ever argued with conspiracy, conspiracy theorists, what they do is they do not, they never give you a coherent story of what happened.

They never say, here's what happened, the following people put the charges in the buildings on September 11th on the following floors at what day, and here's how they weren't noticed. And they never do that. They say, no, no, isn't it weird though? Look at this detail. Isn't that weird? Don't you think? Don'y you have questions?

That's all they do because that's all all they can do because the truth is obvious and they are just trying to make, just tryingto make, whatever they can out of tiny, often and and insignificant inconsistencies, and I'm sorry, that's what is going on here. Jay testifies to this day, story has never changed in that Adnan showed him the body in Hay's trunk. That has never changed.

0:38:22 Thomas: Here's what has changed. The location has changed. He has explained that He was dealing drugs out of his grandmother's house and he didn't want to put the police anywhere near that. He wanted to steer them as far away from as possible.

That location has changed, that is perfectly explainable to that, me, that makes perfect sense, he doesn't want to get his family in trouble, he's dealing drugs, so much has been made of that detail, tail, check, there is no best buy here, what about it, doesn't, that's explained that, now again, we're talking, you and I, you and I are talking right now, I'm not a court of law, I'm not a jury, yeah sure, that's something that should have been able to be brought up at the trial, yeah whatever, we've already agreed, he should be let out, he didn't get a fair trial, we've already agreed, forget that, we're talking about what actually happened, he, what frustrates me about this, Andrew, and we're going to do more on this later, but I have to at least squeeze out a little bit, otherwise I think people will accuse us of not backing up what we've said enough.

0:38:22 Andrew: The, the location, the locations, right. Has Uh-huh.

0:39:06 Thomas: You, I'm gonna do more on this later because I cannot contain how frustrating This, is this to me, it really isn't You Have to keep in your mind the full story and all the facts, and I think people are not good at doing that, frankly. I think people are good at zooming in on little things and losing the forest for the trees. Jay said this. Not only that, told Stephanie, who was the first person to talk to the police, because the police saw that, at, they got an anonymous tip about Adnan, which is really interesting. I'm going to add more on that too.

They got an anonymous tip on Adnan. Then they looked Atnan's phone records. They saw that Adnan's phone called Stephanie's phone a ton on the day of the disappearance. And so they looked at Stephanie first, they brought her in first, there's some, it's a little unclear, like if they, to, they may have tried to talk to her, or may have trying to talk it to Jay, I don't, I don't know for sure, all we know on the record is, you know, the the interviews we have on the record, they talked her first, and she said on that day that they talked to her, she said that Jay told her, and you kind of covered this in the facts that you brought up, Jay told her about the body and about Adnan having done it, and shown her the body, on the day of Hay's disappearance.

0:39:09 Andrew: I thought perhaps we might.

0:40:09 Thomas: She testified to that. Now, she has since done an interview that I guess you haven't seen, on that documentary that you didn't watch, where she is suspicious of Jay. That's true. She's suspicious of some things he told her, she never, but says, oh, I just made up that he told me that Adnan killed him. Is that an inescapable fact? In told fact, Stephanie that Adnan killed Hay on that day. So all this stuff about, yeah, but police could have fed the informant, what, when would they have fed to the inform? Oh, my God, I'm sorry, I realize I could, I can't, it's so hard, Andrew, it's hard, hard. People just do not keep these things in the big picture. You have to account for all those facts. Either Jay is a Kaiser Soze criminal mastermind, in that he killed someone that he had no motive to kill, that he has very little connection to, and and proactively framed Adnan, that is the only way, and then the Kaiser Sosay frame

0:41:00 Andrew: Well, why would he frame on, I mean, makes no sense

0:41:01 Thomas: Yeah why would he frame Adnan he could he, could, makes no sense, he nothing right

0:41:05 Andrew: In light of the original facts, but also consider it makes less sense, that theory, The right? Jay did it in a framed Adnan theory makes less since if there are now two other suspects out there,

0:41:16 Thomas: That's inconsistent, that's another hallmark, Andrew, of conspiracy theory level thinking, is you propose a bunch of alternatives that you're dead set on, and they contradict each other. Yeah.

0:41:25 Andrew: Are mutually inconsistent, yeah.

0:41:27 Thomas: So which is it? Is there another suspect or not?

0:41:29 Andrew: Do want to add, none of these were material for me, but in the interest of completeness, these are additional facts that are cited in the state's attorney's brief. So number one, that there is a connection between one of the suspects and the location in which the car was found

0:41:43 Thomas: That is the best. I love this. That's nothing, Andrew, that's nothing.

0:41:47 Andrew: Number two, that one ofthe suspects has prior assaults and sexual assaults listeners as to the show, no, that would not be admissible at trial, right? That's the carjacker willy, right.

0:41:54 Thomas: Oh, that'S interesting, really?

0:41:59 Andrew: That's a basis for investigation, right, like, if you're trying to figure out who likely sexually assaulted someone, you're like, oh, there's a sexual assaulter in the area, right who carjacked, yeah, oh carjack or willy.

0:42:00 Thomas: Oh, okay. Hey, by the way, assaulted, by the way, everybody, just so you know, was strangled and not sexually assaulted, and she was left in her car, so I I struggled to

0:42:17 Andrew: Prior sexual assaults may be not relevant.

