Advisory Opinions - Hearsay and the Right of Defendants

Episode Date: April 19, 2021

On today’s episode, Sarah and David walk us through Monday’s Supreme Court orders and oral arguments before diving back into the mailbag, where they respond to listeners’ questions about expert witnesses, sanctuary cities, vaccine passports, and immunity grants. Plus, David revises and extends his Friday Dispatch Podcast thesis on culture’s distortion of masculinity. Show Notes: -Monday’s Supreme Court orders -Sanchez v. Mayorkas -Hemphill v. New York -Jacobson v. Massachusetts -Friday’s Dispatch Podcast episode Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. We're going to talk about a number of different things today. We've got some Supreme Court updates from Sarah. We're going to go to the mailbag. We've had a lot of really good questions as a result of legal current events that we've been talking about, and this will allow us to fill in some holes in some of the things that we've talked about. And then also, I have appealed to the court of Sarah Isker, and she has granted my motion to revise and extend

an answer I gave on the Dispatch podcast last week. Last week, we had Kristen Dume on to talk about Jesus and John Wayne and talk about masculinity, Christian masculinity, its impact on politics. It was a great podcast, almost as good as an Advisory Opinions episode, so I'd encourage you to check it out. And Sarah sprung a question on both me and Kristen at the very end of the podcast about models of masculinity portrayed in pop culture. And I just fumbled the ball. I just want to defend myself real quick. This was a book called Jesus and John Wayne about how the evangelical movement had made basically John Wayne and Mel Gibson's

William Wallace examples of masculinity that had pervaded the politics then of the evangelical movement. It seemed like the most obvious question in the world. If you're criticizing John Wayne and Mel Gibson's William Wallace from Braveheart as pop culture examples of masculinity. What are good examples of masculinity? And the two of you were like deer in the headlights, had no clue about that question, even its potential to come up, which I found as bewildering as your failure to answer. Well, I had one good answer. Thomas Moore from A Man for All Seasons.

That's a very good answer, but there's so many others. I don't know. Like I said, you handed the ball and I fumbled in the backfield for no reason. So I'm getting an opportunity to revise and extend. Thank you, Justice Isger. You're welcome. But before we get to that, that's going to be at the end. Sarah, some Supreme Court updates. Before we get to that, that's going to be at the end. Sarah, some Supreme Court updates. So David, first up, the Supreme Court granted cert in a Sixth Amendment case, which is, of course, super fun.

So I just want to read the Sixth Amendment to you. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. It's not about that. By an impartial jury of the state and district wherein the crime shall have been committed. It's not about that. Which district shall have been previously ascertained by law and to be informed of the nature and cause of the accusation. It's not about that. To be confronted with the witnesses against him. It is about that. And to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. So by the way, back in my memorizing the Constitution days, you sort of have to have a general sense of what each amendment was about. The Sixth Amendment is your trial amendment. And they kind of go in order, right? Fourth Amendment is police search and seizure.

The Fifth Amendment is your right not to incriminate yourself, sort of that pre-trial-y time. And the sixth amendment is your trial. So kind of as the seventh, the eighth amendment is the punishment phase. So they kind of go in order for those who are trying to memorize which amendments do what. Four, five, six, seven, eight. You can, you're walking through the process. So this is a sixth amendment case on confrontation. You're walking through the process. So this is a Sixth Amendment case on confrontation. Now, David, there is a topic that we have not talked about in the Rules of Evidence, and it's a fun one. Do you want to guess what the topic is? Hearsay?

It is hearsay. So folks, you can basically spend an entire semester of law school on the hearsay rules, and I'm going to explain why. So here's what hearsay is. It is an out-of-court statement made in court to prove the truth of the matter asserted. These out-of-court statements do not have to be spoken word. They can be body language. They can be documents. word. They can be body language. They can be documents. The idea behind hearsay is to prevent basically gossip from being offered to convict someone. So let's break this apart a little bit. To prove the truth of the matter asserted is like, you'll hear me say that on this podcast

from time to time because it's this real legal term, but just focus on what that's saying and it'll probably make sense. It's the statement is actually about the words in the statement, not about, for instance, how they said the statement or something else entirely like, oh, well, that statement was printed on a document covered in blood and the blood was the victim's. Well, you're not reading then the words on the paper for the truth of the matter asserted in those words. You're reading the words because that's what was written on the paper with the victim's blood on it or something. Okay, David, do you happen to know how many exceptions there are in the federal rules of evidence to hearsay. Without Googling.

Without Googling. I want you to guess how many exceptions there are. Oh, man. You know, there was a time, Sarah, there was a time when I could have just not only told you, but quoted them. I hope there was never a time you could quote all of these. Well, before you go into,

well, one of the things you do before you get into a trial is you go back and you dive into the federal rules of evidence. I don't care if you just did a trial a few months before, you go back and look in the federal rules of evidence. Anyway, I don't know, five. So my memory, if you had asked me this, I would have said six because I thought I remembered in rules of evidence doing six exceptions to hearsay in my like outline of notes for the exam.

David, there are 23. That's pitiful. That is pitiful. Oh my goodness. Okay. Listeners, it's been a while since I was in court. I want to give you the three main ones and then the three lesser main ones. So present sense impression. You can get a hearsay statement in if it describes or explains an event or condition made during the event or immediately after it. So it's your present sense of what's going on. That is different than number two, but it's your present sense of what's going on. That is different than number two, but it's closely related, which is excited utterance. This is a startling event.

And the declarant, you know, we'd normally call them probably a witness. The person who made the statement made the statement under stress. Now it's weird. You're probably thinking like, wouldn't that be the opposite? Like we want fewer of those statements in, but remember, we're trying to make sure the statement is true. And the idea is if you're under a lot of stress and you blurt out something, we have decided under common law, basically that that makes it more likely to be true. So for instance, um, someone shoots at you, David, and the police show up and you're like, Bob went that way. That might be an excited utterance. Right. Number three, then existing mental, emotional, or physical condition. This is a statement that is not offered for the truth of the statement,

but rather to show the state of mind, or physical condition can be an exception for instance testimony that there was a heated argument can be offered to show anger not for the truth of the matter asserted in the statement um you know david were you angry that day no i wasn't and then i bring on a witness it's like what did david say that day uh he said I wasn't. And then I bring on a witness. It's like, what did David say that day? He said he was going to kill me. Well, that would be hearsay, but you're not bringing it on that David was going to kill you.

