Luigi Mangione Being Charged as a Terrorist Is Borderline Prosecutorial Misconduct

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:57 Thomas: And welcome to Opening Arguments. This is episode 1102.

0:01:03 Thomas: Thomas. That over there is real -life attorney Matt Cameron. How you doing, Matt?

0:01:05 Matt: Am trying to finish out my year having quite a month here how about you not

0:01:10 Thomas: I can't believe we are mere, yeah, days away from the holidays and the end of the year. Oh my gosh, I got a bunch of like tax stuff I got to figure out real quick. Never mind. I don't have time, everybody. See you later.

0:01:14 Matt: Ready and you and and the problem is the news keeps happening uh just won't stop

0:01:26 Thomas: Does. If we all just decided? Okay. Here's my new, you know how they do that thing from time to time where they're like, well, if we did, we changed like the length of the, what is it? The months or the weeks that you can make like the even year, you Know, like 360 days may. And then we could all agree that there's one day that doesn't count or something. It was something, something like that. Or maybe it's even a week. Let's do that. And we'll all agree. There's no news that day. Like just know we all pause everything for like one day a week, zero news. I don't think it's going to work, but you know, that's my idea. That's my pitch.

0:01:40 Matt: That's right right yeah and if that day could be thursday the day that we record rapid response friday that would be incredible I'd

0:02:03 Thomas: Well, I don't think we're allowed to work though. Are we? Are we allowed? I feel like everyone should just stop what they're doing. I don'T think that would work.

0:02:06 Matt: Well I just it's the whole thing about responding to things that just happened you know it's a little anxiety provoking but I love it I love it I mean this is adhd right you get everything's on fire it's wonderful it's the best

0:02:13 Thomas: I know. It takes the only way Matt and I function in the world. Yeah, we're getting, we got a lot to talk about. Kind So of a lot of updates, but not think it would be a disservice to merely classify them as updates because it's big news. We got big news in Luigi Mangione. We got charges, both state and federal charges, which I don't I didn't know that happened necessarily. I didn'T really think of that. So I want to learn all about that. We're going to go through that first at the top of the show here, because that it's crazy that he's been charged as a terrorist. Matt, that seems that reflective of our values in this society. Is

0:02:36 Matt: Moments ago yeah yeah a much I my first thought we're going to talk about it

0:02:54 Thomas: Yeah. Also there's the federal charges. Those are just come out. I don't know what those are. So that'll be a big reveal, you know, on the show for me. And then we breaking this morning. Morning uh I keep teasing you for this because I I know that in your mind this was just like offhandedly you're like oh yeah so those georgia things and I don't think you like met like firm affirmatively we're like this is totally gonna be great because uh way back when when we first this goes back to when we First started together you and I on this show we covered georgian we covered you the trial and the potential conflict of interest in and the relationship and all that stuff. And at at the kind of the conclusion of all that, were like, oh yeah, so this should be good to go. And I remember I said like, but well, doesn't, it's appealed, right? Yeah. Yeah. The appeal goes to Georgia judges, right. It goes to three possible judges that are somewhere in Georgia. Sure enough, two of the three have given us what seems like a really stupid, terrible decision, possibly a

0:03:47 Matt: Really

0:03:47 Thomas: Politically motivated one, but Fani Willis, her just her, her full office, I guess, is disqualified from pursuing the against interference case in Georgia on the basis of that alleged relationship with, what's Nathan Wade. So despite our favorite judge, no matter how hard he might solo on his electric violin, He should he should challenge. That should have been the appeals process. We assemble a three judge panel to judge an electric cellos solo between the original judge and his ruling judge. McAfee. It should have been like the devil goes down to Georgia. It's literally Georgia. The solo electric celloist went down to Georgia. But no, that's not how it works. And therefore, Judge McAfEE's decision, which seemed pretty reasonable to us, I think, has been overturned for now. Get more info from Matt on that. And we got a really interesting bit on a judge talking about using chat GPT, and it might not be precisely how you think it is. So a lot of listeners might bristle at that idea, Matt's going to maybe try to convince us that this is kind of an interesting take.

0:03:54 Matt: Is yeah fine oh worth looking at I really uh you know you never think that a judge could use gpt do his homework but uh I'm with it a little bit and gonna be talking on monday to aziz huck who's a professor of law in chicago and uh has written a lot about this so we'll see what he thinks about this too yeah

0:05:03 Thomas: From all kinds of different angles on AI and that's going be a fascinating conversation. So this is sort of a teaser for that a little bit, though that Monday conversation is much more broad. And then finally, we'll round it out with a footnote fetish. We to have a foot note fetish from It's too much news. We will agree that on our day of rest that we're starting, the footnote fetish can carry on. That'll be my policy.

0:05:22 Matt: Sure those are just fun

0:05:24 Thomas: It'll be only those.

0:05:24 Matt: You can always do a footnote yeah I owe you a couple of footnotes so we're we're just going to talk about judges being weird about food. Why not?

0:05:29 Thomas: Love it. Blueprint, everyone. We'll do the usual thing and take a quick break. Which you can avoid at patreon .com slash law. Support the show. Very important. I have just been repeatedly disappointed by mainstream media even more than normal in light of this, you two of Trumpism Trump's reign. It seems like we're going into that with even more enabling, even more, you sane washing from the mainstream media. And that sucks. So if, you that's something you care about to support independent media, perhaps like arguments and other shows you think are doing good work.

0:05:52 Matt: Now, we haven't even talked about the ABC settlement yet, but that'll have to be another time.

0:06:00 Thomas: My God. That was the

0:06:01 Matt: So disappointing.

0:06:01 Thomas: Other thing I assumed we were definitely going to talk about. And yet we do not have time today. We'll make time later.

0:06:05 Matt: Will get there. For sure.

0:06:06 Thomas: All right. This break, we'll get to it. So yeah terrorist for committing um shooting of a ceo um don't know that ceos are a very vulnerable uh race of people discriminated

0:06:20 Matt: That's almost what the DA's office is going to have to argue. It's pretty close, actually. Let

0:06:22 Thomas: Against they've they've had it so hard ever since they came over from the ceo country as immigrants prints.

0:06:31 Matt: That's right. Well, so last week, of course, we talked to superstar public defender Liz Skeen, and she shared, you know, know her personal knowledge of being in the courtroom where he's going to be tried and her knowledge of the law and we were looking at that point at an arrest warrant in which Mangione was charged with second degree murder which seemed a little strange to people who know about you know murder because second degree is not usually premeditated intentional murder but in New York it is so your typical garden variety murder if you plan it is second degree but Liz was explaining that first degree murder in New York is reserved for people who kill police officers or public officials, or other things like that. But it turns out, first-degree murder in New York also furtherance of terrorism. And I would have never considered charging this as terrorism. We're talking about someone who went at 6:30 in the morning to where he knew that this man was going to be, and shot him in the street, and went off on a bike. This was not a mass shooting. This is not targeting somebody based on their race, religion, or nationality. He didn't make any public statements. Obviously, writing something on the bullets, I guess, was arguably public statement. Certainly the act itself, doing it the way he did, was a statement. And I think people pretty quickly surmised what the motive was. But this charge, which is essentially sort of an add -on in New York. So what they did is they sort of incorporated the definition of terrorism, and they charged him in violation of penal law under 125.27.1A. just read you. Let's see if you can figure out where in the scheme of this law law Luigi Mangione's acts fit, because

0:07:52 Matt: I haven't yet.

0:07:53 Thomas: Please.

0:07:53 Matt: From the relevant portion of the indictment, which we'll link to, said person was killed in furtherance of an act of terrorism involving a violence act in acts dangerous to human life that

0:08:01 Thomas: We got that. So Oh, far. Yeah.

