US v Dunn 2 - "If You Spit, We Hit"

Transcript

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

0:00:26 Thomas: In gavel heads it's oh it's like we have two universes of gavel gavel and this is the I don't know the red universe or something yeah this it's like a rick and morty where everything's made out of sandwiches or something sandwich universe I'm thomas that over there is lydia how you doing yeah

0:00:34 Lydia: The sandwich universe. Hello, I am doing pretty well. Excited to dig into this one, to take a bite out of this one.

0:00:48 Thomas: And we are joined by sandwich Witch artist, Matt Cameron. Are you doing? Oh, that sounds yummy.

0:00:54 Matt: I had broccoli and cheddar soup for lunch, actually. So not prepared. Not prepared.

0:00:58 Thomas: Sounds delightful. What's that? Oh I heard a clicking. Is that a drink or something?

0:00:52 Lydia: I think it was my eyes. Sorry.

0:01:03 Thomas: Oh that's, you have ice? All right, well this is Lydia's first time recording everybody. We're gonna have to see if we can get through it.

0:01:09 Lydia: I picked it up and I was like, that's not going to work. And I put it back down. At least I'm aware, you know.

0:01:16 Thomas: Yeah. All right. Well I'm excited for this one. This is a USB done assault with a deli weapon number two best name ever um are we going to be talking about today after the break from

0:01:28 Matt: We're going to set up the pre-trial stuff. Now, this is an interesting one because, as we've discussed, this trial went from... It was about three months, right, before. I mean, this isn't incredibly fast for a federal trial.

0:01:38 Thomas: Indictment to trial or I know I guess not even indictment right statement of information or something yeah

0:01:40 Lydia: Information.

0:01:41 Matt: Information. Yeah, yeah. So, we're just going to take a look at the pre-trial motions. But there's a particularly interesting motion that was never actually ruled on that I wanted to run by you. A motion for selective and vindictive prosecution. And I think you're going to see his point. As we know, these are not easy motions to bring. This guy in DC, I think he's got a point. So it's interesting to talk about. Also kind of preview the major legal argument of the case, which they're going to be having, which is about the interpretation of the statute and how it works when he's being charged with a misdemeanor where a statute includes a lot of their stuff and what the the jury is going to be told to consider. And there's some interesting stuff here that the January 6th defendants were using, that he's trying to use as well. And I just want to see what you think about the statute, because it is going come up. I think everybody needs to start to get their heads around 18 U.S.C. 111. And I'm going to do a whole other episode just on the statute itself, the history of it, and how it's been used, and how it is being abused right now around the country.

0:02:32 Thomas: That like an opening arguments or is that a this oh okay I wasn't sure yeah

0:02:35 Matt: It'll be for this. Yeah. We actually do it for both. But yeah, no, it's It's just because I think for the context, at some point, either before or after we finish the trial, I want to talk about how it's being used now because it is such a widespread use statute. A lot to get into, but a lot of this is going to set up the issues that will be coming up. And I think that the audience will better understand what the prosecution and the defense are trying to do in the case and why they're taking the tack there on these closing arguments, especially. So

0:03:04 Thomas: Looking forward to it all right well we'll take our usual break, which you can skip at patreon.com/gavelpod. Skip the ads, get the goodies, and most importantly, get stuff early. That is the main benefit. We give it out to those patrons right away because that's the chunk method. That's how it works. Those folks who like to binge, we give like 10 episodes at once, and then they're spaced out on the normal feed. Right, well, we'll take a break, and then we will dig into this open-faced sandwich.

0:03:42 Matt: Let's just review very quickly the legal proceedings. Here, how we got here. We talked, of course, last time about the actual context and the facts of the case. But remember that originally they did try after arrest to bring this before a grand jury to get a felony indictment on 18 U.S.C. 111. grand jury was not having it, obviously.

0:04:00 Matt: And I want to pull up 18 U.S.C. 111 right now, just because this language is going to keep coming up, and I just want to kind of get this in your minds and review it. I will have Lydia read it in her radio voice. And it is going to be the first section 18 U.S.C. 111.

0:03:59 Thomas: Said no thank you

0:04:14 Lydia: All right. General, Whoever forcibly assaults, resists, opposes, impedes, intimidates or interferes with any person designated in Section 1114 of this title while engaged in or on account of the performance of official duties or to

0:04:30 Matt: Yeah, that's it. That's the important part. So we're talking about Section 1 here. Yeah.

0:04:33 Lydia: Just section one. Got it.

0:04:35 Matt: Then the penalty, check out Section B.

0:04:38 Lydia: Right. Section B, enhanced penalty. Whoever in the commission of any acts described in subsection A uses a deadly or dangerous weapon, including a weapon intended to cause death or danger, but that fails to do so by reason of a defective component like the lettuce has flown up or

0:04:53 Thomas: The subway person forgot to put the grenade in my sandwich so it's defective they

0:05:00 Lydia: Inflict bodily injury, shall be fined under this title or imprisoned not more than 20 years or both okay

0:05:08 Matt: So that's the very extreme version. Now, Sean Dunn was not charged with this enhanced penalty, but I just wanted to point that out because a lot of the January 6th defendants were charged with this enhanced penalty because they were bringing major weapons.

0:05:18 Thomas: Brought more than sandwiches yeah yeah

0:05:20 Matt: Yes. And inflict serious bodily injury. Like there was obviously, you know, people died. Middle part here though, if you take a look at the parts that starts with shell, now this, this statute, as we're going to be talking about, it's very confusingly written. I'm going to take a little bit of a look AT the legislative history as well, but look two isn't relevant. We'll just skip that part, but

0:05:37 Lydia: Just who aren't currently like employee yeah

0:05:41 Thomas: Two says formerly served as a person

0:05:43 Lydia: And and you're doing it based off of the performance that they did while they were uh that in that space yeah

0:05:48 Thomas: Makes sense so it'S like if you're trying to prevent or you You know, the whole thing is, you know, people assaulting fellow agents. If it was someone like, hey, weren't you the asshole that did that back in the 80s? And then you thought, yeah, OK, fair enough.

0:05:57 Lydia: Prevent revenge yeah

0:05:59 Matt: Yeah. It's probably a good idea. Yeah.

0:06:01 Thomas: Would be more than like a normal crime. You'd want to count that as like, oh, that's not just me assaulting a random person. You'd wanna, fair Enough. Like, and again, to put the shoe, to Put the Sandwich in the other hand, if it was like one of the Jan 6th defendants was like, or just somebody who was there on January 6th was like hey that's the guy you know from january 6th who resigned after or

0:06:20 Matt: Or the Capitol Police officer that, you know, I couldn't kill.