You're bringing it on to show that David was clearly angry. By the way, for those who are lawyers listening to this, I know that these statements might not be admissible for some other reasons. There's also medical provider for purpose of

diagnosis and treatment, the reputation of the person or land boundaries, and documents like business records, government records, church records. This can be plea deals, for instance, things like that. Okay. So there's also then, of course, as we mentioned, a zillion others. So what's at issue in this case? First of all, you can see why I find the Sixth Amendment so much fun when it comes to the Confrontation Clause. All right, here is the petition for cert that was granted. The Sixth Amendment guarantees a criminal defendant's right to be confronted with the witnesses against him. In basic terms, the Confrontation Clause requires the prosecution to present its evidence through witnesses who testify in court subject to

cross-examination. To enforce that requirement, the clause generally prohibits the prosecution from introducing, quote, testimonial evidence at trial unless the witness takes the stand. A testimonial statement is one previously made in a judicial setting or to law enforcement authorities with the primary purpose of establishing or proving past events potentially relevant to later criminal prosecutions. So, David, that's what this case is about. And again, remember, all of these hearsay exceptions are about how truthful we think the statements are and how important cross-examination is. So if a witness testifies at a previous trial where your defense attorney did not get to cross-examine them,

well, that's not very fair. We can't just introduce that testimony when then you don't get to confront that person and ask them follow-up questions. Really obvious. Definitely can't come in. No exception to the hearsay rule that even comes close to applying to that. Now again, remember there was the exception for like if they take a plea deal, you can enter the plea deal itself, like a government document on that. This is witness testimony at a previous judicial proceeding. The confrontation right, however, is not absolute. As with other constitutional rights,

the accused may waive his right to confrontation, intentionally relinquish the right. So, for example, this is a really obvious one. A criminal defendant can intentionally relinquish that right when they intentionally prevent a witness from testifying against them. So you threaten the witness, even if you kill the witness, we're gonna use that witness's previous testimony. You don't get the right to cross-examine them when you're the reason that they can't testify today.

But what happens, David, when the defendant opens the door to the testimony, as in they use some of the testimony at that previous trial? Can the prosecution then use other parts of the testimony, even though now you can't cross-examine the witness on those other parts of the testimony? That's what's at question here. And I think that's a really interesting case. The reason that the court granted cert, as I have mentioned many times, is because of a circuit split. You have a three-way split this time, which I think is extra fun, of course. Normally we have two-way splits, but sometimes we have three or more. more. So to walk through it, one split is that the defendant never opens the door, even if they introduce part of the testimony. Basically, the tie goes to the runner every time. Even the

defendant can use the testimony, the prosecution can't, unless the witness will actually retake the stand and the defendant can cross-examine them. This to me sounds right. This is a constitutional right, David. You can't overcome it with rules of evidence, doctrines about hearsay. Constitution trumps all of that. But only three jurisdictions hold that right now. Number two version of these events, the defendant opens the door to testimonial hearsay when they introduce a testimonial statement by the same witness. So if the defendant offers witness A's testimony, the prosecution can offer other parts of witness A's testimony, confrontation clause, gone.

And then C, three jurisdictions hold the defendants open the door to testimonial hearsay whenever they create a misleading impression at trial. That to me is bonkers town. It's bonkers town in the Black's Law Dictionary. It is. So in this case, so number one, you can introduce the witness's testimony. The prosecution can't countermand that with additional parts of the testimony. Number two, if the defense introduces witness testimony, the prosecution can introduce testimony from that same witness. Fine. Number three is that the defense, you'll notice, doesn't even have to introduce the witness testimony

themselves. If they open the door through any avenue, the prosecution can then use witness testimony that would otherwise be hearsay. You don't get to confront that witness if you created a quote misleading impression in whatever argument you made. What? That is no way, Jose. And the Supreme Court, I predict picks number one, but I am very certain they won't pick number three. You know what happens when bonkers town doctrines,

when bonkers town arguments are brought to the Supreme Court, it then invokes, yes, the gnaw dog doctrine. Yes, gnaw dog. You don't get to overcome the Sixth Amendment's guarantee to confront a witness against you

because you, quote unquote, created a misleading impression according to the judge and the prosecution who can then introduce what a witness said at some trial that you didn't get to cross-examine them at? Nah, dog.

Yeah. No, that's a perfect... And we haven't invoked that doctrine in a while. It's time. It's time. Anyway, so that's the big order grant today. There were some order denials with Sotomayor writing in dissent or writing that she hopes they take a future case even though she agrees this one wasn't the right

case. One of those was on physical searches of prisoners, anal cavity searches, vaginal cavity searches, and what the standard is. Is it reasonable suspicion? Is it something higher?

And another one was an ineffective assistance of counsel claim when the defense attorney did not object when his defendant had to reenact the murder with leg shackles on. And there was no objection. No objection. Oh, man. Yeah, this is a death penalty case. I mean, this is a death penalty case. Yeah, you and I have talked about this before. Not this case, but like, just, it's upsetting.

Yeah, yeah. Okay, then we did not get the Obamacare opinion today. In fact, we got no opinions today, but there is an argument going on. There's actually two arguments today, but one of them is kind of fun. This is whether someone who comes to the country illegally in this case from El Salvador in the nineties, but then gets TPS status. That's temporary protected status, usually due to a natural disaster in your home country. In this case, El Salvador, I believe, was hit by a hurricane in roughly 2001 or so. So can they now get lawful permanent residence status

because they had temporary protected status? Or does the fact that they came here illegally and were not authorized entrance into the country bar that? So in this case, Mr. Sanchez had worked as a mechanic in New Jersey. He has a son that was born in the United States and who's a United States citizen. In 2014, he applied for permanent residency along with his wife, but the government's arguing that because he entered illegally in the 90s, he'd never, quote, been admitted to the United States. The Third Circuit upheld that. Aliens can apply for residency provided, quote, they were inspected and admitted or paroled into the United States. Well, if you came illegally in the first place, even if you were then

given temporary protected status in 2001, they're arguing you were never actually admitted into the United States. You were just given a status in the United States under this TPS doctrine. So that is being heard right now. Again, we'll let you know how it comes out. If nothing else, it's probably time to give these people some certainty in terms of their status and not leaving them in limbo. This guy applied in 2014. And a quick fact check on myself, it was not a hurricane. It was an earthquake that hit in 2001. That's a fast fact check. I try to fact check in real time. Were you fact checking as you were speaking?