0:08:02 Matt: Check. In violation of criminal laws of this state, check murders of crime. Here we're going to go off the rails were intended to to intimidate or coerce a civilian population. A civilian population?

0:08:11 Thomas: I mean, could this is this is rough. So Matt's not very woke. He is not aware of the deep history of discrimination against CEOs in this country. Taylor's all this kind of Yeah, I mean it's it's they can't even walk down the street. They can't They're scared. They they're high. They have to retreat to their islands and their of them have had to go to the lake. Just listen. I want to make this a tear jerker. But for example, Mark Zuckerberg has had to buy like an entire Hawaiian island to himself and build a fortress there because he's scared of living in fear.

0:08:20 Matt: The protected class of CEOs. Yes. Poor guy.

0:08:43 Thomas: Yeah. Like you don't. So So, Matt, have some compassion because this terrified, vulnerable population of CEOs now. Aside, is Ken, that the claim? I mean, if you're doing a murder of any of at all and you're you're wanting other people remotely like that person to perhaps be in fear as well, does that qualify?

0:09:04 Matt: That's a very good question, which is why I went to the recent New York case law. And let me give you a couple of cases that will put this in context about why this is such an absurd charge. And before I do that, I will just tell you the rest of the statute, which I don't think applies at all. I can't imagine they're going to try to argue this.

0:09:17 Thomas: Do you need it all to apply? Are I wasn't

0:09:18 Matt: No, but just in case, because people are going to tell me I didn't mention the rest rest of it. Think they're going for this intimidate or coerce a civilian population thing, but the other options are influence the policies of a unit of government by intimidation or coercion, unless you think UnitedHealthcare is a unit-of-government or the healthcare industry generally, maybe it's getting there, and affect the conduct of a unit-of government by murder, assassination, or kidnapping. So again, there's nothing here that has to do, unless you could say in the most general sense, he's actually doing this to try to get Congress to to change the law, which I don't, that's a stretch.

0:09:22 Thomas: What but which is that is really that is telling because I haven't seen anything even from his reported uh that was like hey that's why you need to do single I don't recall anything like I mean by implication I get but that's that is so weak that is so loose okay

0:10:00 Matt: So really, all we've got is this intimidate or coerce a civilian population. So I'll tell you about the case law around this here, which I took a look at. There's not much of it, because it is unusual for a state to have terrorism charges this way. It's kind of an enhancer, but you know, if a state's going to have it, you'd think it would be New York, where they've had their share of terrorism.

0:10:15 Matt: So two cases. We've got New York v. Morales, in which the state tried to argue that it was a it was a gang shooting, and that the gang members were actually intimidating the local Mexican American population. But of course, it was gang on gang thing. They weren't going around randomly shooting Mexican Americans. So the court very reasonably found that there's no intention here in the law of elevating gang on street violence to the status of terrorism, as that concept is commonly understood. Statutory language cannot be interpreted so broadly as to cover individuals or groups who are not normally viewed as terrorists. And again, gang members, it's a a little bit more of an argument but uh they cite to the actual legislative findings when this penal law was drafted and literally the legislative the findings cite september 11th the bombings uh embassy bombings in kenyan tanzania uh wackerby bombing uh

0:10:57 Thomas: And I could see let's talk in the hypothetical I could could see um if some white supremacists get in their their khakis and their torches and they want to do some violence against some marginalized group to scare that marginalized group that sounds like a thing yeah oh sure yeah sorry is

0:11:06 Matt: That the next case uh just from morales though the court found that this this argument couldn't fly that this was not an act of terrorism because it wasn't trying to intimidate any kind of civilian population and in the in the statute it also says essentially that a subset, of the area who are members of some broadly defined class, such as a gender, race, nationality, ethnicity, or religion, rather than just the entire population, could count. But you'd have to say that CEOs are a broadly defined class. And maybe in Midtown Manhattan, that's possible. There are more CEOs on the island of Manhattan than there are in most places. Let me tell you about the other case where this argument did work on the behalf of the state, and that's New York v. Farhani. And that was 2012, where Ahmed Farhani was arrested with someone else. It was an apparent plot to blow up a synagogue, and this was clearly targeting one population. And the court found that obviously the Jewish population in New York is proportionately much higher than it is in other places. And And this was obviously an act of terror. It's obviously targeting a specific group. They said that it's precisely what Morales lacked, because you have the intent to create a pervasively terrorizing effect on certain residents of the area. So that's the closest thing that they could do here is to say that, just like what you're saying, not even joking, unironically, that CEOs and executives are some kind of broadly defined class that he was trying to put them in fear. I know. I just don't see that working. That's not terrorism.

0:12:26 Thomas: Yeah I'm wondering what our definitions are here because you could say he's trying to put but that's not a class that's it is the difference like, that's a voluntary job. That's a, it doesn't, you're not born into the, although I'm sure, I'm sure like Elon Musk thinks he was born a CEO or something. Like I'm Sure. But like, you're Not born into that.

0:12:36 Matt: You're not born, exactly. Yeah. I've never heard of anybody struggling for years to accept their executive status like that's just not uh you know and there's a reason the court says such as gender race and nationality ethnicity religion right these are deeply held personal things and gonna have to make that agreement or this charge goes it's just a motion to dismiss right away now he is also charged with regular murder which I think is easily going to survive uh I just want to talk about this as an enhancement because I don't think I've ever seen anything quite like this and obviously as we're talking about last week, we haven't seen anything like the reaction to this crime, to this thing that happened. We don't have, I've never seen people rise up and sort of say, like, we get it, we understand what happened here. And guess what I'll say is that when you charge somebody with murder for shooting someone, that is a clear statement that society is making, obviously, we can't tolerate people shooting each other in the middle of the street. When you you charge somebody as a murderous terrorist, you're making a very different statement. What you're saying is that that person did something in furtherance of a bad idea, and anybody who agrees with that person has bad ideas and is dangerous. And I feel like it's an attempt on the part of the Manhattan DA's office to control the narrative a little bit and to take it back and to remind everybody that this is something that they should think is very, very bad. And it's complicated. This is very very complicated for everybody, I think. Than it usually would be.

0:13:55 Thomas: Just so unnecessary. And it really seems like this charge is insane. Like what happens here? This is overcharging. This seems irresponsible to me anyway, in my not professional opinion as a prosecutor, like, this going to result? Shouldn't it result in a charge being dismissed right off the bat?

0:14:09 Matt: It should. I really think it should. Talking to Liz about this about actually sort of all this, and she's sure that it couldn't survive a motion to dismiss. It's really bizarre thing about this to me is that it feels like they're punishing Luigi Mangione because of our reaction. It's a strange thing. And that's totally unjust. The delayed denied to pose thing on the bullets was clearly a message, and the shooting itself was a message in its own way. But terrorism, I mean, it's always a dangerous thing when the government gets to define who is a terrorist. That's And always been a problem for me as a defense -minded person, because these kinds of charges are getting used more and more in lots of different kinds of cases around the country, in a lot of state prosecutions. And it's something that should be reserved for actual, if you're going to have these charges at all, it should be for people that are doing something like what Ahmad Farhani did, where he's actually targeting a building full of people that he wants to intimidate, and he wants to intimidate everybody that is in class. A lot. I think it's a real mask off kind of moment that this is being charged with terrorism.

0:15:06 Thomas: It's like isn't murder enough man like I'm sure I'm sure this guy unless we get some really cool jurors unless don't see how he's not doing all kinds of time. The point? Like bothers me so much about it too, is do what'S the risk here? whatS the tally? One CEO, do Hochul's you, having this whole like meeting and there's, hey, I know everyone's real scared out there. You're real scared, but rest assured the the CEO, the vulnerable CEO species is safe here in a sanctuary. It's like, were they going to leave? Were they like, what was going to happen? It's just so unnecessary. It is over the top.