0:06:22 Thomas: Kind of exactly and yeah punch that guy it's like yeah you would want that to be more than like oh he just punched a random guy makes sense hmm

0:06:28 Matt: Yeah. That's just to give you the full picture of the statute. Now that the shell part here, this is interesting because this is where it gets messy. Mm

0:06:34 Lydia: Where the acts in violation of this section constitute only simple assault be fined under this title or in prison not more than one year or both and where such acts involve physical contact with the victim of that assault or the intent to commit another felony be fined under this title or imprisoned not more than eight years or both hmm

0:06:55 Matt: Is super confusing. Misdemeanor version of this is what he ends up being charged with in the information. It's a Class A misdeteanor, the most serious kind of federal misdeneanor. It carries up to one year. You can see from this first part here. If it constitutes only simple assault. You go back and read A1, forcibly assaults, right? You might think that it means that he's only being charged with the first part of that, forcible assaults. And he's going to make that argument that he is actually only beingcharged with the assault part. But there's an argument here that is very convoluted that is going to hurt my head to explain, which we're going to have to get into when we talk more about the statute, about how actually those other five verbs, resist, supposes, impedes, intimidates, and interferes, can actually still be put into the jury instructions and still be charged this way, even though he's being charged with simple assault. The point is here that they tried in the felony version of this with the grand jury to get the eight -year version, the felony version.

0:07:42 Matt: So that's where they have physical contact, where, you know, obviously it was physical contact.

0:07:46 Thomas: There if the sandwich makes contact does that count oh okay that supreme court did rule that this a sandwich is an extension of the the person yeah it's I forgot about that one yeah

0:07:56 Matt: But, you Know, the argument is going to come down to forcibly, and there's going to be a lot of discussion about what forciably actually means in this case, and how dangerous this whole thing actually was. Of the first things he's going to file is a motion to strike surplusage, is a emotion to remove the other five verbs and just instruct the jury. Now, this was something a lot of the January 6th defendants tried. And there's a published case on this called Kua, which we'll talk about. This has not succeeded. And then there's a very convoluted explanation as to why they get to include the rest of those verbs. But for now, you just have to know that this motion is going to be denied when he tries to strike all of these other words and just focus on simple assault. Because you can see that it is confusing when you've got this very broad range of stuff, right? There's a

0:08:05 Thomas: Wait

0:08:37 Matt: Lot of other verbs, ways

0:08:38 Thomas: I assume there's a good use for that, I imagine, when it's like a confusing statue statute and you just want to kind of focus in the jury on what's actually relevant? Or is that like a weird thing? Is that like a normal thing that happens that he's trying to apply maybe when it possibly when it shouldn't? Or ist hat like a weird th ng to try to get?

0:08:54 Matt: I think this is a good defense tactic to try to narrow the offense down as much as possible so they can't be confused about what else.

0:08:59 Thomas: I know. I'm just asking, does that happen like regularly in other situations that you're able to be like, hey, we don't need, can we narrow this part here?

0:09:06 Matt: Yeah. Just to be sure.

0:09:07 Thomas: Okay, gotcha.

0:09:07 Matt: And this is going going to absolutely be common for jury instructions to be sure that you're focusing in and targeted on. Because so many statutes, especially in Massachusetts, we have so many convoluted statutes. Like our drunk driving statute starts with horses and carriages, right? I mean, it's a mess. And it's just one big, long paragraph. It's like a page -long paragraph. It's not broken up at all. To generate a charging document in which you're referencing different sections of this paragraph is very hard to do. I don't like the statute 18 U .S .C. 111 for lots of reasons that we're going to talk about. But this motion surplusage is denied ultimately before trial. There's also a motion in limine filed by the government. And again, this is an interesting sort of case study, literally case study because it's such a short trial and there's so few issues. And I just wanted to focus on a couple of them. The government files a motion limine, which of course is something you file pre -trial to to limit what say in open court and how they can characterize different things. Government is very concerned, rightfully, I think, that Sean Dunn and his lawyers are going to try to argue for jury nullification, that they're going to try and basically say, what are we doing here? Yeah, he threw the sandwich, but so what? Just don't find him guilty. They're trying to make sure that there's no chance that he can do that. Jury nullification at the federal level, you're not allowed to make that argument.

0:09:40 Lydia: Interesting oh

0:10:18 Thomas: I was gonna say, yeah, what's the normal rule on that? Like, are you just a normal court? And I guess we have to distinguish federal versus state but if you were defending somebody let's say who was charged with crime at a state level are you allowed to just be like hey look you know this is a dumb law so just you know like I don't know like are you loud to say that kind of thing what are you allowed to do versus at a federal level

0:10:41 Matt: It's not a legally recognized defense at the state or federal level. You have to apply the law the way the judge tells you what the law is, and you can just decide you don't like the law. There are states, I believe, that have tried to change that.

0:10:45 Lydia: Interesting so then why yeah then then why is that a tactic that that defense lawyers might try and do anyway if it's something like you can't actually do

0:11:02 Matt: There are sneaky ways that you can do it.

0:11:03 Thomas: Well do you hint at it do you gotta do innuendo or something yeah

0:11:06 Matt: Yeah, a little bit. Yeah? You can basically just kind of make fun of how stupid the case is and say, say, you know, this is not something you should convict. Just can't out and out say it.

0:11:14 Lydia: It's like subliminal messaging to the jury basically yeah

0:11:16 Thomas: I'm gonna put on this record backwards and it and really

0:11:20 Matt: Right, right. Of course, effectively speaking, jury notification happens all the time. There are all kinds of cases where you watch a video, but you still decide that even though you saw somebody commit a crime on video, you're not going to convict them. Could be a number of reasons you don't think that it met the law, but we never know, because jurors aren't asked exactly why they acquitted anyway. It gets interesting in here. Government wants to be sure the defense makes no reference to the Make the District of Columbia Safe and Beautiful Initiative, which is the extremely fascist way to refer to how Donald Trump took over the DC police and policing.

0:11:51 Thomas: Well, that seems kind of relevant though.

0:11:54 Matt: Is. And that's exactly what the defendant said. He said that they're going going to be showing a video of me yelling, and I can't explain why I was yelling, right? I can'T tell you why I didn't want to do this. He didn't testify, of course, but he was reserving the right to testify. And until you know the defendant isn't going to testify, you assume he is, he's on the witness list.

0:12:11 Thomas: Yeah, we saw that with Trump trial. They did all kinds of stuff.

0:12:13 Thomas: Well Trump is definitely going to testify and when he does, you know, and it's like, fair enough. They have to do that, but there was never any chance that Trump was going to testify at all.

0:12:21 Lydia: And he was sleeping through most of it too so I don't think he would have been able to stay awake on the stand so yeah

0:12:25 Thomas: He can stay awake when he gets to talk. He just, it's just when any other meaningless human talks, that's when he can't stay awake.

0:12:31 Matt: That's right. Becoming relevant because he didn'T testify. But I think it's an interesting back and forth that they have in the pleadings here, in the filings, because he wants to be able to argue that his statements were directed at the the policy, not at the officers. He wasn't saying, you, Greg Larimore, are a piece of shit. He was just saying, You guys are fascist. I don't know who you are, but you're here and you're not supposed to be here. And what is CBP doing in DC? Government comes back and says the defendant is confusing the purpose of the government's motion and arguing that the circumstances are admissible. Governor is intending to introduce the statements. They're going to put in the statements about fascism and about I threw the sandwich and whatever. Whatever. These statements, which are not in response to questioning, are highly relevant to the defendant's intent and motivation. Circumstances surrounding these and other post -arrest statements are likewise relevant, and the government is not seeking their preclusion. The government is concerned the defendant will attempt to litigate the administration's efforts to combat crime and preserve order in the District of Columbia, and basically to play to the jury, who are all D .C. residents, and say, you know, you guys really don't like this either, right? As noted in the government's motion, these efforts can evoke strong emotions. Motions, supporters viewing them as welcomed assistance, and critics viewing them as interference. The government's witnesses may also explain they were on duty on August 10th as part of the initiative, but the criminal jury trial is not the appropriate venue to litigate the appropriateness of that initiative. I just thought that was kind of interesting. They're saying it's going to confuse the jury if we get into that and try to play to their feelings about D .C. being occupied. I think they have a point there.