Yes. I could never do it. I could never do it. I can only do one thing at a time, Sarah. Just one thing at a time. All right. That's my Supreme Court update. Nothing too sexy, but quite a bit of, you know, there's some ankle showing. Some good times. I don't know about that. I don't think there is even really any ankle showing. Oh, sad. Yeah. No. Well, you know, sooner or later, we're going to have one of the two. Well, I'm not going to call Obamacare an earthquake case because I think we all know how that's going to come out. I feel like it's such a foregone conclusion that I'm actually a little surprised it hasn't been released yet.

But then Fulton versus City of Philadelphia and the fate of Employment Division v. Smith. That's probably one of the... And then we're going to be looking to see about potential cert grants that could be earthquakes. So we've got... Let's put it this way. There's going to be ankle showing in future episodes, just not this one. Hey, I think this confrontation clause case is cool because to me it seems very obvious

that hearsay is like a legal doctrine, whereas the confrontation clause is in the Constitution. You can overcome hearsay rules with various other doctrines and that's fine, but it seems very obvious to me that if you can't get something in because of a constitutional bar, that an opening the door

doctrine exception to hearsay should not then trump a constitutional bar under the confrontation clause. I think that, that to me, like that's an ankle right there. Okay. Well, I mean, fair, fair enough, fair enough. But let's move on to the mailbag. And we've got some good questions. And some questions on things that I want. This one is, I think, a good question because if you haven't been involved in a court case or if you don't follow litigation closely, I can see exactly where this question is coming from. And I've got an album side on this and boundless cynicism,

Sarah. So are you ready? Yes. Here's a question. I'm a political science major and pre-law minor at university. I'm a huge fan and incredibly thankful for the work you do. Thank you. In the past few weeks, I've been watching the Chauvin trial in my free time. Something that's been on my mind is the use of expert witnesses. It surprised me that when both the prosecution and the defense called on expert witnesses that seemed to contradict one another. One claims the restraint was a choke. The other says there was no possibility of choking. One says drugs played no part.

Another says drugs are the only important factor. It aggravates me that there doesn't seem to be any unanimity in this field. Is this common in trials? Do expert witnesses frequently contradict one another? What is the point of them if they do? All right, this is a great, this is a really good question for a couple of reasons. One, yeah, do expert witnesses frequently contradict one another? All the time. All the time. And virtually, well expert witnesses frequently contradict one another? All the time.

All the time. In virtually, I'm not going to see every case, but in most cases where one side calls an expert, the other side calls a competing expert. It's just the way of the world. Now, the experts will disagree to varying degrees. And so, for example, you might have an expert witness. In one case I worked on, we had an expert witness in computing lost profits from a business deal gone bad. And both of them agreed that there would have been some profits lost had the deal gone bad. They disagreed as to how much. You have expert witnesses on competing medical explanations for various maladies. You have competing expert witnesses on use of force.

You have competing experts on virtually everything. And there was a rather cynical statement that was not original to him, but I learned from him that one of the litigating senior partners used early in my legal career, David, you can find a PhD who will say anything. And there's a couple of reasons for why, and this actually gets to something interesting in not just law but public policy. We're constantly hearing people say, look, I'm just following the science. I'm just following the science. Every litigator worth his salt who's litigated over scientific questions says, oh, really now? Who's science? How well supported is it?

And is there any meaningful dispute in said science? Because this is something that is adjudicated constantly around the country is competing experts offering competing scientific explanations where there should be just one. There should be just one that is true. And there's a couple of interesting aspects to this. One of them is, you know, sometimes the science is actually very clear. Sometimes one side or the other actually does have a really hard time finding an expert. And sometimes the disparity and the mismatch in the scientific testimony or the expert testimony is plainly obvious so that you can really say the science says. But it is not nearly as common as you might think that key scientific questions have an obvious,

easily supportable, slam-dunk answer to them. And this is not just in use of force. This is not just in cause of death. This is in all kinds of cases, especially cases involving environmental issues, cases especially cases involving environmental issues cases involving as i said earlier medical issues it is incredibly common and one of the things that we do in our system is we'll get two phd phds up there or a battery of phds versus a battery of phds and then we ask 12 people who were just sworn in you know out of their homes and off the street. And, you know, a few weeks before or a few days before, adjudicate this, decide this. And it is often incredibly difficult. Sarah, any thoughts? Well, just to note that, you know, at the most basic level of his question, the answer is,

it's up to a jury to determine the credibility and to weigh the credibility of each expert against each other and to decide which one they believe. That's why people do it. That's why you look for the most credible expert. And that's why juries can in a way be so unpredictable because you don't know which one they're going to find more credible or why they'll find someone more credible. You don't know which one they're going to find more credible or why they'll find someone more credible. You and I talk a lot about persuasiveness at oral argument and lawyers' persuasiveness. And persuasiveness, to some extent, goes to credibility. Witness credibility is even more loosey-goosey. I guess it's just more variable depending on why they're an expert witness and what their expertise is supposed to be.