0:15:43 Matt: Has a lot to do with who prosecutors are actually working for, to be honest. Just going to tell you that. And other thing, the reason that I know that they did it is because first degree murder in New York carries the the possible penalty of life without a of parole. And second -degree murder, you do actually have the possibility of peril. That's certainly a serious distinction. And the federal charges, which we should switch to now, there's actually a possibility at the death penalty in this case.

0:16:05 Thomas: All right. So, as if all that were not enough, this again, just happens. I have not even heard about it. What are the federal charges? Are we going to get double terrorism? The first double terrorist. And is this necessary? Does this normally happen? Right right off the bat, is it normal to have both for this kind of thing?

0:16:18 Matt: Not for one solitary shooting. Is the kind of thing you would expect in maybe a mass killing or or an act of you know actual terrorism like the boston bombing right

0:16:24 Thomas: And we didn't talk about Dylann Roof, which is the comparison that I think both both of us were talking about as, you know, sort of, I want to say it's like I got you, but it's just a comparison. Like Dylan Roof was not charged with anything related to terrorism. No, in fairness, he was convicted and charged of hate crimes and a lot of stuff. It was, you you know, he was convicted of enough stuff, but that, that was a guy who specifically killed nine black people to start a race war. Like this is not my like woke interpretation of what he's doing. That was what he said he was doing. And it's just a sharp contrast. Some And people I think are saying, well he was charged federally, there's no federal whatever. It's like I happy to learn more about why that happen. That all just seems to be restatement of the problem to me. That doesn't really explain it. Like if this is a thing that exists on a state level, if there's state charges of terrorism, Dylann Roof should have had them. And, and we're talking about the federal charges against Mangione. Didn't Dylanne Roof get both then? Like, why, why wouldn't that be? It sounds like if, if that's an option for Mangione, why was it an option für like, okay, we're going to do the state terrorism thing and the federal hate crime stuff you an instance where again that crime was so much objectively speaking so much worse more terrifying definitely terrorism you on every metric horrifying well

0:16:49 Matt: That's yeah no question and because it's all about intent and what you want the

0:17:39 Thomas: And and how many victims and the place it was done in awful

0:17:39 Matt: Population that you're targeting to feel yeah oh for sure no doubt no doubt and so I looked into that because I had the same question Loretta Lynch the attorney general at the time actually gave a press conference friends, where she explained the charges and actually made the point that there is no federal crime of domestic terrorism, which is true.

0:17:55 Matt: There is a definition of domestic terrorism, and that definition actually almost completely mirrors the state one that I just read you, the is 18 U.S.C. 2331, if you want to look that up. But that is defining terrorism, so it can be used in different parts of federal law when you're getting enhancements. It's not itself a crime, much like, actually, speaking of this indictment, there's kind of this cliche, which is very much true, that there is no federal charge of murder, generally. That's not a thing. There is a federal charge. Of murder in this indictement. I want to explain how that happened. Are, of course, ways to be charged with murder on a federal level if you kill a judge or a federal official or if you commit a murder on federal land. None of that was true here. Here and let's just take down the charges uh by one here and again there is no real domestic terrorist statute that would work here and that would have been an extreme overreach even if there were uh so count one is stalking so travel and interstate commerce to commit stalking uh you know it's true from everything we know he he had to know the guy was going to be at 6 30 in the morning you know in midtown Manhattan in front of that hotel so uh

0:17:55 Thomas: Interesting hmm yeah set guess.

0:18:51 Matt: A federal offense because he went from Georgia to New York to do it. And because by definition, he didn't just randomly guess where he was going to be. Yeah, he traveled from Georgia for the purpose of doing this. Yeah, it looks like he planned. No, he just was there at the time. I'm actually sure not sure what he was doing. But it looks he was trying to do a lot to try to cover his back and forth, his tracks. He took multiple buses up from Georgia to Newark. They had a really hard time figuring out how he'd gotten to New York. So whole point being though that he you know he comes up with the plan allegedly at some point in georgia and travels to new york so that makes it a federal crime and he's doing it with the intent to kill and he is obviously doing just enough research to find out where the victim is going to be and that's enough that meets the statute for stalking I think that's probably going to sustain uh again they're

0:18:57 Thomas: Wait, Georgia? Sorry, he did. Oh, shit. I missed that. He's from Georgia. Yeah,

0:19:32 Matt: Promising they're going to do these things in parallel and these are kind of like enhancements to the big charges in New York um it's interstate commerce. So there's actually two different stalking counts. The first is that he traveled in interstate Congress to do the act, and the second is that he used interstate facilities to do The Act, in this case, a cell phone, the internet, and interstate highways. So that was enough to bring it up to that. This is a bit of a stretch, but I think this is not unusual. Will, yeah,

0:19:56 Thomas: Just this just seems like running up the score. It doesn't seem it doesn't seem like there's any good reason for this to be a part of the calculation.

0:19:59 Matt: It is. Frankly, it's disappointing that the Biden administration thought this was worth their time. And it's also disappointing because this is now putting him in at risk of the death penalty, which is something that Joe Biden ran on opposing. Seems like it's a new york matter and that they should leave it to new yorg that's my take on it uh

0:20:15 Thomas: I'm sure they can deal with it. They have their own freaking terrorism statute.

0:20:19 Matt: Uh the other two counts very quickly this is where it gets kind of interesting though is count three murder through use of a firearm so this is an interesting sort of sideways way to get murder into a federal indictment 18 U.S.C. 924 has a bunch of sentencing enhancements that are related to guns basically just extra things you can tack on, extra counts, when you're doing things with a gun, with a firearm. So 924J has to do with when you are doing this in furtherance of a crime of violence. And stalking is a crime violence. It actually is the same thing in immigration where there's a risk that force will be used when you stalking somebody. Are doing it for the purpose of potentially harming them. Is that he knowingly used and carried a firearm in the course of stalking, and that's enough to make it murder through use of a firearm. It's a little weird because there's no independent murder statute. It has to be sort of attached to something else in relation to another crime of violence. So that's why we say that there is no federal murder charge because this is more of an add -on. And then firearms offense count four, just saying that he knowingly used and carried a firearm and brandished one in the course of doing this and that it was equipped with a silencer and muffler. Illegal stuff was on it. So attached to this indictment, they've got a bunch of pictures to establish. They're pictures we've all seen many times by now about how they investigated this and tracked it down. Know that it was him. And there's some interesting stuff here with new writings that we didn't know about that were recovered in

0:21:32 Matt: A notebook. I think this is how they came up with the stalking thing, because it's months worth of writing. And he's writing for quite a while, it looks like, about his hatred of the healthcare industry, his particular interest in Brian Thompson. Says, He says, I'm glad in a way that I've procrastinated because it allowed me to learn more about United. That the target is insurance because it checks every box. He also then wrote that in one and a half months, this investor conference is a true windfall. And most importantly, the message becomes self -evident. So that does go to the terrorism allegations, certainly, that he's intending this as a message, and to stalking, that He's planning this out very carefully. Thankfully. Then there's the letter, which you may have seen by now, but he wrote a letter to the feds saying, I wasn't working with anyone. This was trivial, that all it took was social engineering, basic CAD, and a lot of patience, computer -aided design, I think, to get the gun. Said, this is excessive. There's no reason these should be federal charges. There is often no reason that things should be a federal charges. I mean, it's just something the federal government likes to do when they know they can win a case. And I think they they just wanted in on this one. Like with the terrorism charges, I think it's just very telling about who we prosecute and how we prosecue them.