0:13:50 Thomas: Who has a point I'm not I'm not following too well

0:13:52 Matt: Government on this one. This is from the government's response to the defendant saying, I should have a right to provide the context. They were saying, we're going to let you provide because we're going to prosecute with them.

0:14:01 Lydia: I I find that unfair though and I feel like that's something that like the judge can you a like the limiting instruction or whatever for the jury and say, this can be taken in context as to defendant's state of mind as to what he said and why he said it, but that is its sole purpose and you should be evaluating it that way. It feels really unfair to just be like, we're going to use all these statements that you said, but not allow you to speak to why or nuance or anything thing like that I don't know I just find it kind of unfair yeah

0:14:35 Thomas: I want to make sure I understand what you're even saying so the government wants to say don't talk about fascism club first rule fascism Club and then he's like well we got to talk about Fascism Club because that's why I was doing what I was doing and then it seemed like you said the response was oh we'll let you talk about yeah what was their spot yeah and that's where you lost me we're

0:14:56 Matt: Well, they're saying, we're gonna put in your statements.

0:14:58 Thomas: But that's not that's nicht fascism club that your statements aren't yeah

0:14:59 Lydia: But you're not allowed to talk right yeah

0:15:03 Matt: Are he's yelling, you're fascists and whatever. But that's not his opinion about DC being occupied. I think what they're trying to avoid is an extensive bit of testimony from the defendant about his opinions about DC, being occupied to play to the jury. I think he should have gotten to do that, but he didn't testify anyway. So, you

0:15:22 Thomas: Was this ruled on no okay so it didn't end up being ruled on okay so

0:15:26 Matt: Because he didn'T testify, so.

0:15:26 Thomas: We don't know for sure what what would happen there okay gotcha

0:15:28 Matt: Yeah, I just thought it was an interesting argument to have back and forth. Were reserving the right also to make the argument that he was not on his official duties that night because he wasn't acting as an official CBP officer. He was beyond his remit. And, you Know, that's an interesting Argument.

0:15:41 Thomas: What's what's where what were their facts to back that up that's

0:15:44 Matt: But the federal officer was enforcing local law. He was out there basically keeping DC safe and beautiful, right? Instead of looking for immigrants or

0:15:49 Thomas: Interesting that's an interesting point hmm

0:15:52 Lydia: Yeah outside of his official duties but is it one of those things where it's like five percent like not otherwise specified like on your duty statement redirected

0:16:00 Matt: Yeah. Exactly. Right, right. Yeah! I

0:16:03 Thomas: I guess I feel like it's probably more the kind of thing where in in our police state society I'm sure that there's times when officers are going to be you know supporting each other in different ways and yeah and they're probably like would consider that part of their their duties I have to imagine it's not like he would be there if he weren't cbp yeah

0:16:15 Lydia: To yeah yeah oh

0:16:22 Matt: It's kind of a political point because he's ordered to be there. Those are his duties. You know, those are his orders.

0:16:27 Thomas: Enough it's interesting though oh

0:16:29 Matt: Getting up to October or so, I've sent you over a joint pre -trial statement, which I thought was particularly interesting because as far as I can tell, this is straight from PACER, which is, of course, where you get all of your federal documents. I think they uploaded the version that had track changes saved. So this is fascinating. Good times.

0:16:42 Lydia: Yeah it's all the red lines wow

0:16:45 Matt: Yep. Yep. So we get an interesting little glimpse, because this is a joint pretrial statement. And these are extremely common. This is a normal thing you have to do before trial, that both parties have to state their positions on different things, so the judge can be very clear on what we're doing. I love this stuff. And it's especially interesting with the track changes in there. But you get to see, for example, in part A, the joint statement, right? And even just different diversions of what they think the case is. Notice the extremely subtle difference between the United States in the government's version and the United State's attorney in the defendant's version. And he actually explains, there's an explanation in italics below this, that because the indictment was not returned by the people of the United States, it was filed as an information by the US attorney, right?

0:17:23 Matt: And he wants to make that clear that we're not, I actually haven't been indicted by the United States.

0:17:23 Thomas: Good

0:17:27 Lydia: These are not charges brought by the country these are charges bought brought by this specific individual huh

0:17:28 Thomas: Point

0:17:34 Matt: Weren't any citizens that signed off on this, just the US attorneys. And that's just the fun kind of little legal detail that we get to do all the time. I love that stuff. I love being that pedantic.

0:17:43 Thomas: Especially when it's for a good cause I feel like a lot of pedantry sucks this is good pedantry well

0:17:44 Lydia: You so you said the uh and I just noticed here too um where the defendant's version of this joint statement of the case is count one charges mr dunn with forcibly assaulting and then they strike through through resisting, opposing, impeding, intimidating, or interfering with. So that was in line with their motion that you said was denied by the judge, correct?

0:18:01 Matt: That's right. Ultimately. Yeah, but after this, yeah.

0:18:09 Lydia: You tell me, I mean, I don't know if you looked at that order at all. Did you get any indication from the order if you look at it? The judge denied that motion to, focus in on the the verb that he is accused of doing and not including all these other verbs that he's not accused ofdoing okay okay

0:18:28 Matt: He will talk about it a bit on the record we have. On the official docket, it says he's denied it for the reasons stated in the record, but he states that in October, so we didn't get that transcript. I think we can piece together once we get to the trial, we'll get a sense of, and once we talk through a little bit more about, hey, how 18 U .S .C. 111 has been used in other cases, including the January 6th cases, we'll be able to get a better sense of why they ended up doing that.

0:18:36 Lydia: Gotcha

0:18:49 Matt: To be very clear, in the joint statement, they couldn't reach a joint statement. And this happens all the time. So you have government's version, defendant's version. Taylor's version? Right. You got to have all your own versions.

0:18:49 Lydia: Okay and then explanations behind why they don't agree on particular things yeah

0:19:01 Thomas: Guess then I was wondering why the red line so whose whose red lines are they then

0:19:05 Matt: Yeah. I think that's the final version with the track changes is the one that was uploaded by the defense. I'm I'm guessing they were the last people with their hands on it because I just think it's interesting to look at these foundational documents and

0:19:15 Thomas: There's a lot that has to happen before the trial that in TV and movies, you rarely see, you might see some really stupid voir dire for the jury. You might see like some, some silly voir dire, but beyond that, you're not seeing much pre -trial stuff.

0:19:17 Matt: Even a simple trial.