Are you more credible if you just throw a bunch of facts and doctrines at the jury to show that you're an expert, even if they don't understand what you're saying? Are you more credible if you sort of hold their hand and walk them through it, even if it makes you sound less like you know way more than they do? even if it makes you sound less like you know way more than they do. I mean, these are the sort of decisions you're making with your expert witness, all trying to figure out what a jury will find more credible than the other guy. And, you know, correct me if you think I'm wrong, David, but I think a lot of juries are basing this on stuff that has nothing to do with the expertise of the witnesses and a lot to do with their demeanor, body language, whether the jury likes them. Yeah, I agree with you. Although I will say this, I will say that where I have seen

experts shine or collapse is in cross-examination. What is it that the, what's the saying? Cross-examination is one of the greatest truth discovery devices ever devised by, you know, human minds. And this actually gets to something that's an important social cultural issue. testimony presented through YouTube clips, presented through cable news hits by people who would appear to have some expertise. Maybe they've got an MD attached to their name. Maybe they've claimed to have studied epidemiology. Maybe they've got something that looks like qualifications. And what we're getting is a lot of flow in of what looks like expert testimony with no cross-examination. And that's where I think a lot of misinformation has gone viral,

is that you have this sort of like what you would call the direct evidence brought in, in support of whatever position the seeming expert has, which is often supported by an awful lot of language that is not really comprehensible, but seems sophisticated and reasonable, especially if delivered in a compelling way, with no cross examination at all, no real examination of the facts or the ideas. And this even occurs on cable news news where essentially you have one cable network brings its experts up and another cable network brings its experts up.

And there's no real rigorous cross-examination of said experts. And I think that's one area where, the older I get, the more confidence I have in our legal system when both sides are supported by or represented by competent counsel is this is a good way to discover truth. We figured out a pretty good way to discover truth in complicated situations. Not perfect, but a pretty good way. And when it comes to, especially when contrasted with the way that we try to discover truth in other contexts,

like say by watching the news. Fair enough. All right. Your question, Sarah. All right. Coming in the mailbag. Hi, I'm a subscriber and listener reader of the dispatch. I have a question for the advisory opinions folks. There is a city ordinance up for a special election in May 1st in Lubbock, Texas, the town that I live, to make it a, quote, sanctuary city for the unborn. This person helpfully included a link to this ordinance. It is only eight pages long, he notes. I would love to get some feedback on this from Sarah and David's perspective. I am torn on how to vote, though I have my leanings. I was curious what they felt the merits of such an ordinance would be and the possible consequences. So it is only eight pages. I won't read it all to you. But this is sort of

the argument. The city council of Lubbock finds that the state of Texas has never repealed its pre Roe v. Wade statutes that outlaw and criminalize abortion unless the mother's life is in danger. pre Roe v. Wade statutes that outlaw and criminalize abortion unless the mother's life is in danger. Therefore, the state of Texas continues to define abortion as a criminal offense, except when necessary to save the life of the mother. In Texas, murder statutes define the crime of murder to include any act that intentionally or knowingly causes the death of an unborn child at every stage of gestation from fertilization until birth. Therefore, it shall be unlawful for any person to procure or perform an abortion of any type and at any stage of the pregnancy in the city of Lubbock, Texas. It shall be unlawful for any person to knowingly aid or abet abortion that occurs in the city of Lubbock, Texas.

And public enforcement is the criminal side of this, applying that in Lubbock. And then there's a private enforcement section. Any person, corporation, or entity that commits an unlawful act as described in this section shall be liable to each surviving relative of the aborted unborn child for compensatory damages, including damages for emotional distress, punitive damages, and costs in attorney's fees. There is no statute of limitations for this private right of action. So that's the general gist, right? Criminalizes abortion and creates a civil penalty as well. So David, I'm curious about your thoughts, but when I first saw this,

I thought calling it a sanctuary city for the unborn is a clever rhetorical device, but totally misses what the sanctuary city battle is actually about. So sanctuary cities, when we talk about immigration, or even on the right when we talk about sanctuary cities for gun owners, for instance, sanctuary cities refer to the wild amount of discretion that prosecutors have not to bring cases. You have prosecutorial discretion, limited resources. And so prosecutors can say, obviously, we're not going to pull over and arrest every single person who speeds over 20 miles an hour in this city. We're going to put 5% of our resources to that,

and we're going to put 95% of our resources to violent felonies, for instance. In that same line of reasoning, they can say, we're going to put all of our resources that we have that are limited to violent felonies and A, B, C, and D. And we just don't have any resources left to arrest people who are here illegally or to turn people over to the Department of Homeland Security in some cases. And again- Or there's another form of it,

which is to simply say, our state and local resources will not, we will not allow our state and local resources to be used to enforce this particular federal law. So we're not going to, we're not going to, we're not going to cooperate. We're not going to interfere with federal authorities enforcing federal law, but we're not going to be handing people over, for example, to Homeland Security. And that's a little different because that goes to anti-commandeering. The federal government actually cannot force states and localities to use any of their resources to that. So yeah,

on the one hand, you have prosecutorial discretion about their own local ordinances. And on the other hand, you have this anti-commandeering doctrine that says that the feds can't force you to use your state and local resources to enforce federal law. can't force you to use your state and local resources to enforce federal law. The reason that this has become so sticky is, A, prosecutorial discretion has some limits, right? As we found out in DACA and DAPA, it has to actually be discretion for individual cases, not really just a blanket, we don't enforce these laws anymore. And on the anti-commandeering side, while it is obviously true that states don't have to use their resources to enforce any federal dictate, they also can't, as you said, David, they can't unhelp the feds either.

They can't make the feds' job harder. And so what the Department of Justice was arguing was that in some of the ways that the state and locals were refusing to, quote, enforce the laws, they were actually trying to undermine federal enforcement of the laws. For instance, these 48-hour detainers, if the locals picked up someone who was an illegal alien and was holding them, the feds required 48 hours notice before they would release them so that the feds could come pick them up and put them in deportation proceedings. The local jurisdictions that were in question here said, you know what? We're not going to do that. We're not going to give you the 48 hours notice that would run afoul of this commandeering thing. And the feds said, no, that's not a

commandeering thing at all. There were many, many versions of this. Okay, so why do I bring all of that up? Because you will notice it's all about not enforcing things. Right. This, the sanctuary city for the unborn ordinance that Lubbock is talking about in the special election on May 1st, is totally unrelated to what sanctuary city, prosecutorial discretion, anti-commandeering, federal enforcement, totally unrelated. They basically just came up with a cute term. So obviously, I think this is pretty obvious. This is wildly unconstitutional. The state of Texas, it is true, did not repeal its law. It is also true that they don't have to. That's how that works. Once the Supreme Court holds something to be unconstitutional, you can leave it on your