0:22:32 Thomas: Think that's just it. I thinkthat's what you and I often and maybe many listeners, I think, have a hard time. There really is a sense that, like, not people making these decisions, you could call them elites or whatever, they're just in a different environment. Like, I think they're in an environment where they're like, this is an egregious crime. Someone targeted, a father, targeted, first job, his job, I say. And it's like, it really is the sense that when they're talking about that, they think like, no, this Is great. We're doing a great thing here. We're going to kill this terrorist. We're gonna and it's just like I don't know what world that is like got to prosecute the crime I understand they got to persecute the guy that's is what it is I'm not obviously but like making this crusade about it for a group of people that you could almost definitely definitionally say are the last people that are vulnerable like you could only if you were making a joke of like all right who's the vulnerable population of people we need to worry about You say, well, we we know the inverse number one inverse not worried about is CEOs.

0:23:28 Thomas: Just crazy to me.

0:23:28 Matt: I much more worried about our school children and their safety every day. Now CEOs have to think about their own. Hear that security is going up quite a lot. And I'll tell murder, generally speaking. I'm not saying that we're sanctioning it here. I're not the governor of Alabama. I don't sign off on people dying. I myself know what it's like to go into emergency surgery without insurance. I know what its like to refuse life -saving care because I'm afraid about how much it's going to cost me. And I don t think that anybody who's made any of these decisions in these cases has ever known that. I m just going to say that.

0:23:55 Thomas: Yeah. And I want I said everything I had to say on this on a serious inquiries only that I actually forgot to plug. And it's it's called you don't have to you actually don't Have to condemn the murder of this CEO guy like you really don't. I have a lot of thoughts on it. And people consider listening to that. doesn'T come down to, I think, the basic takes you've heard elsewhere, I don't think. So if you want to listen to that, feel free.

0:24:00 Matt: That was a good one. No, it's good. Yeah.

0:24:16 Thomas: So I guess overall conclusion on this federal stuff. How does that work to do it together? Is it one trial? How Do does any of this work?

0:24:22 Matt: Yeah, I mean, it s all in Manhattan. It s not that hard to get them around. They just have to coordinate, and I'm sure they can do that. And they're kind of complementary charges, so it kind of all works out, but we'll see. We'll be tracking this one.

0:24:33 Thomas: Do they do two different trials?

0:24:35 Matt: They're saying they're going to do them in parallel, which would suggest to me that they're going to be doing separate trials and separate courthouses at the same time if they can do that, yeah.

0:24:41 Thomas: Crazy. Okay.

0:24:42 Matt: It is. It's pretty unusual.

0:24:42 Thomas: Well, we will keep an eye on it. But now we got to talk about another crazy thing. After this break, we got get to the Georgia news. Episode is brought to you by Quince. I absolutely love Quince I them all the time, but in particular right now is a great time. Finding the perfect gift can be pretty overwhelming always want to make sure you're giving gifts that people actually want. Especially in this day and age, there's just too much stuff There's too much cheap plastic crap. Want to give someone a gift that they actually care about I know the perfect spot to find timeless gifts made from premium materials, and that's Quince. Lets you treat your loved ones and yourself to true quality at an affordable price. Example, Quince's iconic Mongolian cashmere sweaters start at $50. Ooh, this is a great time of the year for their super soft fleece sweatpants. Are fantastic. No matter what you're looking for, all Quince items are priced 50 to 80 % less than similar brands. Its great quality, they do that by partnering directly with Top Factories and cutting out the cost of the middleman. Pass the savings to you. I was just thinking as an adult, like my favorite gifts have actually been clothes. Used to be as a kid, you're like, ah, clothes. Now as an adults, like, oh, that's the best. Those are the ones I remember because with Quence clothing, it's built to last. It's good stuff. Got to check it out. Luxury this holiday season without the luxury price tag. To quince .com slash OA for 365 -day returns plus free shipping on your order. Q -U -I -N -C -E dot com slash OA to get free shipping and 365 -Day returns. One more time, quince .com slash OA.

0:26:19 Thomas: Right. Well this seems terrible. I think we got a good dissent out of it.

0:26:23 Matt: Did.

0:26:23 Thomas: Do you want to start with this?

0:26:25 Matt: Let's just review very quickly. I know this has been a while. We've been following this for a while, but I don't blame anybody who's forgotten about all of this. Trump obviously charged with quite a number of election -related offenses, along with a number of co -conspirators in Fulton County, Georgia. They're in front of Judge Scott McAfee, and they're being prosecuted by Fonny Willis, who's been the prosecutor there for some time now. Very controversially, of course, we learned went due to a motion to recuse that was filed by the defense that Fannie Willis had had an inappropriate relationship while she was with the special prosecutor, Nathan Wade. We've talked at length about this relationship and about the ethics of all of this. Don't need to get back into that. But Scott McAfee held a very long hearing, which we covered pretty extensively, actually, sort of our first proto -gavel -gaVEL coverage of playing clips and talking about him. And after all this hearing, in which we learned quite a lot about Fannie Wills, and which had really nothing to do with Donald Trump whatsoever. We got to the point where Scott McAfee issued a decision, and, all the way back on March 15, 2024. It I don't know, I've lost all track of time, I guess, but Judge McAfEE kind of split the baby in ways that we talked about at the time. You can go back and listen to that episode, but saying that it had the odor of mendacity. That was the catchphrase from this one.

0:27:32 Matt: Odor is lingering, apparently, according to the appeals court. But he said that it was an appearance of impropriety, perhaps, but there was no actual conflict of interest, that there was No way that the fact that, you know, she was making plenty of money. She wasn't doing this, stretching this prosecution out to make money for herself. Know, She and Wade had gone on vacations. They'd shared some funds. She had always paid him back, she said. They found that maybe at most she might've made a couple hundred bucks off of all of this. So it was this 23 -page decision in March, which said that one of you has to leave the case just to keep this kind of back in line. And it was obviously that was going to be, it was not going to be the elected district attorney. It was going to Be the Special Prosecutor Nation, Nathan Wade. So he resigned the day after this came out. This has been an appeal since then. The Trump team's defense took this up and went to the appeals court of Georgia. As you said said before, I didn't think it was worth reviewing. And looking at this decision, I got to say I'm vindicated. It was not worth reviewing,

0:28:20 Matt: But it's very stupid. This decision is very stupid because Judge McAfee is a very thoughtful person, and he went through and cited the law in his 23 -page decision. This does not do that so much. This is a 31 -page decision in total, but of that is the which you really have to read the dissENT to understand what's going on here, in one of those cases.

0:28:20 Thomas: You're right about that. Yeah, for sure. God, that's so true lately of so many cases. You read the decision like this is a different reality that isn't real.

0:28:42 Matt: Where they're just like, no, this is the actual thing. Right,

0:28:46 Thomas: You read this dissent. Oh, okay. That's what happened. Gotcha.

0:28:49 Matt: Right. There's the law.

0:28:50 Thomas: Yeah found it.

0:28:52 Matt: So these are three Republican judges that are considering this. And Judge Brown delivered the decision on behalf of the two who decided to Judge McAfee. And a lot of their decision is just long excerpts from McAfEE's decision. They don't really spend a lot of time on the law. Is frustrating. It has got to be extra frustrating if you're Scott McAfee, because they essentially just step in and act like they're the trial judges. They're not making a decision about whether or not there was a conflict of interest. That's not even the question at this point. They are just trying to decide if the appearance of impropriety was so much that she needs to be removed from the case. Now, they find that it is, they find it because they want to, is

0:29:30 Thomas: Hear you I want to back up though because often this is a subtlety that gets lost uh non -oa listeners what are they reviewing because sometimes it's like well they just have to see if the judge made a clear error you know like sometimes that's the standard so like what is specifically the decision the thing they're supposed to do here yeah

0:29:37 Matt: Let really what they're reviewing for here is the remedy. They're trying to see if Judge McAfee did the right thing by giving this option for one of them to go. They're finding because the state did not cross -appeal the appearance of impropriity, which they probably should have done, honestly. The only appeal that was filed was against the actual decision itself by the defense, but the state could always cross appeal and say, actually, you know, we, right.