0:19:30 Lydia: Not seeing a lot of paperwork going between all the different sides of the case yeah oh

0:19:35 Matt: Read that in one of the days that we don't have a transcript for, the judge actually described this as the simplest case in the world, which I think was pretty funny compared to what DC criminal judges usually see, I'm sure it is. Used to looking at pretty sophisticated criminal cases. Why it's extra fun to break it down in such a pedantic way because it is otherwise such a simple case. And there are still, even in a simple case like this, that's kind of the point I wanted to make today, there's still an enormous amount of legal argument to be had.

0:19:59 Thomas: Yeah. Yeah, you lawyers would always find a way to.

0:20:00 Lydia: Wow you guys always find something yeah

0:20:02 Thomas: You always find. Yeah, yeah, you paid. Always find a wait. Oh, no, there's plenty of work we got to do here.

0:20:02 Matt: Can't help ourselves. That's right. That is

0:20:05 Lydia: Get those billable hours in

0:20:09 Thomas: We need to see if the gerunds will. They'll agree that the infinitives will be split or not. Can we split infinitives in this trial? Is that not allowed?

0:20:13 Lydia: Is that

0:20:13 Matt: Whole range of motions and oppositions and replies before you can decide that. It's a pretty typical pretrial thing. There's a whole transcript they attached from another one of Judge Nichols' cases where they're saying you should apply the same definition of forcibly, we'll get back to that. Just think it's interesting to break down because we don't usually get to this level of granularity when we're looking at trials.

0:20:37 Lydia: Primarily the only um differences that they had are kind of what we're seeing on the the first couple of pages.

0:20:43 Matt: Yeah, basically, yeah, of the charge they want to include in that language. Get into the thing I was most interested in all of this, motion for for selective and vindictive prosecution, which discussed this more than once in opening arguments, but this is an extremely high standard for a reason. We kind of dig into this, you can think about big marquee cases where people have tried to do this. Notably, of course, Donald Trump in all of his criminal cases tried to say, you're trying to prosecute me because I'm running for president.

0:21:17 Thomas: It was never true.

0:21:19 Matt: It was never true.

0:21:19 Thomas: Not a single goddamn time. Forget it. The success or whatever. And, you know, that's all another thing. But that was never truth. But I think what's so interesting is I don't know if anyone would have this data, but I have to imagine that pre -Trump, this was almost never successful. I'm sure there's a handful of cases, of course, but percentage, the batting average has got to be pretty low. Yeah. Yeah.

0:21:35 Lydia: Egregious situations. Yeah.

0:21:41 Thomas: Maybe like a local prosecutor that hates somebody like as a personal grudge. But like especially on a federal level, if you look at a federal label, like how often someone would be successful in saying they're prosecuting me unfairly. Got to be vanishing the rare. Post -Trump, there's got to be an explosion of success rate just because of how many, not from Trump, but from his administration making so many terrible statements about like, yeah, well, we want to prosecute him so that he'll do what we want. It's like, oh, that's not you're not allowed to do that.

0:22:09 Matt: Or committee that Ed Martin is in charge with, the Department of Justice's Weaponization Task Force, which is supposed to be going after people who weaponized the Department Justice, but of course, is just weaponizing the Department of Justice.

0:22:21 Thomas: Yeah, that is a funny

0:22:23 Matt: Pretty open. Yes, that's right.

0:22:24 Thomas: Theory of naming your fascist departments. Departments. Yeah.

0:22:28 Matt: Accidentally correctly named it. Yeah,

0:22:31 Thomas: It's like the, what in 1984 or whatever it is, where it's like The Department of Peace or something. No, what am I thinking of? Is it that kind of thing? But then they accidentally named it the right thing. Yeah, the truth, but they looped all around. We're like, no, it's The Department Of Falsity because we're going after the false stuff that the other people said or something like that. Yeah?

0:22:39 Matt: Right department of truth or yeah yeah um yeah right it's actually yeah the weaponization task force thing every time I see that I'm like are they actually trolling us because at this point you know when you're talking about james covey and letitia james and now you powell and everybody else he just doesn't like like you're actually weaponizing anyway I went back just to have a little tie -in to uh our first season of gavel gavel I went back and took a look at the selective prosecution arguments that were made in the new york case um actually found a a letter from the prosecution in which they detail over and over and over again, all the different places where the court found that there was no selective prosecution and that, you know, he needs to stop making these stupid arguments basically that there's no prejudice. But at the same time, I also, you Know, Thomas, you were asking like, what does it take? And I went looking for a few examples of the kinds of things where people actually were found to have been selectively. And these are separate things, but there's selective prosecution. There's vindictive prosecution. So selective prosecution is most often brought on the basis of race.

0:23:43 Matt: And you can actually make a pretty good showing that... And for example, there's a famous case...

0:23:43 Thomas: I I was just to be clear I think I was talking about the uh kind yeah yeah yeah but

0:23:51 Matt: I just wanted to separate those. So we'll start with selective here.

0:23:53 Thomas: Make clear yeah I'm sure selective prosecution I would hope yeah there's there's probably way more examples of that oh

0:23:58 Matt: Prosecution, it's generally going to be based on a protected class. Now, you can try to make it based on viewpoint and political opinion, obviously, and that's very, very hard to do. Just for example to give you an idea of how selective prosecution can work, USV Jones, a Sixth Circuit case in which police officers custom -made t -shirts to celebrate the arrest of two Black defendants, but not the white co -defendant. They didn't include him on the t -shirt.

0:24:19 Matt: Along with a postcard sent by a police officer to the Black defendant awaiting trial featuring a Black woman with bananas on her head.

0:24:17 Thomas: My god oh my my God. Oh, my Jesus fucking Christ. I hope this was successful. Okay, good.

0:24:30 Matt: Yeah, so that was.

0:24:31 Lydia: And I hope some people lost their jobs.

0:24:31 Matt: Well, threshold for what they call some evidence of discriminatory effect.

0:24:35 Thomas: Come, come the fuck on.

0:24:39 Matt: Yeah, at the same time, this is actually the catch -22 that's built into selective prosecutions.

0:24:43 Thomas: They meant that in the some pig sense, you know, like, boy, that is some evidence for racism yeah yeah that is some racism right there who we if they made if they meant it in that sense I agree but if it's just like yeah this is a little bit no come are you kidding me where they have to be wearing the hoods for it to be a little more geez

0:24:46 Matt: It's something. Totally. Yeah.

0:24:51 Lydia: Charlotte's like spinning the web above the order.

0:25:09 Matt: Well, that's the interesting catch - 22 that's built into a of these cases. And they pointed out here too, that one of the things you have to do is show. And so the question in that Sixth Circuit case was if they'd reached the threshold that they could do discovery because obviously the only way you're going to prove this is if you get enormous amounts of discovery from the prosecution to show all of their emails where they're being super racist or their charging decisions. And in this case, Sean Dunn was making the argument, I think pretty credibly, that if you You get 199 results, and of 35 of those involved, the assault charges based on a thrown object. In every such case, the object was capable of causing injury. Rocks, bricks, bottles, metal tools.

0:25:51 Matt: Not a soft sandwich, he notes. No sandwiches.