books all you want, and it's still unconstitutional. Now, if you want to get super technical, and I think the city of Lubbock does, their argument is, yes, the Supreme Court held that the law in question, the Texas law in question, if I remember correctly, in Roe v. Wade was unconstitutional against Roe. And so basically, it's a little bit of the Jackson, like they made their law, let them enforce it, like every single person would have to bring their own lawsuit. Now this doesn't really get into as applied versus facial challenges, David. So as applied means that the law is unconstitutional when it applies to David, because David is in this particular circumstance. Facial challenges mean that it would be applied to anyone. It's the law itself that has the problem, not the law as it applies to David in his particular circumstances. Even so,

when you bring a case in a very technical sense, it only applies to the person who is before the court. But we don't make everyone do that because every court will just find against you. And they'll at some point sanction you, et etc. That's Lubbock's argument for this is that they're just going to do it and you can continue to find it unconstitutional. The question also from the listener was, okay, fine. I get on the criminal side that the Supreme Court precedent holds, but what about the civil? Yep, same deal. You can't get around abortion rules just because you make it a civil penalty instead of a criminal penalty. This Lubbock thing is wildly unconstitutional, kind of dumb,

and calling it sanctuaricity for the unborn is rhetorically annoying to me because it entirely misunderstands what our actual legal debate over sanct cities is about and rant. David? Yeah. I mean, so two things. One, if they're passing this to challenge Roe, which is what a lot of states have done, for example, with heartbeat bills, they are under no illusion that they have figured out a loophole in Roe. They're passing them specifically to challenge Roe.

Fine. passing them specifically as a part to challenge Roe, fine. If you think you've got a loophole here by naming it a sanctuary or making this particular argument that Roe only applied to Roe, well, that's ridiculous. The way I look at this whole sanctuary thing is I look at it like this. You've got sort of two poles, two legal polls, a North Pole and a South Pole. And on the, let's say the North Pole where the local or the state or the local authority is at its apex versus the federal government is in the commandeering, anti-commandeering. If the state or federal, the state or local government can generally say to the federal government, you cannot use my resources to enforce your laws.

That's the anti-commandeering doctrine that we've talked about. That's where, if you want to use the term sanctuary, whatever, that's where you're generally going to be the strongest. The South Pole of that, the polar opposite of it, is nullification. Okay. The south pole of that, the polar opposite of it, is nullification. So that's where you say to the federal government, not only are you not going to be allowed to use our resources to enforce your law, we're not going to allow your law to be enforced at all, the federal law to be enforced at all in the state or the local jurisdiction. That's more nullification, and that goes against the supremacy clause. That is unconstitutional. That's flat out lawless under our constitutional system. So this statute is quite clearly a, the statute's quite clearly on the nullification side of this. Now, prosecutorial discretion, which you, what you're

talking about, Sarah, can go between the poles. I mean, it can go sort of more towards, well, it really doesn't have anything to do with commandeering, but if it's true prosecutorial discretion, person by person determination, it's generally hands off. But if you sort of in a sweeping way say, I'm not going to prosecute at all, it's a form of prosecutorial nullification of a legislative act to essentially say, oh, you may have passed this law, but you're not getting this law enforced at all. It's not exactly the same as the state and federal conflict. But it does have, there is sort of a sliding scale there as well. The more systematic your discretion and your decision to decline prosecution is, the more you've essentially nullified a statute. And that's

where you get to the DACA and the DAPA situation. I have to say that I hope this ordinance fails because I hope that the people of Lubbock will send a message to their city council that these sort of showboaty, obviously unconstitutional, going nowhere things that are a waste of everyone's time, that the council should be doing something far more productive with its time and legal

instead of what I will call ordinance press releases, which is all this is. And it will then waste legal time. It will spend legal resources as the city insists on defending it. And a judge's time is wasted. Lawyer time is wasted. So if you're listening, people in Lubbock don't. There are plenty of statutes that are challenging Roe. There is no lack right now of legal efforts to challenge Roe. And look, hopefully the Supreme Court will give us some clarity soon as to whether that's even a realistic possibility. I mean, there's this entire background. I think they have several times, but whatever.

possibility. I mean, there's this entire background. I think they have several times, but whatever. Yeah. Well, this Mississippi SART grant, whether or not it's granted, will be interesting. All right. Ready for the next question? Vaccine passports. Yes. So, and we'll extend this a little bit. And this was a really simple question. Are vaccine passports lawful? Can a private company require a vaccine passport to, for example, for its employees or for its customers? Can the government require a vaccine passport? And here, let's extend it. Can the government require a vaccine? Let's just go all the way to the most intrusive of the government regulations. Can the government require a vaccine? And the answer to that is, as a general matter, so which government are we talking about here? The ability of

the federal government to mandate a vaccine, extremely limited. I mean, it can mandate a vaccine perhaps for federal employees, for members of the military, but to mandate a vaccine amongst all Americans, don't see the constitutional authority for that. However, what about states? What about states? There's actually a case, a Supreme Court case, and this case is something we've talked about before. It's called Jacobson v. Massachusetts, a 1905 case. And it's something we've talked before because this is the foundation of what much of what we have called, quote unquote, pandemic law. because this is the case that has been used by the Supreme Court prior to the sort of the most recent wave of precedent to say, hey, look, we're not going to step in and question state officials in the middle of a pandemic. And this was a requirement of inoculation in the case of a

smallpox outbreak. And so in that circumstance, what the court said is, yeah, the police power of the states is going to extend to a requirement of a vaccination. Now, this case, it is true, was decided well before sort of the growth of modern civil liberties law, but it has been cited by the modern court in this pandemic. the modern court in this pandemic. So I think it's safe to say that if a local jurisdiction in a pandemic, that's the qualifier, in a pandemic tried to require vaccinations, that's going to be upheld as part of the police power of the state. I mean, this is a case that, although decided in 1905, has been cited more than once in 2020. So I think that much is clear. Now, does a state have the ability to... Now, here's an interesting question, and this one might have to be tested. If a private business, I submit, Sarah, a private business can require its employees or even its customers to have vaccinations before coming in.