0:42:19 Thomas: It's I don't think so, so oh

0:42:20 Andrew: Yeah, I had already excluded that in my mind because again, I'm thinking about it like a lawyer, and this is Carjacker territory, Willie right? You investigate Carjcker Willie, but then you have to find the evidence linking Carjicker Willie to the latest carjacking. You can't just go to court and be like, well, you know, I want to characterize him as a carjack. Super quickly, one of the suspects was cleared by polygraph testing, and you and I are all on board. Polygraph tests suck like They shouldn't be doing it. We talked about the cell phone towers can trigger multiple towers. By the way, there was a specific note in a footnote. This This is, I think, the oddest part of the state's brief that that is in the defense file. That is not a newly acquired piece of evidence.

0:42:26 Thomas: God.

0:42:42 Thomas: It's bullshit yeah yeah it makes

0:42:58 Andrew: That is Not a withheld piece of evidence.That is not that is not Brady material that wasn't turned over. The Brady material that wasn't turned over was the statement. That's the only thing. That's why I led with that. That is the only things that is a legal basis. And we agree that that is legal basis for releasing Adnan Syed.

0:42:58 Thomas: No sense. The sorry. And people are acting as though the fact that one the of the suspects is alleged to have said, "I'm gonna kill Hayman Lee," means, well, you got the guy, you caught him. As I flagged for you earlier, you know who also said he was gonna kill Heyman Lee? Adnan.

0:43:31 Thomas: Oh, but that's according to J? Yeah, okay, who's this suspect statement according to? We don't. It could be nothing.

0:43:35 Andrew: We do not know. We not.

0:43:37 Thomas: It could be someone.

0:43:38 Andrew: An even worse witness. Yeah.

0:43:39 Thomas: Wasn't it? It could could be someone who mistakenly thought it was someone else when really it was Adnan. I don't, it'd be weird to have two different people threatening a schooler's high school life, that would be weird, but as you say, if you keep the big picture in mind, that has to mean that if either of these other suspects is the person that Jay is covering for them, because Jay said to Jen before even talking to the police on that day, Jay said Adnan show me the body. So keep it in your mind, please.

That means Jay had to have had someone else show him the body, and then said, oh, I need to tell this person a lie right away that Adnan showed me. You have to believe he's just dead set on framing Adnan for something someone else did. When, by the way, he could have just kept quiet. If Jay did it, he could've just not said anything to anyone, or if, if was covered, the only reason they got to all this was because Jay told Stephanie, and and I think maybe some other people in there, I'll I'll do more on this later, but that he could have just said nothing, unbelievable.

0:43:40 Andrew: Right. Yep. Yep, yeah.

0:44:34 Andrew: Two more minor pieces. Number one, that Detective Ritz, who was one of the two detectives that worked the case, improperly interviewed a defendant in a different case that led to a settlement. And then there is some impeachment on Christina Vinson. Keeping in mind, remember that appellate court list that I told you, fact number H, fact letter H was that multiple witnesses, including Christina Vinson, corroborated Jay's testimony. So you can throw out one of those witnesses, but not the other two. Again, yep it's

0:44:38 Thomas: Yeah oh My god, I I'm I've been saying Stephani, I meant Jen, I, Stephanie's another Stephany, was his girlfriend, I just said the wrong name and now of course That's sign that I actually know none of what I'm talking about because I mixed up a name, uh, I said the wrong name, I've been absorbing all these things, it was uh Jen was the first interview, so yep

0:45:12 Andrew: Okay yes That's right, Cereal pumped out an emergency episode, I don't know if you had a chance to listen to it

0:45:25 Thomas: I listened to that, it's very uh biased and doesn't at all reflect uh the facts in my opinion.

0:45:29 Andrew: Concludes that everything in this report was quote known or knowable in 1999, um, which is almost the opposite of what the report says. So, so seems like a very weird conclusion to draw from. So I don't, with what, with we've said about the show, I think that continues to be worth discussing, you know, particularly the sort intersection of criminal justice and, you know, true crime dramatizations.

And, I've staked out my position, which Well, yes, but I also think it's a bad thing that I a good thing and bad things I think it is a good thing to have an absolute rule I would have something like, you an exculpatory evidence clause that says, yeah, if you've made if a serious Brady violation, I think the state should petition to vacate your conviction. Even if they think on balance you are substantially likely to have done it I think that that should be the rule that's the good thing um and then let let us add right this is you know in terms of uh criminal justice I also think if you were convicted at 17 uh 20 plus years in prison in is is almost certainly enough

0:45:29 Thomas: Um did it couldn't agree more okay So you agree with me on that

0:46:31 Andrew: This is a 1999 murder. They can say they have an open file or whatever. There is zero chance that they are going to re-prosecute any person.

0:46:38 Thomas: I have someone replying to me who thinks that an arrest is imminent on one of these suspects, and it's amazing, Andrew, and I, look, if that, that happen I

0:46:46 Andrew: Was no chance. I mean, I'll do what Andrew was wrong on that.

0:46:48 Thomas: Know yeah I will do, I will do it, oh my God, something crazy is happening, there's just no chance of that because what happened was Adnan did it, and that's what happened because it's obvious, um, from the beginning, and you can't just say look at this minor detail, I the only other thing I was going to say is, sorry, the cell tower stuff, people are acting like this exonerates Adnan, it does not, but what it does do, and I know we've already covered, we already say we agree he should be released, it is true that this was improperly relied upon, so they used some of these things, and the police, I think, messed up the timeline based on some of the cell tower stuff, and then they sort conformed Jay's story to it in a way that was super icky.