0:30:07 Thomas: Oh, even this remedy was too much kind of thing.

0:30:10 Matt: I'm sorry, they could actually challenge the findings that he made, despite agreeing more or less with the remedy and saying they'll go along with it. They still could have challenged the fact that he's found that this odor of mendacity and that it was an appearance of impropriety. So, one of the points that they're making here is the state didn't actually appeal that. So, that finding stands that there was an impropriety or at least an appearance of it. They actually helpfully drop a footnote to define mendacity, which I found a little offensive, frankly. I know what mendacity means. What's being reviewed here, though, is the actual remedy about whether when you find that there's sort of an appearance of impropriety that it was appropriate for the judge to kind of fashion this outcome. Because the whole thing was pretty unusual. There wasn't a lot of precedent for this. He was just kind of going with what he thought was the best way to do this and it was all kind of nebulous and they basically step in and say no we believe that he should have actually disqualified both of them and disqualified the office at that point and I will just read uh for context so you can see what I'm talking about in the appellant's view the trial court's forward looking remedy did not cure the already existing appearance of impropriety and the odor of mendacity found by the trial court based upon the fact findings of the trial court in its order and the state's failure to cross -appeal the trial court's finding of a significant appearance of impropriety. We agree. And the most they can do is they cite a case which actually, as the dissent points out, Blumenthal is a case from 1981 when the rules were different, and there used to be something when talking about lawyers avoiding the appearance of impropriity, which is always a good idea. We should all do that if we possibly can. It's best as lawyers to not be anywhere near impropriety. The dissent points out that language was actually removed from the rules of professional conduct in Georgia. And so, this case that they're citing is actually based on a rule that doesn't exist anymore. And that seems to be

0:31:49 Matt: The best they can do in terms of law. So, no, I mean, and generally speaking, yes, appearance of impropriety is always a reason potentially to disqualify a prosecutor, but they are substituting their judgment for McAfee's in this. And he was the one who sat through that entire hearing. Well, him and us, We're the only people to sit through that entire hearing. That is never appropriate for an appeals court to step in like that, I think.

0:31:49 Thomas: That doesn't seem good. Yeah, so you're saying they just, so because it wasn't appealed in terms of the merits from the other side, a cross appeal, as you say, they're like, well, the odor is there. The odor is granted. We've all, we're all agreed on this odor and we get to review what to do about that odor and they get to say what what judge mcafee ordered is just not good enough for reasons like

0:32:30 Matt: And they even go as far as to say that while we recognize that the appearance of impropriety generally is not enough to support disqualification, this is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings. Great question. Thomas why would no other remedy suffice

0:32:44 Thomas: Why yeah what's the next like part of that sentence there is none oh

0:32:50 Matt: Is no next part of that there is a footnote of course which you know I read uh they're looking at some other cases um saying basically because da willis and special ada wade were in this case from the inception uh precedent that might otherwise be precedent isn't I mean they're really going out of the way to distinguish things but the dissent very rationally says what I just said about how we're not the trial court we weren't there this was a reasonable remedy and we've never done anything like this before. Is Judge Ben Land writing in dissent. The majority does not dispute these findings, rather it holds with the citation of no supporting authority, and apparently for the first time in the history of our state, that the mere existence of an appearance of impropriety in and of itself is sufficient to reverse the trial court's refusal to disqualify the district attorney and her entire office. As shown below, the law does not support this outcome, rather, it compels precisely the opposite, you care. So here we are.

0:33:38 Thomas: Pretty much every dissent should say that at the end nowadays in this era now um this the now Now, three judges. Was this the kind of thing where it's like, oh, the en banc thing or like what what phase of appeal is this? What happens next? What

0:33:50 Matt: So this could still go up to the Georgia Supreme Court. I would think they'll probably want to review this. I'm going to err on the side of assuming they're going to want to view this one. See. So I have to think that this is something that the Georgia supreme court is not going to like. I don't know. I won't appear in front of the Georgia supremacourt, but I'll tell you that... of course, who is a Georgia lawyer, is sure that the Georgia Supreme Court is going to overturn this. And certainly, given how little law there seems to be here and how it's just kind of vibes, I'd have to agree that it seems likely. If this is upheld, then we are in a position in which... Now, again, this might all be academic. It might just be moot anyway, because I don't think anybody thinks this case is going forward. But But if it were, it's going to have to go forward with a completely different DA's office. They're going to go through the procedures in the Georgia rules that allow them to swap in. And I believe, from what I remember before, that it's up to the sort of council of prosecutors in Georgia to figure out who should take the case now.

0:34:39 Thomas: Who knows with that? But this is a a case case that I very much want to continue to exist, even if it's, like, paused. So I guess there's still the hope that the Georgia Supreme Court reverses that. But wow, this is this is the crap decision, Matt. Seems bad.

0:34:52 Matt: Good. I don't like it. I thought Judge McAfee was pretty reasonable, and I don' t like to see this. Attorney Steve Sado said said this decision puts an end to a politically motivated persecution of the next president of the United States. So that's the last word, I guess.

0:35:05 Thomas: All Disagree. What more to be said? Not right. Got to move on and talk chat GPT and judge. Seems like these judges could have used chat GPt. Maybe chat GPG would have gotten this three judge panel to a better answer. Answer we'll find out uh after the break So ChatGPT, a judge using ChatGpt. I'm so skeptical about this because I use ChatGPT myself and personal axe to grind. It's gotten worse and worse and is completely inaccurate most of the time now. So that's super cool. So it scares me that a judge would be using it.

0:35:19 Matt: Might have been better. Yeah, I he he does acknowledge that uh it's not always perfect but uh this is federal judge kevin newsom on the 11th circuit he's a trump appointee but he's he clerked with David Souter so he's got a kind of a moderate background from what I can tell uh obviously a member of the federal society that goes without saying but I gotta tell you I really like the way he writes and the things he's saying and that these concurrences that I'm going to be talking about I think are pretty reasonable um I'm interested to see what you think about it but I want to thank uh patron Carol the Warlock for pointing me to this one I'd miss this story it's a great one and I think it's really interesting emerging issue that Kevin Newsom is really on top of. These two different cases here. One is a civil case involving a lawsuit over a trampoline, and the second one is an armed robbery. So very, very different kinds of cases, but the same kind of issue in these cases about the common definition of words and phrases. Of course, this is, as you know, a very common thing in the law that we have to try to figure out what a reasonable person would think that a word or a phrase means, and the commonly understood definition and

0:36:31 Thomas: Is that a thing that should happen in normal law or just a dumb textualist originalist thing? But or is it normal okay this is a normal thing gotcha

0:36:36 Matt: That should happen yeah it's normal I mean he is certainly a textualist and there's a lot of value in textualism because we want to try to understand you know what things actually mean but you do want to be sure that you're not applying like the weirdest possible interpretation of a phrase as the plaintiff frankly in the trampoline case I think was urging uh so snow the united specialty insurance company was decided in june by the 11th circuit and this involved a landscaper who was paid by a family to install a ground-level trampoline, which I don't think I've ever seen a ground-level trampoline in a backyard, but they have a picture of it here. And he was included in a lawsuit when there's an injury on the trampoline inevitably, and he sued his insurance company because they didn't defend and indemnify him when quote-unquote landscaping. So that's an open question about whether a trampoline is part of your landscape.