A state government can compel citizens to have a vaccination in a pandemic. The federal government can compel its employees and members of the military to have a vaccination. Can the state prohibit private employers from requiring vaccinations? Is that going to interfere with a private employer's civil liberties, Sarah? So I think that's the most interesting legal question of all, because I do not think there is a clear answer. And I think that we'll get quite a bit of litigation if a state actually chooses to do that. I'm inclined to think that the state wins. I'm inclined to think so too. I mean, I'm inclined to think that state judgments about juggling public health and economic vitality in the midst of a pandemic are going to be granted a high degree

of judicial deference. In fact, the same amount of judicial deference that allows the state to overcome civil liberties in requiring a vaccination would allow them to overcome private objections to refusing vaccination. Did I say that correctly? And just think of it in terms of the level of scrutiny that it would get. This isn't a protected class. This would get rational basis review.

And then the only question is, does the state have a rational basis for passing this law? And I think the answer is yes. We had a former CDC director on the Dispatch podcast who said that he would be against any vaccine passport mandates for employers because he thought it would actually backfire. He thought it would cause fewer people to want to get the vaccine if it were a mandate. Well, if you have the former CDC director saying that private employers should not have vaccine mandates and then the state passes that into law, that's kind of the definition of rational basis. Yeah. Well, you know, and this gets to a really interesting issue about law in general. And, you know, I've had a lot of people ask me, well, shouldn't we just go ahead and mandate

the vaccination? Shouldn't we just get it done? Just mandate it. And part of me says, are you sure? Are you sure that mandating it will lead to more vaccinations or will it lead to more resistance? You know, that's been in many ways, that's been the best argument about masking and mask mandates in certain areas is that it's perversely led to a sort of a popular populist libertarian uprising against, against masking itself that the mandates have i don't know i'm more skeptical of that that um but there's often a often a people draw a direct line between banning something i.e passing a law and accomplishing the objective of the ban, i.e. ending the practice. So, for example, abortion was more prevalent in 1973, both in rate and ratio, than it is now. But abortion was unlawful in most American

jurisdictions. So, bans were in place, but the practice persisted. And this is something we get into this struggle with a lot of things. We saw the struggle with prohibition. We see the struggle with the drug war. We see the struggle in a whole lot of areas. And so if your fundamental goal as a person who's seeking to protect public health

is the most number of people getting vaccinated, it's an interesting and sort of seemingly illogical reality that a mandate may ultimately end up with less vaccinations than if you just persuade people and get them to do it voluntarily, which is where I am on this question is, hey, why don't we do our best to get as many people vaccinated through persuasion as possible? We'll see where we are. And then, and only then, do we really even want to talk about whether some sort of coercive measure should be required. All right, last question. What are defendants' options when the prosecution won't offer a witness immunity? Seems out of balance since you know how they would testify and if his testimony

would help the prosecution. That's a really good question. And we saw this in the Chauvin trial. prosecution? That's a really good question. And we saw this in the Chauvin trial. Someone who knew George Floyd was asked whether he would agree to testify. He said, no, I would plead the fifth. So that was the end of that. The prosecution did not offer him immunity. I reached out to two federal prosecutors to get their answers to this. So two different points to make on this, I guess. One, prosecutors very rarely offer their own witnesses immunity. It has to be so pivotal to their case. You cannot make the case without them. The case cannot move forward. They might offer a witness immunity. Yes, you see it a lot in law and order and some other things, but in real life, it just doesn't happen very much. Yes, you see it a lot in law and order and some other things, but in real life,

it just doesn't happen very much. Second, the defense can file a motion with the court to try to get the court to order the prosecution to offer immunity to a witness. So in a case of sort of a true miscarriage of justice or something like that, you could have a motion to the court. It will not surprise you to hear that that motion is, as this prosecutor put it, typically not successful, but they can try it. So that's the short answer on that. You'll notice in the Chauvin case, the defense did not make a motion to give that witness immunity. And it's one of the, there's many examples where the government has a ton of power. Our criminal system is set up to give the defense sort of as many outs as possible, in theory, to acquit their defendant. This is one of those examples that's like, well,

the state has a lot of power, and that's one of the things in their toolkit. But I do think it happens very, very rarely on either side. And you also have to assume in a case like what he would be describing where there's a witness who will exonerate or exculpate the defendant, but he can't testify because he would implicate himself potentially in that crime or some other crime. Well, the prosecution, and I know we're going to get mail on this probably, the prosecution in general wants to get the bad guy off the street. Putting an innocent person in jail who they know is innocent doesn't really do any good. And most federal prosecutors are actually good people seeking justice, not just seeking notches on their belt. So that's some of the reason why you don't

really see this happening that often. Because if you really had this witness who was going to testify to that, the prosecution in some cases would just drop the case. Now, maybe what we're talking about here would be someone who is saying, oh yeah, I know this guy. He's a good guy. He wouldn't do that. Where were you on the night in question? Oh, I was robbing a bank. So it's like totally unrelated. It's not actually exculpatory in any real sense. Is the prosecution going to offer that guy immunity? No. Is a judge going to order the prosecution to offer that guy immunity? No. In that case, as the defense, you're sort of SOL if your guy is a criminal who is not going to offer

particularly compelling testimony on your client's behalf. Concur. Concur. Well stated. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day.

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All right. So should we move on and allow me to revise and extend justice, Isker? Yeah. So let me just set the table a little. Yes, please. We talked to the author of this book, Jesus and John Wayne. And the thesis of the book is that within the evangelical movement, the thesis of the book is that within the evangelical movement, the concept of masculinity has been distorted by American culture's concept of masculinity and that that has become increasingly militaristic and some other things that are sort of perhaps damaging to masculinity, but at least in her argument, certainly not a Christian form of masculinity or the correct evangelical form of masculinity. So I ended the interview by asking, well, what would be good examples of masculinity in pop culture? If it's not John Wayne, if it's not

William Wallace and Braveheart, what are they? And David, you have some additional answers you want to bring after what I thought was a really fun discussion about Thomas Moore, a man for all seasons being my third favorite Thomas Moore example. I think the Tudors, Jeremy Northam is incredible. A Thomas Moore masculine, you know, it shows everything. It shows him with his family. It shows him standing up to the king and it shows him being put to death for his beliefs. And then there's Wolf Hall, which was incredible BBC version of Thomas Moore's life, even though it's a much squirrelier version of Thomas Moore in terms of who they cast.