Yeah, again, you fuck, that cop, he sounds like a corrupt piece of shit, and he might have led Jay in certain ways. And by the way, that's why some of Jay's statements, some of them were inconsistent in this way, because if you're giving an interview and you are recalling what happened, and then a cop is like, no, but then the cell data says you went here.

0:46:52 Andrew: Yeah. Yeah.

0:47:42 Thomas: Are you going to be like, No, I for sure remember that's wrong. I mean, I would just be like. Oh, I guess I misremembered the order of things there. Okay. Maybe we went when there. Yeah. Okay. Okay, if the cell, sit there and say that even though a cop is telling you the cell data says you were in a place, you are going say, no, I wasn't in a place. I would 100% be like, oh, I must be misremembering the order of that. Okay, I guess we were there at that time. That's another reason Jay had inconsistencies that are completely explainable. But the cell tower stuff, the caveat, careful wording, incoming calls, not reliable, Andrew, not reliable possibly, and this is under heavy dispute, but let's even grant that, not reliable, we have no percentage on that, we don't know if that means, this is, you one percent of the time it doesn't work, or indeed somehow a hundred percent, we actually don't.

No, but please keep in mind what that means, that means that in addition to the overwhelming evidence that was already covered, and we could go on at length, consistent of story of Jay, Jen, and and all the stuff, they also picked up his cell phone around, around Leakin Park at the time he said that, he said they were burying the body, and now it's saying, ah, those incoming calls might be wrong, well, you know what, for one, there's a massive call log, and the outgoing calls are all agreed to be accurate, right?

Well, there are a lot of times where he had an incoming call and then made an outgoing call right after that to call the person back, and wouldn't you know it, those were correct every single time.

0:48:01 Andrew: Yeah. Oh,

0:48:59 Thomas: It sounds to me like maybe this is something that isn't, what people think it is, and even if they were somehow not reliable, that in no way exonerates them, it just means that, like, let's replace the cell thing with a person who said, oh, yeah, I saw them driving around that time by Leakin Park at that time, I saw a car that was that, and then you come to realize, well, that guy, is he's not always reliable, like, actually his vision is a little bad, does that mean you've, you've, he's innocent?

You just would, okay, so that one thing, even though I think, I, is yeah, he's not reliable, but I I imagine since it coalesces with every other data point we have, that I guess he was reliable in that case, is what I would conclude, it seems he, like, he did see them, but we, okay, don't need that then, we already have the case other ways, um, that doesn't prove he's absent, what would prove he was innocent was, oh, no, he a hundred percent was a different place than he would have had to been a time, at and they don't have that.

0:49:47 Andrew: And I think that overlaps pretty strongly with sort of the question of burden of proof, right? Because one of the things that's really hard for an appellate court to do is you as a juror, Would that have tipped you from voting guilty to voting not guilty, knowing that not guilty can mean I think it's way more likely than not that you did do it, but not beyond a reasonable doubt. Doubt. I have a reasonable doubt now in my mind as a result of this new piece of evidence. And to be fair, minor pieces of doubt can add up reasonable to doubt. That was the whole point of the first episode that we did, was my discussing as a lawyer who rarely is involved in criminal cases and has never taken a criminal case to trial, that in my my mind, effective ways of presenting reasonable doubt are when you present a coherent competing narrative. Think about what this brief tries to do. This brief says, hey, I want a competing narrative. We have other suspects. Maybe someone else killed Hayman Lee. That's a counter-narrative.

0:50:50 Thomas: Sure. And we've already said, yeah, maybe they would have been able to do that.

0:51:01 Andrew: What I said about Serial from the beginning was, in thinking about it as a lawyer, it never met that sort of basic threshold the threshold that we got at the OJ Simpson trial, right? The which cops planted all of this evidence because they're racists and and like you

0:51:05 Thomas: It never did that. Not at all. Yeah. At least that was a story that you could tell.

0:51:19 Andrew: A hundred percent, and that was was the point, I stand by it, there's so so much more we could say

0:51:22 Thomas: There's so much more. All right. I will relent. I get it. I'm just, I'm going to have to do something else on this because I can't stand it. And I'm vacation, on but it just started, it so I shouldn't be uh doing it but it's driving me nuts um yeah uh we'll leave it there This episode is brought to you by Mint Mobile. After years of fine print contracts and getting ripped off by big wireless providers, if we've learned anything, it's that there's always a catch. So when I first heard about Mint Mobile offering premium wireless starting at just $15 a month, I thought, all right, what's the catch here? But after talking to them and using this service myself, it all makes sense. There isn't a catch. Mint Mobile's secret sauce is that they're the first company to sell wireless service online only. They cut out the cost of retail stores and pass those savings directly to you. Of the wireless service is exactly what I already had. So I've got no loss in quality and coverage, none of that. But I've got a huge loss when it comes to how much I'm paying.

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0:55:12 Clip: Treason is treason.

0:55:17 Thomas: Right, update on Trump. Yeah, DOJ replied. Uh I don't think we've gotten a chance to talk about this. What's the Trump Naralago update?