0:25:54 Thomas: Even a toasted one yep

0:25:55 Matt: That's right, not even a hard rye bread. Accompanied by other types of assault. So he's making the point that this is a soft object. And the government's going to come back and say, well, there is a case where somebody spit on someone. And he comes back and says, well spitting is actually more dangerous than throwing a sandwich, right? You can actually get somebody sick.

0:26:09 Thomas: Was it during COVID or

0:26:10 Lydia: Yeah.

0:26:10 Thomas: Something? Maybe.

0:26:10 Lydia: Biological weapon.

0:26:11 Thomas: Who knows? Yeah, I

0:26:12 Matt: And it's actually more offensive than throwing a sandwich. I mean, it's like a universally offensive thing to do. The threshold he's going to have trouble with, just to start with, is that he has to show that there are defendants who have committed similar offenses and were not punished, but the only way to show them is to get discovery. And the only way to get discover is to show there's some evidence that it's already happened, right? So this is a really difficult thing to deal.

0:26:15 Thomas: Think so. Oh, yeah.

0:26:29 Matt: It's a catch -22 that's just built into selective prosecution. Case based on viewpoint discrimination, which does not require a finding of discriminatory intent, it just shows that they discriminated against people at different viewpoints. Now, I think he's got a pretty stellar argument here because he's saying, it's for pages he goes on, about how there are thousands of defendants that did things that are are way worse than throwing a sandwich who just had their cases pardoned.

0:26:29 Thomas: Kidding. Right.

0:26:51 Matt: And clearly, this government, and right here in DC, that's where it happened. Clearly, there's some assaults on law enforcement you care about. Right.

0:26:58 Lydia: And judge too, right?

0:27:00 Matt: Right.

0:27:00 Thomas: Was a Jay Sixer. Geez.

0:27:02 Matt: All the judges had to take some of these cases.

0:27:02 Thomas: I'm just kidding. Yeah, oh, that's a good

0:27:06 Matt: The government is going to say, well, those are pardons. It's different. We still prosecuted them. But of course, there are a lot of cases where they did actually drop pending charges or they refused to investigate get any further. Think Janine Pirro is standing up and saying, as she's going to play this clip in a second, but talking about how we can't allow you to get away with attacks on law enforcement. Obviously, it is selective at that point.

0:27:06 Thomas: Point. Yeah God. Yeah I can't think of a much better case than that. On.

0:27:29 Matt: I mean, it's pretty obvious. There's also an interesting case I wasn't aware of that he cites here. It's a Frederick Douglass Foundation v. D .C., and it's a 2023 D. C. Circuit case. This is not a situation I'd caught. But honestly, as much as we don't like these plaintiffs, they have a point here. Were arrested in 2020 for writing Black Unborn Lives Matter on sidewalks around DC, but nobody here wrote Black Lives Matter and sidewalks, and there are a lot of them, or was ever arrested.

0:27:52 Matt: So the DC Circuit Court had to find that there's evidence here of viewpoint discrimination, need to show that there is any discriminatory intent, it's just the way it worked out. But clearly, they were favoring some speech over other speech, and they were only choosing to prosecute people who were pro -lifers. Something there, that's something to consider.

0:28:09 Thomas: Imagine the reason is that pro -lifers have a history of terrorism and you lives matter absolutely did not sure

0:28:16 Matt: Still enough of a question that they had to reverse it. As you have a credible showing of similar defendants being treated differently, which is what they're trying to do with the J6 thing, and then that it was unconstitutional discrimination, obviously based on First Amendment protected speech, And then here's the part that's usually very hard to prove, but as you were saying, Thomas, not as hard to proof with this administration, that they intentionally carried out unconstitutional discrimination. And this is where the vindictive part comes in, and it has to be more likely than not attributable to vindictiveness on the part of the government. So this is Where We Can Play, the clip from Jeanine Pirro, who is unfortunately, of course, the US attorney for DC.

0:28:49 Thomas: Unfortunately still with us what

0:28:51 Matt: This is cited in the motion for good reason.

0:28:54 Clip: Trump has vowed to make D.C. safe and beautiful again. And as part of his effort to fight crime, he's bringing in our federal law enforcement partners like FBI, ATF, DEA, Park Police, everybody to help the Metropolitan PD fight crime. And the president's message to the criminals was, if you spit, we hit. Well, we didn't quite do that the other night when an individual went up to one of the federal law enforcement officers and started jumping up and down, screaming at him, berating him, yelling at him. And then he took a Subway sandwich about this big and took it and threw it at the officer. He thought it was funny. Well, he doesn't think it's funny today because we charged him with a felony, assault on a police officer. And we're going to back the police to the hilt. So there, stick your Subway sandwich somewhere else.

0:29:50 Thomas: That's uh we have real grown -ups running our government at

0:29:51 Lydia: She's like so cringy. Jeez.

0:29:56 Matt: Going to say it has to be the first time that a sitting US attorney has invited someone to stick something up their ass. Yeah, I'm pretty sure that's... Maybe on a video. Yeah.

0:30:02 Thomas: Least publicly like on you know on the record yeah yeah yeah

0:30:06 Matt: The video that they took. Pretty good. And we went through some of the other stuff last time. The arrest video, which he also cites, the super fashy like Jerry Bruckheimer arrest video where they tried to jazz it up as much as possible. And then, of course, the very public firing from Pam Bondi where she fires him. All of this leads up to the motion itself. And that's why I think it's got a lot more teeth than the usual motion of this kind. Just to get a sense of it and get a taste, I wanted to read the first page or two.

0:30:07 Thomas: Assholes yep Yep.

0:30:33 Lydia: Prosecution is a blatant abuse of power. The federal government has chosen to bring a criminal case over conduct so minor it would be comical were it not for the unmistakable retaliatory motive behind it and the resulting risk to Mr. Dunn. Mr. Dunn tossed a sandwich at a fully armed, heavily protected Customs and Border Protection officer. That act alone would never have drawn a federal charge. What did was the political speech that accompanied it. The sandwich-throwing, in quotes, incident was captured on video and went viral, along with Mr. Dunn's blunt criticism of the administration's militarized takeover of Washington, D.C. Days after declining to prosecute in D.C. Superior Court, the United States Attorney's Office escalated this petty incident into a federal felony case in direct retaliation for Mr. Dunn statements on the video. Manner in which the government announced the charges and arrested Mr. Dunn strips away any doubt about its motives. The Department of Justice's top official publicly branded Mr. Dunn part of the, quote, deep state. The U.S. attorney for the District of Columbia posted crude taunts about where to, quote stick his Subway sandwich.

0:31:36 Thomas: That'd be a weird job to get within the deep state. Wait, did you call him the deep State? Wait, what?

0:31:40 Lydia: Yeah, he's he's part of The Deep State sandwich throwing.

0:31:42 Thomas: He's deep state. That's, I mean, wow. If congrats, if that's the job you lay, Hey, I just got a job with the deep estate. What is it? You're never going to believe it. Head sandwich thrower. It's I can't, I can't believe it's a, it's I'm so excited about it.