But it almost makes it better because Jeremy Northam is kind of this good looking guy. So you're sort of already rooting for him in a way. In Wolf Hall, Thomas More is not a leading man-looking guy. Interesting. He's nerdier and he's a little more curmudgeonly, perhaps. And so you have to challenge yourself to be like, actually, this is masculinity, even if it's not someone who you're drawn to because he's Jeremy Northam and incredibly attractive.

Well, and, you know, the bottom line is, if we met Thomas Moore, and, you know, if you could go back and you could meet him after everything that's been built up around him, and you found out he was like a real human being with like real personality quirks and probably some irritating aspects.

You might be a little kind of disappointed. I mean, wait, this is the Thomas Moore and you're kind of a jerk sometimes, you know? And maybe a zealot, right? I mean, was that a hill worth dying on? Maybe. Or maybe he was just being a little too intractable in his beliefs. It's weird. I had this actual conversation about Henry VIII yesterday with a friend. And the pop culture version of this is that, boy, if Henry VIII just hadn't been so insistent on this divorce, none of the rest of this would have happened. Anne Boleyn wouldn't have happened. Elizabeth I wouldn't have happened. Shakespeare wouldn't have happened, potentially. The British monarchy, as we know it, would look totally

different, and England would still be a Catholic state, potentially. Okay? Fair enough. No Anglican church, maybe no Episcopalian church, no split of Europe. I mean, so much comes from the Anne Boleyn-ness of history. Okay, but let me give you a different version of this. The Catholic Church had given dispensations to plenty of people to get divorced when they couldn't have a male heir. It was the political power of Catherine of Aragon, who was a Spanish princess, and the Pope at that point was relying on the Spanish money and armies to help defend it. And so that's why he didn't give the divorce. It wasn't some theological reason that he just, you know, had to stand his ground because God demanded it. No, it was politics on both sides.

And so Thomas More, at least in sort of that vision of it. Maybe he was standing on theological grounds, but the Pope certainly wasn't. So was this really a hill worth dying on? Again, I actually think that's a really fun conversation. I'm not actually taking sides against Thomas more, obviously. But to your point, David, if you met him in person, I think there's a decent chance you would find him to be a little zealous. You're going to get mail, Sarah.

I know. And I love Thomas more. That's like the funny thing about this. I think a man for all seasons is, I mean, I have a copy upstairs. I love it. I have it next to my bed. I mean, don't send me mail about this, but my history is right. But it's an interesting question. I often ask myself about historical figures. What would it be like to be in a room with them? Especially the people that

you've really built up and people you've sort of really modeled them as this person is a truly heroic figure. In their presence, and I'm sure for some people that would i'm sure for especially after their their heroism had revealed itself it would kind of they would have the command of the room so to speak but it is an interesting question but anyway so here are my here are my additional nominees and some of them come were like immediately dispatch commenters dispatch members like said what about this person what about this person and i was like yes yes yes so two historical figures portrayed on screen and two fictional characters portrayed on screen or the two historical figures eric little and chariots of fire i remember seeing that when i was a kid. It made a big impact on me about modeling what it's like to stand for conscience. William Wilberforce in Amazing Grace. It's a really good movie. If you've not seen Amazing Grace, it shows that big historical stands are often fought.

They're fought on principle, and they're also fought tactically with parliamentary maneuvering and dealmaking. It was a very good and interesting historical portrayal of Wilberforce. And then here are the two fictional ones. All right, I'm going to go with a movie that is so underrated. Everybody needs to see it who hasn't seen it. I cannot believe they didn't make more of these movies. Master and Commander.

Captain Jack Aubrey, Russell Crowe, the captain. Was it the HMS Surprise? Anyway, if you've not seen Master and Commander, watch it. It's so stinking good. Sarah, have you seen Master and Commander? I have. Isn't it great? I was more a Horatio Hornblower girl myself.

Okay, but it's great. I was a Horatio Hornblower. That was sort. But it's great. Yoan Gaffard as Horatio Hornblower. And that was sort of coming out at the same time as Master and Commander. And for me, Russell Crowe is never going to be my guy. I didn't like Gladiator. I didn't love Master and Commander.

And then this far lesser known Horatio Hornblower series was happening, I believe on BBC again, in case you're not clear, that I love BBC. And it's so much better than Master and Commander, even though it's set roughly at the same time. Okay. I have not seen a racial iron blower, so I cannot scorn you, but it's got to be really good to be better than. And then my last one,

nominee, can't believe I didn't think of it. Because again, this is something that made a huge impression on me when I first saw it. One of my favorite books in life, like if your top four book in life, Les Miserables, Jean Valjean. What on earth? What on earth, Sarah? What is wrong with me? That's one of my most influential books in my whole life is Les Miserables. And you asked the question, and I did not say Jean Valjean. I think Jean Valjean is certainly the most obvious answer to the question about Christian masculinity in particular. Yeah. It is.

And I've dropped it. That's the whole narrative. Yeah. Yeah. As someone on Twitter pointed out in this conversation, he starts as 24601 and he is, in fact, transformed into Jean Valjean by the priest. Yeah. Who is also, by the it when I was in law school. We did a semester-long small group. Like, we had a group of guys who got together, not exclusively guys, guys in the gender-neutral

sense, a group of folks who got together. We called ourselves Pilgrim's Progress, and we would read great works of Christian literature. And we spent a whole semester on Les Miserables. And one of the things we, one of our exhortations to each other, speaking of the bishop was we were, we made a semester, a semester long resolution to be more bishop-y.

In other words, gratuitously forgiving and graceful. It is hard to be more bishop-y. I think that is actually a very good New Year's resolution of sorts. It is, it is. So, Sarah, you had some nominees, didn't you? Well, I do because this is advisory opinions.

So my two main nominees are, one, The Juror from 12 Angry Men. Mm. That's a good poll right there. Thank you. Yeah. And then obviously Atticus Finch from To Kill a Mockingbird,

fatherhood, you know, truth to justice, all of that. But I actually think that the guy from 12 Angry Men is the clear, correct answer when it comes to just a pure question of masculinity.