0:55:25 Andrew: Earlier this week, the Department of Justice filed its response brief. Donald Trump filed its opposition on Tuesday, as required by the court, at noon local time. And it is the usual level of obfuscation and nonsense. There was an amicus brief filed by a bunch of Republican states that have been through the reason, and I'm not breaking these down in any way whatsoever, is because they're nonsense. They're terrible. They don't respond to the basic arguments that have been made in this case. And I say that, again, know, we're 633 episodes in, not because, oh, I'm a lefty and I can't take it when the other side makes arguments. I like, think, you know, if you've been listening to the show long enough that, you know, we do a pretty good job of knocking down our own side for giving bad arguments and crediting the other side when they have a point.

0:56:14 Andrew: And this is just, these briefs garbage. The Republican brief in particular seems to be aimed at at reassuring a conservative 11th Circuit. Don't worry, right? Remember, conservatives are totally lined up behind Trump. So, you if you're thinking about which way to please your, potential constituency, that's the way to go. Out.

0:56:33 Thomas: Their brief was just strong-arming it, wasn't even like remember the friends you got, you know, who your friends, I Mean?

0:56:39 Andrew: Well, you know, it begins with FBI's unprecedented you raid of a former president. The And president's brief begins with, this is really an overdue library book, a where do documents belong gone wrong that somehow they've criminalized because Joe Biden is a part of the internationalist cabal to take away your freedoms. Its arguments are bad and they should feel bad. The reason we continue to cover this is because, happened, what has happened in the days following Judge Cannon's ruling, is exactly what we told you would happen, which is other people have started to get in on the act and, oh, oh, all of a sudden, conservative criminal defendants get extra protections? Well, so Stuart Rhodes, in his1-6-insurrection case pending before Judge Maeda, right, in which he is charged, among other things, with seditious conspiracy, has now moved for the appointment of a special master, right?

0:56:40 Thomas: Yeah

0:57:34 Andrew: Because, well, Judge Cannon said that if you're going to, you charge somebody in a case like this, then don't you always believe the government just because the government says that they need something. So let's get a special master in here and has cited that order. And just on cue, our good buddy Mike Lindell has hired Alan Captain Underpants Dershowitz to bring a lawsuit in Minnesota. And that lawsuit alleges malicious prosecution. And it's all about the seizure of his cell phone at a Hardee's. These are just ordinary criminal investigations. It actually is part of what I think will ultimately help the 11th Circuit grant the narrow relief that the DOJ has requested.

0:58:20 Andrew: I've staked my marker on that. And if you're a lifetime judge and you are conservative-minded, right, you want conservative outcomes, comes, I think you probably do not want to be establishing the kind of precedent that Donald Trump wants right now, which is, courts are going to second guess criminal indictments. They're going to Second Guess the way in which search warrants are executed. That's not a thing. So think that as a result of all of that, we we actually have some likelihood of even even conservative judges really ruling in our favor in, in an immediate timeframe.

0:58:58 Thomas: Long last, though, how did the DOJ reply? It

0:59:01 Andrew: This is the kind of reply brief you file when you are kicking ass and taking names. And if you've ever heard me talk about, I delivered little a lecture, I think we shared it patrons. Out I did this at the Puzzle in a Thunderstorm Pajama Party, but it was, how you to debate from the perspective of a debater and debate coach, Right.

And and the number one thing that I think it takes people a minute to understand is the significance of, you know, in debate, what we call extending dropped arguments. And Right. That is, I hey, said this. They didn't respond. Remember that. To a lot of people, it feels kind of like trickery. It's like, oh, well, you Know, so what you're to do is talk super fast, make a whole bunch of arguments and then extend the ones that they don't respond to. Too.

And, you know, to an extent that happens in debate. Of course. But there's like a really, really good reason behind that, which is if you go the intuitive route, if you're like, oh, hey, you make a whole bunch of arguments. I'm going to respond to half of them. Then you respond to the ones I responded to. Then I'll respond to that. Then basically what you wind up doing is having a race to the bottom. Right.

Because your best arguments, the other side is going to be like, well, I don't want to talk about that. So And you should come back in that second round and be like, no, wait, like they're not engaging with our best arguments. They're quibbling with our worst arguments. And that's essentially what this brief says is it says repeatedly Trump offers no response to that. So, for example, it begins with seven pages of there's no response to virtually all of these standing and jurisdictional arguments.

0:59:42 Thomas: Is yeah

1:00:29 Andrew: This paragraph in particular I thought was really damning. Despite multiple opportunities, plaintiff has never actually represented, much less offered evidence, that he declassified any of the relevant records.

1:00:40 Thomas: Yes. Still, still, Andrew, no, you're totally right, that's great, keep emphasizing the fact that never, ever, ever, never have I ever, never has Trump ever addressed or even tried to make that claim.

1:00:51 Andrew: Yeah. To the contrary, after persuading the district court to grant injunctive relief and appoint a special master, Chester, plaintiff has now reversed course in response to the special master's invitation to identify any records he claims to have declassified and to offer evidence to support such claims. Plaintiff to, quote, disclosing specific information regarding declassification to the court and to the government, end of quote. Which, by the way, and I owe a debt of gratitude to Liz Dye, $5 Feminist on Twitter, who attended that hearing virtually, this is the one that, it um, made news even overseas, of uh, the conference call was not monitored, so it was like thousands of people on a Zoom call, with not on mute, and there were like five people who were screaming like mute

1:01:13 Thomas: My god my God, that is my hell, by the way, if, I if hell were real, that would be in, oh, dog's bark, oh my, you just hit it, that's the other circle, additional circle of hell,

1:01:44 Andrew: Your phones every five minutes and there were dogs barking and yeah. It was almost impossible to glean any valuable information from there, but apparently this is one for team. The institution's going to be all right. I Right. I have mentioned before the fact that Trump suggested judge Raymond Deary makes me suspicious. Right.