0:31:52 Lydia: Pretty easy. Yeah. And he can get like reimbursed for all the sandwiches.

0:32:01 Thomas: Yeah. He's like, I'm going to go start ordering different sandwiches and testing the aerodynamics. I can, which is This is amazing. So pumped.

0:32:05 Lydia: Like Mythbusters style. Yeah. Prosecutors ignored Mr. Dunn's offer to surrender voluntarily and instead staged a choreographed, militarized raid on his small apartment, then posted the arrest video online, complete with a heavy metal soundtrack.

0:32:22 Thomas: Covered this, but like that is outrageous in terms of, but just speaking legally, Matt, like that, pretty good evidence of fricking something, right? I mean, like that doesn't normally happen, right.

0:32:31 Lydia: Freaking something. I agree.

0:32:34 Matt: No. Never that I've ever seen.

0:32:36 Thomas: I mean I guess, I guess the closest thing maybe would be like when they do the stuff where they get like an ounce of pot and then they spread all that and a bunch of like monopoly money on the thing. No, when they recover a buncha drugs and money and guns, that happens. They do the big like showcase of what all they found kind of thing. I guess that's like the closest analog I could think of. And I suppose if I'm trying to make the best argument, you wouldn't really, I guess you wouldn't really argue that that is evidence of some like malicious kind of prosecution, whatever thing. But I don't know. This seems pretty crazy.

0:33:07 Matt: But the closest thing is when they arrange a perp walk or they want to make sure that media catches the guy going in the first time, right? And

0:33:12 Thomas: Like our like our king. Yeah.

0:33:14 Matt: Is so much worse. This is making a literal spectacle out of it and turning it into a movie trailer. Think he's got some great points here. Let's

0:33:23 Lydia: D.C. U.S. Attorney's Office cannot identify a single comparable case, one involving the tossing of a soft object at a law enforcement officer, where the federal response came anywhere close to this level of force, publicity, and humiliation. Indeed, as far as we can tell, no such incident has ever been prosecuted by the D.C. U.S. Attorney's Office. The reason why is clear. The government's extraordinary reaction here is explained not by the alleged act itself, but by the political views of the person accused of committing it.

0:33:52 Matt: Can go down to page four. I thought there's some interesting use of... I always like it when you include photos in these kinds of pleadings. Yeah, I love it.

0:33:58 Lydia: I do too. But the sandwich -throwing video, along with Mr. Dunn's pointed criticism of the administration, went viral. As the video spread across the Internet over the next few days, Mr. Dunn became an unexpected symbol of public opposition to the federal deployment in Washington, D .C. Murals of the, quote, sandwich guy appeared on K Street, as pictured above. Protesters marched with signs reading, quote. Don't F as redacted with D .S. unless you want this foot long.

0:34:28 Lydia: And countless news stories and social media posts referring to Mr. Dunn as a, quote folk hero amassed tens of thousands of views.

0:34:35 Thomas: Is a folk hero.

0:34:37 Matt: Photo just to describe is of course the Banksy, classic Banksy picture with a sub in it of a guy masked about to throw something.

0:34:43 Lydia: And he's in he's in black and white. And then the sandwich is in color.

0:34:45 Matt: It's good.

0:34:47 Thomas: Is exactly a folk superhero. That's what a folk hero should be. A common person doing something with a funny object against fascists. That's like epitome folk hero stuff.

0:34:58 Thomas: Can he get an official designation? I think he should. And then that you shouldn't be allowed to be prosecuted at that point in my America.

0:35:04 Matt: That's right. It is very funny in your motion to dismiss to point out to the court that you are a folk hero. I just think that's a funny thing to say. Let's keep going.

0:35:08 Thomas: Yeah, pretty

0:35:11 Lydia: At height of the public attention, and despite having already determined the incident did not warrant charges, the U .S. Attorney's Office for the District of Columbia reversed course and elected to pursue a federal felony prosecution against Mr. Dunn. The decision to bring charges was eyebrow -raising, the manner by which the Department of Justice turned the prosecution into a public spectacle was jaw -dropping.

0:35:34 Matt: Then we've got the shot of Jeanine Pirro from the video we just watched. And I love it that they just have the caption, stick your subway sandwich somewhere else. They've just got that subtitle. Very good capture there. And they just describe what the video is. And then we get down to the next page and we've a screenshot from the fascist arrest video describing that.

0:35:47 Lydia: God, that was so crazy. Yeah.

0:35:49 Matt: And I think this is great to just go by shot, literally just going through all of the different ways that this became a public spectacle. Let's go to the next page just to go a little further, page seven, the political theater.

0:36:01 Lydia: Political theater did not end there. The highest -ranking official in the Department of Justice, Attorney General Pam Bondi, also took to the internet in her professional capacity to weigh in on the, quote, sandwich thrower. On Mr. Dunn's political views and promoting an unfounded claim that he belonged to a cabal of political dissidents, Ms. Bondi announced that Mr. Nunn was being prosecuted and fired from the job he had dutifully occupied for nearly three years, holding him out in her own words as, quote an example of the deep state. Than distance itself from this blatantly politicized statement, the Department of Justice embraced it, issuing eschewing its own official press release, citing and quoting Attorney General Bondi's remarks with approval.

0:36:41 Matt: That is incredible that they would put that into official DOJ press release on top of that. We're just in such strange times. Essentially what they're going to be arguing is that there's two different groups that the court should consider. There's the fact that apolitical, low -level offenders are left to local court. These cases do not get brought federally if people do small bits of assault, like just minor crimes. Making the point they can't find any cases in which only soft objects were used. This never seems to have happened before. So apolitical cases are not being prosecuted. And then in the next section, number two here, going to page 12, they start talking about how January 6th is much more serious and those people escaped prosecution. And they give lots of examples from January 6. I'm sure we don't need to remind ourselves of all the different ways that people did terrible things with chemical sprays and metal objects and baseball bats.

0:37:35 Lydia: Comparison

0:37:37 Matt: I thought was good on

0:37:39 Lydia: Underscores the Justice Department's glaringly different treatment of two sets of defendants, those accused of significant acts of violence, whose political views align with the administration, and Mr. Dunn accused only of tossing a sandwich, italicized, whose whose political views are opposed to the administration. Reason for this otherwise inexplicable disparity is plain. The former have been publicly praised by the administration as, quote, patriots who, quote. Love our country. While Mr. Dunn has been branded by the attorney general as a member of the, quote deep state. By the government's own public statements. The disparate treatment of the January 6th defendants and Mr. Dunn is driven by politics and partisanship.

0:38:21 Matt: Hard to miss. I mean, he's right, you're not wrong. I really do wish this had been decided. I'm not sure why they didn't choose Yeah. I still think it wouldn't have won, unfortunately, just based on how hard these are to win.

0:38:26 Thomas: Solid. Because this is the kind of thing, like some of the stuff like the motions eliminate, some of the jury instructions, like the judge often likes to like wait as long as possible, right? Like know, see how things go. But like this one, wouldn't you want to know like right away if this

0:38:43 Lydia: We doing a trial or not? Yeah.

0:38:45 Thomas: Like why didn't he rule on this?