0:37:17 Thomas: Interesting fair enough yeah now

0:37:20 Matt: And the majority kind of sidestepped that. There was a pretty active debate, as they noted, at the district court level about the ordinary meaning of landscaping, but they basically determined that under Alabama law, that everything you put into the application is partof the policy, and he specifically was asked in the application, do you do any recreational or playground equipment construction or erection? And he said no. So, just Off the bat his insurance was not going to cover something when he said he doesn't do playground stuff, right? It's a very different policy. Kevin Newsom was doing some hard thinking about this, and he wrote a really beautiful concurrence that I think is really worth reading, because it's really like a law review article about this question.

0:37:53 Thomas: Did he write it or did chat gpt write it do we know

0:37:56 Matt: It's true. Seems pretty natural and human, but you know, so I wouldn't say ChatGPT wrote it. But want to read you his sort of his setup here, which is that the proposal, which I suspect many will reflexively condemn as heresy, but which I promise to unpack if given the chance. Like me who believe that ordinary meaning is the foundational rule, so he's definitely a textualist, for the evaluation of legal text should consider, and he puts in here, consider and how AI -powered large language models like ChatGPT, Google's Gemini, and AnthropicsQuad might, and again, might, he says, inform the interpretive analysis. Analysis having thought the unthinkable I'll say the unsayable so uh goes through and says let me explain myself so what he does is he goes Through and asks chat gpt what it thinks landscaping is and it essentially comes to the same conclusion that concurring completely in the judgment so he has no question that this should not be covered um he just decided that why not just ask ChatGPT because the usual thing that judges do is go to the dictionary We've joked about this for a long time now, that Webster says whatever, because that's how we're supposed to define

0:38:53 Matt: What words mean. And

0:38:53 Thomas: Webster's just one guy named webster though now imagine now I could see the the merit here of saying well we've got chat gbt which are large language models which are really I'm consulting the all language ever used in a way Like, not quite, but, like, so, yeah, okay. I guess I can see where he's going with this.

0:39:07 Matt: That's right. Right. Exactly. Exactly. And that's his point, is he's saying that LLMs are much larger than a dictionary. They train on ordinary language. They can understand context. He says they're accessible. They're transparent. We know how they're trained and how they reach their conclusions. Yeah, I don't know. I'm not sure either. He thinks that it holds advantages over the other empirical interpretive methods. Now, to be clear, in the two decisions we're talking about, he does not say this is his be -all, end -all way of determining ordinary meaning. He's making an argument, which I think is pretty reasonable, that this is one tool that we can use, and it's just another thing like the dictionary that we could turn to and see what happens. Even in this very long essay, he explains that he understands the drawbacks about hallucinations, right, when they just make things up, true. The judges hallucinate all the time. Samuel Alito is just walking around in an acid haze I think that's

0:39:45 Thomas: But often, you know, judges just make things up. So, weirdly hallucinate in the same direction, too, like constantly. At least ChatGPT is probably doing it, like randomly, you know?

0:39:58 Matt: Right and it's also just telling you what you want to hear which certainly Samuel Alito doesn't do uh also makes the point this is very important that it might not account for underrepresented populations who aren't online all the time so there's just you know it might now be easy to represent all communities and

0:40:07 Thomas: Interesting. Marginalized people definitely consider trampolines part of their landscaping. But actually, of it's a serious kind point. Like, it would affect, maybe not that case, but some sort of case.

0:40:14 Matt: Went skip yeah yeah it's very thoughtful and uh you know makes the point that it's possible that litigants could try to manipulate LLMs, but that would be a lot of work and it's not necessarily something you can do right now.

0:40:26 Thomas: Who is he proposing would use this, Matt? Is it like, because what's going to happen is if, I are using this on that side of things, obviously they would keep the hits and, you not present the misses. It would become pretty meaningless because you can ask ChatGPT enough things in enough ways that, you you could get the results you want. If saying like, well, judges can kind of just use this as part of our analysis, then maybe it makes a little more sense because it might be slightly more – instead of turning to the dictionary, they're going to turn to that.

0:40:55 Matt: Makes the point that lawyers can do this too, because we already do this as lawyers. We already find the dictionary definition we like the best. We only find the conventional wisdom that we think is the most appropriate for whatever we're putting forward to the court. So, you know, he's just saying that it's, and he even acknowledges, which I really appreciate, that it is possible that relying on LLMs could lead us into a dystopia. I really appreciate that he's saying that out loud.

0:41:04 Thomas: That's fair. But that's a risk he's willing to take.

0:41:16 Matt: Now, he cites Roberts talking about how there's always going to be gray areas and we have to use human judgment, we should never get away from human judgment, that he doesn't want to be on some dystopian path to robo -judges, that's not what he's looking for. Just saying this is one tool, and he's being very thoughtful and careful about it, and And he really is trying very hard to be sure that he's saying that I'm not relying on chat GPT. This has not influenced my decision. I'm just saying in the future, I've been doing a lot of thinking about it. I think it's interesting.

0:41:42 Matt: And it potentially could be a lot more useful than dictionaries or other, you know, just relying on one source. And, you Know, this is all emerging. We're trying to figure this out. We're going to be talking at some point soon about AI and the law. And I thought this is an interesting setup for that. But then you get to a criminal case I want to talk about very quickly. It was just released a few months ago. It's US v. De Leon. And this case turned on the definition of the expression physical restraint. And this is a case in which a defendant walked into a convenience store, a pretty typical sort of robbery, points a gun. Gives him some money. He doesn't like the money. He asks for more, indicates with the gun. And the clerk gave him $40 in stamps, and he finally left. The whole thing took about a minute. He was charged with robbery and brandishing the gun to carry out the robbery. So for this whole thing he got 135 months ultimately after there was some remand issues with the sentencing but there's an enhancement this is the issue for using physical restraint in the course of the crime and

0:42:29 Thomas: If you tie someone up or something. Is that what that's supposed

0:42:31 Matt: That's supposed to be you know handcuffs or whatever uh federal sentence and guidelines as you know are incredibly complicated there's a very large algorithm chart thing but complex analysis uh in this case it bumped him up from level 20 to level 22 which is a difference of several years so very important to him and so the majority very much like in the snow case they just decided on other things they said basically per precedent like case called usb wear from last year where the court held pretty much on point that physical restraint is where a defendant creates circumstances allowing the victim no alternative but compliance and they even had a hypothetical in that case about a guy walking into a convenience store and porting a gun at a clerk so they said this is is pretty much the dicta hypothetical that we had. Much the end of the analysis, but of course it's just the beginning for Kevin Newsom, who decides he's going to pick up his experiments with chat GPT. He has a really interesting conversation in this one about the fact that physical restraint, of course, is two words. It's a phrase. And now we're not just talking about the common ordinary definition of one word. We're talking about what people might understand a phrase or expression to mean.

0:42:31 Thomas: To be? Okay. Yeah. Oh, wow. Is harder for a dictionary to do.

0:43:27 Matt: It I think this is a pretty reasonable use. He made the interesting point, very much like what you're saying about chat GPT, that he actually got different responses when he put in the same question more than once. And then he started running, he said he asked the same thing 10 different times to several different LLMs. And he was just sort of talking about how interesting that was to him that you end up with getting slightly different responses and how that might affect its reliability. He decides after analysis that there is some sort of of technical technical explanation for this, and he writes at the end here that an important and perhaps underappreciated benefit of incorporating LLMs into interpretive practice is their ability to decipher and explain the meaning of composite multi -word phrases in tools like dictionaries can't always do. And I think that's a really interesting point.