1:02:01 Thomas: Hmm, did we ever get to the bottom of that, still no,

1:02:09 Andrew: Still nothing. Right. Axios published a piece that said that based on those who overheard Trump's inner circle, that they thought that Deary might be particularly skeptical of the FBI. Right. That's why they picked him, which I believe Axios. Think I everybody at Mar-a-Lago probably has a side deal with some news organization. You're a janitor or a cook or whatever, chief a ball washer at Mar a Lago, you probably have a side deal to tell everything you overhear to the journalists. But that Axios story, if you parse it very carefully, just says, sources overheard Trump's inner circle arguing and Trump's inner circle are morons. So, the fact that they think he uh, judge Deary might be an a, FBI critic is, not indicative of the fact, like, I believe that they Think that, but it's not necessarily an Indicative of

1:03:03 Thomas: Oh, so they might just be wrong, that might not have been the best prank ever, or amazing gambit, they just thought he was a thing he's not,

1:03:04 Andrew: Can, they might just be wrong. Yeah. It's so hard after having, you know, Bill Barr pulled over our eyes and and it feeling like cheaters always win to remember, like, yeah, they could just have gotten that one wrong. So, and the first hearing seems indicative of that, right? Like, Judge Deary said that, that's to what this brief refers. Uh, Mr. Trump, are you willing to, you tell us the documents that you've declassified for purposes of my review? And he was like, absolutely not, which is consistent with the way that we've covered this

1:03:35 Thomas: God, now, we're dealing with liars, Andrew, why can't they just say yeah, all of them

1:03:39 Andrew: So the problem is is that if he says, all I've declassified, all of them, then that actually grants an argument that was made by the DOJ in its brief and repeated in the reply brief, right, which is to say, so then you don't need the special master to do any review here

1:03:57 Thomas: Well unless it was the special master for like privileged stuff or personal stuff that shouldn't be, yeah

1:04:01 Andrew: We don't even know. I mean, that's part of the problem here, is that it's not clear what the special master's job is to do. Right? The harm that's been alleged is you stole personal stuff alongside the stuff that belongs to you.

1:04:12 Thomas: So therefore, even if it was, if he said it was not classified, that on their, I'm just, you know, I'm idiot, man, still still idioting their, their argument, which is, you know, they would say, okay, it's not about being classified, it's that I, I still need the special master to look through for more passports that I had.

1:04:20 Andrew: Yeah. Right, right, right. Right. Yeah. Right. The thing remember to and think about, I have, you box of Transformers mixed in with a box of drugs. The FBI has said, we're pretty sure, yes, possessing a sound wave is not, in and of itself, an evidence or instrumentality of a crime. Time, they have they

1:04:47 Thomas: Wait, but did they ever make a transformer that transforms into a bong? I can't remember. If there's like bong bot and then it turns into a...

1:04:55 Andrew: There is not a bong related transformer yet I'm I'm sure someone's working on it you could easily imagine a criminal investigation going, yeah, what we want to show is that there's, you know, cocaine residue on Soundwave's door, right? And so we're gonna hang on a Soundwave for a while and I say, I really want Soundwave back. And they're like, well, that's great and all, but evidence or instrumentality of crime. Right. So the point on all of that is the special master cannot make a determination of what needs to be returned to Trump or not, because that information is at the discretion of the Department of Justice, us, right? They're allowed to say, yeah, one of the things we want to prove is that you co-mingled national security documents in with your, Time magazine profile. In order to prove that, we have to show, we have to introduce your Time magazine articles as part of the evidence and

1:04:55 Thomas: No, okay, yeah. Crack pipe? No, none of that? They're losing an opportunity.

1:05:14 Thomas: Yeah, I want to play with them. Guys.

1:05:54 Thomas: Okay, okay.

1:05:55 Andrew: So it's just not clear what he can do

1:05:57 Thomas: Special master gets paid right, so they just got a real kush gig, they're like, I'm special master, um, okay, I'm done, uh, can't do anything because this is nonsense and it's complete bullshit, but that will be one million dollars, please.

1:05:58 Andrew: Oh yeah, yeah yeah and indeed he can and will do that, which is part of the reason why I was very sad that when our, uh, friends

1:06:15 Thomas: Know, why didn't we get that job let's

1:06:16 Andrew: I know over at the National Security Counselors proposed, uh, four different special masters, they and did not propose us.

1:06:24 Thomas: Make it packed, you, me, and Morgan Stringer. It is like a lottery ticket, if any of us ever get appointed special master, we'll split the earnings equally, because we all three equally could be special.

1:06:26 Andrew: There you go. I could.