0:38:48 Matt: Yeah, I don't know. I think we have that record. And maybe at some point, I'm hoping we can talk to the lawyers and we could find out.

0:38:52 Thomas: Huh. Huh. So no, no guesses. No.

0:38:55 Matt: Yeah no, I didn't have any guesses right now. But I think, honestly, it could have really dragged things out. And I think maybe they just wanted to get it to trial and get it done. That's certainly what happened here. Just as a contrast in a pending case, another big one that everyone's familiar with, been talking about Kilmer Ábrego García for many months now, since March. And he actually was just today, as the day we're recording this, given an evidentiary hearing for his motion for selective vindictive prosecution. And this is somebody I think that has the best claim for selective and vindictive prosecution you can imagine, because they literally cooked up a charge after mistakenly, allegedly mistakenly deporting him when he had an order not to be deported to El Salvador to a torture prison, and then tried to call him a human trafficker and tried to imply that he was even a pedophile. That didn't go anywhere, obviously. But actually found that met the threshold and is going to give him an evidentiary hearing. And now they're trying to drag discovery out of them. I was just reading about how much trouble they're having getting the discovery because I'm sure there's all kinds of terrible stuff that they don't want to turn over that

0:39:46 Lydia: Oh, yeah, I bet.

0:39:47 Matt: Would make his point. Are the most cooked up charges I've ever heard of at the federal level. And I think he's got a good shot. It's a motion I want to cover more closely. But are worth bringing. And especially in this time, as you said, you can't emphasize enough how the government is just willing to go out and talk shit about people in a way that prosecutors never do. You're just not supposed to do that. Makes it a lot easier.

0:40:09 Matt: I thought this is worth getting into. And it's also just in the same sense when we were talking about the impeachment stuff the other day, that it's just good to get a historical record, even for a case that kind of came and went, that we've got really good detail here about how vindictive and selective this prosecution really was. That motion. Any other thoughts on that?

0:40:24 Thomas: That should have been successful. I think it should have Been ruled on and found meritorious. But that's just me.

0:40:29 Matt: I potentially could have gone up for an appeal and had a whole thing, but fortunately it was acquitted, so never got to prove it.

0:40:34 Lydia: It goes into like the evidentiary hearing of what I guess discovery and all of that in advance of the hearing with Abrego Garcia, do you do you anticipate and I know this isn't the case we have on hand, but just since we're there, I might as well ask the question. Do you anticipate that if things come out as part of discovery, like Ábrego García's council is going to find ways to incorporate as much of that as they can in following motion? So like the public can see that, too, because I feel like that's important to be shared, like what the government would do to people.

0:41:09 Matt: Those are all going to be exhibits. I'm sure there's going to be great emails, and they're going to have to bring in, obviously, witnesses and cross -examine them with their intentions and how they came up with these charges. And I think some really bad stuff might come out because we already know the people that they were pushing. Sorry, this is a busy day in Boston.

0:41:20 Lydia: Is everybody getting into it during happy hour?

0:41:28 Matt: This we don't even have happy hour. It's illegal here.

0:41:30 Lydia: Really? Really?

0:41:31 Matt: Yeah.

0:41:31 Lydia: Because Bostonians can't hour.

0:41:31 Thomas: They can't be trusted with happy hour. That's fantastic.

0:41:35 Matt: We're just not that happy.

0:41:36 Lydia: Crazy kids.

0:41:37 Matt: It's actually because it's a college town. There was actually a really well -publicized death of a woman in the 80s that was drinking dollar pitchers or whatever. And decided that they can't trust college kids with happy hour. So you can get 10 cent wings, but you have to pay a regular price for beer. There's a great opportunity in the Avery Garcia case to really build a record. The judge seems to be taking this very seriously about the medical prosecution. And I just

0:42:00 Thomas: The break of Garcia. Yeah okay yeah you would hope yeah that's it's literally the most of that like can'T think of a more that so if that doesn't earn it what does they they they mistakenly deport him and then they're like well okay we were forced to bring him back well that's good because just so happens we've got this indictment congrats then he tweeted it what's Blanche did, right? Welcome back or something like that.

0:42:04 Matt: It's an extreme case. Right. No, that's the, I mean, yeah right.

0:42:28 Thomas: It's like sure, dude.

0:42:28 Matt: Here's your charges. And of course, just to remind everybody, they pressured I think at least two or three people who were facing deportation to El Salvador to testify against him, that are not credible. This case is going to fall apart, but we'll be watching it. But anyway, I'm usually very skeptical of people saying they're being vindictively and selectively prosecuted.

0:42:47 Matt: But we're seeing a lot of examples of it in the Trump administration, and I think he had every right to bring this. I thought it was well -written too. So we should should talk about the other things that happened before trial. Is filed August 27th, and stuff is pretty much done by the end of October, and they're on to setting the trial for the beginning of November.

0:43:04 Lydia: So fast.

0:43:07 Matt: Is kind of an interesting thing because I've never seen this done before, but sure you've seen it in trials sometimes where they have that white noise machine that they turn on when the parties are talking.

0:43:15 Thomas: Yeah, yeah. Yeah, happened a lot in the Lotawful movies we did with Frazier's dad. I love that one where a Matlock or was that a, I it was great I loved it because he turned out to be the bad guy sorry to spoil whatever movie I can't remember from the 80s and he was the judge and the bad guy and so but it just happened to be what is not important or related to anything but it's the one rare time I saw that in a movie where like every time they go up to talk to him you turn on the little machine wonder if anyone ever just falls right asleep because they're used to like they have one of those for falling asleep no just hmm

0:43:21 Lydia: Crane. Was a movie. That That was a movie. Right.

0:43:42 Matt: It's a great comic. Yeah, this motion, they actually call it a husher. I've never heard it called that before. Court was using it during voir dire. Now, we don't have the transcript for the voir dire, it might have been interesting, but I didn't think it's worth paying for. The verdict was not public. The judge actually turned on the husher through the whole thing, understandably, because this is going to be a very public trial and maybe you don't want everybody to know everything about the juror's business. Actually filed a motion for public trial after this when the huscher was used, and he said essentially this was no longer a public trial. But this is an interesting argument because the case law on public trial is very, very good for defendants. Basically, if you shut the the courtroom or any portion of the courtroom for any period of time during the trial. And there've been any number of instances, including one from Eileen Cannon, pretty real one -on -one judge stuff. Yeah? You don't shut the trial?

0:44:30 Thomas: Yeah. I going to say Eileen Cannon. She ineptly did that, right? And blew a whole case.

0:44:39 Thomas: But when you haven't gone through Judge 101, because you're a totally incompetent political appointee, yeah, that's what happens.

0:44:43 Lydia: Incompetent. Yeah.

0:44:46 Matt: I thought this was kind of a creative motion. Never heard of this being used this way, but they said essentially that using the husher during jury selection in this very public case constitute a partial courtroom closure and that they should actually start jury selection over again because And the judge said that would be... Well, he said it'd be a drastic measure, and he denied that motion pretty quickly, but that

0:44:59 Thomas: Did that go? That's one of the things you can kind of preserve in case on appeal if they had lost kind of thing, maybe.