0:44:04 Thomas: Hey, that's what I said. Yeah.

0:44:05 Matt: Yeah, there you go. You could be a federal judge.

0:44:08 Thomas: This judge is a genius, I say. A genius.

0:44:11 Matt: But yeah, I mean, for a Trump appointee, this is good stuff. And again, Trump appointed hundreds of people. They can't all be terrible. And maybe he's terrible in other places, but I really do like the way he writes. Honestly, I'm all about judges who write in natural language and something that anybody could read. Yeah. So I really recommend, I am going to link to both of these. They are a good read. They're very interesting things to think about and uh these are things we have to consider because you know we've already seen lawyers obviously incorporating chat gpt into briefs and getting into trouble yeah

0:44:23 Thomas: Accessible yeah yeah all in all though here's what you're talking about is substituting chat GPT for what honestly seems like it should kind of just be the judge's job like we're like hey we need somebody to tell us what a reasonable normal person would think the phrase physical restraint means or whatever it's don't know does chat GPG really add much there I mean, assuming have to assume a judge is trying to do their well, because, you that same judge is going to be using ChatGPT or not. So it's not like, you know, we can't be talking about Alito here because he's going to do whatever he's gonna do. But a normal judge, I feel like they can kind of puzzle it out themselves. But, you Know, and then if they want to use ChatGpT for reference, do they even really need to tell us about it?

0:44:43 Matt: I think they should disclose it I think that's an important thing to know in the same way that they should disclose if they're working from websters uh but you know he makes the point that ideally if we're going to look at ordinary meaning you should go out and ask every living speaker of american english and he says obviously we can't do that but great if you can pull it off um

0:45:28 Thomas: You interesting. Then how, what percentage do you need? You know? Is that a bare majority? Is that a plurality thing is that we

0:45:32 Matt: Reach reach some kind of synthesis between it all but he's saying that perhaps you know the lms the way they're trained could be closer to an ordinary understanding in english than you're going to get from a dictionary because dictionaries can differ so yeah I think I'd never thought of anything like this before and I really appreciate carol the warlock for pointing this one out really interesting stuff and

0:45:42 Thomas: Fair point I glad too that it's not about using chat gpt to do like more complicated legal stuff because like it can but again I've been using it for a couple years now and it just it just gets shit wrong man it just does and then you don't know what it's getting wrong and what's it's not until you look into it, which makes it kind of redundant. So it's, so it's fine to use for like not super important things, you I, important, it's just, yeah.

0:46:15 Matt: I I just for fun I asked it some complicated immigration law questions and it just botched them all terrible like do not ask it law questions is a very bad idea.

0:46:23 Thomas: That's interesting.

0:46:24 Matt: A it's lot. It's hard to do.

0:46:25 Thomas: Interesting.

0:46:26 Matt: Ordinary meanings so

0:46:27 Thomas: We come back we'll have uh footnote fetish segment one of my that's pretty much my favorite segment nowadays all right now we're adding a food fetish in there huh this is you're combining your fetishes a lot matt you know it's It is a little weird.

0:46:32 Matt: Me too well I am vegetarian as are you so this one isn't really uh relevant to me but uh going to talk about judges being weird about food real quick uh I owe the listeners a couple of footnotES as for what it's worth I skipped a couple over since the election just feel still footnote appropriate the week after the election going forward. But I've got this case that Lydia found for us, and I love this one. It's just a classic legal versus ordinary meaning definition. And this actually goes directly into, I wonder what ChatGPT would say about this one actually. It goes into the last conversation. This is an Ohio Supreme Court case that was just reaffirmed on reconsideration just this week. So it's worth talking about. It is called Berkheimer v. RE KM LLC and it question here is should you expect that boneless chicken wings contain bones uh generally speaking it's been a while since I've eaten a chicken wing but I you know and of course we all know there's no such thing as an actual boneless Chicken so I think maybe you should know that but it'd be pretty weird if there were uh so you do know that at some point the meat you're eating had some bones in it but uh is a a negligence complaint, obviously, because we've got a guy who got a chicken bone stuck in his esophagus. Very, very small chicken bone.

0:47:24 Thomas: No. right. Thanks for coming, everybody. Yeah. Oh, God.

0:47:45 Matt: Yeah. Caused an infection. He didn't know what it was for a few days.

0:47:48 Thomas: That's awful.

0:47:49 Matt: He'd been eating boneless wings. He Didn't Think It Was a Bone. He comes back and says that, you know, this is negligence on the part of the restaurant. And restaurant's summary judgment and said this shouldn't even go to trial, that it should be so obvious that you might expect to get bones in a boneless chicken wing. And I thought this was interesting because there are two Ohio tests that the court was looking at here.

0:48:06 Thomas: Was, have you signed up for Disney Plus? And I'm like, we're allowed to kill you. Not even affiliated with Disney. We're just, yeah, just for fun now.

0:48:14 Matt: Fortunately, I think this original decision was before that, so they didn't drive them that. But we've got the foreign natural test. Is this something you would expect to find in this kind of food? So there is, in fact, a long line of cases saying that bones are natural to find -in meat. Because a lot of people have said over this about finding, you know, bones where they didn' t expect to find bones.

0:48:28 Thomas: All right, I'm going to start planting bones in Impossible Burgers or something and just really test this legal theory.

0:48:36 Matt: Right, and then it ties into the reasonable expectation test, asked, obviously, if the substance is within the reasonable expectation of what might be present in food. You know, you don't expect to find glass in your chicken wing, but you might expect to find a bone. It could happen. In the original decision, the Ohio court found that using a hybrid of these two tests, the foreign natural test and the reasonable expectation test, that it was, in fact, not unnatural to find bones, and it was reasonable for a consumer to find that there might be a little bone in your boneless chicken. But, headline, of course, becomes that Ohio Supreme Court finds that you should expect to find bones in your boneless chicken wings. And the dissent here was pretty good, I thought, from Democrat Michael Donnelly. The result in this case is another nail in the coffin of the american jury system the majority has taken upon itself to decide the facts of this case and it's determined there is no set of facts under which the appellant the plaintiff in the underlying negligence action can establish negligence and he's right this really should go to a jury about like should the ordinary person expect to find a bone in in this wing or not so the plaintiffs sought reconsideration and one of the things they used to seek reconsideration was actually a newspaper article about it which included a picture of the chicken wing and the court did not appreciate this they were very upset that they would come back because you have the right to seek reconsideration if you think the court got the law wrong they said this is not appropriate for reconsideration but furthermore please stop showing us newspaper articles we don't want to see newspaper articles this is not in the record and we don't care that we've been subjected to public derision over this case because that's part

0:49:55 Matt: Of the thing he's trying to point out right yeah

0:49:55 Thomas: I see, you emphasized the picture, and I was like, they had a problem with the picture? Oh, okay.

0:50:00 Matt: They didn't like the picture either because they you know basically trying to make that part of record when it was never in the record in the case right you can't just throw in a newspaper article into the record of appeal appeal on reconsideration. That's not the purpose of this. You want it in there, you should have brought it in, you know, in the motion hearing.

0:50:13 Thomas: Gotcha.