It is a crowd and there is something deeply masculine to me about standing against the crowd calmly and with reason to defend your beliefs, even when it's deeply unpopular. That to me is something that takes courage and, and yeah, and, and there's something deeply masculine about it.

I'll make one just super pop culture poll, though. Okay. John Krasinski's character in A Quiet Place. Ooh. Ooh. That's a good one. That's a good one. So I don't want to ruin the movie for anyone.

It's actually kind of a sci-fi horror movie. It may not be your cup of tea. There's some also major plot holes in it, but, uh, John Krasinski is in it with his wife, Emily, Emily,

what's her last name? Emily Blunt. Emily Blunt. Yes, of course. Emily Blunt. And, uh,

they play parents and she's pregnant and he's trying to defend his family. Uh, and there's some deeply touching moments of husband hood fatherhood, you know, and, and being the man of your house in a way that is not necessarily stereotypical. And by the way, a great example of femininity as well. I thought Emily Blunt's character was incredibly feminine and tough and defending her family. And she's, well, I mentioned she's pregnant. If you haven't seen the movie, just go ahead and watch that as the toughest example of motherhood maybe I've ever seen on screen. Fact check, true. Yeah. So I've got another one this this is again like the thank you listeners

thank you but again because i've talked about this show 50 000 times ted lasso yep ted lasso i think ted lasso is pretty good i don't think it's perfect. No, it's not perfect. No, he's definitely, but here's what I like about Ted Lasso. He's it's a real character, meaning, in other

words, he's, well, you know, he's not a real character. There are no American football coaches coaching English football. You mean real in the sense that he has flaws. He has foibles. He has flaws. He's got problems. Things are not going great for him, but he fights through in a way that's really genuine and sort of touches, connects with people. I think one reason why this show connected with every single person that I have recommended it to has said thank you to me, every single one. And I think one reason why it

connects is he's so stinking relatable. He's just so relatable. But at the same time, at these critical moments, he really rises to the occasion. And that's kind of the way we are as people. We're flawed and we have a lot of doubts about ourselves and we make a lot of mistakes. And if you look back at the course of our life, you say, I could have done this better and I could have done this better and I could have done this better. But we really hope that we're the kind of people that when the moment's's important that we can rise to the occasion that we can do the right thing even when the right thing is difficult and i think that that was that's such a powerful part of that show i like that example because for instance uh i will

never be emily blunt in a quiet place i hope and if i am ever in that position, I don't know that I will have it within me to be like her, but, uh, Ted Lasso, I think to tie it together is a great example of how to be bishopy in, uh, modern society, if you will.

Like, yeah, Jean Valjean is not going to show up at your doorstep and the police aren't going to come and be like, did that guy take your silver? No, I gave him the silver and you forgot some. Here's some more.

But actually, Ted Lasso is a modern day bishop in a lot of ways in that show. And maybe that's why we all like it so much. And he's relatable in 90% of his life. But in 10% of his life, he is modeling the behavior that we all should be doing more of. True. Yeah, that's very well said. That's very, yeah. He was part of Pilgrim's Progress, Sarah,

and he put in place Be Bishop-y. Now that scene, and I don't want to spoil it, but you'll know if you have read Les Miserables, if you're in the overlap of people who have read Les Miserables or watched the play and then are going to go watch Ted Lasso, you will know the moment. And it is a powerful moment. Like it's, I wrote a whole Sunday French press about it. It's so powerful.

But yeah, that's, I think I'm going to watch it again. I've done two, but not before I watch Varsity Blues. The documentary, not the movie. Not the movie, the documentary. But I will say that, so in the same way that Ted Lasso is 90% normal with 10% bishopy, I think that the juror from 12 Angry Men is similar in the sense that his life, as we are told, is totally normal outside of that room. And that's the moment that he's called upon to have that type of masculinity. And I think it's the same idea of

he's 90% normal. And then when the moment is there, he's that 10% better version of what we all strive to be. And I think the fact that it comes in our system of justice is what makes it so powerful and so memorable because he's not the prosecutor. He's not the judge. He is one of the jurors. And that's where the tension comes that makes it so compelling. And I don't know whether students are still required to read that in junior high or high school, but I really, really hope they are. And David, no question, the brisket will be reading 12 Angry Men and Les Miserables before the age of 16. Yes, I love it.

Unabridged Les Miserables. I didn't promise that. Oh, come on. Having like... He's a 15-year-old boy in this example. You really think I'm going to get him to do that? It's going to be hard enough to get him to read the abridged version. Well, as much as you're exposing him to reading now, he might just start reading it at age 12 on his own. We'll see. Maybe with your guidance, David.

Maybe. But you need the unabridged version because you got to have Victor Hugo going on like 40-page digressions on the Battle of Waterloo or the prison system. Look, we will definitely read the unabridged version of the bishop scene. How about that? Okay, here you go. In fact, I think there's a decent chance that I would go through and do multiple translations of the bishop scene. I did that, by the way, with Cyrano de Bergerac. I've read, I think, four translations of Cyrano de Bergerac. Really? And it is so fun and wonderful. Plays are easier to do it with because they're relatively short,

but pick a short novel or play and read multiple translations of them. And I mean, it's fascinating. I found myself being like, well, I want this part and this part, and I want to meld them together and make it, you know, there's sort of the more beautiful poetic version. And then there's the more plot driven version. And so for the Bishop scene, I think, David, I think you've inspired me. I think I'm going to go find a bunch of translations of Les Mis, but only for that scene and read them all. That's a tremendous idea. That's fantastic. I'm going to do it.

I'm going to report back, listeners. Please do. I'm eager for that report. All right. Well, see, this was great. Thank you for allowing me to revise and extend. This has been a great discussion.

Heck, this should have let off the whole podcast this is good stuff alright well we will be back later this week as usual and we'll probably have some more we're through our mailbag we don't know what the law will bring us over the next few days

but I'm sure it'll bring us something interesting. So please tune back in. If you've not already rated us on Apple Podcasts, please do. If you've not subscribed to our feed on Apple Podcasts, please do. And if you've not, check out thedispatch.com and subscribe to the French Press and the Sweep newsletter. The Sweep is Sarah's and the French Press is mine. Please do that as well. And we will

talk to you on Thursday. Thank you.