1:06:38 Thomas: I

1:06:38 Andrew: All right. Brief also calls out the fact that Trump is slow walking, right? It says, plaintiff fails to address the harms caused by the injunction's interference in the expeditious administration of the criminal laws and by the possibility that the government's law enforcement efforts will be obstructed or perhaps further obstructed. Love that one. Uh, plaintiff states only that the injunction will last for a quote "short period," end of quote, at the same time, plaintiff is already attempting to delay proceedings before the special master, and then there's another citation to the hearing, uh, which is seeking to extend deadlines and set hearings, quote, on any Rule 41 or related filings in late November. So yeah, I think you, this have to know the audience, right? This is going to a, we still don't have a panel, it's going to conservative circuit.

1:07:26 Andrew: So they're making the kinds of arguments that would typically appeal to conservative judges. Yeah, you're interfering with a criminal investigation, investigation, we've already got evidence of them trying to slow walk it. This is, if you rule in this favor, you will set a precedent that every future criminal defendant is going to at least make the court have to adjudicate. And do you want a whole bunch of crazy motions to appoint special masters every time that a search warrant is executed? Because literally, that's all the, the facts that we have here we have a search warrant was executed and, by the way, they may have taken stuff that belongs to me.

1:08:03 Thomas: Want my toys back.

1:08:04 Andrew: Yeah, the fact that their response has kind of been, right, that's what happens, um, and you now that that has now gotten judicial relief is is a problem I, yeah

1:08:12 Thomas: Yeah, but you said this is in the end going to be fine, do you think that's still, this isn't going to, and

1:08:17 Andrew: I do still think that this is going to be fine. I think this is, you the full court press of sort of throwing everything up in the air, because look, that, that's like worked in the past. Like, I did not think that was going to work in connection with the Mueller report. Turns out Republicans don't know how to read. So it did.

1:08:35 Thomas: A lot of Democrats, by the way, honestly,

1:08:36 Andrew: Yeah. And so like, I got to take the L on that one. But all All I can do is come back and say, don't I think this is going to prevent the, it certainly is not going to prevent the DOJ from indicting Donald Trump that's what they're inclined to do. And, you as I've said on this show and on Cleanup, if you're a prosecutor, I don't know, having to go through this rigmarole, does this make you more or less likely to want to bring criminal charges against the guy? I leave that as where it stands. I will also just add, to conclude, the last thing kind of addressed in the government's reply brief is the balance of equities, in which they just repeat, like, look, the only thing you, Donald Trump, have ever identified is you might be indicted. And guess what? You might be. Right, not that's not something we consider a harm under the legal system.

1:08:59 Thomas: You

1:09:22 Andrew: And exactly right. So So there you go. There are our latest. Obviously, we'll continue to get updated every week. But I'm putting my chips on anything, think the 11th Circuit is going to grant the relief the DOJ wants. I think that will wind up mooting all of this. And I think you will see Trump kind of give up in the proceedings before the special master because that would do, if the relief is granted, then the DOJ is free to pursue its investigation and get new witnesses on the basis, not of the 11,000 documents they've seen, but of the 102 documents that bear security classifications. That's going to be more than enough to go to a grand jury and get new subpoenas and or search warrants. So And we'll see. I've been wrong, but I'm very optimistic. Put down that marker. I'll do what Andrew was wrong if I was wrong.

1:09:21 Thomas: Might charge me for the drugs I have.

1:10:11 Thomas: So I always ask bottom line it. What's the next, uh, date that we're kind of looking for in this process, all

1:10:17 Andrew: It is up in the air as to when the 11th Circuit decides when a panel is convened and when they They rule, but that is imminent.

1:10:26 Thomas: Right, so that's what we're waiting for well, got you will hear it from us, or probably, you the news first because we're not a live show, but you know, us second, hopefully

1:10:27 Andrew: Exactly right. Hey, this is Andrew. So, as it turns out, after Thomas and I recorded this the 11th Circuit granted 100% of the relief that the government was seeking, that the DOJ was seeking in its appeal to the 11 circuit. There are a bunch of things that you need to know about that opinion, and I'm here to break those down for you. So, number one, the panel that the DOJ drew before the 11th Circuit, very, very conservative circuit we've been talking about, included the most liberal judge on that panel, Rosenbaum, but also two Trump appointees, Grant and Brasher. So this was a 2-1 conservative panel. And if your belief is that everybody Trump appoints is just going to hack for him, this is why we've been drawing that comparison.

1:11:20 Andrew: As I said, I have practiced in front of Trump appointed judges. It is possible to reason with Trump appointed judges. It's not possible to reason with others, right, who deserve an asterisk after their names. Judge Cannon, I'd put an asterisk after her name. Judge Naomi Rao, Judge Justin Walker, these people do not deserve to be called judges. But here what we saw was the system working. So I'm really, really excited about that. Point number two, not only did the court grant relief in a 29-page per curiam opinion, but did so in an incredibly thorough, well-reasoned, and I think really kind of bulletproof on next way. So remember, this is preliminary relief to an interlocutory appeal.

1:12:09 Andrew: So the court goes out of its way to say, hey, we have to make a guess about substantial likelihood on the merits, but we're not prejudging anything. We're still listening. Now, that is very, very common language for a court to say. That being said, when you turn to the substance, what this court does is go through the standard criteria for whether to award injunctive relief, And, right, those criteria, as all of our listeners know, are number one, substantial likelihood of success on the merits. Number two, whether the party seeking injunctive relief has proven irreparable harm. And number three, where the balance of equities plays out. So on that first question, right, whether the government is substantially likely to prevail on the merits, this is what the 11th Circuit said, right?