0:50:14 Matt: Donnelly dissented again and said, the majority's opinion has been rightly subjected to ridicule. There was an Olympics for sophistry, the majority's opinion would certainly have taken the gold. The majority blatantly orchestrated the desired result by usurping the jury's traditional role as the determiner of fact. This is exactly the type of activism self -described conservative justices purport to disdain. So, you know, kind of funny with the bones and the boneless chicken wings, but he's making a very good point about how quickly we grant summary judgment in some of these cases and how you know civil juries at this point are becoming a thing of the past almost it's just there just aren't that many civil jury trials and this is exactly the kind of thing that they should be for you should be able to put this out to the community about

0:50:49 Thomas: Not, and not just like the ask them if you think there should be a bone in the boneless chicken, correct me if I'm wrong. And maybe, maybe there's a fine legal distinction I'm missing, but also as that judge said, there's no set of facts. So what if it's like, okay, yes, it'S not crazy to expect that there could be the odd bone in a chicken wing. And then you find out the way they're manufacturing it is in a graveyard with skeletons, just all, no, it was just, just an empty bed or just open bags of bones just everywhere.

0:51:12 Matt: Just oops all bones right sure

0:51:17 Thomas: And it's like, well, okay, that that's not really reasonable. Like it's one thing to say there might be the odd bone. It's another to say, Hey, you've been negligent because you got bones all over, bones all Over this place. Necromancers working there. Just, just nonstop bones.

0:51:27 Matt: Exactly and there was there was testimony in that the at lower level from the person who prepared the food talking about how he makes the chicken bones and I isn't he makes chicken wings and I think that that is something that the jury should have been able to hear and decide about how reasonable their preparation was yeah

0:51:35 Thomas: How he's a skeleton. Yeah. Yeah, first I take a cup full of bones and then I put it, you know, like, yeah, there are facts that could, like latching on, unless again, unless this is one of those legal thingies where they're just evaluating like a specific question first or something that I'm not understanding. It seems crazy that there couldn't be some set of facts that would make this like not okay. And to the judge's point, it seems like, you are the ones who usually decide facts like that.

0:52:07 Matt: And I Think donald is right that it carries profound implications for all ohioans you wouldn't think from you know kind of the silly headline but have uh to make sure that these things can go to a jury and that people can trust that you go to A jury when you need to yeah I got one more quick story about judges being weird about food uh patron gmork brought this one up I thought this is a really interesting story uh you know he said this this may seem super minor but it is a gross abuse of equitable equitable power and I think he's right uh you might remember in the young thug case we talked about judge earl glanville ordering an attorney to buy lunch for everybody.

0:52:34 Matt: There's an attorney, Surichata Suricata Jiménez was late to court, and the judge ordered him to buy lunch for the entire, I think, the team, everybody who was in the court. And he actually went over to a local strip club, a very famous strip club and bought some chicken wings, speaking of chicken wings. So it's great, some great pictures on X of the whole team eating chicken wings. It looked like a lot of food, probably pretty expensive, offensive, but a bit more of an abusive. In that case, Glenville was saying you can go to jail or you can buy everybody lunch because you're in contempt right now. And I thought that was a little extreme. And this is an interesting debate to have about judges imposing these kinds of things. But this is a civil case, another Alabama case, actually. It's McCullough v. Coke Foods, and it involves a sexual harassment suit with a nurse at one of their plants. And the was requesting an extension on a filing. And The Plaintiff's Attorney said, sure, you can have your extension if you agree not to file a motion to dismiss, which is hostage negotiations.

0:52:57 Thomas: What

0:53:23 Matt: Yeah, that's a big ask. You can't do that. So Judge R. David Proctor got very annoyed with this because apparently the parties just weren't communicating. He's a George W. Bush appointee back in 2003. He wrote up an order that we'll link to in which he compelled the parties to sit down. Said that this was completely unreasonable to this way, and there's There's just no reason to be this unprofessional. The court orders that on or before December 31st, 2024, counsel for both plaintiff and defendants are to go to lunch together. Plaintiff's counsel will pay the bill. Defendant's counsel believe the tip. The parties will discuss how they can act professionally throughout the rest of the case. Within 10 days of the lunch, the parties shall file a joint report describing the conversation that occurred at lunch and the amount of the tip, and that part is italicized. You must be sure you take care of your service.

0:53:21 Thomas: Oh yeah no that's no good yeah what yeah

0:54:04 Matt: It's kind of cute, but you could just order them to have a phone call.

0:54:08 Thomas: Yeah it's it's it's the kind of thing that goes down in public conception sometimes it's like a cutesy punishment thing that's like offbeat, little, you but it might just work. I don't know, stuff like that. But I tend to see this maybe as the patron was seeing it, which is like, I don'T like stuff where judges start like they can just order whatever the hell they want. You know, like they just have people do stuff as their little human slaves that they can order around. I just don't like that general notion. And I think they should stick to law stuff.

0:54:35 Matt: I it's one thing to point out the parties are petty and uncooperative as he said that's true uh you can say that in your thing and then order them to talk but ordering them to lunch and then like specific things about who's going to pay what you have to come back and tell me of the tip yeah it's that seems petty to me that's just a little much um and you know this judge also previously is something I support a little more he wrote a very stern decision denying denying a motion in which a party had requested that a brief be stricken because it was filed 15 minutes late and he explained why that was inappropriate to even ask for that which I really appreciate as somebody with adhd uh that kind of thing when you're kind of just reprimanding the parties you're reminding them how professionalism should work and how we should treat each other and his point here was that it was almost thanksgiving obviously just give them an extension it's fine but yeah I think weird stuff that judges order people to do outside of the bounds of what you'd expect judges to do I think we should be it's not so good they shouldn't have to go to a lunch together.

0:54:44 Thomas: It's just weird. Yeah, it is. Yeah yeah I just I it's just icky in a weird way. I don't want judges to feel like empowered to boss people around in bizarre ways. It just because you know for every this story there's also really genuine horrifying abuses of power. I mean I just saw a headline the other day about a judge that was you doing doing awful stuff. I won't get into it, but like just that power dynamic already is ripe for abuse potentially. And I just don't like stuff where it's like, you're feeling like you get to order people around, like you're some sort of godlike figure.

0:55:48 Matt: Sure. And also, I mean, this is real Pandora's box because what if the plaintiff's counsel orders, I don't know, Dom Perignon or something, right? There's no limits here. Plaintiff's counsel, the defense, yeah, that's right. They have to pay the bill. So this is what he says. He's ordering them to pay their bill.

0:55:55 Thomas: Got a whole new lawsuit. Yeah. All right. Well, with judges and weird food stuff, and I do, you mentioned it, but a lot of this was very patron inspired, right? So it's, it's fun to incorporate the things that the patrons are wanting you to talk about. And it seems like you got several into to one episode I love it keep it coming patrons we love you all matt that's our show boy we packed a lot of in that was a lot of news though I really appreciate it learned uh a lot and uh again please support the show patreon.com/law thanks so much to our supporters we love you very very much. And we hope you enjoy the show and the great feeling you get from supporting. That's it for me. Look forward to, on Monday, a really interesting conversation with Haq on AI and the law, kind of branching off more from today's segment. So look forward to that on Monday. We'll see you then. Want to sign off?

0:56:15 Matt: Stuff I'd never seen. I

0:56:48 Thomas: All right, Goodbye.

0:56:49 Matt: Little slow now. All Still

0:56:53 Thomas: Yeah.

0:56:54 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:57:11 Matt: This just can't really meet the definition terrorism oh we're getting some haunted eater action just let it

0:57:12 Thomas: This the haunted heater hold on pause for the daily ritual we should start a religion around this haunted heater actually this is our observance right now light a candle

0:57:20 Matt: I would love to know its ways uh at least to predict it but

0:57:24 Thomas: The offshoot of liz's sink is another we don't recognize that as a vet look some people that's a sect that went you know it went astray they they look at things differently they were

0:57:29 Matt: There's there there's some quantum entanglement I think okay where it's siren time let that go it's uh yeah there's

0:57:47 Thomas: It's your catchphrase.