0:45:10 Matt: Right. That's a real structural error kind of thing. If you can prove that, it's a very solid thing. So worth preserving. But again, just because we have such a dearth of pre -trail litigation before this case, I thought I'd mention it. Otherwise, what we're going to be going into the actual trial date. Now, the dates that we have transcripts for are November 4th and November 5th, which are almost all of the trial. There was a little bit on November 3rd. Arguing a bit about jury instructions. And we're going to summarize how the jury instruction argument went and what they ended up with. So when we come in on the transcript, we're gonna be starting in pretty much on the action. There's gonna be a little bit of back and forth about setting up some of the pretrial stuff. But we're pretty much gonna

0:45:12 Lydia: That's fair.

0:45:47 Matt: So it's going to be a good time. The openings are very short, but we still will have a good time going through them, I think.

0:45:51 Thomas: Hoping the closings aren't as long as the Trump one. Dear god remember that holy crap yeah

0:45:56 Lydia: Patrons, if you guys are patrons and you haven't listened back to the Trump trial and you really like my voice, I speak for about four hours alone. It was very long.

0:46:03 Thomas: Because yours was forever right mine was long and then they're like hold my beer hold my gavel

0:46:10 Lydia: Mine, I think, seriously was three and a half to four hours by the time I was done with it.

0:46:14 Matt: Mercifully, both openings and closing are relatively short. And the openings are really short. And opening is very short. There's not that much to say. I mean, it's, and they're, they're just great. I mean they're both really good openings and closings, I think. Really kind of the kind of thing that maybe the Trump could have learned from, you know, keep it a little shorter.

0:46:28 Matt: But to be fair, of course, Donald Trump was being selectively and vindictively prosecuted under a statute that of course is never used, just because he was running for president. So I guess you have to spend a lot more time talking about that. And just to wrap things up here, we've got the attached to the pre -trial statement with the witness list. And we've discussed before, there's only two witnesses ultimately going to be called at trial, but the government was anticipating and reserving the right to call a number of different law enforcement officers who participated in this case. Obviously, only Gregory Larimore, the actual V1, and Detective Dana Henry is also involved in the arrest, will be testifying. And then the defense reserved the right to call Sean Dunn and then someone named Kenneth Blanchard, presumably somebody who was an eyewitness who was with him, with a number of other eyewitnesses and someone they called a reader or a summary witness. And then, the I thought was interesting. There's only an exhibit list for the government. The defense did not put an exhibit risk, and this is going to become relevant because the defense is going try to show some exhibits. So, we'll talk about how that happens. The most part, the Exhibit List is extremely predictable. It's just body cam footage and social media posts and cctv footage so

0:47:27 Thomas: On give me a reconstruction of the sandwich which like give me you know this

0:47:31 Matt: Autopsy

0:47:32 Thomas: Is what we recovered best that our experts could say then we get voir dire expert voir dire for like the sandwich expert how long you been working in the sandwich industry yeah I think this is a good expert all right we'll we'll uh we'll allow it this is this is good sandwich expert here so

0:47:34 Matt: I don't want an autopsy

0:47:43 Lydia: Ballistics.

0:47:41 Matt: Right yeah yeah yeah well that's pretty much it so this is again this is I think some of the has to be the shortest pre -trial motion practice ever before a federal criminal trial, at least any kind of notable federal criminal trial. So I just thought it was interesting to dig in just over the course of those months. And that's all that happened. A few more things are going to be resolved kind of on the cuff in the transcript that we're going to hear. But for the most part, the major legal arguments are going center around how much of the statute the jury can hear about in the jury instructions and how much they can rely on in their openings and closings in the way that they argue this.

0:48:20 Thomas: When next we meet we're gonna be hearing we're gonna be here in transcript stuff now recording the whole thing but I I assume we're not going to like play the whole thing. I wonder how are we going to handle that?

0:48:25 Matt: Reenactments. Assume you're going to release a supercut for patrons, right? If you

0:48:37 Thomas: I guess that's what we did. That's right. So for patrons can get the whole dang trial, the whole shebang. And then for the show, for Matt's purposes, Matt will tell us what he wants us to play for everybody. So that'll be fun.

0:48:39 Lydia: With the closing arguments, that's what we did. Yeah? Yeah.

0:48:52 Matt: Will. There's some fantastic stuff in this transcript and, you know, I really can't wait, but I'm glad we got through the preliminaries today.

0:48:58 Thomas: Awesome. Well, I can't, we're going to get to work. We're going going to get to work immediately.

0:49:02 Lydia: Your mouth is watering. Yeah. It's like I can taste it. It is so close.

0:49:07 Thomas: The sandwich trial is so close. I can almost taste it. Oh, anyway, I'm starving. Let's, uh, let's break. Thanks so much, Matt. Thanks everybody for listening. And, uh. As always, patreon .com slash gavel pod. If you want to hear the goodies and the whole, the whole shebang, uh it's going to be a lot of fun. So we'll see you next time, everybody.

0:49:25 Lydia: Gavel out.

0:49:26 Matt: Adios, Gabaleros.

0:49:50 Lydia: Have you heard my gavel?

0:49:53 Matt: That's a good gal. Is that an actual gavel?

0:49:54 Lydia: It is an actual gavel.

0:49:55 Thomas: Kind of, it's, yeah, it'S a little, it' s sort of a placeholder gavel that I got her you know it's like all right this is yeah

0:50:00 Lydia: It has not yet engraved or anything.

0:50:02 Thomas: And also I think I need a better I the gaVEL stone I don't know what's the thing what's the thing under it isn't there a name for that that

0:50:09 Matt: Has to be some weird name.

0:50:10 Lydia: That is, yeah, Yeah.

0:50:11 Matt: There's like some Latin name for it.

0:50:10 Thomas: I swear there's a I swear their name for but anyway

0:50:14 Matt: Have a gavel myself. We could just sit around gaveling.

0:50:15 Lydia: Dang.

0:50:16 Thomas: Jeez, I'm the only gavel -less fool over here. Feel underdressed.

0:50:21 Matt: You got to get gaveled.

0:50:22 Thomas: Yeah, all right, person forgot to put the grenade in my sandwich so No, I heard like a rumble. Was

0:50:30 Lydia: It was no going again

0:50:32 Matt: Now we got a plane.

0:50:34 Thomas: It feels like it. Or it sounds very near. It sounds like a boo.

0:50:39 Matt: Oh, wait, wait. I'm sorry. It's my Apollo. Okay, hold on. I forgot I had this thing on. No, this thing literally just vibrates. That's what it does.

0:50:45 Thomas: Your phone from the 80s?

0:50:47 Matt: Yeah, it's like a sensory... I don't know how to explain it exactly.

0:50:52 Thomas: Gotcha. Okay.

0:50:52 Matt: Yeah. For sensory stuff, I've been stressed out today.

0:50:54 Thomas: Enough. Yeah. Sure.

0:50:56 Matt: Let me throw this away here. I totally forgot I was wearing it.

0:51:00 Thomas: You don't have to trash

0:51:01 Matt: Just toss it. Enough of that.

0:50:58 Lydia: Well don't throw it away mm