1:12:58 Andrew: It went through all four of the Ritchie factors, in discussing jurisdiction, and says, in sum, none of the Richie factors favor exercising equitable jurisdiction over this case. Consequently, the United States is substantially unlikely to succeed in showing that the district court abused its discretion in exercising jurisdiction over plaintiff's motion as it concerns the classified documents. And again, remember, the court can only rule on the relief that's asked of it, right, that's in front of it. There's then a footnote which says, footnote five, and again, this is all page 22 of the opinion. The district court referred fleetingly to invoking its, quote, "inherent supervisory authority," though it is unclear whether it utilized this authority with respect to the orders at issue in this appeal. Either way, the court's exercise of its inherent authority is subject to two limits.

1:13:47 Andrew: Number one, it must be a reasonable response to the problems and needs confronting the court and fair administration of justice. And number two, it cannot be contrary to any express grant of or limitation of the district court's power contained in a rule or statute. The district court did not explain why the exercise of its inherent authority concerning the documents with classified markings would fall within these bounds. Other than its reliance on the Ritchie factor analysis. We have already explained why that analysis was an error. So on that first factor, the 11th Circuit accepted the arguments being made by the DOJ pretty much in their entirety, judge, right? You ought not to have jurisdiction over this case in the first place. Why? Because this is a Presidential Records Act case, and this is not the kind of case there is.

1:14:34 Andrew: No, those four Ritchie factors we talked about, everybody agrees that there is no harm to anyone's constitutional rights, let alone the, quote, callous disregard that is the most important Richie factor. You even said that. And the 11th Circuit gets to that point and is like, we could stop here, but we'll look at the rest of the factors. And by the way, the rest of those factors also weigh against granting equitable slash anomalous jurisdiction in this case. So on that first larger question, should the court have taken this case at all? The 11th Circuit agreed with the DOJ and said, no, they shouldn't have taken this case at all. And by the way, the DOJ is substantially likely to prove that on the merits in front of us.

1:15:21 Andrew: So then you move to the second factor, which is, is there irreparable harm to the government without a stay? And again, the 11th Circuit adopts pretty much in its entirety the arguments being made by the Department of Justice. Those arguments are essentially that ongoing national security review is inextricably linked with the prosecutorial apparatus. And so, no, you are not going to have a district court stop and intervene in the middle of a an investigation that could lead to an indictment of the former president just because he would like it. So, uh, as, and again, this is the bottom of page 24, as the 11th Circuit summarizes, returning to the case before us, under the terms of the district court's injunction, the Office of the Director of National Intelligence is permitted to continue its classification review and, or intelligent assessments, intelligence assessment, to assess the potential risk to national security that would result from disclosure of the seized materials. That's going to continue. But the United States is enjoined from further review and use of any of the materials from plaintiff's residence for criminal investigative purposes pending resolution of the special master process.

That's right, what happens under the current state of the order. And then the 11th Circuit says, quote, "this distinction is untenable" through the FBI declaration. Again, the fact that the government put on evidence and Donald Trump put on attorney argument. Through that FBI declaration, the United States has sufficiently explained how and why its intertwined with its criminal investigation.

1:17:01 Andrew: When matters of national security are involved, we must accord substantial weight to an agency's affidavit. The ingrained principle that courts must exercise the traditional reluctance to intrude upon the authority of the executive and military and national security affairs guides our review of the U.S. proffered national security concerns. And so on that second factor, they say, yeah, we think that this is irreparable harm to the government to say you cannot continue an investigation of someone who is alleged to have stolen national security information and potentially leaked it to who knows where. No, we're not going to let a district court stop that narrow inquiry from going forward, which again is all the relief the government wanted.

1:17:47 Andrew: – by the way, in going through and making that ruling, they look at all of the arguments that were raised by Donald Trump below and reject them, particularly reject them in the context of these national security documents. Documents. So after we look at all of that, uh, then the question is, where are the balance of equities, right? And the court says really two things. Number one, uh, sorry, that Trump has not shown that he will suffer any kind of injury, uh, as a result of the stay with respect to the classified documents, right? And so very simply they say, first, a plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the U.S. reviews documents he neither owns nor has a personal interest in, that, right, is accepting the government's arguments 100% with respect to those bearing classification markings.

1:18:37 Andrew: Second, we find unpersuasive plaintiff's insistence that he would be harmed by a criminal investigation. Bearing the discomfiture and cost of a prosecution for crime, even by an innocent person, is one of the painful obligations of citizenship, right? So part of how we balance that out is by requiring the state to prove you guilty beyond a reasonable doubt. You don't get any more protections than that just because you were the former president. And then third, third because of the nature of the classified materials at issue here and based on the record, we have no reason to expect that the United States' use of those records imposes the risk of disclosure of plaintiff's privileged investigation. In other words, take your insinuations regarding, I don't trust the government that permeated both Trump's brief below and rather inexplicably and totally inappropriately, Judge Eileen Cannon, FSW's ruling.

1:19:31 Andrew: The 11th Circuit says, no, that has no place in a legal opinion. We cannot cast aspersions as a prima facie basis without any assertion of fact that the government is categorizing documents in a way that is self-serving. Hurts your rights? Want to prove it? Great. It's not that that can't happen. It's that there's no evidence that it did happen here. And then the second half of weighing the interests is, is the public interests in this case. And the court says very clearly, the documents at issue contain information, the unauthorized disclosure of which reasonably would be expected to cause exceptionally grave damage to the national security. It is self-evident that the public has a strong interest in ensuring that the storage of classified records did not result in exceptionally grave damage to national security."

1:20:20 Andrew: So there you have it. We're going to break down because I think it's really, really interesting in terms of discussing appellate argument. The government's reply brief, which again, 100% successful to a panel dominated two to one by Trump appointees. This is an unmitigated win for the DOJ. The next step, maybe by the time you hear this, will be Trump appealing for an emergency stay of the mandate to the Supreme Court, which I expect to be summarily denied. I think we're going to get a per curiam opinion from the Supreme Court that says, you know, the petition for relief is denied with zero explanation as to why. And that will get, I'm going to say, eight votes.

1:21:05 Andrew: I think Clarence Thomas, because he's, he's married to a QAnon supporter and appears to me completely around the bend. I think that Clarence Thomas might issue a dissent, but I don't think it will pick up Alito. I don't think it will pick up Amy Coney Barrett. So I'm not concerned that the Supreme Court is going to disturb this incredibly well-reasoned and thorough grant of incredibly narrow, limited relief that, again, we've talked about the way it was pitched, in such a way as to take judicial conservatives and say, hey, you're going to have to choose between your ideological principles and your loyalty to the former president. And we have a pretty good track record of the courts choosing their principles as opposed to choosing patronage.

1:21:55 Clip: Not perfect. It's, of the many damage that we need to undo of the former administration. Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:22:07 Thomas: Right, Andrew, and now it's time for T3BE. Uh, question two on this new book. Here we go. Objects.

1:22:11 Andrew: Thomas during the course of three days oral testimony is admitted on the the question of causation in a voluntary manslaughter trial. The wife of the accused seeks to testify. The accused objects to the admission of her testimony under the federal rules of evidence. A, the wife can decide to testify against her husband. B, the husband can have his wife's testimony against him rejected. C, the prosecutor can impeach the wife's testimony. Or D, the other state witnesses must corroborate the wife's testimony. All

1:22:44 Thomas: Oh my god, this is tricky because A seems obviously true. The wife can decide to testify against her husband that'd, I be pretty weird, like if a husband abused his wife, then they're like, sorry, you can't testify against someone, you're, that wouldn't make any sense. I'm so gonna struggle here because a A seems unambiguously, obviously true, but is it trying to be tricky? Like that doesn't matter. And there's some other reason, but even so that wouldn't make A not true. So that would be a tough way to answer a question, like to give me a hundred percent true one. And then like, but there's the other one. Can the prosecutor impeach the wife's testimony? Maybe husband. All right. This seems so clear to me. I'm going with A, it's between A and C. I think think the other two are totally ridiculous. B, the husband can have his wife's testimony against and reject it. I think it's ridiculous. And D, the other state witnesses must corroborate the wife's testimony.

1:23:32 Thomas: That seems ridiculous. C, the prosecutor can impeach the wife's testimony is like maybe another thing that makes sense, I guess. But I just, A is so unambiguously true that I'm going to be really, really weirded out if this is wrong. So I'm doing A and C and final answer A.

1:23:47 Andrew: And And 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 reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:24:00 Clip: And thank you, Let's go!

1:24:02 Thomas: And now it's time to thank our patrons at patreon.com/law. By the way, Law'd Awful Movies is out, that is Law'd Awful Movies, She Hulk, it was a ton of fun, listen to it. Uh, go pledge if you want to hear it, that's of course at the two dollar level, we hope you enjoy that Law'd Awful Movies. And here's to our new patrons who may be enjoying that as we speak. Thank you to Lisa Herman, Joe A Weisenberger, Patricia Insley, A Rhode Island Goose, Wyatt Whitham, Mike Lush, Larry Walker, Jonathan Jackson, Bill Ward, Kevin Kipp, Gally, SuperHumbleEmperorGodKing, Australian animals are way less dangerous than your GOP, Motion in Lemonade, Elizabeth Dye, Sean R, Craig Nottage, Professor Marek, Nick O'Shea, Josh Camson, stauntor, Matthew.

1:24:47 Thomas: Benjamin Vlietstra, Alyssa Dyksterhouse, Adam Shreve, MARY ANDERSON, Christi Haynes, Cait Huntsman, Me, not really me, that's a patron, Brian LaCour, Scorpion the Bird, Matthew Conrad, I Fell Asleep Listening To 631 And Dreamed So An I Joined Patreon To Support The Show, Nice, Well I Guess We Have To Do A Heist Now, Ben Nystrom, Terri Vandemark. If you can pronounce Themyscira, you can pronounce my name, Cira. Oh, nice. Okay. Sorry if I messed that up or something, but Cira, it seems like. Hillary and Reid Love Cats and Justice For All, Brian. It actually says Brain, Brain, but I read it as Brian, but it says Brain. Mike D, not that Mike D. Yeah, that Mike D, okay, and Kelsey Hupp. Thank you so much, new patrons. Hope you enjoy the ad-free shows, all the benefits, all the perks, and a Law'd Awful Movies.

1:25:37 Thomas: That's our show. I will have to do more on Serial. I just, I just do. And I will direct people to where, when that happens, if and when that happened, I, so look for that or not, depending on your tastes, but thank you for listening and we'll see you next time.

1:25:50 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:26:24 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/YodelMountain 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.